Volume 49 — Federal Reporter

<p>1» APPBAXf — Dimistittxok op Record — Certiorari.</p> <p>On appeal to tlie circuit court of appeals the clerk of tbe court below, being tbs custodian of the record, is to determine, in the absence of agreement of counsel, what ovidence shall be included in the transcript following the note of evidence made under the rule of court; and if any omissions are found relief can be had by certiorari for diminution of the record, as provided by court rule 18.</p> <p>2. Same.</p> <p>A transcript which contains all the parts of a deposition called for by either party is sufficient.</p>

<p>Application to Assess Value of Lands to be taken by a railroad company. Heard on demurrer to the plea in abatement.</p>

<p>PrINCIPAI, AND AGENT — RIGHTS ÍNTER Se — SALE OF PATENTED MACHINES.</p> <p>A Corporation owning certain patents, ami manufacturing machines thereunder, conmituted. another company its exclusivo agent for the sale thereof in certain Eastern States, the agent to receive as compensation a discount oí 20 per cent, on the price, and, if the principal sold in this territory, 20 per cent, also upon all its sales. Subsequently tho principal, l'or a cash consideration oí 805,000, in addition to certain annual royalties, sold to a third company an exclusive license to sell machines under one group of patents in the whole Unite! States. Held, that the agent was not entitled to recoioj; of its principal any part of the .‘365,000, or ,‘30 per cent, commission upon sales nmde by the licensee, until it was shown that the latter company had actually sold machines within the agent’s torritory.</p>

<p>In Equity. Final hearing on cross-hill, answer, and proofs.</p> <p>The Brush Electric Company, owning certain patents, and engaged in manufacturing electrical machines thereunder, had a contract with the Brush-Swan Electric Company of New England, whereby the latter was constituted its exclusive agent for the sale of said machines in New England and other eastern states. The contract provided, among other things, that the New England Company was to receive as compensation a certain discount on the selling price, and that the Brush Company would not itself sell any machines in the specified territory. Various disagreements arose between the two companies, mainly growing out of the alleged inability of the New England Company to meet its payments to the Brush Company, as provided by the contract. At length the latter refused to furnish more machines, and began selling them in that territory itself. On suit by the New England Company, the contract was upheld, and the complainant declared to be entitled to an injunction and accounting. 41 Fed. Rep. 163. A rehearing was applied for and denied. 43 Fed. Rep. 225. Afterwards leave was given to file the cross-bill, upon which the present hearing is had. Id. 701.</p> <p>In the case of an individual, the mere fact of divided duty constitutes a breach of the employment agreement. Pearce v. Foster, 17 Q. B. Div. 536; Dieringer v. Meyer, 42 Wis. 311; Davoue v. Fanning, 2 Johns. Ch. 252; Michoud v. Girod, 4 How. 554. It would be a defense in a suit for past compensation. Murray v. Beard, 102 N. Y. at page 508, 7 N. E. Rep. 553. And it might entitle the principal to damages up to the value to him of the agreement. Panama, etc., Co. v. India Rubber, etc., Co., L. R. 10 Ch. App. 515.</p>

In Equity. Bill filed by the city of New Orleans against R. B. Paine, United States deputy-surveyor, to enjoin a survey. Hearing on bill, demurrer, exhibits, etc.

<p>Copyright — Infringement.</p> <p>The copyright oí a book describing a new system of stenography does not protect the system, when considered simply as a system apart from the language by which it is explained, so as to make the illustration by another of the same system in a different hook, employing totally different language, an infringement.</p>

<p>Equity — Pleadings as Evidence — Mortgage Procured by Fraud.</p> <p>In a suit to enforce the lien óf a mortgage against a husband and wife, the wife answered, admitting that she signed the instrument, but only upon the false and fraudulent representations of the complainant’s agent, who obtained her signature and acknowledgment, and that she was ignorant, and unable to read. A general replication was filed, and the cause was heard on the pleadings alone. Meld, that the allegations of fraud were not new matter in avoidance, but were responsive to the bill, and were sufficient to prove that the wife did not execute the mortgage.</p>

In Equity. Bill to enjoin infringement of patent by John Dobson against Richard Graham. Plaintiff called defendant’s workmen to show infringement, and asked them to state wherein the defendant’s machine differed from complainant’s. This they refused to do under advice of counsel. Plaintiff moves for an inspection of defendant’s machinery, and to compel the witnesses to' answer interrogatories.

At Law. Assumpsit to recover an excess of duties alleged to have been illegally exacted by the collector on goods Imported by the plaintiffs in 1884. The facts are sufficiently set forth in the charge. The verdict was for the plaintiff's.

At Law. Assumpsit to recover an excess of duty alleged to have been exacted by the collector upon certain velvet ribbons, gauzes, crepon, crepes, satins, and velvets imported by the plaintiffs in 1886. The facts are sufficiently set forth in the charge of the court. The defendant admitted that the duty collected on the velvet ribbons was excessive, and that there was due on that account $244.01, but denied that anything was due on the other items.

■ At Law. This was a motion by plaintiffs for a new trial in an action at law to recover an excess of duty alleged to have been exacted on hat trimmings. Reported, 49 Fed. Rep. 26. The grounds of the motion were that the verdict was against the weight of the evidence, and that, during the progress of the trial, statements had been publicly made on behalf of defendant calculated to prejudice the minds of the jury.

<p>At I,aw. Action by Samuel H. Seaman against John W. Slater for damages for breach of a charter-party. For former report, seo 18 Fed. Eep. 485. Now heard on motion for a new trial.</p>

<p>’ Error to the Circuit Court for the Eastern District of Louisiana. Affirmed.</p> <p>STATEMENT BY LOCKE, DISTRICT JUDGE.</p> <p>This was a petition by C. H. Stewart, the relator, filed December 31,1890, in the circuit court of the United States for the district of Louisiana, for a writ of mandamus to compel the mayor and council of the city of New Orleans to put upon the budget and appropriate money for the payment of a judgment for $2,484.92, which had been recovered against the city of New Orleans in said circuit court in June, 1888, and filed and registered in the office of the comptroller of the city of New Orleans, for payment, according to the provisions of the act of March 17, 1870, being Act No. 5, session of 1870. The writ was granted, and from this judgment the case is brought to this court.</p> <p>The original petition in the suit in which the judgment was obtained shows that the suit was founded upon certificates issued by the city of New Orleans for services rendered that city, namely, street wages, during the year 1882, and alleges that they were made payable out of the revenues of said year, but that the city of New Orleans misappropriated the funds which were so set apart, and destroyed the restriction hitherto existing. The record does not show any traverse or plea to said original petition, but the case went to trial by the court, the parties in the cause having waived a jury trial, and, the cause having been submitted upon the issues of fact as well as law, a final judgment was rendered thereon, which was made general and unrestricted. In the return to the alternative writ of mandamus, the judgment was admitted, but it was urged in defense that it was not a liability of the kind contemplated by the act of 1870;1 that by Act No. 30 of 1877 the obligations contracted during any particular year are confined to the revenues of that year; that unless such revenues pay the claims, it is not an indebtedness of the corporation, and consequently not a liability of the city; ana that no liability can be budgeted for out of the regular revenue constituting the alimony of the city, unless there is more thereof than is necessary to carry on the government satisfactorily, and provide for the peace, happiness, health, and comfort of its inhabitants.</p>

<p>Error to the Circuit Court of the United States for the District of Washington.</p> <p>At Law. Action by the First National Bank of Clarion, Pa., against George D. Hamor on judgments obtained in Pennsylvania. From a judgment for defendant, plaintiff brought error.</p>

<p>Appeal from the United States Court in the Indian Territory;</p> <p>Application by Silas J. Boyd for a writ of habeas corpus. The writ was denied, and he appeals.</p>

<p>1. Criminal Law — Removal or Prisoner to Another District — Evidence.</p> <p>Evidence which does not form the subject-matter of a defense, but merely tends to show that the indictment had been irregularly found, or that the offense charged could not have been committed by the prisoner, will be heard in his behalf in proceedings for warrant of removal, under Rev. St. § 1014.</p> <p>2. Same — Discharge on Habeas Corpus.</p> <p>"Where a prisoner has been arrested on a warrant founded on an indictment found by a federal grand jury of a district in which he did not reside and was not found, which presumably had not been instructed by the court as to the constituents of the crime charged, and when there had been no previous arrest, hearing, or binding over, the court of the district in which the arrest is made will discharge the prisoner on habeas corpus.</p>

<p>At Law. Prosecution of Prances P. Bedgood for perjury. On demurrer to the indictment.</p> <p>The indictmenpwas in the following words:</p> <p>“The grand jurors of the United States of America, chosen, selected, and. sworn within and for the southern district of Alabama, in the name and by the authority of the United States of America, upon their oaths do find and present that P «unces P. Bedgood, whose other name to this grand jury is unknown, late of the district aforesaid, heretofore, to-wit, on or about the thirtieth day of December, A. D. eighteen hundred and eighty-nine, and before the finding of this indictment, and within the said southern district of Alabama, in giving her testimony and making final proof of her pre-emption entry No. 1,397, for the south-east quarter of section ten, in township two north, of range nine east, in Escambia county, within said southern district of Alabama, was duly sworn by, and took his corporal oath before, N. It. Leigh, judge and ex officio clerk of the probate court of said Escambia county, (he, the said N. E. Leigh, judge and ex officio clerk as aforesaid, then and there having sufficient and competent power and authority to administer an oath to the said Frances F. Bedgood in that behalf,) whereupon it then and there became material in making the said final proof for her pre-emption entry hemontoad [s«o] as aforesaid, whether the same was made for the interest and benefit of the said Frances F. Bedgood, and not for the interest and benefit of any other person or persons whomsoever, and also whether he had made actual settlement and cultivation thereon, and also whether the said Frances F. Bedgood had resided continuously on the said land, and whether he- had made a bona fide improvement and settlement thereon; and the said Frances F. Bedgood, being then and there sworn as aforesaid, knowingly, falsely, and willfully did substantially depose and say, among other things, (which said oath and testimony, in that behalf made, was used and filed in the local land-office of the United States at Montgomery, Alabama, and was subsequently filed in the general land-office of the United States at Washington, D. C.,) that she made the pre-emption homestead [sic] entry as aforesaid for her interest and benefit, and not for the interest and benefit of any other person or persons whomsoever; and that she had made actual settlement and cultivation thereon; and that she, the said Frances F. Bedgood, has resided continuously on the said land since February, 1889, up to December 30,1889; and that she had made a bona fide improvement and settlement thereon; and that said improvements were of the value of fifty-four dollars. Whereas, in truth and in fact, the said Frances F. Bedgood did not make the said pre-emption he«icafr»ftd [sic] entry for her own interest and benefit; and whereas, in truth and in fact, the said Frances F. Bedgood did make said entry for the interest and benefit of other persons, whose names to this grand jury are unknown; and whereas, in truth and in fact, the said Frances F. Bedgood did not make actual settlement and cultivation thereon; and whereas, in truth and in fact, the said Frances F. Bedgood had not resided on tile said land continuously since February, 1889, up to December 30, 1889; and whereas, in truth and in fact, the said Frances F. Bedgood had not then a bona fide improvement and settlement on the said pre-emption homestead, [sic] entry; and that the value of her improvements was not fifty-four dollars, as stated in her said testimony and final proof aforesaid. All which statements then and there made,” etc.</p>

<p>1. Patents roit Inventions — Novet,ty—Combination.</p> <p>Letters patent No. 808,790, issued December 8,1884, to R. S. Manger, are for an apparatus, designed to take loose cotton from tho wagon or store-house into the ginliouse, clean it of dust and dirt, and feed it directly to the gin. The second claim, which substantially covers the whole device, is for the “combination with a cotton-gin of a pneumatic conveyer for the cotton, a screen arranged in the conveyer, and exhaust chamber inclosing tho screen, means for delivering the cotton from the conveyor to the gin, and an exhaust tan for creating an air current through the conveyor, substantially as described. ” Held, that this is only a combination of well-known elements, but, as it appears to have produced a new and useful result, the patent is valid as to the specific device, taken as a whole.</p> <p>& Same.</p> <p>Claim 4 is as follows: “In an apparatus for handling seed cotton, the combination of a puomit tic conveyer, of a telescopic drop-pipe communicating therewith by a flexible joint, a valve placed in said pipe, substantially as described. ” Held, that this drop-pipe is merely the equivalent of an extension of the pneumatic conveyer, with a flexible joint, and is not a patentable novelty.</p> <p>8. S 1ME — Eqi! IVAI/ENTS.</p> <p>A cap used in defendant’s machine to fit over the end of the pneumatic tube is merely the equivalent of the valves of the patent, which are located within the tube.</p> <p>4. Same — Construction.</p> <p>The patent, being for a combination of old elements, must bo limited to the specific devices used or suggested, and, although the claims sued on describe one element as “means of conveying cotton to the gin. substantially as described, ” tho court may refer to other claims and to tho specifications for a description of tho specific means used or suggested for that purpose, and must limit the claim thereto.</p> <p>6. Same.</p> <p>The designs filed by the patentee with his apjfiication show that the means used by him for convoying the cotton from the cotton chamber downward to the gin consists oí a valve chamber with a valve shaft, upon which are mounted valves or buckets of flexible material, each closely fitting the walls of tho chamber, so as to prevent the upward passage of air by reason of the suction of Iho fan. The means used in defendant’s machine is a square box, with two stiff sides and two flexible or collapsible ones, the same being fastened at its upper end to the cotton chamber. When the fan is in operation the lower end is drawn together by the suction, making a wedge-shaped cavity into which the cotton falls; the cotton being delivered therefrom to the gin by moans of a valve in the pneumatic tube between tho cotton chamber and the fan, which, being periodically closed, stops the suction, and allows the stiff sides of the box to drop apart. Held, that this device is not tho equivalent of the vahe chamber, shaft, and buckets, and hence defendant’s machine does not infringe the patent.</p> <p>6. Same.</p> <p>The fact that the box, with collapsible sides, was used prior to the granting of the patent, for the purpose of delivering grain from a pneumatic tube, does not effect tho question of infring'ement, it appearing that its lower end was- there opened by the weight of the accumulating' grain, whereas, by reason of the lightness of tho cotton, it was necessary to check the air current by means of the additional davieo of the periodically acting valve.</p>

<p>1. Invention to be Made-^-Contract Concerning.</p> <p>A contract by which A. does “license, grant, and convey” any invention he may thereafter make in gas-engines to B. does not operate as an assignment of such invention when made, and, at most, gives to A. the right in equity to have an assignment of such invention to him, which may be defeated by a prior assignment of the same, to a purchaser without notice of such contract, in good faith, and for a valuable consideration.</p> <p>2. Same — Assignment of Such Contract.</p> <p>An indorsement of such contract by B. in these words: “I hereby sell, assign, and transfer unto M. M. Barrett all my right, title, and interest in and to the above agreement, ” — only passes the paper on which it is written, with such rights of action thereon as have not become vested in the indorser.</p> <p>8. Record of the Assignment of a Patent.</p> <p>The record of the assignment of two patents contained thewords, “contracts concerning tha-same. ” Neld to mean “concerning the rights and privileges granted by said patents, and thereby assignedand also that constructive notice could not be predicated of such record, as to the status or ownership of another patent. 47 Fed. Rep. 511, reversed.</p> <p> (Syllabus by the Court.) </p>

<p>Patents foe Inventions — License—Rights of Licensee.</p> <p>A grant by the owner of a patent of an exclusive license to sell the patented article carries with it an implied authority to sue in the owner’s name, even against his will, for the bona fide purpose of preventing in fringement. Brush-Swan Electrie Light Co. v. Thomson-Ilouston Elcebrie Co., 48 Fed. Rep. 234, followed.</p>

In Equity. Bill by Emil Nopplo to enjoin Christian Dorn from infringing letters patent No. 411,646 for apparatus for refining oil. The answer set up non-infringement as sole defense.

Libel by Donald Bros. & Co. against the Norwegian bark India for damages for failure of her master to give a clear bill of lading. Judgment for libelants, and dismissing cross-bill for demurrage. The owners appeal.

<p>L Collision between Steamers — Signals—Failure to Reverse.</p> <p>A collision happened in the night-time at the junction of the Ft. McHenry and Brewerton channels of the Patapsco river between two side-wheel passenger steamers, the Virginia and the Louise. The Louise, the incoming steamer, at a proper distance signaled to the Virginia by two blasts that she desired to take the southerly side of the channel, being the side which was on her port. The signal was answered by a steam-tug, which was between her and the Virginia. Without getting any reply from the Virginia, the Louise put her helm to starboard, and continued, at her full speed of 11 miles an hour, until she was about a quarter of a mile from the Virginia, when she again gave a signal of two blasts. The Virginia being then over on the southerly edge of the channel with her wheel to starboard, and the channel being obstructed by a schooner, the Virginia was unable to avoid the Louise, and they collided just at the hend of the channel. Held, that the Louise was in fault (1) in putting her helm to starboard, and taking the side of the channel which was on her port; without getting an assenting signal from the Virginia; (3) also in not obeying the rule which required her, having the Virginia on her starboard side, to keep out of .the Virginia’s way; (3) also because, when the risk of collision was apparent, the Louise did not stop and reverse her engines, but merely slowed.</p> <p>2. Same — Rate oe Speed — Mutual Fault.</p> <p>The Virginia, the outgoing steamer, heard the signal of two blasts given by the Louise, and when it was answered by the tug supposed it was intended for the tug. She continued her full speed of 14 miles an hour, and ported her helm to avoid ,the schooner, and went over to the southerly edge of the channel; but she did not make out the side lights of the Louise, nor did she signal herself until the Louise came out from behind the schooner, and signaled a second time when the steamers were not over a quarter of a mile apart. Then the Virginia blew danger signals, and reversed her engines, and did all she could to avoid the collision. Held, as to the Virginia, that, as she was nearing a bend of the channel obstructed by the schooner, and had not made out the side lights of the Louise, she was in fault in maintaining such a high rate of speed in a place of such danger, under such uncertainty with regard to the Louise’s course, without having a distinct understanding by interchange of signals before the steamers had approached so near to each other. Experience has demonstrated that the strict observance of every precaution prescribed by statutory regulations and by good seamanship is necessary for the safe navigation of steamers at high speed in the channels of the Patapsco river. Held, that both steamers were in fault.</p> <p> (iSyllabus by the Court.) </p>

<p>In Admiralty. Libel for collision. Decree for libelant.</p> <p>This was a suit in admiralty, instituted by the New Jersey Lighterage Company, owner of the barge Atlanta, against the steam-tug Dr. John Wolverton, which had the Atlanta in tow, and also against the steam-tug E. A. Packer, to recover damages for a collision between the Atlanta and a barge lashed along-side and in tow of the Packer on her port side, known as “Cross Creek Barge No. 5,” which occurred in the afternoon of October 25, 1880, near the mouth of the East river, in the harbor of New York. Service never having been obtained upon the Wolverton, the case proceeded against the Packer, and in the district court a decree was granted dismissing the libel upon the ground that the Wolverton was solely at fault for the collision. 20 Fed. Eep. 327. Upon appeal to the circuit court, this decree was reversed upon the ground that the collision was partly, at least, the fault of the Packer, and that, under the rulings of this court, the libelant was entitled to recover its entire damage against her, which amounted, with interest, to $5,404.81, for which a decree was rendered against her. On appeal to the supreme court, this decree was reversed, (11 Sup. Ct. Rep. 794,) mainly upon the ground of a refusal of the circuit court to make a finding in regard to a certain matter of fact. The findings made by the circuit court were as follows:</p> <p>“First. That on the 25th day of October, 1880, the libelant was the owner of the barge Atlanta, and was a common carrier of a cargo on said barge, as alleged in the libel. Second. That on that day, in the afternoon, a collision occurred between said barge and the barge Cross Creek No. 5, then in tow of the steam-tug Packer. Third. That the barge Atlanta and her cargo were on that day taken in tow by the steam-tug Wolverton at Roberts’ stores, in the East river, to be towed to the Long dock, Jersey Oily, and were towed astern of said tug by a hawser of one hundred and fifty feet in length between the tug and barge. Fourth. That on that day tlie tug Packer was bound from the North river into the East river, having in tow on her port side the barge Cross Creek No. 5, loaded with about 450 tons of coal, the barge projecting beyond the bow of the tug. Fifth. As the Wolverton, with her tow, was crossing the mouth of the East river, the Packer, with her tow, was heading around the Battery into the East river, passing the New York shore opposite the barge ofiice, nearly two hundred yards away. Sixth. That the tide in the East river was ebb, and at about full strength. The Wolverton and her tow were going with tlie tide about seven miles an hour, and the Packer and her tow were proceeding against the tide at a speed of about two miles an hour. Seventh. That the Packer and her tow had come so far around from the North river before seeing the Wolverton as to bo in the ebb-tide coming out of the East river, and when she saw she was heading up against that tide, and was about 200 yards out from the shore opposite the barge office. „Eighth. Tlie vessels saw each other when about 500 yards apart, and at that time the course of the Wolvorion was about N. W. by N., and the course of the Packer was E. by N., and as they approached each other the Packer had the Wolverton on her starboard bow, and tlie Wolverton bad the Packer on her port how, the Wolverton being further out in the river from the New York shore than the Packer, and the vessels being upon crossing courses, converging towards the New York shore. Ninth. As soon as the Packer saw the Wolverton she blew two blasts of her steam-whistle. She was then under a starboard wheel, and making in somewhat towards the end of the piers, but upon signaling the Wolverton she starboarded the wheel still more. The</p> <p>Wolverton made no reply to the Packer’s signals, but kept on her course, without abating speed, until within about 200 ieet. The Packer then blew two more whistles, and reversed her engines, and the Wolverton ported her wheel.- The Wolverton passed the bow ot the Packer and her tow, but the libelant’s barge was unable to do so, and her port side came into collision with the bow of the Packer’s tow. Tenth. At the time the Wolverton ported her wheel danger of collision was imminent, and a collision seemed unavoidable. Eleventh. There was nothing in the river to interfere with the navigation of either vessel. The collision occurred about 400 or 500 feet off the ends of the piers, and just below the slip of the South ferry. Twelfth. There was no local usage of navigation applicable to the situation of the vessels when they discovered each other. Thirteenth. That between the tide of the East river and the North river there is an eddy, which extends out about 400 feet from the barge office, and the Packer had passed through this eddy and reached the ebb-tide, which struck on the port bow of her tow, and swung the vessels still further off shore before her pilot saw the Wolverton. Fourteenth. The libelant’s barge was in all respects properly navigated. By reason of the collision the barge and cargo sustained serious injury.”</p> <p>The following conclusions of law are found:</p> <p>“First. The two tugs being on crossing courses, it was the duty of the Packer, having the Wolverton on her starboard hand, to keep out of the way, and the duty of the Wolverton to keep her course. Second. It was the duty of the Packer to port her wheel, and stop and reverse her engine in time to avoid the collision. Third. The libelant is entitled to recover against the Packer the damages sustained by the collision.”</p> <p>The course of the Wolverton, as stated in the eighth finding, was subsequently changed by the circuit judge from N. W. by N. to W. N. W.</p>

<p>1. Customs Duties — Foreign Built Yacht — Imported Article — Shipping Laws.</p> <p>from the foundation of the government the duties on ships and vessels have been rcgulal ed by acts independent of the custom laws, and under a differont system of legislation. Nor are vessels mentioned by name in any ol the schedules or paragraphs prescribing duties. Accordingly, when the foreign built yacht Conqueror was purchased abroad by an American citizen, and navigated to the port of New York, and was then seized by the collector of customs, on the claim that she was liable to duties as an imported article, under the general tariff act of October 1, 1890, (20 ESt. at Largo, p. 507,) and her owner thereupon brought this suit to recover possession of her, it was held that the yacht was not an imported article, in the sense of the tariff law, and not subject to duties under the tariff act of October 1, 1890.</p> <p>2. Same — Practice—Collector's Possession — Seizure bt Marshal.</p> <p>Under section 931 of the Revised Statutes, where the collector’s agent in possession of the res denies the authority of the court, the court will order the marshal to take exclusive possession of the subject of the suit.</p>

<p>In Admiralty. Libel by James E. Creighton, master of the schooner Mary O’Neill, against George H„ Dilks & Co. to recover demurrage for alleged delay in loading said vessel. Decree for libelant for $802.'50.</p>

<p>In Admiralty. Libel in personam by Joab Chamberlain, master and part owner of the schooner Vanderherschon, against Charles A. Pettit, Frank D. Pettit, and Robert F. Smith, trading as Charles A. Pettit & Co., to recover damages for breach of contract to furnish a certain cargo for said schooner. Order for commissioner to assess damages, if same not mutually agreed .on by1 parties.</p>

In Admiralty. Libel by George Ennis against the steam-ship Maharajah for personal injuries. Libel dismissed. See 40 Fed. Rep. 784. Affirmed on appeal to the circuit court. Libelant appeals.

<p>In Equity. Motion for an injunction.</p>

<p>L Railroad Companies — Right op "Way — Compensation—Injunction.</p> <p>Complainants occupied a tract of land in the Indian Territory, fronting on the Arkansas river, opposite the city of Ft. Smith, and were engaged in operating a ferry at that point, under a license granted them by the Cherokee Nation. The K. & A. V. Ry. Co., in 1888, condemned a right of way through said tract of land to the river, under Act Cong. June 1, 1886, which authorized it to build a railroad through the Indian Territory, and to condemn land to be used for railway, telegraph, and telephone purposes only. On March 15,1890, congress authorized the railway company to build a bridge across the Arkansas river, to be used as a railway, passenger, and wagon bridge. The last act recited that the building of the railway,as authorized by the act of June 1, 1886, involved the necessity of constructing the bridge. Held: (1) That, by the act of March 15,1890, congress impliedly authorized the railway company to use its right of way as a road-way for ordinary travel, so far as might be found necessary to give vehicles and foot passengers access to its bridge. (2) That the grant of the right to build a bridge for the purpose of general travel did not infringe the ferry franchise. (3) That the complainants were not entitled to compensation for the loss of ferry patronage, as the building of the bridge and suitable approaches thereto for general travel had not cut off access to the ferry landing, or rendered it any less feasible than before to operate a ferry. (4) That a court of equity would not enjoin the railway company from permitting foot passengers and vehicles to travel over its right of way, to such extent as might be necessary to reach the bridge, for the reason that the damages, if any, incident to such use, might be recovered in an action at law, and were certainly very small, if not purely nominal; and, furthermore, because the railway companj did not propose to intrude upon the possession of any lands occupied by the complainants.</p> <p>2. Same — Relief in Equity.</p> <p>A court of equity is not bound to grant an unconditional order of injunction when it can afford adequate relief in some other manner. Adequate relief would have been afforded in the present case by requiring the railway company to give a bond to pay such damages, if any, as might be eventually assessed against it in consequence of the alleged new use imposed on the right of way.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Arkansas.</p>

In Equity. In the matter of the receivership of the First National Bank of St. Albans. Heard on petition by the receiver for leave to accept a proposal to compromise, together with a petition to sell assets in case the proposal is not approved.

<p>In Equity. Suit by John H.'Clapp, executor of George F. Damon, against William Clark and others.</p>

<p>At Law.</p> <p>Petition of Herman Brungger for an order of court directing the witness, Charles F. Brown, to answer certain questions put to such witness on the trial of the interference No. 14,195, between the applications Nos. 849,621, 349,622, and 349,623, of Herman Brungger, filed April 26, 1890, and the application No. 807,277, of Sidney Smith, filed March 7, 1889. Brown refused to answer the questions put to him on the ground that the facts and matter inquired about were privileged as communications between client and counsel. In the answer to the petition it was alleged;</p> <p>“First. That said .Brown is a solicitor of patents in good standing, and recognized as such by the commissioner of patents, and acts in a professional capacity when employed as such solicitor by claimants and applicants for patents before the United States patent-office. His relations to his client are precisely the same as those between a regular practitioner before the courts and his client, inasmuch as the nature of his employment requires professional skill, integrity, and secrecy; and he is therefore privileged from disclosing any professional matters, information, or conversations within the scope of such employment. Second. That said witness, acting in a professional capacity as solicitor of patents, employed by Sidney Smith, the party to this interference, as such, cannot be compelled to disclose any secret invention wherein his client is protected by Bcv. St. U. S. § 4908. Third. That this respondent has not waived, or in any manner has he intended to waive, his privilege herein, as alleged by the counsel for Brungger. Fourth. This respondent denies that said questions are material in this case, or proper rebuttal, but charges and says that the examination of this witness is for the sole purpose of probing into the contents of a certain application for patent of this respondent now pending, not in this interference, and in which said witness is the solicitor, attorney, and legal adviser. Fifth. The very nature or character or scope of the question which the witness refused to answer is within the rule of privileged communications, though it calls for a fact.”</p>

<p>1. Bonds — Actions—Measure oe Damages — Penalty.</p> <p>Plaintiff conveyed property to a trustee for defendant as part of a bonus to aid in the construction of a cable road of which defendant was a promoter, and took from it a bond in a penalty equal to the value of the land conveyed, conditioned for the construction of the road. The road was not constructed, and plaintiff sued on the bond. Held, that he was entitled to recover the whole of the penalty, as the value of the property is a proper measure of damages for the breach of the contract in consideration of which it was conveyed.</p> <p>2. Deeds — Delivery—Escrows—Parol Evidence.</p> <p>Where the deed was duly delivered to such trustee, and purported to vest the title unconditionally, parol evidence is not admissible to show that it was delivered in escrow, and was not to take effect unless defendant secured an additional bonus, but was to be returned to plaintiff, and the bond thereupon to be void, if the road was not constructed on account of failure to secure such additional bonus.</p> <p>8. Bonds — Actions—Evidence—Harmless Error.</p> <p>The admission of evidence on the part of plaintiff that the land was conveyed in consideration of the bond, and for no other consideration, is without prejudice to defendant, since it in no manner varies the terms of the transaction as they appear on the face of the bond.</p> <p>on rehearing.</p> <p>4. Same — Damages—Interest.</p> <p>Although' the damages allowed were measured by the amount of the penalty, they must be considered as unliquidated until fixed by the judgment, and hence plaintiff was not entitled to interest either from the date of the breach of the condition; or from the commencement of the action; especially as the land was unimproved and yielding no income.</p>

At Law. Ejectment by the Northern Pacific Railroad Company against Junius G. Sanders and others. Erom a judgment for defendants overruling plaintiff’s demurrer to the answer plaintiff brings error.

. Action by Hill, Fontaine & Co. against Woodberry & Hamilton, in which an attachment was sued out. John M. Denman, as assignee of defendants, interpleaded. Plaintiffs appeal from a judgment for the interpleader.

In Equity. Bill in equity by the Wamsutta Mills against Moses Fox, to restrain defendant from advertising and selling articles as made from muslin manufactured by defendant, which were, in fact, made from inferior muslin. Motion for temporary injunction.

, At Law..- Action by John E..Palmer against Elizabeth B. Sanders and Charles. W. Sanders, for malicious prosecution. Verdict for plaintiff. Motion by defendants to set the same aside, and for a new trial.

<p>Appeal from the District Court of the United States for the Northern District of California..</p> <p>Application for writ of habeas corpus to release Lem Hing Dun from restraint on board the steamer City of Peking, and to permit him to land in the United States.' The court below found that the prisoner was not entitled to land under the exclusion act, and remanded him to the custody of the master, to be transported to China.</p>

<p>1. Chinese — Exclusion op Immigrants.</p> <p>Under the fourteenth amendment to the constitution, the laws excluding immigrants who are Chinese laborers are inapplicable to a person born in the United States, and subject to it.s jurisdiction, even though his parents were not citizens, and, being Chinese, were not entitled to become citizens under the naturalization laws.</p> <p>2. Same — Habeas Corpus.</p> <p>Any person alleging himself to be a citizen of the United- States, desiring to return to his country from a foreign land, and prevented from doing so without due process of law, and applying on that ground to the United States court for a writ of habeas corpus, is entitled to a hearing and judicial determination of the facts so alleged; and no act of congress can be understood or construed .to be a bar to suoh hearing and judicial determination.</p> <p>3. Same — Evidence oe Peace oe Birtii.</p> <p>A person of Chinese parentage testified, on a hearing in habeas corpus proceedings to determine his right to come into the United States, that he was born in San Francisco in 1877, that he was taken to China by his parents "when under three years of age, and remained there continuously until October, 1890. On the question of his birth lie was corroborated only by the hearsay testimony of other Chinese persons, who had seen him trat a few times. Held, that a finding against him should not be disturbed on appeal.</p>

<p>Appeals from the District Court of the United States for the northern District of California.</p> <p>Petition for writs of habeas corpus. Petitioners appeal from judgments remanding them.</p>

<p>1. United States Marshals — Fees bor Arrests.</p> <p>A United States marshal who roads a warrant of arrest to a person charged with crime, but afterwards permits him to go free upon his verbal promise to appear before the commissioner for examination, is not entitled to a foe for the arrest.</p> <p>2. Same-Appearance Bond.</p> <p>The acceptance by a United States commissioner of an appearance bond, tendered by the friends of an absent offender, supersedes a warrant of arrest theretofore issued, and the marshal is not entitled to a fee for a subsequent arrest upon the same warrant, under the verbal direction of 1.be commissioner.</p> <p>3. Same — Duty to Arrest Promptly.</p> <p>A deputy United States marshal who has a warrant of arrest is bound to be prepared at ail times to execute the same, and if he comes into the presence of the accused, but does not arrest him, because the warrant was left at home, he is not entitled to fees for time subsequently spent in making the arrest.</p> <p>4. Same — Guarding Prisoner.</p> <p>When a United States commissioner holds an accused person to trial before the court, and verbally commits him to the custody of the marshal until bail is obtained, the latter is entitled to fees for guarding him, as he has no authority to commit him to jail without a written mittimus. The marshal is sole judge as to whether a guard is necessary while the prisoner is before the commissioner.</p>

<p>At Law. Indictment of Royal Ingraham under Rev. St. § 5438.</p>

<p>1. Patents tor Inventions — Anticipation—Cattle-Guards.</p> <p>Letters patent No. 373,359, issued November 15,1887, upon the application oí John T. Gilbert, to James T. Hall, as assignee for a cattle-guard consisting of strips of perforated metal placed on edge, and fastened together by transverse rods passing through the perforations, and through sleeves placed between the strips, were anticipated by the Akin patent. (No. 183,099, October 10, 1870,) which shows parallel bars of wood, secured by notches in transverse timbers; and the Kline patent, (No. 141,500, issued August 5, 1873,) showing parallel wooden bars set at an incline, and presenting sharp angles at the upper edge, and secured In substantially the same manner as the metal bars of the Gilbert patent.</p> <p>3. Same — Pit and Surface Guards.</p> <p>The patent cannot bo sustained on the ground that the device is a surface guard,, as distinguished from a pit guard, since no claim is made for this feature, and since such a claim would be invalid for anticipation by both the Kline and Akin patents, and the Dillon and Gartner patent. (No. 375,333, issued April 3, 1883,) which is declared by the specification to be an improvement, “whereby the use of the customary pits, as now' constructed by railroads, may be dispensed with. ”</p> <p>8, SSamr — Vibrating Bars.</p> <p>( Letters patent No. 403,532, issued May 31, 1889, to James T. Hall, for an improvement in the guard by fastening the bars only at the ends, thus leaving them free to vibrate laterally when trod upon by animals, involves no patentable invention, and is, besides, substantially shown in the Akin and Kline patents.</p> <p>4. Same.</p> <p>Letters patent, No. 418,014, issued December 2-1, 1889, to .James T. Hall, for an improvement consisting in using bars with the ends turned down so as to raise the body thereof, and allow the use of a cross-bar so low as not to be caught by anything dragging under the train, and also presenting' an angLe at the upper side of the bar, contain no patentable invention.</p> <p>5. Same- -Gu ujd-Shiedos.</p> <p>Letters patent No. 42.1,928, issued February 25, 1890, to the same inventor, for inverted V-shaped shields, set upon the rods, and presenting a surface inclined in both directions, and extending from the top of the guard-rail 1 o the tie, to avoid danger from any beam or chain hanging from a passing train, is a mere mechanical device.</p>

<p>In Admiralty. On appeal from taxation of costs.</p>

<p>Shipping — Liability por Personal In-pkiks — Seamen Unloading Cargo.</p> <p>Libolant,. a seaman engaged in unloading wood from a vessel, was hurtbythe fall of a tier of wood, caused by the mate’s withdrawal of a cleat. The removal of the cleat was necessary in order to unload the vessel, and was effected in the ordinary and proper manner, and after repeated warnings, which were heeded by all the men at work except the libelant. Hold, 1 hat no negligence, could bo imputed to the mate, as he was justified in believing that libelant would heed tho warnings.</p>

<p>i. Seamen — Remuneration of Whalers — Settlement.</p> <p>On a question whether the valuation of whalebone, which formed the basis of a settlement between certain whalers and their men, was fair and reasonable, it appearing that there was no market therefor in San Francisco, where the settlement was made, the value must be fixed upon the basis of the selling price in New York, with proper deductions for the expense of sending it there and preparing it for sale.</p> <p>3. Same.</p> <p>The settlement complained of was made at $1.25 per pound for the men, and it appeared that, in order to pay this amount without loss, the owners must realize $1.77 per pound in New York. The highest offer they had received was $1.50, which they refused, and they had then offered to sell at $2, which was not accepted. Several ship-owners and agents of experience in the business testified that the settlement was a fair one, and it was shown that many of the same men had engaged for the following season at $1.25 per pound if the catch exceeded 200 whales, and $1.50 per pound, if it was less than that number. The catch for the season in question was 345 whales. Held, that the settlement should not be disturbed.</p>

In Admiralty. Libel for towage by the Knickerbocker Steam Towage Company against the schooner Sarah Cullen. A decree dismissing the libel was affirmed by the circuit court, and libelant ajcpeals. It appeared that the schooner was at the time under charter to the Knickerbocker Ice Company, which had agreed to pay for all towages in the Kennebec river.

In Admiralty. Libel against the steam-tug Coe F. Young for damage by a collision with the sloop Mary;- by the owners of the vessel, for its loss; the master, for personal injuries; and a deck-hand, for the loss of personal effects. A decree for libelants was affirmed by the circuit court, and respondent appeals. On the morning of April 19, 1890, the gteam-tug Coe F. Young left the foot of Fulton street, New York, hound for Yonkers.

In Admiralty. Libel by Robert B. Adams and another against the steam-ship Bolivia for the loss of a schooner by collision with the steamship. Tho libel was dismissed. libelants appeal.

In Admiralty. Cross-libels between A. M. Simpson and others, owners of the barkentine Portland, and the Pacific Coast Steam-Ship Com- pany, owners of the steam-ship State of California, for damages for a collision. The owners of the barkentine Portland appeal from a decree of the circuit court affirming a decree dismissing their libel, and awarding damages on the libel of the owners of the State of California.

<p>Removal of Causes — Extension of Time to Answer.</p> <p>In view of the Code rales and practice of Die courts of New York, an extension of time to answer by order of court extends the time for removal.</p>

In Equity. Motion for preliminary injunction. Petition by the interstate commerce commission to restrain the Lehigh Valley Railroad Company from exacting an alleged excessive rate for transporting coal from the mines to Elizabethport.

<p>Covenants nr Deed — Public Podict — Specific Performance.</p> <p>A covenant in a deed not to convey or lease land io a Chinaman is void, as contrary to the public policy oí the government, in contravention oí its treaty with China, and in violation oX the fourteenth amendment oí the constitution, and is not enforceable in equity.</p>

<p>1. Guardian and Ward — Sale of Rioabty.</p> <p>Code Civil Proc. Ky. § 490, authorizes a sale by proceedings in chancery of real estate owned jointly by two or more persons when the same cannot he' divided without materially impairing its value, even though some of the owners are infants or of unsound mind. Held, that a sale thereunder of an infant's interest on application of its statutory guardian convoys an absolute title when the court finds that the requisite facts exist. Po'iver v. Power, (Ky.) lo S. yv. Rep. 523, followed.</p> <p>2. Jurisdiction of .Federad Courts — Diverse Citizenship — Arrangement of Parties.</p> <p>Where a part owner of a distillery joins a number of associates in a contract to purchase the whole, and for that purpose agrees to convey his existing- interest therein, and afterwards, being ready and willing to perform his contract, joins with the other vendors in a suit for specific performance, he is a proper party plaintiff, and cannot be considered a defendant for the purpose of destroying the diversity of citizenship necessary to maintain the suit in a federal court.</p> <p>8. Specific Performance — Stock of Corporation.</p> <p>A clause in a contract providing for the purchase of all the stock of a distillery company may be specifically enforced against the purchasers when it appears that it was only adopted as an expedient to secure the performance of the main stipulation, which was for the transfer of the real estate and plant.</p> <p>4. Same — Incumbrances.</p> <p>A vendee cannot avoid a specific performance of his contract because of a mortgage on the lands when it appears that an agreement has been made for the discharge thereof immediately upon, the transfer, which discharge can he provided for in the decree.</p>

<p>In Equity. Bill for foreclosure of mortgage. On petition of interveners to enforce claims against property in possession of the receiver.</p>

. At Law. Action by William Gair against Seth Tuttle and others to recover a surplus due to plaintiff as grantor in a deed of trust to secure debts, remaining after a sale of the trust subject, which was land. STATEMENT BY PHILIPS, DISTRICT JUDGE. One Da.vis, being the owner of the land in question, mortgaged it to the Lombard Investmer t Company to secure a debt of, say, about $2,500.

<p>1. New Trial — Discretion or Trial Court.</p> <p>The question of a new trial rests in tbe sound discretion of the trial judge, and a refusal thereof is not reviewable in the circuit court of appeals.</p> <p>2. Instructions — Opinion on Evidence.</p> <p>It is not error for a federal judge to express his opinion as to the weight which ought to be given to the statement of a witness, when the jury is in fact left free to discredit the statement.</p> <p>8. Same — Review—Presumptions.</p> <p>When, under such circumstances, the substance only of the court’s language is given in the bill of exceptions, it must be presumed that it did not transcend the limits of judicial discretion.</p> <p>4. Master and Servant — Personal Injuries — Contributory Negligence.</p> <p>In an action by a locomotive fireman for personal injuries sustained by the blowing out of a boiler flue, the statement of witnesses that tbe accident “might” have been due in part to the manner in which the fireman cast lumps of coal into the fire-box is insufficient to justify submitting to the jury the question of contributory negligence, when there is no evidence as to his manner of putting in coal.</p>

<p>1. Carriers of Passengers — Cokuston of Trains — Instruotions.</p> <p>When a passenger is injured by the collision of trains at, a crossing of two r ..1-roads, each company is liable in full if its servants are negligent; and hence In an action against both it is proper to refuse an instruction requested by one, correctly defining’ the duty of the-other with respect to the care to be exercised in approaching the crossing, and casting upon it the liability in case the jury found a breacli of the duty. Both companies are bound to the same degree of care, and the instruction should be made applicable to both.</p> <p>2. Same.</p> <p>In such an action one of the companies requested a charge that its employes were only bound to exercise ordinary prudence; that, in determining whether they did so, all the circumstances should be considered; and that, if they did exorcise ordinary prudence, the company was not liable, “although the jury found that they performed some acts or omitted others which in the light of subsequent events * * - would have prevented the collision. ” Held, that it was not error to omit the quoted part, since it contains an independent proposition, which should have been preferred as a separate request.</p> <p>8. Same — Presumption of Negligence.</p> <p>Where a collision occurs between the regular trains of two railroad companies at a crossing of their tracks in broad daylight, a presumption arises of negligence on the part, of one or both; and, in an action for injuries to a passenger, it is proper to refuse a charge that one of the companies was not affected by such presumption.</p> <p>4. Same — Instructions.</p> <p>In an action by a passenger for personal injuries the court charged that unless an act or omission contributed to the injury “directly or indirectly ” it should not be considered. Held, that the use of the words “ or indirectly ” was harm! ess when there was no proof of any fact that could be considered as a secondary or remote cause.</p> <p>5. Same — Damages—Future Effects.</p> <p>It was proper to refuse a charge that plaintiff could only recover for such future consequences as were reasonably certain to ensue, and not for “merely possible or even probable future effects not now apparent, ” as the quoted words qualified the correct proposition expressed in the preceding clause, and were liable to mislead the jury.</p>

At Law. Action by the city of Goldsboro against John F. Moffett, Henry O. Hodgkins, and John V. Clarke as principals, and Daniel G. Griffin as surety, upon a bond to secure the performance of a contract to build water-works. Jury waived and trial to the court.

At Law. During September, 1890, Schefer, Schramm & Vogel imported from a foreign country into the United States at the port of New York certain merchandise consisting of cotton hosiery and skirts of similar kind, but different .quality, and charged at an average price.

<p>Customs Duties — Act or March 3, 1883 — Table Mirrors.</p> <p>Table mirrors, known as “mirror plateaus” or “circles,” made of plata glass, silvered, beveled, and framed, in circular form, held not, to be dutiable at 45 per cent, ad, valorem,, under Schedule 15, par. 143, as a “manufacture of glass, or of which glass shall be the component material of chief value, ” etc., but dutiable at a square-foot duty according to measurement, under paragraph 141, and at an additional duty of 30 per cent, ad valorem for their frames, under paragraph 142 of said schedule and act.</p>

<p>At Law. Appeal by importers from decision of board of United States general appraisers, under section 15 of the act of June 10, 1890.</p> <p>Blankensteyn & Hennings impórted by the steamers Burgoyne, July 29, 1890, and La Normandie, August 20,1890, certain “bolting cloth,” which was returned by the appraiser upon the invoice as a manufacture of silk and cotton, silk chief value, upon which the collector assessed duty at the rate of 50 per cent, ad valorem under the provisions of paragraph 883 of Schedule L of the act of March 8, 1883. The importers protested, claiming that tlie said bolting cloth was entitled to free entry under paragraph 657 of the free-list of said act providing for “bolting cloths.” The board of United Slates general appraisers affirmed the decision of the collector. An appeal was duly hikeii under the act of June 10, 1890, by the importers from the decision of the board of appraisers to tho United States circuit court. Return filed May 15, 1891. The evidence taken before the hoard of general appraisers showed that the said merchandise was known in trade and commerce of this country as “bolting cloth,” and that it was bought and sold under that name, but the particular merchandise in suit was not used for milling purposes, but for fancy work or to be embroidered. Samples of the merchandise were produced in court.</p>

At Law. Appeal by importers from decision of the board of United Stales general appraisers under act of June 10, 1890.

At Law. Appeal by the importers from a decision of the board of United States general appraisers under the act of June 10, 1890. Ottenheimer Bros, imported certain cotton corsets per steamer Teutonic on April 30, 1891, upon which the collector of customs at the port of New York assessed duty at the rate of 50 per cent, ad valorem as “cotton wearing apparel,” under the provisions of paragraph 349 of the tariff act of October 1, 1890.

<p>At Law. Application for a review of the decision of a board of United States general appraisers.</p> <p>On October 6, 1890, Sherman,' Cecil & Co., imported by the La Champagne, from a foreign country into the United States at the port of New York, certain cotton cloths called “Swiss Spots” and “Sprigs.” These cloths bad certain raised ornamental figures thereon of the kinds indicated by the words “spots” and “sprigs,” and were classed for dut)*' as “articles embroidered by hand or machinery,” under the provision for “embroideries * * * and * * * articles embroidered by hand or machinery,” contained in Schedule J of the tariff act of October 1, 1890, (N. T. 373;) and duty at the rate 60 per cent, ad valorem was exacted thereon by the collector of customs*at that port. Against this classification and this exaction, Sherman, Cecil & Co., within the 10 days specified by section 14 of the administrative customs act of June 10, 1890,- (chapter 407, 26 U. S. St. p. 131,) duly protested to the collector, claiming that the goods were dutiable at the rate of 40 per cent. ad valorem as “ bleached cotton cloths counting over 100 threads and under 150 threads to the square inch, and valued at over 10 cents per square yard, under the provision for such cloths contained in Schedule I, (N. T. 346.) Thereafter the board of United States general appraisers took certain evidence, by which it appeared in brief that these cloths were not embroideries, and that the ornamental figures upon them, which the collector held rendered them “articles embroidered,” etc., were not embroidered thereon, as the terms “embroideries” and “embroidered” were understood in trade and commerce of this country. The board, on March 31, 1891, (S. 11,027, G-. A. 470,) decided that upon this evidence these cloths were not dutiable at 60 per cent, ad valorem, as “articles embroidered,” etc., under the provision for such articles contained in Schedule J, (N. T. 373;) that, upon the authority of Robertson v. Hedden, 40 Fed. Rep. 322, these cloths were not dutiable at the rate’ of 40 per cent, ad valorem, as countable cotton cloths, etc., under the provision for such cloths contained in Schedule I, (N. T. 346,) as claimed in the protest in this case, hut were dutiable at the rate of 40 per cent. ad valorem, as “manufactures of cotton,” under the provision for such manufactures contained in the same schedule, (NT. T. 355;) and that the entry of these cloths should be roliquidated accordingly. Thereafter the collector applied to the United States circuit court for this district for a review of this decision. The case was thereaiter tried by the circuit court upon the evidence taken by the board of general appraisers, and the only questions raised by either side were questions of law', and involved (1) a motion, made on the day of the trial, by the importers, to amend their protest to accord with the decision of the board of general appraisers, or by adding thereto a claim in effect that the cloths in suit, if not liable at 40 per cent, ad valorem,, as “bleached cottons,” do., under paragraph 346, were dutiable at that rate, under paragraph 355 of said act, as “manufactures of cotton not specially provided for;” and (2) the decision of the board of general appraisers that these cloths were dutiable at 40 per cent, ad valorem, as “manufactures of cotton not specially provided for,” under the provision for such manufactures, (1ST. T. 355,) and that the entry of these cloths should he reliquidated accordingly, notwithstanding no such claim had been made by the importers in their protest as served upon the colled or.</p>

<p>Customs Duties — Classification—Coloked Pencils — School Ckayons.</p> <p>Pencils of wood from four to seven inches in length, filled with material of various colors, and known in trade and commerce as “colored pencils, ” and often, especially since March 3,18S3, as “school crayons, ” ai’e dutiable under Schedule N of the tariff act of March 3,1883, (Tariff Ind., New, 473,) as “pencils of wood filled with lead or other material, ” at 50 cents per gross, and 30 per cent, ad valorem, and not, under the same schedule, (Tariff Ind., New, 423,) as “crayons of all kinds, ” at 20 per cent, ad valorem.</p>

At Law. Application by the importers, Blumlcin & Co., under the provisions of section 15 of the act of congress of June 10,1890, entitled “An act to simplify the laws in relation to the collection of the revenues,” for a review by the United States circuit court of the decision of the board of United States general appraisers at the port of New York, affirming the decision of the collector in the classification for duty of certain unstemmed Sumatra leaf tobacco, entered at…

<p>At Law. Action by Charles Soby against Charles C. Hubbard, as collector of customs, to recover duties paid under protest on certain imported tobacco.</p>

<p>On Application for Writ of Habeas Corpus.</p>

<p>1. Patents fok Inventions — Invention—Rijbbeb Shoes.</p> <p>Letters patent No. 181.201, issued September 10,1873, to Isaac F. Williams, for a rubber overshoe with bellows flaps, are void for want of invention.</p> <p>3. Same.</p> <p>In view of the prior state of the art, as shown by the English patent to Stephen Norris, and the Evory & Heston shoes, (American patent No. 59,875, issued November 6, 18(56,) the conception of a bellows flap in a rubber overshoe, for the purpose of making it water-tight, was not the exercise of inventive genius.</p> <p>3. Same — Mechanical Adaptation.</p> <p>The adaptation of the bellows flap to the arctic overshoe by running the hinge of the flap forward to a point near the arch of the shank, in order to give sufficient room for the insertion of the shoe-clad foot, thus placing the hinge almost at right angles to the draft lino of the shoe, did not require inventive faculty.</p> <p>4. Same.</p> <p>Nor did it require inventive faculty to abandon the use of separate gores, and make the flap integral with the vamp and the quarter, since experiment would promptly show that in inserting the shoe-clad foot the strain would be too groat for the seams, and the substitution of an integral extension for a gore would naturally occur to the shoemaker.</p> <p>5. Same — Extent of Claim — Estoppel.</p> <p>The application for letters patent No. 166,669, issued August 10,1875, to Isaac F. Williams, having been made for an improved rubber boot as distinguished from a shoe, and the whole course of the proceedings in the patent-office having proceeded 1 on that theory, the inventor is estopped to claim that the patent covers arubber shoe.</p>

In Admiralty. Appeal from a decree of the district court of the United States for the southern district of New York, dismissing the libel of the libelant. Affirmed. The schooner Major William H. Tantum, loaded with a cargo of iron, went for refuge inside the Delaware breakwater, September 8, 1889.

In Admiralty. Appeal from a decree of the district court of the United States for the southern district of New York, dismissing the libei of the libelant. The respondent chartered libelant’s schooner to carry ice from Richmond, Mo., to New York. The vessel arrived at Richmond August 27, 1890, and her master at once gave notice of his readiness to load. The loading was not completed until September 10th.

In Admiralty. Libel by Daniel Lynch and others against the steam--tug Fred. Jansen for collision. The libel-was dismissed in the district court, which decree was affirmed by the circuit court. Libelants appeal.

<p>At Law. Action by Susan L. It. Dresser against tbe Edison Illuminating Company. Heard on motion to dismiss for want of jurisdiction.</p>

<p>1. Writ of Bjbkob — Return-Da?—Irregularities.</p> <p>Where on error to the circuit court oí appeals the citation is made returnable 60 days alter its dato, (as allowed by rule 14, par. 5, 47 Fed. Rep. vii.,) and the writ oí error on a day named which is less than 60 days therefrom, it will bo presumed that the fixing of the latter day was an oversight, and the writ will not be dismissed where the record is filed thereafter, but within 60 days, though rule 16, Id. viii., requires the record to be filed “ by or before'the return-day. ”</p> <p>3. Same — Kecokd—Certifícate—Mistake.</p> <p>Where the clerk of the lower court transmits the transcript to the circuit court of appeals under the proper caption, the fact that be certifies on the writ of error that he “therewith transmits to the supreme court of the United States ” a duly-certified transcript, etc., is an immaterial mistake.</p> <p>3. Same — Citation—Amending Return.</p> <p>Where there is nothing in the record to show that the person served with the citation was a person upon whom a lawful service could be made, the return may be amended to show that he was in fact attorney for defendant in error.</p> <p>4. Same — Bond—Ibregularitt.</p> <p>The mere fact that a * upersedeas bond which is sufficient in all other respects was taken and approved before the writ of error was sued out is an immaterial irregularity, as the court will presume that it was reapproved upon the issuance of the citation and the allowance of the writ.</p> <p>5. Same.</p> <p>When the security of the supersedeas bond is sufficient, as required by Rev. St. U. S. 8 MOO, it is immaterial that it is signed by only one of the plaintiffs in error.</p>

In Equity. Motion by complainant for leave to discontinue and by defendant for leave to file a cross-bill. Bill by Pullman’s Palace-Car Company against the Central Transportation Company to enjoin it from collecting rent under lease, to ascertain compensation due for the use of cars and to terminate relations between parties, and for a preliminary injunction restraining the collection of-rent accruing subsequently. Complainant’s motion refused.

<p>1. Quieting Title — Railroad Land Grants.</p> <p>The rulo that a suit to quiet title can only be maintained upon the legal title does not apply as against a railroad company, with respect to lands granted to it by the government, when it has done everything required to entitle it to tne grant, since it is powerless to compel the government to issue a patent therefor.</p> <p>2. Same.</p> <p>It would be inequitable to regard such a company as the legal owner for the purpose of imposing taxes upon it, while denying it the same standing with respect to the enforcement of its rights.</p> <p>8. Same — Following Statu Statutes.</p> <p>Code Civil Proc. Cal. § 73.8, permitting actions to quiet title to be brought by persons not in possession, is applicable to suits in the federal courts.</p> <p>4. Railroad Land Git ants — Passing or Title.</p> <p>Under Act Cong. March 3,1871, granting lands in aid of the Texas Pacific Railroad Company, the full equitable title passed at the time of filing the map of definite location of the road, and, as against such title, no rights could attach between that date and the date of the order withdrawing- the land from market.</p> <p>5. Same — Cloud on Title.</p> <p>A bill to quiet tille, alleging that the United Stales had full title at the time complainant’s grant attached, and that defendant claims under a patent issued by the state as for land to which the state was entitled in lieu of certain other grants, show’s a cloud upon the title, although it is not alleged that such lands were ever listed to the state; since the slate patent creates a presumption that all steps necessary to its issuance have been complied with.</p> <p>6. Same — Limitations—Interest op Government.</p> <p>In an action to quiet title t o railroad grant lands, in respect to which the company has performed all the requisite conditions, and has constantly sought, without success, to obtain a patent, against one claiming under a state patent issued as for lands selected in lieu of other grants, the United States being legally liable to make the company’s title good, has such an interest in the suit, although not a party, as will prevent limitation from running against the company’s cause of action.</p> <p>7. Same — Laches.</p> <p>In an action by a railroad company to quiet title to lands granted to it by the United States no laches can be imputed to the company with respect to time passing between the dale of the grant and the time of completo performance of the conditions thereof; for, though the title passes as of the date of the grant, it only does so by relation, upon the pbrfonnance of the conditions, and before performance no such suit could be maintained.</p>

<p>Street Railways — Foreclosure or Mortgage — Receivers.</p> <p>In the foreclosure of a mortgage against a street-railway company, the receiver will not be directed to pay out money in his hands for the purpose of grading and macadamizing the street along and between the rails, in accordance with an order of the town trustees, when there is no lien in favor of the town for such an expenditure.</p>

' At Law. Action by the United States against Riley W. Case on his bond as postmaster, to recover an alleged deficit in his accounts. It wás tried at the term of this court held at Rochester, May 12, 1891. The plaintiff to prove its case depended solely upon statements of account made by the officials’ of the post-office department, and certified as required by law.

<p>Application of Lewis Waller for witness’ fees.</p>

Appeals from Decision of the Board of United States “Appra'is’ersv The report of th$ district .attorney tp;,the(.secretary of the treasury in the Roessler ¿i'^^assiacher $&emicdi~'dóhipahy'Cáse is as fotiows: l J “The proceeding was an appeal by the importers from a decision of the board of U. S. appraisers at this port, affirming the decision of the collector upon the classification of certain merchandise imported into this district by said importers in theS. 8.

In Equity. Suit by the Hammond Buckle Company against the Goodyear Rubber Company for infringement of a patent shoe buckle. Heard on motion for a preliminary injunction.

<p>In Equity. Suit by the Jaros Hygienic Underwear Company against Stephen B. Simons and others, for infringement of a trade-mark.</p>

<p>In Admiralty. Libel by Frank S. Hansen against the schooner Julia Fowler for personal injuries.</p>

In Admiralty, libel by the Sun Insurance Company against the bark Hope, etc., to recover insurance premiums, Heard on exceptions to the libel.

In Admiralty. Suit by the masters of the vessels Hampshire and Ixia against the Havemeyers & Elder Sugar Refining Company to recover a balance of freight. A- decree for libelants was affirmed by the circuit court, and respondent appeals.

<p>1. Shipping — Charter-Party—Option, to Reject Vessel — Where Exercised.</p> <p>Upon charters for loading the ship in remote places across tho seas, options providing for the acceptance or rejection of the charter are to be exercised at the place whore the ship is to load, and the ship has no right to call upon the charterer to exercise his option elsewhere.</p> <p>2. Same — Non-Arrival at Poet of Trade by Specified Date.</p> <p>A charter of a vessel from Macoris to the United States stated that the charterer was to have option of canceling charter if vessel had not arrived at Macoris on or before June 20, 1891. On June 22d, the vessel still being at Guadaloupe, her master telegraphed to his agents at Philadelphia asking whether he should go to Macoris. They consulted the charterer in New York, and, no release of the charter being obtained, the vessel proceeded to Macoris, arriving there July 1st to find her cargo had been shipped on another vessel. On suit brought to recover damages for non-fulfillment of the charter, held, that the ship took the risk of not finding the cargo after the appointed day, and could not recover in this suit.</p>

<p>Shipping — Failure' to Ship Full Cargo — Negligence op Charterer.</p> <p>The failure of a charterer to load a full cargo on a vessel before she was obliged to leave to reach another port, where she had contracted to be ready t'o deliver by a certain date, will not be excused on account of the incapacity of the master when the receipt of cargo and management of the vessel were in the hands of a competent person, and the failure to load resulted from the charterer’s lack of expedition.</p>

<p>Seamen’s Wages — Canal-Boats—Rev. St. § 4251 — What is Canal-Boat.</p> <p>Section 4251, ilov. St. U. S., provides that “no canal-boat i:’ i: * shall be subject to be libeled in any oí tile United States courts for the wages of any person who may be employed oil hoard thereof, ” etc. On suit brought for the value oí services rendered by the libelant on board the William L. Norman, in form a canal-boat, held, that a vessel engaged in navigating canals is a canal-boat, within the meaning of the statute, without reference to its form, and a boat not engaged in navigating canals is not a canal boat, within the meaning of the statute, whatever may bo its form.</p>

<p>In Admiralty. Suit by Dominick Dupee against the steam-ship . Marie.</p>

At Law. Action in the state court by the Blue Bird Mining Company, Limited, against Patrick A. Largey and Lulu F. Largey to quiet title to the Blue Bird vein or lode. The cause was removed to this court by defendants, and is now board on motion to remand -to the state court.

<p>At Law. Action by Patrick A. Largey against the Blue Bird Mining Company, Limited. Heard on demurrer to the complaint.</p>

In Equity. Suit by the Central National Bank of Boston, in its own behalf and in behalf of all other certificate holders, against Itowland N. Hazard, William Foster, Jr., and others, to declaro and enforce the lien of certain receiver’s certificates against the Lebanon Springs Railroad Company. Heard on petition for an order directing an officer of the court to proceed with a sale of the railroad property, in accordance with a decree heretofore entered.

<p>Iu Equity. Saxe ¡by the ITinitod Slates against the Southern Pacific Railroad Uomjrany, the Southern Pacific Company, the Atlantic & Pacific Railroad 'Company, anel the Westem Union Telegraph Company. Heard . on pleas and motion te dismiss.</p>

<p>In Equity. Suit by the United States against the Central Pacific Railroad Company, the Southern Pacific Company, and the Western Union Telegraph Company. Heard on pleas and motions to dismiss.</p>

<p>•Appeal — Assignments of Keros.</p> <p>Where the assignment of error is based on an allegation of fact which the record shows to he without foundation, the decree will bo affirmed.</p>

Suit in equity to recover lands, brought by the Northern Pacific Railroad Company against the St. Paul & Pacific Railroad Company, for which the St. Paul, Minneapolis & Manitoba Railway Company was afterwards substituted. Heard below on motion for a preliminary injunction, which was granted. Defendant appeals.

<p>L, Circuit Court or Appears — Jurisdiction.</p> <p>On a bill to foreclose a mortgage, a decree of sale was rendered in the circuit court before the creation of the circuit court of appeals. After the creation of that court a decree was entered on a cross 'bill setting up a mechanic’s lien on the premises. Held, that an appeal to the circuit court of appeals would lie from the latter decree, though not from the former.</p> <p>2. Same — Amount in Controversy.</p> <p>When the circuit court obtains jurisdiction of a suit to foreclose a mortgage involving inoro than $2,000 by reason of diverse citizenship, it has jurisdiction to determine the priority of all liens upon the premises set up by cross-bill, regardless of the amounts claimed; and, as the jurisdiction of the circuit court of appeals is not limited to any amount, it may entertain an appeal from a decree of the circuit court on such a cross-bill, refusing to recognize a lien for less than $2,000.</p> <p>3. Mechanics’ Liens — When Attaches.</p> <p>Comp. St. Neb. c. 51-, § 3,provides that on filing the proper accountfor a mechanic’s lien the same shall operate as a lien “for two years from the commencement of the la,bor or the furnishing such materials.” Held, that the word “commencement” qualifies both “labor” and “furnishing,” and the material-man’s lien dates from the time of the first delivery.</p> <p>4. Same — Account and Affidavit.</p> <p>As against the owner of the building, as well as a mortgagee thereof who received his mortgage before the end of the four months allowed for filing the account, the material-man’s lien attaches from the date of the first delivery, although the account and affidavit do not show such date, and only contain the date when the money became due, which was after the last delivery of material.</p>

<p>Appeal from Circuit Court of the United States for the District of Minnesota.</p> <p>Bill originally brought by the Hastings & Dakota Railway Company against the Stillwater & Taylor’s Falls Railway Company to recover certain lands, or to have an accounting for the money realized therefrom. Russell Sage, having purchased all the title and interest of complainant since the commencement of the suit, was substituted as plaintiff. Decree for complainant, (32 Fed. Rep. 821,) which was affirmed on rehearing, (44 Fed. Rep. 817.) Defendant appeals.</p>

In Kquit.y. Action by Albert T. Boman and Arrisa L. A. Bilbrey against Mary ifi. Boman to compel her to render an account as executrix, etc., of George M. Boman, deceased. Plaintiffs appeal from a judgment sustaining defendant’s demurrer to the complaint.

<p>In Error to United States Court for Indian Territory.</p>

At Law. Motion for judgment on case stated. Assumpsit by Richard Yardley, receiver of the Keystone National Bank, against George W. Clothier, to recover the amount of a note indorsed by said defendant and discounted by said bank.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by Gladys Jones against the Union Pacific' Railway Company for personal injuries. Verdict and judgment for plaintiff. Defendant brings error.</p>

<p>n Error to the United States Court in the Indian Territory.</p> <p>Action by J. R. Washington against the Gulf, Colorado & Santa Fe Railroad Company to recover damages for the killing of stock. Verdict and judgment for plaintiff. Defendant brings error.</p>

<p>L Indian Territory — Impaneling Jury.</p> <p>In a civil case in the Indian Territory defendant is entitled to have a panel of 18 competent jurors from which to make his peremptory challenges, as provided by Mansf. Dig. Ark. § 4036, which is in force in the territory. Railway Co. v. Washington, 49 Fed. Rep. 347, followed.</p> <p>8. Same — Instructions—Reduction to Writing.</p> <p>In civil actions in the Indian Territory the court cannot be required to reduce its general charge to writing, since Mansf. Dig. Ark. § 5131, subd. 5, only requires that requested instructions shall be reduced to writing.</p>

<p>1. Railroad Companies — Killing Stock.</p> <p>In an action for killing stock in the Indian Territory it was error to refuse an instruction that the company owed the owner no duty except to use ordinary oare to avoid injuring the stock after the engineer discovered it upon the track, or after he might have discovered it by the use of ordinary and reasonable care.</p> <p>2. Same — Instructions—Dutv to Fence.</p> <p>As there is no statute requiring railroad companies to fence their tracks in the Indian Territory, the court, when requested, should give a charge to this effect, in order to prevent misconception.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>Action by Henry Childs against the Gulf, Colorado So Santa Ee Railroad Company to recover for the killing of a horse. Verdict and judgment for plaintiff. Defendant brings error.</p>

A. Martin against the Gulf, Colorado & Santa Fe Railroad Company to recover for the killing of stock. Verdict and judgment for plaintiff. Defendant brings error.

Petition by W. J. McDonough ■f'>r a writ of habeas corpus to release him from imprisonment on a complaint before a United States commissioner for selling beer to an Indian.

In Equity. Suit by William Watson Grier against James B. Baynes and others for royalties under letters patent. On settlement of final decree. See former report, 46 Fed. Rep. 523. STATEMENT OF FACTS. On the 5th of June, 1891, a decision was rendered in favor of the complainant for an accounting. 46 Fed. Rep. 523.

In Equity. Bill by the Nathan Manufacturing Company and others against Warren H. Craig and others, for relief against a patent alleged to interfere with complainants’ patent.

At Law. Action by William A. Brickill and others against the city of Buffalo and others to recover damages for infringement of a patent.

At Law. Action by William A. Brickill and others against the city of Hartford and others to recover damages' for the infringement of a patent. Heard on demurrer to the complaint.

In Admiralty. Libels in personam by Andrea Mignano and others against Robert MacAndrews and others, and Gaspare Califano and others against the same, to recover a balance of charter hire of tw’o vessels.

In Admiralty. Libel by Richard S. Donkin et al. against Robert Herbst and others to recover charter hire oi' the steamer Shadwan, and cross-libel by respondents against libelants for damages in failing to obey charterer’s orders.

<p>In Admiralty. Libel by the Sami. L. Moore & Sons Company against the steam-lighter Lime Rock for repairs..</p>

In Admiralty. Suit by Michael Fahey against the mayor, etc., of New York city, to recover for loss of canal-boat sunk at respondent’s wharf.

<p>In Admiralty. Suit to recover a balance of freight.</p>

<p>In Admiralty. Libel by James Carmody against the City of Rome for personal injuries.</p>

<p>In Admiralty. Libel for personal injuries.</p> <p>Robertson v. Cornelson, 34 Fed. Rep. 716; Stringham v. Hilton, 111 N. Y. 188, 18 N. E. Rep. 870; Railroad Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. Rep. 1044; Miles v. The Servia, 44 Fed. Rep. 943; The Maharajah, 40 Fed. Rep. 784; Coullard v. Tecumseh Mills, 151 Mass. 85, 23 N. E. Rep. 731; Tuttle v. Railway Co., 122 U. S. 195, 7 Sup. Ct. Rep. 1166; Townsend v. Langles, 41 Fed. Rep. 919.</p>

<p>Collision — Lights — False Assumption op Course — Change op Course — Crossing Bows without Answer to Signal.</p> <p>The tug Transfer No. 5, with a car-float along-side, had. come up the East river at night, and was in the east channel of Hell Gate, in the neighborhood of the Astoria ferry, and was about 150 feet from the Long Island shore.. The steamer Delaware, coming west, rounded Hallet’s point, and went down the east channel. Seeing the green light of the tug, she. hastily assumed that the tug was crossing towards Horn’s hook, blew two whistles, and, without waiting for an answer, starboarded. The tug stopped, slowed, and reversed, but the float and the Delaware came in collision. Held, that the collision was solely due to the Delaware’s fault in changing her course, and running into the tug’s water on her own signal, without waiting for an answer, and on a false assumption as to the tug’s course, which she made at her own risk.</p>

<p>1. Indian Territory — Adoption op Arkansas Statutes — Following Arkansas Decision.</p> <p>In construing the statutes oí Arkansas which were extended over the Indian Territory by Act Cong. May 2, 1890, the federal courts will follow Lbe decision of the supreme court of that state.</p> <p>2. Assignment for Benefit of Creditors — Construction of Deed.</p> <p>In determining whether a given instrument is an assignment for the benefit of creditors, under the law of the lnd ian Territory as adopted from Arkansas, the tost is, according t.o the settled rule of Arkansas decisions, whether it was tno intention of the parlies to divest the debtor of the title, and to make an appropriation of the property to raise a fund to pay debts.</p> <p>3. Same.</p> <p>Under this rule an instrument conveying property to a trustee, empowering him to take possession, sell at private sale, pay certain debts from the proceeds, together with all expenses, and then to turn over the remaining property and proceeds to the grantor, is an assignment, since no equity of redemption is reserved.</p> <p>4. Same — Parol Evidence.</p> <p>While it is proper, in determining whether a given instrument is an assignment for benefit of creditors, or merely a mortgage, to show the intention of the parties by parol evidence of their situation, and of their acts in connection with the transaction, yet they themselves cannot be allowed, as against third persons, to testify as to what they had in mind when executing- the paper.</p> <p>5. Same — Validity.</p> <p>In the Indian Territory an assignment for the benefit of creditors is void when the trustee is directed to sell at private sale, and when no bond is filed, as required by the Arkansas statute.</p>

<p>1. Indian Territory — Assignment ror Benefit or Creditors — Equity Jurisdiction.</p> <p>Although in 1885 there was no statute in force in the Indian Territory authorizing assignments for the benefit of creditors, yet, "such an assignment having heen made, the United States court for the territory, in pursuance of its equity jurisdiction under Act Cong. March 1,1889, (35 St. p. 783,) will recognize and. enforce the trust, and apply the principles of equity in determining the nature and extent of the trustee’s liability.</p> <p>3. Assignment for Benefit of Creditors — Enforcement or Trust — Decree.</p> <p>In a suit to enforce a trust for the benefit of creditors, where it is found that the trustee has turned over a large part of the trust funds to his daughter, who is a party to the suit, the decree should state the total sum for which the trustee is liable, and fix a reasonable time for paying it into court, and award execution on default thereof. It should fix the total value of the assets received by the daughter, and require her to pay the amount into court, such sum to be credited, when paid, on the total sum found to be due from the trustee. It should find the amounts due on each of the several judgments recovered against the debtors by the parties to the proceeding, and should contain appropriate directions for the distribution of the fund realized.</p>

<p>INJUNCTION-RESTRAINING ACTION AT IjAW — RELIEF IN IflQl’ITY.</p> <p>Complainant railroad company and defendant car company entered into a contract Íortíio joint ownership and operation of parlor and sleeping cars; tbo accounts 1 oho kept by defendant, and monthly balances and payments to bo made; complainant, in case of termination, to pay defendant tho cash value of its interest m tho joint properly. On the termination of such contract, the property being' in custody of complainant, defendant brought trover to recover its interest in the property, whereupon complainant filed a bill in equity for an accounting, alleging incorrect and unfair account s by defendant of the receipts and expenses, and the retention by defendant of profits in excess of its interest in the property, and asking to restrain tho action at law. Held that, as tho rights of both parties could ho completely protected in equity, the action at law should bo enjoined. i</p>

<p>1. Equity — Omission op Parties — Preserving Jurisdiction op Court — Decree.</p> <p>Notwithstanding Act Cong.T839, (5 St. at Large, p. 321, § 1,) and rule 47 for the equity practice of the circuit courts, passed in pursuance thereof, relieving plaintiff in equity from the obligation of making persons in interest parties when the effect of their joinder would oust the court of jurisdiction, no decree can be made between the parties, before the court, involving the rights of such omitted party.</p> <p>2. Same — Transpbr op Corporate Franchises — Cancellation—Necessary Parties.</p> <p>Plaintiffs alleged that they were promoters of the E. G. & F. R. Co., organized for the construction of a railroad; that thejr entered into a contract with McC. & Co. for the construction of the road, by which the company’s franchises, right of way, and improvements were conveyed to MoC. & Co., who were to build the road, plaintiffs to receive in return certain stock and first mortgage bonds of the road, and a cash consideration; that McC. & Co., having obtained control of all the capital stock and property of the company, elected a board of directors, composed of themselves and others, and sold out the whole property to defendants, a competing company, without attempting to construct the road; that defendants took with full. notice of plaintiffs’ rights. The bill prayed that the transaction might be held void, and defendants declared trustees for plaintiffs, etc., but sought no affirmative relief against McC. & Co. Meld, that McC. & Co. were not indispensable parties to the suit. Railway Go. v. Mills, 5 Sup. Ct. Rep. 456,1Í3 TJ. S. 256, distinguished.</p> <p>8. Parallel Railroads — Illegal Purchase by Competing Road.</p> <p>The purchase by defendants of the road in question, which was parallel to that of their own, was illegal and void, under Const. Ga. 1877, art. 4, § 2, par. 4, forbidding one corporation to make any contract with another tending to defeat or lessen competition in their respective businesses. Langdon v. Branch, 37 Fed. Rep. 449, reaffirmed.</p> <p>A. Railroad Companies — Lease or Sale oe Franchise — Validity.</p> <p>A lease or sale of the corporate franchises of a railroad company to another corporation, by which it ceases to operate its lines, is an abandonment of its duty to the public, is ultra vires, and is absolutely null and void. Central Transp. Co. v. Pull/man Palace Ca/r Co., 11 Sup. Ct. Rep. 478,139 IT. S. 24, followed.</p>

Bill by the Central Trust Company of New York against the St. Louis, Arkansas & Texas Railway Company to foreclose a mortgage upon defendant’s road. Louis Fitzgerald appeals from the allowance of a claim of Annie Evans out of the fund in court.

<p>"Water-Rights — Chance oe Place oe Use.</p> <p>The appropriates of water, to be used at a specified place for the purpose of operating machinery and other works, after so using and .returning it to its original channel, cannot change the place of use, to the damage of a subsequent appropriator lower down on the stream.</p> <p> CSyllabus by the Court.) </p>

<p>At Law. On demurrer to complaint.</p>

<p>3)AMASES — OPINION EVIDENCE — FUTURE EOT'EOT OE INJURIES.</p> <p>In an action to recover damages for personal injuries, the opinions ol medical experts as to the permanence and probable future effect ol those injuries may be received.</p>

<p>1. Railroad Companies — Killing Stock — Instruction—Harmless Breor.</p> <p>In an action for the killing of a mule, struck by a locomotive on the prairie in broad daylight, three passengers on the train testified that they saw a bunch of mules ahead of the train; that they ran a considerable distance'along the track; that the train was running at a good speed, and was not slowed up until it ran into and scattered the mules; and that it seemed as if the engineer were trying to run them down. Defendant failed to call the engineer as a witness, or to offer any evidence on this issue. 3eld harmless error to charge that the engineer was bound to use the “utmost” care, as it was evident that no care whatever was exercised.</p> <p>2. Indian Territory — Limitations—Missouri Statutes.</p> <p>The statutes of the territory of Missouri, including the statute of limitations, ceased to operate in the region now composing the Indian Territory when that region ceased to be a part of Missouri, and there was no statute of limitations in force in the Indian Territory from that time until May '2, 1890, when congress extended over it the statute of Arkansas.</p>

<p>Contracts — Construction—Modification.</p> <p>Plaintiffs having the option to require delivery any time during Juno -September of a cargo of phosphate rock sold by defendants, on August 21st wired defendants to “please extend time for delivery of rock until Nov. 1st, ” and defendants replied: “Can’t you make it Dee. delivery? This preferred to Nov. ” Plaintiffs acknowledged the reply, saying it had been communicated to the Dublin office, and thoir reply would be given defendants as soon as received. Defendants at the same time wrote plaintiffs, quoting their telegram, and stating: “Of course it is understood that we will make the delivery in Nov., yet we trust, as stated, you will have it in Dec. ” Held, that defendants were entitled to conclude that plaintiffs asked for a delivery on November 1st, and not an extension of the option; and their acceptance of the change in the terms of the contract, with the letter showing their understanding of plaintiffs’ request, to which plaintiffs did not reply, made a completed contract under Code Ga. § 2750, providing that, whore the intentions of the parties differ, the meaning placed on the contract by one, and known to he thus misunderstood by the other at the time, shall bo held to be the true meaning.</p>

<p>At Law. Prosecution of James Durwood for breaking open and entering a bonded freight-car on the Northern Pacific Railroad. Jury instructed to return a verdict of not guilty.</p>

<p>In Equity. Suit by Peter Oakes against Henry Tonsmierre and John Craft to enjoin the use of a trade-mark.</p>

<p>At Law. Action by John Lane against Sarah Park and others for infringement of a patent.</p> <p>FINDINGS OF FACT.</p> <p>In pursuance of written stipulation, this case was tried by the court without the intervention of a jury. The following facts, therefore, are found by the court;</p> <p>(1) On September 15, 1868, letters patent of the United States No. 82,130 were granted to the plaintiff, John Lane, for an improvement in the manufacture of plows and cultivators; the invention consisting, the specification declares, “in constructing the mould-boards and shares of metal plates, having a center layer of iron, with a layer on both exterior surfaces'of cast-steel.” After stating the advantages of the invention, and the method of manufacturing the compound plates, the specification closes with the following disclaimer and claim:</p> <p>“Since perfecting my invention, I have learned that compound bars' of iron and cast-steel, constructed in a similar manner, were described having been invented in England for the manufacture of edge tools, and therefore I do not claim the bars themselves as my invention; but, having thus fully described my invention, what I.do claim is the improvement herein described in the manufacture of plows and cultivators; that is to say, the' making of them of metal plates, having a central layer of soft iron or steel, with exterior layers of cast-steel, substantially as and for the purposes described.”</p> <p>The letters patent are made part of this finding.</p> <p>(2) On December 17,1866, Lane filed in the patent-office an application for letters patent for an “improvement in plates used in the manufacture of plows,” the described method of manufacturing the same consisting in welding two layers of soft semi-steel on a central layer of tough, fibrous iron, heating the plate thus formed, and then casting on both sides of it highly carbonized molten steel, and rolling down the ingot to the proper thickness. The claim was this:</p> <p>“As a new article of manufacture, plates for manufacturing plows, composed of layers of metal of the several qualities herein specified, arranged substantially as and for the purposes described and set forth. ”</p> <p>The application was rejected, and after amendments was again rejected, and on August 27, 1867, was withdrawn. On April 1.1, 1867, Lane filed an application for “an improvement in cast-steel plows,” the invention consisting—</p> <p>“In making the mould-boards of cast-steel plows of layers of metal of different qualities, the face or wearing surface being composed of highly carbonized cast-steel, while there is secured thereto or combined therewith, in any suitable manner, a layer or layers of iron or soft wrought steel, forming a center lining or back, which serves to toughen and strengthen the mouldboards. ”</p> <p>The original claim of this application was:</p> <p>“A plow, when the mould-board thereof is composed of east-steel, combined in any suitable manner with a toughening layer or layers, substantially as specified, and for the purposes set forth.”</p> <p>This application was rejected upon references, and after repeated amendments was still rejected. In the course of the proceedings the applicant addressed a communication to the commissioner of patents, in which he stated:</p> <p>“Finally, I would add iny claim is for a mould-board made of steel, with iron center. I do not claim the method of making this steel, though described in the specification. It is the result only — the mould-board — that I claim; and, if necessary, I would disclaim expressly everything except that. ”</p> <p>In another communication to the commissioner the applicant said:</p> <p>“1 do not claim the ingot; that is not my invention; but I do claim the final product, — the mould-board; that is my invention.”</p> <p>The final claim was this;</p> <p>“I claim as new articles of manufacture, mould-boards for plows, when made in laminated plates, having a steel face and back, and a central toughening layer, substantially as specified.”</p> <p>This application was finally rejected March 28,1868. On September 26, 1867, Lane filed a third application, being the one under which the patent in suit. No. 82,180, was granted. Originally this application was for “an improvement in the manufacture of cultivator teeth,” and the material, use, and mode of manufacture were thus described:</p> <p>“I take a plate of the proper thickness, and composed of a layer of cast-stoel on one side and a layer of soft steel or wrought iron on the other, or of two layers of cast-steel, with the layer of soft steel or wrought iron between them, and cut it into blanks of the proper size to make the teeth, and then from these •blanks I form the teeth by swaging, or in any other convenient way, and finally harden the cast-steel, if desired, in the usual manner.”</p> <p>The first original claim was this:</p> <p>“The above-described blank for making cultivator teeth, composed of a layer or layers of cast-steel, combined with a layer or layers of wrought iron, soft steel, or other suitable toughening material.”</p> <p>This application having been rejected, Lane, on April 9, 1868, addressed to his attorney a letter, which was filed in the patent-office in the case, and in which he said:</p> <p>“I am aware that to make plates of compound quality is not new, but I believe law will allow me the claims in some shape that will be good for a tooth of cast-steel face and back, combined with a tough layer throughout the center, hardened; the face and back being very hard, while the tough layer is soft, or softer than face and back. * * * Drop all claim to the unsharpened.blank, and confine to the fiuished tooth; also confine, if you think best, to hardened tooth. I think best."</p> <p>Lane’s attorney then, on May 26, 1868, canceled the original specification and claims, and substituted the specification and claim of the patent in suit, the petition for the allowance of this change, stating that the new application was “intended to be a substitute for both the previously filed applications; that on the plows being withdrawn for the purpose of having it embodied in this case.” Eventually the patent in suit was granted September 15, 1868. Exhibits A, B, and C, being copies of the file-wrappers and contents in the three above-recited applications, are made part of this finding.</p> <p>(3) The manufacture by the method set forth in Lane’s patent of compound or soft center steel, having a central layer of iron, with an outer layer, on each face, of east-steel, was made known and iully described in English letters patent No. 2,033, prout, dated January 19,1795, granted to Arnold Wilde, for the invention of “making and manufacturing of all sorts of plane irons, seythes, dickies, drawing-knives, hay-knives, and all other kinds of edge tools, from a preparation of cast-steel and iron, united and incorporated together by means of fire.” And the use in the manufacture of plows of iron-backed steel, or two-ply compound plates, composed of an iron back and steel face., as shown by United States letters patent No. 34,262, dated January 28, 1862, granted to William Morrison, prout, and United States letters patent No. 47,753, dated May 16, 1865, granted to Francis F. Smith, prout, was old at the date of Lane’s invention.</p> <p>(4) In the manufacture of plows and cultivators, the old and customary method was to cut the rolled metal plates into blanks, or pieces of suitable size and shape, and these pieces were first bent into proper form, and were then tempered or hardened, and finally were ground or polished, and when finished were bolted in place. But, with the metal plates used prior to Lane’s, invention, the tempering or hardening process was apt to warp the pieces out of proper form.</p> <p>(5) The object, of Lane’s invention was the production of plow mouldboards and shares and cultivator teeth, which, after being bent to the required forms, could be tempered or hardened without warping or change of form. To prevent this warping in the tempering or hardening process is the distinctive and valuable feature of Lane’s invention. This he accomplishes by the use of soft center or iron center steel, as it is called, or plates 'formed of an iron or soft semi-steel center layer between two steel faces or outer layers. Lane’s invention soon came into very general use.</p> <p>(6) The plaintiff’s established license fee was $5 per ton, and the defendants’ books show the exact number of tons of plow and cultivator shapes made and sold by them, as set forth in the next finding.</p> <p>(7) The defendants at the times and on the occasions mentioned in the declaration, between the grant of the plaintiff’s patent and the expiration thereof, were steel manufacturers at Pittsburgh, in the western district of Pennsylvania, and then and there, in the usual course of their business, manufactured and sold metal plates having a center layer of soft iron or steel with exterior layers of cast-steel, for use chiefly in the manufacture of plows and cultivators, safes, and jail-bars; and the defendants, upon the order of the purchasers, cut these plates to pattern for plow mould-boards, plow-shares, land-sides, and cultivator shovels, and also into such shapes and patterns for other purposes, as ordered by the purchasers. The blanks or pieces so out to shape for plows and cultivators they shipped to their customers, manufacturers of plows and cultivators, in a flat, unbent, unpolished, and unhardoned state.</p>

<p>Patents fob Inventions — Priok Aet — Tnfeingement—'Whip-Socket Clasps.</p> <p>Letters patent No. 166,724, issued August 17,1875, to Erastus W. Scott, for an improvement in clasps for holding whip-sockets to the dashers of carriages, consist mainly “oí a metallic hand or screw-nut or female screw in the band, a clamp-screw, and a saddle provided with an eye to receive the band, ” Held, that in view of the prior state of the art, and the, fact that all the elements of the combination, are old, the patent must be strictly limited to the arrangement described, and it is not infringed by letters patent No. 423,679, issued March 18, 1890, to Daniel Fraser.</p>

<p>Motion to compel a patentee called as witness to answer interrogatories. Interference proceedings in United States patent-office between T. B. Doman and William B. Keefer, the latter being the patentee of letters patent No. 443,0-95 for ingrain carpet fabric. Keefer had declined to describe other than by reference to his patent the method of weaving employed to produce a fabric offered in evidence as part of the proof of date of Keefer’s invention.</p>

<p>Abmikalty — Costs.</p> <p>Costs will not be placed on libelant, in whose favor a final decree has been made, on account of the decree not exceeding the amount which was admitted by respondent’s answer, although all questions in controversy were decided in respondent’s favor, and the expenses of the suit were greatly increased by the largo sum orig • inaliy claimed by libelant.</p>

<p>1. Towage — Loss or Barge in Tow — Incompetence op Pilot.</p> <p>A barge, while being towed through a channel with a hawser 100 fathoms long, sheered from the course of the tug, and struck on submerged rocks, causing her to sink. The pilot of the tug was unfamiliar with the obstructions of the channel, and allowed the tug to go tQO far to westward of the safe course. Held, that the loss of the barge was properly found to be due to the negligence of the tug.</p> <p>3. Same — Salvage—Remissness op Owner.</p> <p>The owner of the barge gave the underwriters notice of abandonment, and that he should- claim a total loss. They sent a contracting salvor to the wreck, who made an examination, to ascertain whether the barge could be raised or her cargo of coal recovered, and reported that the barge was not worth raising, and that the expense of recovering the coal would equal its value. Held, that the owner of the barge, in seeking to recover for her loss, was not chargeable with remissness, in making no attempt to raise the barge or save her cargo.</p> <p>8. Same — Weakness op Lost Tow — Apportionment.</p> <p>There having been no concealment of the weak condition of the barge in order to induce the towage contract, and her loss having been in no wise brought about by that condition, the fact that she was too rotten about the decks to admit of her be ing raised did not affect the owner’s right to recover; nor was respondent entitled to an apportionment of the loss on the ground that, but for the weakness of the barge, the loss would have been comparatively small.</p> <p>4. Same — Fraudulent Overvaluation — Costs.</p> <p>A libelant who is entitled to recover for the loss of a barge through the negligence of a tug having her in tow, but who, being an expert, falsely testifies as to her value, and procures other witnesses to make statements as to her value which he knows to be incorrect, for the purpose of enhancing the amount of his recovery, should be required to pay the costs of a reference to ascertain suoh value.</p> <p>44 Fed. Rep. 382, modified.</p>

In Admiralty. Libel by the tugs Ivanhoe and Mascot against the barge Cutter and her cargo to recover compensation for pumping services. Decree for $262.20.

In Admiralty. Libel by David M. Hamilton and another against the ferry-boat John King and others to recover for damages to the propeller Thomas McManus, sustained in collision. Decree for libelants. Both parties appeal. Rev. St. U. S. § 4233, provides as follows: “Rule 19. If two vessels under steam are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other. ” “Rule 21.

<p>In Admiralty. Suit by the owner of the William Fletcher to recover for damages by reason of collision between the Fletcher and a barge in tow of tho tug O. R. Stone.</p>

In Admiralty. Libel by William It. McClellan against the steam-tugs Volunteer and Syracuse, for the loss of the canal-boat Ethel by collision. Decree for libelant against the Volunteer, and libel dismissed as to the Syracuse.

<p>OOUiISION — Tow AST) Steamer.</p> <p>The tug T., moving slowly, with two car-floats along-side, came round the Battery, into the East river, near the New York shore. The steam-boat F. was coming down the East river, with the tide, at a speed of 12 knots. The boats being about end on, the T. ported her wheel, and was about to signal to pass port to port, in accordance with the eighteenth rule of navigation, when the F. signaled her to pass to star-hoard, and shaped her own course to port. The T. immediately assented, put her wheel hard a-starboard, and stopped; but owing to her previous action, and the effect of the tide on her port how, she continued to swing to starboard. The F. proceeded on her course to port until within 200 or 800 feet, when she repeated the signal, and altored her course still more to port, but could not do so sufficiently, and collided with the starboard tow of the T. Meld, that in departing from the statutory rule the F. took the responsibility of passing safely to starboard, and, as the T. did all she could to comply with the signals, she was not in fault. 44 Fed. Hep. 510, affirmed.</p>

<p>Petition by Ebonezer S. Coe and David Pingree for a writ of mandamus.</p>

<p>Appeal to Court op Appeals — Appeal to Supreme Court Pending.</p> <p>Act Cong. March 3,1891, while it does not confer upon one party the right to carry a cause before two appellate courts at the same time, does not confer upon him the power to defeat the right of appeal by the other party to the circuit court of appeals upon the merits, by taking an appeal or writ of error to the supreme court upon the question of the jurisdiction of the trial court; and, in case of such separate appeals, the cause will be continued in the circuit court of appeals, to await the decision of the supreme court upon the question of jurisdiction.</p>

<p>1. Admission op Territories — Transfer op Causes.</p> <p>Tlio proviso to the enabling act of February 22, 1889, (25 SI. c. 180, § 23,) admit* ting North Dakota, South Dakota, Montana, and Washington into the Union, that transfers of actions pending in the territorial courts shall not be made to the federal courts except upon written request of one of the parties filed in the propel’ court, and, in the absence of such request, such cases shall be proceeded with in the proper state court, was intended to. permit parties to proceed in the state courts in all cases where such courts have concurrent jurisdiction, unless one of the parties invoked the jurisdiction of the federal courts in eases of a federal character.</p> <p>2. Same — Arpiñamos.</p> <p>The “proper court” in which to file a request for a transfer is the court where, the files and records of the case are found at the time the request is to bo filed.</p> <p>3. Same — Time op Making.</p> <p>The request for a transfer cannot be filed at any time before trial, but must be made before the party making the request lias voluntarily and actively invoked the jurisdiction of the slate court. Defendant, by submitting to the state court a motion for continuance, and an order setting the cause for trial at a following term, loses his right of transfer.</p>

<p>Equity — Jurisdiction—Suit to Declare Trust.</p> <p>A suit in equity to declare a trust, not evidenced by any writing, and to establish a claim of title to land, by a vendee of the cestui que trust of a vendee named in an executory contract to convey the land, commenced after the death of both parties to said contract, cannot be maintained; because (1) sufficient evidence to prove the averments of the bill as to the interest of the plaintiffs grantor must necessarily be lacking; (2) equity will not aid one who buys a lawsuit on speculation.</p>

<p>1. Master's Report-Time op Filing.</p> <p>The term “month,’' as used in equity rule 83, giving one month from the tíme of filing a master’s report to file exceptions thereto, means a calendar, and not a lunar, month; therefore, where tho report is filed on May 28th, a confirmatory order, made June 28th, is premature.</p> <p>3. Same — Withdrawal op Exceptions- -Confirmation.</p> <p>The formal withdrawal bv an exceptor of an exception to a master’s report on the order-book and in a paper filed by the exceptor in tho cause is a sufficient withdrawal of the exception, although no order of discontinuance is allowed by court, and the report will stand confirmed, under equity rule 83, after the lapse of time fixed therein.</p> <p>3. Master’s Report -Exceptions — Confirmation.</p> <p>Where a receiver, not in his capacity as trustee, but for himself, and against the trust-estate, provokes, adversely to all others in interest, a contest, by presenting to the court a claim for compensation, and the matter is referred to a master, his report, so far as exception thereto is concerned, falls within equity rule 83, providing that tho report shall stand eonfiivned on the next rule-day after a month has expired without tho filing of exceptions; and equity will not hear exceptions made thereafter, unless the party was prevented from making them in time through accident-, surprise, mistake, or fraud.</p>

<p>Corporations — Stock Pledsed by Directors — Estoppel.</p> <p>Where stock is issued on the vote of directors, and used by them as a pledge to obtain a loan, the corporation is estopped from setting up that the issue of stock not paid up is prohibited by the constitution, and the holder will be entitled to the same to the extent of the loan.</p>

Suit under Act Cong. March 2, 1889, to forfeit certain lands granted to the state of Oregon by Act Cong. July 2, 1864, to aid in the construction of a military road, and by the state to the Oregon Central Military Hoad Company by the act of October 24, 1864. STATEMENT BY HANFORD, DISTRICT JUDGE, (DISSENTING.) This cause has been heard twice í>y the United States circuit court for the district of Oregon, and once by the supreme court of the United States.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>In Equity. Bill by A. D. Hawkins and others against Mary E. Wills to restrain the enforcement of a judgment in ejectment, and to set aside a deed to defendant as in fraud of creditors. Plaintiffs appeal from a decree for defendant.</p>

<p>In Equity. Bill by Sarah M. Kinne and others against Elijah T. Webb and others to set aside a contract of settlement, for fraud and deceit, and to have dower assigned. On pleadings and proof.</p>

<p>1. Quieting Title — Enjoining Forcible Entry and Detainer Action.</p> <p>Plaintiff in a suit to quiet title cannot enjoin defendant from bringing an action at law against him for forcible entry and detainer of the premises in question.</p> <p>3. Injunction — Action at Haw.</p> <p>Equity will not enjoin an action at law, when the party seeking the injunction has a good defense at law.</p> <p>3. Same — Criminal Proceedings.</p> <p>Proceedings at law, not of a strictly civil nature, will not be enjoined except where the same right is sought to be substantiated both at law and in equity.</p> <p>4. Forcible Extrx and Detainer.</p> <p>Proceedings in forcible entry and detainer are of a quasi criminal nature.</p>

In Equity. Bill by Thomas Gilchrist and others, partners, doing business as Gilchrist Bros. & Edgar, against the Helena, Hot Springs & Smelter Railroad Company, the Farmers’ Loan & Trust Company, and others, to enforce the lien of a judgment. The Northwestern Guaranty Loan Company, having intervened, filed a cross-bill, and the hearing was upon a demurrer thereto.

<p>In Equity. In the opinion by Brewer, J., on demurrer to the bill, .(39 Fed. Rep. 887,) the facts were stated as follows:</p> <p>“In 1840, one William Myers was the owner of the property in question. For a consideration of $4,000 paid by Elijah Curtis1, a deed was executed by-Myers and wife to one Samuel Russell in trust for Mrs. Curtis. The deed, as drawn and executed, vested a life-estate in Mrs. Curtis, and the remainder in her right heirs. It was so drawn and executed through a mistake of the draughtsman; the intent of-all the parties being that the fee should bevested, .and not a life-estate, and that Russell, who so held the title as trustee for Mrs. Curtis, could, with his cestui que trust, convey the fee. After the deed had been so executed and recorded, in 1843, the mistake having been discovered, proceedings were had in the circuit court of St. Louis county to correct that deed. A decree was entered that it be reformed so as to express the intent of the parties, and vest a fee instead of a life-estate. To that proceeding Mr. and Mrs. Curtis, Mr. Russell, the trustee, and Mr. and Mrs. Myers, the grantors, were parties. The heirs of Mrs. Curtis were not made parties. By subsequent conveyances, the title vested in Mrs. Curtis and Mr. Russell, her trustee, passed to one Edward Chaffin, in 1850. lie entered, took possession, and remained in possession until his death, in 1883. Thereafter the present complainants, holding under his will, took possession, and retained it until 1886. Mr. Curtis, the husband of Mrs. Curtis, the party who paid the money, died in 1843; but Mrs. Curtis lived until 1884, when she ■died, leaving no children. Mr. Chaffin during his possession became aware of the fact that, inasmuch as the heirs of Mrs. Curtis were not made parties to that decree of reformation, they had, at least, an apparent title to the remainder. During the years of his possession, at least during the last few years of his possession, he himself having removed to Massachusetts, he employed .Leon L. Hull, one of the defendants, as his agent to look after the property, to pay taxes and insurance, to rent the property, and have general charge thereof as his agent. During the years of that relationship lie communicated to Mr. Hull his doubts as to the completeness of his title as disclosed by the record.and made' several efforts, through him, to ascertain the residence and the names of the right, heirs of Mrs. Curtis, with a view of obtaining from them releases of their apparent title to the remainder. Mr. Hull was fully possessed of information in this respect from Mr. Chaffin, his principal. On the death of Mr. Chaffin these complainants, finding Mr. Hull in possession as agent, continued him in that position, and he assumed the same confidential relations to them that he had had to Mr. Chaffin. After the deatii of Airs. Curtis, in 1884, Mr. Hull, the agent, conspiring with one William Clark and one Samuel Herman, proceeded to hunt up the right heirs of Airs. Curtis, and obtained deeds from them, the deeds being made to William Clark, one of the conspirators, of their respective interests in the remainder. While apparently continuing as the agent, and representative of these complainants, In pursuance of this conspiracy he caused legal proceedings to lie instituted, which, being carried on eollnsively, terminated in the dispossession by the defendants of these complainants, and the transfer of possession to Clark, one of tins conspirators. This was accomplished in 1886. The charge is that those arrangements and transactions lie,tween Clark, Hull, and Herman were a part of a conspiracy, and were a breach of the trust relations existing between the complainants and Hull. All these facts being stated in the bill, the prayer is that this court shall decree that the decree of the St. Louis circuit court, reforming that deed, concludes the right heirs of Mrs. Curtis, and operated to vest the full legal title in Mrs. Curtis and her trustee, and thcsE* complainants claiming under her; or, if the court cannot so decree, that it now decree a reformation of that deed, correcting the mistake, and making the deed to-day operative as a transfer of the fee, and therefore cutting off all interests in the remainder in the heirs of Mrs. Curtis or their grantees, or, failing that, that the court decree that the transactions by which Leon L. Hull, witli his co-conspirators, obtained the legal title to the remainder were in breach of the fiduciary relations existing between Hull and the complainants, and therefore that the title which they acquired was acquired in trust for the complainants.”</p>

States for the District of Montana. In Equity. Bill by the Northern Pacific Railroad Company against Maria Amacker and others, to quiet complainant’s title to certain lands. Complainant appeals from a decree sustaining defendant’s demurrer to the complaint and dismissing the complaint.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by Nora O’Brien against the Union Pacific Railway Company, to recover for the death of plaintiff’s husband, alleged to have been caused by defendant’s negligence. Verdict and judgment for plaintiff. Defendant brings error.</p>

At Law. Action by Mary A. Black against the Elkhorn Mining Company, Limited, to recover dower in a mining lode. A demurrer to the complaint was overruled. 47 Eed. Rep. 600. The hearing is now upon a demurrer to new matter in the answer.

<p>1. Internal Revenue — Bonded Warehouse — Excessive Loss.</p> <p>Rev. St. TJ. S. § 3321, abating the tax on distilled spirits destroyed while In a bonded warehouse “by accidental firo or other casualty, ” does not include a loss by the warping oi barrels from unusual and excessive summer heat, abnormal evaporation, caused by such heat, or the existence oí undiseoverable worm-holes in the barrels.</p> <p>8. Same — Allowance for Loss.</p> <p>When the commissioner of internal revenue regards a loss from such causes as excessive, he has authority, under Act Gong. May 28, 1880, § 4, to order the withdrawal of the spirits from the warehouse before the three years of the bond have expired, and to require payment of the tax on the quantity originally entered, without making any allowance under section 17 of said act for the loss, even though it occurred without the fraud or negligence of the owner.</p> <p>47 Fed. Rep. 693, affirmed.</p>

<p>1. ClBCUIT CoUBT or APPEALS — JURISDICTION—REVENUE APPEALS.</p> <p>The fifth section of the act creating tho circuit court of appeals enumerates the cases in which appeals shall still be taken direct to tho supreme court, and the sixth section declares that, the circuit court of appeals shall have appellate jurisdiction of all other cases, “unless otherwise provided by law.” Held, that this gives the latter court jurisdiction of an appeal from a judgment rendered by the circuit court in reviewing a decision of the board of general appraisers under the revenue act of June 10, 1890.</p> <p>2. Same.</p> <p>The fact that section 15 of the latter act authorizes the circuit court, when it deems the question of special importance, to allow an appeal to the supreme court, cannot be considered as having “ otherwise provided, by law, ” as such a construction would extend the direct appellate jurisdiction of the supremo court beyond the classes of cases specifically enumerated in section 5 of the act creating the circuit court of appeals, and would in fact deprive the latter court of all appellate jurisdiction; for prior to that, act there was “ provision by ” law in respect to appeals or writs of error in all cases.</p> <p>8. Custom Duties — Reimpobted Whiski — Withdbawal ebom Bond.</p> <p>The tariff act, of October 1, 1890, (26 U. S. St. p. 624,) provides in section 22 that, on the reimportation of an article manufactured in the United States, and once exported without paying an internal revenue tax, it shall pay a duty equal to the internal revenue tax on such article. Section 50 declares that, any merchandise deposited on bond before tho date of the act may be withdrawn for consumption on payment of the duties in force before the act; when such duties are based upon, the weight of the goods, the weight shall be taken at the time of the withdrawal. Held, that while, under tho internal revenue laws, the proof of spirits is determined by weight, yet tíie tax is always assessed upon the gallon measurement, whether the spirits are above or below proof, and hence reimported whisky, when withdrawn from bond, must pay according to tho number of gallons at the time of importation, and not at time of withdrawal</p>

Petition.by Don On, a Chinese laborer, for a writ of habeas corpus. Petitioner and one Lee Sing were tried before Edward L. Strong, United States commissioner for the northern district of New York, for being unlawfully in the United States, and were by him ordered to be returned to Canada.

<p>In Equity. Bill by the Hay & Todd Manufacturing Company against the Van Dyke Knitting Company, John II. Van Dyke, and John II. Van Dyke, Jr., for infringement of a patent.</p>

<p>On Appeal from the District Court of the United States for the Northern District of Illinois.</p> <p>STATEMENT BY JENKINS, DISTRICT JUDGE.</p> <p>In Admiralty. The tug F. II. Stanwood, on the 18th day of September, 1890, and within the admiralty jurisdiction, negligently collided with and sank the canal propeller Whale. The crew of the tug consisted of three persons, a pilot, an engineer, and a fireman- On the 20th of September, 1890, the owner of the Whale filed his libel in the district court, seeking reparation for the wrong. The Stanwood was arrested, and afterwards, under decree of the court, sold by the marshal, and the proceeds covered into the registry of the court.- The claimants of the tug intervened for their interests, and, upon hearing, a decree passed for the libelant sustaining his claim and assessing the damages. On the 4th day of October, 1890, the engineer and the pilot filed an intervening libel to recover their wages, subsequently amended to include the claim of the fireman. These wages wore mainly earned prior to the collision; a portion of them subsequently thereto, and before the filing of the libel. On the 23d day of November, 1891, an order of distribution was made directing payment of the claims for wages for the season of 1890 in priority to the claim for damages by the collision. The fund was insufficient to pay the libelant in full. lié thereupon appealed from the order of distribution.</p>

<p>1 Admiralty — Libel in Rem — Publication or Notice — Res Ad judicata.</p> <p>The owner of a vessel which was sunk by collision with a steamer brought a libel in rem, and the steamer was attached, but no notice was given or publication made as required by admiralty rule 9. Subsequently the steamer was released on her owner’s giving hond to the lihelant for less than her value. Held, that a decree dismissing the libel was binding on the libelant only, and would not prevent a new libel by the owner of the cargo.</p> <p>S. Same — Res Adjudicata.</p> <p>Where, on a libel in rem for collision, the master of the libelee, though not a formal party, takes an active part in the defense, a dismissal on the merits renders the question res judicata, as against a subsequent libel in personam against Mm.</p> <p>8. Same — I’rivity.</p> <p>The master of a vessel is not in privity with her owner, within the rule that</p> <p>binds privies as well as parties to the estoppel of a judgment.</p> <p>4. Admiralty — Laches.</p> <p>In the absence of special circumstances a delay of less than six years in bringing a libel in personam for collision will not be considered as laches, since courts of admiralty govern themselves by the analogies of common-law limitations.</p> <p>44 Red. Rep. 807, reversed.</p>

<p>1. Mortgage oí? Vessel — Actual Notice.</p> <p>A mortgage oí a vessel is valid as against persons having actual notice thereof, though not recorded in the collector’s office, as required by Kev. St. !J. S. §§4192-4194.</p> <p>2. Same — Failure to Index.</p> <p>Under those sections, a mortgage which is actually recorded is constructive notice, though it has not yet been indexed.</p> <p>3. Same — Actual Notice — Prior Dona Fide Purchaser.</p> <p>Where one purchases a vessel with either actual or constructive notieo of a mortgage, it will not bo presumed in his favor that his vendor, who purchased before the mortgage was recorded, was a boria fide purchaser without notice, and the burden is on him to show that fact.</p> <p>4. Same — Assignee op Mortgage — Prior Equities.</p> <p>One who takes a mortgage of a vessel by assignment after the recording of a mortgage of earlier date cannot protect himself from the priority of its lien, except by clearly showing that some one of the owners of the vessel through whom he acquired his lien was a bona fide purchaser without notice.</p>

<p>1. Seamen- — “Disrating” bt Master- — Evidence.</p> <p>The “disrating” of certain seamen by the master was sustained by his testimony and the mate’s, but was contradicted by the testimony of each seaman disrated, as regards himself, but not as regards the .other seamen. The appearance of the seamen did not impress the court favorably. Meld, the disrating would he accepted by the court in computing the wages due.</p> <p>3. Charges against Steward — Breakage.</p> <p>A charge for “breakage” against a vessel’s steward is unusual, and will not be allowed.</p>

<p>1. Removal or Causes — Criminal Proceeding — Remand—A mendments.</p> <p>An action brought, by the state oi' Texas to recover the penalty prescribed by Act Tex. Feb. 7, 1884,'for unlawfully appropriating public lands, having been removed to the federal court, was remanded on the ground that the proceeding was of a criminal nature, and not removable. Afterwards the complaint; was amended so as to ask additional damages under that law, and a second count was added, setting up, in the alternative, a civil cause of action for the reasonable value of use and occupation. the removal of inclosures, etc., under Act Tex. April 1, 1387. Held, that the original cause of action remained distinct from the case made by the second count, and was not so combined with it as to permit the removal oi the whole case. Husldns v. Hallway Co., 27 Fed. Hep. 504, and .Evans v. Dillingham, 43 F'bd. Rep. 177, distinguished.</p> <p>2. Sa me — Separable Controvert íes — Citizenship.</p> <p>The clause of the removal act relating- to separable controversies is applicable only to controversies between citizens of different states, and is not available to the defendant when the opposite party is a state.</p> <p>3. Same — Federal Question.</p> <p>The clause of the removal act authorizing the removal of civil suits, arising under the constitution or laws of the United States, relat es only to the entire action, and does not permit the removal of a part thereof when the rest, is not removable.</p>

<p>Error from Circuit Court.</p>

<p>t. Circuit Court or Appeals — Certirtiho Cause to Supreme Court.</p> <p>Where a pending appeal in the supreme court and a cause before the circuit court of appeals can, by reason of their connection, be heard together, and the district and perhaps the circuit judges are, under Act Cong. March 3,1891, disqualified to ' pass on the case from having heard the same or similar questions in the court below, it is a proper exercise of discretion to certify the questions involved to the supreme court, under section 6 of that act.</p> <p>8. Bame — Record.</p> <p>Under Act Cong. March 3, 1891, § 6, providing for the certification of questions by the circuit court of appeals to the supreme court for instructions, the matter of sending up the whole record is left with the supreme court.</p>

<p>In Equity. Suit by Joseph W. Wobb and wife against Haynor & Co. and Paul Pricke to enjoin the sale of a homestead. Heard on demurrer to the bill.</p>

<p>In Equity. Suit by John A. Webb and wife against Hayner & Co. and Paul Frieke to enjoin the sale of a homestead. Heard on demurrer to bill.</p>

In Equity. Suit by the Franklin County National Bank against Thomas P. Beal, receiver of the Maverick National Bank, to recover possession of a certain check or its proceeds. Heard on demurrer to the bill.

In Equity. Bill by the East Tennessee, Virginia & Georgia Railroad Company and the Western Railroad Company of Alabama against the Atlanta & Florida Railroad Company for injunction and the appointment of a receiver. Plaintiffs move for an attachment against T. W. Garrett for resisting the decree of the court and interfering with the possession of R. H. Plant, as receiver.

<p>1. Pleading — Demurrer.</p> <p>A demurrer to an answer denying plaintiffs power to make the contract sued upon does not admit the facts therein alleged, so as to make them part of the petition; and it is error for the court, on overruling the demurrer, to regard them as part of the petition, and dismiss the suit.</p> <p>8. Limited Partnerships — Contracts.</p> <p>Although Act Pa. June 2,1874, § 5, limits the liability of partnerships formed thereunder to $500 on a single undertaking, unless the same is in writing signed’ by two managers, yet a failure to so sign a contract for a larger amount will not prevent the partnership from suing thereon when it has made or tendered full performance.</p> <p>8. Same — Contract by Agent — Ratification.</p> <p>The allegation that the contract in suit was made by an agent for the benefit of Elaintifi, a limited partnership, organized under Act Pa. June 2,1874, and that it as since been adopted by the partnership, is sufficient to sustain the action; there being nothing in the statute to prevent such ratification.</p> <p>4. Same.</p> <p>The bringing of a suit by a limited partnership on a contract made by an agent is a ratification of its terms.</p> <p>5. Conflict of Laws — Contracts—Limited Partnerships.</p> <p>The legality of the execution of a contract made in Kentucky by an agent for a limited partnership organized under the laws of Pennsylvania, in a suit brought in the former state, is to be determined by the laws of Kentucky, and not by the act under which the partnership was created.</p>

<p>L County Bonds — Recital—Notice.</p> <p>A recital in county bonds that they are issued"“pursuant to an order of the county court” puts all persons dealing in the bonds upon inquiry as to the terms of the order.</p> <p>8. Same — Railroad Aid Bonds — Validity.</p> <p>Act March 6, 1867, incorporating the C. & V. R. Co., empowered municipal corporations,'when authorized by popular vote, to subscribe for stock in the company, and issue bonds in payment therefor. A county agreed, by popular vote, to subscribe for $100,000 of stock, and issue bonds therefor, but before issuance of the bonds the county authorities agreed to sell the stock back to the company in exchange for $5,000 in bonds. In fact, only $95,000 of bonds were issued and delivered to the company, and no stock received by the county. Held, that the bonds Were void, since the transaction, being a gift and not a subscription, was not authorized by the statute, nor assented to by the popular vote. Choisser v. People, (Ill. Sup.) 39 N. E. Rep. 546, followed.</p> <p>S. Same — Constitutional Law.</p> <p>Act Feb. 9,1869, (3 Priv. Laws 1869, p. 259,) amending the charter of said railroad company, which attempts to validate ail contracts between said company and municipalities, whereby the latter agreed to soli to the company at a nominal price the stock for which they had subscribed, has no effect, where the contract was made by the municipal authorities without being submitted to popular vote, as required by law, sinco the legislature cannot impose an obligation upon a municipality without its consent, legally expressed. Choisser v. People, (111. Sup.) 29 N. J3. Rep. 546, followed.</p>

At Law. During the year 1891 the Kursheedt Manufacturing Company imported from a foreign country into the United States at this port certain merchandise, consisting of so-called bias velveteen dress facings.

At Law. The plaintiffs, Henry W. Combs & Co., in July, 1890, imported into the port of New York certain brass and iron eastings, iron tubes, brass knobs, castors, etc., lor use in the manufacture of metal bedsteads. The defendant, collector of customs at the port of Now York, levied and assessed a duty of 45 per cent, ad valorem upon the importation as “manufactures of metal,” under paragraph 216, Schedule C, of the tariff act of March 8, 1888.

<p>Internal Revenue — Constitutional Law — Trade-Marks.</p> <p>Rev. St. II. S. § 3449, making it an offense to ship spirituous or fermented liquors or wines under any other brand or name than that known to the trade as designating the kind or quality thereof, is not unconstitutional, within the principle of the Traüe-Mwrk Oases, 100 U. S. 82, because it incidentally acts in some cases as a protection to trade-marks.</p>

<p>In Equity. Bill by William Starling against the Weir Plow Company and William Weir to restrain an alleged infringement of a patent.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>Suit by the Foos Manufacturing Company against the Springfield Engine & Thresher Company for infringement of a patent. Judgment dismissing the bill.</p>

<p>In Admiralty. Suits to forfeit the steam-ship Itata and her cargo for alleged violation of the neutrality laws.</p>

<p>In Admiralty. Libel by Werling and Reno against the steam-boat Lud Keefer for wages as pilots.</p>

<p>In Admiralty. Suit to recover seamen’s wages.</p>

<p>1. Maritime Liens — Supplies—Mortgages—Antecedent Indebtedness.</p> <p>A mortgagee of a vessel, who has taken the mortgage for an antecedent indebtedness only, and without inquiry as to existing liens, is not in the situation of a bona fide purchaser, and has no equity superior to a material-man who has a lien for necessary supplies furnished on the credit of the vessel.</p> <p>2. Same — Discharge by Third Person’s Note.</p> <p>The note of a third person, when taken for an antecedent debt of a vessel, is no discharge of the maritime lien of the person receiving it.</p>

In Admiralty. Libel for damages for non-delivery of cargo. Cross-libel for non-reception of cargo and non-payment of freight and demur-rage.

<p>1. Salvage — Compensation—Evidence.</p> <p>A schooner drawing ten feet of water was blown out of her course, and carried over shoals where, for a distance of two miles and more, the water at low tide was from one to three feet deep, and finally went aground in a quicksand, into which she sunk, in a short time, the distance of three feet. From contact with her anchor a ■hole had been knocked in her bottom, admitting a volume of water into the vessel, which rose and fell with the tide. The water was pumped out of her hold, and she was pulled off the shoal by libelant’s steam-tugs, at great risk to the tugs. Cargo, to the value of $7,000 was saved, and the vessel was afterwards sold for the sum of $5,030. Held, that the sum of $5,000 was not an excessive allowance for salvagh.</p> <p>2. Same — Agreement of Master.</p> <p>The agreement of the master to pay $5,000 salvage, while not binding on the court when deliberately made, will be regarded as a valuable indication of what should be the true amount of the recovery.</p>

<p>- In Admiralty. Suits on behalf of the owners of nine tugs to recover salvage compensation of the ship Lydia and cargo.</p>

<p>Shipping — Negt.igence—Personae Injuries — Insufficient Machine — Notice.</p> <p>The fall rope of a derrick, rigged upon a boom running in line with the keol, to the mizzen-mast of the steam-ship Persian Monarch, to aid in loading and discharging cargo, was carried outside of the ship to a loaded scow, for the purpose of hauling her along-side by a steam winch. Under the strain, one of the guy-ropes parted, and the boom swung around, injuring libelant,, who was a longshoreman engaged in attending to the fall-rope. Such a derrick is not usually designed for, or sufficient to withstand, such lateral strains. But upon evidence that this derrick had been many times so employed on this ship, with the knowledge of her officers; that no other mode of removing such barges was practiced by the ship; and that the boom was supplied and rigged with strong vangs, for the purpose apparently of hauling barges alongside, — held, that the ship was liable for the libelant’r damages, which, under the circumstances of his case, wore assessed at $2,000.</p>

<p>1. Receivers — Suable without Leave.</p> <p>Under the provisions of Act Cong. March 3,1887, (re-enacted August 13, 1888,) a receiver may be sued for a marine tort in another district, without leave ol the court appointing him.</p> <p>2. Admiralty Jurisdiction — Death by Wkonopul Aot- -Estoppel.</p> <p>Many persons were killed arid others injured by the collision of a river steamboat with a railroad bridge, in Georgia. The boat was libeled by persons injured, and, on petition of the owner, under the limited liability not, the representatives of the persons killed were made parties,' and enjoined from suing elsewhere. Held, that by this action the owner was estopped from denying the right of such representatives to share in the fund realized from the sale of the boat, if negligence was found, though the Georgia statute, giving a right of action for wrongful death, creates no lien therefor.</p> <p>3. Same — Effect of State Statutes.</p> <p>A federal court sitting in admiralty may enforce a liability for wrongful death created by state statute, when the death is the result of negligence on the part of a steam-boat navigating a river of the state. Quere.</p> <p>4. Collision — Lookout—River Steamer.</p> <p>Where a river steam-boat which carries no lookout at the bow, as required by rule 10 of the board of supervisors’ regulations, collides with a draw-bridge at night, and thus causes injuries to her passengers, the burden is upon her to show that the want of a lookout did not in any manner contribute to the accident. The Farragut, 10 Wall. 334, distinguished.</p> <p>5. Same — Custom.</p> <p>The fact that other boats running on the same rivers do not carry any lookout except the pilot or helmsman is immaterial, since no practice which is contrai'y to a rule having the force of a statute can create á valid custom.</p> <p>6. Same — Approaching Bridge.</p> <p>It is negligence for a river passenger steamer to approach the locality of a railroad draw-bridge" at night at such a rate of speed as to prevent her complete control by the master, especially when there is no uniformity in the method of placing lights to indicate whether the draw is open or closed.</p>

<p>In Admiralty. Suit against a tug to recover for grounding tow.</p>

In Admiralty. Suit by owner of steam-ship Olinda against the steam-lug John A. Carnie to recover damages caused to the steam-ship by colliding with a pier while in tow of the tug.

<p>In Admiralty. Libel by Guy C. Griswold and others against the propeller T. W. Snook, for damages caused by a collision.</p>

In Admiralty. Appeal from a decree of the circuit court of the United States for the southern district of New York. The district court for said district dismissed the libel, (45 Fed. Rep. 60,) and libelant appealed to the circuit court, which affirmed pro forma the decree of the district court, and libelant appealed to this court. The ferry-boat West Brooklyn was entering her slip between piers 2 and 3, East river.

<p>L Removal or Causes — Appearance in State Court — Effect.</p> <p>An appearance in the state court to file a petition and bond for removal does not •waive tho right to present in the federal court any question of jurisdiction which might have been urged in tho state court, and concerning which the federal court has power to act.</p> <p>2. Same — Waiver op Uepective Sf,kvice.</p> <p>Where service of notice of commencement of action in the Iowa courts could have been made upon defendant in the district to fill every requirement of the state stat-’i vs, a general appearance by defendant in the federal court, after removal of the .se, is a waiver of any defect of service on him.</p> <p>& Same — Venue—Discretion op Court.</p> <p>Polk county, Iowa, is in the central division of the circuit court for the southern district of Iowa, while Lee county is in the eastern division. Defendant railroad company, sued in the state court in Polk county, had the right, by the Iowa statute, to have the place of trial transferred to Leo county. Held, that defendant, by procuring the removal of the cause from the state court, and in filing the transcript in the central division of this court, was precluded from asserting that the causo was pending in tho wrong division, and that it has the right to demand a removal to the eastern division.</p> <p>4. Same.</p> <p>The fact that defendant is a Kansas corporation, whose railroad touches only Lee county, in Iowa, and that the cause of action did not grow out of nor was it connected with any office or agency within the central division, is not sufficient to impel to action the discretion of the court to grant a transfer.</p>

<p>1. Railroad Companies™ Foreclosure of Mortgage — Receivers —Priorities of Liens,</p> <p>The order which a court oí equity, on appointing a railroad receivor, makes for the payment of wages due employes for a reasonable period prior to the receivership, is merely a personal protection, given ex gratia to those who depend upon their daily labor for support, and will not cover a claim by a merchant for rations furnished to such laborers, under contract with the company, and for which the company alone is liable, although the company charges the rations to its laborers as part of their wages.</p> <p>2. Same.</p> <p>The claim is entitled to payment before the payment of Interest on the mortgage bonds, and if any sums applicable thereto have been paid out for such interest, or for permanent improvements whereby the bondholders have been benefited, the claim will be a charge, to tho amount of the moneys so diverted, upon any earnings in the hands of the receiver, or, failing these, upon the proceeds of the sale of the road. 48 Fed. Hop. 188, followed.</p>

<p>In Equity. Bill of review by Martha A. Miller against Emma .1. Clark and others. For opinion on demurrer to the bill, see 47 Fed. Rep.'850. The hearing is now on a motion to strike out a supplemental bill.</p>

<p>Error to the Circuit Court of the United States for the District of Oregon.</p> <p>At Law. Action by John B. Rauh against the Southern Pacific Company for damages for personal injuries. Judgment for plaintiff.</p>

<p>1, Construction of Contract — Performance.</p> <p>The provision in a contract for railroad grading that the measurements and calculations by the railroad company’s chief engineer of the quantity and amount of the several kinds of work, and his classification of the materials contained in excavations, shall be final and conclusive, is a valid provision, and is binding upon the parties to the agreement, and there can be no recovery in excess of his final estimate, in the absence of fraud, gross error, or mistake.</p> <p>2. Same — Relief against Mistake.</p> <p>The court will relieve agains:. mistakes-in measurements and calculations apparent upon the face of the estimates, or clearly proven, though not so apparent, or from oversight to measure or estimate any particular part of the work, or from wrong constructions put upon the provisions of the contract by the engineer; hut will not relieve against alleged mistakes in determining the kind of m ateríais found in the several cuts, the parties being bound by the judgment of the engineer selected by them for special skill and attention as the umpire on such questions; nor will it relieve against slight discrepancies in measurements.</p> <p>8. Same — Railroad Grading.</p> <p>Under the provisions of a contract for railroad grading, excavations were to be measured and paid for either as earth, loose rook, or solid rook; loose rook to comprise “shale or soapstone lying in its original or stratified position, coarse boulders in gravel, cemented gravel, hardpan, or any other material requiring the use of pick and bar, or which cannot be plowed with a strong, ten-inch grading plow, well handled, behind a good six mule or horse team. ” Held, that the materials mentioned were to be classified as loose rock, irrespective of the plowing test, which was only applicable to the “other material, ” not specifically named.</p> <p>4 Same.</p> <p>It appeared that the material in all cuts, except rock cuts, varied much in consistency and hardness, and lay in irregular strata, and that the largest part of it was broken up by the plow. Held, that the pi'actice of the engineer in estimating loose rook by percentages was justifiable in the circumstances.</p>

<p>In Equity. Suit by James W. Summers against the Chicago, Santa Fe & .California Railway Company to recover for grading defendant’s road.</p>

<p>In Equity. Suit by Battle & Cameron against McArthur Bros, and the Chicago, Santa Fe & California Railway Company to enforce a mechanic’s lien.</p>

<p>Í. Benefit Associations — Membership—Transfer of Certificate.</p> <p>The charter and by-laws ol the New York Cotton Exchange provide that death benefits arising from assessments shall not extend to a person who had ceased to be a member, and that deaths in the membership are to be reported by the trustees to the managers who levy the assessments. Held that, the liability to levy an assessment appearing to be absolute, the investigation ol the trustees is not conclusive as to whether decedent was a member or not.</p> <p>2. Same.</p> <p>Hypothecation ol a membership in the New York Cotton Exchange for a debt, with power ol attorney to transfer the same, which is not exercised, but the debt is continued on the creditor’s books, is not such a sale ol the membership as will relieve the exchange from liability to make an assessment on the member’s death.</p> <p>3. Same — Evidence.</p> <p>in an action on such membership certificate, statements made by the creditor holding the .certificate are admissible lor the purpose of showing the nature of his claim thereto, hut are not conclusive as to decedent’s title to the membership.</p>

<p>At Law. Action by the Bangor Savings Bank against the city of Still-water lor money had and received. On demurrer to amended complaint.</p> <p>F. H. Lemon & Co. made a contract December 21, 1887, with the city of Stillwater, whereby they agreed to “vest” title in the city to two strips of land, each 50 feet wide, and to widen Main street 50 feet a certain distance, and to do all the excavating and filling that may be necessary to reduce the 50 feet to the present grade, and to secure the relocation of certain railroad tracks and certain sewer privileges. For the services to be performed and the land so acquired the city agreed to vacafe and abandon certain condemnation proceedings, and vacate and surrender all its right to certain parts of Laurel, Cherry, and linden streets; and, furthermore, on the completion of the contract by Lemon & Co., to pay them 821,250, in three certificates of indebtedness, to become due, respectively, on July 1, 1889, July 1, 1890, and July 1, 1891. Subsequently, on October 27, 1888, the certificates of indebtedness were issued to the Bangor Savings Bank as payee, reciting on their face that thej7 wore so issued at the request of Lemon & Co., and that a resolution of the city council was passed, and duly approved by the mayor, authorizing the making and delivering of the certificates to the bank. An action to recover on the certificates failed for the want of power in the city to issue them. Suit is now brought for the money paid to the city of Stillwater, the certificates having been decided illegally issued. A demurrer to the complaint is interposed.</p>

Action by William 11. Young against the New Jersey & New York Railroad Company, for damages for personal injuries. The cause was originally brought in the supreme court of New York, and subsequently removed to the federal court. Verdict and judgment wore there rendered for plaintiff, and a new trial was denied. Defendant brings error.

<p>At Law.</p> <p>Application by the collector of the port of New York, under the pro-' visions of section 15 of the act of congress of June 10, 1890, entitled. “An act to simplify the laws in relation to the collection of the revenues,” for a review by the United States circuit court of the decision of the board of United States general appraisers at the port of New York, reversing the decision of the collector of said port relating to the classification for duty of certain elastic cords and braids, which were entered at said port by the importers July 28, 1890, and were classified for duty' by the collector as “ manufactures of silk and India rubber, silk chief value,” and duty accordingly assessed thereon at the rate of 50 per centum ad valorem under Schedule L of the tariff act of March 8, 1883,' (Heyl, Tariff Ind., New, par. 383,) which provision is as follows: '</p> <p>“All goods, wares, and merchandise, not specially enumerated or provided' for in this act, made of silk, or of which silk is the component material'Of chief value, fifty per centum ad valorem,”</p> <p>Against this classification the importers duly protested, claiming that the merchandise was dutiable at no more than 30 per centum ad valorem under the provision in Schedule N of said tariff act, (Heyl, Tariff Ind'.,' New, par. 453,) which is as follows: ■ ••</p> <p>“India rubber fabrics, composed wholly or in part of India rubber, not specially enumerated or provided for in this act, thirty per centum ad valorem. ” ...<</p> <p>The board of United States- general appraisers in their decision siis-' tained the protest of the importers, and reversed the decision of the collector, finding as matters of fact that “the merchandise consisted of fabrics in the piece, composed of silk and India rubber, of which the: silk was the component of chief value; that it was invoiced as elastic braids and élastic cords, and belongs to á class of goods commonly arid commercially known as ‘ India rubber fabrics.’ ” The collector procured the return of the board of United States general appraisers to be filed in the circuit court, pursuant to the above-mentioned statute of June 10, 1890, and thereafter further procured an order of the court referring the matter to one of the said board of general appraisers as an officer of the sourt to take testimony therein, no testimony having been taken in the proceedings before the board of general appraisers. Upon the reference it was proved in behalf of the collector and the government by competent trade witnesses that in March, 1883, and immediately prior thereto, the merchandise in question was known in the trade as “silk elastic strands” or “silk braid,” “satin oval braids or elastics,” and “silk elastic cord,” and that these articles were never known at that time in the trade as “'India rubber fabrics.” It appeared also by the trade testimony that, so far as the term “India-rubber fabrics” had any specific meaning in trade, it applied to a class of dry goods which were commonly nonelastic. It also appeared that the articles involved in this proceeding came in the piece, running about 36 yards in length, wound on cards, and a quarter gross in a box. On the trial it was contended on behalf of the government that the testimony of the trade witnesses examined before the officer of the court had disproved the fact found by the board of general appraisers that these articles were known in the trade as “ India-rubber fabrics;” that the term “India-rubber fabrics,” as used in the statute, not having any distinct or special trade signification, was not as specific a designation of the merchandises as the description, “all goods, wares, and merchandise not specially enumerated or provided for in this act, made of silk, or of which silk is the component material of chief value,” as contained in paragraph 383 of the Silk Schedule L; and that under the decision of the United States supreme court in the case of IJartraufi v. Meyer, 135 II. S. 237, 10 Sup. Ot. Rep. 751, the enumeration in the silk paragraph was a special enumeration, rather than the term “India-rubber fabrics,” as used in paragraph 153; and consequently' that the rate of duty provided for in the silk schedule as assessed by the collector was the correct one, and that the decision of the board of general appraisers should therefore be reversed.</p>

At Law. Application by the importers under the provisions of section 15 of the act of congress entitled “An act to simplify the laws in relation to the collection of the revenue,” approved June 10, 1890, for a review by the United States circuit court of the decision of the board of United States general appraisers affirming the decision of the collector at the port of New York in the classification for duty of certain Benedictine entered at said port, September 22, 1890,…

<p>At Law. . Appeal by Louis Stern for a review of the decision of United State-s general appraisers.</p> <p>The above-named Louis Stern imported April 27,1891, by the Spree, from a foreign country into the port of New York, two antique Gobelin tapestries, made of wool and silk, wool being the component material of chief.value. .These two tapestries were classified for duty as manufactures made in part of wool under the provision for such manufactures contained in paragraph 392 of the tariff'act of October 1, 1890, (26 Ui S- St. .p. 567,) and duty, at the compound rates prescribed thereby for manufactures of that kind was exacted thereon by the collector of that port. Against this classification and this exaction the importer protested, claiming that these tapestries were a collection of antiquities and products.of a period prior to the year 1700, were suitable for souvenirs, were purchased by him for the purpose of adding to his collection of antiquities in New York, and were, therefore, entitled to entry free of duty,,under the provision for such collection contained in paragraph 524 of the same tariff act, which reads: .'</p> <p>“Cabinets of old coins and medals, and other collections of antiquities; but the term ‘antiquities,’ as used in this act, shall include only such articles as are suitable for souvenirs or cabinet collections, and which shall have been produced at!any period prior to the year seventeen hundred.”</p> <p>The board, of United States general appraisers, after taking evidence, found that these two tapestries were rii^de of wool and silk, wool being the component material of chief value; that they were produced at a period prior to the year 1700; that they and two other antique Gobelin tapestries, produced at a like period, were all purchased by the said Louis Stern for the purpose of adding them to a collection of curiosities' and bric-a-brac, which he owned at the time in New York; that the two tapestries in suit were placed by the said Stern in his apartment in a foreign country, while temporarily residing there, being thus designedly separated from the other two tapestries, so as to destroy the unity of assemblage; that the two in suit were ordered to be shipped to this country, and were shipped on a different vessel from that in which the other two wore imported; that these tapestries were not suitable for souvenirs, or for a cabinet of collections of antiquarian curiosities, within the meaning of paragraph 524, and were not free of duty thereunder; and the board affirmed the decision of the collector as to the aforesaid classification and exaction made by him. From this decision of the board the importer appealed to the United States circuit court for a review of the questions of law and fact involved, and thereafter, upon the return'made by the board, this case was tried.</p>

<p>Customs Duties — Act of Oototseb 1, 1S90 — Oi.asstficatton—Cotton Lace Apkons.</p> <p>Aprons made oí cotton lace held not to be dutiable, as articles of wealing apparel, at 50 per cent, ad valorem, under paragraph 349 of’the act of October 1, 1890, but dutiable, as “articles made wholly or in part of lace, ” at 60 por cent, ad valorem, under paragraph 373 of said act.</p> <p> (Syllabus by tibe Court.) </p>

<p>At Law. On demurrer to indictment.</p>

<p>At Law. Prosecution of S. E. Adler and George S. Boone for a conspiracy to commit an offense against the United States, and to defraud the United States. On demurrer to the indictment.</p>

. In Equity. -. Suit by the Stilwell & Bierce Manufacturing Company against S: N. Brown & Co. for infringement of a patent. Decree for injunction and an-accounting. STATEMENT BY SAGE, DISTRICT JUDGE. This suit is brought to restrain the infringement of letters1 patent No. 274,048, granted March 18, 1883, to Edwin R. StilweU, for feed-water .heater anil purifier, and by him assigned to the complainant company.

<p>In Equity. Suit by the Vulcanized Fiber Company against Edward M. Taylor for infringement óf a patent. On motion for preliminary injunction.</p>

<p>1. Patents for Inventions — Property Bight — Damages for Infringement.</p> <p>The exclusive use granted by a patent is a property right, and a plaintiff, in an action at law for infringement, may recover actual damages therefor.</p> <p>2. Same — Construction of Claim — Inoperative Claim.</p> <p>The words “substantially as specified, ” in the claim of a patent, are to he giveh effect; and where the claim, read literally, would be inoperative, their effect is to include in the claim elements or devices contained in the specification that arc wanting in the claim.</p> <p>8. Same — Damages—General Evidence.</p> <p>Where there is no license fee, and nothing to show that the patentee puts his mas-chine upon the market, he must furnish other evidence to enable the jury to come to a proximate amount of the damage which ho has sustained by the infringement, and for this purpose general evidence may bo resorted to.</p> <p>4. Same.</p> <p>The actual damages suffered by plaintiff may be arrived at by evidence showing the value of that which defendants have used, the utility and advantage of the invention of the plaintiff over the old modes or devices that have been used for working out similar results, and the saving effected thereby'.</p> <p>5. Same — .Nominal Damages.</p> <p>Plaintiff can recover only nominal damages for the infringement of an impracticable machine, or if he fails to show actual advantage to defondants by the. use of his machine.</p> <p>tí. Same — Proof of Damages — Mere Opinion.</p> <p>Plaintiff must prove the actual damages directly, or show such facts as will' :en • able the jury to ascertain the amount; and mere opinion as to the amount of that damage cannot bo considered.</p> <p>7. Same — Measure of Damages. ' ’ , ' '</p> <p>The proper measure of damages for infringement of a patent is an indemnity't'ó the plaintiff for the loss sustained by the infringement. • ■ . ;!</p>

<p>In Admiralty. Suit to recover a penalty for illegal dumping.</p>

<p>In Admiralty. Suit to recover the price of coal furnished the steamship Samuel Marshall.</p>

In Admiralty. Libel by the Illinois Stone Company against the propeller Clyde, the canal propeller Nashotah, and the canal-boat W. J. Roebuck, for damages caused by a collision. :

<p>Collision in Slip — Steam-Boat and Canal-Boat — Intruding Boat.</p> <p>A steam-boat moved out of he? regular slip in a careful and proper manner, after due notice to two canal-boats, intruders in the slip, of her intention, and after providing a steam-tug as a helper. Her side, however, came in contact with one of the intruding boats, which in turn was pressed against libelant’s boat, and damaged it. Held, that the steamer was not liable for the collision.</p>

<p>In Admiralty! Libel by owner of canal-boat George Adams to recover damages for collision.</p>

<p>Kehearincf-Newly-Disooveked Evidence — Laches.</p> <p>Where parties, having in their possession evidence deemed mat erial, appeal without moving for a rehearing, and after six months dismiss the appeal and ask for a rehearing on the ground of nowly-discovered evidence, their laches is inexcusable, and the motion should ho denied.</p>

In Equity. Suit by Russell & Co. against Newton Lamb to quiet title, to lands. Decree dismissing the bill, and quieting title to defendant on his cross-bill.

<p>1. Masters in Chancery — Taking an Account — Law oe the Case.</p> <p>When a question as to the date from which interest shall run has been decided by the court, after full hearing, on a motion for final decree, such decision is binding on a special master to whom the cause is subsequently referred to take an account, and cannot be again raised by exceptions to his report.</p> <p>2. Same — Report—Eeeect oe Prior Supreme Court Decision.</p> <p>When the supreme court has decided that plaintiff is entitled to a full accounting in rpspeet to a given series of transactions, upon definite principles of liability, the master’s report in respect thereto is not subject to exception because it awards a sum exceeding the amount named in the bill, and-it is immaterial whether the bill is amended.</p>

In Equity. Bill by the United States against Martha Insley and others for an accounting and to redeem lands. Decree quieting title in defendant Insley.

<p>In Equity. Bill by Charles A. Harmon and William W. Flanagan, partners trading as C. IT. Hannon & Co., against Thomas Steed, Alexander F. 'Matthews, William M. Tyree, and Horner A. Holt, to cancel a tax-deed and also a deed executed by the grantee therein. Bill dismissed.</p> <p>'The case was submitted on an agreed statement of facts, in substance as follows:</p> <p>It is hereby stipulated and agreed between the plaintiffs and defendants in the above-entitled cause, by their respective counsel, that the following facts shall be considered and treated upon the hearing of this cause as proven therein in proper form, that is to say, that on the 1st day of April, 1884, and for more than one year prior thereto, James T. and T. B. Marshall were and had been the owners in fee of the tract of 1,264 acres of land in the bill mentioned; that for said year said land was duly assessed for taxes amounting to $-; that, said tax not being paid within the time required by law, it was duly returned delinquent for such non-payment to the auditor of the state, and by him certified to the sheriff of Nicholas county to be sold for such delinquent tax, and was by him, said sheriff, on the --day of-, 1885, duly sold, and at said sale purchased by the state of West Virginia; that after-wards, on the 7th day of May, 1886, said Marshalls paid into the treasury of the state of West Virginia the sum of $14.69, the amount of taxes so assessed for 1884, and interest thereon, and received from the auditor a paper purporting to be a certificate of redemption, which is filed as certificate No. 1 with the' answer of the defendants, and is to be read as part of this agreement; that the taxes for said year 1884 and interest aforesaid' are all the taxes then or afterwards paid by said Marshalls, or any one for them, for the purpose of redeeming said land from the sale aforesaid; that on the 7th day of January, 1887, P. F. Duffy, the auditor of West Virginia, certified to the clerk of the county court of Nicholas county that the land aforesaid had been redeemed from the sale made to the state on December 22, 1885, and said certificate did not contain any statement of the amount paid, or what taxes were paid to effect such redemption, and such certificate was filed in the clerk's office of said county, as appears by Exhibit 0, filed with the bill, which exhibit is to be read as part of this statement of facts; that said lands were assessed with taxes for the year 1885 in the name of the said Marshalls, and in no other name, and said taxes for 1885 not being paid by the said Marshalls, or any one for them, said land was returned delinquent for the non-payment thereof, and, said taxes for 1885 not being afterwards paid, said lands were on the -day of-, 1887, certified by the auditor to the sheriff of Nicholas county for sale for said taxes, and on the-day of-, 1887, the time fixed by law for such sale, said sheriff sold said land to the defendant Thoinas Steed, who then and there paid said sheriff the amount of taxes, damages, interest, and costs for which said lands \vere so certified to be sold, including all commissions, costs of publication, and fee for receipt, and took the proper receipt therefor from said sheriff; that the delinquent list for 1885 of Nicholas county was not returned to the auditor’s office till after May 7,1886; that the sheriff, within the time required by law, filed in the clerk’s office of the county court of Nicholas county his list of sales made in the year 1887, pursuant to law, including also the sale of said lands to the said Steed, but the clerk of said court failed to indorse or note thereon the date of such filing; Unit s.aid lands not being redeemed from said last-mentioned sale within one year next thereafter, or prior to the 18th day of January, 1889, on the day last named the said Steed, having had a report made by the surveyor of said county, as shown by Exhibit K, with the bill to be read herewith, procured from the clerk of said court a deed in due form for said lands, and caused the same to be duly recorded in said office on the same day, which deed is filed as Exhibit H with the bill, and to be read herewith; that the delinquent list of Nicholas county for the year 1885 was duly filed in the clerk’s office of said v. minty court, but never recorded in any well-bound book or any other book in said office, and no book for that purpose had ever been kept in said' office, buj said list has been on file and preserved in said office since the day the same was filed therein, open to the inspection of all parties desiring to examine the same, and said list showed that said tract of land had been returned delinquent in the name of the said Marshalls for the non-payment of the taxes for the year 1885, and a copy of said delinquent list was duly filed in the office of the auditor of state on the-day of-, 1886; that the plaintiff Harmon paid the Marshalls $1,300 casi» for the land in controversy on June 9, 1887, and on that day obtained from said Marshalls the deed filed as Exhibit E with the bill, and to be read herewith; that for the year 1886 said lands were omitted from tiie land-books, and for the year 1887 said lands were assessed with taxes for that year in the name of the said Marshalls, and also charged with the back taxes far the year 1880, which taxes for 1886 and 1887 were paid by the plaintiffs; that said lands were duly assessed for taxes in the name of the plaintiffs for the year 1888, who failed to pay the same, whereon said lands were returned delinquent for such non-payment, and sold by the sheriff in November, 188.9, at which sale tlie defendant William M. Tyree beca mo the purchaser for the price of §17.77; that on the —---day of------the plaintiffs paid to the clerk of the county court of said county the amount of said purchase money paid by said Tvree, with interest thereon at the rate of J2 per cent., for the purpose of redemption, the said Tyree being a non-resklent of said county, (the original receipt of said clerk, marked "X,:: to he road as part of this statement of facts;) that for the year 1889 said land was transferred to the said Steed on the land-books, and assessed with taxes in ids name, and paid by him October-----, 1889, amounting to §12.79, but said lands also remained on the land-books in the name of the plaintiffs, and were assessed in their name; that on the 4th day of November, 1889, the defendants Holt, Matthews, and Tyree purchased the said lands from the said Steed, for which they agreed to pay the price of §1,264, and at the time the deed was executed paid in cash one-third or one-fourth of the purchase money, and obtained a deed therefor from said Steed on said last-named day, and had the same duly recorded on November 13, 1889, which purchase was bona fide, and without any notice or knowledge of any adverse claim except such, if any, as they would be affected with by reason of the records aforesaid; said lands have largely increased in value since the purchase aforesaid of the said Holt, Matthews, and Tyree, by reason of the recent projection of railroads in that vicinity; that after said purchase by Holt, Matthews, and Tyree, and before the bringing of this suit, the plaintiffs caused written notices to be posted on the said lands, warning off trespassers; that, at the date of bringing this suit, neither the plaintiffs nor the defendants had actual possession of said land, but shortly after the bringing of this suit the tenants of the defendants took actual possession thereof, and have held the same since, to the exclusion of the plaintiffs. It is further agreed that all exhibits died with the bill or answers may he read upon the hearing, subject to all exceptions as to competency or relevancy of the same; that the statements in the bill are true as to the facts of the tender made to and refused by the defendants Holt, Matthews, and Tyree in July, 1890. It is further agreed that the value of the land in controversy exceeds the sum of §5,000. This agreed statement of facts is to apply to this ease only as presented in the present suit, and is not to be used against the parties for any other purpose, or in any other litigation concerning the same matter.</p>

<p>j. Specific Performance — Discretion of Court.</p> <p>Specific performance of a com ract rests in the discretion of the court, which will not decree it when, in view of all the circumstances, the ends of justice will not be subserved thereby.</p> <p>2. Real-Estate Brokers — False Representations.</p> <p>A real-estate agent, in order lo induce his nun-resident principal to make a sale, wrote that ihe property might bo sold for 827,000, and that this was from 82,000 to 83,000 more than it was worth. A few days later it was sold for 835,000. Held, that the statement must be considerad a representation of fact, and not of opinion merely.</p> <p>8. Same.</p> <p>The fact that the owner’s son was in the city about a month before, and had written her that the property was worth 838,000, was not sufficient to show that she did not rely upon the agent’s representation.</p> <p>4. Same — Authority—Duty of Third Persons.</p> <p>One who purchases real estate from a non-resident owner, through a real-estate broker, is bound to ascertain, not only the terras of his authority, but also the correspondence by which such authority was obtained.</p>

In Equity. Suit by the city of Somerville against Thomas P. Beal, receiver of the Maverick National Bank, to recover the proceeds of certain checks. Heard on demurrer to the bill.

<p>CJOSSTITUTI03SÍAI, LAW — UNRBASONTAIiM BeARCII--PRIVATE PAPERS —- NATION Al BASKS.</p> <p>Tho president of a national bank which had. failed brought a bill against the receivin’, alleging’ that a certain frank which was then in the vaults, and of which complainant held the key, contained his private papers; that the receiver, who refused to surrender tho same, was about to be summoned before the United States grand jury ivith the papers, to investigate a criminal charge against complainant. The prayer was for an order for the. delivery oí the papers, an injunction against, taking them before the grand jury, and for general relief. Complainant proved bv the cashier that the trunk was leapt in tho bank as the property of the president, but ffrewHuos» had no knowledge of its contents. Held, that under t,he fourth and fifth amendments to the federal constitution, the receiver could not give evidence as to the contents of the trunk, nor could a public investigation bo had; but, as the plaintiff had voluntarily submitted Ms rights, and asked for affirmative relief, the court would appoint a master- to examine it entirely alone, and turn over to complainant any papers belonging to him, and to the receiver such as were the property of tho bank, and were not. material to the government’s case against complainant; and that such as related to bank transactions, and were material to the prosecution, should ha hold .by the cici’k for further consideration. Boyd v. U. S, 6 Sup. Ct. Rep. 521, 116 U. S. 616, distinguished.</p>

<p>Injury to Employe — Evidence.</p> <p>In the trial of an action for damages for personal injury occasioned by an accident to a, bridge on a railway, it is error to admit evidence on the part of the plaintiff going to show that in the reconstruction of the bridge longitudinal braces were used where none had been used before.</p> <p> (Syllabus by the Court.) </p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>Action by Ben E. Lafayette and Moses Lafayette against George A. Eddy and H. C. Gross, as receivers of the Missouri, Kansas & Texas Railway Company, to recover for stock killed on defendants’ railroad. Verdict and judgment for plaintiffs. Defendants brought this writ of error.</p>

<p>In Error to the United States Court in the Indian Territory.</p>

<p>1. Carriers — Jn.titey to Passengers — Moving Train.</p> <p>Plaintiff took passage on defendants’ freight train, which, when it reached his station, halted in such a position that the caboose in which ho was riding was quite a distance from the station. He had alighted, or was in the act of alighting, when the brakeman told him not to get off, for, after the freight was unloaded, tiio train would be moved so as to bring the caboose near the platform. The train, instead of slowing up as the caboose neared the platform, increased its speed, and plaintiff, acting’ under the advice oí the brakeman, jumped off, and was injured. Eeld, that defendants were estopped by the act o C their servant from claiming that plaintiff was in fault in not leaving’ the train when it lirst stopped, or that its contract of carriage was fully performed at such time; that defendants could not avail themselves of their general custom as to the stoppage of freight trains, nor of the rule that passengers on freight trains assume increased risks; and that plaintiff was entitled to recover if, in jumping off the train, he acted as a prudent man would have acted in the circumstances.</p> <p>2. Sami — Contributory ÍS¡EGi,iGEXfir.</p> <p>Contributory negligence is a defense which will nob avail defendants, unless sustained by a preponderance of the evidence.</p> <p>S. Sami: — Damages.</p> <p>In an action for personal injuries caused by defendants’ negligence, where it appears that plaintiff has not fully gained the use of the injured member, damages may' be given for future loss.</p>

<p>1. Receivers of Railroad Companies — Suits without Leave of Court.</p> <p>Act Cong. March 3, 1887, § 3, (24 St. p. 554.) authorizing- suits against receivers of railroads without special leave of court, was intended to place such Receivers upon the same plane with the railroad companies, both as respects their liability to be sued for acts done while operating railroads, and as respects the mode of service of process. Central Trust Co. v. St. Louis, A. &T. Ry. Co., 40 Fed. Rep. 426, followed.</p> <p>2. Same — Service of Process in Indian Territory.</p> <p>For injuries committed in the Indian Territory, receivers sued therein are, properly served by delivering a copy of the summons to one of their station agents in charge of a railway station therein under the Arkansas laws, made applicable to the Indian Territory, providing that such service is sufficient to confer jurisdiction when defendant is a railway company or a foreign corporation.</p> <p>3. Same — Objections to Jurisdiction — Waiver.</p> <p>Receivers of a railway, in an action against them in the Indian Territory for an injury committed therein, served with summons by delivering a copy to one of their"station agents therein, by answering on the merits and going to trial after motion to quash tho service is overruled, will not thereafter be permitted to_question the jurisdiction of the court, Harkness v. Hyde, 98 U. S. 476, distinguished.</p> <p>4. Fires Set by Locomotives--Presumptions.</p> <p>In an action in the Indian Territory against the receivers of a railroad to recover for hay destroyed by a fire set by defendants’ locomotive, where it appears that one of plaintiffs is a member of' the Creek Nation, and that the hay was cut and gathered by her on Creek lands, it will be presumed, in the absence of a contrary showing, to have been lawfully harvested.</p> <p>5. Same — Parties.</p> <p>Hav destroyed by a fire negligently set by defendants’ locomotive was harvested by the occupant of the land under contract with another, whereby he agreed to advance the requisite funds, the former to receive one-third the proceeds. Held, that such persons could maintain a joint action for tho loss.</p> <p>6. Same.</p> <p>It is no ground of defense that the contract under which the hay was harvested was invalid because made with a married woman, for, both being parties to the suit, al) the necessary parties are before the court.</p> <p>7. Same — Negligence of Defendants.</p> <p>In an action to recover for hay destroyed by fire set by defendants’ locomotive, a charge that in the matter of keeping their right of way free and clear of combustible materials, and in providing their locomotives with suitable spark- arresters, defendants were only called upon to exercise “ reasonable care, skill, and diligence, ” states the proper ruie.</p> <p>8. Same.</p> <p>Negligence may be imputed to a railroad company if it allows combustible material to accumulate along its right of way in such quantity, at such places, and at such seasons as renders it liable to become ignited and cause damage to adjacent property.</p> <p>9. Same.</p> <p>The fact that fire is communicated by a passing locomotive is prima facie evidence of negligence.</p> <p>10. Same — Negligenoe of Plaintiffs.</p> <p>It appeared that the hay was burned in ricks while plaintiffs were making hay in the vicinity, and that the men so employed were keeping a constant lookout for fires, and had two water-wagons on the field. Held, that the court properly refused a charge based upon the assumption that they did not use “any effort to pro-' tect the hay. ”</p> <p>lLi Same — Measure of Damages.</p> <p>In an action to recover for hay destroyed by fire set by defendants’ locomotive, an instruction that the measu re of damages is the market value of the hay when burned, with interest from such time, is erroneous in not leaving to the jury any discretion as to withholding or allowing interest, but is no ground of reversal, where it appears that the jury did not, in fact, allow interest.</p> <p>12. Same.</p> <p>, In case there is no local market value, the value is properly fixed by the value at the nearest market, deducting the cost of transportation.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>'Action by George W. Powell against George A. Eddy and H. C. Cross, as receivers of the Missouri, Kansas & Texas Railway Company, to recové! for' personal injuries. Verdict and judgment- for. plaintiff. Defendants'brought error.</p> <p>STATEMENT BY THAYER, DISTRICT JUDGE.</p> <p>This is a suit for personal injuries which were sustained by the defendant in error at the town of Atoka, in the Indian Territory, on the 29th day of November, 1890. The evidence introduced by the defendant in error, who was the plaintiff in the lower court, tended to show that as he was driving along a public street, of the town, and had reached a point where the street crosses the track of the Missouri, Kansas & Texas-Railway Company, ho found the crossing of the main track partially obstructed by one of the receivers’ freight trains, which had halted temporarily at the station. The train had been cut in two at the crossing, leaving a space of about eight feet between the rear and the front sections of the train, through which vehicles and pedestrians could pass. The testimony further tended to show that, when he reached the crossing, he first stopped, intending to wait until the two sections of the train had united, and had moved past the slation; hut that he was directed or signaled to cross the track by a brakeman or conductor attached to the train, who was standing at or near the crossing, and that ho attempted to cross in compliance with such directions. While passing over the track, the engineer suddenly backed the front section of the train, for the purpose of coupling to the rear section. The wagon in which the defendant in error was riding was caught between the two sections of the train, and overturned. The defendant in error ivas thrown violently to the ground, and sustained injuries which disabled him for some time. The testimony in behalf of the plaintiffs in error tended to show that the defendant in error was not directed to cross the track before the train liad been coupled, but that in making such attempt he acted of his own volition and negligently. There was a verdict in favor of the defendant in error in the sum of $350.</p>

<p>At Law. Motion for new trial.</p>

<p>At Law. Appeal by importers from decision of the board of United States general appraisers.</p> <p>During the year 1891 the firm of Wilmerding & Bisset imported from a foreign country into the United States at the port of New York certain iherchandise, consisting of crash or canvas. This merchandise, having been returned by the local appraiser as manufactures of flax and jute, flax chief value, not exceeding 100 threads to the square inch,, was classified for duty as manufactures of flax, under the provisions for such manufactures contained in paragraph 371 of the tariff act of October 1, 1890, (chapter 1244, 26 U. S. St. p. 567,) and duty at the rate of 50 per centum ad valorem, as provided by .that paragraph, was exacted thereon by the collector of customs at that port. Against this classification and this exaction the importers protested, claiming that this merchandise, having, as its component material of chief value, tow, was dutiable at the rate of 40 per centum ad valorem under the provision for “all manufactures of jute, or other vegetable fiber, except flax, hemp, or cotton, or of which jute, or other vegetable fiber, except flax, hemp, or cotton, is the component material of chief value, not specially provided for in this act,” contained in paragraph 374 of the same tariff act. The board of United States general appraisers, to which the invoice of this merchandise, and all the papers and exhibits connected therewith, were transmitted by the said collector pursuant to section 14 of the administrative customs act of Juno 10, 1890, (chapter 407, 26 U. S. Ft. p. 131,) after taking evidence, (September 17, 1891, § 11,882, G. A. i 73,) found that, this merchandise was crash or canvas, 15 and 17 inches in width, respectively; that it consisted mainly of flax tow, and, in the case of one portion thereof, 1 per cent of cotton; of another portion, 11 per cent, of cotton; and of still another portion, 2 per cent, of cotton; that it contained less than 100 threads to the square inch; that tow was the coarse and broken part of flax; that, by specific provision of the aforesaid act, such portion of flax, when imported in hulk, was dutiable at one-half of 1 cent per pound; that textile fabrics, however, woven of this substance, become a manufacture of flax, and are subject to the rate of duty applicable thereto, when imported into the United States; and that the aforesaid classification of the collector was correct. From this decision of the board the importers appealed to the United States circuit court for a, review of the questions of law and fact involved therein. Thereafter the board made its return, and upon the same the case was tried.</p> <p>for importers, argued, In substance, that, as tow of ilax was specifically provided for by paragraph 359 of the aforesaid tariff act, the merchandise in suit was therefore not a manufacture of flax, within the meaning of the provision for such manufactures contained in said paragraph 371; hut was a manufacture of a vegetable substance other than flax, and dutiable as such, under the provision for such manufactures contained in said paragraph 374; citing, in support of this contention, the remarks of the supreme court as to “shoddy” found in the case of Seeberger v. Cahn, 137 U. S. 95-97, 11 Sup. Ct. Rep. 28.</p>

At Law. ' Application by the importers under the provisions of section 15 of the act of congress, entitled “An act to simplify the laws in relation to the collection of the revenues,” approved June 10, 1890, fora-review by the United States circuit court of the decision of the board of' United' States general appraisers at the port of New York, affirming the: decision of the collector on the classification for duty of certain merchandise imported into said port in the month…

<p>At Law. Appeal by importers from a decision of the board of United States general appraisers.</p> <p>During the month of August, 1890, the firm of Megroz, Portier, Magny & Co. imported from a foreign country into the United States at the port of New York certain merchandise. This merchandise was appraised by the local appraiser at a value greater than the entered value thereof. Pursuant to the provision of section 13 of the administrative customs act of June 10, 1890, (chapter 407, 26 U. S. St. p. 131,) the importers, within the time prescribed thereby, gave notice of their dissatisfaction with the appraisement made by the local appraiser to the collector of customs, who at once directed a reappraisement of this merchandise by one of the general appraisers, who appraised this merchandise at a value above that fixed by the local appraiser. Thereafter, pursuant to the provisions of said section 13, the importers, within the time prescribed thereby, gave notice of their dissatisfaction with the appraisement made by the one general appraiser to the collector of customs, who transmitted the invoice of this merchandise, and all papers appertaining thereto, to a board of three general appraisers, who, after examination, decided that the value of this merchandise, as appraised by the one general appraiser, was the dutiable value thereof. Upon the value of this merchandise so decided to be the dutiable value the collector of customs assessed duty at the rate prescribed for such merchandise by the tariff act in force at the time of its importation. Against the assessment of duties on the value of this merchandise, decided as aforesaid to be the dutiable value thereof, the importers protested, claiming, in substance, that the reappraisement was illegal and void, on the ground that the said one general appraiser had no authority on reappraisement to raise values above those fixed by the local appraiser, the appeal from the appraisement made by the latter not having been taken by the collector, but by the importers. Upon receipt of this protest, as provided by section 14 of the aforesaid administrative customs act, the collector submitted the ease thus presented to a second board of three general appraisers at this port, who overruled the importer’s protest, and affirmed the decision of the collector as to the aforesaid assessment of duties. Within the time prescribed by section 15 of the aforesaid administrative customs act the importers applied to the United States circuit court for this district for a review of this lasLmentioned decision.</p>

<p>Customs Duties — -Classification—-Silk and Cotton SimmNes.</p> <p>Silk and cotton shirtings, invoiced as “mixed shirtings,” consisting of cotton warp threads; some white and some colored, and silk weft threads, the cotton constituting 63.37 per cent, in weight of the fabric, and the silk 86.73 per cent, in weight, the silk being largely the component material of chief value, held, that the merchandise was dutiable at 50 per cent, ad valorem under paragraph 414 of the tariff act of October 1, IbOO, and not, as classified by the collector, at 10 cents per square yard, and 85 por cent, ad valorem, under paragraph 318 of the same tariff.</p>

<p>1. Customs Duties — Board oe Appraisers — Review by Circuit Court — Evidence.</p> <p>On a review by the circuit court, under Act Cong. June 10,1890, § 15, of the decision o£ the board of general appraisers, a motion to strike out testimony taken before the board will be denied, although the record, as certified, states that the facts were found “from the evidence and common knowledge, ” and included evidence taken in other cases, in which the importers were not concerned, and had had no opportunity to answer or controvert the same.</p> <p>2. Same.</p> <p>It is clearly the intention of the act, as shown by the proceedings in congress leading to its passage, that the board of general appraisers should possess expert knowledge of their own, and that their decision should be based upon such knowledge and the evidence submitted, or upon no evidence at all, or in the absence of the importer and his witnesses. Reetor of Holy Trinity v. 77. $., 12 Sup. Gt. Rep. 511, applied.</p> <p>8. Same — Evidence.</p> <p>All evidence taken before the board is by section 15 made competent before the circuit court on review, but the importer is then entitled to controvert it under the ordinary rules of evidence.</p>

<p>Writ of Habeas Corpus.</p> <p>STATEMENT BY JENKINS, DISTRICT JUDGE.</p> <p>On the 13th of February, 1892, upon the petition of Charles 12. Cook, claiming to be restrained of his liberty by one Golden A. Hart, sheriff of the county of Dodge, state of Wisconsin, a writ of habeas corpus was issued out of this court, to which the sheriff made duo return, which the petitioner duly traversed. The facts disclosed by the record, so far as essentia] to the determination of the matter, are substantially these: On the 5th day of March, 1891, one George W. Morse complained to a justice of the peace of the county ol’Dodge that the petitioner, Charles 12. Cook, and one Frank Leek, on the 7th of May, 1889, oponed a bank at Juneau, in the comity of Dodge, styled the “Bank of Juneau,” and entered upon and engaged in a general banking business, having a pretended capital of 810,000, and continued in such business, soliciting and receiving deposits up to and including the 20th day of June, 1890, upon which day the bank closed its doors and failed.' That Cook was the principal owner of such bank, owning nine-tenths interest therein, Leek owning one-tenth interest therein. That Cook was an officer of the hank, and had the general supervision of the business, which was transacted either by him personally, or, under his order and direction, by one Biehardson, acting as his agent. That from January 6. 1890, to June 20, 1890, Cook, by the inducements and pretenses so held out by him, received and accepted on deposit, from citizens of the county, money to the amount of $25,000. That this was done by the express order and direction of Cook, and with his full knowledge; and that no part of said amount has been paid or returned to the depositors. That on the 6th day of January, 1890, Cook and Leek and the bank were severally insolvent, and have since so continued, and that such insolvency of the parties and of the bank was well known to Cook on and ever since the 6th of January, 1890; and that, at the time of receiving all the deposits stated, Cook knew, and had good reason to know, that he and Leek and the said bank were each and all of them unsafe and insolvent. That on the 20th of June, 1890, at Juneau, in the county of Dodge, Cook, as such banker, did accept and receive a deposit in said Bank of Juneau from one Herman Becker, a resident of the county of Dodge, of $175, which has never been paid or returned; and that, at the time of receiving such deposit, Cook knew, and had good reason to know, that he and the said Frank Leek and the said Bank of Juneau were each and all of ■ them unsafe and insolvent, and that such deposit from Becker, and all the other deposits mentioned, were received by Cook with intent to cheat and defraud, contrary to the statute of Wisconsin. Thereupon the justice of the peace to whom the affidavit and complaint had been presented issued the usual warrant for the arrest of Cook, upon which, accompanied with several affidavits in support of the principal charge; and also upon an affidavit of the then sheriff of the county of Dodge, who states certain ineffectual attempts to find Cook in the city of Chicago, and who states “that he knows that said Charles E. Cook was at said times, and now is, a fugitive'from justice;” and also upon the application of the district attorney for the county of Dodge, who states that “ said Charles E. Cook is a fugitive from justice, and has fled from the justice of the state of Wisconsin, and avoided arrest,” — the governor of the state of Wisconsin, on the 9th day of March, 1891, issued his requisition upon the governor of the state of Illinois, requiring the apprehension of the said Cook, and his delivery to an agent deputed to receive and convey him to the state of Wisconsin. That requisition w'as honored by the executive of the state of Illinois, who issued his warrant on the 10th day of March, 1891, to the proper peace-officers of thatstate, reciting that the executive authority of the state of Wisconsin had demanded the apprehension and delivery of Charles E. Cook, “represented to be a fugitive from justice,” and had produced and laid before him authenticated copies of the charge hereinbefore recited, and requiring the officers to whom the warrant was addressed to arrest and secure the said fugitive, Charles E. Cook, if to be found within the limits of the state, and to deliver him into the custody of the agent of the executive authority of the state of Wisconsin, appointed to receive the said fugitive. Under such warrant Cook was arrested by the sheriff of the county of Cook, in the state of Illinois, and delivered to the agent of the executive authority of Wisconsin, who conveyed him to the county of Dodge, in the state of Wisconsin, where he was examined before the magistrate issuing the warrant, and held to answer to the charge. Subsequently, and in November, 1891, the district attorney filed his information against the petitioner, Cook, setting forth the offense charged in the original complaint before the magistrate, upon which he was arraigned, and to which he was compelled to plead, and held to bail in the sum of 15,000. Afterwards, and prior to the writ of habeas corpus, Cook was surrendered by his bail, and was held by the sheriff of the county of Dodge under process issued out of the said court, to answer the charge. At the February term, 1891, of the circuit court of Dodge county, the grand jury of the county presented seven indictments against the petitioner, Cook, charging him with different violations of the criminal laws of the state of Wisconsin, some for larceny, some for embezzlement, and some lor receiving deposits in the bank, knowing the bank to be unsafe and insolvent. All these offenses are charged to have been committed in connection with this business of banking; the times of the alleged offenses varying, but all charged to have been committed between the 3d and 20th days of June, 1890. To the several indictmeuts Cook was required to plead, and under them ho was held to bail, and subsequently, and before this writ of habeas corpus, by his bail surrendered to the sheriff, in whose custody he was at the time of the issuance of the writ. The sheriff justified his detention of Cook under the writs issued upon the information and the several indictments stated.</p> <p>It was established upon the hearing, to the satisfaction of the court, that Cook, for some years prior to the 20th of June, 1890, and for some years prior to his arrest upon the warrant of the executive of Illinois, had been, and still is, a resident of the city of Chicago, in the state of Illinois; that he had made occasional visits to the state of Wisconsin in connection with his banking business at .Tunean and elsewhere; that he left Chicago on the 17th day of June, and went to Hartford, in the county of Washington, state of Wisconsin, where he spoilt the whole of the 18th day of June, thence proceeding to Beaver Dam, in the county of Dodge, where he was engaged during the whole of the 19th of June in business not connected with the Bank of Juneau; that early on the morning of the 20th of June, he left Beaver Dam, and made a continuous journey to Chicago, arriving there at 2 i\ m. of the 20th, and did not, on the occa,sion of that visit to Wisconsin, visit or pass through the village of Juneau, and had not been at Juneau for some three weeks prior to the closing of the doors of the bank on the 20th of June. It was also conceded at the hearing that the particular deposit by Herman Becker, charged in the complaint upon which the requisition proceedings were had, was actually made at 4 o’clock in the afternoon of the 20th of June, and after the petitioner’s arrival in Chicago. It is also proper to state that the petitioner testified at the hearing that he was a largo stockholder in the Bark National Bank of Chicago, which was closed by the comptroller of the currency on the 20th day of June, 1890; that ho left Beaver Dam for Chicago upon a telegram stating that trouble existed with reference to that bank; that that bank was in fact solvent, and has paid all its debts, and that it should not have been closed by the comptroller; that the closing of that bank compelled the closing of the doors of the Bank of Juneau; that up to that time, as he claims, not only the Bank of Juneau, but that he and Mr. Leek, were, solvent, and that their subsequent insolvency was brought about by the improper closing of the Park National Bank.</p>

At Law. Information against John Bardenheier for violation of the internal revenue laws. STATEMENT BY THAYER, DISTRICT JUDGE. • This is an/information containing eight counts, under section 3326, Rev. St. The first series of counts (Nos. 1, 2, 5, and 6) are for altering “distillery warehouse stamps” and “inspection marks” on certain barrels of distilled spirits, by “obliterating and making illegible” the dates of such stamps and marks.

<p>At Law. Demurrer to indictment.</p>

<p>Lottebies — Mails—Indictment.</p> <p>Under Act Cong. Sept. 19, 1890, making- it a misdemeanor to deposit in the mail any newspaper containing the advertisement of a lottery, an indictment charging, in the language of the act, that defendant committed the offense by depositing such newspaper in the mail, etc., and setting forth the name and address of the person to whom it was sent, is sufficient without alleging prepayment of postage thereon.</p>

<p>U Law.</p> <p>Indictment under Rev. St. 5209, of Charles R. Eqe, book-keeper of the Keystone National Bank of Philadelphia, the charge being that he liad made entries in a statement prepared by him at the request and for the use of the bank examiner. The statement contained three kinds of misstatements- — First, accounts appearing in the individual ledger were omitted in balance-sheet; second, checks were improperly deducted; third, balances were entered at less amounts than were actually to the oredit of the depositors, — all tending to make the liability of the bank to the depositors less. The evidence showed that Eqo had been requested to make the statement by the examiner on the ground of the illness of the examiner’s assistant, and that it was the custom of the examiner to make such a statement personally, and it was no part of the duty of the bank’s book-keeper to do it. Verdict directed for defendant.</p>

<p>1. Copyright — Fictitious Business Name — Infringement.</p> <p>One who does business under a conventional or fictitious partnership name may obtain a valid copyright under that name, and may sue to restrain an infringement thereof without averring the filing of the certificate required by the New York statutes.</p> <p>3. Same — Pleading.</p> <p>A bill for infringement of a copyright, which avers that two copies of the book were deposited in the librarian’s office at Washington within 10 days after publication, is sufficient, without alleging that the book was published within a reasonable time after the deposit of the copy of the title.</p>

In Equity. Suit by John H. Sessions against William ,B. Gould and others for infringement of letters patent No. 203,860, issued May 21, 1878, to Charles A. Taylor, for an “improvement in trunk fixtures,” and assigned to complainant Juno I, 1878; and letters patent No. 255,122, issued March 21, 1882, to John II. Sessions, Jr., “for trunk fasteners,'” and assigned to the complainant July 1, 1888. Heard on motion for a preliminary injunction.

In Equity. Under a hill filed by William Mack, an injunction wag granted May 20, 1890, restraining Levy, Dreyfus & Go. from infringing a patent by making several .forms of opera-glass holders denominated aA” etc., but excepting “0,” in which the hook and notch of the patent, do not exist, but consist of a detachable screw loop, the open ends of which wore screwed together, (see 43 Fed.

<p>In Equity. Suit by tho Overman Wheel Company against the Elliott Hickory Cycle Company for infringement of a patent. Heard on demurrer to the bill.</p>

<p>1. Patents fob Inventions — Expert Evidence.</p> <p>While the opinions of experts in patent cases are entitled to weight, as the judgment of persons skilled in the particular matter under investigation, yet they are not binding upon the court, and will be rejected if they do not appear reasonable and satisfactory.</p> <p>2. Same — Construction of Patents.</p> <p>It is the duty of courts to construe a patent by a reference to the language of its claims, and an examination of the specifications and drawings accompanying the same.</p> <p>8. Same — Original Inventors — Infringement.</p> <p>Original inventors have the right to treat as infringers all persons who make devices or machines operating on the same principle and performing tho same functions by analogous means, or equivalent combinations, even though the infringing machine may be an improvement of the original, and patentable as such.</p> <p>4. Same. t</p> <p>If the patentee’s ideas are found in the construction and arrangement of the subsequent device, no matter what may be its form, shape, or appearance, the parties making or using it are deemed appropriators of the patented invention, and are infringers. An infringement takes place whenever a party avails himself of the invention of the patentee, without such a variation as constitutes a new discovery.</p> <p>5. Same — Combination Claim — Equivalents.</p> <p>When a combination patent covers a new arrangement of old elements, producing a new and useful result, the same may he protected oy invoking the doctrine of equivalents, as against the substitution for any particular element of a different device known at the date of the patent as a means o£ performing similar work: and the fact that the substitute performs some additional functions does not prevent it from being an infringement.</p> <p>3. Same — Infringement.</p> <p>. There cannot be any infringement of a combination claim unless every element of the combination, or a mechanical equivalent of an omitted element, is used.</p> <p>if. Patents for Inventions — Construction of Claims — Primary Invention — Can-Heading Machines.</p> <p>Letters patent No. 367,014, issued November 7,18S3, to Edwin Norton, for a “machine for putting on the ends of fruit and other cans,” cover an invention of a primary character, and its claims are entitled to a broad and liberal construction; and the fact that a subsequent machine is an improvement thereon in some respects will not prevent infringement, if it operates on the same principle and performs the same functions by analogous means or equivalent combinations.</p> <p>1. Same — Infringements—Differences of Construction.</p> <p>Claim 1 of said patent claims, in a can-heading machine, “the combination of a device for sizing the exterior diameter of the can body to conform to the interior diameter of the can head, and holding the same so sized while the head is applied, said sizing and holding device having its end enlarged to fit the exterior diameter of the can head, so as to leave an annular space between it and the can body for the reception of the flange of the can head with a device for forcing the can head into said annular space, and thereby applying the can head outside the can body, substantially as specified. ’’ In the specifications the patentee says that he does not limit his invention to the particular mechanism employed, and "suggests variations involving the same principles. Held, that the claim is infringed by the “Jensen machine,” which is made under letters patent No. 376,804, and which, operates on the same principie, thóugh it is so arranged that only one end is capped at a time, the can head is delivered sidewise, and the can body endwise, to the mold, and the can body is moved towards the can head, while in the Norton patent both ends ar.e capped, the can head is delivered endwise, the can-body sidewise, and the can head is moved towards the can body.</p> <p>Same — Combination Claim — Equivalents.</p> <p>Claim 3 of the Norton patent covers a combination of the foregoing devices, with “a chute or device for delivering the can bodies to the machine, ” and “a chute or device for delivering the can heads to the machine. ” In these chutes the parts are delivered by force of gravity. Held, that these elements were infringed by the Jensen machine, though the parts did not deliver themselves, but were moved along by a traveling belt and a reciprocating feeder, since these, being well-known devices, served merely as substitutes or equivalents of the chutes.</p> <p>;.0. Same.</p> <p>In letters patent No. 274,363, issued March 20,1883, to Norton & Hodgson, claim 6 covers “the combination of the can body, clamping device or mold, with a chute for the can heads, a reciprocating head or piston at the'base of said chute for automatically feeding the can heads to the mouth of the mold, and applying the same to the can body, and a spring pin or device for holding the can head in position at the mouth of the mold.” Held, that this claim was infringed by the Jensen machine, there being evidence showing that the spring-pin device, sometimes used therein, operated in substantially the same way to hold the can head in position at the mouth of the mold, and was combined with the mold, piston, and can-head chute.</p> <p>M. Same.</p> <p>Claim 7 of the same patent covers “the combination of the delivery chute wheel having half molds upon its periphery, reeipi’ocating half mold, chute for the can heads, piston for applying the same to the can bodies, and discharging chute, substantially as specified. ” Held, that this claim is infringed by the Jensen machine, since the evidence shows that the reciprocating and revolving bar and fingers of the latter are merely an equivalent of the can-body feeding wheel, and that in both machines there is a reciprocating half mold mounted on the frame of the machine.</p> <p>13. Same — Extent of Claim.</p> <p>Letters patent No. 294.065, issued February 26,1834, to Norton & Hodgson, is for an improvement on the can-heading machine, as before described, and in claim 14 covers a combination therewith of “mechanism for heading and compressing into a .seam the flanges uniting ttia can head and body, substantially as specified.” Held that, as this patent shows the first combined can-heading and crimping machine, the claim is entitled to a liberal construction, and is therefore infringed by the Jensen machine, although the latter employs a rotary crimper, while the former use a squeezing jaw crimper, both being well-known devices.</p> <p>13. Same.</p> <p>Letters patent No. 322,060, issued July 14,1885, to Edmund Jordan, which covers an improvement on the original Norton machine, consisting mainly in the method of mounting tne mold, and of delivering the cans and can heads to it, is also infringed by the Jensen machine.</p> <p>14. Same — Invention—Successful Machine.</p> <p>Letters patent No. 807,197, issued October 2S, 1884, to Edmund Jordan, for a can-heading machine, having “a segmental damp-chuck, ”is not ini ringed by the Jensen machine, which has many features of likeness, as the evidence shows that the Jordan machine is too slow and”cumbersome in its operation to be a practical machine for heading cans of the size required for putting up fruits, vegetables, meats, fish, etc., and that the Jensen machine will do such work successfully and at reasonable cost. Hawley, District Judge, dissenting.</p> <p>15. Same.</p> <p>Letters patent No 307,491, issued November 4, 1884, to Norton & Hodgson, covers substantially the same machine as that described in patent 274,868, to the same inventors, with the additional feature that it is so arranged as to hold the can at an incline instead of horizontally, so as to operate upon filled cans. Held, that this arrangement, and the necessary adjustment, of the feeding devices, scarcely involved inventive genius; and, it appearing that the machine is only partially successful, while the Jensen machine, in operating on filled cans, is completely successful, there is no infringement. Hawley, District Judge, dissenting.</p>

<p>In Admiralty. Libel to recover on policy of marine insurance.</p>

<p>I‘bright — Cargo “Intakes” — Amount—Intent op Parties.</p> <p>Where a charter-party provides for a certain rate of freight on “about 1,500 tons” of iron ore “intaken, ” — the original word “delivered,” in the charter-party, being stricken out, and the word “intaken” written in, — and the master, at the port of loading, being without opportunity of weighing, demanded 1,575 tons, which amount was promised him, and a bill of lading made out therefor, and assurance' given the master that he had that amount, and the ship, after a safe voyage without incident, delivered only 1,500 tons, no question of short delivery being raised, but only the question whether freight should be paid on 1,575 tons or on the amount delivered, held, that the parties had agreed at the port of loading as to the number of tons on which freight should be paid, viz., 1,575 tons.</p>

<p>[n Admiralty. Suit to enforce adjustment of general average.</p>

<p>t. Circuit Court of Appeals — Writs op Error.</p> <p>Under the act establishing the circuit court of appeals, (26 St. p. 820, c. 517,) which provides, in section 11, that all existing' provisions of law, “regulating the system and methods of review through appeals and writs oí error,” shall be applicable to such review in the circuit court of appeals, a writ oí error returnable to the circuit court oí appeals may bo issued from the clerk’s office oí the circuit court in which the action was tried.</p> <p>8. Same — Jurisdictional Amount..</p> <p>As Rev. St. XT. S, I 691, as amended by Act Feb. 16,1875, limiting the jurisdiction oí the supreme court to cases involving 85,000 or over, was expressly repealed by section 14 of the circuit court oí appeals act, there was no ground for contending that such limitation applies to the jurisdiction of the circuit court of appeals.</p> <p>8. Same — Date or Crfation.</p> <p>The act. creating the circuit court of appeals took effect from the dato of its passage, and the court had jurisdiction to roview, by writ oí error, a judgment entered thereafter, and before the third Tuesday in June following, which was merely the day for the first meeting' of the court, as fixed by the joint resolution passed on the same day with the act. In re Vlaasen, 11 Sup. Ct. Rep. 785, 140 U. S. 200, followed.</p> <p>4. Same — Pending Suits.</p> <p>The circuit court of appeals has jurisdiction to roview causes pending in the circuit courts at the time oí its creation, even though such causes, being for less than 85,000, were not before roviewable in any court. Making the cause rcviewable is not impairing the jurisdiction of the court, within the meaning of the clause of the joint resolution which declares that the act- shall not in any wise impair the jurisdiction of any federal court in pending causes. In re Claasen, 11 f.iup. Ct. Rep. 785, 140 U. S. 200, followed.</p> <p>5. Bill of Exceptions — Time of Buttling and Filing — Circuit Court Rules.</p> <p>While rules 67 and 69 of the circuit court for the southern district oí New York require exceptions in common-law cases to be drawn up and served before judgment, they do not require the exceptions to bo settled and filed before that time.</p> <p>6. Master and Servant — Contributory Negligence.</p> <p>Whether it was contributory negligence for a railroad laborer, returning from his work at night across a slippery railroad bridge, to walk “at bis ease,” without keeping a lookout for trains, in view of his boss’ ussur. nee that there would be no trains lor two hours, is a question for the jury.</p>

<p>Inhabitant.</p> <p>That the term “inhabitant," as used in the first section of the judiciary act, in- ' eludes a foreign corporation, engaged in business in the district in which it is sued, according to the laws thereof.</p> <p>5. Foreign Corporation.</p> <p>A foreign corporation, engaged in business in any state in this Union, who, in pursuance of the laws thereof, appoints an attorney, with power to receive service of process in any suit against it, thereby consents in advance to be sued thereon.</p>

<p>1. Mortgage Privileges — Priorities—Executory Process.</p> <p>Even if a mortgage, given to secure the purchase price of property in Tjouisiana, has become perempted, the vendor’s privilege survives, and the assumption thereof by a new purchaser continues the same against him and upon the property, outranking oven that of the second vendor; and, if such assumption is executed before a notary and two witnesses, executory process will issue under Code Pr. arts. 782, 788.</p> <p>2. Federal Courts — Jurisdiction-—Citizenship.</p> <p>When the United States court has jurisdiction over the cause and the res, other parties, whose citizenship would not have allowed them to institute the suit, may intervene to assert their rights in the res, but they cannot have original process.</p>

<p>1. Cancellation op Contract — Fraud—Evidence.</p> <p>A bill to set aside a contract dissolving a partnership alleged that, while plaintiff was confined to his house by illness, his two copartners insisted upon a settlement, and as a basis therefor presented a statement, in whioh the year’s profits were estimated at $50,000. The actual profits were over $100,000; and plaintiff’s bookkeeper testified that before the settlement he had made a statement, on request of one of the defendants, showing profits of about that amount. It appeared, hqwever, that shortly after the settlement he made a statement showing profits of $60,-000, and defendants both testified that the statement showing $100,000 profits was made at a stili later date; that no statement was made before the settlement, and that the estimate was bona fide- Held, that the charge of fraud was not made out.</p> <p>2 Same — False Statements not Belied on.</p> <p>Plaintiff possessed an intimate knowledge of the firm’s affairs, and testified that when the estimate was presented he felt satisfied that it was much too low, but that he accepted it because of his critical physical condition, and upon the advice . of his physician to give up business. Held that, even if the estimate was knowingly false, he was entitled to no relief, as he was not in fact deceived.</p> <p>8. Same — Misconduct op Plaintipp.</p> <p>Where a partner raised money on the firm .paper to purchase a rival concern for his own benefit, enticed away valued employes, and, under threats of liquidation by legal proceedings,, sought to enforce a sale to himself, he has no equity which will support a bill to set aside a contract of dissolution, made at the instance of his copartners upon discovering his wrongful use of the Arm’s credit.</p> <p>Same — Laches.</p> <p>Where a bill to set aside an alleged fraudulent contract states that the facts concerning the fraud were communicated to the plaintiff nearly three years prior thereto, and it appears that in the mean time, at intervals of every three months, he had accepted payment on a scries of notes given under the contract, the delay is fatal to his right to equitable relief.</p>

<p>In Equity. Suit by S. Rebecca Barbour against Mary A. Lyddy to enjoin interference with an easement.</p>

<p>In Equity. Suit by Barbee T. Blackburn and Sadie M. Blackburn against Charles- T. Wooding. Decree dismissing the bill.</p>

<p>1, Illegal Taxation — Injunction—Tendee—Payment Nunc peo Tuno.</p> <p>A bill by a railroad company against several county treasurers, to enjoin the colT lection of an unlawful assessment, admitted that a certain amount was due, averred that it had tendered the same at the proper time, and that the treasurers refused to receive it, and offered to pay the money into court. Thereupon the several treasurers entered their appearance, and moved for an order requiring the company to pay nunc pro tunc the sums before tendered. Held that, as the order would be binding upon the parties and privies against all the world, the company could not object on the ground that the payment might jeopardize some of its rights, or that some advantage might be taken of it elsewhere.</p> <p>2, Same.</p> <p>The company could not object that the action of the treasurers might not be binding on the state, which was not a party, since the company itself had sought to have the assessment declared invalid without making the state a party to the bill, and since the court would have no right to hold the money until the state submitted to its jurisdiction, as this would be taking advantage of her necessities to coerce her.</p>

<p>1. Appeal — Afpiumance—Mandate—Allowance op Intekbbt. ,</p> <p>When a judgment for money which docs not award interest is affirmed without reference to the question of interest, such a decree is to be taken by the lower court as a declaration that no interest is to be allowed. I</p> <p>2. ¡Same — Svpuk.me Coukt Hule. !</p> <p>linio 23, Sup. Gt. U. S., providing for the allowance of interest on affirmed judgments. Is for the guidance of the supreme court only, and does not authorize an in-! j'erior court to add an award of interest to a decree affirming its own judgment;1 the function of the inferior court in such cases is ministerial, rather than judicial.</p>

<p>Foreign Insurance Companies — Agents por Service op Process.</p> <p>Where the regulations of an association having a benefit department require the secretary of each local division to certify to the health of every applicant for insurance, to keep a correct list of the members of the benefit department, to place thereon the name of any member of the insurance department joining his division by transfer from any other division, and also make it the duty of members to notify him of any changes of residence, such secretary must be considered an insurance “agent” of the association, under Rev. St. Wis. § 2637, subd. 9, and section 197?, declaring who shall be considered agents of a foreign insurance company for - the purpose of receiving service of process.</p>

At Law. Indictment of Si vil Wardell et al. for interfering with a United States deputy-marshal in the discharge of his duties at an election-for congress. Indictment quashed.

<p>In Equity. On demurrer. Bill by the De la Vergne Refrigerating Machine Company against John Featherstone and others to restrain the alleged infringement of a patent. Defendants demur.</p>

<p>'1. Patents eor Inventions — Extent oe Claim — Preparing Plates eor Printing.</p> <p>Letters patent No. 184,759, issuedNovember 28, 1876, to JosephT. Commoss, claim “the method of preparing metal plates for direct printing by means of pale boiled oil, Benguela varnish, turpentine, white lead, magnesia, and soap-stone, in about the proportions and in the manner herein substantially set forth and described. ” Held, that the patent covers only the specified method of using this particular composition, and is valid to that extent.</p> <p>1. Same — Ineringement—Evidence—Presumptions.</p> <p>The only evidence as to infringement was the testimony of the plaintiff, as an expert, to the effect that, in his opinion, a certain box, shown in evidence, was printed from a plate treated with a composition containing “ varnish, boiled oil, and some colored pigment, ” “in such proportions and consistency as to produce a smooth surface, ” without stating that it was dried, or treated with soap-stone and magnesia, according to his method. Held, that this was no evidence whatever of infringement, and hence that no presumptions could be indulged against defendant from his failure to show the nature of his composition and method of treatment.</p>

<p>Assignment or Patents — Construction op Contract.</p> <p>Whore ;i manufacturer owning certain patents, in pursuance of an agreement to form a corporation which is to include the properties of several rivals, and of which he is to become the general manager, assigns his patents to the corporation without reservation or conditions, except that the company is not to assign them to anyone else while he continues to hold his allotted proportion of its stock, such assignment cannot be considered as subject to the oonditiou that he shall be retained in his position as manager, and Ms discharge by the company, whether with or without cause, will not revest in him any interest in the patents.</p>

<p>In Equity. Suit by Daniel C. Ripley against the Elson Glass Company for infringement of a patent.</p>

<p>In Equity. Suit by the Campbell Printing-Press & Manufacturing Compan y against the Manhattan Railway Company for infringement of a patent. Decree for injunction and an accounting.</p>

<p>In Equity. Suit by the Page Woven Wire Fence Company against Abel Land for infringement of a patent.</p>

<p>In Equity. Bill by Homer Merriam and others against the Texas f Siftings Publishing Company for an injunction.</p>

In Equity. Bill "by the Chattanooga Medicine Company against M. A. Thedford and W. J. Satterfield for an injunction. Denied.

<p>1. Bailments — Dufy of Hirer of Chattel — Agents.</p> <p>The hirer of a chattel impliedly undertakes to use it well, to use it for no other purpose than that for which it is hired, to take proper care of it, and to restore it at the time appointed. In all these things he is bound to exercise the diligence of a prudent man; and for any default, whether his own personal fault or negligence or that of his subagents or servants, he is responsible to the owner.</p> <p>2. Same — Chartered Scow — Loss—Negligence of Servant.</p> <p>Where respondent chartered libelant’s scows to transport a building from one place to another, and also engaged a tug to tow the scows, and by the negligence of the master of the tug and his subordinate the scows became a total loss, it was held that respondent was liable.</p> <p>40 Fed. Rep. S39, affirmed.</p>

[n Admiralty. Suit hy Moore to recover for the loss of a canal-boat in collision with the steam-ship City of New York while the canal-boat was in tow of the tugs Young America and John E. Berwind. The distrijt court held all the steamers in fault, (44 Fed. Rep. 693,) and.their owners each appealed.

<p>Appeal from the Circuit Court of the Unitod States for the Southern District of New York.</p> <p>In Equity. Libel in personam by the administratrix of Patrick Daily against the Pennsylvania Bailroad Company as owner of the tugs Young America and John E. Berwind, and against the Norwich & New York Transportation Company as owner of the steamer City of New York, to recover for the death of her intestate, who was drowned in consequence of the collision, giving rise to the libel against these three vessels. 49 Fed. Bep. 956. By stipulation of the parties, decrees of like effect as in that ease were entered in this, both in the district court, and upon this appeal.</p>