Volume 5 — Federal Reporter

<p>1. RejiovaIi of Causu.—Under the second clause of section 2 of the act of March 3, 1875, any suit mentioned therein is removable whenever it involves a controversy wholly between citizens of different states, and which can be fully determined as between them, upon the petition of either one or moro of the plaintiffs or defendants actually interested in such controversy; and it is immaterial whether such controversy is considered the main or principal one in the suit or not, or what other controversies or parties are incidentally or otherwise involved in it.</p>

<p>1. Plea to the Jurisdiction.—Tlie beginning and conclusion of.</p> <p>2. Alien Women—Marriage of to a Citizen.—Under section 2 of the act of February 30,1875,(section 1994, Rev. St.,) an alien woman of tlie race or class of persons that are entitled to ho naturalized under existing laws, who is married to a citizen of the United States, becomes by that act a citizen o£ the United States; and such admission to citizenship has tlie same force and effect as if such woman had been naturalized by the judgment of a competent court.</p> <p>3. Same.—The clause in the statute aforesaid, “might lierself be lawfully naturalized,” does not require that the woman shall have tlie qualifications of residence, good character, etc., as in case of admission to citizenship in a judicial proceeding, but it is sufficient if she is of the class or race of persons who may be naturalized under existing laws.</p>

<p>1. Removal—Consolidated Coevo rations—When a corporation is created by the laws of ono state and then becomes consolidated with the corporations of other states, by virtue of the laws of the state of its creation and of such other states, and then changes its name and is sued by such changed name in a court of the state where it was created by a corporation of the same state, one of the consolidated corp&rations created by the. law of another state cannot go into such state court and have the cause removed into the federal court.—[Ed.</p>

<p>1. Removal—Assignee—Act oe March 3, 1875, §§ 1, 2.—The first and second sections of the act of March 3, 1875, should be construed together as in pari materia, and therefore a removal should not be allowed in a case where the plaintiff is an assignee, unless his assignor might, have brought suit in a federal court.</p> <p>2. Same — Federal Question — Decree oe Federal Court.—A suit to recover taxes erroneously levied by 1 lie officials of a county, under a state statute, does not involve any federal question, although the invalidity of such taxes has boon established by the decree of a federal court.—[Ed.</p>

<p>1. Costs—When Re coyer able—Cause Removed from State to Circuit Court—Section 968, Lf. S. Rev. St.—In an action at law original ly brought in a state court, and removed to the circuit court by the defendant, the amount ultimately recovered by the plaintiff was, exclusive of costs, less than $500, ($312.46.) Such a recovery would have entitled him to costs in the state court. Held, that the case is not within section 968, U. S. Rev. St., and that the plain tiff is entitled to costs; although, if the action had been commenced originally in the circuit court, no costs could have been recovered.</p> <p>2. Same—Effect of Counter Claim.—As to the effect upon the question of costs of the reduction of the recovery to below $500, by the allowance of a counter claim in an action originally brought in the circuit court, quatre.</p>

<p>1. Abbest—Mabshal’b Rees.</p> <p>Wliere an execution ea. sa. was served by the marshal in the county of Now York, and the defendants held under arrest for some time, and the action was subsequently settled by a compromise, the defendants paying the plaintiff a smaller sum than that specified in the execution:</p> <p>Ileld, that the marshal is entitled to poundage on the whole amount for which tho execution issued.</p> <p>That the new provisions contained in the New York code of civil procedure relating to sheriff’s fees do not affect this question.</p> <p>That the rate of poundage should be that allowed the sheriffs in tho different counties throughout the state under 2 (N. Y.) Rev. St. 645, j 33, and not the special rates allowed the sheriff in the county of New York.</p>

<p>1. Actions to Recover Penai/hes—Rev. St. § 4963—Indorsement or Summons—Practice—Act of June 1, 1872—Notice—Amendment —Appearance of Defendant—Watver—Praecipe.</p> <p>Where the pneeipe filed in the clerk’s office directed him to issue summons in an “action for statutory penalty; amount claimed, $2,500,” and tlie defendant served notice of appearance, demanding a copy of the complaint, but “ reserving the right to set aside the summons for irregularity or any proper cause,” and after a complaint was filed, •which showed that the action was brought to recover statutory penalties under U. S. Rev. St. § 4963, relating to copyright, the defendant moved to set aside the summons, on the ground that it was not indorsed with a reference to the statute under which the suit for penalties was brought.</p> <p>Held, that the summons was defective in not containing such an indorsement and must be set aside.</p> <p>That the indorsement constitutes a positive condition to acquiring jurisdiction of the defendant and affects a substantial right.</p> <p>That this requirement, found in the statute law of Now York, act of February 6, 1788, and re-enacted in the New York Revised Statutes, modifying the form of the indorsement and extending the requirement of an indorsement to all suits for penalties or forfeitures, lias been the rule of law also in the United States courts since the tem. porary act of congress passed September 29, 1879, and the permanent law of 1792, adopting for the United States circuit and district courts the “forms of writs” and “modes of process” used in the supreme 'court of the states respectively, in suits at common law.</p> <p>That this was the law independently of the act of congress passed June 1, 1872, relating to the practice, etc., in the UnitedjStates courts, the only effect of which was to modify the practice in respect to the indorsement so far as the state practice had been modified in the reenactment of the act of 1788 in the New York Revised Statutes.</p> <p>Serving a declaration referring to the statute, at the same time a process is served on the defendant, will be a substantial compliance with the statute, although there be no indorsement on the process itself.</p> <p>That the defect in omitting the indorsement is not amendable under either the United States Revised Statutes, $ 954, or the New York Code of Procedure, §§ 721 to 724.</p> <p>That the defect may be waived by the general appearanee of the defendant without objection; but an appearance for the purpose of taking the objection, or a general appearance, followed by the taking of the objection when the defendant is informed of the nature of the suit, will not be a waiver.</p>

<p>Whore the prmcvpe directing the clerk to issue summons in an action for “statutory penalty; amount claimed, $80,000,” is followed by the service of such a summons on the defendant, who was first informed of the nature of the plaintiffs claim in an affidavit accompanying an order extending plaintiff’s time to serve a complaint:</p> <p>Held, that a motion made to set aside the summons must be granted for the same reasons that apply in the case between the same parties heretofore decided, [supra, 31.]</p>

<p>1. Action to Recover Penalties—Rev. St. § 4963—Indorsement— Reference to Statute—Practice.</p> <p>In an action to recover penalties incurred under Rev. St. $ 4963, relating to copyright, the summons was indorsed as follows: “ For $2,500 debt for a penalty imposed by title 60, a. 3, of an act of congress entitled ‘An act to revise the statutes,’ etc., approved June 20, 1874,” and from the complaint served the nature of the action fully appeared.</p> <p>Held, that the ‘indorsement was sufficiently definite and certain to notify the defendant of the statute upon which suit was brought.</p> <p>That; although it misdescribed the date, there was a sufficient reference to the “Act to revise and consolidate the statutes of the United States,” etc., approved June 20, 1874, it appearing that the provisions imposing the penalty sued for were found in title 60, e. 3, of that act, and that it was the only act of congress containing a title 60 and chapter 3.</p> <p>Also held, that the indorsement substantially complied with the rule of practice (Brown v. Pond, supra, 31) and that the defendant was not misled by the error of date.</p>

<p>1. Justice of the Peace—Act of Congress—Indictment—Federad Court.—The wilful and corrupt violation of an act of congress by a justice of the peace of a state, in the exorcise of his office, will render him liable to indictment in federal court.—[Ed.</p>

<p>cited In re Jewett, 1 N. B. R. 491; In re Downing, 3 N. B. R. 748; In re Melick, 4 N. B. R. 97; In re Goedde, 6 N. B. R. 295; In re Knight, 8 N. B. R. 436; In re McEwen, 12 N. B. R. 11; In re Collier, Id. 266.</p> <p>cited Story on Partnership, §§ 376, 380; In re Byrne, 1 N. B. R. 464; In re Hartough, 3 N. B. R. 422; In re Jewett, 1 N. B. R. 491; In re Downing, 3 N. B. R. 748; In re Knight, 8 N. B. R. 436; In re Frear, 1 N. B. R. 660; In re McGuire, 8 Ben. 452; In re Noonan, 10 N. B. R. 300; Barclay v. Phelps, 4 Met. 397; Hudgins v. Lane, 11 N. B. R. 462; In re Plumb, 17 N. B. R. 76; Crompton v. Conklin, 15 N. B. R. 417; Corey v. Perry, 17 N. B. R. 147; In re Lewis, 1 N. B. R. 239; In re Little, Id. 341; In re Winkens, 2 N. B. R. 349; Foster v. Pratt, 3 N. B. R. 238; Bant v. Iron Co. 18 N. B. R. 279; In re Grady, 3 N. B. R. 227; In re Shephard, Id. 172; Forsyth v. Merritt, Id. 48; In re Hopkins, 18 N. B. R. 396; In re Abbe, 2 N. B. R. 75; Tucker v. Oxley, 5 Cr. 34; Merrill v. Neil, 8 How. 415; Howe v. Lawrence, 9 Cush. 553; Summerset, etc., Works v. Minot, 10 Cush. 592; Robb v. Mudge, 14 Gray, 534; Wild v. Dean, 3 Allen. 579; In re Johnson, 2 Lowell, 130; In re Long, 9 N. B. R. 227; In re Morse, 13 N. B. R. 376; In re Berrians, 6 Ben. 297.</p>

<p>1. Date op Filing Petition—Kuv. St. 5024—Secured Debt op Petitioning Creditor—Waiver.</p> <p>A petition for adjudication in bankruptcy is to be deemed as filed ■within tlie meaning of liev. St. § 5024, from the time it is presented to the clerk for the action of the court. The time of filing does not date from the time when the clerk presents it to the judge for his action as to issuing an order to show cause.</p> <p>A secured creditor, who joins in a creditors’ petition, thereby represents himself as an unsecured creditor, and must bo hold to have waived or abandoned his security; and his petition for payment of judgment from tlie proceeds of property sold by the assignee in bankruptcy, on the ground that he had made a levy of his execution prior to the filing of the creditors’ petition, must be denied.</p> <p>It is immaterial tliai the creditor’s signature was not necessary to makeup the number of creditors and amount'required by the statute.</p>

<p>1. Bankruptcy—Implied Trust—Yendee of Cestui Que Trust—Part- ■ nership Guaranty—Individual Liability.—Brown bought a piece of land in Chelsea, Massachusetts, at the request of J. C. Carr, who made the cash payment. Brown gave his notes and a mortgage of the land for the remainder of the purchase money. Mo writing passed between J. 0. Carr and Brown. James M. Carr and his partner, Hill, together with one Cheever and one Dearborn, subsequently entered into an oral agreement with J. C. Carr to take four-fifths of the purchase, and thereafter the interest and taxes were paid in these proportions. The mortgage and notes were, after a time, transferred to a bank, and Hill & Carr, as partners, guarantied their payment. Upon failure of all the parties concerned, the bank proved upon their guaranty against the joint estate of Hill & Carr for the amount of the notes, less the agreed value of the land, and offered proof for the like amount against the separate estate of James M. Carr. The bank subsequently withdrew this claim against the separate estate upon a settlement made with Brown, taking his note for $5,544.26, and giving him an agreement that he should not be called upon to pay the note, but only what he might obtain in dividends from the bankrupt’s estate. Held, under these circumstances, that Brown could not prove for the amount of the note against the bankrupt’s estate.—[Ed.</p>

<p>1. Bankeottoy— Secured Creditor — Property Soud Subject to Mortgage—Rev. St. § 5075.—A. creditor may prove his debt as unsecured, and consent to the discharge of the bankrupt, where the property of the debtor, after being mortgaged for the debt, was subsequently sold under an execution subject to such mortgage.—-[Ed.</p>

<p>1. Fraudulent Conveyance—Subsequent Judgment—Lien.—The statute of Oregon concerning fraudulent conveyances provides, among other things, that every conveyance of any estate in lands “made with intent to hinder, delay, or defraud creditors of their lawful demands, * * * as against the person so hindered, delayed, or defrauded, shall be void.” Held, under this statute, that until the conveyance is set aside a mere equitable right remains in the creditor, which he may or may not enforce, and until he does enforce it the estate is in the grantee, and upon it a judgment creditor acquires no lien by his judgment.—[Ed.</p>

<p>1. Patent Process — Wood Filler. — The patent granted to James Percy, dated September 11, 1866, does not authorize an infringement of the patent granted to Nathaniel Wheeler, dated January 18, 1876, for a “ new and useful process for filling- the grain and finishing the surfaces of woods.”</p> <p>2. Same—Chemical Similarity.—A grant of the exclusive right to use infusorial earth, or silicions marl, as a wood filler, does not also give the right to use quartz, flint, or feldspar, although it be conceded that each of the five articles is, substantially, silica.—[Ed.</p>

<p>1. Paten®—Preliminary Injunction—Alleged Infringement of Patent No. 49,992—Re-Issue No. 6,648—Improvement in Sleeping Oars.—Preliminary injunction refused : (1) Because, upon the affidavits produced, the court was not prepared to determine the validity of complainants’ patent, or the question of the infringement; (2) because the threatened damage was not of such irreparable character as to require an injunction; (3) because the threatened damages were easily ascertainable, and the defendant abundantly able to pay.</p>

<p>1. Death, Action eor —Although an action may not lie at common law to recover damages for the death of a person, it will at the civil law, and therefore semble that it will in admiralty.</p> <p>2. Marine Tort.—A marine tort is one that occurs on any public, navigable water of the United States, whether caused by a wrongful act or omission, and the proper district court, as a court of admiralty, has jurisdiction of a suit to recen or damages therefor.</p> <p>3. Right given by State Statute.—The jurisdiction of the national courts does not always, nor often, depend upon the origin of' the rights of the parties; and where a state statute gives a right, the same may be asserted or enforced in such courts whenever tlic citizenship of the parties or the nature of the subject will permit.</p> <p>4. Same.—The right given by section 367 of the Oregon Civil Code to an administrator, to recover damages on account of the death of his intestate from the party by whoso act or omission sucli death was caused, may be enforced in tile national courts.</p> <p>5. Same.—Suit in Admiralty.—When a passenger on the railway ferryboat, plying accross the Wallamct river between East Portland and Portland, was drowned by reason of the negligence of the owner of the boat or its servants, a marine tort was committed, for which a, suit may be maintained in the district court by the administrator of the deceased to recover the damages given, therefor by section 367, supra.</p>

In Admiralty. Libel for collision. The facts were as follows: On August Í, 1879, at about 10 minutes of 2 o’clock a. m., the steam-ship Belgenland collided with and sank the bark Luna in mid-ocean. The early part of the night had been fine, the moon being full, but about midnight it had clouded over, and, at the time of the collision, there was a drizzling rain but no fog. There was not much sea, but a heavy swell. The wind was between southwest and west-south-west.

<p>Appeal from the decree of district court.</p>

<p>1. Salvage—Damages—Freight Prepaid—Apportionment.</p> <p>Tlio Norwegian bark L. collided with the British ship R. a short distance to the southward oí Nantucket South Shoal light-ship, whereby she lost everything above deck and was thereupon abandoned by her crew. Not long afterwards, in the morning of April 17, 1880, she was sighted by the British steamer T., and the master of the T., after putting a crew aboard the L. and making three hawsers fast to her with difficulty, the sea being rough and the wind high, commenced towing. Two of the hawsers parted at midnight, and the third slipped, thus compelling the T. to lay by the L. till daylight. The hawsers being again made fast after much difficulty, owing to their having fouled the T.’s propeller, the towing was again resumed in the afternoon, and the T., without further accident or delay, reached Sandy llook on the morning of the 19th with the L. in tow. The service rendered, which was attended with difficulty and danger to the crew, occupied the T. 51 hours. The distance towed was 325 miles in 37 hours, the average speed being about 8% knots. Her maximum speed in ballast was 12)£ knots, and her speed at the time of discovering the wreck about 10 knots. -.</p> <p>The T. was a freighting steamer of 1,547 tons, running between London and New York, at the time hound from Cardiff to New York in ballast, with a crew of 36 men, having 18 others (cattlemen) on hoard who had gone out on her last voyage in charge of cargo. The wind during the time of towing and before the discovery was nearly ahead. The L. was 404 tons register, valued at $1,400; her cargo at $22,500, in good order when discovered and so delivered. Her freight was valued at about §1,600, part of which had been prepaid. When discovered she had 30 inches of water in her hold, and was not in a sinking condition.</p> <p>Deld,, that while the claim of the libellants for more than one-half of the value of the property saved is very extravagant, and not in accordance with the present practice of admiralty courts in similar cases, still the case is one of great merit, the bark being derelict, and the principle should be followed, giving a fair and liberal reward for the time and labor, the dangers encountered, and the property saved.</p> <p>That the sum of $7,000 is a proper award; $350 thereof to go to the master, and $3,325 to the owners of the T. The remaining $3,325 to he apportioned among her officers and crew, including the master and those of the cattlemen who took part in the service in proportion to tlieir respective wages, they ranking for this purpose as ordinary seamen.</p> <p>Also held, that ike presumption is that prepaid freight can be recovered back as not earned in case of the loss of the cargo, and therefore should'be considered as part of the property saved to the owners of the ship.</p>

<p>1. Agreement at Sea eor Towage—1Construction—Salvage—Practice—Apportionment—Costs.</p> <p>Where the steamer L., on a voyage from Baltimore to Bremerhaven, with a general cargo and 12 passengers, broke her shaft when about two days out, but was otherwise sound, staunch, and strong, well equipped, manned, and provisioned, and able to proceed under sail with favorable winds, and seven days thereafter, September 13, 1879, being about 125 miles from Sandy Hook, was towed into New York by the freighting steamer G., which being then bound to Baltimore, in ballast, to fulfil a charter requiring hor to be thero September 25t,h, deviated 40 miles in a direction opposite to her course, upon report of hor condition, to find hor, the vessels arriving safely in New York on September 14th, the towing service continuing about 24 hours, and the G. being detained in hor arrival at Baltimore about 48 hours, and the two captains made a written agreement at sea for the payment of £3,-000 for the service, which contained, however, the following clause, “ hut leave it to the court to prove the said agreement,” which clause was inserted because the captain of the L. would not otherwise sign it, after a discussion of the amount to bo paid by the service, which was the only matter of difference between them, the L. and cargo being valued at $250,945, and her freight, if earned, being $13,757.37, and the G. being valued at $90,000:</p> <p>Held, on the evidence, and as matter of construction of the agreement, that the parties clearly intended by the agreement to submit the question as to the amount of the compensation to the judgment or review of.tlie court.</p> <p>That the sum named in the agreement was greatly excessive.</p> <p>That such service, whether salvage or not, is to be compensated not upon the ordinary principles of a quantum meruit, but liberally and with a view to all the circumstances.</p> <p>That in this case the service was a salvage service.</p> <p>That $3,750 was a proper award —apportioned, three-fifths to the vessel, and of the remaining two-fifths, one-lentil to the master and nine-tenths to the crew, including the master, in proportion to their wages.</p> <p>That where the libellants, owners of a vessel, suo in their own behalf, without joining the master and crew, who are entitled to share in the compensation, the proper practice is to determine the entire amount, and apportion it between vessel, master, and crew, and to have the share of the master and crew paid into the registry of the court to await their application therefor.</p> <p>That the claimants, having made no tender before suit, should bo charged with costs.</p>

<p>1. Appeal— Releases» Vessel from Arrest—Practice—Admiralty Rule 11.—On appeal to the circuit court from a decree of the district court dismissing tbe libel, tbe claimant of tbe vessel which was attached on service of the monition is not entitled to have her re-released, or to a bond from the libellants to pay such damages as the claimant may sustain by reason of her detention pending the appeal, in case the libel shall be dismissed in the appellate court. To hold otherwise would be inconsistent with Admiralty Rule 11. Unless the attachment was mala fide, or there was gross negligence' amounting to bad faith, no damages for her detention caused by such arrest can be recoyered.</p> <p>The English cases, if not consistent with this rule, cannot now be sustained.</p> <p>Suits for possession stand on a different ground.</p>

<p>1. Collision — Damage to Cargo — Libel — Averment of—Title— Pleading—Proof.</p> <p>A libel, filed to recover damages for collision to a cargo, should contain averments showing unequivocally, and with reasonable certainty, that the libellants had such a special or general right of properly in the cargo that by its loss or injury they had suffered damage.</p> <p>Where the libel averred that certain sugars were laden on board the British bark H., “to be carried thereon to the port of New York, and thence safely delivered to your libellants, and bills of lading therefor duly signed by the master of said bark, naming the libellants as consignees of said sugars’;” and also averred “that by the collision your libellants have suffered damage in the value of said cargo $25,000,”—</p> <p>An exception having been filed to the libel that it did not aver what, if any, interest the libellants, as consignors, had in the property;</p> <p>Held, that the averments of the libel did not necessarily import that the libellants had any interest in the goods, and that the exception to the libel must be sustained.</p> <p>Distinction between the sufficiency of proof of facts as evidence, and the sufficiency of the averment of facts as matter of pleading, stated.</p>

<p>1. Collision—Ferry-Boat Entering Slip—Lookout—Right of Bailing Vessels—Costs.</p> <p>Where the steam ferry-boat H., while entering her slip at the foot of Barclay street, collided, in the day-time, with the schooner B., her bowsprit entering one of the windows on the starboard side of the H. aft of the paddle-box, and the B. was at the time getting under way, having hoisted her jib and then her foresail, the wind being southerly, and her bow line having been cast off and stern line fast to the rack, though slack, and the B. claimed that at the time the jib-boom entered the window she was lying with her whole starboard side close up to the southerly side of the south rack of the slip, and that the H. stopped after the jib-boom entered the window and before any appreciable damage was done to either vessel, and then started again, dragging the B.’s stem round against the end of the rack and driving her stern against a neighboring pier, thus causing the damage to both vessels; and the H. claimed that after she had entered her slip about three-quarters of her length, the stem line of the B. was carelessly let go, and her jib filling the B. swung round to the northward and thereby forced herself against ihe H., causing the damage; and that these movements of the B. were made without any warning to the H., and too late to enable her to prevent the collision:</p> <p>Held, on the evidence, that the pilot of tlio IT., acting as lookout, might have observed the B.’s movements—the hoisting of the jib and then ihe foresail indicating an intention to come out and perhaps to cross her path—in time to have avoided the collision; and was wholly in fault in not thus obeying the rules of navigation requiring a good lookout to be kept, and that vessels under steam shall keep out of the way of sailing vessels, and that this fault of the B. alone caused the collision.</p> <p>That the B. had a right to assume that this would be done, and was not, therefore, in fault in hoisting sail.</p> <p>But, on the evidence showing that the tide was ebb, running down the river; that the H. was approaching the mouth of the slip from up the river, heading obliquely towards a point some ways inside the southerly rack, and, after striking it, her port bow was canted over against the center pin, when her stern sagged with the tide against the southerly-rack before she stopped; that her length and that of the southerly rack were each 217 feet, and the center pin 100 feet; and the northerly side of the slip was at the time occupied by the other .ferry-boat:</p> <p>Held, that the B.’s claim as to her position cannot he trac; that It was impossible for the starboard quarter of the H. to have projected southerly of the south side of the ferry rack far enough to engage the jib-boom of the schooner, if the latter was in the position she claimed to be in, and that the B.’s jib-boom must have extended crosswise in a north-westerly direction beyond the' inner line of the fprry rack.</p> <p>Held, that the whole damage was done before the headway of the H. was stopped, and the claim that the pilot left his post before his boat brought up against the center pin, and conversed with the B.’s captain, and threatened the damage complained of, is, under the circumstances, highly improbable, and against the weight of evidence.</p> <p>That the B., having thus misstated the main facts of the collision, is entitled to recover upon amending her libel, but is mot entitled to costs, except disbursements.</p>

<p>1. Charter-Party.—Stipulation that the vessel then at Genoa -would proceed without delay to Baltimore to load a cargo of grain, held to he a condition precedent, and that if the vessel did not so proceed the charterer might refuse to load her.</p> <p>2. Same.—Under the circumstances of this case, held, that a detention of the vessel for thirty-one days at Genoa in discharging a cargo of coal, -which she had on hoard at the date of the charter-party, released the charterer from obligation to load the vessel under the charter-party.</p>

In Admiralty. Appeal from a decree of the district court dismissing a libel filed by Huger Bros. & Co. against Beck, owner of the bark Sebastian Bach. The facts were as follows: Libellants chartered the bark for a voyage from Philadelphia to Leghorn and return, with the privilege of reehartering her.

<p>1. Penalty fob Oakbying Excess of Passengers—Rev. St. 4465—Re-mission—Rev. St. 5294—Informers—Practice—Thirty-first Admiralty Rule—U. S. Constitution—Pi e’th Amendment—Permission not in Writing—Rev. St. 4466.</p> <p>The power conferred on the secretary of the treasury by Rev. St. 5 5294, to mitigate or remit penalties incurred under Rev. St. 4465, relating to steam-vessels, for carrying a greater number of passengers than the certificate of inspection permits, is not a power to pardon. It is a condition annexed to the grant oí tho penalty, and the statute must he construed not with reference to the limitations on the pardoning power, but with reference to the principle of public policy which led to the enactment of the statute.</p> <p>Ilis power to remit, or mitigate penalties extends as well to those given to the person suing for the same as to those given to the United States, or partly to tho United States and partly to the informer, and can In all eases he exercised after as well as before suit brought, provided the informer’s claim has not been actually determined by tho court.</p> <p>The tern 11 informe!*,” as used in Rev, St. § 5294, includes the plaintiff in a popular action, or a person suing for a penalty given by statute to any person suing for the same.</p> <p>Where a libel was filed against the steam-boat L. to recover penalties under Bev. St. § 4465, and the claimant,—a corporation,—as owner of the boat, defended and filed an answer, which neither admitted nor denied the allegations of the libel as to the number of passengers taken on board in excess of the number allowed in the certificate of inspection, but left the libellant to prove his allegation in that behalf, giving as a reason for not answering further that its answer might subject the claimant to a forfeiture or penalty:</p> <p>Held, on exception to this part of the answer, that admiralty rule 31 applied to such a case, and protected the defendant from answering further; that that rule is to be interpreted as canying into effect the fifth amendment to the constitution of the United States, which forbids that “ any person shall be compelled in a criminal case to give evidence against himself,” and the corresponding rule of the common law, which forbids the compulsory admission of liability to a pecuniary forfeiture or penalty.</p> <p>That a corporation is protected under the rule equally with a natural person, and that the rule applies as well to admissions that may involve a liability for a penalty in the case in which the answer is made, as to admissions that may be used in another case or prosecution against the party answering.</p> <p>Where the claimant pleaded, in his answer to a libel filed under the Bev. St. { 4465 an oral permission to carry additional passengers on excursions, under Bev. St. § 4466, which requires that the permission should be in writing:</p> <p>Held, that this defence could not avail the claimant, and that part of the answer must be stricken out upon exception as immaterial.</p>

<p>1. Yotbb—Election Distbict—Residence—Navy Yabd—Mabine— Constitution ob New Yobk.—Under the constitution of the state of New York, a prior residence of 80 days in the election district is necessary to entitle a person to vote.</p> <p>Under this provision in the constitution of the state, in order to prove a residence in an election district, something more must he shown than the fact of having lived in marine barracks, located within the limits of such district, in the capacity of a marine.</p> <p>A residence in Brooklyn is not shown by proving the fact of leaving the place of former residence, and coming to Brooklyn for the purpose of enlisting as a marine, with the intent to return in case the application to be enlisted should be refused.</p> <p>The acts of leaving New York and enlisting at the Brooklyn navy yard, under such circumstances, are to be deemed consecutive acts. No residence is acquired while proceeding through the streets of Brooklyn on the way to the navy yard for the purpose of enlisting, with the intent to return to New York if not enlisted.</p> <p>No residence in the election district wherein the marine barracks are located is acquired by the act of enlisting there as a member of the marine corps of tlio United States navy.</p> <p>The fact that the practice of the navy justifies an expectation, on the part of one enlisting as a marine in the Brooklyn navy yard, that the first two years of the term of enlistment would be spout in the Brooklyn navy yard, does not alter the case.</p>

<p>L Application job Receiver op a Canal Company Repuse».—The holder of a bond secured by first mortgage of the tolls and revenue of a canal filed a hill for the appointment of a receiver, alleging that the default in payment of the bond was caused by wasteful and corrupt mismanagement of the corporation. The mortgage provided that the corporation should remain in possession unless it was shown affirmatively that the default resulted from other causes than failure ol' business. Reid, that to induce the court to appoint a receiver to manage a work attended with such risk and difficulty, for an indefinite time, the complainant must show, beyond question, that the default had arisen from mismanagement, or that the safety of the property, if left in the possession of the corporation, was threatened by reason of corporate misconduct; audit must also appear that the appointment oí a receiver would probably result in effectual relief.</p> <p>2. Insolvent Corporation—Bondholders — Receiver—Account op Receipts and Disbursements.—It appearing that the corporation was largely insolvent; that the bonds were in default; that hy the express terms of the mortgage the bondholders had no right to have possession of the canal and collect the tolls and revenue, and had no voice in controlling the expenditures, and no convenient method of scrutinizing them ; and it appearing that with earnest economy there might be an excess of revenue over working expenses sufficient, to pay interest on the bonds: JJtild, that the corporation was to be treated as a trustee holding possession of the canal for the benefit of creditors, and that without appointing a receiver the court would, for the protection of the bondholders, retain the bill in order that at stated intervals the corporation might render accounts of its receipts and disbursements.</p> <p>3. Costs—Form op Decree.</p>

<p>In Equity. Application to Dissolve Injunction.'</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

In rem. Action for forfeiture of distilled spirits. Trial to a jury. The evidence showed the addition of water to the spirits to have a been about a gallon per barrel.

<p>1. IsFOBMETta—Act of June 22, 1874, §§ 4 and 6—Act of June 16,1880.</p> <p>Sums recovered on forfeited bail-bonds aro not “ fines, penalties, or forfeitures,” within section 4 of tlie act of June 22, 1874, and the petitioner is not entitled under its provisions to compensation as an informer.</p> <p>The secretary of the treasury is not authorized to give.rewards to informers under the act of June 16, 1880, which makes provision for the expenses of the government in bringing to trial and conviction persons engaged in counterfeiting and other felonies.</p> <p>The act of June 22, (section 6,) 1874, providing for a certificate by the judge or court to the secretary of the treasury, as to the value of an informer’s services, has no application to the act of June 16, 1880.</p>

<p>1. Shipping Articles—Description .oe Voyage—Rev. St. § 4520.— Shipping articles, signed by a seaman at Philadelphia, described the voyage as “ from that port to Portland, Maine ; thence to some one or more ports east, if required by the master, and back to a western port of discharge. Term not to exceed two months.” Meld, under section 4520 of the Revised Statutes, that they were sufficiently precise and definite to be obligatory upon the parties.</p> <p>2. Coastwise Vessels—Actoe June 9, 1874, c. 260—Act oe June 7,1872, • (Shipping Commissioners’ Act,) Rev. St. Title 53.—The act of June 9, 1874, c. 260, enacted “ that none of the provisions of the act of June 7,1872, (shipping commissioners’ act,) should apply to sail or steam-vessels engaged in the coastwise trade, except the coastwise trade between the Atlantic and Pacific coasts.” Meld, that the effect of this language was to strike from the Revised Statutes, (title 53,) every provision therein which was taken from the act of 1872 relative to such coastwise vessels.</p> <p>3. Coastwise Voyage—Seaman—Shipping Articles.—Meld, therefore, that shipping articles for a coastwise voyage need not be signed by a seaman in the presence of a commissioner, master, consignee, or owner.</p> <p>4. Same—Same—Desertion—Rev. St. Title 53, c. 7.—Meld, further, that chapter 7, of title 53, of the Revised Statutes, concerning “ offences and punishments,” was thereby rendered inapplicable to the crews of coasting vessels, and therefore that a seaman was not liable to an indictment for desertion, although legally shipped for a coastwise voyage, and bound by the articles to complete the voyage.—[Ed.</p>

<p>In Equity. Petition for rehearing.</p>

<p>In Equity. Motion to Dismiss.</p>

<p>1. Collision—Sloop and Brig Lying in Same Pier—Narrow Channel— Befusal of Sloop to Haul Out.—A sloop and brig were lying stern to stern on the north side of the same pier, about 50 feet apart, the sloop being' just inside the pier, with her bow towards the river, while the brig was further up the 'slip, with her starboard side to the pier. The brig drew ab.out 14 feet of water, and there was not sufficient depth of water to haul her out, except along the dock where 1 the sloop was lying. The sloop refused to pull out by the end of thé pier in order to permit the brig to be hauled out by a tug Held, that the tug was liable for all damage caused by an attempt to pull the stern of the bring by the stern of the .sloop as she lay at the pier.</p> <p>The tug could have herself hauled the sloop out of the way first or have sent for a harbor-master to compel the sloop to move away.</p> <p>2. Same—Costs.—Rdd, further, under these circumstances, and where the sloop had only proved an insignificant part of the damages claimed, that the libellants were not entitled to costs.—[Ed,</p>

<p>1. Charter-Party.—The charterers agreed to pay for the vessel a lunrp sum. They procured, to bo put on board, by freighters in Liverpool, a cargo of iron ore, at a rate of freight which, on the amount of ore put on board, would have exceeded the lump sum which they were to pay. The charier stipulated that the master should give the charterers a draft for the excess of freight between the charter and the bill of lading, the draft to be drawn on the ship's consignee at the port of discharge, payable 10 days after ship’s arrival. The charter also contained a stipulation that the charterers were not to be held liable for any loss of freight arising from leakage, breakage, drainage, or any other cause beyond their control. The bill of lading fixed the freight at a certain rate per ton of cargo delimred. On delivery of cargo at Baltimore, there was found to be a considerable loss of weight, and the freight on the actual output was less than the lump sum mentioned in the charier. It appeared that the loss of weight was not attributable t o any fault of the ship or owners, and that some loss of weight on such a cargo was always to be expected.</p> <p>(1) Held, that as the bills of lading called for freight only on the weight delivered, and that as the freight on the actual delivery fell short of the lump sum, there was no excess payable to the charterers.</p> <p>(2) Held, that the stipulation that charterers were not to he liable for any loss of freight arising from causes beyond their control, was not to be so interpreted as to entitle them to demand a fictitious excess of freight which the bill of lading did not entitle the ship to collect.</p> <p>2. Suit Between Foreigners. — The charter-party was executed in Liverpool, between British subjects, and the vessel was a British ship, but the vessel having been attached within the district, and it appearing that all the facts necessary to determine the case were sufficiently proved without taking testimony under a foreign commission, held, that justice would he promoted by the court taking .jurisdiction and disposing of the case.</p>

<p>1. Sauvage—Apportionment—Expenses—Share op Steamer—Engineer—Taking Assignment op Seaman’s Share.</p> <p>On apportionment of a fund awarded by the court as salvage, which is applied for by the master and part of the crew of the steamer rendering the service:</p> <p>IMd, that the owners are entitled to $750, to he re-imbursed out of the fund before H is apportioned, as indemnity for all the expenses and loss by reason of the salvage service.</p> <p>That law expenses, incurred in the trial of the suit in which the amount of salvage was awarded, should not be included, as they were rendered mainly unnecessary by the claimants having tendered, in their answer in that suit, and paid into court, all that was properly due for salvage service.</p> <p>That, following the principle of admiralty courts favoring the claims of a steamer employed in a towage salvage service, a proper apportionment in the present case will he three-fifths of $6,750—the fund remaining after deducting the owners’ expenses of salvage service—to the owners of the steamer, as principal salvor, and two-fifths to the master and crew, as follows: $300 to the master, and the residue among the officers and crew, including the master, in proportion to their respective wages; the shares ol the master and crew to he free of all charges and expenses incurred by the owners.</p> <p>That no sufficient ground is shown for giving the engineer of the steamer an extra share.</p> <p>Also held, that the owners cannot extinguish the claims of seamen for salvage who have not appeared to claim their shares by taking an assignment from them. The amounts actually paid the seamen may be considered as paid on account of their shares, and re-imbursed to the owners,—the residue of the seamen’s shares to remain in the registry to await their application therefor.</p>

<p>1. Practice—Attaching- Goods in Possession of Collector of Customs-Admiralty Jurisdiction—Rey. St. 2981—Sale on Vend. Ex. Subject to Duties.</p> <p>Where a libel in rmn to recover freight was filed against a cargo of salt which the consignee had refused to accept, and the collector of customs had taken it into his custody to secure payment of duties, and while in his possession the monition was served on him by the marshal by exhibiting to him the original process, leaving with him a copy and delivering a notice of attachment to the keeper of the United States public store where part of the' salt was and whither the rest was in course of removal from the vessel, and the marshal made return of the monition that he “ was unable to take said property into his-custody otherwise than as aforesaid for the reason of the custody of said collector,” and an interlocutory decree on default having been entered, and the amount of. the libellant’s claim and lien for freight ascertained, the libellant applied for a final decree and order that a writ vend. ex. issue for the sale of the salt, subject to the payment of the duties and expenses due the United States.</p> <p>Held, ex prn'te, that the court acquired jurisdiction over the property by the service of the process as made, and could order the goods sold, subject to the claims of the United States for duties and expenses.</p>

<p>1. Collision—Final Decbee in Rem—Stipulation fob Value—Decree in Personam Against Claimant not Signing—Eleventh and Fifteenth Admiralty Rules.</p> <p>Where one of two part owners, who appeared as claimants by different proctors, a libel in rem for collision having been filed, executed a stipulation for value, with sureties approved by the libellants, for the release of the vessel, and conditioned to pay the amount that might be awarded on final decree on notice thereof to its proctors, and the other claimant did not unite in the stipulation, and a final decree for damages was thereafter rendered, and the libellants, being unable to collect their decree from the claimant (stipulator) or his sureties, moved that execution issue against the other claimant:</p> <p>Held, that the appearance of the other claimant as part owner of the vessel was not an admission of such ownership at the time of the collision, or of personal responsibility for the negligence of those then in charge of her.</p> <p>That to permit an amendment in effect malting the suit in rem a suit. in personam, would be a clear violation of the fifteenth admiralty rule, forbidding the joinder of a claim in rem with one in personam in the same suit for collision.</p> <p>That the libellants, if they have any claim for damages against the owners personally, must resort to another suit in personam to enforce it; and the libellant’s motion must be denied.</p> <p>Also held, the contents of the stipulation and its approval showing a clear intent by tlie libellants, to treat tlie claimant who signed it as the only one for that purpose, that they cannot now have the same relief against the oilier claimant, under the eleventh admiralty rule, as If he had signed it.</p>

<p>J. Contract, Where Made.—A policy was issued from the office of the plaintiff, in Milwaukee, v/isconsin, upon the life of M. B., in Portland, Oregon, and forwarded to the local agent there for delivery, containing a clause to the effect that the policy was not binding upon the company until countersigned and delivered there and the premium paid accordingly. Held, that the contract was completed in Oregon, that its validity must he determined by the laws of Oregon, and that the plaintiff being then prohibited from doing business in Oregon, the contract was null and void,</p> <p>2. Money Obtained by Fraud.—J. E., the assignee of the aforesaid policy, obtained from the plaintiff thereon the sum of $7,931.97 upon the false and fraudulent representation that the assured was dead. Held, that, nothwithstanding the illegality of the contract of insurance, the plaintiff might maintain a suit against J. E. to obtain the money so fraudulently obtained by him.</p> <p>3. Citizen of Another State—Right to Súb in the National Court. A prohibition by a state that a corporation of another state shall not do business tiierein, does not prevent such corporation from suing in a national court in the former state, because a state cannot prevent a foreign corporation from suing in such tribunal.</p>

On the fourteenth of July, 1870, Dr. Samuel H. Pendleton, of Mount Auburn, Arkansas, took out a policy of insurance, amounting to §10,000, in the Knickerbocker Life Insurance Company, the premium being made payable by draft on Moses Greenwood & Co., cotton factors, New Orleans.

<p>1. Pbaotice—Setting Aside Nonsuit—If no injury results to the defendant the court will set aside a nonsuit where it appears that the suit is meritorious and the plaintiff has been surprised by some defect which he did not discover in time to remedy.</p> <p>2. Same—Case in Judgment—The affidavit of plaintiff’s attorney stated that ho mistook a seal to a deposition for the seal of the treasury department, and supposing ho had competent proof to sustain his case went to trial, and was surprised to discover his mistake. Held, that under the Tennessee practice, the case being obviously meritorious, the nonsuit would be set aside notwithstanding the negligence of the attorney</p>

<p>In Equity.</p> <p>This was a suit to restrain the collection of a tax assessed against the shareholders of a national bank.</p>

<p>1. Jurisdiction op Circuit Court—Suit by Assignee—Act op March 3, 1875—Under the act of March. 3, 1875, no circuit court can assume jurisdiction of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been, made, except in cases of promissory notes negotiable by the law merchant and bills of exchange, even in cases where no plea has been interposed to the jurisdiction, nor objection taken to the jurisdiction either upon the trial or argument.—[Ed.</p>

<p>1. Suit Against Insolvent—Defence by Assignee—Costs.—Pending a suit upon a promissory note by a citizen of New York against a citizen of Massachusetts, the defendant was adjudged an insolvent under the law of the latter state, and his assignees thereupon came in and defended, and subsequently submitted to have the case defaulted. Held, that the action , should be dismissed, as against the assignees, without costs, unless the plaintiff elected to take judgment for the purposes of proof in insolvency, in which case that election was to be expressed in the judgment, and no execution should issue.</p> <p>2. Imprisonment for Debt—Rev. St. §§ 990, 991.—The intent of sections 990 and 991 of the Revised Statutes, relating to imprisoment for debt, is that in civil actions for debt the defendant shall be subject to imprisonment, and be released therefrom, precisely as he would be under the law of the state.</p> <p>8. Same — Gen. St. of Mass. c. 118, § 78 — Rev. St. § 990.—Section 78, c. 118, of the General Statutes of Massachusetts, provides that a debtor who has received his certificate of discharge shall be forever thereafter discharged and exempt from arrest and imprisonment in any suit or upon any proceeding for, or on account of, any debt or demand which might have been proved against his estate. Held, that this express exemption of discharged insolvents from imprisonment upon provable debts was a “ modification * * * upon imprisoment for debt,” within the meaning of section 990 of the Revised Statutes relating to imprisonment for debt.—[Ed.</p>

Action on the case with one count in trover, and one special count to recover the value of certain timber and other chattels alleged to have been obtained by the defendant from the firm of Mowre, Call & Benson, of New York, now bankrupts, by way of illegal preference, the plaintiff being their assignee in bankruptcy.

<p>Covenant. Plea in Abatement.</p>

On Demurrer to Amended Petition. This suit is brought upon coupons attached to certain bonds executed by the board of county commissioners of the county of Cuming on behalf of the West Point precinct, for the purpose, it is alleged, “of aiding the West Point Manufacturing Company in improving the water-power in the Elk-horn river for the purpose of propelling public grist-mills, and other works of internal improvements of a public nature, in said West Point precinct.” The…

Findings of the court, jury trial having been waived in writing.

Jury trial waived. Finding of facts. It is found, from tbe pleadings and tbe testimony produced in support thereof, that tbe county orders in suit were issued by the county commissioners of Slierman county in part payment of tbe contract price for building a court-house for tbe county; that tbe building of a court-house involved tbe extraordinary expenditure of money, and that no vote of the qualified electors of tbe county ever authorized tbe expenditure of money or tbe…

<p>1. Criminal Law—Husband and Wife—Marital Coercion—PleadingCoverture.—If a married woman be described, in an information filed against her alone, as a single woman, or be not described at all as married or single, she may either move to quash the information or plead in abatement for want of a proper addition; but if she fail to do this, and plead not guilty, that is prima facie evidence that slio is not a, feme covert. It is not conclusive, however, and she may, under the general issue, prove the marriage, as well as the other facts essential to show marital coercion.</p> <p>2. Same Subject—Evidence of Marriage—New Trial.—The declarations of a man and woman recognizing each other as man and wife, made at the time of their arrest in company with each other while engaged in the act of making counterfeit coins, the fact that they had been cohabiting together, and were reputed to be married, are competent proof of the marriage; and it was error to exclude it as inadmissible under the general issue, the defendant having failed to plead her coverture in abatement, for which a new trial should be granted.</p> <p>3. Same Subject—Rejection of Proof—Insufficiency—Jury Trial. A new trial will be granted in criminal cases for the improper rejection of competent and material testimony, although in the opinion of the court the evidence rejected was wholly insufficient to establish the issue, because the defendant has a right to the verdict of a jury on all the facts constituting her defence, and the court will not, on a motion for a new trial, undertake to pass on the weight of the proof; and especially is this so where the effect of the ruling rejecting the testimony was to preclude the defendant from offering not only that rejected but any other.</p> <p>4. Same Subject—Simulated Defence.—Where it appears to the court from occurrences at the trial that the defendant probably makes a false pretence of being a married woman and under the coercion of a husband, yet if the court improperly rejected competent and material evidence of the marriage, a new trial will be granted in order that the facts may be passed upon by a jury. The necessity of preserving to the defendant the right of trial by jury is paramount to all other considerations, and precludes the court not only from passing on the sufficiency of the proof rejected, but from taking further proof on the motion for a new trial as to the fact of marriage, so as to determine whether tho defendant had been injured by the error committed.</p> <p>5. Same Subject—Majutai, Coeboton in the Federal Corners.— Qumre: Whether tho common-law fiction that a married woman committing an offence in the presence of her husband presumably acts by his coercion, furnishes any excuse or exemption from the penalties imposed by an act of congress for the commission of statutory crimes, when the statute itself makes no such exception ? The opinion is expressed by the district judge that the doctrine probably has no place in the criminal jurisprudence of the United States, blit he declined to decide it in the absence of his^rother judges.</p>

In Bankruptcy.' Bill filed on the equity side of the circuit court Novemoer 20, 1877. Answer filed April 1, 1878. Answer of the Aid Loan filed the same date. Replication filed May 6, 1878.

<p>1. Bankruptcy—Debts Proved—No Assignee—Petition foe Discharge—IIev. St. § 5108—Waiving Objection—Costs.</p> <p>At the time of filing the petition for discharge, within six months of tlie adjudication, debts liad been proved against the estate. An assignee was elected at a creditors’meeting, on the day tho petition was filed, but did not qualify or receive his assignment until several days afterwards.</p> <p>Held, that the petition must be dismissed, there being no assignee duly qualified to act when the petition was filed, and, without such assignee, it could not be ascertained whether any assets had come into his hands within the moaning of Rev. St. § 5108.</p> <p>The creditor having, in his specifications against the discharge, objected that the petition was prematurely filed, held, that he aid not waive the objection by afterwards taking testimony under the specifications.</p> <p>Also held, that the objection could not be waived, as the court is bound, for the protection of all the creditors, to see that all the statutory conditions of granting the discharge are fulfilled.</p> <p>Where much time and money wore consumed in taking testimony under'the specifications, held, that no costs should be allowed on dismissing the petition, because either party could have sooner Drought the preliminary objection to the attention of the court.</p>

In Equity. Suit for infringement of letters patent No. 102,179, dated April 19, 1870,—re-issue No. 6,076, dated October, 1874,— for new and useful improvement in folding chairs.

<p>1. Bill to Set Aside Settlement—Fraud—Failure oe Consideration— Laches.—In May, 1867, Bradley, Wilson & Co., being largely indebted to Chapman, and having become financially embarrassed, transferred to Walker, agent of Chapman, by way of compromise, and in full settlement of their debt, inter alia, the notes of one Prewitt, an insolvent, secured by a marriage settlement made between Prewitt and wife before marriage. The notes were indorsed “without recourse except as to the consideration,” and Chapman executed a release discharging the firm from all liability upon their indebtedness. This compromise was promoted and advised by Walker, an attorney, and mutual friend of both parties, who had drawn up the marriage settlement, and was himself also secured thereby on a debt due him from Prewitt. At that time a suit was pending to set aside the marriage settlement, as fraudulent and void as against the unsecured creditors of Prewitt, to which suit Bradley, Wilson & Co., Walker, and others were parties defendant.</p> <p>In 1874 a decree was rendered in this suit, sustaining the marriage settlement and dismissing the bill. In December, 1870, another suit was begun for the same purpose in a United States circuit court by Prewitt’s assignee in bankruptcy, and that court, in April, 1878, made a decree declaring the marriage settlement fraudulent and void. Both decrees were appealed, the former to the supreme court of the state, the latter to the supreme court of the United States, and those appeals are both still pending.</p> <p>Held, upon the bill filed by Chapman, October 15, 1879, to set aside the settlement of May, 1867, upon the ground of fraud, mistake, and want of consideration, that the complainant, by the lapse of twelve and a half years, had allowed his claim to become stale, and had waived his right to assert the same.</p> <p>2. Laches.—Held, further, that the laches of the complainant were not excused by the fact that ho claimed not to have discovered the alleged fraud until December, 1870: and by tlie further fact that the question of the validity of Ihe marriage settlement was pending, during the whole period, in both the state and circuit courts.</p> <p>3. Fraud—Insufficient Evidence.—Held, further, that the mere circumstance that the firm, by compromise with their creditors, and by a favorable turn in the value of their property, ultimately succeeded in saving a considerable surplus, would not furnish sufficient ground for setting aside the settlement of May, 1867.</p> <p>4. Fraudulent Concealment—Insufficient Evidence.—Held, further, that the mere fact that Chapman was not aware of the existence of the suit in the state court to set aside the marriage settlement, and that it was not mentioned at the time the compromise was effected, did not show that there was any fraudulent concealment of the existence of such suit.</p> <p>5. Misrepresentation—Marriage Settlement—Allegation of Validity.—Held, further, that the validity of the marriage settlement as against the creditors of Prewitt, not provided for in it, was a question of law resting in opinion, and not a question of fact resting in evidence and representation;.and, therefore, that when it was alleged to be valid, it was so alleged as a matter of belief only, and did not constitute a misrepresentation of fact.</p> <p>6. Marriage Settlement — Guaranty of Validity.—Held, further, that the mere transfer of the Prewitt notes did not constitute a guaranty of the marriage settlement by which they were secured.</p> <p>7. Contract—Failure of Consideration—Rescission.—Held, further, that the litigation in relation to the marriage settlement must be brought to a close, and the decree of nullity completed, before the settlement of May, 1867, could be rescinded upon the ground of failure of consideration.—[Ed.</p>

<p>1. Conditional Limitation—Demand of Possession in Case of Co- ' Tenants.—G. conveyed an undivided interest in certain real property to H., in trust, to secure the payment of a loan from W., with an agreement that G. might remain in possession and take the rents and profits without account, until the note given for the loan was overdue and unpaid, in which case the trustee was to take possession and dispose of the property to satisfy the debt, and G. was to surrender the possession for this purpose on demand. The note became overdue and remained unpaid, and G. conveyed his interest in the premises to his co-tenant, T., and gave him possession, when II. demanded such possession from T., who refused unqualifiedly, and continued to occupy the property, and received the rents and profits thereof until the same was sold at a judicial sale, at the suit of H., for less than two-thirds of the loan and interest. Held :</p> <p>(a) That the interest which G. had in the property, in case the debt was not duly paid, was not an estate upon condition which was not avoided until a demand for possession, but an estate upon a conditional limitation which terminated with the happening of the contingency—the note becoming overdue and remaining unpaid—without any demand.</p> <p>(d) That the demand for possession required by the agreement was, under the circumstances, not a demand for the purpose of avoiding an estate, and therefore insufficient, unless made exactly for that which the trustee was entitled,—nothing more nor less,—but was the equivalent of a mere notice to quit by a landlord upon a tenant at will, and was sufficient, although in form it may have included the exclusive possession of the whole property—the refusal being in effect a denial of the trustee’s right to the possession even as a co-tenant.</p> <p>(e) The trustee being entitled, as co-tenant with T., to the posses, sion of the whole property, and the demand having been made by him for possession in pursuance of the agreement, it is to be construed and understood as a demand for possession as such co-tenant, and therefore it was not larger than the right of the party making it, and is sufficient, even if it was to have the effect of avoiding an estate.</p> <p>2. Construction of Direction to Trustee to Sell.—A conveyance in trust to secure the payment of a loan is made primarily for the benefit of the lender, and should be construed, so far as it is open to construction, so as to effect the object for which it was made; and, therefore, where such a conveyance provided that upon default in the payment of the loan the trustee should take possession and sell the property upon 30 days’ notice, held, that the authority to sell was for the benefit of the lender, and the trustee was not bound to sell until! he thought best for the payment of the loan, or was directed to do so by a court of equity, and, in the meantime, it was his duty to apply the rents and profits upon the debt.</p>

<p>Action to recover possession of rea] property.</p>

<p>1. Conte act — Immoral Consideration — Employer and Employe.— Expenses incurred by an employe in evading the process of a court, at tbe request and for the benefit of Ms employer, cannot be recovered upon a promise of re-imbursement.—[Ed.</p>

<p>1. Sheriff’s Certificate—Bedemption from Mortgage Foreclosure —When Not Conclusive — Statutes of Minnesota.—A sheriff's certificate of redemption from a mortgage foreclosure sale is not so far conclusive under the statutes of Minnesota as to prevent the redemptioner from showing that he paid the full amount of the redemption money within the time fixed by the statute for the making of a valid redemption.—[Ed.</p>

<p>1. Criminal Offence—Preliminary Investigation—Duty of Court. “It is tlie duty of the court, in the control of its proceedings, to see to it 1hat no person shall be subjected to the expense, vexation, and contumely of a trial for a criminal offence unless the charge has been investigated and a reasonable foundation shown for an indictment or information. It is due also to the government to require, before the trial of an accused person, a fair preliminary investigation of the charges against him.”</p> <p>2. Grand Jury— Bvidencf. of Their Proceedings.—Therefore, whenever it becomes necessary to the protection of public or private rights, any person may disclose in evidence what transpired before a grand jury.</p> <p>3. Same—Evidence of Action of Individual Jurors.—It will not, however, subserve any of the purposes of justice to disclose how individual juors voted, or what they said during their investigations; and these facts cannot therefore be shown in evidence.</p> <p>4. Same—Indictment—Incompetent Evidence—Prejudice—Keview of Investigations.—“It is not the province of the court to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged; but in extreme cases, when the court can see that the finding of a grand jury is based upon such utterly insufficient evidence, or such palpably incompetent evidence, as to indicate that the indictment resulted from prejudice, or was found in wilful disregard of the rights of the accused, the court should interfere Mid quash the indictment.”—[Ed.</p>

<p>1. Bankruptcy—Survivors of Firm—Ciiose in Action—Judgment— Lien on Keal Estate—Marshalling Firm Assets—General Assignment in Trust for Creditors—Signature of Firm—Titlf, of Assignee in Bankrupcy—Estoppel—Subrogation of Sureties.</p> <p>Where the five bankrupts and their father constituted a firm, and as such used real estate belonging to him as firm property, and he died, leaving it to them by will as tenants in common, and they alone continued the same business under the name of the old firm, assuming its liabilities, taking all the assets and using the real estate as part thereof, and they brought suit iu the state court on a promissory note reeeived by the old firm on account of goods sold by it, which resulted on appeal in a judgment against them for costs—the judgment, the docket, and their own complaint describing them as “ surviving partners of themselves” and their deceased father—and four days before it was docketed they made an assignment of all their property, including the land, signed by tho three of them only individually and m the firm name by one of them as attorney in fact, there being no other evidence of his authority to sign for 1he other two,—</p> <p>On application of the judgment creditor for payment out of the proceeds of the sale of the land by the assignee:</p> <p>IIdd, that the description of the bankrupts as “ survivors” related not to tho capacity in which they sued, but the mode of deriving their title, and as such was mere surplusage, and the lien of the judgment was the same as it would have been if this description had been omitted.</p> <p>Also held, that the judgment, being a firm obligation, and the real estate firm property, though tho legal title was in the bankrupts individually, neither the copartners nor other copartnership creditors had any superior equities, as against the judgment creditors, which would, as in case of a judgment against one partner on his individual debt, prevent the attaching of the lien.</p> <p>Also held, that under the ISTew York law (St. 1877, c. 466) requiring that a general assignment in trust for creditors should “ be in writing, and duly acknowledged before an officer authorized to take the acknowledgment of deeds,” the general assignment in this case should have been executed and acknowledged by all the members of the firm, the same as is required in a deed of real estate, and that the assignment was void and inoperative to transfer any title or interest.</p> <p>Held, further, that, as the assignee in bankruptcy sold tho land and received its proceeds under his title as assignee in bankruptcy, the assignment having been treated by all parties in interest as inoperative in respect to the land, it will be presumed that he received it as property vested in the bankrupts when the petition in bankruptcy was filed, and, having so taken it, he took it subject to all perfected liens then existing, and is estopped to set up the general assignment to defeat the lien of the judgment creditor.</p> <p>Sureties for judgment debtors, who, after the attaching of a lien in favor of the judgment creditor, have been compelled to pay a part of the judgment debt, are thereupon entitled to be subrogated to the rights of the judgment creditor, in respect to the lien, to the extent to which they have paid the debt, and therefore, in this case, the bankrupts’ sureties who had paid, after judgment against them, part of the judgment against the bankrupts, are entitled to the benefit of the judgment creditor’s lien to the amount paid by them.</p>

<p>In Bankruptcy. Exceptions to Register’s Report.</p>

<p>1. Design Patents.—Patents for designs, as well as for machines, are authorized by act of congress,</p> <p>llev. St. § 4929.</p> <p>2. Same.-—Regulations and provisions applicable to the obtaining or prohibition of patents for inventions or discoveries, not inconsistent with the existing patent act, apply to patents for designs, without modification or variation.</p> <p>16 St. at Largo, 213,</p> <p>Rev. St. § 4933.</p> <p>3. Same—Infringement—Burden oí? Proot?.—Persons seeking redress for tlie infringement of such a patent must, as in the case of a machine patent, allege and prove that they are the original and first, inventors of the improvement, and that the respondents have infringed the same.</p> <p>4. Same—Letters Patent—Prima Facie Presumption.—In such case, however, as in the case of patents for other inventions, the letters patent, when introduced in evidence, afford a prima facie presumption of such allegation, sufficient to entitle the complainants to a decree,.unless they are overcome by competent proof of greater weight.</p> <p>5. Same—Want ov jSTovei.tt—Prooj?.—When the defence of want of novelty is made, it is the duty of the tribunal, whether court or jury, to give it effect; but such proof or testimony should be weighed with care, and never be allowed to prevail where it is unsatisfactory, nor unless its probative force is sufficient to outweigh the prima facia presumption arising from the introduction of the patent.</p> <p>6. Patent — Delay in Applying for.— Where an inventor keeps his invention a secret, mere delay in applying for a patent will not forfeit his right thereto, or bar his subsequent application; and delay of less than two years will not constitute a defence against a patent in any case.</p> <p>7. Same—Evidence—Exhibits.—Exhibits introduced by a party without needful explanation, for the purpose of proving want of novelty, do not deserve and will not receive much consideration.</p> <p>8. Same—Claim.—A claim for sleeve buttons, and other jewelry, composed of the letters of the alphabet, having a certain described ornamentation, is not bad because it embraces more than one letter of the alphabet.</p> <p>9. Same—Infringement—Identity.—Although it is doubtless true, in a general sense, that the test of infringement, in respect to the claims of a design patent, is the same as in respect to a patent for an art, machine, manufacture, or composition of matter, yet it is not essential to the identity of the design that it should be the same to the eye of an expert. If, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same; if the resemblance is such as to deceive such an observer, and sufficient to induce him to purchase one, supposing it to be the other,— the one first patented is infringed by the other.</p> <p>10. Design Patent—Ornamental Jewelry.—A design patent for jewelry, formed of letters of the alphabet of rustic pattern, with ornamentation of leaves placed at intervals upon the lines of each letter, considered and sustained.—[Ed.</p>

<p>• • In-Equity. Exceptions to Answer.</p> <p>• This was a suit "for the infringement of letters patent. The complainants excepted to the answer for impertinence and insufficiency. The matter excepted to as impertinent was as follows:</p> <p>“Further answering, these defendants admit, on information and belief, that a decree was rendered in the suit of the above-named complainants against S. J. Foree et al., at the date as alleged in said bill; but these defendants, on like information and belief, deny that said decree was rendered after full consideration, but, on the contrary, aver, on such information and belief, that the said decree was made, and said finding had, without a full reading of the proofs in. the cause, or a careful consideration of the briefs of the counsel filed therein; the court, as these defendants are advised and believe, without taking time to consider, deciding said cause and granting said decree even before counsel had completed the argument and presentation of the same.”</p>

This was a hill in equity complaining of the infringement of re-issued letters patent No. 5,630, for an improvement in coupling and steering canal-boats. The respondent denied the novelty of the invention, and alleged also that the re-issue was for a different invention from that described in the original invention. The ease was heard on bill, answer, and proofs.

In Admiralty. These were a libel and cross-libel, filed, respectively, by the steamships Scots Greys and Santiago de Cuba, to recover damages for a collision between the two vessels in the Delaware river. The collision occurred at or near a buoy which marks the eastern extremity of Horseshoe shoal.

<p>1. Negligence — Common Carrier— Contract.—A common carrier cannot, by any form of contract, relieve himself from the consequences of his own negligence.</p> <p>2. Same—Cattle—Wind-Sails.—It. is-negligence for the owners of a vessel to permit the same to lie at a pier with the between-decks lull of cattle, during a hot July day, without having any wind-sails up.</p> <p>3. Same—Same—Same.—If it was necessary for tlie vessel to lay at the pier during the day, and if it was impossible to use wind-sails with success while the vessel remained at the pier, then it was the duty of those in charge of the vessel to inform the owner of the cattle of those facts, and to keep the cattle in a proper place upon the pier until the vessel was about to move.—[Ed.</p>

<p>1. Collision in North Fiver at Ntav York — Titg and Tow—Negligence.—A tug was taking a bark from her berth along-side a ferry-slip in the Hudson river, at Now York, and just as a ferry-boat that had come up was backing to avoid a sloop then in her way, the tug commenced to haul on a hawser on the starboard quarter of the bark, thereby moving her astern, the ferry-boat stopped backing, and the two came m collision. The owners of the bark libelled both the ferryboat and the tug for the damages. Held, that the ferry-boat was not in fault by backing when she did, nor for stopping, as that diminished the damage that resulted from the collision; but that the tug was in fault for moving tho bark astern at that time when another course was open for her to take.</p>

<p>In Equity. Motion to Remand.</p>

<p>1. Removal—Bond Approved by State Court.</p> <p>In a case of removal the jurisdiction of the federal court does not depend upon the form or substance of the bond approved by the state court.</p> <p>2. Same—When Requisite Citizenship Must Exist.</p> <p>A cause cannot be removed under the act of 1795, unless the required citizenship existed, not only when the petition for removal was filed, but also at the time when the action was begun in the state court.</p> <p>8. Same—Same.</p> <p>A petition for removal stated that the defendants are residents of another state. Meld, that the cause must be remanded, upon the ground that the petition was in the present tense.—[Ed.</p>

<p>Motion to Bemand.</p>

<p>1. I'kmovai—Exception to Process—Jurisdiction of Person of Defendant.</p> <p>The application of a defendant for the removal of a cause from a state to a federal court, does not constitute a waiver of the use and service of proper process of summons or citation in the cause, where the first action of the defendant, in both the state and federal courts, was to except to the process hy which it was attempted to give those courts jurisdiction of his person.</p> <p>2. Service of Process—Non-Resident Corporation—Personal Judgment.</p> <p>A certified copy of a petition and a writ called a “ citation,” directed “to any person residing in Mobile county, Alabama, competent to make oath of the fact of service hereof,” was attempted to be served, in accordance with a statute of the state of Texas, (Sess, Acts 1875, p. 170,) on a defendant corporation, by delivering the same to the president of such corporation at Mobile county, Alabama, by a person who made oath that ho made such delivery. Held, that such service would not authorize such personal judgment against the nonresident corporation as could be enforced by execution against any property of the defendant found-within the state of Texas.—1_I5d.</p>

<p>Action for False Imprisonment. Demurer to special plea.</p>

<p>Motion for Now Trial.</p>

<p>Application for leave of assessment on shareholders of stock of a mining corporation.</p>

<p>1. Fraudulent Conveyance—Subsequent Levy—Alias Execution—</p> <p>Rev. St. of Maine, e. 76, §§ 17, 18.</p> <p>The Revised Statutes of the state of Maine {a. 76, §§ 17, 18) provide that “ a creditor who has received seizin of a levy not recorded, cannot waive it unless the estate was not the property of the debtor, or not liable to seizure on execution, or cannot be held by the levy, when it may be considered void, and he may resort to any other remedy for the satisfaction of his judgment,” and that, “ when the execution has been recorded, and the estate levied on does not pass by the levy for causes named in the preceding section, the creditor may sue out of the office of the clerk issuing the execution a writ of scire facias, requiring the debtor to show cause why an alias execution should not be issued on the same judgment; and if the debtor, after being duly summoned, does not show sufficient cause, the levy may be set aside, and an alias execution issued for the amount then due on the judgment, unless'during its pendency the debtor tenders in court a deed of release of the land levied on, and makes it appear that the land, at the time of the levy, was, and still is, his property, and pays the expenses of the levy, and the taxable costs of suit, and the judgment shall be satisfied for the amount of the levy.”</p> <p>Held, under these statuory provisions, that an execution debtor could not set up a conveyance, made prior to a levy, as fraudulent and void, in order to prevent such levy from being set aside and an alias execution issued.</p> <p>2. Same—Release Subsequent to Levy.</p> <p>Held, fm'ther, that a subsequent release from the grantee to the grantor of such fraudulent conveyance did not enure to the support of 1 the levy previously made.</p> <p>3. Same—Tendeb of Release of Land Levied On—Pboof of Ownership.</p> <p>Held, further, that the mere tender by the defendant in court of a deed of release of the land levied on, did not amount to proof of the fact “that the land, at the time of the levy, was and still is his property,” within the meaning of the terms of the statute.—[Ed.</p>

These cases raise the question of the validity of conditional sales. In the first case the plaintiffs agreed to sell one Cowger a gin, portable steam-engine, and fixtures for the sum of six hundred and twenty-three dollars and seventy-eight cents, ($623.78,) upon Ms paying the agreed price.

<p>1. Whitten Insurance Contracts—Parol Evidence to Vary.</p> <p>Parol evidence is admissible to ascertain the parties intended to he insured by a written insurance contract, although on the face of the contract there is no ambiguity concerning the same.</p> <p>2. Same—Same—Marine Insurance—Who May Sue—Knowledge op Agent—Estoppel.</p> <p>The Citizens’ Insurance Company, a corporation of Indiana, doing an insurance business at Evansville, in that state, issued an open policy No. 38, to its own agents, Drew & Bennett, at Evansville, to cover all risks indorsed thereon, or certified in insurance slips to be covered thereby. It appointed Hudson & Bro., of Ohio, to solicit and obtain risks for it in the latter state, and, to avoid the laws of that state in relation to foreign insurance companies doing business in the state issued slips to Hudson & Bro. covering such property, under the policy No. 38, issued to its agents at Evansville, as Hudson & Bro. might agree to insure. Hudson & Bro. obtained a risk from the plaintiff, Daniels, of $2,500 upon 2,-500 bushels of salt, then in a barge towed by the steamer Robin, and received the premium, $45, from Daniels therefor. The insurance company, through its agents, Hudson & Bro., issued an insurance slip certifying that Hudson & Bro. were insured in the property therein described under policy No. 38 previously issued to Drew & Bennett. Hudson & Bro. had no interest in the salt. Held, that Daniels could sue the insurance company in his own name upon the insurance contract, and prove by parol that the insurance was taken out for his benefit; that the insurance company was hound to know what its agents, Hudson & Bro., knew, and could not set up their want of interest in the property, or that the contract, as shown by the policy No. 38 and the insurance slip, was not legal and binding upon them.</p> <p>3. Parol Contract of Insurance.</p> <p>And held, further, that even if the contract, as shown by the writings, was void for the reason that Hudson & Bro., while acting for the insurance company, could not insure themselves, yet that Daniels could recover, as the writings and the parol proof showed an agreement to insure Daniels, which was valid as a parol contract of insurance.</p> <p>4. Insurance—Loss Payable to Consignee—Who May Sue.</p> <p>The insurance slip insured Hudson & Bro.; loss, if any, payable to John K. Speed. The salt was c nsigned to Speed, and he was ex. pected to receive and pay drafts on account thereof, and to secure him for such payments the loss was made payable to him. The property having been lost before any such payment was made by Speed, held, that the suit was properly brought by Daniels in his own name.</p>

The policy sued- on was a paid-up endowment policy. It matured on the twenty-eighth of October, 1879, during the life of the assured. Tlie case was submitted to tho court on an agreed statement of facts. From that it appeared that no interest had been paid after the paid-up policy was issued. The other facts appear in the opinion.

<p>In Debt. Motion to set aside judgment.</p>

<p>Motion- for leave to file and serve a bill of exceptions nunc •pro tunc.</p>

The district court had held that the contents of large ornamental casks, forming part of the fixtures of a retail liquor store, and known as “stand casks,” were not liable to forfeiture under section 3289, Bey. St., for want of a stamp.' The case and opinion of the court were fully reported in 8 Fed. Bep. 20. The United States appealed to the circuit court. ■ i

<p>Void Tax Sale—Lies of Vexdbe fob Taxes Paid—Ixtekest.</p>

This is an application by the clerk of the United States courts for this district upon the passage of his semi-annual account current of fees against the government for the allowance of certain charges in election cases, removed into the circuit court from the state court in this district, under the-provision of section 643, U. S. Rev. St., and also for a certain charge of 15 cents for searching for adjudications of bankruptcy in each pending case, made necessary in order to…

<p>In Bankruptcy. '</p> <p>Exceptions to the report and findings of the register.</p>

In Bankruptcy. This is an application by the bankrupt to amend his schedule of creditors by adding the name of James R. Short, an unsecured creditor, to the list. He alleges in his sworn petition filed herewith that the name of said creditor was accidentally and inadvertently omitted from the same.

<p>1. Mechanical Equivalents—Same Results.</p> <p>Where a person procures a patent for the building of a machine, which produces certain results which are novel and useful, by means of certain mechanical contrivances and appliances, any person who attempts to accomplish the same results by mere substitutions, which are equivalents of the means employed by the first patentee, is an . infringer.</p> <p>2. Same—Difference in Form.</p> <p>Any application of known mechanical powers which will produce that result, although different in form from the means employed by the original patentee, is a mechanical substitute and equivalent of the same.</p>

<p>1. Salvage—Yellow Fever—Amount of Award.</p> <p>Tbe crew of the brig Akbar, bound from Havana for Hew York with a cargo of sugar, when five days out, were, with the exception of the mate, who was ailing, and one seaman, taken down with yellow fever. Held, where the brig was boarded by the master and mate of the schooner Munson, then short the chief mate and one seaman, in answer to a signal of distress, and command was assumed by the mate, who brought her safe to Hew York, and where neither the master nor the mate nor the Munson sustained any injury therefrom, that the Akbar and cargo should pay the sum of $3,600 for the services rendered.</p> <p>2. Same—Same—Distribution of Award.</p> <p>Held, further, that of this sum $2,500 should be awarded to the mate; $500 to the owners of the Munson ; $350 to the master; and the remaining $250 should be divided among the crew—certain seamen who went in the boat to the Akbar with the master and mate receiving a double share.</p> <p>3. Same—Chew—Extka Lahor.</p> <p>HeM, further, that the extra lahor cast upon one of the crew of the Akbar by the sickness of the rest did not give him a right to claim salvage.—[Ed.</p>

<p>1. Attachment—Marshal's Return.</p> <p>An attachment, under an ordinary process in personam, will not he vacated upon the ground that the marshal attached the property without having made any proper effort to serve the defendant, where the marshal returned that he made a reasonable effort to serve the defendant before making the attachment.</p> <p>2. Same—False Return.</p> <p>The proper course, under such circumstances, is to allow the return to stand, and leave the marshal to justify it in an action against him for a false return.</p> <p>3. Same—Iron Pier.</p> <p>An iron pier is not attachable under such process as coming within the designation of goods and chattels.—|_Ed.</p>

In Admiralty. On the twenty-fourth day of March, 1880, about 8:15 p. m., a lire was discovered, which had originated in some bales of jute stored on the larboard guards of the Charles P. Chouteau, some 50 feet aft of the boilers. The officers and crew immediately assembled and commenced to put it out, and in about two minutes the fire-engines of the boat were in operation and playing three streams of water on the fire.

<p>1„ Jurisdiction of Federal Court—Equitable Relief—Residents of Same State.</p> <p>In a suit in a state court for an account against a deputy sheriff, who was insolvent and in default, and against his sureties, in which the high sheriff and his sureties and two creditors were parties, a decree was rendered in favor of the creditors, awarding each a sum of money. The non-resident representatives of one of those creditors, who had died, brought a chancery suit in a United States circuit court making the other creditor and all the parties to the suit in the state court parties defendant, all the defendants being residents of the state. In this suit, in the federal court, it was ascertained that the two debts could not be made except against a surety of the high sheriff, and they were made by a sale of the lands of that surety, and the plaintiff's and the other creditor were paid. But, before the cause was ended, one of the sureties of the deputy sheriff became solvent; whereupon the surety of the high sheriff, whose lands had been sold, filed his petition in the federal court praying that this now solvent surety of the deputy sheriff, who was liable before himself for the two debts which had been paid, should be made to re-imburse himself in the amount of the two debts.</p> <p>Held, that the federal court having, as a court of equity, jurisdic. tion over the parties before it, had jurisdiction to grant the prayer of the petition, though both the petitioning and respondent sureties defendant were residents of the same state.</p> <p>2. Decree of State Court—Defence in Federal Court.</p> <p>Held, that the decree of the state court, which had not been appealed from, was conclusive against all who were parties to the suit in that court, and that it was not competent for them to make any defence in the federal court against the two debts decreed which it might originally have been competent for them to make in the state court, hut which they did not make there.</p> <p>8. Jurisdiction of Federal Court—Creditors’ Bill.</p> <p>Held, that it was competent for the non-resident complainants in the federal court to bring in as defendants all the parties to the suit in the state court, including the other creditor, and, by a creditors’ bill, to obtain a decree for the payment of both debts awarded by the decree of the state court.</p>

<p>1. Town-Site Act Construed—Equity—Jurisdiction.</p> <p>Where Berry, who had entered land for a town site under section 2387, Rev. St., convoyed a portion of it to an occupant, and thereafter sued in equity to recover the price and to establish a vendor’s lien therefor as against 1\, T. and D., who had purchased the same land at an execution sale, held, that the plaintiff, Berry, had no vendor’s lion, and that, having failed to establish a right to the equitable relief demanded, ho could have no decree in equity for the purchase money.</p>

<p>1. Agent.</p> <p>An agent to buy cannot be the seller.</p> <p>2. Broker's Contract.</p> <p>An ordinary broker’s contract for the purchase of mining stock, each share of which has an independent value, is not an entire contract.</p> <p>3. Same—Custom.</p> <p>A custom of charging customers an arbitrary sum for telegrams, usually much more than the actual cost, if it can be considered reasonable, ought to be established by very satisfactory proof, and it should appear that both parties knew of it.</p> <p>4. Account Stated—Broker’s Pass-Book,</p> <p>Under the circumstances of this case, the balances struck in a “broker’s pass-book” held accounts stated.</p> <p>5. Same—Interest—Appro potation.</p> <p>Whore a statute does no more than prohibit a recovery of interest in excess of 10 per cent, unless the contract is in writing, but docs not otherwise make the rate of interest unlawful, interest in excess of that rate may be included in an account stated, and money paid on account by the debtor maybe applied to the payment of such interest by the creditor in the absence of any appropriation by the debtor.</p>

<p>Motion for New Trial.</p>

This was a common-law action for the wrongful exclusion of the plaintiff, a colored woman, from the ladies’ car of the defendant’s train, upon her refusal to take a seat in the smoking car. At the time of her exclusion the plaintiff held a first-class ticket over the defendant’s road from Corinth, Mississippi, to Memphis, Tennessee, and her behavior while in the car was lady-like and inoffensive.

<p>1. Declaration— Jurisdiction al Facts— Demurrer .</p> <p>The declaration described the plaintiff as “The Third National Bank of Baltimore.” Held, on demurrer, that this was not equivalent to an averment that the plaintiff was a banking association established in the district of Maryland, nor that it- was established under the law of the United States providing for national banking associations. Held, also, that the declaration was demurrable for want of an averment that the plaintiff was a corporation.</p> <p>2. Attachment under State Law Adopted ivy the United States Courts.</p> <p>The plaintiff having obtained an attachment on original process, as provided by the Maryland stale law, adopted by circuit courts, as authorized by section 915 of the U. S. Revised Statutes, held, that the circuit court must apply the remedy agreeably to the construction put upon the law by the highest appellate court of the state. Held, that, the appellate court having decided that, by the terms of the statute giving the remedy, the attachment was void if the declaration was demurrable, the attachment in this case must be quashed.</p>

<p>1. Assignee—Bankrupt Act—Section 739, Rev. St.</p> <p>While an assignee who has been appointed by a court of bankruptcy of another district may sue in this court to recover assets from a stranger, such action must be by a plenary suit, and there is nothing in the bankrupt act which takes such a suit out of the provisions of section 739 of the Revised Statutes, although the defendant may have property in this district which is claimed to be assets; and the defendant must be an inhabitant of, or be found in, this district at the time of serving the writ, to give this court jurisdiction.</p> <p>2. Section 738, Rev. St., Construed.</p> <p>This section does not refer to a suit like the present, in which the plaintiff seeks, through a receiver, to apply the general property of a defendant to the payment of his debts, but to suits in equity, to enforce some pre-existing lien or claim upon a specific piece of property.</p>

In Bankruptcy. This was a petition by creditors for the appointment of an assignee in place of a deceased assignee of M. B. Mahoney. The ease was referred to a register in bankruptcy, (Sussex D. Davis,) who found the following facts: In June, 1837, the firm of Jackson, Biddle & Co., composed of Jackson, Biddle, and Mahoney, became insolvent and dissolved, Jackson retaining the assets as liquidating partner.

<p>1. Suit on Patent—Abandonment of Defence—Effect of Decree.</p> <p>A decree in favor of the plaintiff, in a suit founded on a patent, which was readied because the defendants abandoned the defence of the suit and allowed the decree to be entered without objection and without a hearing before the court, is not sufficient ground upon which to grant a preliminary injunction in a subsequent suit in another district and against other parties, founded on the same patent. A decree obtained under such circumstances can have no greater effect than to show an acquiescence in the plaintiff’s claim of right by the parties to the former suit.</p>

<p>1. Administration—Jurisdiction to Grant.</p> <p>By the constitution of this state the countv court is a court of record, with general jurisdiction of probate matters, to be regulated by law, (article 7, §§ 1 and 12;) and by statute (Oiv. Code, § 869) it has the exclusive power to grant letters of administration upon the estate of a person who at or immediately before his death was an inhabitant of the county. Held, (1) that a decree of the county court of Multnomah county, granting letters to 1). upon the estate of P., by which it appears to have been adjudged by said court, upon a proper petition, that P. was an inhabitant of the county at or immediately before Ms death, cannot be questioned collaterally on the ground that P. was not in fact such inhabitant; (2) that said court having general jurisdiction of the subject-matter—the granting of administration upon the vacant estate of a deceased person—it had the authority to inquire and determine whether, in that particular case, the deceased was an inhabitant of the county or not, and that its decision upon the question is conclusive, except upon appeal; and (3) that a subsequent decree by the county court of another county, granting letters of administration up on the same estate to H., while the first were in full force and effect, is null and void.</p> <p>2. Inhabitant.</p> <p>The word “ inhabitant,” as used in the section 869 aforesaid, has a narrower and more limited signification than domicile, and implies a personal presence in the county as a dweller therein.</p> <p>3. Negligence.</p> <p>The defendant’s steam-ferry crossed the ’Wallamel river to Portland, on a dark night, with passengers from its railway, and P., in stepping from the boat to the pontoon at the landing, stumbled and fell into the river and was drowned. Held, that the want oí a guard to prevent the passengers from attempting to go ashore before the landing was safely made, and some sufficient signal to warn passengers when it was proper to go ashore, and particularly for the want of sufficient light upon the boat and pontoon to enable passengers to readily observe the same and their relative situation, was negligence,, and caused the death of P.</p> <p>4. Contributory Negligence—Drunkenness.</p> <p>Contributory negligence is matter of defence, and the burden of proof is upon the defendant to establish it; and drunkenness is not per se such negligence, but only more or less evidence of it, according to the eircumstances.</p> <p>5. Common Carrier.</p> <p>A common carrier of passengers for hire is bound to provide for their safety, so far as is practicable, by the exercise of human care and foresight; and, where one is drowned under the circumstances aforesaid, drunkenness, if it existed, was not contributory negligence.</p> <p>6. Damages.</p> <p>The damages recoverable under section 367 of the Oregon Civil Code, by an administrator for the death of his intestate, are general assets of the estate, and are given merely as a pecuniary compensation for the death, and not as a solatium; nor are they to be exemplary or vindictive, but according to the value of the life, having due regard to the capacity and disposition of the deceased to be useful—to labor and to save.</p>

<p>1. Corporation—Adoption of Foreign—Jurisdiction—It is always a question of legislative intent whether the legislature of a state has adopted as its own a corporation of another state, or merely licensed it to do business in the state. If, however, the effect of the legislation he to adopt the corporation, it becomes, for the purposes of jurisdiction, a corporation created by the state adopting it.</p> <p>2. Removal of Causes—Consolidated Corporation—Railroads.—The incorporators of a Kentucky corporation are conclusively presumed to he citizens of that state. Held, therefore, that a suit commenced in the state court, by a citizen of Kentucky against a corporation chartered as a single consolidated company by the several states, including Kentucky, through which it operates a railroad, cannot be removed to the federal court, as a controversy between citizens of ■ different states.</p>

<p>1. ISTattonai, Bank—Jurisdiction op Circuit Court—Citizenship.</p> <p>A national bank is not authorized to sue in any circuit court of the United States without regard to citizenship.</p> <p>2. Same—Jurisdiction—Citizenship.</p> <p>A national bank is to bo regarded, for the purpose of jurisdiction, as a citizen of the state in which it is established or located.—[Ed.</p>

Mandamus. Plaintiff recovered judgment against said county on certain, bonds issued by the county to the Missouri & Mississippi Railroad Company, in the year 1868, under the thirteenth section of an act of the general assembly of the state of Missouri, entitled “An act to incorporate the Missouri & Mississippi Railroad Company,” approved February 20,1865.

<p>1. Municipal Bonds—Act Authohizing Issue—Subsequent Incob.pobation op Municipality—Pbivate and Local Laws op Wisconsin poe 1867, o. 93, § 1.</p> <p>An act of the legislature of the state of Wisconsin authorized any-incorporated city or village, in any county through any portion of which, any part of the Green Bay & Lake Pepin Railway should run, to issue and deliver bonds in accordance with the terms of the act. Held, that such act was applicable to any city or village which had been subsequently incorporated, and which had issued its bonds in accordance with the terms of the statute.</p> <p>2. Same—Chabteb—Repeal.</p> <p>Held, further, that the legislative intent must he'clearly manifested, by the terms of its charter, in order to preclude any city or village from the operation of such act.</p> <p>3. Same—Constitutional Rbstbiction op Poweb op MinsaciPALiTY— Constitution op Wisconsin, abt. 11, § 3.</p> <p>Such act further provided that any such city or village might issue bonds to said railway company “ for such sum or sums, at such rate of interest, transferable by general or special indorsement, or by delivery,'and in such manner as might be agreed upon by and between the directors of said railway company and the proper officers of such * * * incorporated city or village.” Held, that this provision satisfied the requirement of the constitution of the state in relation to the restriction of the power of municipal corporations to contract debts and loan their credit.—[Ed.</p>

<p>Trial to a jury, before Hon. John Baxter, circuit judge, and Hon. Martin Welker, district judge.</p>

<p>1. Jurisdiction of Federal Courts—Reports of Referees.</p> <p>The federal courts have power to try questions submitted by and render judgments upon the reports of referees.</p> <p>2. Promissory Note—Place of Contract—Usury.</p> <p>A promissory note made and payable in New York, but delivered and discounted in Massachusetts, is subject to the law of the latter state in relation to usury.</p> <p>8. Costs—Statute of Massachusetts—Foreign Forum.</p> <p>The provision of the statute of Massachusetts, allowing the defendant costs in an action upon a usurious contract, relates to the forum, and cannot be applied to a Massachusetts contract in another forum.</p> <p>4. Transfer of Stock—Conversion.</p> <p>The transfer of stock, held as collateral security, in order to avoid liability as a stockholder, docs not constitute a conversion where the original holder took the certificates under his right, with a power of attorney, to transfer such stock at will.</p> <p>6. Same—Discharge of Surety.</p> <p>Such transfer would not discharge a surety, in whole or in part, whore it was not shown that there was in reality any liability whatever resting upon such stockholder.—[Ed.</p>

<p>1. Grantor and Grantee — Prior Fraudulent Conveyance—Purchaser at Sheriff's Sale—Subsequent Conveyance to Grantor.</p> <p>Hymer fraudulently conveyed the land in controversy to liis minor children, by deed of warranty, in September, 1861. The same land was subsequently attached by the creditors of Hymer, and sold at sheriff’s sale to Rogers for the sum of $451. Hymer subsequently conveyed the same land to Arnold by deed of warranty, dated November 30, 1863, in consideration of $1,000. Afterwards, May 7,1864, Hymer procured a deed from Rogers for the sum of $4S1, the purchase money having been advanced by Arnold. Held, there being presumptive evidence that part of the $1,000 received from Arnold had been invested for the benefit of the wife and children of Hymer, that the deed from Rogers to Hymer enured to the benefit of Arnold. —[Ed.</p>

<p>, 1. Foreign Insurance Companies—Laws Governing Policies.</p> <p>Policies of insurance issued by foreign companies doing business in Massachusetts, under the laws thereof, to citizens of Massachusetts, are governed by the laws of the states where the companies were incorporated, and where the contracts were to be performed.</p> <p>■ 2. Same—Non-Forfeiture Law—Massachusetts St. 1861, c. 186.</p> <p>The non-forfeiture law of the state of Massachusetts (St. 1861, e. 186) is not made applicable to the policies of foreign insurance companies by the act of 1872, c. 325.—[Ed.</p>

<p>■ 1. Illegal Contract—Liability to Account for Proceeds.</p> <p>A joint owner is liable to account to Ms associates for money paid under an illegal but completed contract.</p> <p>■ 2. Same—Action at Law.</p> <p>When, in a single adventure, wMch is closed, a person, jointly interested therein with others, appropriates the prooceeds to Ms own use, he becomes a debtor to his associates, and an action at law gives adequate relief.—[Ed.</p>

<p>1. Patents—Infringement—Provisional Injunction.</p> <p>Where complainant has for a number of years been iu the extensive and undisputed use o£ patents, and during all that period there has been a public acquiescence in the monopoly, a provisional injunction to restrain infringement will be granted, unless some special facts appear to take it out of the general rule.</p> <p>2. Same—Separate Patents for Machine, Process and Product—Expiration of One, Others Still Existing.</p> <p>Where, under the acts of July 4, 1836, and March 3, 1839, a patent was taken out for a machine for the manufacture of a specific article, and subsequently, and within two years, pat ents were applied for and granted for the process of manufacturing such article, and also for the product of such process as a new article of manufacture, held, that the patents for the process and product did not terminate with the expiration of.the patent for the mechanism by which such process was carried on and such products produced, although such mechanism might be of no value except to carry on such patent process and manufacture such patent product.</p> <p>3. Same—Patents fob Machine and Product—Patents Hos. 20,775, 29,561, 29,562, and Re-Issde 9,043.</p> <p>July 6,1858, patent Ho. 20,775 was granted for “ improvement in sewing machines ” for sewing hoot and shoe soles. August 14,1860, two separate patents were granted to the same patentee^—Ho. 29,561 for improvement in the construction of boots and shoes, and Ho. 29,562 for improvement in boots and shoes; the first of the two last named being for the process by which the machine covered by patent Ho. 20,775 manufactured the shoes, and the second for the i;esult or product of such process. Before their expiration they were all extended,—the machine patent for seven years from July 6,1872, and the process and product patents for seven years from August 14, 1874. The process patent extended (Ho. 29,561) was afterwards surrendered, and re-issue Ho. 9,043 issued for the unexpired term. Held, that the right of the public to use the machine patent upon the expiration of the extended letters thereon did not carry with it a right to use it for the manufacture of shoes covered by the process or product patents during their unexpired term, though nothing could be manufactured with spch machine except the patented product.</p> <p>4. Same—Embracing Improvements in One or More Patents—Discretion of Commissioner.</p> <p>Whether a given invention or improvement shall be embraced in one, two, or more separate letters patent is in the discretion of the commissioner of patents, and courts have no absolute control over such .discretion.</p>

<p>1. Patent—Inehingement—Soldering J®on.</p> <p>Held, that the “ Barker” patent No. 103,125, re-issue No. 8,783, and the “Bostwiek” patent No. 104,412, re-issue No. 8,466, for improvements in soldering irons, are not infringed by the device known as the “Tillery Soldering Tool,” as exhibited m this ease.</p>

<p>1. Limited Liability Act—Rev. St. § 4282 et seq.—Vessels Navigating Fast River and Long Island Sound—Admiralty Jurisdiction—Maritime Law.</p> <p>Tim act limiting the liability of ship-owners, (St. 1851, e. 43; Rev. St. § 4282 et seq.,) so far as it limits the liability for damages caused by the negligence of the master and crew, without the knowledge or privity of the owners, to the value of the ship and freight, upon a surrender of the same, applies to vessels navigating the waters of the Fast river and Long Island sound between ports of the state of New York, and not engaged in foreign or interstate commerce.</p> <p>This limitation of liability is a rule of the general maritime law, and since the passage of the act of congress it has been a part of the maritime law of the United States, or rule of the sea, to be administered by the admiralty courts of the United States in all cases of vessels navigating the waters of the United States other than those excepted by the statute, viz., “ any canal-boat, barge, or lighter, or any vessel of any description whatsoever used in rivers or inland navigation. ”</p> <p>Vessels navigating the East river and Long Island sound are not within the exception.</p> <p>This statute, though as respects vessels engaged in foreign and interstate commerce it can he justified under the power of congress to regulate commerce with foreign nations and among the states, is not to he construed as limited in its operation to such vessels, but applies also to vessels engaged exclusively in the commerce of a single state, navigating the navigable waters not excepted, and so applied it is not unconstitutional. It is a valid exercise of the powers of legislation given to congress in those clauses of the constitution which provide that “the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction,” and that congress “shall have power to make all laws which shall be necessary and proper for carrying into execution # * * all powers vested by this constitution in the government of the United States, or in any department or any officer thereof.”</p> <p>Congress has power to make the admiralty and maritime jurisdiction of the courts of the United States exclusive of all state jurisdiction, and may, in the exercise of its power to erect courts inferior to the supreme court, and to prescribe their powers and jurisdiction, give or withhold particular remedies in a particular class of admiralty and maritime causes. It may by law provide that all claims of a maritime character, growing out of a single disaster, be presented and tried in one proceeding, and may restrict the remedy in such cases to a proceeding in rem against the vessel and freight, withholding all remedy in personam, or limiting the latter to the value of the vessel and freight ;o and such is the effect of this statute.</p> <p>The maritime law of the United States consists of those rules and principles of the general maritime law which have been adopted and acted on in the United States. It is of uniform operation throughout the country, and superseded the maritime law in force in the several states at the adoption of the constitution. It is subject to change by the adoption of rules of the general maritime law of the world not before adopted as part of the maritime law of the United States.</p> <p>The courts can only declare what the maritime law of the United States is.</p> <p>Whether, independently of its power to regulate commerce, congress has a general power under the constitution to change the maritime law of the United States by adopting, as part of that law, a rule or principle of the general maritime law not before adopted, quaere.</p> <p>Even if congress has not this power, by direct legislation, to enact this statute otherwise than as a regulation of commerce, the adoption of this rule of limitation of liability, so far as the power of congress extends as to all sea-going vessels engaged in interstate and foreign commerce upon the exterior waters of the United States, is a controlling circumstance showing that this general rule of maritime law has been adopted by the United Slates, and therefore since the passage of the act this rule of limited liability, though not before adopted, has been part of the maritime law of the United States.</p> <p>Claims for personal injury caused by lire and explosion on board a steam-boat prosecuting her voyage on the East river, are claims, the liability for which is limited by the statute.</p> <p>Claims »for damages given by a state statute to the administrators or relatives of a person killed by such fire or explosion, are cases of marine tori, cognizable in the courts of admiralty, and are among the claims the liability for which is limited by the statute.</p> <p>If a petition by a ship-owner, under the statute, does not state a case within the admiralty and maritime jurisdiction of the United States, and nevertheless a monition issues, and on the return of the monition the potioner amends his petition by adding allegations bringing the case within the jurisdiction, it seems that the court should not proceed to a decree, to be operative upon parties who have not appeared, without issuing an alias monition upon the amended petition.</p> <p>Whether a transfer of the ship and freight made to a trustee under the order of the court, where the res was sold by the trustee prior to such amendment of the petition, would avail the petitioner as a surrender under the statute, quaere.</p> <p>Statute 1871, c. 100, $ 43, (Rev. St. 4493,) which provides that the owner shall bo liable for injuries to the person and baggage for full damages in case the explosion, fire, etc., happens through any neglect or failure to comply with the provisions of law for the regulation of steam-vessels, or through known defects of the steaming apparatus or of the hull, does not take claims for personal injury or loss of baggage out of the limited liability statute. Rev. St. 4282 et seq. It merely imposes a further condition, of the limitation of liability in those classes of cases, that the injury did not happen by reason of any of the causes mentioned in section 4493.</p> <p>The provision of Rev. St., § 4285, that “ after such transfer of the ship and freight all claims and proceedings against the owner shall cease,” makes the jurisdiction of the district court after such transfer, and pending the proceeding, absolutely exclusive, and gives power to the district court to restrain by order the prosecution of any suit growing out of the disaster theretofore commenced and then pending in a state court. The exercise of this power is not probited by Rev. Bt. § 720, which provides that “ the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to any proceedings in bankruptcy.</p>

<p>Tn Admiralty. Damage to Cargo.</p>

<p>1. Common Carrier—Peril of the Seas—Damage by Swell of Passing Boats—Negligence.</p> <p>Where a scow, built and used by a party for his own transportation business, was at one time hired out by him to carry a load of chalk for another party up the East river at New York, and in passing up in tow of a tug, on a hawser, was met and passed on each side by two steam-boats, that raised such a swell as to make the scow roll her load of chalk overboard, and an action was brought to recover damages, held, that the owner of the scow was not a common carrier, and no negligence on his part or that of his agents being shown, was not liable for the loss of the chalk, although there was no exemption of “peril of the seas ” in the contract made by him; he was only a bailee for hire.</p> <p>A ship-owner who carries goods on his ship for hire will not, by reason of his acceptance of the goods, be held liable as an insurer, in the absence of any stipulation to the contrary, against everything but the act of God and the public enemy, as is a common carrier.</p>

<p>1. Collision—Stopping—Notice.</p> <p>Stopping by a tow is not necessarily equivalent to notice to an approaching tow to come on.</p> <p>2. Same—Narrow Channel—Tow—Long Hawser.</p> <p>It is not negligence in a tug having in tow, in a narrow channel, a lighter with a bowsprit some 14 feet long, to use a length of hawser which brought such bowsprit within 40 feet of the stem of the tug.</p> <p>3. Same—Newtown Creek.</p> <p>Easy and cautious movements are the rule in the navigation of Newtown creek, and those who adopt a different method do so at their own risk.—[Ed.</p>

In Equity. Motion for Injunction pendente lite. The constitution of the state of Georgia, paragraph 22, § T, art. 3, roads as follows: “The general assembly shall have power to make all laws and ordinances consistent with this constitution, and not repugnant to the constitution of the United States, which they shall deem necessary and proper to the welfare of the state.” Paragraph 1, § 2, art. 4, declares that “the power and authority of regulating railroad freights and…

<p>In Equity. Demurrer.</p>

<p>1. Town Bonus—Board of Supervisors--Presumption as to Issue.</p> <p>A statute provided that certain town bonds wore to be signed by the chairman of the board of supervisors, and countersigned by the town clerk. Held, where such bonds appeared to have been issued in strict conformity with the requirements of the statute, that the presumption would be that they were issued under the authority of the board of supervisors.</p> <p>2. Same—Negotiable Instruments.</p> <p>Certain instruments, not under seal, called “ town of Rochester bonds,” declared that the town had caused these presents to be signed by the chairman, of the hoard of supervisors, and countersigned, as required, by the town clerk thereof: and the form of the obligation was that the town of Rochester is justly indebted and promises to pay to the order of the Pox River Valley Railroad Company 1lie sum of $500, with interest as set forth in the coupons. Held, under the decisions of the supreme court of the United States, that these instruments were essentially promissory notes of the town of Rochester, and negotiable as such like ordinary promissory notes under the law merchant.</p> <p>S. Same—'Validity— Change of Judicial Ruling.</p> <p>Meld, further, that if such bonds constituted a valid contract when made, as the law and the constitution were then expounded by the supreme court of the state, that it did not cease to be such because the highest court of the state had afterwards changed its ruling.</p> <p>QelpJce v. City of Dubuque, 1 Wall. 175.</p> <p>4. Wisconsin—Statute of Limitations.—[Ed.</p>

<p>Sur Motion of ex parte Defendant for a New Trial.</p>

<p>Trial without the Intervention of a Jury.</p>

<p>1. Conspiracy.</p> <p>A conspiracy is a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose.</p> <p>2. Same—Evidence.</p> <p>The evidence in proof of a conspiracy will generally, from the nature of the case, be circumstantial, though the common design is the essence of the charge.</p> <p>3. Same—Same.</p> <p>It is not necessary to prove that the defendants came together and actually agreed, in terms, to have that design and to pursue it by common means. If it be proved that the defendants pursued by their acts the same objects, often by the same means, one performing one part and another another part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object.</p> <p>4. Marshal—Obstruction and Resistance in Executing a Writ. —[Ed.</p>

In Bankruptcy. It appeared by the agreed statement of facts and the register’s certificate that the creditors objected to the discharge of the bankrupt because his assets had neither paid nor were equal to SO per centum of the debts upon which he was liable as principal debtor.

<p>I. Bankruptcy—Discharge—Assent op Creditors—Non-Assenting ‘Creditors Mat Object.</p> <p>1ST on-assenting creditors, who have proved their debts, may question the validity of any assent given in favor of the discharge, and object to granting a certifícale, by showing that, the proper number and amount of creditors have not assented.</p> <p>% Same Subject—Partnership—Surviving Partner—Release of Debt—Creditors as Functionaries.</p> <p>A surviving partner may assent to tiie bankrupt’s discharge in the name of the firm, and it is not necessary that the bankrupt should procure the assent of the administrator of the deceased partner or the creditors of the firm. His power to do this may be derived from general principles governing his relation to those interested in the debt proved by him, or the firm, and also as an implied grant of powei from tlio bankruptcy statute itself. Creditors are, under the bankrupt law, in some sense, functionaries performing gMam'-ministerial or quad- judicial duties.</p>

<p>In Bankruptcy.</p>

In Bankruptcy. The bankrupt, being a small retail grocery and liquor merchant, kept no books except a small pocket memorandum-book, in which each day he entered his cash received and cash paid out, which was lost and never produced; a blotter, in which daily sales on credit were entered; and a kind of ledger, in which accounts for goods sold on credit were kept against the purchasers.

<p>1. Copyright—State Reporter.</p> <p>In the absence of any express legislation by tlie state indicating a contrary principle, a state reporter is entitled to a copyright in his volumes of reports for what is the work of his own mind and hand, notwithstanding it may be true that he can have no copyright in the opinions of the court.</p> <p>2. 'Same—Construction of Statutes.</p> <p>The various provisions of law in relation to copyright should have a liberal construction, in order to give effect to what may be considered the inherent right of the author to his own work.</p> <p>3. Bankruptcy—Rights of Bankrupt.</p> <p>A bankrupt has a right to pursue all proper legal measures for the the protection of his interests until an assignee of his estate has been appointed.—[Ed.</p>

<p>1. United States Courts—Practice—Law and Equity.</p> <p>In the United States courts, legal and equitable claims cannot he joined in the same suit.</p> <p>2. Pleading and Practice—General Issue—Evidence—Corporate Existence and Right to Sue.</p> <p>A plea in the nature of the general issue waives all proof of the due organization of the corporation and of its right to sue.</p> <p>3. Corporations—Authority to Sue.</p> <p>In all cases which relate to its business, a corporation has a right to sue without a resolution of the board of directors authorizing suit.</p> <p>4. Corporate Power to Declare Stock Fully Paid Up—Estoppel.</p> <p>A corporation, free from indebtedness, if acting in good faith, has the power, as between itself and its stockholders, (all the stockholders uniting therein,) to agree, in consideration of the surrender by the stockholders to it of accumulated profits and of the increased value of its property, to treat stock, upon which only 50 per cent, has been paid, as fully paid-up stock; and the corporation cannot afterwards, in its own behalf, or in behalf of subsequent creditors with notice, disturb such arrangement.</p> <p>5. Corporations—Notice of Stockholders’ Meeting—Waiver—Estoppel.</p> <p>The notice of a meeting of stockholders prescribed by the charter or by-laws of a corporation may he waived by the stockholders; and, if each stockholder attends and participates in the action of the meeting, they are estopped from denying its legality for want of notice.</p> <p>o. Partnerships—Power of One Partner—Stock in Corporations.</p> <p>One partner of a firm, which owns stock in a corporation as a part of its assets acquired in its regular business, has the power to represent that stock in all matters which relate to it in the usual management of such firm’s business, and his action hinds the firm; thus lie may receive and waive notice of stockholders’ meetings, vote at such meetings, etc.</p> <p>7. Same—Death of Partner—Power of Surviving Partner—Stock tn Corporations.</p> <p>Upon the death of one member of a firm, the surviving partner lias a right to the possession of its personal property, and to control and wind up its affairs, and to control and represent stock in a corporation which constituted part of the firm’s assets, until its affairs are finally closed up.</p> <p>8. Saids—Admission of New Partner.</p> <p>And the admission of a new partner would not alter the rights and ' powers of the surviving partner, if such stock remained an asset of the old firm; and if it became an asset of the new firm, the principles of the sixth syllabus would apply to it.</p> <p>9. Corporations Declaring Stock Fully Paid Up—Subsequent Creditors—Partnerships.</p> <p>Creditors whose claims arose subsequent to April 14, 1874, and who were also stockholders and participated in the action of the stockholders’ meeting of that date, are estopped to question the validity of such-action; and the fact that the debts are owing'to firms does not alter the rule: the stock also being held by the firm, the action and knowledge of one partner binding all.</p> <p>10. Same—Same—Existing Creditors—Remedy.</p> <p>But as to debts existing at the time of that meeting and arrangement, such arrangement would be void; and hold, (for the purposes of this case,) would not bar an action at law by the corporation against the stockholders to recover the unpaid- 50 per cent, of their subscriptions; hut qume as to the proper remedy.</p> <p>11. Practice—Collateral Issues.</p> <p>In a proceeding to collect unpaid stock subscriptions, the court will not pass upon the validity of a disputed claim against the corporation.</p> <p>12. Debtor and Creditor—Application of Payments—Rule Stated.</p> <p>IS.' Same—Same—Instance.</p> <p>If a person who is the financial manager of a corporation, and also a member of a firm to which it is indebted, and which continues to make advances to the corporation, receives the proceeds of the sales of the corporation and carries such receipts and advances into a gen- ■ eral running account, such receipts not being applied in payment of any particular item of such account, the law will apply such receipts in satisfaction of the first item of the account, and so on to the end.</p>

<p>1. Promissory Notes—Payment—Renewals.</p> <p>Where A. and B. executed a note on January 10,1873, at four months, for $5,000, which was discounted by the Covington' National Bank, and at its maturity A., the principal, gave his check upon that bank for the amount of the note and took it up, and A. and B. gave a new note, which was discounted by the bank, and the proceeds placed to A.’s credit to pay the maturing note, and this transaction was repeated at intervals of four months until February 23, 1878, when the note in suit was executed, held, that the debt created in January, 1873, had not been paid, and that these new notes were merely renewals.</p> <p>2. Suit to Set Aside Conveyances—Kentucky—Wife’s Money, Slaves, and Land — Funds Furnished to Husband—Valuable Consideration—Kentucky Statute a&adstst Fraudulent Conveyances—Construction—Prior and Subsequent Creditors.</p> <p>In á suit by an assignee in bankruptcy of H. to set aside two conveyances made to H. ’s wife in 1874, it appeared that in 1850, when they were married, she was possessed of a large property, consisting of money, slaves, and land, inherited from her father. There was no antenuptial agreement. Before II. received any part of her estate, he promised to invest an amount equal to what he received in real estate for her use, and place the title in her name, and this promise was frequently repeated and recognized up to the time the conveyances were made. At different times before 1856 the husband received various sums of money from his wife’s guardian and her father’s executor, and from the sale of her slaves and land. At the time of his marriage he was in a good business, and continued to improve his fortune until after the conveyances were made. In 1874 he sold out his interest in business to his partners, and received as part of the consideration the two lots in controversy, which he had conveyed directly to his wife. He was not then embarrassed, and did not become so until subsequently; and there was no evidence of actual fraud. At the time said conveyances were made, H. was surety on a note for $5,000 to the Covington Rational Bank. The Kentucky statute against fraudulent conveyances (Gen. St. a. 44, § 2, p. 488) provides that every “ conveyance * * * made by a debtor, of * * * his estate, without valuable consideration therefor, shall be void as to all of his then-existing liabilities, but shall not, on that account alone, be void as to others creditors whoso debts or demands are thereafter contracted; * * * and though it be adjudged to be void as to a prior creditor, it shall not, therefore, be deemed to be void as to such subsequent creditors.”</p> <p>3. Jurisdiction of Court of Equity.</p> <p>Held, (1) that a court of equity has jurisdiction of such a suit.</p> <p>4. Husband’s .Marital Rights—Wife’s Money—Valuable Consideration.</p> <p>(2) As the husband was entitled by virtue of his marriage to his wife’s personal estate, that her consent to collect her money was not a valuable consideration for such conveyance.</p> <p>5. Wife’s Real Estate and Slaves—Valuable Consideration.</p> <p>(3) As by the Kentucky statutes the wife’s slaves, like her land, could be disposed of only by her uniting in the conveyance, that, to the extent of the money which he received from the sale of her land and slaves, the conveyances were supported by a valuable consideration.</p> <p>6 Valuable Consideration—One Deed Sustained.</p> <p>(4) As the proceeds received from the land and slaves, with interest, amounted to about the sum recited in each deed as its consideration, and from the acknowledgment of one it appeared to have been executed first, that such conveyance was supported by a valuable consideration, and would not be set aside.</p> <p>Pryor, Assignee, v. Smith, 4 Bush, 379; Darnaby v. Darnaby, 14 Bush, 485, distinguished.</p> <p>7. Second Conveyance—Without Valuable Consideration, Void as to Existing Debts.</p> <p>(5) That the second conveyance was without valuable consideration, and that under the Kentucky statute against fraudulent conveyances it was void as to the then, existing debt to the Covington National Bank, and would be set aside and the lot sold,</p> <p>8. Distribution—Subsequent Creditors not Entitled to Share in.</p> <p>(6) That subsequent creditors are not entitled to share in the p.roceeds of such sale, but they will be distributed to pay costs, the bank’s claim without interest, and the balance, if any, to the wife.</p> <p>Kehr v. Smith, 20 "Wall. 36, and statute 13 Elizabeth, c. 5, distinguished.</p>

<p>1. Change of Citizenship.</p> <p>“To effect a change of citzenship from one state to another, there must be an actual removal, an actual change of domicile, with a bona fide intention of abandoning the former place of residence and establishing a new one, and the acts of the party must correspond with such purpose.”</p> <p>2. Same—Intention—Evidence.</p> <p>In such case the party may testify to his intention where there has been an actual removal.</p> <p>3. Same—Temporary Return.</p> <p>In such case a temporary return to the former place of residence, with views and for objects merely temporary, does not revive the former citizenship.</p> <p>4. Same—Same.</p> <p>Held, upon tlie evidence in this case, (1) that such a change of domicile was made, and such a new residence acquired, as established citizenship in another state ; and that (2) a temporary return to the former place of residence did not revive such former citizenship.— [Ed.</p>

Motion to take off Nonsuit. Assumpsit by A. Norrington & Co. against Peter Wright & Sons upon the following contract: “Philadelphia, January 19, 1880. “Sold to Messrs. Peter Wright & Sons, for account of Messrs.

Rule for judgment for want of a sufficient affidavit Of defence. This was an action of assumpsit by Havemeyer & Yigelius against Peter Wright & Sons. Plaintiffs filed a copy of the following contract: With the above was filed a copy of invoice presented to defendants June 7,1880, for 342 700-2240 tons at $43.50,— $14,890.59,—with United States certificate of weight; imported in ship Livingston, which arrived May 8, 1880.

Defendant requests the court to instruct the jury as follows: “The jury are instructed that the bonds from which coupons sued on are alleged to have been detached were not executed or issued by the - defendant until, the same were countersigned, before delivery, by an agent of Lincoln county.

<p>1. Erection op Dike in Mississippi River— Overflowing Lands — Injuring Ferry Franchise.</p> <p>Suit to recover damages for injuries alleged to have been done to certain lands, and to a certain ferry franchise, by reason of the construction of a certain dike in the Mississippi river by the defendant. Held, (1) that plaintiff had, under the laws of Illinois, and according to the evidence, no title to the lands, for injury to which the suit was brought; (2) that the act of the general assembly of Illinois, granting a charter for a ferry across the Mississippi river, under which the plaintiff claims, did not give the grantee any right to control the channel of the river, or to prevent its improvement, without compensation to him by the United States.</p>

<p>1. Adverse Possession—Rev. St. oe Wisconsin, $ 4211.</p> <p>Ten years’ occupation in good iaitli, under claim oí title, is sufficient to give a good title by adverse possession, under section 4211 of. tlio Revised Statutes (1878) oí Wisconsin.—[Fd.</p>

<p>1. Bankruptcy—Atta ohment—Contesting Adjudj cation.</p> <p>The creditor of an involuntary bankrupt, who lias obtained a preference over other creditors hy proceedings in attachment against his debtor, will be allowed to come in by petition and contest the validity of the adjudication in bankruptcy.</p> <p>2. Same—Jurisdiction—Defective Verification.</p> <p>The failure of a notary to affix his notarial seal to the verification of a creditor’s petition, and the proofs of debts of such creditors in a case of involuntary bankruptcy, will not defeat the jurisdiction of the court.—[J3d.</p>

<p>1. Discharge in Bankrputcv—Foreign Creditor—Domestic Forum.</p> <p>A discharge in bankruptcy can be pleaded to the suit oí a. foreign creditor in the domestic iorum.—[Ed.</p>

<p>1. Composition Proceedings—-Discharge.</p> <p>A discharge from all debts by means oí composition proceedings is a discharge within the meaning oí section 5116 oí the Kevised Statutes relating to the discharge oí a voluntary bankrupt.—[Ed.</p>

<p>1. Re-Issue—What Necessary to Authorize—Rev. St. § 4916.</p> <p>To authorize a re-issue the original patent must be inoperative or invalid, either from defective or insufficient specifications, or from claiming as new more than the patentee had a right to claim, and the error sought to be corrected must have arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention ; and where the original shows upon its face that the grounds for a re-issue do not exist, or where a comparison of the letters disclose different inventions, the re-issue is void. The specifications may be made more definite, or the claim modified to make it more conformable to the right of the patentee, but the invention must bo the same.</p> <p>'2. Surrender op Patent—Judgment oe Commissioner not Conclusive upon Courts.</p> <p>The action of the commissioner of patents in accepting a surrender and granting a re-issue of letters patent is judicial in its character, and presumed correct, but is not conclusive upon the court; but they may always compare the original and re-issue to see whether they disclose a case in which the commissioner has jurisdiction to grant a reissue.</p> <p>3. Improvement in Preserve Cans—Re-Issue—Variance between Re-Issue and Orighnal Letters.</p> <p>An original patent for improvement in preserve cans, etc., (No. 43,463) manufactured of tin, contained a single claim, and that for producing indelible lettering designs, etc., upon sheet tin or tinned sheet iron by a combination of lithographic or plate printing, and the action of heat upon the surface of the tin and upon metallic colors printed on such surface; the process as described being for printing the design with metallic colors on plates of tin or sheet iron before being made into cans, and then exposing them in a properly-constructed furnace to the gradual action of temperature sufficiently high to slightly amalgamate the colors printed with the surface of the tin. In the re-issued patent (No. 7,556) the application of colors was not confined to plates of sheet tin or tinned sheet iron, but included cans, boxes, and manufactured articles; nor were the colors confined to metallic or mineral colors, and the process for heating seemed to abandon the idea of amalgamating the colors with the surface of the metal, directions being given for drying the colors. Held,, that the re-issue was unauthorized and void.</p>

<p>1. Infringement—Profits—Burden of Proof.</p> <p>Where the patent is for an improvement in machines, the burden is on the complainant to separate the profits due to the improvement from the general profits of the business. This rule is recognized, not reversed, in Elizabeth v. Pavement Co. 97 U. S. 126.</p> <p>2. Same—Profits Derived from Improvement—Proof.</p> <p>Where the complainant fails to show what, if any, definite part of the whole profits were produced by his improvement, his recovery must be nominal only.</p> <p>3. Reference—Costs.</p> <p>Costs of reference taxed against complainant.</p>

<p>In Equity. Demurrer.</p>

<p>1. Patent — Assignment of Gains and Profits — Right Acquired After Decree in Equity.</p>

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

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

In Admiralty. On petition of owners for limitation of liability. The petition amended set forth—First, that petitioners are and were, at the time of the collision hereinafter mentioned, the sole owners of the steam-yacht Mamie, a vessel enrolled and licensed for the coasting trade, and engaged in commerce and navigation between ports and places in different states and territories, and foreign countries, upon the great lakes, and the navigable waters connecting the same.

<p>1. Collision—Damages—Unearned Freight.</p> <p>A vessel, chartered for a fixed' term of time, was totally lost by collision, while in the performance of her employment, and before the contract had expired. Reid, that the owners were entitled to recover, as damages, the net profits which they would have realized under the agreement, for the whole period, if the vessel had not been lost.—[Ed.</p>

<p>1. Maritime Lien—Clothing Furnished Seamen.</p> <p>Clothing furnished seamen do not become a lien upon the vessel, unless needed by the seamen, and essential to the prosecution oí the voyage.</p> <p>2. Wages—Collusion with Master to Cheat Seamen.</p> <p>A party colluding with a master to cheat seamen out of a part of their wages, or to induce them to apply their wages in anticipation oí payment to any purpose, not shown to he for their own good, will receive no relief in a court of admiralty.—[Ed.</p>

<p>1. Demobbage—Delivery of Coal by Canal-Boats.</p> <p>Reid, upon tlie prooís, (1) that Peck’s dock was not the usual place for delivery of coal by canal-boats at Haverstraw; (2) that the consignees did not accept the coal at Peck’s dock; (3) that the delay in getting to the place of discharge was not caused by the insufficiency of the respondent’s dock, or by any obstacle they threw in the way.— [Ed.</p>

<p>In Equity. Demurrer and plea to jurisdiction.</p>

<p>In Equity. Demurrer to Intervening Petition.</p>

<p>1. Attorney Fee — Unauthorized Contract For, In Mortgage of Corporation.</p> <p>A vote of the directors of a corporation, instructing tbeir presisident and secretary to execute a mortgage to secure tbe payment of a specific debt, does not authorize tbe insertion of a contract in such mortgage binding tbe corporation to pay tbe mortgagee an attorney fee in case legal proceedings were taken to enforce tbe same.</p> <p>2. Ratification of Unauthorized Act.</p> <p>A majority of tbe directors of a corporation, at a meeting at wbicb all tbe directors were not present, and of wbicb tbey bad no notice, directed tbe president and secretary to execute a mortgage as above stated, and tbey inserted therein a contract to pay an attorney fee as above stated. Subsequently tbe directors, at a meeting duly called, ratified such mortgage, without any knowledge of its contents, except as indicated by tbe order for its execution in the records of tbe corporation. Held, (1) that tbe contract to pay an attorney fee not being authorized by tbe original order, and not being a necessary part of tbe mortgage, was not included in this ratification, unless it affirmatively appeared that tbe directors all and collectively were then aware that it was in tbe mortgage; and (2) that tbe directors might be presumed to know what was in the records of tbe corporation, but not what was in a mortgage executed by tbe president and secretary without the authority or knowledge of tbe corporation, or tbe record of it in the county records.</p>

<p>1. Taxes—Municipal Debts—Repeal of Charter—Receiver.</p> <p>Question discussed whether taxes duly levied in pursuance of law, before a repeal of a municipal charter, can be collected by a chancery court, through a receiver, at the instance and for the benefit of creditors.</p> <p>2. Municipal Debts—Legislative Powers.</p> <p>Question discussed as to the powers of the legislatures of the states to enact laws by and under which municipalities can be legislated beyond the authority of the courts, and thus enabled to evade their past and valid contract obligations.—[Ed.</p>

<p>In Equity. Demurrer to Amended Bill. .</p>

<p>In Equity. Demurrer.</p>

<p>Demurrer to Petition.</p>

<p>1. Attachment—Levy—Personal Property.</p> <p>To constitute and preserve an attachment of personal property capable of manual delivery, the officer must take the property into custody and continue in the actual possession of it, by himself, or by an agent appointed by him for that purpose.</p> <p>2. Samis—Two Writs—Priority.</p> <p>Where writs of attachment issue from a federal and slate court against the same defendant, the one under which the property is first actually taken into custody lias priority, without regard to the date of the respective writs, and a United States marshal and sheriff cannot make a joint or partnership levy, nor can one of these officers make a levy subject to the prior levy of the other.</p>

<p>1. IMTP.ISOXMFNT.</p> <p>The national courts have jurisdiction to relieve any person from imprisonment under color of the authority of a state, without due process of law, contrary to the fourteenth amendment.</p> <p>2. Due Pbocess op Law.</p> <p>A person imprisoned under a valid law, although there is error in tlie proceeding resulting in the commitment, is not imprisoned without due process of law, contrary to the fourteenth amendment.</p> <p>3. Dis Facto Officer.</p> <p>A person in office by color of right is an officer de facto, and his acts as such arc valid and binding as to third persons; and an unconstitutional act is sufficient to give such color to an appointment to office thereunder.</p> <p>4. Same.</p> <p>The constitution of Oregon authorizes the legislature, when the population of the state equals 200,000, to provide by election for separate judges of the supreme and circuit courts. Ou October 17, 1878, the legislature passed an act providing for the election of such judges at the general election in June, 1880, and also that the governor should appoint such judges in the meantime, which was done. Held, that admitting such act was unconstitutional, because the population of the state was less than 200,000, and that the appointments by the governor were therefore invalid, and also because the constitution only authorized the selection of such judges by election, still the persons so appointed under the act, and performing the duties of the judges of said courts, were judges defacto, and a person imprisoned under a judgment given in one of them, convicting him of a crime, is not thereby deprived of his liberty without due process of law, contrary to the fourteenth amendment.</p>

<p>In Bankruptcy.</p>

<p>1. Re-Issue ISTo. 7,488—'“Improvement in Paper Boxes.”</p> <p>Re-issued patent No. 7,488, granted to the complainant, as the assignee of Henry R. Ileyl, February 6, 1877, for “ improvement in paper boxes,” held, not to embrace more than the original patent indicates and suggests.</p> <p>2. Same—Flap-Lockins Device.</p> <p>Held, also, that the evidence shows that there is nothing new in any of the instrumentalities used by the patentee, Ileyl, except the interlocking the outer flaps of the ends of the box by his flap-looking device.</p> <p>3. Same—Flap-Tuckin& Device.</p> <p>Held, also, that Heyl disclaims, in his said patent, a flap-fastening device of tongues projecting longitudinally from the flap, and inserted and withdrawn in the line of the opening strain, and therefore complainant is estopped from asserting a claim for a flap-tucking device of that character.</p> <p>4. Same—Construction.</p> <p>Held, also, that in view of the state of the art at the date of the _eyl invention, anrl the language of the specification, the proper and necessary construction of 1ho complainant’s patent is for a Jlap-locking device of laterally-projecting tongues entering corresponding slots, contradistinguished from a flap-tucking device of longitudinally-projecting tongues entering and withdrawn from slots in the line of the opening strain.</p> <p>5. Same—Second Claim—Construction.</p> <p>Held, also, that, if the second claim of the complainant’s said reissued patent be regarded as simply introducing the tongues or corners without preserving the locking quality referred to, it is such a departure from the original invention as to render the said re-issue invalid.</p> <p>6. Same—Patent No. 183,950.</p> <p>And held, also, that the complainant’s re-issued patent is not infringed by the defendant’s use of- boxes manufactured under patent No. 183,950, granted to Lockwood and Lynch, October 31, 1876,, ' ’ because such boxes do not contain the flap-locking or hooking device deemed an essential quality or characteristic of complainant’s said’ re-issued patent, but have a flap-tucking device with tongues, which tuck but do not lock.</p>

In Admiralty. The original libel in this case claimed damages for the loss of the services of two minor sons of the libellant, killed in a collision between the steamers Garland and Mamie, in the Detroit river, on the twenty-second of July last. The collision was alleged to have been occasioned by the fault and negligence of the Garland.