Volume 50 — Federal Reporter

In Equity. Proceedings begun in state court by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company against Samuel K. Nestor for the condemnation of land, and removed to United Slates circuit court by defendant. Heard on motion to remand.

In Equity. Bill by John Lloyd, as assignee of James Linfo.rth, John Bensley, ’and L. B. Benchley, copartners, against James C. Pennie, as administrator of John Benslej'', and James C. Pennie, as administrator of Marian L. J. M. Bensley, deceased. Heard on an order upon defendant, as administrator of Marian L. J. M. Bensley, deceased, to show cause why he should not be required to produce in evidence certain letters written by John Bensley to said Marian, his wife.

<p>1. Deeds — Twice Recorded — Presumptions—Evidence.</p> <p>When the records of a deed in two deed-hooks differ only in two material points in the description of the property, and the date, grantors, grantee, consideration, acknowledgment, and signature of the notary are the same in each, the presumption is, not that the first hook contains the correct record and the other the record of some other deed or of the original deed after a change in the description has ■been made, but that they are records of the same deed, with mistakes in one of .them; and in seeking to determine in which of the two the mistakes are, the original deed being lost, the court will consider the evidence afforded by the records themselves as to which has'been more carefully registered, the situation of the property as described in each, and the conduct of the parties in reference to the property in dispute.</p> <p>2. Same — Efeect op Recording-.</p> <p>Gen. St. Minn. 1878, p. 537, § 21, and Id. p. 805, § 96, do not limit the effect of the register’s record of a deed as evidence to- the first record of it, but give at least equal weight as evidence to later records properly made.</p>

<p>1. Navigable Waters — Obstruction—Erection op Bridges — Liabilities.</p> <p>A railroad company, emnowered by its charter to erect and maintain a bridge across the Cumberland river, in Kentucky, “ so as not unreasonably to obstruct navigation, ” while rebuilding a portion of the" bridge which, had been blown down, erected a temporary bridge, which interfered with navigation, but arranged with all the packet companies plying the river for the transfer of all freight without extra charge to shippers. The amount of traffic of the railroad largely exceeded that on the river, and public convenience was in fact subserved by the plan pursued by the railroad company. Held, that this was not an unreasonable obstruction of navigation, and a shipper who refused to send his grain by water under the arrangement was not entitled to recover the extra freight paid for transporting it by rail.</p> <p>6. Interstate Commerce — State Regulations.</p> <p>The commercial power of congress Is exclusive of state authority only where the subjects upon which it is exerted are national in their chaz’acter, and admit and require uniformity of regulations affecting alike all the states; and when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the states may provide for their regulation and management until congress intervenes and supersedes their action. Gurdv>eU v. Bridge Co., 5 Sup. Gt. Rep. 433, 113 U. S. 205, followed.</p> <p>3. Same — Bridges.</p> <p>The erection of a bridge entirely within a state across a navigable river running partly within and partly without the state is not a matter so intimately connected with "interstate commerce as to be under the, exclusive control of congress; and, in the absence of congressional action, the state has authority to regulate the same. Railway Co. v. Backus, 40 Fed. Rep. 216, distinguished.</p>

<p>.Equity Practice — Objections to Bill — Waiver—Accounting!.</p> <p>A bill for an accounting charged, that complainant and defendant entered into a contract, in the nature of a partnership agreement, that the defendant was to keep the books and render monthly accounts to the complainant, and that the defendant fraudulently misstated such accounts. The defendant answered, denying the charges, hut averring that it did not object to an accounting. Held,, that it was too late, on motion for a reference, for the defendant to insist that the charges in the bill were not sufficiently specific.</p>

<p>In Equity. Bill by the Southern Pine Fibre Company against the North Augusta Land Company for the specific performance of a contract. Heard on demurrer to the complaint.</p>

In Equity. Bill by the United States against the Western Union Telegraph Company and the Union Pacific Railway Company to cancel a contract, whereby the telegraphic franchises of the railroad company were improperly transferred to the telegraph company, and to compel the railroad company to exercise that franchise directly through its own officers and employes.

<p>1. Counties — Bonds—Excessive Issue — Innocent Purchasers.</p> <p>Under Gen. Laws Tex. 1881, pp. 5, 6, authorizing counties to issue bonds for the erection of court-houses, Howard county issued bonds in May, 1883, which, on account of an error, were recalled and canceled, and a new series issued in November, 1883. Between these dates an amendment to the constitution was adopted, reducing the rate of taxation allowed to be levied by counties for the erection of public buildings. The plaintiff bought in open market some of the bonds issued in November, 1883, and sues for the interest due upon them. Held, that he was a purchaser with notice of the constitution as amended, and that, as he claimed no interest under the contract for the erection of the court-house, the amendment applied to the bonds in his hands.</p> <p>2. Same — Authority to Issue Bonds — State Laws.</p> <p>While counties generally have no power to issue, negotiable securities unless specially authorized by law, this is a question of state policy, and should be governed by the decisions of the state courts.</p> <p>8. Same — Laws op Texas. e</p> <p>In Texas, the counties, in the absence of legislative authority, have no power to issue negotiable sqcurities. Nolan Co. v. State, (Tex. Sup.) 17 S. W. &ep. 826; Robertson v. Breedlove, 61 Tex. 316, followed.</p> <p>4. Same — Innocent Purchasers — Bonds Partly Invalid.</p> <p>The bonds issued by a county in excess of the amount allowed by law are void, and their collection cannot be enforced even by a bona fide purchaser for value; and when a number of bonds, partly invalid on this account, are issued and delivered at the same time, or at different times as part of one transaction, the invalid portion should be equally distributed among all, and none should have priority.</p> <p>5. Same — Amount Issuable.</p> <p>Gen. Laws Tex. 1881, pp. 5, 6, § 1, confers authority upon counties “to issue bonds in such amount as may be necessary to erect a suitable building for a court-house; ” but section 3 of the same act declares that the county shall not issue a larger number of bonds than can be liquidated in 10 years by an annual tax of one-fourth of 1 per cent, upon the property in the county. Held, that the latter section must be construed as a limitation upon the former. Russell v. Cage, 1 S. W. Rep. 270, 66 Tex. 432, and Nolan Co. v. State, (Tex. Sup.) 17 S. W. Rep. 826, followed.</p> <p>6. Same — Notice.</p> <p>In ascertaining the taxable value as a basis for determining the amount of bonds which may be issued, the official assessment rolls are the only evidence, and, these being public records, the purchasers of the bonds, notwithstanding any recitals therein, are chargeable with notice of them, and cannot claim to be innocent purchasers.</p> <p>7. Same — Application op Proceeds — Estoppel.</p> <p>If a county has authority to issue bonds for one purpose, and uses the proceeds of such bonds for a different purpose, they are not thereby invalidated in the hands of an innocent purchaser, and the county is estopped from denying that they were issued for the purpose for which they purported to he issued.</p> <p>8. Same — Enporcement op Bonds — Jurisdiction at Law.</p> <p>While a suit in equity is ordinarily required to settle the equities and rights of bondholders against a county and among themselves, yet a court of law will give judgment in such cases when warranted'by the pleadings and proofs.</p>

<p>Customs Duties — Maxueactuked Articles — Pieces oe Beveled Glass.</p> <p>A deoision of the board of appraisers that small squares, triangles, and circles of glass, the squares from ⅞⅝½2⅝ to 4x4, and the circles from 5 to 6 inches in diameter, with edges beveled and polished, are dutiable at 45 per cent, ad valorem, as “articles of glass cut, ” under Act Cong. March 3, 1883, (Tariff Ind. New, par. 135,) rather than at 3 cents per square foot, as “ cast polished plate-glass, unsilvered, ” not exceeding 10x15 inches square, under Tariff Ind. New, par. 140, of said act, will not be disturbed, although the beyel was produced by abrasion, rather than by cutting with a sharp instrument, it appearing that in the trade of the glass cutter the word “cutting” is frequently used to denote a process which in popular language would more properly be styled “grinding” or “abrading. ”</p>

<p>. At Law. Appeal from decision of board of United States general appraisers.</p> <p>The merchandise in suit consisted of men’s leather pique or prick seam gloves, imported by Wertheimer & Co. on October 15,1890, upon which the collector of customs at the port of New York assessed a duty of 50 per cent, ad valorem, and also an additional duty of one dollar per dozen pairs as “men’s gloves,” and also an additional duty of 50 cents per dozen pairs as “pique or prick seam gloves,” (making a total additional duty of $1.50 per dozen pairs,) under the provisions of Schedule N, par. 458, of the act of October 1, 1890, viz.:</p> <p>“458. Gloves o£ all descriptions, composed wholly or in part of kid or other-leather, and whether wholly or partly manufactured, shall pay duty at the rates fixed in connection with the following specified kinds thereof, fourteen inches in extreme length when stretched to the full extent, being in each case hereby fixed as the standard, and one dozen pairs as the basis, namely: ‘ Ladies’ and children’s schmaschen of said length or under, one dollar and seventy-five cents per dozen; ladies’ and children’s lamb of said length or under, two dollars and twenty-five cents per dozen; ladies’ and children’s kid of said length or under, three dollars and twenty-five cents per dozen; ladies’ and children’s suedes of said length or under, fifty per centum ad valorem; all other ladies’ and children’s leather gloves, and all men’s leather gloves, of said length or under, fifty per cent, ad valorem; all leather gloves over fourteen inches in length, fifty per centum ad valorem; and, in addition to the above rates, there shall be paid on all men’s gloves, one dollar per dozen; on all lined gloves, one dollar per dozen; on all pique or prick seam gloves, fifty cents per dozen; on all embroidered gloves, with more than three single strands or cords, fifty cents per dozen pairs: provided, that all gloves represented to be of a kind or grade below their actual kind or grade shall pay an additional duty of five dollars per dozen pairs: provided, further, that none of the articles named in this paragraph shall pay a less rate of duty than fifty per cent, ad valorem.”</p> <p>The importers duly protested, claiming the gloves to be dutiable, under said paragraph, at 50 per cent, ad valorem, with an additional duty of 50 cents per dozen pairs only, as “pique or prick seam gloves.” The board of general appraisers affirmed the decision of the collector, and held the additional duties to be cumulative, and, as the goods were con-cededly men’s gloves, and also pique or prick seam gloves, the additional duties for both of said classes of gloves were properly assessed thereon. Appeal was duly taken by the importers to the United States circuit court, under the provisions of the act of June 10, 1890.</p>

<p>At Law. Action to recover duties paid.</p>

<p>At Law. Application to review a decision of the board of general appraisers as to the classification of certain marble blocks.</p>

<p>In Equity. Suit by Baxter D. Whitney against the. Boston & Albany Railroad. Company et al. for infringement of a patent.</p>

<p>In Equity. Suit by Edward N. Dickerson against William J. Mathe-son and James N. Steele for infringement of a patent.</p> <p>Statement by Coxe, District Judge:</p> <p>On the 3d of November, 1885, Carl Duisberg, a Germanj obtained United States letters patent No. 329,632 for an improvement in coloring matter, known as “ Benzo-Purpurine.” On the 21st of December, 1885, Duisberg assigned the patent to the Bayer Company, of Germany, which was the owner of a German patent for the same invention. On the 8th of March, 1888, the Bayer Company assigned the patent, including the right to recover for past infringements, to the complainant. The. transaction out of which this controversy arose occurred in November, 1887. At that time another German corporation, known as the “ Berlin Company,” had the right, as licensee of the Bayer Company, to sell the patented color in Europe and in this country under the European and United States patents. Greeff & Co. were the London agents of the Berlin Company. On the 4th of November, 1887, Domeier & Co., of London, gave an order to Greeff & Co. for one ton of benzo-pur-purine. This order contained the words “strong for export.” On the 15th of November the benzo-purpurine arrived in London and Greeff & Co. notified Domeier & Co. of the fact, stating that it would be sent on in the course of the day, and requested Domeier & Co. to have check ready for payment. A check was accordingly filled out by an employe, signed by Mr. Domeier, and handed by him to a clerk, who subsequently delivered it to Greeff & Co.’s messenger in exchange for the invoice in the usual course of business. The invoice contained the following:</p> <p>“Notice. The importation into the United States of North America of our patented substantive cotton dye-stuffs, congo, benzo-purpurine, etc., is prohibited. ”</p> <p>The attention of Mr. Domeier was not called to this notice until a day or so afterwards. The goods were marked with a label on which, was the following notice: “ The importation into the United States of North America is forbidden.” This label was not seen by Mr. Domeier, and did not come to his knowledge until after he had paid for the goods. The defendant Matheson, in describing the marks on the packages after their arrival in this country, does not mention the notice of prohibition on the label, the inference being that it was not there at that time. On the 25th of November, 10 days after the purchase by Domeier & Co., Barnes & Co., the defendants’ London agents, shipped the goods to the defendants. The exact date of the sale to Barnes & Co. does not appear, although on November 22d they wrote the defendants as follows: “Benzo-purpurine, we have received the ton and shall forward same by steamer on Thursday.” It is frequently stated in defendants’ brief that Domeier & Co. were not aware of the notice on the invoice until after the property had passed out of their hands. I am unable to find the proof of this. Domeier does not so testify and the affidavit attached to Mitchell’s testimony as to what he heard Domeier say, certainly, is not evidence.. Domeier & Co. knew, generally, at the time they ordered the goods of the agents of the Berlin Company that benzo-purpurine was sold under restrictions against importation into this country. Barnes & Co. also knew this, and Domeier & Co.’s instructions from Barnes & Co. were not to buy unless they could do so without restrictions. The Berlin Company believed that the goods were to be used in England. On the 16th of January, 1890, counsel for the respective parties entered into a stipulation which begins as follows:</p> <p>“In order to save the delay and expense of a commission to England it is hereby stipulated * * * that on the final hearing it shall be taken as though the following testimony has been given. ”</p> <p>Then follows a statement of some of the facts and circumstances out of which the controversy arose. Subsequently, on the 27th of May, 1891, it became necessary to send a commission to England to take testimony regarding the sale to Domeier & Co. The defendants now insist that because of the commission the stipulation became inoperative and should be absolutely disregarded by the court. A witness named Mitchell, who was a member of the firm of Barnes & Co., was examined in London under the commission referred to. His examination was directed almost wholly to what he had heard Mr. Domeier say regarding the transaction. The testimony was duly objected to.</p>

<p>In Equity. Suit by Henry Untermeyer against Max Freund et al. for infringement of a patent. Heard on exceptions to the master’s report.</p> <p>This action was begun December 30, 1886, for the infringement of letters patent No. 15,121, granted to complainant July 1, 1884, for a design for a watch-case. A decision sustaining the patent was filed January 15, 1889. 37 Fed. Rep. 342. An interlocutory decree adjudging that the complainant recover damages and profits “together with any penalty incurred,” and referring it to a master to take the account, was entered January 24, 1889. On the 6th of May, 1891, the master filed his report in which he found nominal damages, and no profits prior to February 4, 1887, — the date of the act relating to design patents. 24 St. at Large, p. 387. He did find, however, that the complainant was entitled to recover $250 as provided by said act and the profits in excess of $250 since February 4, 1887, on each watch-case to ,which the design was applied, amounting to $889.02. In brief, the master holds that the act of February, 1887, applies to this cause and under it the complainant is entitled to recover $250 and $889.02. If the act does not apply the complainant, under the rule of the Carpet Cases, 114 U. S. 439, 5 Sup. Ct. Rep. 945; 118 U. S. 10, 6 Sup. Ct. Rep. 946, would be entitled to nominal damages only. The defendants filed exceptions to the report, and now urge the following propositions: First, that the act of February, 1887, is unconstitutional because it imposes a penalty without due process.of law in contravention of article 3, § 2, cl. 3, of the,constitution and also of the 5th, 6th, 7th and 8th amendments. Second, that the act does not apply for the reason that this suit was commenced one month and five days before the act was approved. Third, that congress did not intend to change the rule as laid down in the Carpet-Cases, the object of the act being to give the patentee’$250 in every case and the profits, in excess of that sum, if. he can prove them under the rules established by the supreme court.</p>

<p>1. Patents for Inventions — Invention—Electric Accumulators.</p> <p>Reissued letters patent No. 11,047, granted to the Electrical Accumulator Company, as assignee of Joseph Wilson Swan, December 17,1889, claiming a perforated, plate for secondary batteries, having the perforations extending through the plate, and the active material packed in the perforations only, cover a patentable invention.</p> <p>3. Same — Utility.</p> <p>The fact that, before the date of this invention, Prof. Eaton had packed active material in perforations extending through the plate, at the same time covering the surfaces thereof, and that Mr. Brush had packed it into grooves in the plate without covering the surfaces, does not show a want of invention in the idea of confining it entirely to perforations extending through the plate, since this apparently slight change avoided the difficulties before encountered, and produced an electrode which has, to a great extent, superseded all others, and has become the electrode of commerce.</p>

<p>Bill in equity by David F. Stauffer against Harrison Spangler, H Samuel Spangler, George H. Smith, and W. H. Soader to restrain infringement of letters patent 345,186, issued to complainant July 6,1886, for apparatus for treating unbaked bretzels.</p>

Bill in equity by the Actiebolaget Separator and the De Laval Separator Company against Phillip M. Sharpless to enjoin the infringement of letters patent No. 298,314, for improvement in centrifugal creamers.

In Equity. Suit by the Johnson Company to enjoin the Tidewater Steel-Works from infringing letters patent No. 360,036, for method of and rolls for rolling side-bearing girder rails, granted to Arthur J. Mox-ham, March 29, 1887.

<p>L Patents for Inventions — Inventions—Baxing- Presses. .</p> <p>Letters patent No. 145,029 and No. 341,559, issued to Peter K. Dederick November 12, 1889, and May 11, 1886, respectively, the latter being upon a divisional application for an improvement in horizontal “continuous" baling presses, cover, as the gist of the invention, a device consisting of a loose connection, as a chain or rope, between the toggle and the horse lever, so that the toggle is pulled back and forth across the center line by the vibration of the horse lever. Held that, in view of the fact that the press has gone into extensive use, the device must be considered to have patentable invention, over the somewhat analogous device shown in patent No. 261,323, issued July 18,1882, to George Ertel, and which is adapted to an upright press.</p> <p>S. Same — Invention—Infringement.</p> <p>Letters patent No. 232,400, issued to Peter K. Dederick, as assignee of Albert A. Gehrt, are for a method in a baling press, resisting the backward movement of the traverser caused by the expansion of the hay, consisting of the application of friction, so as to stop the motion gradually. Claim 3 covers the combination, with the traverser having the rearward extension, of the lining or planking¡ and the set screw for adjusting, the same, substantially as described. Held that, if this involved any patentable invention, it is limited to the specific device, and is not infringed by the device covered by patent No. 349,934, issued September 28, 1886, to George Ertel.</p>

<p>1. Patents por Inventions — Invention—Prior Art — Sapety-Valves.</p> <p>Letters patent No. 200,119, issued February 12,1878, to Ashton, for an improvement in safety-valves, in so far as they cover, in claim 1, merely a combination of an under-discharge pop-valve, an inner casing, and an outer casing with a suitable outlet, are void for want of invention, in view of the patents to Ashfield, (No. 97,472, Dec. 7, 1869,) to Prescott, (No. 121,659, Dec. 5, 1871,) to Guels, (No. 195,003, Sept. 11, 1877,) and English patent No. 891, of August 23, 1872, to Giles.</p> <p>2. Same — Extent op Claim — Combination.</p> <p>In his specifications Ashton states that, in order to prevent back pressure, he provides the chamber inclosing the spring of his pop-valve with special vent-holes for the steam which finds its way into it, but these vent-holes are not mentioned in any claim, and the claims cover only a combination of his peculiar valve with a spring chamber, and an outer casing, “arranged to operate as described. ” Meld, that the vent-holes, if covered at all, are claimed only in combination with the peculiar pop-valve, and there is no infringement in using them with a different form of pop-valve.</p> <p>S. Same— Anticipation.</p> <p>Letters patent No. 299,503, issued June 8. 1884, to Ashton, ior a combination of a muffling chamber surrounding a safety-valve, with a pipe communicating from the spring chamber to the outside air, was anticipated by patent No. 297,068, granted April 15, 1884, to Coale.</p> <p>4. Same — Senior and Junior 3?agents — Presumptions.</p> <p>Where two patents cover practically the same invention, the presumption is in favor of the senior patent, and it requires a clear preponderance of the evidence to show that the junior patentee was in fact the first inventor.</p>

In Equity. Bill by Herman Tappan to restrain Bean & Vail Bros, from an alleged infringement of letters patent No. 432,451, for improvement in perfume holders. Tbe patented device had the general form of a lantern, comprising a bottle or flask to bold the perfume, a base piece, a collar around the neck of the bottle, a cap adapted to fit upon the neck of the flask, and screwed down thereon, and pressing a packing ring down on the cork and on the upper part of the flask.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In Admiralty. On motion to suppress depositions. For former report, see 47 Fed. Kep. 122.</p>

In Equity. Suit by the Rochester Coach Lace Company against Schaefer for infringement of letters patent 'No. 177,194, issued May 9, 4876, to Oscar Boehme', and afterwards assigned to complainant. In the circuit court the patent was held void for want of patentable novelty, and decree entered dismissing the bill. The opinion was delivered by Judge Coxe. See 48 Eed. Rep. 190. Plaintiff appeals.

<p>1. Trade-Mark — Federal Courts — Equity Jurisdiction.</p> <p>As the jurisdiction of equity in matters of trade-mark is recognized by a long line of both English and American cases, the federal courts may administer equitable remedies therein when they have jurisdiction by reason of the citizenship of the parties, notwithstanding that the federal statutes on the subject have been declared unconstitutional in the Trade-Mark Cases, 100 U. S. 82.</p> <p>2. Same — Infringement...</p> <p>It is an infringement of a trade-mark to employ an imitation likely to deceive and impose upon the customers and patrons of the proprietor, and the use of the arbitrary term “Bromidia,” previously adopted by another, i% such an imitation, notwithstanding the fact that the infringing manufacturer’s name is printed on each label.</p>

<p>Wharfage — Navigable Stream — Doty oe Wharfinger — River Bed.</p> <p>The owner oí awfiarf in a public navigable stream about 150feet wide, who keeps the usual berths safe for which wharfage is charged, is not required to dredge or to keep even the bed of the stream near its middle, abreast of the wharf, so that ves-seis against which no wharfage is chargeable may moor, and' lie there safely until they can borne to the wharf in turn; and where a boat moored at high water nearly in the middle of the stream, outside of three other boats at such wharf, without directions from the wharfinger, paying no wharfage, and not being liable to pay any, and the person in charge of her ascertained soon after her arrival, and before the tide fell, that the bottom was uneven, and knew that he would be aground at low water, arid the boat did take the ground and received injury, held, that the vessel took.the risk of injury arising from the uneven nature of the bottom, and could not recover for her damage.</p>

<p>Shipping—Contkact of Affkeightment.</p> <p>The evidence of a master of a vessel and of a member of a firm acting as the ship’s brokers was that a shipper had agreed to ship 400,000 shingles on the vessel. The shipper testified he had agreed to ship all he had,—estimated at that many. The firm were pretty closely related to the shipper also. Meld, the weight of the evidence was against the shipper.</p>

In Admiralty. Libel for freight under charter. Counter-claim for dispatch money. The steam-ship Ocean Prince loaded a cargo of iron ore at Elba, where there is no harbor, but only an open roadstead, in consequence of which the ore was furnished to the ship in lighters. There was a conflict of testimony between the master of the ship and the agent of the shipper as to whether during certain days during which no cargo was furnished the ship the weather was bad or not.

In Admiralty. On appeal from district court. 44 Fed. Rep. 686-, affirmed. . • . . The steamer Weatherby was chartered by the claimant to carry a cargo of sugar from Hamburg to Philadelphia. On the voyage over half of the cargo was damaged by collision, an excepted peril, without fault of the ship, and was sold for the benefit of the charterer, who was also consignee.

<p>In Admiralty. Suit to recover damages for breach of charter. On appeal from district court..</p>

<p>In Admiralty. Suit'to recover damages for breach of charter. On appeal from district court.</p>

<p>1. Pilotase Fees — Aimmom Compensation — Vessel Detained — Computation by the Hale Foot.</p> <p>¡Section 17, c. 467, Laws N. V. 1858, in regard to pilotage feos, is not superseded by the provisions ol chapter 90, Laws 1884, and a pilot of an outward bound vessel, detained in the harbor beyond the usual time of taking the vessel from her wharf to sea, is entitled to three dollars per day additional compensation. Where the statute specifies a computation by the draft per foot, the amount may be reckoned by the neafost half foot, pro rala.</p> <p>2. Libel to Recover Pilotase Fees — Winter Pilotage.</p> <p>After the steam-ship Franco had sailed for London, her cargo shifted, and she returned to New York. Not being able to get into her dock, she discharged a portion of her (sargo at an anchorage in the bay. After the rest of her cargo had been restowed, and she had taken on board her pilot, the libelant, she returned to the anchorage to lake on the cargo discharged there. This detained her one day. The amount of the pilotage fee was calculated on the draft of the vessel according to the nearest half foot.' Held, that that mode of computation is allowable after long acquiescence therein; also that libelant was entitled to an additional four dollars allowed in the winter season, (Act 1853, § 16,) and to an additional three dollars for one day’s detention in the harbor.</p>

<p>In Admiralty. Libel for towage.</p>

<p>In Admiralty. Libel to recover the value of repairs furnished to respondents’ vessel.</p>

<p>Coi/tisiox — rJDne Asn Steamek — Rule 19.</p> <p>A tug rounding Town point, in Norfolk harbor, under considerable speed, suddenly came in sight of a steamer just under way leaving her wharf, and heading out into the harbor towards Portsmouth. The steamer blew one whistle and kept her course. The tug replied with two whistles, and, putting her helm to starboard, attempted to cross the steamer’s bow. The steamer promptly reversed, but could not avoid a collision. Held, that the tug, having the steamer on her starboard side, was governed by rule 19, (Rev. St. § 4283,) and bound to keep out oí the way. Held, that the clanger of the situation arose from the speed of the tug .while rounding a point which shut out of view vessels navigating the harbor heyond, and that it was this fault in her navigation which prevented her obeying the rule. Held, that the test of safe speed is whether it is such as allows the vessel to comply with the duty imposed upon her. - Held that, the tug being clearly in fault in running at too great speed, and in failing to obey the rule, the burden was cast upon her to establish some fault on the part of the steamer contributing to the disaster, and, having failed to do so, the decree of the district court, holding her solely to blame, should be affirmed.</p> <p> CSyllabus by the Court.) </p>

In Admiralty. Appeal from a decree of the circuit court of the United States* for the southern district of New York, affirming pro forma a decree of the district court for said district, which held in fault both tugs and both tows for the collision described in the opinion. 32 Fed. Rep. 555. And see 41 Fed. Rep. 156. Both tows appealed to this court, the tugs not appealing.

<p>Collision — Steam and Sail Meeting — Missing- Stats — Drifting.</p> <p>A tug with a tow on a hawser coming down the East river below Corlear’s Hook, and working over to the Brooklyn shore, saw ahead of her a schooner beating up stream, and moving towards the Brooklyn side. The tug thereupon gave several whistles, and, going close inshore, came" to a stand-still along-side of some boats at the end of a pier. The schooner tacked about 100 feet ahead of the tug, and passed the tug safely, but, losing control of herself, drifted up some 300 feet further, and collided with the tow while lying at rest against another boat, along-side a wharf. DCeld, that the tug was not liable for the collision.</p>

<p>In Admiralty. Cross-libels for damages occasioned by collision.</p>

In Equity. Bill to set aside a sale of personal property in fraud of creditors. The facts in this case were that the complainant, Leopold, on March 4, 1880, recovered a judgment in this court for $3,588.54 and coste against Stephen R. Godfrey.

In Equity. Suit in equity to cancel a patent for a tract of land purchased from the United States as timber land under act of June 3,1878, entitled “An act for the sale of timber lands in the states of California, Oregon, Nevada, and in Washington Territory,” (1 Supp. Rev. St., 2d Ed., 167,) on the ground that said tract is not in fact timber land, nor subject to sale under the provisions of said act.

<p>Error to the Circuit Court of the United States for the District of Indiana.</p> <p>Petition for mandamus, on the relation of Spitzer & Co., to compel the town of Cicero to levy a tax for the payment of certain judgments. The application was denied, and the relators bring error.</p>

<p>In Equity. Suit by Jarvis A. Slater against James Banwell for infringement of a patent. Heard on exceptions to answer.</p>

<p>1. Equity Pleading — Demtjrree—Plisa.</p> <p>While a defendant cannot plead merely the facts averred in the bill of complaint, but must present his objections to their sufficiency by demurrer, yet he may present a good plea by averring, along with the facts contained in the bill, other and additional facts, provided that both together establish a defense to the bill.</p> <p>3. Res Ajudioata — Severability of Contract.</p> <p>In an action in a state court upon one contract contained in an “omnibus agreement” between several railroads, the court held that this contract had not become res .judicata, by a certain judgment rendered in a territorial court, because it was not included among the litigated contracts, and was separable from the other contracts, and thereupon adjudged this contract to he void, as contravening a state constitution. Thereafter one of the parties brought a new suit, averring that tb®-contract held invalid was in its nature, and the considerations out of which it sprang, dependent upon other contracts contained in the omnibus agreement, in such manner that its annulment gave rise to an equity either to rescind the whole agreement, or to obtain compensation for the loss sustained by the annulment. Held, that the former adjudication as to the severability of the contract related only to the question whether the clause was so dependent as to be res judicata by the decision of the territorial court, and did not render res judicata the question whether it was not dependent in such sense as to give a right to the relief asked.</p>

Bill in equity, brought by complainant, as assignee in bankruptcy of George Hazzard, to set aside as fraudulent certain promissory notes, and a mortgage given to secure them, upon a herd of cattle, and to subject the interest of the bankrupt in said cattle to the payment of the debts of the bankrupt estate.

<p>At Law. Action by Frank T. Copp against the Louisville & Nashville Railway Company to recover an amount paid for freight in excess of that paid by others for similar service.</p>

<p>1. Claims against United States — Limitations — Erroneous Taxation — Reclama tion — Trusts.</p> <p>In 1872 a statement made by the comptroller of the treasury showed that a certain amount had been erroneously deducted as income tax from the salary of a United States district judge between 1864 and 1869. In 1875 a draft was issued by the government for the payment of the claim, but, remaining unclaimed, it was in 1887 covered into the treasury. No demand of payment was ever made until 1891, and payment was then refused. Held, that after the draft was issued the government 'held the fund in the nature of a trust, and that the six-years limitation as to claims cognizable by the court of claims did not begin to run until the date of the d mand.</p> <p>2. Same.</p> <p>The two-years limitation prescribed by Rev. St. § 3227, for actions to recover taxes erroneously collected, does not provern, as it applies only when the gist of the claim is the wrongful act of the tax officer, and in this case the original wrong was cured by the action tafeen by the department to refund the money.</p>

<p>At Law. Action by the United States against Mittie Gayle, as surety on the official bond of her husband. Judgment was rendered for plaintiff, and was afterwards sued on as a cause of action, and judgment again rendered for plaintiff. 45 Tod. Rep. 107. Defendant now moves to vacate the original judgment.</p>

<p>1. Death by Wrongful Act — Pleading—Newspaper Accounts.</p> <p>In an action by a widow to recover damages for the killing of her husband by a mob, when the petition fully sets out her cause of action, it is improper to annex thereto an account of the affair as published in a newspaper on the day following the killing.</p> <p>2. Same — Parties.</p> <p>As all the parties in any way concerned in the tort are liable in soMdo, it is proper to join, as a party defendant with the individuals who participated in the killing, the city in which the act was committed, on the ground of its negligence in not preventing the killing.</p>

At Law. Action by James J. Lapsley, administrator of the estate of Eliza J. Lapsley, against the Union Pacific Railroad Company, to re- cover damages for causing the death of his intestate.

<p>1. Masteb and Servant — Vioh PiUNOirAi, — Conductor and Baosagb Master.</p> <p>In Indiana, a baggage master on a. railroad train is considered a coservant with the conductor of another train, through whose negligence a collision occurs. Railway Co. v. jRoss, 5 Sup. Ct. Rep. 184, 11⅛ U. S. 371, distinguished.</p> <p>3. Same — Foli.owin» State Decisions.</p> <p>The control of the relation oí master and servant and other like relations is reserved to the states, and the federal courts, when administering the state law upon such subjects, should follow the decisions of the state courts.</p> <p>8. Same — PtBAiiras.</p> <p>A declaration which, among other allegations of negligence, avers that a conductor was not a careful, skillful, and attentive conductor for a passenger train, which was known to tho company, and that the death of a baggage master was caused by the conductor’s negligence, contains all the allegations necessary to constitute a good cause of action, and a demurrer on the ground of insufficiency should be overruled.</p>

At Law. Action by John M. O’Neill against the Chicago & Northwestern Railway Company to recover damages for personal injuries. A verdict having been returned for plaintiff, the case was heard on motion for a new trial. This suit was brought by plaintiff to recover damages on account of personal injuries, caused, as alleged, by the negligence of the servants of the defendant.

At Law. Action on two promissory notes by James M. Flower, receiver of the German National Rank, against Henry Greenebaum. Held: not only the notes in question, but divers other claims not secured; that defendant, Henry Greenebaum, presented to the meeting of the individual creditors a statement of his assets and debts, in which statement the notes in question wore classed as secured debts; that the bank was represented at said meeting by a duly-authorized…

<p>PATENTS Í01Í INVENTIONS — BUS ADJDMOATA.</p> <p>Where a suit for alleged Infringement of a patent is brought against a firm that is a branch of the firm that manufactures the alleged infringing device, and the latter firm conducts the defense, a decree for the complainant is binding upon the firm that conducted the defense, not only upon all the questions that were raised and determined in the suit, but upon all that might have been raised and determined therein.</p>

<p>In Equity. Bill by the Eagle Manufacturing Company against the Moline Plow Company to restrain the infringement of a patent.</p>

<p>1. Patents eor Inventions — Boilers—Infringement.</p> <p>The third claim of letters patent No. 224,685, issued February 17, 1880, to Hazelton and Kennedy, for a new and improved sectional boiler, consisting of the combination of horizontal hot-water pipes and steam pipes set inside of a fire chamber, with vertical drums and mud drum set outside of the fire chamber, is not infringed by a , device consisting of a “porcupine” boiler having a central standpipe in which numerous hollow tubes are inserted so as to radiate horizontally, and having three larger tubes riveted to the standpipe, and extending horizontally through the brickwork surrounding the fire chamber, since the said claim covers merely the particular combination described therein.</p> <p>B. Same — Boiler Deeleotors — Novelty—Patentable Invention.</p> <p>Letters patent No. 849,720, issued September 28,1886, to Edward S. T. Kennedy for an improvement in boiler defleotors, consisting in the combination with a porcupine boiler and its jacket of horizontal flame deflectors of segmental form, placed within the combustion chamber in position for protecting.the exposed ends of the tubes and deflecting the heated products of combustion towards the boiler cylinder, are void for want of patentable invention and novelty.</p>

<p>In Equity. Bill by Fred E. Lee and William G. Howard against the Northwestern Stove Repair Company and others to restrain the infringement of a patent.</p>

<p>In Equity.</p> <p>Complainant, Vincent L. Ellbert, filed his bill against the St. Paul Gaslight Company for infringement of letters patent No. 886,458, for improvements in the apparatus for the manufacture of water gas, and prayed an accounting and an injunction. The answer denied infringement, and alleged that the improvements claimed had been in public use in Chicago more than two years before complainant’s application for a patent thereon, and had been described in various patents.</p>

<p>1. Patents 3foi! Inventions — Opeiumvb Device-Automatic Weighing Machine.</p> <p>Letters patent No. 836,043, issued February 9, 1886, to Perciva! Everett, claims: “ A weighing machine, having an aperture lor receiving a coin, a weighted lever, a dial, and index hand, and intermediate mechanism connected with the same, and whereby the coin, when deposited in the receiver, shall operate the lever, and cause the hand to indicate the weight of the person or body being weighed. ” Held, that the claim is lor the machine as a whole, having the parts mentioned, and, as the patent refers to all parts necessary to make it complete and operative, the claim is to be read with reference to such known and described parts, and therefore covers an operative machine.</p> <p>2. Same-Invention — Noveuty.</p> <p>The patent possesses both invention and novelty, for, although a weighted lever, operated by a coin put through a slot, had been used for various other purposes, these elements had never been combined with mechanism to form a weighing machine.</p> <p>3. Same — Ixebingement—Equivalents.</p> <p>The patent is infringed by a weighing machine having tho elements claimed, even though the intermediate mechanism by which the weighted lever operates the index is very different from that of the patent, since, both being old, one is merely the equivalent of the other.</p>

<p>In Admiralty. Heard upon motions to quash executions.</p> <p>Tho original case was a suit in admiralty, brought February 16, 1872, by the owners of the Sabine against the steamboat Richmond, to recover damages sustained by the Sabine resulting from a collision between her and the Richmond, near Twelve Mile point, on the Mississippi river, on February 11, 1872. The owners of the Richmond filed an answer, and also a cross libel against the owners of the Sabine. In the latter they claimed a decree for damages sustained, in consequence of the collision, by the Richmond, they alleging that the collision was caused by the fault of the Sabine. Upon the filing of the cross libel the district court, by the authority of the admiralty rule No. 53, ordered that all proceedings upon the original libel be suspended until the original libelants gave bond to respond in damages to tho cross libel. In pursuance of this order, on March 14, 1872, tho owners of the Sabine, with Alfred Moul-ton, Jules Tuyes, Charles Cavaroc, and Achille Chiapella as sureties, executed a bond of that date in favor of the owners of the Richmond in the sum of 88,000. By the terms of the bond, Moulton and Tuyes each became- bound in the sum of 82,000 only, and they each justified in that amount. Upon trial a decree was rendered dismissing the libel of the Sabine against the Richmond, but sustaining the libel of the Richmond against the Sabine, and awarding to the owners of the Richmond the sum of 89,750 for the damage sustained by her, and rendering a decree in their favor against Jules Tuyes and Alfred Moulton for $2,000 each. From this decree, an appeal being taken to the circuit court by the sureties upon the bond given by the owners of the Sabine 'upon a cross libel of the Richmond, the circuit court, on April 10, 1875, rendered a decree in favor of the Richmond against the Sabine for the damages sustained by the fprmer in consequence of the collision. After-wards, on March 11, 1876, upon the report of the master, the amount' of the damages was fixed at $8,000, which the owners of the Sabine were condemned in solido to pay. At the same time decrees were rendered against Jules Tuyes and Alfred Moulton, sureties on the bond aforesaid, for $2,000 each. On July 3,1876, Jules Tuyes compromised the decree against him in favor of the owners of the Richmond by paying the latter, in full satisfaction thereof, the5 sum of $1,166.66, and was by them subrogated to their rights as owners of the decree. The following is a copy of the paper by which this settlement was evidenced:</p> <p>“Shirley et als., Owners of the Sabine v. The Richmond.</p> <p>“ United States Circuit Court: Received, New Orleans, July 3,1876, from Jules Tuyes, Esq., security on the bond given by the libelants in the above cause to respond to the cross libel filed by N. S. Green and others, claimants of the steamboat Richmond, the sum of $1,166, and in full satisfaction of the decree rendered against him in the above-entitled cause, and I hereby sub-rogate him to the rights of N. S. Green and owners of the steamboat Richmond. Kennard, Howe c% Prentiss,</p> <p>“Attorneys for Owners of Richmond.”</p> <p>Afterwards, September 28,1876, the Home Insurance Company paid, in behalf of Alfred Moulton, to the owners of the Richmond, the sum of $1,500, which the owners of the Richmond acknowledged-to be in full settlement as a compromise of the liability of Moulton on said bond, signed by him. It was in fact a compromise of the decree for $2,000 which had been rende.ed. against Moulton on said bond. On November 2, 1876, the owners of the Sabine filed a petition for appeal from the decrees of the circuit court hereinbefore mentioned, upon giving bond to cover costs, which was allowed, and on December 16, 1876, they gave an appeal bond in the sum of $500. Neither Tuyes nor Moulton joined in the petition for appeal, and neither of them became obligors upon the appeal bond, At the October term, 1880, of the supreme court the decree of the circuit court of March 11, 1876, was in all respects affirmed, and a mandate was sent down to the circuit court. After the mandate of the supreme court, showing the affirmance of the decree of the circuit court, had been entered in the latter court, an execution was issued on the decree against Tujms and Moulton rendered by the circuit court March 11, 1876, on their bond above mentioned, and affirmed as aforesaid by the supreme court. The marshal being about to seize the property of Tuyes and Moulton to satisfy the execution, they each for himself filed a motion to quash the execution, on the ground that the decrees against them respectively had been satisfied. Upon these motions the cause was heard. . .</p>

In Admiralty. Libel for seamen’s wages. On appeal from district court. The original libel was filed by Dennis Mahoney to recover seaman’s wages. Several other seamen intervened, and filed similar libels. One E. N. Stevenson also intervened, and filed a libel for damages sustained by the nonperformance by the Laurie of a contract of affreightment and for salvage.

<p>Maritime Liens — Supplies at Home Port — Construction op Statute.</p> <p>Under Rev. Civil Code La. art. 3374, declaring that “no privilege should have effect against third persons, unless recorded in the manner required by law, ” the owner of a vessel who has chartered her to another is a “third person, ” with respect to persons who claim a lien under the state law for supplies furnished in the home port. Bea/rd v. Chajjpell, 23 La. Ann. 694, followed.</p>

<p>Maritime Liens — Priority—Maritime Tort — Seaman’s Wages.</p> <p>The maritime lien for damages arising from collision takes precedence of the lien for seaman’s wages accruing prior to the collision. The John O. Stevens, 40 Fed. Rep. 331, and The F. M. Stanwood, 49 Fed. Rep. 577, followed.</p>

In Admiralty. Libel in rem for personal injuries. This was a suit in admiralty in rem, brought in the district court. That court dismissed the libel, and the libelant appealed to this court. (I Fed. Rep. 89.) This court found the following facts: “The Hadje was an ocean steamer, about 200 feet in length, and built with two decks. The upper or main deck was close-laid and caulked.

<p>Tn Admiralty. libel for salvage.</p>

<p>In Admiralty. libel for negligently upsetting a lighter.</p>

<p>In Admiralty. On exceptions to commissioner’s report.</p>

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p> <p>In Admiralty.</p>

In Admiralty. Appeal from the circuit court of the United States for the eastern district of New York. The district court sustained the libel against the tug, (41 Fed. Rep. 57,) and claimants appealed to the circuit court, which affirmed pro forma the decree of the district court, and claimants appealed to this court.

<p>At Law. Action by William Campbell against the Duluth, South Shore & Atlantic Railway Company for damages for personal injuries.</p> <p>Statement by Sanbobn, Circuit Judge:</p> <p>The plaintiff, a subject and citizen of the dominion of Canada, brought an action at law in the Minnesota district against the defendant, a corporation created and existing under the laws of Michigan, to recover damages for injuries received by him at Bagdad, Mich., while operating defendant’s trains as a brakeman. It appears from the amended complaint, which we permit to be filed in order fully to present the question plaintiff’s counsel desires to raise, that “the defendant owned and operated a railroad running through Bagdad, Mich., and Wisconsin, and into Duluth, Minn., and at Duluth Minn., said defendant maintains a ticket and freight office, with an agent thereat, who makes contracts there for defendant for both passenger and freight business, and defendant transports both passenger and freight so contracted for in its ears both to and from Duluth, from and to its other stations on its line of railway in Wisconsin and Michigan.” The summons was served on the defendant’s ticket agent at Duluth, and, under the statutes of Minnesota and the decisions of the courts of that state, the service would have been sufficient, to have given a state court jurisdiction of the defendant corporation, if the action had been pending in such court. The action comes before us on an order to show cause why the service of summons should not be set aside, and the action dismissed, upon the ground that this court has no jurisdiction of the action, because the defendant is not an inhabitant of this district.</p>

<p>1. Removal oe Causes — Separable Controversy — Insurance.</p> <p>Where a .bill was filed by three marine insurance companies, corporations of Pennsylvania, New York, and Rhode Island, respectively, in their own and in behalf of other marine insurance companies having like interests, against receivers of a transportation line, who are citizens of New York, the corporation being one of Illinois, a compress company, being a Tennessee corporation, and certain citizens of Tennessee, its trustees, against certain other marine insurance companies of Pennsylvania, New York, and the kingdom of (treat Britain, and against 44 fire insurance companies, being corporations, respectively, of West "Virginia, Pennsylvania, New York, Illinois, Louisiana, Wisconsin, Alabama, Connecticut, Ohio, Texas, Minnesota, Mississippi, South Dakota, and the kingdom of Great Britain; and the object of the bill was to establish a liability against the receivers, as carriers, upon divers bills of lading issued by them upon sundry lots of cotton deposited by them in the shed of the compress company while awaiting compression, amounting in the aggregate to about 5,()()() bales, being part of the whole 14,000 bales destroyed by fire in the shed, for the value of the cotton covered by their bills of lading, for its non-delivery at the point of destination according to the contracts of carriage; and to apply in payment of that liability so established in favor of the owners of the cotton a share of the 8301,750 of insurance upon the 14,000 bales, issued by the defendant fire companies to the compress company, which had a contract with the receivers to keep the cotton fully insured for their benefit; also to hold the compress company liable for certain breaches of contract, and of trust arising out of if, by not insuring in solvent companies, by not collecting such insurance as was available, and by not taking out full insurance; and to apply the sum so realized from the compress company to the payment of the liability of the receivers, as carriers, to the owners of the cotton; and, lastly, that the plaintiffs, and other marine insurance companies who had paid to the owners on policies held by them the losses by fire on this cotton, should be subrogated to the claims of the owners against the receivers, as carriers, and that, generally, the fire insurance fund in the hands o.f the carriers or compress company or of the fire companies, unpaid, bo applied in exoneration of their losses so paid as aforesaid: Held, upon the petition for removal of one of the Connecticut fire insurance companies, two of the New York fire insurance companies; the Louisiana fire insurance company, and two of the-Engiish fire insurance companies, that, whether aliens could remove or not, the others could, and the case was removed as one having, as to each of the fire companies, a separable fiontroversy between citizens of different states, and thereby determinable between them, the parties being_ properly arranged on the record, as they might be by the court, to show the jurisdictional diversity of citizenship and corporation domicile.</p> <p>2. Same — Jurisdiction.</p> <p>The test of the federal jurisdiction by removal, where the parties are numerous, and the suit complicated with many demands at law and in equity, as where the bill is to enforce trusts arising out of losses by fire between insurance companies, the owners of cotton burned, and the carriers and its agents, is whether or not the plaintiffs are proceeding upon a right that is joint in themselves or severable as to each, or whether or not the liability of the defendants is joint between them or sev-erable as to each. If joint in either of these respects, or if there be a joint and severable right or liability, and the plaintiffs choose to sue upon the joint right or the joint liability, there may be no removal; but if there be .neither joint right in the plaintiffs, nor-joint liability in the defendants, no matter how complicated the demands as to each, respectively, the mere union of several rights or liabilities into one suit for convenience cannot defeat the federal jurisdiction by removal, if, besides this separable quality of controversy sought to be removed, it cannot be fully determined without the presence of other parties, whose citizenship might otherwise defeat the jurisdiction.</p> <p>S. Same — Arranging Parties.</p> <p>The court cannot search the record for a mere ideal controversy that might have been made by the plaintiffs, which is separable and wholly determinable as between citizens or corporations of different states, and arrange the parties as if that controversy had been made, but must find a real controversy, actually made by the pleadings, and may then arrange and adjust the parties without regard to their present attitude on the record, if it have the separable quality, and may be wholly determined between citizens or corporations of different states.</p> <p>4 Same — Aliens—Aot 1887.</p> <p>Whether an alien defendant, actually interested in a controversy between citizens of different states, which is separable and removable, may remove the suit under the peculiar structure of the act of 18S7, qucere.</p> <p>Note. I find upon re-examination oí the record that the “O., V. & O. Line” is attached as a non-resident under the Tennessee Code, and garnishments were issued on that attachment. But it is still plain that this garnishment oí the fire companies was only incidental to the suit as against the C., V. & C. Line, and did not at all affect the fact that the fire companies are made parties on their own account, and are sued in that capacity. The fact that they are also garnishees as to a co-defendant, and occupy this dual relation to the record, does not in any sense change the attitude of the case in this matter of the removability of the suit. If they were discharged as garnishees on their answer to that process that they owed nothing, they would still, on this record, be parties to the suit, and would be compelled to answer such decree for contribution or other relief as might be given against them.</p>

In Equity. 'On demurrer to bill. The complainant, in her bill alleges that she is a bona fide settler upon ' 80 acres of the public land situated within the Sac and Fox reservation in Richardson county, Neb.; that she became an actual settler and occupant upon said land with the intent of purchasing from the United States, and becoming the owner thereof, under an act of congress authorizing its sale, approved August 15,1876, (19 St. p. 208;) that said land was duly…

<p>Error to the Circuit Court of the Northern District of California.</p> <p>At Law.</p>

At Law. Proceeding in garnishment brought by D. G. Hitchcock & Co. against the Galveston Wharf Company to subject certain shares of its stock held by the city of… Held: possessed, controlled, used,and administered by said company; all the united and consolidated property, rights, and claims being represented by said aggregate of $1,866,000, •the original two thirds thereof held by the present stockholders, and one third .by ¡the said plaintiff, in trust as aforesaid.” .

<p>Error to the District Court of Washington. ■</p> <p>At Law.</p>

<p>At Law.' Action'by William A. Brickill and others against the mayor and city council of Baltimore for damages for infringement of letters patent No. .81,132-, issued to plaintiff August 8, 1868, for an improvement in “feed-water heaters for steam fife engines.” Heard on demurrer to the declaration.</p> <p>The specifications describe, substantially, a water heater connected with the boiler of a steam fire engine by two detachable pipes, one carrying the cold water to the' heater, and thé other returning it heated to the boiler;-thus •“’maintaining a. free circulation between the boiler and heater,” and keeping the water in the boiler always hot so as to expedite the generation of steam on a fire- call. Pipes controlled by cocks connect the’heater with a water tank, and, when the engine is away, the same circulation is established and maintained between the heater and the tank, “the object being to preserve the coil or héater.”</p>

<p>1. Tkaot-Makk — Txfiux&mext—Boebbox Whiskies.</p> <p>Plaintiff and his predecessors have long used upon their whiskey barrels a trademark consisting o£ a picture of a chicken cock standing upright, within a circle surrounded by the words, “ Old Bourbon Whiskey, Bourbon Co., Ky., ” and below the picture the words, “From J. A. Miller, Paris.” For over 30 years this brand has been known to the trade as “Miller’s Chicken Cock Whiskey” or “Chicken Cock Whiskey. ” Defendants, doing business in Boston, adopted a like picture, including'the circle; their brand being called “Miller’s Came Cock Bye.” Onthelabel,in smaller type, are the words: “The King of all Whiskies. John Miller & Co., Sole Proprietors, Boston, Mass. ” Held, an infringement; and it is immaterial that defendants use the device both upon barrels and bottles, while plaintiff has heretofore used it only on barrels, and that defendants’ whiskey is a “blended’’whiskey, having hut one stamp, while plaintiff’s is a “straight” whiskey, having two stamps.</p> <p>2. Same — Peei-iminakv Ix.tuxcttox.</p> <p>A preliminary injunction against the use oí a trade-mark will be granted when from the affidavits the court is satisfied of the infringement, unless there are special circumstances which take the case out of the general rule.</p>

In Equity. The complainant by his bill charges respondent with the infringement of a patent granted to William Cooley, and duly assigned to him. The said patent bears date February 20, 1877, and ⅛ “for an improvement in obtaining cream from milk.” It is described in the opinion. The defense is twofold: .(1) That Cooley was not the original and first discoverer of the process described in his patent; or, in other words, prior use by other persons.

<p>Admiralty — Costs—General Average — Libelant Mainly Successful.</p> <p>A suit in general average was brought by libelant, a shipmaster, against respondent, who denied the necessity for the jettison, thus making the main issue whether libelant’s entire claim was a fraud. This suit was the only method of arriving at a solution of the question. Libelant was successful on the main issue, though the amount of his claim was diminished, for want of evidence which could satisfy the court. Held, that respondent should pay the costs.</p>

<p>Seaman’s Wages — Refdsai. to Go Aboabd — Intoxication—Contkact.</p> <p>Where a seaman, who has signed shipping articles, went to his vessel, on her sailing day, intoxicated, and declined to go aboard, and the master, being pressed íor time, thoreupon shipped another man, held that, while the fact that he was drunk was not a sufficient ground for a rescission oí his contract, his refusal to go aboard entitled the master to supply his place, and, when the place was filled, no subsequent application could help him.</p>

<p>In Admiralty. Suit to recover wages.</p>

<p>Trusts — Infant Beneficiaries — Foreclosure—Bilí, of Review.</p> <p>Land was conveyed to a trustee by deed oí trust, which provided that no lien, in-cumbrance, or charge should be created. The record of such trust deed having been destroyed by fire, a decree was entered in a proceeding under the burnt record act, establishing the trust deed without the provision aforesaid, but with a clause authorizing the trustee to create liens. After entry of this decree the trustee gave a mortgage and allowed a mechanic’s lien to be created, under which the land was sold. Some of the eesluis qui trustemt who were infants when the decrees of foreclosure and the decree restoring the trust deed were rendered, but who had appeared therein by guardian ad litem, filed a bill to review the foreclosure suits. Held that, as to them, the mortgages and the mechanic’s lien were invalid, since the record of the trust deed, though destroyed, gave the mortgagee and lien holder notice of the inability of the trustee to incumber the property.</p>

In Equity. Petition filed by the Interstate Commerce Commission to enforce an order requiring certain railroad companies to desist from charging a greater rate for a shorter than for a longer haul.

This is a bill in equity, brought to quiet title to 1,288 acres of land located" in Franklin county, Iowa. . Said land was entered by Asahel Gage, who was a non-resident alien residing in Canada. Patents were issued to him; and he held title until his death, which occurred July 1, 1861. He left surviving him eleven children, two of whom have since died.

<p>In Equity. Suit by Frederick W. Bound against the South Carolina Railway Company, the .New York & Charleston Warehouse & SteamNavigation Company, and others, for foreclosure of a mortgage.</p>

In Equity. Bill by Edwin H. Walters and Joseph Y. McDowell against the Anglo-American Mortgage & Trust Company for the appointment of a receiver. Heard at chambers on motion to discharge the receiver.

xlotion at law upon transcript of a judgment in favor of plaintiff and against defendant for SB,835.29 and costs, rendered September 22,1878, by the supreme court of New York in and for the county of Steuben. The defense is that the judgment is void because the court by which it was rendered had no jurisdiction of the defendant. The facts upon which this defense is based are as follows; Plaintiff is a citizen of New York, and defendant a citizen of Kansas.

<p>Patents foe Invkxtioks — Extext of Claim — Pkior Art — Isfeixgemext—Bicycle Hakdmík.</p> <p>Letters patent No. 345,071, issued August 2, 1881, to George Illston, íor a device for readily adjusting the vertical height of bicycle handles, or rendering them entirely detachable, by making a dovetail or grooved seat on the bicycle head, in which a slide carrying the handle bar works, the same being fixed at any desired height by a set screw, are limited by the prior state of the art to the devices described, and are not infringed by a handle bar connected with a spindle which slides in a socket, and is secured by a sot screw.</p>

<p>In Admiralty. Libel by seamen for wages. Intervention by salvors.</p> <p>The facts in this case, as shown by the pleadings, were these: On the 15th day of October, 1879, the schooner Davidson left Chicago on a voyage to northern ports on Lake Michigan. The libelants shipped on board as seamen. On the next day the vessel was stranded on Pilot Island reef. On request for assistance from the master, Wolf & Davidson, of Milwaukee, dispatched the tug Leviathan with steam pump and other apparatus to the relief of the vessel. Efforts were made to get the vessel off, and were continued until November 26th, but unsuccessfully. From the time the vessel was stranded until exertions to relieve her were abandoned, libelants continued on board. On the 25th day of November, the master of the tug, being convinced that the vessel could not be relieved, deemed it advisable to save her outfit, consisting of boats, tackle, rigging, apparel, and furniturei and ceased his efforts in behalf of the vessel. Thereupon the master and crew of the tug, with the assistance of the crew of the vessel, removed the vessel’s outfit to the tug, and brought it, together with the master and crew of the vessel, to the port of Milwaukee. Libelants were then discharged, but were not paid their wages, and thereupon libeled the outfit. Decree was rendered in their favor, the outfit sold, and the proceeds were paid into the registry of the court. Thereupon the owners of the tug intervened by petition, as sal-vors, insisting that their claim for salvage service was prior to that-of the seamen, and asked for payment as having the prior right 'to the proceeds of sale.</p>

<p>Shipping — Negligence—Impeopek Hatch Góvek — Peksonal Injuries.</p> <p>Owing to the warping of their supports in hot weather, the hatch covers of a ship did not fit tightly over the hatch, which fact was unknown to libelant, who had recently shipped as sailor on such ship. In consequence of such defect, as libelant was, under orders, covering the hatch, one of the covers fell, precipitating libelant into the hold. Meld, that the ship was liable for his injuries.</p>

<p>Collision — Nakkow Channel — Tide—Right of Wat — When Duty to Stop.</p> <p>Where two tows are approaching each other in a narrow channel in such wise that by continuing on they will meet at a point where it is difficult and dangerous for them to pass, it is the duty of the tow going against the tide to stop before reaching such difficult point, and wait for the other tow to go by her.</p>

<p>Collision — Fog—Steam-Vessels Crossing — Delay in Backing.</p> <p>The steam-lighter P., in a fog, light above but thick near the water, saw at a considerable distance the smoke-stack of the tug A. crossing her course, and somewhat on her starboard hand, and knew by the signals of the A. that she had a tow. Nevertheless she did not reverse until the A.’s tow appeared through the fog, 50 feet away. Held, that such delay fixed upon the P. the blame for the collision which ensued, and that the A., being in doubt as to the P.’s course, was justified in reversing under rule 21, even though going on might have avoided the collision-.</p>

<p>1. Colusión — Sailing Vessels Meeting — Fbee and Closehatjled Cottbses— Lights.</p> <p>A brig and a schooner approached each other on a clear night, the brig sailing free on a course W. ⅝ ST., and the schooner closehauled on an B. by N. course. On conflicting evidence the court found that the schooner held her course, except for a luff in extremis, continually exhibiting to the brig her green light, and that the red light of the brig was seen on the schooner’s starboard bow some time before the collision. The brig collided with and sank the schooner. Held, that it was the duty of the brig, sailing free, to have avoided the schooner, sailing close-hauled, and for her failure so to do the brig was in fault.</p> <p>2. Damages — Expense oe Raising Sunken Vessel — When not Allowed.</p> <p>The mere fact of a vessel’s sinking by reason, of a collision is not sufficient to warrant a finding that she and her cargo are a” total loss; and where it appears probable that they may be raised without much expense, and the vessel repaired, owners are not allowed to insist upon clamages, as fora total loss, when they have not employed reasonable measures to mitigate the loss. But when a vessel worth $3,800 was sunk in deep water, and was afterwards raised at a cost of $1,900, and repairs were put upon her to the extent of $6,800, held, that the wrongdoer was liable only for the v^lue of 'the ship, cargo, freight, and personal effects on board before the collision. .</p>

<p>Damages — Ixibsy to Vesset. — Duty to Prevent Subsequent Inorease oe Damage.</p> <p>A canal hoal sank at low water at defendants’ wharf by their fault, and careened on her side at about 4:45 a. m. The tide began to rise about 6 a. m., and before the cargo was removed some portions of it were damaged. There had been men on the dock before the tide began to rise, but as they demanded double the ordinary steve - dores’ wages, their services were refused both by the master and the foreman of the libelant. Held, that the well-settled rule of the obligation of the ship to use all reasonable diligence after an injury to prevent, subsequent increase of damages, should have led the master to employ help at once, even at advanced wages; and that the owners of the canal boat could not recover for such damage to the cargo as might have been saved by employing' such labor.</p>

<p>Error to the Circuit Court of the United States for the District of New Hampshire.</p> <p>On petition of William A. Patten, the will of one Matilda P. Jenness was admitted to probate in solemn form by the probate court of Merrimack county, N. H. Horatio G. Gilley, one of the heirs at law of the testator, took an appeal to the supreme court of the state; and he after-wards procured the removal of the cause to the circuit court of the United Htates on the ground that he was a citizen of Iowa, while plaintiff, Patten, was a citizen of New Hampshire. Patten’s motion to remand the cause to the state court was refused, and he brings error.</p>

In Equity. Bill by Rowena M. Clarke against the Central Railroad & Banking Company of Georgia and others, and bill by the Central Trust Company of New York against H. M. Comer, receiver, and others. Motion by the Central Trust Company to modify an interlocutory decree.

<p>1. JURISDICTION OF CIRCUIT COURTS — PARTITION.</p> <p>The circuit courts ol the United States, sitting as courts oí equity, have jurisdiction oí suits for the partition of land.</p> <p>⅜. Partition — Fraudulent Decree of Divorce — Evidence.</p> <p>Plaintiff, decedent’s wife, in partition against trustees under his will, alleged that, she agreed that a suit for divorce should be begun against her on the sole ground of desertion, and that a decree of divorce should be entered therein, in consideration of a sum of money needed for her temporary support; that such agreement was procured through decedent's paid agents, when plaintiff was greatly enfeebled by disease; and that decedent fraudulently obtained a decree of divorce on the ground of adultery, of which fact plaintiff did not learn until she had removed to the east. Plaintiff alleged that she was utterly iguorant of the pleadings in the suit, and denied the charge of adultery, and that, as soon as informed thereof, she brought suit to vacate the decree. Held, that the facts alleged showed a cause of action.</p> <p>S. Same — Collateral Attack — Extrinsic Fraud.</p> <p>In such case the fraudulent matter alleged was extrinsic to the matter tried by the court in the suit for divorce, so that the decree was open to attack in the present collateral proceeding.</p> <p>4. Same — Collusive Decree — “In Pari Delicto.”</p> <p>Though in such case plaintiff was in fault, to some extent, in consenting to a collusive decree, yet the parties were not in pari delicto, and she was not thereby estopped from attacking the decree.</p> <p>5. Limitations — Trusts.</p> <p>The suit, being to recover property held in trust by defendants, was not affected by the statute of limitations.</p> <p>6. Same — Pendency of Suit. . ....</p> <p>. .... The running of the statute was also prevented by the suit brought in the lifetime of decedent to vacate the decree of divorce, which was pending at his death,1 about three months before the present suit was brought.</p>

In Equity. It appears from the allegations of the bill that plaintiff sent to the Maverick Bank two drafts for collection and credit on general account, payable, one in Pall River and the other in Taunton, and the Maverick Bank sent the first to the Massasoit Bank, át Fall River, for collection and credit, and the other to the Taunton National Bank at Taunton, and on October 31,1891, the Massasoit Bank and the Taunton Bank collected the two drafts, and-credited their amount…

<p>In Equity. Bill by the Santee River Cypress Lumber Company against R. B. James and others for an injunction against interfering with the possession of certain lands.</p>

<p>1. Foreclosure — Evidence—Substitution of Securities.</p> <p>In a suit to foreclose a trust deed it appeared that the defendant had afterwards given the complainant another note, with other security, for the same debt. Defendant and his clerk both testified that this other security was taken in place of the trust deed, but defendant contradicted himself, and the clerk showed that he. was under defendant’s influence. The receipt taken by defendant to show what the second note was security for did not state that it was to take the place of the trust deed. Meld, that the preponderance of the evidence did not show that the second note, with its security, was taken in substitution Of the trust deed.</p> <p>2. Same — Pled oe.'</p> <p>Where the only proof that a note secured by trust deed was pledged to secure a liability in no way connected with the origin of the trust deed is the testimony of the person to whom such liability was incurred, and he is' contradicted by the maker of the note, the evidence fails to show that the note was so pledged.</p>

<p>Public Lands — Laud-Office Regulations.</p> <p>Department regulations for the disposal of public lands must'be appropriate, reasonable, and within the limitations of the law for the enforcement of which they are provided, and when otherwise they are void.</p> <p> (Syllabus by the Court.) </p>

In'Equity. Bill'by John M. Claiborne and others against John 0. Waddell and-others. Heard on motion to dismiss for want of jurisdiction. The citizenship and residence of the parties is stated in the bill to be as follows: John M. Claiborne, guardian of the person and property of Sarah Vienna Phillips, is a citizen - and resident of the state of Texas, his ward being a citizen and resident of Missouri.

<p>In Equity. Bill by Mathias Hohner against William R. Gratz to restrain the violation of a trade-mark.</p>

<p>At Law. Action by E. P. Joyce against the Charleston Ice Manufacturing Company to recover damages for an unlawful detention of personal property. Heard on motion for a new trial.</p>

<p>At Law. Action by R. F. Aspley against J. P. Murphy et al. to recover an undivided two-ninths interest in and to block 77, in the city of Dallas, Tex.</p>

At Law. Action by the United States against O. P. Fitzsimmons and, the sureties on his official bond as United States marshal. Heard on exceptions to the auditor’s report.

<p>National Banks — Stockholder’s Liability — Transfer of Certificates.</p> <p>In an action by the receiver of a national bank to enforce an assessment under Rev. St. § 5151, against one credited on the transfer hooks as a stockholder, it appeared that nearly a year before the failure he had sold his stock to a broker for an undisclosed principal, that he indorsed the same, and requested the broker to inform the cashier of the transaction, and to have the stock transferred: that the broker accordingly handed the stock to the cashier, gave him the necessary information, and requested him to make the transfer. This the cashier promised to do, but in fact the transfer was never made. The certificate recited that it was transferable on the books of the company “by indorsement hereon and surrender of this certificate. ” Held, that in requesting the cashier to make the transfer the broker acted as the seller’s agent, and that the latter did all that was required of him as a prudent business man, and could not be held liable as a stockholder. Whitney v. Butler, 7 Sup. Ct. Rep. 61,118 U. S. 655, followed. Richmond v. Irons, 7 Sup. Ct. Rep. 788,121 TI. S. 27, distinguished.</p>

<p>At Law. Action by Juliette 0. Smith against the Sun Publishing Company for libel. Verdict for plaintiff. Defendant moves for a new trial.</p>

Application by Battle & Co., chemists, a corporation, for a review of the board of general appraisers’ decision with respect to the classification of certain imports.

<p>At Law. ■ Action by the United States against James McGrath & Son to recover the additional duty of 10 per cent, prescribed by Rev. St. U. S. § 2970, upon goods withdrawn from bond.</p>

At Law. Information against Frank M. Rider, John F. Burgess, and others, county commissioners of Muskingum county; Ohio, for failing to provide a bridge with a “ draw ” for the passage of boats. There was a verdict and judgment for plaintiff, and defendants move for a new trial.

<p>At Law.</p> <p>This was an indictment under section 3893, Rev. St. U. S., for mailing obscene writings. There were three counts, each charging defendant with “depositing in the mail of the United States, for mailing and delivery, a certain obscene, lewd, and lascivious writing, purporting to be a letter,” etc., “which said writing is so lewd, lascivious, and obscene that the same would be offensive to the court here, and improper to be placed upon the records thereof, which said writing then and there was inclosed in a letter envelope, said letter being then and there addressed,” etc. A motion was made to quash the indictment on the ground that the obscene, lewd, and lascivious expressions were not set forth in the indictment, which motion was overruled by the court. Defendant thereupon entered a plea of “Guilty,” and moved for arrest of judgment — First, on the ground that the statute did not include private communications which were sent under cover of a seal, such as letters, etc., but was intended to embrace only such matter as was classed under the head of publications, such as circulars, etc., which were sent subject to the scrutiny of postmasters, and to be detained by them in case of their being determined to be nonmailable matterj and, second, that the sending of such letters did not constitute a publication of the writings therein inclosed.</p>

<p>Petition by Adam J. Geisler for Writ of Habeas Corpus.</p> <p>Article 4(i3, Pen. Code Tex., declares:</p> <p>“If any person, with intent to defraud, shall pass, or offer to pass, as true, or bring into this state, or have in his possession, with intent to pass as true, any counterfeit coin, knowing the same to be counterfeit, he shall be punished by imprisonment in the penitentiary not less than two nor more than five years.”</p> <p>The petitioner was indicted in the district court of Grayson county, Tex., for a violation of this article of the state law, was tried and convicted, and sentenced by the court, in pursuance of the verdict of the jury, to imprisonment in the state penitentiary for the term of two years. , Tie now seeks discharge from imprisonment, on the ground that the court hy which he was tried and sentenced had no jurisdiction of the offense with which he was charged, and of which ho was convicted.</p>

At Law. At the November term, 1891, in the district court of the United States for the district of Kentucky, the grand jury returned an indictment against defendant, as follows: “[ftiited. Stales of America, District of Kentucky — set.: In the district court of the United states for the sixth judicial circuit and district of Kentucky, held at Paducah, November term, in the year of our Lord eighteen hundred and ninety-one. First Count.

Til Equity. Suit for infringement of letters patent No. 369,843, issued to J. & G. Douglas, September 13, 1887, for improvement in flushing tanks for water-closets.

<p>1. Patents for Inventions — Infrinoemtint—Jurisdiction—Waiver.</p> <p>The circuit- courts of the United Stales have jurisdiction of suits for the infringement of patents, without regard to the citizenship or residence of the parties; and a bill which fails to allege that defendant is an inhabitant of the district where suit is brought is not demurrable. The exemption from suit in any district other than that of defendant’s residence is waived, if not pleaded.</p> <p>2. Same — Pationtabt.e Novelty — Creameries.</p> <p>Letters patent No. 187,570, granted February 20,1877, to William Cooley, for “the process of treating milk for raising cream by sealing with water and air the cover, applied directly to the vessel containing the milk, ” is valid, as embodying patentable novelty. Boyd v. Cherry, 50 Fed. ítep. 279, 4 McCrary, 70, followed.</p> <p>3. Same — License—What Amounts to.</p> <p>The sale of a creamery containing cans which embody this invention does not operate as a license to use new cans procured from other parties, which infringe the claims of 1his patent. Machine Co. v. Qlhnun, 46 Fed. Hop. 488, followed.-</p>

<p>1. Patents pob Inventions — Box Machine — Novelty. .</p> <p>Letters patent No. 214,919, granted July 2tS, 18sl, to Gordon Munro, for a machine for covering pasteboard boxes with paper, consisting of a frame upon which is mounted a spindle for carrying a roll of paper, a paste box, through which the ribbon of paper passes as it is unwound from tho roll, and a guide roll for guiding the naner as it is delivered from the Daste box In the box to bo covered, are not void for want of novelty. Box Co. v.'Vay, 33 Fed. Rep. 585, followed.</p> <p>2. SAME — INI’KINOEMENT.</p> <p>Said patent is infringed by a device which differs from the patented machine only in using bent rods over which the paper passes, in place of the guide rolls described in the specifications.</p>

<p>In Equity. Bill by Hermann Gilka and others against Morris Mihalo-vitch and others.</p>

In Equity. Bill by the Spokane Mill Company against Frederick Post et al. to enjoin the obstruction of a stream, and abate a nuisance. Heard on motion for a temporary injunction and on demurrer to the bill.

<p>L Demurrage — Charter — Berth—'When to be Provided — Absence of Stipulation.</p> <p>In the absence of any charter stipulation as to the time within which a berth shall be provided for a ship after arrival, it must be provided within a reasonable time, or within such time as usage provides, which time, by the ordinary usage of the port of New York, is 24 hours after notice of arrival.</p> <p>8. Same — Charter—Stipulations—Discharge—“As Fast as Ship can Deliver”— Duty of Charterer — Four Hatches.</p> <p>Where the charter of a vessel having four hatches provides that the ship shall discharge “as fast as she can deliver, ” the charter saying nothing about the number of hatches to be used, and the wharves at which four hatches can be simultaneously worked in the port being the exception, and being no evidence that vessels of such size are accustomed to discharge from all four hatches at once, the charterer is not bound to provide a berth where all four can be used at once, but fulfills his duty by sending the ship to such a reasonably fit berth as is customary for her size and class, and by seeing to it, at such berth, that there are no hindrances on. the dock, so that the vessel may discharge as fast as she can deliver, with the usual appliances therefor.</p> <p>Same — Nonattendance of Customhouse Inspector.</p> <p>After a Bhip is berthed, and permit to discharge obtained, the charterer is liable for delay caused by the nonattendance of a customhouse inspector.</p>

Libel by the United States against the British tug Pilot for violation of section 4370, Rev. St. • Decree for libelant for $643 and costs. 48 Fed. Rep. 319. The owner appeals.

<p>Appeal from the District Court of the United States for the District of Washington, Northern Division.</p> <p>The Lome, a British tug, was seized by the collector of the district of Puget sound, under the provisions of section 4370, Rev. St. U. S., for an alleged illegal towing of the ship Oriental, a documented vessel of the United States, from the high seas through the straits of San Juan de Fuca and the waters of Puget sound to Tacoma, in the state of Washington. The owner of the tug paid under protest a fine of $884, and brought this libel to recover the same as having been illegally exacted. The respondent answered, alleging that, although a portion of the towing was upon the British -side of the boundary line between the United States and the British possessions, it was not necessarily so, and that it might all have been done upon the American waters. A demurrer to this defense was overruled, and a decree entered dismissing the libel, upon the ground that none of the waters are “foreign waters,” within the meaning of the statute.</p>

In Admiralty. Libel by the United States against the steamboat Columbia for violation of section 4465, Rev. St. The Columbia was allowed to carry 3,000 passengers, and no "more. The libel alleged that on one trip she had carried 677 in excess of the number stated in her certificate of inspection. The district court decreed for the libelant, (39 Fed.

<p>In Admiralty. Libel by Merryman & Co. against the steamer William Crane for damage to cargo.</p>

<p>In Admiralty. Libel for salvage.</p>

In Equity. Statement by Hammond, District Judge: The bill in this case, with some 20 exhibits thereto, was filed December 3, 1891. It was ^simply an injunction bill to enjoin the defendant company from violating the provisions of a certain contract claimed to exist between the parties for the compressing, storage, and insurance of cotton; the prayer of the bill being stated in various forms to meet the different stipulations of the contract.

<p>At.Law. A special proceeding by the plaintiff, as administrator, to obtain a license to sell the lands of his intestate to procure assets for the payment of debts, commenced in Catawba superior court, and removed to this court by nonresident defendants. Motion on the part of the plaintiff to remand to state court. Motion on the part of defendants to dismiss the proceeding.</p>

<p>Takiff Act — Simiuatkm Tkat> e-Make- Manda mus.</p> <p>Certain merchandise, consisting oí metal polish, was imported into the port of New York on the 15th of March, 1892. Tho collector of customs declined to admit tho merchandise to entry, on the ground that, pursuant to the provisions of section 7 of tho tariff act of October l, 1890, he had received from the secretary of the treasury facsimiles of a certain trade-mark filed in the treasury department by “The Meyers Putz Pomade Company, ” which facsimiles were duly recorded at the New York customhouse pursuant to instructions contained in a circular of the treasury department dated October SI, 1890, and that said collector had decided that the trade-mark borne by the goods attempted to be entered simulated or copied the trade-mark so filed and recorded at the customhouse in .N ew York. On an application to the circuit court for a mandamus to compel the collector to take evidence as to tho validity of the trade mark filed by the Myers Putz Pomade Company in Washington, and the right of the importers to use the trade-mark upon their goods, held, that the circuit, court had no jurisdiction to grant, a mandamus, and that the question whether the decision of tho proper customs officers that any particular import was within the prohibition of the statute was reviewable by the courts, and, if so, in what way, was not before the court in this proceeding.</p>

<p>I, Master and Servant — Personal Injuries — Contributory Negligence.</p> <p>In an action by a sailor for personal injuries caused by tbe negligent handling of a winch while the vessel was discharging cargo, it appeared that the winch was' operated by a man from shore, according to whistle signals given by the sailor, and his neglect of the signals caused the injuries. Plaintiff testified that the winchman had informed him of his deafness, and requested him to whistle loudly. The winchman’s carelessness had caused the breaking of some barrels before the accident in question, but up to that time (an hour or more) he had obeyed the signals as given. Meld, that it was proper to refuse an instruction that plaintiff’s continuing his work with knowledge of the winchman’s incompetency would preclude a recovery, since it is for the jury to determine whether or not he was justified in believing, until the accident, that the winchman could handle the winch properly.</p> <p>3. Same — Evidence—Res G-esm.</p> <p>Statements made by the winchman to the sailor in reference to his deafness are competent evidence as part of the res gestee.</p> <p>8. Same — Negligence—Evidence.</p> <p>The^ statements as to the winchman’s deafness, and his carelessness in breaking the barrels by lowering them too rapidly, are more than a scintilla of evidence of his incompetency, and sufficient to justify the submission, of the question to the jury.</p> <p>4. Appeal — Review—Refusal of New Trial — Excessive Verdict.</p> <p>The circuit courts of appeals have no power to review a decision refusing to grant a new trial on the ground that the verdict was against the evidence, and was for excessive damages.</p>

<p>At Law.</p> <p>Application by the collector of the port of New York, under the provisions of section 15 of the act of congress entitled “An act to simplify the laws in relation to" the collection of the revenues,” approved June 10, 1890, for a review of the decision of the board of general appraisers at this port, separating or segregating the values for duty of certain merchandise imported during the months of February and March, 1891, and invoiced as entireties as wool robes with silk embroidery, some with silk and metal embroidery, and some with silk and cotton embroidery, which goods were classified by the collector for duty as “ manufactures of worsted embroidered, 60/60,” and duty assessed thereon at the rate of 60 cents per pound and 60 per cent, ad valorem, under the provisions of Schedule K, par. 898, and the proviso contained in paragraph 373 of Schedule J of the tariff act of October 1, 1890. Against this classification the importer had protested, claiming that the merchandise was dutiable under Schedule K, paragraph 395, of said tariff act, at the rate of 44 cents per pound and 50 per cent, ad valorem. Testimony was offered by the importer before the board of general appraisers, showing that the merchandise consisted of robes or combination dress patterns, composed of worsted goods embroidered with silk and other materials, as mentioned in the invoices; that each robe consisted of about 10 meters of material, separated into two parts, — one part, of about 2 meters, being embroidered, and the other part, of 8 meters, being plain, in the case of each of thé robes. It appeared, also, that for the purposes for which these goods were intended the parts could not be readily used or sold, one without the other, while the embroidered piece might be sold separately, as a piece of trimming, especially if the remainder of the robe had been spoiled, although in that case it would be sold at a reduced value from the regular price. It was shown from the invoices offered in evidence that the articles were invoiced at a stated price in francs for each robe, and that the parts were not divided on the invoices into plain and embroidered, but the robes were invoiced as entireties. The board of general appraisers overruled the protest of the importer, holding that the proviso in paragraph 373 provided that textile fabrics composed of-wool, when embroidered by hand or machinery, should be treated for dutiable purposes as if they were embroideries composed of wool, under paragraph 398. The board further held that the separated parts of the so-called robes should have been segregated as to the values of the embroidered and plain materials, which were subject to different rates of duty, and the appraisers should have appraised the value of the respective parts, and the duties fixed by law should have been imposed thereon, and ordered that the entries should be so reliquidated. The importer took an appeal to the circuit court. On the trial in the circuit court, it was argued in behalf of the collector and the government that as neither the importer nor the collector had signified dissatisfaction with the appraisement of the merchandise as entireties according to the invoices, under section 13 of the act of June 10, 1890, it was not within the power of the board of general appraisers to order a reappraisement of the merchandise, which would be necessary to determine the value of the separated parts, and that for the purpose of such reappraisement the board of general appraisers was only an appellate tribunal. It was further argued that the importer having hied in the circuit court no statement of errors against the decision of the board of general appraisers, under section 15 of the above-mentioned act of June 10, 1890, the only matter before the circuit court was the determination of the question raised by the collector’s appeal, which was only that the board erred in ordering the values of the separated parts of the robes to be segregated for the purposes of duty.</p>

<p>At Law. Prosecution of Anderson F. Ford for neglect to properly mark packages of oleomargarine. On demurrer to the indictment.</p>

<p>Itxhgal Tbusts and Monopolies — Indictment.</p> <p>Act (long. July 3,1890, (36 St. p. 209,) “to protect trade and commerce against unlawful restraints and monopolios, ” provides, in section 2, that “every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor, ” etc. .H eld, that an indictment thereunder which fails to allege that defendants monopolized, or conspired to monopolize, trade and commerce among the several states, or with foreign nations, fails to state an offense, oven though it does allege that they did certain acts with intent to monopolize the traffic in distilled spirits among the several states, and that they have destroyed free competition in such traffic in one of the states, and increased the price of distilled spirits therein.</p>

<p>1. TkAJHS — MabK~IxpRINGEMliXT—INJUNCTION.</p> <p>A cigar manufacturer, to protect his trade-mark, may have an injunction restraining a box maker from furnishing' boxes with those trade-marks to other cigar manufacturers, and against- all who knowingly combine J'or that purpose.</p> <p>2. Same — Djíexiíses—Infbixoemiíxt by Omiebs.</p> <p>Tt is no defense that Spanish labels similar to such trade-mark had boon used by various manufacturers for many years, nor that imitations of’ the trade-marks were sold or used, in the absence of evidence that it was with the consont or acquiescence of the owner.</p>

<p>1. Copyright — Xnebingement—1Title of Complainant.</p> <p>In a suit for the infringement of a copyright, where it is shown that the copyright was taken in the name of the complaining publisher as “ proprietor, ” def end-ant cannot object that the author was a married woman, and that her husband was entitled to the fruits of her literary labor; for it will be presumed that the legal lit le of the author was properly vested in complainant.</p> <p>2. Kami-:.</p> <p>Complainant’s title is sufficiently made out to enable him to maintain the suit where it is shown that he took the copyright in tho name under which he did business, the name of a firm to all of whoso rights he had succeeded on its dissolution.</p> <p>3. Same — Mihsube op Damages.</p> <p>Where the infringing publication uses only a part of the matter of the original, and is issued in a different and much cheaper form, the measure of damages is the amount of profits realized by the infringer, and not the amount of profits that would have been realized to the copyright owner by the sale of an equal number of copies of the copyright edition.</p> <p>4. Sami: — Deckei;—Fobeeitube.</p> <p>Though the bill prays the forfeiture of all tho infringing books, and the plates used in their production, it is unnecessary to grant any other relief than damages, where it is shown that tho infringer’s place of business, with all the books and plates in question, has been destroyed by fire.</p>

In Admiralty. Libelant shipped on board of the schooner Calvin S. Edwards a cargo of lumber to be transported from Norfolk to New York. The vessel encountered a severe gale, which lasted for 16 hours, and which left her leaking so badly that her master and crew abandoned her, being taken off by a passing boat. Thereafter she was picked up, and towed to New York, when both she and her cargo were sold in a suit brought against them to recover salvage. See 46 Fed. Rep. 815.

<p>Collision — Sail Vessels Crossing — Collision Bules, Art. 14, (o.)</p> <p>Collision occurred on the high seas, on a clear morning, between the ship Roll and the bark Boyd. The Rolf, bound from Havre to Sandy Hook, was sailing at least two points free, with the wind on her, starboard side. The Boyd, bound from New York to Hong Kong, had the wind on her port side. Her contention was that she was sailing closehauled. The Rolf’s witnesses asserted that the Boyd also was sailing free. The Boyd did not alter her course. The Rolf put her helm up after collision was inevitable, but was struck on her starboard side. Held, on the evidence, that the Boyd, as well as the Rolf, was sailing free, and hence, under the International Collision Rules, art. 14, (c,) — (33 Kt. at Large, p. 441,) — the Boyd was bound to avoid the Rolf, which had the wind on her starboard side, and was liable for her failure so to do.</p>

<p>L Collision — Vessel at Bulkhead — Landing Outside — Risk.</p> <p>The landing of a heavy vessel in a strong tideway outside of a light vessel, which is lawfully moored at a bulkhead, is wholly at the risk of the vessel so attempting to land, and she is liable for any injury she may inflict on the vessel at rest.</p> <p>& (Same — Tug and Tow — Improper Landing — When Both Liable.</p> <p>Where a tug with a tow alongside attempts to land outside another boat, and both tug and tow concur in making the attempt, and a bad landing is made through the influence of both, both are responsible for any damage such landing may occasion.</p>

<p>In Equity. Bill by tho Farmers’ Loan <fe Trust Company against the Grape Creek Coal Company to foreclose a mortgage.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Virginia.</p> <p>Statement by Fuller, Circuit Justice:</p> <p>This was a bill filed by Samuel Knox against the Columbia Liberty Iron Company, alleging that the company had purchased a large tract of iron ore and woodland for the expressed consideration of $270,000, which was paid in its stock and in 6 per cent, first mortgage bonds to the amount of $150,000, the total issue of which was for $219,000, the balance having been pledged as collateral security, and in 6 per cent, second mortgage bonds to the amount of $145,000; that the mortgages bore the same date, and were secured upon the tract of land, and all the property of the company of every description, and its corporate franchises. It was further averred that complainant was the holder of certain of said mortgage bonds of both issues; that default had been made in the payment of interest after demand; that complainant had made various loans to the-company, which it had failed and was unable to pay, and that there were other liabilities represented by promissory notes, open accounts for merchandise and supplies, and for wages and salary; that the company was insolvent, and had not the funds to carry on its ordinary business, although a large income could be derived therefrom, and to avoid the sacrifice of the property, and the disastrous consequences of suspending its business, it was necessary that a court of equity should interpose for the immediate appointment of a receiver, with power to administer the company’s affairs. The bill prayed for such appointment, for injunction, and general relief. The company filed its answer, in which it “admitted the truth of the averments, and submitted its interests to the court; ” and the court appointed two receivers for the company, with authority to continue its operations, and with instructions to report to the court the condition and circumstances of the company, and its liabilities and debts.</p> <p>On September 80, 1886, several creditors of the company filed a petition in the cause by leave of court, on behalf of themselves and other similarly situated, setting up certain supply claims recorded by them under the act of the general assembly of Virginia of April 2, 1879, averring that receivers’certificates had been issued; that there wore many other like claims; that the affairs of the company were not improving; and praying that the proper accounts might be taken, and a decree for the sale of tlic property bo granted. On October 14, 1886, the cause was referred to a special master to ascertain and report the debts outstanding against the company, not including the first and second mortgage bonds, and the prioriiies of the debts, if any. On the 4th of February, 1887, a petition was filed on behalf of one Pollard and all other creditors of the company who might avail themselves of the' benefit of the same, praying for the removal of' the two receivers, and the appointment of a single receiver. This petition (and rule thereon rendered) was answered by both of the receivers, one of whom stated “that he accepted the position of receiver of said company only at the request of Mrs. Mary W. Pearson, George W. Pearson, and Chas. L. Pearson, of Trenton, N. J., the largest holders of the capital stock of said company, and who now own or control a , majority of both the first and second mortgage bonds, and of the complainant Samuel Knox, the petitioner Pollard, and Jacob Wissler;” and expressing entire willingness to relinquish the trust. On the 17th of February, 1887, Mary W. Pearson, Charles L. Pearson, and George W. Pearson, of New Jersey, filed their petition in the cause, by leave of court, setting forth their ownership of 1,885 shares of the capital stock of the iron company; and also that they were holders of 107 of the first mortgage bonds of the company in their own names, and others as collateral; and also of 112 of the second mortgage bonds; and stating that they were not satisfied with the present management of the receivers; that one of said receivers was named at the instance and request of said petitioners and others, and still had their entire confidence, but that a disagreement between the two militated against the proper management of t he trust; and they requested the appointment of one Wissler as sole receiver. Thereupon the receivers wore removed, though not upon any ground reflecting upon them personally, and Wissler appointed.</p> <p>On February 14, 1887, the report of the master was filed, setting forth the outstanding indebtedness, not including the first and second mortgage bonds, and awarding priority to the labor and supply claims as stated therein. To this report exceptions were filed on behalf of a large number of claimants and creditors, and among others, on the 14th of March, 1887, exceptions by Mary W. Pearson, Charles L. Pearson, George W. Pearson, and R. R. Yard, creditors and bondholders of the company, their 1st, 2d, and 3d exceptions being:</p> <p>■ “So far as it reports ‘all labor claims open on the books of said company up to June 10, 1886, and closed on that day per the several statements Bled by the claimants or their assignees. Said claims fell due on said June 10, 1886, and if even not recorded on the 14th of October, 1886, should be reported as subsisting liens, in the intent and meaning of the statute, and must be reported with priority as of that date with the common class, with all that stood unrecorded on that day, even should any of them have been recorded after-wards.’ (2) Because he reports the words • office agent,’ used in the statute, as applying to the position of treasurer of said Columbia Liberty Iron Company. (3)' As improperly construing the words ‘conductors’ and ‘captains,’ as applying to the position of managers.”</p> <p>Several other exceptions questioned the allowance of particular items as liens, or in respect of priority or of amount. The report was recommitted, with instructions to consider any testimony upon the various exceptions, and another report was made on May 11, 1887, to which exceptions were filed. The report and exceptions related particularly to the construction of the statutes of Virginia in relation to labor and supply claims, and as to whether claimants were barred under that statute, and generally to the classification of claims. The report was again recommitted, and on June 17, 1887, the court by decretal order of that date directed the master to make, state, and settle the following accounts: (1) An account of the indebtedness of the company due by mortgage or deed of trust upon its property, and by whom and in what proportions held, and how evidenced, and the priorities or equities among the several holders or claimants thereof. (2) An account of other indebtedness of the company, together with any priorities by way of lien or otherwise; and in this connection stating specially any lien of any sort that might subsist against any part of the company’s property, so stated that there might appear a full and correct account of the company’s indebtedness, and with the respective priorities of the same, with a view to a sale of the property. (3) An account of the property, real and personal, of the company. (4) Any other account which any part}' in interest may require or the commissioner may deem of importance.</p> <p>On August 31st, a partial report of the Special.master waá made. This was followed by a decree September 8, 1887, disposing of the various exceptions to the master’s reports, overruling, among others, the first exception of Mary W. Pearson and others, and sustaining exceptions to particular items. It was decreed, among other things, that all claims for labor and supplies that had not matured more than six months before the order of reference, October 14, 1886, or, having matured more than six months prior thereto, had been recorded, should be liens upon the property and franchises of the company superior to that of the bondholders of the company, and must be paid before said bonds; that all claims which had matured more than six months prior to October 14, 1886, and not recorded as required by the statutes of Virginia, within six months after maturity, were not liens on the company’s property, and were subordinate to the bondholders; that, as between claims for labor and supplies furnished said company, the labor claims were prior, and must be paid first; and that the president, treasurer, secretary, and manager were not entitled to priority, but must be treated as general creditors. It was further ordered and decreed that the special master proceed and complete his accounts as directed by the decretal order of June 17, 1887, stating therein all liens upon the property of the company in the order of their priority, in accordance with the opinion of the court expressed in the decree. The disposition of one claim was reserved for further consideration on the master’s report.</p> <p>On September 24, 1887, a report was made by the master, stating the accounts specifically as directed. Exceptions were filed to this report by Mary W. Pearson and others in respect of two specified claims. On October 14, 1887, a decree was entered reciting that the cause came on to be beard upon the papers formerly read and proceedings theretofore had, the report of September24th, etc., and overruling the exceptions to the report, which report was approved and confirmed, and special commissioners appointed (all parties in interest waiving delay for redemption) to make sale of the property in question, at public auction as prescribed, for one quarter cash on confirmation, and the balance in one, two, and three years, with interest from day of sale. The property was accordingly sold on January 5, 1888, to George W. Pearson, for $51,-000, and by decree of May 2(5, 1888, the report of the sale, under the decree of October 14, 1887, was confirmed, there being no exceptions; a (hsed directed to be given; payment of the costs of suit and of sale out of the cash payment and distribution of the balance ordered; and settlement of the receiver’s accounts. Provision was also made for the collection ol' the deferred payments, to be disbursed under future order of court.</p> <p>May 8, 1889, Mary W. Pearson, George W. Pearson, and Charles L. Pearson, on behalf of themselves and all other holders of the first mortgage bonds of the company, applied to the court for leave to file a petition for rehearing or bill of review to review the decrees of September 8, 1887, and October 14, 1887, and on July 19, 1889, leave to do so was granted. The prayer of this petition or bill of review was that the decrees named should be reviewed, reversed, and set aside, so far as they established and adjudged the rights of other creditors of the company to be superior or equal to those of petitioners. The petition sot forth the various orders, proceedings, and decrees heretofore referred to, and claimed that there were no superior equities in favor of the labor and supply claims entitling them to a lien superior to the mortgage bonds; that the acts of the legislature of Virginia, which it had been held created a prior lien in favor oí those claims, were unconstitutional and void; that the petitioners were entitled to a vendor’s lien upon the property; and that the special master erred in refusing to recognize this lien, and in giving the labor and supply claims superiority to the first mortgage bonds. To the filing of this petition or bill the labor and supply claimants objected, and after it had been filed, by leave of court, demurred, assigning as grounds that the petitioners bad no vendor’s lien; that the acts of the Virginia legislature referred to wore not unconstitutional and void: and that the petition did not allege that the matters therein set up had been discovered after the rendition of the decrees complained of, and could not have been produced by the use of due diligence before. They also filed an answer in which they denied any error in the decrees, the existence of any vendor’s lien, and the unconstitutionality of the legislative acts; and contended as to the latter that, if a defect existed, it had been cured by section 2485 of the Virginia Code of 1887. They also insisted that their equities were superior to those of the bondholders, and that the latter were estopped by the decrees, and their own acquiescence in them, or by lapse of time. The answer further claimed that the capital stock of the company had never been paid in, and constituted a fund for the payment of debts. December 19, 1889, the court rendered a decree, which sustained the first ground of demurrer, that as to the vendor’s lien, and overruled the others, and reheard and set aside the decrees in question, and referred the cause to a special master, who reported, February 17, 1891, that only the mortgage bonds which were held as collaterals for loans by the company ought to be held to'have been negotiated, and to constitute valid liens under the mortgages; that the bonds apportioned among themselves by the original corporators of the company could not, as against the creditors of the company, be said to have been negotiated, and were not, therefore, liens; that the labor claims were prior liens upon the franchises and property of the com pan jr, and that the supply claims were also such prior liens; that, if this were,not so, the sale should be set aside, and such creditors permitted to bid; and that there were unpaid subscriptions to the amount of $218,625, which he was of opinion was a trust fund for the payment of debts, and should be collected from the delinquent subscribers. Various exceptions were filed by the parties in interest. On July 1, 1891, the court entered a decree that the labor and supply claims had no priority, and that the capital stock of the company had been fully paid, and was not liable to assessment for the payment of debts, and directing payment in the order therein stated. From these decrees the labor and supply creditors were allowed an appeal.</p>

In Equity. Bill lor an injunction to prevent the Western Union Telegraph Company from constructing and operating a telegraph line on the right of way of the Seattle, Lake Shore & Eastern Railway Company between certain stations. The court having granted a restraining order pendente lite, the defendants moved to vacate said order.

* In Error to the Circuit Court of the United States for the Southern Division of the Eastern District of Tennessee. Action by Mrs. Hattie A. Bennett and her husband, John R. Bennett, against the New York, Lake Erie & Western Railway Company for damages. Verdict and judgment for plaintiff. Defendant brings error. A motion to dismiss the writ of error was heretofore denied, (49 Fed.

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Replevin by the United States against Christopher Steenerson and others, copartners as the Clear Water Land & Logging Company, Hugh Thompson, and Marcus Johnson, for certain logs. There was judgment for defendants, and plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>Action by William Berry and others against Knights Templar & Masons’ Life Indemnity Company. Trial to the court. Judgment for plaintiffs. Defendant brings error.</p>

<p>Malicious Pkoseootios — Puxitoki Dawaobs — Pnovnrcns off Jeby.</p> <p>In an action tor malicious prosecution, the amount oí punitory damages is peculiarly a mat1 or tor the jury, and a verdict Xor the sum oi §>13,ñü0 will not be set aside or remitted in paid, in the absences of prejudice, perverseness, or corruption, merely because the judge thinks it was larger than it should have been.</p>

<p>1. Attorney — Dismissal by Receiver.</p> <p>The receiver of an insolvent bank may at any time dismiss an attorney employed by him. regulai-ly or otherwise, to prosecute claims of the bank, andemploy another in his place, whom the court will, by order, substitute in the place of the dismissed attorney, except as to such cases as the latter may have commenced and finished.</p> <p>2. Same — Security eoe Services Rendered.</p> <p>A contract having been entered into between the receiver and the attorney that the latter should receive the attorney’s fees provided for in the notes he was employed to collect, the court will not direct the substitution of another attorney in unfinished cases, until the receiver deposits the amount of the attorney’s fees reserved in the notos as a security to the dismissed attorney for such services as he may have rendered.</p>

<p>■ In Equity. Suit by Angelica Wakelee against Erwin Davis. Plaintiff moves for an attachment against defendant and his attorney, T. D. Kenneson, for contempt.</p>

<p>At Law. Application of Robert Iron Skiles for writ of habeas corpus.</p>

<p>1. Coktemft — Habeas Cobfus — Removal of Child — Jurisdiction of State Court.</p> <p>A lather, directed by writ oí habeas corpus to produce his-child before a state judge, caused the child to he removed without the limits of the state, and kept there in the custody of an agent, subject to the control of the father, for the purpose of defeating the jurisdiction of the state judge. Meld, that the child was constructively in the possession of the father, and that the fact of its being without the state did not affect the jurisdiction of the state judge to fine and imprison the father for contempt in disobeying the writ of habeas corpus.</p> <p>3. Same — Due Process of Law.</p> <p>In such ease, the fine and imprisonment were not “ without due process of law,n and the circuit court of the United States has no jurisdiction of a petition by the father for a writ of habeas corpus on that ground, whether the action of the state court in imposing the punishment was or was not erroneous.</p>

At Law. Indictment against William Grimm for mailing lewd, lascivious, and obscene letters, in violation of Rev. St. TJ. S. § 3893. A demurrer to a former indictment was sustained on the ground of uncertainty in the allegations, (45 Fed. Rep. 558,) whereupon the defendant was reindicted. Verdict of guilty. The case is now heard on motion for new trial and motion in arrest of judgment. The letters as set out in the indictment were as follows: “WM.

<p>1. Patents for Inventions — Novelty—Refrigerators.</p> <p>Letters patent No. 343,309, issued June 8, 1888, to Charles Haffcke, cover the combination in a refrigerator of an ice bowl or rack in the upper part, with open bottom formed of two sets of slats, the upper convex and the lower concave, so arranged that the latter catch and carry off the drip, the ice bowl being detached from the sides of the refrigerator, so as to allow tho free circulation of air, together with thin crates of salt set. on edge near the ends and at the back of tho chamber of the refrigerator, detached from the walls, and held by slats or woven wire, with open interstices, that allow the air coming directly down from the ice free circulation through the salt, producing- an automatic circulation of cold, dry, saline atmosphere, having extraordinary and unprecedented efficacy in preserving meats, etc., in sound condition for unusual periods oí time. Held, that the invention is novel and patentable.</p> <p>2. Same — License to Partnership — Effect of Dissolution.</p> <p>A patentee entered into partnership with another for a term of years, unless sooner dissolved by consent, for the purpose of manufacturing the patented article, the patentee contributing tho right to manufacture under his letters patent, and the other a sum In cash. Held, that on dissolution of tho partnership the license-expired, and the exclusive right to the patent remained in the patentee.</p>

In Equity. Bill by Herman H. Bothe against the Paddock-Hawley Iron Company for infringement of letters patent No. 315,246, issued to complainant October 19,1886, for an improvement in wagon stake pockets. Decree dismissing the bill. Complainant appeals.

<p>Patents for Inventions — Invention—Tubular Handled Tools.</p> <p>Letters patent No. 241,171, issued May 17,1881, to James Beecher, for an improvement in the manufacture of cutlery and tools, consisting in simultaneously welding a tubular handle to a blade, and closing up the opposite end of the handle by forging between dies, possesses patentable invention.</p> <p>Same — Infringement.</p> <p>In the Beecher patent the handle was formed of a rectangular plate, which was formed into a cylinder, the joint being welded. This was then raised to a welding heat, and placed between dies, so that the blow of the hammer produced a lap weld at the end of the handle. Defendant used a plate having lobes or projections at the ends, and, after being formed into a cylinder, these lobes were bent inwards, and the dies were so constructed that in operating upon this formation they pro-ducedabutt weld. Held, that the processes were radically different, and there was no infringement.</p>

<p>In Equity. Bill by Royal E. Robbins and others against the Illinois Watch Company and others, to restrain an alleged infringement of certain patents.</p>

<p>1. Patents fob Inventions- — Reissue—Expa^-utox of Claims — Watches.</p> <p>In reissued patontNo. 10,631, granted August, 4,1885, to Robbins and Avery, claim 1 was as follows: “As an improvement in stem winding and setting watches, a winding and hands-setting train, which is adapted to be placed in engagement with the winding wheel or the dial wheels by tho longitudinal movement of a stem arbor that has no positive connection with said train, substantially as and for the purposes specified. ” The first claim of the original patent was for the same, with tiie additional condition that the train is normally in gear with the setting wheels. He,Id, that the objection that the claims of tho reissue are broader and more comprehensive than the original is obviated by the clause “substantially as and for the purpose specified, ” which relates back to the original specifications and drawings, and brings them into tho claims. Robbins v. Aurora Watch Co., 43 Fed. Rep. 526, followed.</p> <p>8. Same.</p> <p>And hence claim 3, which is for “a winding and hands-setting train, which is adapted to he placed in engagement with the winding wheel or the dial wheels by the longitudinal movement of a stem arbor, and is normally in engagement witti such dial wheels, substantially as and for the purpose set forth, ” is not objectionable for expansion on the ground that the corresponding claim of the original adds the condition that the winding arbor is without positive connection. Robbins v. Aurora Watch Co., 43 Fed. Rep. 526, followed.</p> <p>8. Same — Claims fob Results.</p> <p>These claims are not objectionable as being claims for results or functions rather than for devices, for the concluding phraso relates back and includes in them the devices shown by the specifications and drawings of the original patent. Robbins v. Aurora Watch Co., 43 Fed. Rep. 526, followed.</p> <p>4. Same — Anticipation—Watch Winding and Setting Mechanism.</p> <p>Reissued patent No. 10,681, granted August 4,1885, to Robbins and Avery, trustees, under mesne assignments from the inventor, Church, for an improvement in stem winding and setting watches, embodied the following elements: A winding and setting train, mechanically unconnected to a short stem arbor, capable of winding and setting the watch .by its rotation; also adanted to be pushed into winding engagement by the inward movement of the stem'arbor, and automatically shifting to the setting engagement whenever the stem arbor is withdrawn from its winding position. Held, that this was not anticipated by a patent to one Wheelor for a lever set moyement, with a train shifted by means of a lover or finger bar from tho winding to the setting engagement, which train, however, cannot bo shifted by a longitudinal movement by the stem arbor, for its arbor has no such movement, and no relation to the train by which such a movement could produce the desired result.</p> <p>5. Same — Infringement—Mechanical Equivalent.</p> <p>This reissue to Robbins and Avery, being valid, and covering a patentable novelty, is infringed by a stem setting and winding movement used by defendant the Columbus Watch Company, whose elements are either the same or the mechanical eguivalents of those of the patent.</p> <p>6. Same — License.</p> <p>Though defendants sold their infringing movements for use in a watch case of which plaintiffs owned the patent, it did not thereby become an infringer of the case, where the sales were made to persons licensed by plaintiffs to manufacture such case.</p>

<p>In Admiralty. Libel by Samuel P. Hall and others against Joel F. Sheppard and others for damages occasioned by stranding at respondents’ wharf.</p>

<p>In Admiralty. Appeal from the circuit court of the United States for - the southern district of New York, affirming pro forma a decree of the district court of the United States for the said district, dismissing the libel.</p>

<p>1. Carriers bt Sea — Stipulation Exempting most Negligence.</p> <p>It is the settled law of the federal courts that an express stipulation exempting a common carrier, whether foreign or domestic, from liability for losses caused by the negligence of himself or his servants, is contrary to publio policy, and cannot be enforced against the shipper.</p> <p>2. Same — Contract op Carriage — Disputes to be Settled According to British Law.</p> <p>A clause in the contract providing that all questions arising under the contract shall bo settled according to British law is a nullity, as an attempt to impress upon the contract a construction which our law rejects as contrary to public policy.</p> <p>3. Same — Transportation oe Cattle — Negligent Pitting.</p> <p>Cattle were shipped on a British steamship under a contract which provided that the shin was to furnish the iittings for the cattle, hut the shipper was to assume all risks of the fittings, the ship not to be responsible for any injury to the cattle arising from any cause, and all controversies to be decided according to British law. By the negligence of the employes of the ship, part of the fittings were not sufficiently secured, which fact was unknown to the shipper, and in an ordinary gaie they gave way, and some of the cattle were killed. Held, that the ship was liable.</p>

<p>1. Saiatage- .Disthibotiox among Sai.voks — When Objection to Will sot Lie.</p> <p>Seamen, who authorized the owner of their vessel to make settlement in their behalf of all claims for salvage, cannot, after the settlement, collect against the property saved, ii dissatisfied with the share of the award allowed them by such owner.</p> <p>3. Same — Remedy—Piiopee Pabty to Sue.</p> <p>In such case, their remedy is by libel in admiralty against the owner of their own vessel to recover their share of the award.</p>

Libel by George Smith, master of the vessel, against Harrison, Frazier & Co. to recover demurrage from unloading the cargo with “ customary quick dispatch” according to the terms of the charter.

Ill Admiralty. Libel by shipper of cattle for damages arising out of the breaking of the shaft of the steamship Caledonia.

<p>Tm»S AND TOWS — NEGLIGENCE—llNSEA WOKTItT TOW.</p> <p>When a scow in tow of a tag careened and lost overboard her deck load of brick, and the court found that the leaky and unseaworthy condition of the scow was the cause of the accident, but also that the master of the tug had not made the usual examination to ascertain her condition before undertaking to tow her, it was held that both tug and tow were in fault, and the owner of the scow should recover against the tug but half his loss.</p>

<p>Salvage — Scows Adeiet in G-ale — Towage to Poet.</p> <p>Four scows, employed in carrying refuse from New York to the dumping grounds outside of Sandy Hook, were blown out to sea in a violent gale. Two men were aboard each scow. Tugs went out to search forthem, but were unable to find them, and could not have brought them in if they had been found, so heavy was the weather. Libelant’s tug Luckenbach, a powerful seagoing vessel, worth S60,000, and carrying a crew of 11 men, then put out from New York, and, on one trip, discovered two of the scows 60 miles from Sandy Hook, and, on a second attempt, found a third 70 miles at sea. These were brought safely into port; the fourth scow was never recovered. The three scows would in all probability have been lost but for the Luckenbach. The latter was the only boat, save one, capable of rendering the service, and that one was unsuccessful. The work was of unusual difficulty, and was attended with danger to the tug. Held, that the libelant should receive, as salvage, one third of §26,000, the value of the scows.</p>

<p>In Admiralty. Libel by Richard Jones and another against Car Float No. 5.</p>

<p>1. Salvage — Contract.</p> <p>A contract to pay for salvage service a fixed price absolutely, without respect to success or failure, does not change the character of the service. It remains a salvage service, hut the measure of compensation is gauged by the contract, and not by the danger encountered, or the value of the property salved.</p> <p>2. Salvage — Jurisdiction—Lien.</p> <p>A contract to pay a fixed price for a salvage service, in any event, does not affect the admiralty jurisdiction, nor the lien granted by the maritime law for salvage service.</p> <p>3. Salvage — Fbaudulent Contbact.</p> <p>A contract between the salvors and the owner of the ship, for a fixed sum payable in respect of the ship, and for a larger sum payable in respect of the underwriters, is tainted with fraud, and will not he enforced.</p> <p>i. Salvage — Mastek’s Cektieicate — Fbaud.</p> <p>Settlements by the master, deliberately and fairly made, are upheld. But such settlements, made pursuant to and in furtherance <⅛ a contract to defraud underwriters, will not be sustained.</p> <p>!>. SALVAGE — iNEl'PIfilKNCT Or WBECKING OUTFIT — HIRING BY THE DAY.</p> <p>Compensation cannot be abated for inefficiency of wrecking material hired at a fixed price by the day, and subject to discharge at. the will of the master. Retaining the service, the contract compensation must be paid.</p> <p> (.Syllabus by the Court,.) </p>

<p>In Admiralty. Libel by Napoleon B. Ulrich against the steamtug Brinton and the steamer Wilkesbarre for collision.</p>

<p>In Admiralty. Libel in personam by the Hamilton & Merryman Company, owners of the schooner Butcher Boy, against Thomas H. Smith ;and others, owners of the tug George Nelson, the tug Jesse Spaulding being summoned as co-respondent under admiralty rule 59.</p>

<p>Collision — Vessels at Rest — Negligent Lookout.</p> <p>On the evidence in this case, the court' found that libelant’s boat-, which claimant averred was closehauled on the port tack at the time oí collision, while his boat, the N. C., was closehauled on the starboard tack, was in reality at rest, attached to a trawl, and in plain sight of the N. C., which admittedly had no lookout. Held, that the N. C. was liable for the collision.</p>

<p>Collision — Sail Vessels Beating — Stakboard and Pont Tacks.</p> <p>Two schooners, the B. and the E., were close hauled on the starboard tack. The time was night, the weather clear, and lights could he seen plainly. The E. went abo&t on the port tack, and afterwards collided with the B. Her claim was that the B. had run .across her how before she had recovered headway after tacking. Held, on the evidence, that the E. had recovered her headway, and, being on the port tack, was hound to avoid the B. on the starboard tack, and hence was liable for the collision.</p>

<p>CoujHtox — Steam Vissskls Meeting — Lights—-Helm.</p> <p>The steamer S. T. and tbe lug A. met at night in Long Island Sound. The A. alleged that sha saw all the lights oí the steamer about a mile away, and ported; that, not losing the steamer’s green light, she blew one whistle, and again ported; that, hearing thereafter two whistles from the steamer, she blew alarm whistles, and reversed. The steamer alleged that she saw only the green light of the tug; that she starboarded to pass under the stern of a sailing vessel; that thereafter she heard two whistles from the tug, and further starboarded, and her two whistles were repeated; that, though she shortly afterwards saw that the A. was coming to port, she kept on at full speed, her only chance to avoid collision, by that time, being to get across the bows of the tug. The latter hit the steamer on her starboard side about amidships. The court finding, on the evidence, that the vessels wore meeting end on, or nearly so, held, that the failure of the steamer to appreciate the relative positions of the vessels, and her consequent starboarding, were the causes of the collision, for which, therefore, the steamer was in fault. 44 Pod. Rep. 687, affirmed.</p>

<p>Collision — 'Vessels at Piers — Obstruotin» Perry Slip — Sagging-.</p> <p>Where the evidence indicated that libelant’s canal boat was projecting some 80 feet across the mouth of a ferry slip, contrary to the city ordinances, and the lights of the canal boat were hidden by a tug until the ferryboat was within 100 feet, and that the approach of the ferryboat was careful, and, after the lights of the canal boat were seen, the best that the ferryboat could do, in view of the locality and the tide, was to go ahead, and not stop and back outside of the slip, it was held that the ferryboat was not in fault for entering her slip, nor for the collision which ensued by the sagging of her quarter against the encroaching boats.</p>

<p>I. Collision — Steam Vessels Crossing — Starboard Hand — Signals—Reversing.</p> <p>A steam tug was going up the North river with a car float alongside. A ferryboat started from New York to Conmmnipaw, the courses of the vessels thus being crosswise courses, with the ferryboat on the starboard hand of the tug. The ferryboat slowed about one third of the way across the river to allow a raft to pass. She then started up, and a half minute after gave one whistle to the tug, when the latter was 500 or BOO feet below her in tho river. The tug gave no signal, and the floatshortly afterwards struck the ferryboat. Held, both in fault, — the tug, (1) for not going to tho right, (S) for not signaling her direction to the ferryboat, (3) for not reversing in a situation that involved risk of collision; the ferryboat, for not giving the signal indicating her intention to pass ahead of the tow until if was too late to be of any use.</p> <p>2. Savk — Traía,y Signals — Inspeotob’k Rules.</p> <p>“The giving of timely signals, in obedience to tho inspector’s rules, is among the cumulative means provided by law for avoiding collisions, is necessary in harbor navigation, and the failure to observe this rule is ono of the most prolific causes of disaster. ”</p>

At Law. A motion to proceed with the trial of this case, removed from the state court, the state court having declined to recognize the right of removal, and tried the case.

<p>In Admiralty. Libel to recover penalty for violation of the passenger act of 1882.</p>

<p>In Admiralty. Libel for salvage.</p>

<p>1. Salvage — Different Sets op Salvors — Award to .Eater Arrivals.</p> <p>Though subsequent events sometimes show that of several salvors the services ol those arriving .later could have been dispensed with, such later salvors are not to be deprived of all share in the award if they rendered accepted aid.</p> <p>S. S.vvir — Fire ox Vessel — 'J’uos—City Fire Department.</p> <p>Fire, broke out on a lighter lying-in a slip ⅛ New York city. The city fire department began work on the fire, and shortly afterwards came two tugs, which pumped water on the llames. Afterwards came the harbor fire boat, to which one of the tugs surrendered her place. The value of the property- saved was 817,000; one tug was worth 815,000, the other ⅜13,000. líe,Id, that the tug first to arrive should receive 8300 as salvage, and the other 81’5.</p>

<p>Appeal from the District Court of the United States for the Southern District of .New York.</p> <p>In admiralty. Libel by Thomas B. Bowring and others against the Providence Washington Insurance Company. Decree for libelant. 46 Fed. Rep. 119. Respondent appeals.</p>

In Admiralty. Libel by Oliver H. Perry and others, as owners of the schooner Joseph Wilde, against the steamer Nessmore for collision. Decree below holding the Nessmore solely in fault.

<p>In Admiralty. Libel by Mortimer E. Law against the tug Komuk and the tug Don Juan for collision.</p>

<p>In Admiralty. Libels for collision, and for personal injuries caused thereby.</p>

<p>In Admiralty. Libel for collision.</p>

<p>Collision — Lights—Obscuration by Tow.</p> <p>A tugboat, called “No. 13, ” was going up the North river, with a barge on her port side. The pilot house of the barge hid the red light of the tug from the tug Buffalo, which was crossing from Jersey City to New York, and had No. 13 on her starboard hand, so that the vessels were not seen till within 400 or 500 feet of each other. The vessels in tow of the tugs collided. Held, that No. 13 was navigating in violation of the rule that requires lights to be visible for 10 points around the horizon; that she took the risk of such condition of her lights, and was solely liable for the collision.</p>

<p>In Admiralty. Libel for collision.</p>

<p>1. Federal Jurisdiction — Validity op Railroad Grant — Adverse Holding.</p> <p>In ejectment, plaintiff claimed title under a railroad land grant, alleging as ground of federal jurisdiction that defendants denied the validity of the grant. The pleadings and evidence showed that defendants not only asserted the validity of the grant, but themselves claimed title through one holding under the grant. field, that the action must be dismissed for want of jurisdiction.</p> <p>2. Same — -Pleadings.</p> <p>An allegation by defendants that G-., their predecessor in interest, at a certain time was holding the premises in controversy adversely to S., plaintiff’s predecessor in title, who held under the railroad grant, there being no allegation that G. or his successors were so holding aaversely to S. at the time the action was brought, was insufficient to show a holding adverse to the grant.</p>

<p>At Law. Action by L. Laskey and A. R. Conklin against the New-town Mining Company. Demurrer for want of jurisdiction.</p>

<p>1. Removal of Causes — Condemnation Proceedings.</p> <p>The rule ol the New Hampshire supreme court, requiring special pleas In pro» eeedings at law to be tiled within 90 days from the commencement, of the term at which the action is entered, is applicable to railroad condemnation proceedings, and therefore, under the removal acts of 1887 and 1888, such proceedings can only be removed before the expiration of that period.</p> <p>3. Same — Removai. by Plaintiff.</p> <p>If, in condemnation proceedings, the landowner be regarded as plaintiff, (as seems to be the rule of practice in New Hampshire,) then he has no right to remove at any timo, as a removal by plaintiff is not provided for in the removai acts of 1887 and 1888.</p>

In Equity. Bill by E. S. Coe and David Pingree, trustees, against Walter Aiken, the Boston, Concord & Montreal Railway Company, the Mount Washington Railway Company, and the Concord & Montreal Railroad Company, to determine certain rights with reference to corpora* tions, land, and other property, and for specific performance and accounting. Heard on a plea to the jurisdiction.

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>In Equity. Suit by the Seibert Cylinder Oil Cup Company against the Newark Lubricator Manufacturing Company, Charles Couso, president, and William H. Hedges, secretary and treasurer, thereof, for infringement of letters patent No. 138,243, for an invention relating to lubricators used in steam engines. There was judgment for plaintiff, (35 Fed. Rep. 509,) and defendant Hedges alone appeals. Motion to dismiss appeal.</p>

In Equity. Bill by Jane Atmore, administratrix, and the heirs at law of Ann Jones, deceased, against John H. Walker, administrator d. i. n. c. t. a., and the-heirs at law and creditors, of Joseph Dean, for a construction of the will of the said Joseph Dean. Decree below was infavor of complainants. See 46 Fed. Rep. 429. Defendants appeal.

Hu it by the city of Somerville against Thomas P. Beal, receiver of the Maverick National Bank, to recover the proceeds of certain checks. From a final decree for plaintiff, defendant appeals.

In Equity. Bill by Hitchcock Bad others, as stockholders of the Brooklyn Elevated "Railroad Company, against Barrett and others, to restrain the latter from exercising any acts of ownership over certain „shares of stock, and to enjoin the company from recognizing their claim to title therein.

In Equity Exceptions to answer of Coke Ewing. This was a suit in equity to foreclose a mortgage.

In Equity. Bill by Albert Graff and J. F. Donnell against Emile Boesch and Martin Bauer, for infringement of letters patent No. 289,-671, issued December 4, 1883, to Carl Schwintzer and Wilhelm Graff, of Berlin, Germany, who assigned one half thereof to J. F. Donnell & Co. of New York. Infringement was found by the trial court, (33 Fed. Rep. 279,) and a decree was afterwards entered for damages.

<p>Equity Practice — Dismissal by Pjlaistief — Mastek’s Report.</p> <p>At a hearing before a master it was agreed that, prior to the filing of his report, a draft should be submitted to counsel, in order that they might present objections thereto. The master, however, inadvertently filed the report without so doing. Subsequently he withdrew it by consent of counsel, other proceedings were had before him, and objections were presented to the report. Meld, that the cause stood as if no report had ever been filed, and that defendant had acquired no such right as would exclude the operation of the general rule that, where defendant demands no affirmative relief; complainant may, upon paying costs, dismiss his bill at any time before interlocutory or final decree.</p>

<p>1. Jurisdiction op Circuit Court — Suit against Nonresident Administrator— Appointment by Domestic Court.</p> <p>The circuit court of the United States in Louisiana has jurisdiction of a suit by an attorney residing in that state against a nonresident administrator appointed by a Louisiana court, to enforce an attorney’s lien on a judgment recovered by the attorney for the administrator.</p> <p>3. Same — Jurisdiction oe State Court.</p> <p>Such jurisdiction is not affected by the fact that the state laws give exclusive jurisdiction of such a suit to the probate court of the state.</p> <p>8. Attorney’s Lien — Contingent Pees.</p> <p>A contract made by an attorney with the tutor and tutrix of minor heirs for a contingent fee of 10 per cent, on the recovery, if any, in a suit brought by the attorney to enforce a claim of the heirs, there being no means of paying counsel fee» except out of the recovery, is valid, and entitles the attorney to alien on the recovery of his fee.</p>

<p>In Equity. Suit by Alfred Goldthwaite against W. W.Whitney, administrator of the succession of Myra Clark Gaines, to enforce an attorney’s lien.</p>

<p>L Public Lauds — Timber Estríes — Refusal of Certificate.</p> <p>In a suit by the government to restrain defendant from cutting timber from a quarter section of public land, defendant filed a cross bill alleging that lie had made application to purchase the land in q uestion under the stone and timber act, (20 St. p. 89,) and complied with all the statutory requirements in that respect; but upon tender of the purchase money the local land officers refused the tender, and declined to issue a certificate of entry and purchase. Held, that defendant had acquired no vested interest in the land, a.nd the government was entitled to withdraw it from sale. The Yosemile Valley Case, 15 Wall. 77, followed.</p> <p>9. Same — Injunction---ñu fitcieuct os Cross Bill.</p> <p>The cross bill having failed to show that the cross complainant was prevented from entering the land by reason of any fault on tho part of the land officers, the rule that where one offers to do anything upon which the acquisition of a right depends, and is prevented by the fault of the other side, had no application to the case. Ar, allegation that such officers combined to deprive cross complainant of the land, without slating the acts done or omitted in pursuance of the combination, was insufficient to make the rule applicable.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado, sitting at Denver.</p> <p>Bill, in equity by the Maxwell Land Grant Company against Vicente Preteca and others to quiet title and restrain trespasses. There was a decree for complainant, pursuant to a stipulation filed, and defendants appeal.</p>

<p>Error to the Circuit Court of the United States for the District of Delaware.</p> <p>Petition by the Postal Telegraph-Cable Company for a writ of mandamus to compel the Delaware & Atlantic Telegraph <& Telephone Company to place a telephone transmitter and receiver in the office of relator on the same terms as are given to other subscribers. The petition was originally brought in the superior court of the state of Delaware, for New Castle county, and was removed therefrom to the court below, which awarded the writ as prayed. See 47 Fed. Rep. 633. Respondent brings error.</p>

<p>At Law. Action by the Gottschalk Company of Baltimore City against the Distilling & Cattle Feeding Company of Illinois. Motion to set aside the return of service.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>Action by R. S. Willis, P. J. Willis, and J. G. Goldthwaite, trading as P. J. Willis & Bro., against J. H. Rector and C. T. Ryan on a promissory note. Ryan defaulted, and the court having, after trial, directed a verdict for Rector, the plaintiffs bring error.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>This vas an issue as to the right to property levied on by Henry C. Pyeatt and .James C. Kirby under an execution against William P. McClellan, and claimed by Charles M. McClellan. The issue was found for plaintiffs, and judgment rendered, against Charles M. McClellan and D. W. Lipe, the surety on his bond, and they bring error.</p> <p>For .decision'oil1 motion to dismiss the writ'of error and vacate the su-persedeas, see'49 Fed. Rep. 259. ’</p>

<p>In Error to the Circuit Court of the United States, Northern District of Minnesota.</p> <p>Action by Charles Stabler against the village of Alexandria, Douglas county, Minn., for personal injuries. Verdict and judgment for plaintiff. Defendant brings error.</p>

<p>At Law. Action by Albert L. Fessenden against Samuel N. Barrett and others to foreclose a mortgage. Defendants moved to dismiss.</p>

<p>At Law. Proceedings by the United States to obtain a review of a decision of the board of general appraisers reversing a decision of the collector.</p>

<p>At Law.</p> <p>Petition by L. C. Chase & Co. for a review of the decision of the board of general appraisers as to the classification of common goat hair. The board’s decision was reversed, and the importers held entitled to a return of the excess of duties paid. 48 Fed. Rep. 630. The question now is as to the liability of the United States for interest and costs.</p> <p>The two opinions by the attorney general, referred to in the opinion below as being decisive of this question, are as follows:</p> <p>DEPARTMENT OF JUSTICE.</p> <p>Washington, D. C., August 7, 1891.</p> <p>The Secretary of the Treasury — Sir: By your letter of July 31st you submit for opinion “whether or not any authority now exists in law for the payment of interest upon refunds made in conformity with judgments obtained in casos of appeal under section 15 of the act of J une 10,1890,' (26 St. p. 131,) from decisions of the board of United States general appraisers.” Section 15 provides that if the owner, importer, assignee, or agent of imported merchandise is dissatisfied with the decision of the board of general appraisers, he may, by complying witli certain conditions in the section prescribed, have ⅜ review of such decision in the nature of an appeal in the circuit court, “said ourt to hear and determine the questions of law and fact involved in such decision respecting the classification of such merchandise, and the rate of duty imposed thereon under such classification; and the decision of such court shall be linal, and the proper collector or person acting as such shall liquidate the entry accordingly,” unless a further appeal and trial shall be had in the supreme court, as therein provided. It further provides that “all final judgments, when in favor of the importer, shall be satisfied and paid by the secretary of the treasury from the permanent, indefinite appropriation provided for in section 23 (24) of this act. ” It will be seen from the foregoing that the statute is silent in relation to interest. The proceeding is in the nature of a suit against the United States. (See opinion of this date to the secretary of the treasury in reference to fees of district attorneys, under this section.) “Tlie general rule is that interest is not allowable on claims against the government. The exceptions to this rule are found only in eases where the demands are made under special contracts or special laws, expressly or by very clear implication providing for the payment of interest. 7 Op. Attys. Gen. 523; 9 Op. Attys. Gen. 57. ‘An obligation to pay it,’ observes Attorney General Black in tiie opinion last cited, ‘ is not to be implied against the government as it is against a private party from the mere fact that the principal was detained from the creditor after his right to receive it had accrued.’ ” 17 Op. Attys. Gen. 318. This position finds abundant support in the decisions of the supreme court. In Tillson v. U. 8., 100 U. S. 43, it is said: “Interest, however, would have been recoverable against a citizen if the payments were unreasonably delayed; but with the government the rule is different, for, in addition to the practice which has long prevailed in the departments of not allowing interest on claims presented, except it is in some way specially provided for, the statute under which the court of claims is organized expressly declares that no interest shall be allowed upon any claim up to the time of rendition of judgment therein in the court of claims, unless upon a contract expressly stipulating for interest.” So in U. 8. v. Sherman, 98 17. S. 565, it is said: “Before that time (certificate of probable cause) the government is under no obligation, and the secretary of the treasury is not at liberty to pay. When the obligation arises, it is an obligation to pay the amount recovered; that is, the amount for which judgment has been given. The act of congress says not a word about interest. Judgments, it is true, are by the law of South Carolina, as well as by federal legislation, declared to bear interest. Such legislation, however, has no application to the government. And the interest is no part of the amount recovered. It accrues only after the recovery has been had. Moreover, whenever interest is allowed, either by statute or by common law, except in cases where there has been a contract to pay interest, it is allowed for delay or default of the debtor. But delay or default cannot be attributed to the government. It is presumed to be always ready to pay what it owes.” See Haney v. Ü. 8., 118 U. S. 243, 5 Sup. Ct. Rep. 465. So, in U. S. v. Bayard, 127 U. S. 251, 8 Sup. Ct. Rep. 1156, this doctrine is forcibly reiterated. The court says:' “The case therefore falls within the well-settled principle that the United States are not liable to pay interest on claims against them, in the absence of express statutory provision to that effect. It has been established as a general rule in the practice of the government, that interest is not allowed on claims against it, whether such claims originate in contract or in tort, or whether they arise in the ordinary business of administration or under private acts of relief, passed by congress on special application. The only recognized exceptions are where the government stipulates to pay interest, and where interest is given expressly by an act of congress, either by the name of ‘ interest ’ or by that of * damages.’ ” Your question is therefore answered in the negative.</p> <p>Yery respectfully, W. H. H. Miller, Attorney General.</p> <p>Department of Justice.</p> <p>Washington, D. C., December 10, 1891.</p> <p>The Secretary of the Treasury — Sir: Your letter of November 12, 1891, submitting the question whether, in cases of judgments against the United States by circuit courts on appeals by importers from illegal assessments of duties by collectors of customs, the refund adjudged tobe made by the United States includes costs. In my opinion costs are not and cannot sbe included in such judgments without some declaration of congress to that effect. As Chief Justice Marshall said in U, S. v. Barker, 2 Wheat. 395, in response to a motion for costs against the United States: “The United States never pay coste.” In U. S. v. Boyd, 5 How. 29, 51, the court said: “Another ground upon which the judgment must be reversed is that a judgment for costs was rendered against the plaintiffs. The United States are not liable for costs.” In the case of The Antelope, 12 Wheat. 546-549, the court says: “It is a general rule that no court can make a direct judgment or decree against the United States for costs and expenses in a suit to which the United States is a party, either on behalf of any suitor or any officer of the government. As to the officers of the government, the law expressly provides a different mode.” See, also, U. S. v. McLemore, 4 How. 286. The proceedings instituted by importers by way of appeal to the courts tinder section 15 of the act of June 10,1890, are suits against the United States, as was held by this department, after much consideration, in an opinion dated August 7, 1891, and therefore such proceedings as to costs against the United States fall directly within the rulings in the above cases.</p> <p>■ Yery respectfully yours,-, Attorney General.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio, Eastern Division.</p> <p>In Equity. Suit by James Kilbourne and the Kilbourne & Jacobs Manufacturing Company against the W. Bingham Company for infringement of patent. The circuit court dismissed the bill, and complainants appeal.</p> <p>Statement by Swan, District Judge:</p> <p>Appellant Kilbourne is the patentee and owner of, and the corporation appellant the exclusive licensee under, letters patent No. 240,146, issued April 12,1881, on application filed December 28,1880, for “certain new and useful improvements in sinks.” This suit was brought to restrain the alleged infringement of that patent. The patentee in his specification states the nature of his invention thus: “My invention consists of a sink swaged or struck up from a single sheet of wrought iron or steel, without joint, seam, or interior angle.” He then sets forth various deféets in sinks made of cast metal, saying:</p> <p>“Sinks of this kind are neither strong nor durable. They break easily and frequently in shipping or in storing them, and also in placing or setting them up in position for use. They are also liable to fracture or break if water should freeze in them, and, in- order to give them the modicum of strength which they possess, a considerable amount of metal must be used in their construction, making them cumbersome and heavy, and increasing expense of manufacture. ”</p> <p>He gives this description of his invention:</p> <p>“I have discovered that the above specified defects can be completely removed by making the sink of wrought iron or steel, said sinks being swaged or struck up from a single sheet of such metal, as hereinbefore first specified. Such a sink is, of course, stronger than one of east metal, and is not liable to be fractured or broken by a sudden jar or blow. It is cheaper than a cast-metal sink, for the reason that much less metal is required in its construction, and it can, by the swaging operation, — -as, for instance, by being struck up in a drop press, — be made more rapidly and economically. * * * The sink, being, as seen in the drawings, without interior angle, has practically equal strength at all points, and has no corners where sediment or dirt can gather.”</p> <p>The issue between the parties is confined to the first claim of the patent, which is thus stated:</p> <p>“Having described my invention, what I claim and-desire to,secure by letters patent is: (1) The herein-described sink, made of a single sheet of wrought steel or iron, without joint, seam, or interior angle, substantially as set forth.”</p> <p>The,answer denies the infringement charged, the value and utility of the alleged invention, and that the patentee was the original and first inventor or discoverer of any material or substantial part of. the thing patented. It gives the names and residences of numerous persons who knew and used the thing patented prior to its alleged invention by Kil-hourne. It also alleges that the article had been patented and described, prior to its supposed invention by Kilbourne, in some 30 prior American patents and one English patent, and specifies several printed publications circulated in the United States, in which it had been described, and pleads that the patented article had been in public use and on sale in this country for more than two years prior to Kilbourne’s application. It also insists that, in view of the state of the art of manufacturing sinks, bath tubs, and many like articles long before said alleged invention, the letters patent fail to disclose any invention, and that the means claimed as original by said Kilbourne under his patent were common and well known.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania.</p> <p>In Admiralty. Suit by I. W. Grubbs, owner of the steamer Tom Ross, against William Ross and others, claimants of the steamboat John C. Fisher. Decree for libelant. Libelee appeals.</p>

<p>1. Removal of Causes — Waiver oí' Objections — Jurisdiction of Statu Court.</p> <p>The filing of the petition for removal of a cause from a state to a federal court is no waiver of an objection that the state court was without jurisdiction of the cause for want of personal service of process, and oí a res to support service by publication. ¿Itch ¡son v. Morris, 11 Fed. Rep. S82. followed.</p> <p>3, Same — Garnishment—Prior Federal Suit.</p> <p>13., a nonresident, brought suit in the federal circuit court against O., a resident, to recover moneys due. Pending that action, and before trial, A., a resident, brought suit in the state court against B., and therein garnished C. as debtor of B. B. filed a petition for removal of the suit to the federal circuit court. i]eld, that the pendency of the suit against C. in the federal court, being in personam only, did not deprive the state court (and the federal court, on removal) of jurisdiction of the garnishment, which was a proceeding ⅛ rem, though no judgment should have been rendered against the garnishee had the suit remained in the state court.</p> <p>3. Same — Plea of Prior Suit.</p> <p>Whether, both suits being now within the same jurisdiction, the jilea of prior suit within another jurisdiction is longer availing, quaere.</p>

<p>In Equity. Suit by William D. Wheelwright against the St. Louis, New Orleans & Ocean Canal & Transportation Company to foreclose a mortgage. Heard on a demurrer for want of jurisdiction and a plea to the jurisdiction.</p>

<p>In Equity. Bill for partition of lands. For former decisions, see 38 Fed. Rep. 165;. 40 Fed. Rep. 559; 42 Fed. Rep. 609; 45 Fed. Rep. 151; 47 Fed. Rep. 154; 48 Fed. Rep. 130.</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by H. W. Nickels against the Northern Pacific Railroad Company for personal injuries. Verdict and judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Southern Division of the Eastern District of Tennessee.</p> <p>Action by Charles Mealer against the Cincinnati, New Orleans & Texas Pacific Railway Company for personal injuries. Verdict and judgment for plaintiff. Defendant brings error.</p>

<p>Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Action by Samuel P. Andrews, administrator of the estate of Charles Reynolds, deceased, •against the Baltimore & Ohio Railroad Company. Verdict and judgment for plaintiff. Defendant brings error.</p>

<p>At Law. Motions in arrest of judgment.</p>

At Iiaw. Action by O. F. Weber & Go. against the Spokane National Bank and H. L. Chase, receiver, upon three promissory notos. Jury instructed to find for the defendant. The other facts fully appear in the following statement by Hanford, District Judge: The notes in suit were drawn in favor of the plaintiffs, as payees, and signed by Gharles Hussey, as maker.

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>At Law. Action by E. Collins and W. H. Bretch, trading as Collins & Bretch, against R. ¿..Walker, James McMurray, Charles Howard, and A. J. Partridge, for damages for wrongful attachment. Verdict and judgment for plaintiffs. Defendants bring error.</p>

Action by William C. Perry, district attorney, against the United States, to recover mileage and fees. From a judgment for plaintiff, the United States appeals.

<p>1, District Attorneys — Compensation tn Revenue Cashs.</p> <p>Under Rev. St. § 838, a district attorney who has rondered services in the examination oí violations oí the internal revenue laws, relorred to him by the collector, is entitled to compensation therefor upon a certificate of the judge before whom such cases are triable, although no proceedings may have been instituted. 47 Red. Rep. 40, affirmed.</p> <p>8. Same — Practice oe Department.</p> <p>A ruling of the secretary of the treasury, and the practice of the department from 1S85, supported by an opinion of the attorney general, from which the solioitor of the treasury dissented, to the effect that district attorneys were not entitled to compensación for such examinations unless followed by prosecutions, is not binding upon the courts, especially in view of a contrary decision by a district court in 1885.</p> <p>Statutes — Amendment—Construction.</p> <p>Where an amendment changes the phraseology of a former act, it will be presumed that it was the intention to make a corresponding change in its meaning.</p>

At Law. Action by Sarah E. Taylor against the Pennsylvania Company to recover damages for personal injuries. A verdict was rendered for $5,500, and defendant now moves for a new trial.

<p>At Law. Action by Kate Smith against the Missouri Pacific Railway Company for damages for causing the death of her husband. Heard on demurrer to the amended petition.</p> <p>The original petition was founded on the second section of the damage act, being section 4425, Rev. St. Mo. 18S9. The cause of action stated in the second count of the petition is the same cause of action as that stated in the first count, being the killing of the husband of the plaintiff through the negligence of the servant of the defendant in running and managing its locomotive engine. Both counts of the petition are founded on the same section of the statute, the measure of damages being the same in each. It is not the substitution of another and new cause of action, but an amendment. In Scomll v. Glasner, 79 Mo. 449, Judge Philips, in delivering the opinion of the court, says: “Two tests by which we determine whether a second petition is an amendment or a substitution of a new cause of action are: (1) That the same evidence will support both petitions; (2) that the same measure of damages will apply to both. If both of these fail, the pleading is not án amendment.” See, also, Lottman v. Barnett, 62 Mo. 159; Gourley v. Railway Co., 85 Mo. App. 87; Land Co. v. Mingea, (Ala.) 7 South. Rep. 666; Kuhns v. Railway Co., 76 Iowa, 67, 40 ÍT. W. Rep. 92; Dougherty v. Railroad Co., 97 Mo. 647, 654, 655, 11 S. W. Rep. 251; Davis v. Railroad Co., 110 N. Y. 646, 175T.E. Rep. 783; Railroad Co. v. Denson, (Ga.) 9 S. E. Rep. 788; Railroad Co. v. Kitchens, Id. 827; Karris v. Railroad, 78 (la. 525, 8 S. E. Rep. 355; Carmichael v. Dolen, 25 Nob. 335, 41 N. W. Rep. 178; City of Bradford v. Downs, (Pa. Sup.) 17 Atl. Rep. 884; Railway Co. v. Davidson, (Tex. Sup.) 4 S. W. Rep. 636; Railway Go. v. Chapman, (Ala.) 3 South. Rep. 813; Ritter v. Railway Co., 21 Mo. App. 5, as explained in Sims v. Field, 24 Mo. App. 557, 567.</p>

<p>1, Construction of Contract — Joint and Several Liability.</p> <p>A contract for the building of a creamery and cheese factory, which purports to be between the contractors, as parties of the first part, and the undersigned subscribers, as parties of the second part, whereby the parties of the first part agree to do the work, etc., for the sum of $6,850, and the parties of the second part agree to furnish at their own expense the necessary land and water for such building, and receive a credit on the contract therefor of $300, and the subscribers agree to pay the above amount on the completion of the building according to specifications; and the parties of the second part, the subscribers, agree as soon as the above amount is subscribed, or in a reasonable time thereafter, to incorporate under the laws of the state, fixing the aggregate amount of stock at not less than $6,S50, to be divided into shares of $100 each, said shares to be issued to the subscribers in proportion to their paid-up interest therein, to which is attached a heading for the subscribers, thus: “Names of Subscribers. No. of Shares. Amount of Stock after Incorporation, ’’ — which was signed by the defendants, as such subscribers, for various shares. Held, that this was a contract, inter partes, between the parties of the first part and the subscribers of the second part, whereby the subscribers became jointly and severally bound to the parties of the first part for the payment of the sum of $6,85C.</p> <p>3.Same — Written Contraot — Parol Evidence.</p> <p>The contract being plain .and unambiguous, parol evidence as to the intention of the subscribers in signing it, or their understanding of its terms, is not admissible to vary its expressed terms. Nor are any statements made by the soliciting agent of the party of the first part, made while" soliciting subscribers, as to the meaning and effect of the contract, in the absence of fraud or deceit, competent evidence.</p> <p>3. Same — Ambiguous Phrases — Interpretation by Parties.</p> <p>■Where the contract employs words and phrases of doubtful or ambiguous meaning and application, the construction placed upon it by the parties thereto by word and acts, especially where such construction has been acted on by the parties, should prevail over any mere technical, grammatical, or logical interpretation; but where the contract is free from ambiguity, and its meaning is clear in the eye of thq law, such mode of construction is inadmissible.</p> <p>4. Same — Agreement to Form Corporation.</p> <p>The provision of the contract respecting the organization of the subscribers into a corporation in no wise affected the assumption of the subscribers of the payment of the sum of $6,850. That was a matter subsequent, inter sese, as to the subscribers, as to how their interests in the joint ¡property afterwards should ,be held and managed.</p> <p>5. Alteration of Contract.</p> <p>When said contract was signed by the first four subscribers it provided for the payment in cash of the sum subscribed upon the completion of the work. After-wards, to meet the requirement of subsequent subscribers, the provision was interpolated, allowing the subscribers to pay one third in cash, one third in 60 days, and one third in 4 months after the completion of work; the deferred payments to bear 8 per cent, interest from date. Held, that where there are several parties to an instrument, some of whom have executed it, and in the progress of the transaction it is altered as to some who have not signed it, without the knowledge of the first signers, but not in a part affecting the liability of the latter, and is then executed by the others, the contract is good as to the first signers, according to the terms agreed upon by them, and is good as to the subsequent signers, with the addendum obligation.</p> <p>6. Waiver and Estoppel.</p> <p>Where the first signers of the contract are the managing committee of the property, with whom a copy of such contract, after all the subscribers have executed it, is left, and this committee afterwards accept the property from the contractors as completed according to contract, and certify that the contractors are entitled to their pay, retain and mortgage the property as that of the creamery company, held, that all the subscribers are deemed to have waived such alteration, or, at least, are estopped from asserting such alteration.</p> <p>7. Ramt-At.teration of Memorandum.</p> <p>The following memorandum, placed opposite the name of one of said subscribers, " Only responsible for 3 shares, ” is to be regarded as a part of his undertaking, and. qualifies the contract so as not to bind him for a greater sum than three shares. Its subsequent alteration without his consent would discharge him. And, having paid the sum subscribed by him, he is not estopped by the subsequent acceptance of the work from pleading such alteration.</p> <p> (Sylldbvs Jnj the Court.) </p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>In Equity. Suit by William Anderson against Eiler, Breitwieser & Co., for infringement of a patent. The bill was dismissed, and complainant appeals.</p>

<p>Design Patents — Novelty—Chair Backs.</p> <p>Design patent No. 13,405, issued November 14, 1882, to Henry H. Paine for a design for common round bow-back chairs, consisting in the upper part of the bow and rounds provided with a sheet of suitable material, as wood, bent to conform to the curvature of the bow-back and rounds, leaving the rounds between the sheet and seat exposed, is void for want of novelty. Affirming 46 Fed. Rep. 189.</p>

. Error to the Circuit Court of the United States for the Western District of Pennsylvania. . Action' by the American Electric Construction Company, Limited, against the Consumers’ Gas Company of Danville. An affidavit of defense was adjudged insufficient, (17 Fed. llep. 48,) and defendant brings error.

<p>In Admiralty. Cross libels for collision.</p>

<p>Collision — Riveb Navigation — Pkopee Side op Channel.</p> <p>Two steam tugs, the L. and the M., each with a tow, approached each other nearly-head on, hy night, in the Delaware river, and each discovered the approach of the other when about a mile apart. Signals of one whistle were exchanged when the vessels were about one-half a mile apart, and both ported their helms. The court found, on conflicting evidence, that the M. was on the proper side of the channel, and could not have gonefurther inshore, owing to the presence of anchored vessels;, that the L. either had gone too far towards the wrong shore before porting her helm, or that she did not port it sufficiently, — and hence held that for the'collision between the two tows the L. was solely in fault.</p>

<p>Arfbalabm; Orders — -Interlocutory Decree — Injunction in Patent Cases.</p> <p>A decree sustaining the validity of a patent, directing a perpetual injunction against its infringement, and referring the cause to a master to take an account, is an appealable interlocutory decree, within section 7 of the act of March 8, 1891; and where, on appeal therefrom, the cause is submitted on the merits without objection, and a decree is rendered, it is too late for the appellee to question the court’s jurisdiction by a motion for rehearing.</p>

<p>Aimt.at, to Circuit Court or Appeals--Time or Taking — Dismissal.</p> <p>An appeal taken to the circuit court of appeals more than six months after entry of the decree must be dismissed, under Judiciary Act 1891, § 11.</p>

<p>1. Board or Appraisers — Valuation—Review et Circuit Court — Practice.</p> <p>Where a board of three general appraisers, acting under Act Cong. June 10,1890, § 13, on reappraisement appraised the value of imported merchandise more than 10 peí cent, above the value declared in the importer’s entry, and the additional duties provided for in section 7 of the same act thereupon accrued and were exacted by the collector, no appeal from or review of the decision of the collector in assessing su'ch additional duties is provided for under said act.</p> <p>2. Same.</p> <p>Whether or not any relief can he secured by an importer where there has been fundamental error in fixing the value, none is to be found under the act of June 10, 1890, by appeal or review in the circuit court.</p> <p>3. Same — Questions Determined.</p> <p>An appeal to or review by the circuit court under- section 15 of said act is restricted to questions of law and fact involved in the decisions of the appraisers respecting the classification of merchandise and the rate of duty imposed thereon under such classification.</p>

Suit in equity by the Western Railway Company of Alabama and others against the Atlanta & Florida Railroad Company and others. A plea to the jurisdiction was overruled, and defendant railroad company appeals.

Suit by Grant Bros, against the East & West Railroad Company of Alabama and others. From a decree for defendants, plaintiffs appeal. On motion to dismiss the appeal.

<p>1. Banks — Validity op Loan — Authority op Vice President — Fraud.</p> <p>The C. Bank in good faith advanced money on collateral forwarded to It by the vice president of the F. Bank, and charged the loan to the F. Bank. The vice president of the F. Bank directed that the loan be transferred to his individual credit, which was done, whereupon he fraudulently checked out the same for private purposes. Held, that the vice president had authority to negotiate the loan, and that the validity thereof was not affected by his fraud.</p> <p>0. Same — National Banks — Insolvency—Basis op Dividends.</p> <p>Rev. St. §§ 5235, 5236, which provide, respectively, that the comptroller, on appointing a receiver for an insolvent national bank, shall advertise for proof of claims, and that he shall make a ratable dividend of the moneys paid over to him by the receiver among those who have proved their claims, cannot be construed to fix the date of the suspension of the bank as a date with reference to which all calculations of the amount due to creditors are to be made as a basis of dividends. Therefore, where after such suspension, but before the filing of a claim with the receiver, such claim was reduced by collections from collaterals, it should have been credited with such collections when filed, and the balance then found due used as the basis for ascertaining claimant’s dividend.</p> <p>8. Same-Basis op Dividend — Collections on Collaterals.</p> <p>'i"ic Bank: advanced a largo sum of money 1.0 the If. Bank in March on collator-tils, and in -June advanced a further sum on l'uiTher collaterals. The C. Bank collected §75.005 on tho March collaterals after the maturity of the March loan, hut entered a general credit thereof to the If. Bank. Held, that the collections should have been applied to the March loan, and were properly deducted therefrom In determining the amount which the O. Bank was entitled to receive as a dividend from the assets of the If. Bank after its insolvency.</p> <p>4. Sami; — Loss or Collaterals — Neoliukkue of Holder.</p> <p>Among the collaterals to secure the March loan was a note of W. for §35,000, indorsed by L. for accommodation of tho vice president of the If. Bank. Shortly before maturity of this and other of the collaterals, said vice president requested that they bo not presented for payment, but returned, promising that other collateral should be substituted for them, all of which was done, except that the §25,000 note was not returned. The If. Bank did not order back this note, and shortly aft-erwards it matured without presentment or notice of dishonor to L., the indorser, who was Hie only solvent party to the note. Held, that the C. Bank, having by its negligence failed to preserve the liability of the indorser, was chargeable with such note as so much received on its claim.</p> <p>5. Same — Defenses.</p> <p>Tt was no excuse to the C. Bank that the If. Bank was not a party to the note in question, the. C. Bank having received it as security for a loan to the F. Bank under circumstances from which it might naturally infer the note to be tho property of the F. Bank.</p> <p>6. Same — Availability oe Collateral — Accommodation Paper.</p> <p>The objection by the C. Bank that tho note was made and indorsed merely for the accommodation of the vice president, who was not a party thereto, and that consequently the C. Bank could not have recovered thereon if the indorser’s liability had boon preserved, could not be maintained, in view of the fact that the indorser had paid throe notes, companions to that in question, without objection, and of evidence that he was interested with tho vice president in procuring tho loan which tho nolo partly secured.</p> <p>7. Sami; — Interest on Dividends — .Estoppel.</p> <p>The C. Bank, having' refused an offer of tho receiver to pay dividends on §200,000, which was about the amount due to it on the March loan after deducting collections on collaterals, was not entitled to interest on such dividends on affirmance of the action of the receiver by the court.</p> <p>B. Same — Dividends—Collections on Coi,laterals.</p> <p>A sum collected by the C. Bank on the collaterals after proof of its claim should not ho deducted therefrom in ascertaining the amount on which it is entitled to a dividend.</p>

At Law. Action by J. B. Robinson against the Southwestern Telegraph & Telephone .Company for personal injuries. Verdict and judgment for plaintiff. Defendant brings error. Statement by Bruce, District Judge: Plaintiff' in error was sued by defendant in error in the district court oí Cooke county, Tex., for damages in the sum of $12,000.

<p>L Continuance — Absence of Witnesses — Discretion of Court —State Practice not Followed — Rev. St. § 914.</p> <p>A continuance because oí the absence of material witnesses rests within the discretion of the circuit court, without regard to the practice of the state courts, notwithstanding the statute conforming the practice and procedure of the circuit courts to that adopted in thd courts of record of the state where such court is held, because the mode of summoning witnesses and taking testimony in the courts of the United States is regulated by statutes of the United States.</p> <p>3. Pleading — Evidence—Accident at Railway Crossing.</p> <p>In an action for personal injuries sustained at a railway crossing, defendant alleged contributory negligence on the part of the plaintiff in failing to stop, look and listen for the approaching train. Held, that plaintiff could testify that several people, who were in the wagon with him at the time of the accident, did not make any outcry indicating that a train was approaching.</p> <p>8. Railroad Companies — Municipal Regulations — Ringing Bell.</p> <p>Under section 80 of the charter of the city of Ft. Worth the city council is empowered “to direct the use and regulate the speed of locomotive engines in said city, or to prevent or prohibit the use or running of the same within the city. ” Held, that the city council were authorized under this section to enact an ordinance prohibiting the running of an engine or oar in said city without a bell attached thereto being rung before starting, and all the time the same should be in motion within such city.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>At Law. Action by Venia Asher and her husband, Thomas Asher, against William L. Cabell, formerly United States marshal, and his sureties, for permitting a prisoner to be killed by a. mob. Judgment for defendants on demurrer to the petition. Plaintiffs bring error.</p> <p>Statement by Pardee, Circuit Judge:</p> <p>This causo was heard in the court below on exceptions to the plaintiffs’ second amended original petition, which it seems necessary to give in full, as follows:</p> <p>“.By leave of the court, plaintiffs amend their first amended petition filed herein on the --day of February, 1891, so that the same shall read as follows:</p> <p>“Venia Asher, joined by her husband, Thomas Asher, hereinafter styled • plaintiffs,’ complaining of 'William I.. ('aboil, dames Morouey, 0; W. Terry, d. 8. Daugherty, E. M. Tillman, Hugh Blakeny, and Philip Sanger, who are hereinafter styled ‘defendants,’ respectfully represents:</p> <p>“ That at the time of the institution of this suit, to wit, on the 18th day of January, 1890, the said Venia resided in Young county, Texas, in said district., and was at that time the widow of Alfred Aaron Marlow, who was slain by a mob in said Young county, as will be hereinafter related; that during the pendency of this suit sho has intermarried with Thomas Asher, her eo-plaintiil, who joins her in this action; and she, with the minor children, hereinafter named, of herself and her deceased husband, now resides with her present husband, the said Thomas Asher, in the Indian Territory.</p> <p>“ The above-mentioned defendants a re all residents and citizens of the county of Dallas, in said northern district, of Texas.</p> <p>“Plaintiffs sue for actual damages on account of injuries causing the death of said Alfred Aaron Marlow, and seek a recovery on the official bond of the said William L. Cabell as United Stales marshal, such action being brought and such recovery being sought for the benefit (1) of said Venia, formerly wife and widow of said deceased; (2) of Williamson Wilson Marlow, a boy of four years old, and Annie Laurie Marlow, a girl two years old, the minor children of said Tenia and "Alfred Aaron; and (3) of Martha Jane Marlow, the widowed mother and only surviving parent of said deceased, who now resides in the county of Ouray, in the state of Colorado.</p> <p>“That heretofore, to wit, on the 28th day of April, 1886, the defendant William L. Cabell was duly appointed and commissioned marshal of the i Anted Slates for the northern district of Texas; and that on the 25th day of November, 1887, the said Win. L. Cabell as principal, with the other defendants as sureties, made, executed, and delivered, in conformity to law, a certain oiliciai bond of the said Win. L. Cabell as such marshal, in the sum of twenty thousand dollars, ($20,000,) which said bond was indue time approved by the proper authority, and a copy of the same is hereto attached and made a part of this petition.</p> <p>“The condition contained in said bond is as follows:</p> <p>“ ‘ Now, if the said William L. Cabell, by himself and by his deputies, shall faithfully perform all the duties of the said office of marshal, then this obligation to be void; otherwise to remain in full force and virtue.’</p> <p>“Which conditions, being fully interpreted, mean, amongst other things, that one of the duties of such officer and his deputies is and was to safely keep in custody and from harm, to humanely treat and carefully protect, all prisoners lawfully committed to or held in the custody of said marshal and iiis deputies, or any of them; and', further, that the said marshal would appoint and retain in his service as deputies none but fit, proper, and competent persons.</p> <p>“That thereafter, to wit, on the 19th day of January, 1889, and before that day, in the county of Young, in said district, the said Wai. L. Cabell, while marshal, as aforesaid, by his duly-authorized deputy marshal, Ed. W. Johnson, (who was then and there acting under the immediate orders and instructions of said William L. Cabell.) had in his custody, by reason of such orders and instructions, and also by virtue of office and by lawful authority, several certain prisoners of the United States, one of whom was Alfred Aaron Mar-low, then the husband of the plaintiff Venia Asher, the father of her minor children, herein named, and the son of Martha Jane Marlow.</p> <p>“That for a long time prior to the said 19th day of January, 1889, and on that day, there was great hostility and violent public prejudice openly manifested by certain lawless persons in said Young county towards said Alfred Aaron Marlow and certain of his fellow prisoners, to wit, his three brothers, Lewellen Marlow, George Marlow, and Charles Marlow, who at the same time were confined with him in the county jail of Young county upon the lawful orders of a proper oilicer of the United States, on charges of violating the laws thereof, which charges, upon final trying in the proper court, proved to be unjust and groundless.</p> <p>“That on and before said 19th day of January, 1889, William L. Cabell, marshal as aforesaid, was well aware of the excited and lawless and dangerous condition of public sentiment in Young county against his said prisoners, and of the hostility and prejudice entertained against them by the lawless persons aforesaid, as was also the said Ed. W. Johnson, his deputy; yet, notwithstanding such knowledge, the said William I,. Cabell, being then and there in the county of Dallas, ordered the said Ed. W. Johnson, who was then and there in the county of Young, about one hundred and twenty miles (120) distant from the county of Dallas, to remove said prisoners from the county jail of Young county, leaving the time and manner of their removal to the discretion of said Johnson.</p> <p>“Plaintiffs would now further show to the court that said Ed. W. Johnson was an improper and unfit person to perform the hazardous and responsible duty of removing said prisoners under the circumstances herein detailed, and this the said William L. Cabell well knew or might have known by the use of ordinary diligence.</p> <p>“For that said Johnson was a brawling and quarrelsome man, with little respect for the laws of the land, and, prior to his appointment by the said marshal, had committed a homicide. That during his tenure of office as deputy marshal under said William L. Cabell, and prior to said 19th day of January, 1889, he had lost his right arm in a personal shooting affray over a lewd woman, in which affray he committed still another homicide. That, being morally unfit for the place he held, he, the said Johnson, became, by reason of his maiming, as aforesaid, physically unfit and incapacitated for the performance of the duties of his office, especially in a frontier region, such as that in which Young county is situated, and also in the Indian country, which to a great extent was his field of duty; and more especially was said Johnson unfit in every way for the post of chief deputy marshal, which he held at Graham in said Young county, where one branch of this honorable court is located, —all of which said William L. Cabell was bound.to know, and did know, and still retained the said Johnson in his service as chief deputy in that portion of his district.</p> <p>“And that furthermore, by reason of the carelessness and unfitness of said Johnson for the position so held by him, the said jail in which the aforementioned prisoners were confined had been attacked on the 17th day of January, 1889, by a numerous mob, composed of the lawless persons aforesaid, who were wickedly bent and determined upon doing to the said Alfred Aaron Mar-low and his aforementioned fellow prisoners great bodily harm.</p> <p>“That said üd. W. Johnson resided in said town of Graham, and was there at the time of tho attack on the aforementioned jail and before that time;. That the said federal prisoners therein confined had all been to such jail committed upon arrests made by him; yet, disregarding his lawful and'sworn duties, the said Johnson suffered persons to be employed as guards at said jail who were in sympathy with the lawless persons aforesaid, who were compassing the destruction of said prisoners, and made no effort to repel the attack of said lawless persons, or to stay their violence, which was open and notorious, but left said prisoners to deal with their assailants as best they could, with their naked hands; nor did said Johnson take any measures to arrest or bring to justice the said lawless persons, — all of which the said William L. Cabell well knew, or might have known by the use of ordinary diligence, there being at the time communication by wire between the town of Graham, where said Johnson was, and the city oí llallas, where said Cabell was, at the time of the happening of the matters and things aforesaid. That by messages from said Johnson and other persons, and from news dispatches published in daily newspapers the next day, the said William L. Cabell was fully informed of the attack on said jail, and of the imminent danger which menaced the lives of his said prisoners.</p> <p>“That, knowing the matters and things hereinbefore related, and that they had taken place almost under tho very eyes of said Johnson, the said William L. Cabell carelessly, wrongfully, and negligently further intrusted the safekeeping and removal of said prisoners from the jail in which they Were confined to his said deputy, on the 19th of January, 1889, two days after the attack on said jail.</p> <p>“And the said William L. Cabell, by virtue of his office and the lawful authority aforesaid, and by his orders and instructions unto the said Ed. W. Johnson immediately directed, caused the said Johnson, on the date last afore-named, to take said prisoners and the said Alfred Aaron Marlow into his official charge, with further orders to remove them from the said county jail of Young county. That said marshal could easily have given to said removal his personal attention, or have intrusted the same to a proper deputy, which was then and there his sworn duty.</p> <p>“That while said Alfred Aaron Marlow and his fellow prisoners afore-named were in the custody of said marshal, as before recited, a large number of the lawless persons aforementioned, having at heart the injury, great bodily harm, and destruction of said prisoners and tho said Alfred Aaron, had unlawfully, willfully, wrongfully, wickedly, and maliciously combined, confederated, and conspired together to carry out their wicked and unlawful purposes, all of which the said Johnson well knew, and through him tho said William E. Cabell well knew, or might have known by the use of ordinary diligence.</p> <p>"That, well knowing the great hostility which, prior to tho said 19th day of January, 1889, and on that day, had been openly and notoriously manifested by said lawless persons against the aforementioned prisoners, the said 'William E. Cabell wrongfully and negligently permitted the said Ed. W. Johnson — an unfit person for such service in any event — to attempt the removal of said prisoners in the nighttime, which the said Johnson did, contrary to common sense, to ordinary discretion and care, and against the advice. warning, and admonitions of divers good citizens of said Young county.</p> <p>“That under the circumstances aforementioned said prisoners, for the purpose of removal, were taken from their place of confinement in the nighttime, in the presence of a large number of the boisterous and lawless persons aforesaid, by the said Ed. W. Johnson; and, well knowing the dangers surrounding him, the said deputy marshal wholly failed to provide reliable guards to protect said prisoners, but, on the contrary, knowingly selected as guards a force made up almost entirely of the same lawless persons who had wickedly and. unlawfully, on the 17th day of January, 1889, attacked, as hereinbefore recited, the jail in which said prisoners were confined, for the purpose of taking their lives, or of doing them great bodily harm.</p> <p>“And a large number of others of the lawless persons aforementioned, in pursuance of their unlawful and malevolent purposes and designs, combined together as a mob, and, being in collusion with the guards selected by said deputy marshal as aforesaid, did, on the 19th day of January, 1889, in the county of Young, in said northern district of Texas, unlawfully, willfully, wrongfully, maliciously, and cruelly assault with guns and firearms the said prisoners, and did then and there, under circumstances of peculiar atrocity and barbarity, mortally wound and shoot to death the said Alfred Aaron Marlow, without any fault or cause therefor on his part.</p> <p>“That at the time of the unlawful and murderous assault last above mentioned the prisoners aforenamed, including the said Alfred Aaron Marlow, being securely shackled together in pairs by their ankles, were unable to escape, and, being unarmed, were unable to defend themselves against the persons so assaulting them, except as they might disarm their assailants under the impulse of the great peril besetting them.</p> <p>“Plaintiffs aver that at the time of the night attack upon the prisoners aforesaid, bound and defenseless as they were, in which the said Alfred Aaron Marlow was shot to death as hereinbefore recited, the said deputy marshal, and said -guards in his employ, unlawfully deserted said prisoners, and immediately joined with said other lawless persons who were then and there assaulting said prisoners, thereby delivering said prisoners into the hands of said mob. That neither said Johnson nor his said guards fired a single shot in defense of said prisoners, but, on the contrary, joined the said mob, and aided the lawless persons composing the same by helping them to shoot, wound, and kill the said prisoners. That several of said guards voluntarily handed over their arms to said mob, except such as were seized by said prisoners to use in their self-defense; and said Johnson himself was disarmed by one of said prisoners as he, the said Johnson, was in the act of voluntarily handing over his pistol to one of the lawless persons.</p> <p>“In conclusion, plaintiffs allege that said deputy marshal and his said guards colluded and conspired together with said lawless persons so assaulting said prisoners; and that, in order to carry out such conspiracy, said deputy marshal knowingly employed as guards other lawless persons, who, but two days prior to their summons to serve as such guards, had been engaged in the attack on the jail where said prisoners were then confined, and had, immediately.prior to their said summons so to serve as guards, made known their purpose to kill and murder said prisoners; and that Ed. W. Johnson, deputy marshal, removed said prisoners from the jail of Young county, and, with the assistance of said persons so summoned as guards, carried them in the nighttime to a lonely and secluded spot, distant from human habitations, and, when said prisoners were attacked by said lawless persons, the said deputy marshal, in accordance with a previous understanding with said persons then and there making said attack, did, with his guards, unlawfully desert said prisoners, and leave them to be attacked and murdered by said mob, without making any effort whatever to protect them.</p> <p>“That by reason of such attack the said Alfred Aaron Marlow was killed, as also was his brother, Lewellen Marlow, and George Marlow and Charles Marlow were permanently disabled by gunshot wounds. Nor did the said ■William L. Cabell, after the occurrences herein related, dismiss or discharge said Johnson from his service, but retained him as deputy until his, said Ca-bell's, successor was appointed, long afterwards, thus virtually ratifying and approving said acts.</p> <p>“Wherefore, in the matters and things hereinbefore recited, which led to the cruel and inhuman murder of said Alfred Aaron Marlow, plaintiffs allege that said William L. Cabell, marshal as aforesaid, acted wrongfully and negligently, and that by reason of such wrongful acts and negligence the said Alfred Aaron met his death.</p> <p>“Plaintiffs show that the said Alfred Aaron, being a young man, 26 years of age, had a reasonable expectancy of a continuance of life for a further period of thirty-eight years; that lie was an industrious and sober laboring man, whose earnings wore, on an average, fully live hundred ($500) dollars a year, and that he supported his family comfortably for a man in his sphere of life; that his mother, Martha -Jane Marlow, for whose benefit this suit is also brought, is an aged woman, 65 years old, and almost helpless; that she has still a reasonable expectancy of a continuance of life for a further period of eleven years; that she was largely dependent upon the assistance of her said son, during his lifetime, for her sustenance, and that he dutifully recognized her dependence upon him, and contributed to her maintenance and support fully $100 a year up to the time of his death.</p> <p>“ Wherefore, plaintiffs say that there lias been a breach of the official bond of the said William L. Cabell, marshal, as aforesaid, and that by reason of the facts herein sot fortli the said marshal and his sureties are liable to plaintiffs on said bond for damages in the sum of $10,000; and they pray that said defendants, being already heroin duly cited, be, on final trial, adjudged to pay said sum and the costs of this suit, and that they have general relief.”</p> <p>To the said petition the defendants filed their second amended original answer, as follows:</p> <p>“ISTowat this time come the defendants in the above entitled and numbered cause, and by leave of court file this, their second amended original answer, in lieu of their first amended original answer, filed in this cause on February 6, 1891, and plead anew as follows:</p> <p>“(1) Sow at this time come the defendants in the above entitled and numbered cause, and demur to tiie pleading of the plaintiffs herein, and they except to the sufficiency of tho second amended original petition of plaintiffs filed herein, and say that the matters therein alleged, if true, constitute no cause of action against these defendants, and of this the said defendants pray the judgment of the court.</p> <p>“(2) And specially excepting to the said pleading of the plaintiffs, these defendants say that the same is insufficient, because said petition shows that the acts complained of, and on account of which plaintiffs seek to hold these defendants liable, were not the immediate acts of these defendants themselves, nor of any of them, and hence the plaintiffs show no right of recovery against defendants.</p> <p>“(3) And, further, these defendants specially except to plaintiffs’pleading, because on the face of said pleading it appears that the cause of action alleged by the plaintiffs against these defendants accrued and arose (if it ever existed) more than one year before tho filing of plaintiffs’ second amended original'petition herein, in which for the first time plaintiffs set out their alleged cause of action, on which they now ask recovery, and hence on said causes of action (if they ever existed) are now barred by the statute of limitation of one-year.</p> <p>“(4) These defendants also specially except to all those extensive portions of the second amended original petition of the plaintiffs herein which are made up of statements regarding injuries and wrongs which occurred long prior to the alleged, death of Alfred Aaron Marlow, which were not the injuries which resulted in his death, because all such allegations are inappropriate, and are evidently alleged by the plaintiffs for their oratorical effect.</p> <p>“(5) And, should the foregoing demurrer and special exceptions be by the court overruled, then these defendants, further answering to the plaintiffs’ second amended original petition herein, come and deny each and every allegation in said pleading contained, and they call for strict proof, and of this they put themselves on the country, and hence pray judgment that they go hence,” etc.</p> <p>Upon the hearing of the exceptions to the said second amended original answer, the court below rendered judgment sustaining the said second exception, and thereupon, the plaintiffs declining to amend, dismissed the suit. The plaintiffs have brought the case to this court for review, and assign as error “that the court erred in sustaining the defendants’ second exception to plaintiffs’ second amended original petition, and in dismissing this cause, as will appear from an inspection of said petition, the defendants’ demurrer, and the court’s judgment thereon.”</p> <p>No written opinion appears to have been given by the judge rendering the decision, and defendants in error submitted no arguments or brief in the case.</p>

<p>1. Forei&n Insurance Companies — Service on State Superintendent — Waiver.</p> <p>The appointment oC the state superintendent of insurance as the attorney of a nonresident insurance company for the purpose of receiving service oí process, as required by Laws N. Y. 1S84, c. 346, § 1, does not authorize him to accept service by mail, and such service is void.</p> <p>8. Same — General Appearance — Removal op Causes.</p> <p>The filing of a petition and bond for the removal of a cause from a state to a federal court, and the proceedings thereon, do not constitute such a general appearance as will prevent the federal court from setting asida the service as illegal and void.</p>

<p>In Equity. Bill for infringement of patents. On motion for preliminary injunction.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>In Admiralty. Libel by Thaddcus Street, Timothy Street, and Thaddeus Street, .Jr., against James M. Waterbury, owner of the steamship Progreso. Decree below for libelants. Defendants appeal.</p>

<p>1. Shipping — Damage to-Cargo — Stowage—Usage.</p> <p>Goods liable to injure each other may be carried in the same ship, if it be the general usage to carry them together, provided all proper means are employed to prevent injury.</p> <p>3. Same — Tea and Camphor — Inference of Negligence.</p> <p>But where tea and camphor were carried on the same vessel, there being no general usage to carry the two together, but this vessel being especially fitted with an air-tight compartment for the camphor, in spite of which the tea was delivered impregnated with the fumes of camphor, it was held that the inference of want of care was irresistible, and that the ship was liable.</p>

<p>Appeal from the Circuit Court for the District of Maryland.</p> <p>In Admiralty. Libel by Mifflin Kenedy against the schooner R. D. Bibber. Decree dismissing the libel. Libelant appeals.</p>

<p>1. Coixisiox— Damages joe Detextiox.</p> <p>An excursion steamer, colliding with a tug through the latter’s fault, was so injured as to be delayed for repairs Si days, during all but t of which she was under charter. Her owners hired another boat to (ill her engagements during 8 of these days, at $110 per day, and during the rest of the time substituted other vessels of their own. Held, that the proper measure of damages for the detention during the latter period was not the value of the charters, but the cost of the substitution, and, in the absence of evidence, the cost would be presumed to be the same as in the case of the vessel hired, namely, $110 per day. 46 Fed. Rep. 873, modified.</p> <p>2. Same.</p> <p>In the absence of any suggestion that the hired vessel was not competent for the purpose, it was immaterial that the other substituted vessels were larger than it; nor conld the recovery be affected by the fact that the substituted vessels would otherwise have been idle.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action by Byron B. Floyd against Ezra F. Merrill for fraudulent representations. Judgment for plaintiff. Defendant brings error. Heard on motion to dismiss the writ of error.</p>

<p>1. Removal of Causes — Authority of State an» Federal Courts.</p> <p>Questions oí fact arising on a petition for removal are lor the federal court, alone, and the state court has no jurisdiction to determine thorn. Itwil/road Co. v. Daugh-try. 11 Sup. Ct. flop. 306,138 U. S. 398, followed.</p> <p>8. Same — Injunction to State Court — Juris motion.</p> <p>• It seems from French v. May, 22 Wall. 350, that a federal circuit court has jurisdiction of a bill to enjoin the "prosecution of a case in a state court, on the ground that it has been removed to the federal court.</p> <p>8. Same.</p> <p>An action for damages was brought in a state court against an army officer and two other persons for wrongfully arresting and detaining an alleged deserter. The other defendants were defaulted, and the officer (lied a petition and bond for removal on the ground that the ease arose under the laws of the United States. The state court held the petition insufficient, and was about to proceed with the trial, when the officer applied to the federal court to enjoin further proceedings. Held that, as the right of removal by the single defendant, after default of his codefend-ants was extremely doubtful, (Putnam v. Ingraham, 114 II. S. 57, 5 Sup. Ct. Rep. 746; Hax v. Caspar, 31 Fed. Rep. 499,) and as the question present ed was only one of the inconvenience and expense of double litigation, the injunction should be denied without prejudice to a renewal of the application, in the expectation that, on proper representations, the state court would stay proceedings until a decision could be had on a motion to remand.</p>

<p>In Equity. Bill by Frederick W. Bound against the South Carolina Railway Company and others for the foreclosure of the second mortgage thereon.</p> <p>For former decisions rendered in the course of this litigation, see 43 Fed. Rep. 404, 46 Fed. Rep. 315, 47 Fed. Rep. 30, and 50 Fed. Rep. 312.</p>

<p>1. Bailment — Duty to Repair.</p> <p>The rule of the civil law that a bailor for hire is bound to keep the thing in repair is not recognized by the common law, and, in the absence of express contract, the question as to which party is bound to repair largely depends on custom and usage and the character of the article.</p> <p>8. Same — Use op Railway Rolling- Stock — Usage.</p> <p>It is the usage in this country for all railroad companies receiving cars from other roads to make necessary repairs at their own expense, unless the car is inspected and branded as defective when received; and in viow thereof a company which claims cars belonging to another road, and, pending a judicial determination of the title thereto, is by agreement permitted to retain and use them subject to a rental in case the decision is against it, cannot, after such decision, set off against the rental any claim for the cost of repairs.</p> <p>8. Pleading-'Amendment.</p> <p>In a controversy between two railroad companies, their receivers and creditors, as to the rentals due for the use of certain rolling stock, defendant will not be permitted, after the filing of the master’s report, to amend its answer so as to interpose a- new set-off, when it appears that the same claim is the subject of a cross bill pending in another court, where the matter can be adjudicated on its merits.</p>

<p>1. Appealable Orders — Finality op Decree — How Determined.</p> <p>The question whether a decree is final and appealable is not determined by the name which the court below gives it, but is to be decided by the appellate court on a consideration of the essence of what is done by the decree.</p> <p>2. Appeal — Review—Modification op Judgment — Circuit Court op Appeals.</p> <p>On appeal from a final decree the circuit court of appeals has authority to go beyond a mere reversal, and enter such a decree as should have been rendered by the court below on the whole case, as shown by the record; and it is its duty to review all interlocutory proceedings, of every character, to which seasonable objection has been made and insisted upon.</p> <p>8. Appealable Order — Inspection op Private Papers — Pinal Disposition.</p> <p>A national bank president, against whom an indictment was pending for violating the banking laws, brought a bill against the receiver of the bank to obtain possession of a trunk alleged to contain private papers. To this proceeding the United States district attorney was made a party defendant on his own petition, for the purpose of claiming the papers, in order that they might be laid before the grand jury. After hearing, a decree was made appointing a special master to make a private examination of the trunk, with directions to turn over to the complainant any papers belonging to him, and to the receiver such papers as belonged to the bank, and were not material to the prosecution against the president, and to reserve for further consideration such as concerned bank transactions, and were material to the prosecution. Held that, in so far as the decree directed papers to be turned over to the president and the receiver, it was final and appealable, since such papers might thus pass entirely beyond control of the other party claiming them.</p> <p>4. Equity — Parties—Production of Papers.</p> <p>It was improper to make the district attorney a party defendant for the purpose of procuring the papers to be laid before the grand jury. The proper course was for him to obtain a subpoena duoes tecum from the court in whioh the investigation was pending, and then to make summary application to the court which had impounded the papers.</p> <p>5. Constitutional Law — Unreasonable Search — Inspection of Private Papers.</p> <p>Under the circumstances, the order made by the court for an examination of the papers by a special master was in violation of the fundamental and constitutional rights of the litigants as to the method of trial.</p> <p>6. Same — Method of Examination.</p> <p>It appearing that before the bill was brought, the trunk had been opened by consent of the president of the bank and the receiver, and certain papers taken out in the presence of third persons, one of whom thereby obtained some knowledge of its contents, it was in the power of the court to ascertain by private examination the nature of the evidence thus to be had, and, if it proved prima facie admissible, to allow public testimony thereof to be given.</p>

In Equity. Application by the New York & Northern. Railway Company to compel obedience on the part of the New York <⅛ New England Railroad Company to an order of the interstate commerce commission in respect of discrimination against petitioner in affording freight facilities. Heard on motion to dismiss the petition.

<p>1. Equity — Evidence—Answer under Oath.</p> <p>Matter contained in an answer made under oath, when an oath thereto is waived in the hill, is not evidence for the respondent after replication and proofs, even when the respondent has died since the answer filed.</p> <p>2. Same — Book oe Accounts.</p> <p>A hook of accounts, referred to in the answer, hut not offered in evidence, is not made evidence because the complainant called for it, and asked, when it was produced, some questions about it which brought out its contents.</p> <p>8. Witness — Competency—Transactions with Decedents — Cross-Examination.</p> <p>Evidence elicited by cross-examination of complainant testifying on his own behalf in a suit against the representatives of a decedent, as to matters independent of the matters inquired about in direct examination, are competent as against respondent, and would not be affected by an objection to the competency of the witness.</p>

In Equity. Bill by the Mercantile Trust Company against the Kanawha & Ohio Railway Company for the foreclosure of a mortgage. Heard on the intervention of the Adams Express Company to enforce the prior lien of certain receiver’s certificates.

<p>In Equity. Bill to establish title to lands. Decree for complainants.</p> <p>Statement by Nelson, District Judge:</p> <p>This action was begun in April, 1890, by the Duluth Storage & Forwarding Company and the Duluth Street Railway Company on their own behalf, and also on behalf of all others similarly situated with reference to the subject of the action who might thereafter come in and be joined as parties thereto. The lands, of which those in controversy are a part, were patented in severalty, and in four distinct but adjacent parcels, by the United States, October 23, 18-08, to one Benjamin Armstrong and three other relatives of the Indian chief Buffalo. Armstrong, having succeeded to the interest of the other patentees, conveyed an undivided one half of the entire tract to Cash & Kelly, October 22, 1859, and the other undivided half to John M. Gilman, August 31, 1864. These grantees, and those claiming under them, in 1870, caused the entire tract to be platted into town lots, about 2,600 in number, which now lie in the center of the city of Duluth. The 577 complainants herein, who are about two thirds of all the present owners of the lots so platted, have, as to their respective lots, succeeded to the interest thus acquired by Gash & Kelly and Gilman, and unite in this action to quiet title against the defendant, who claims, adversely to the Gilman title, an undivided half of the entire tract, by virtue of a deed from Armstrong, made prior to the issuance of the patent, the origin of which adverse title was as follows: The patents to Buffalo’s relatives were issued in pursuance of the following clause in the treaty with the Chippewa Indians of Lake Superior, signed September 30, 1854:</p> <p>“And being desirous to provide for some of his connections, who have rendered his people important services, it is agreed that the chief Buffalo may select one section of land at such place in the ceded territory as he may see fit, which shall be reserved for that purpose and conveyed by the United States to such person or persons as 1m may direct. ”</p> <p>On the day of the treaty, Chief Buffalo appears to have made, under the foregoing clause, the following written selection, which, ⅛ February, 185(5, was tiled in the office of Indian affairs:</p> <p>“I hereby select a tract of land one mile square, the exact, boundary of which may be defined when the surveys are made, lying on the west shore of St. Louis Bay, Minnesota territory, immediately above and adjoining Minnesota Point; and I direct that the patents be issued for the same, according to the above-recited provisions, to Shaw-bwaw-skung or Benjamin (I. Armstrong, my adopted son, to Mathew May-dway-gwon, my nephew, to Joseph May-dway-gwon and Anton May-dway-gwon, his sons, one quarter section to each.”</p> <p>September 17, 1855, the May-dway-gwons united in an assignment to Armstrong of all their interest under the treaty. September 11, 1856, Armstrong executed to Prentice the deed upon which he bases his claim of title. It is a quitclaim deed of an “undivided one half of all the following described piece or parcel of land situate in the county of St. Louis and territory of Minnesota, and known and described as follows, to wit: Beginning at a large stone or rook at the head of St. Louis River Bay nearly adjoining Minnesota Point; commencing at said rock and running east one mile, north one mile, west one mile, south one mile, to the place of beginning, — and being the land set off' to the Indian chief Buffalo at the Indian treaty of September 30, A. D. 1854, and was afterwards disposed of by said Buffalo to said Armstrong,.and is now recorded with the government documents.” Concurrently with the execution of this deed, Prentice and Armstrong joined in a contract reciting that the latter had that day deeded to the former “a certain piece of land,” describing it substantially as in the deed, and agreeing that for the consideration Prentice was to furnish Armstrong such money and provisions as might be necessary to gb on and erect a house on said land and live thereon, and to assist him at Washington in perfecting his title, Armstrong at the same time agreeing to move at once upon and occupy the land. The government survey of the township in which the lands in controversy lie was not made until the year 1857. The large rock referred to in the Prentice deed was a prominent, natural landmark, and is well identified by the'evidence. It is admitted that no part of the lands finally patented under the treaty and here in controversy lie within the square mile of land running east and north of said rock.</p>

<p>In Equity. Bill by Amos 0. Graves, assignee in bankruptcy of Theron Davenport, against Josephus Davenport, Deborah Davenport, and Coe Swartout, to set aside certain conveyances on the ground of fraud.</p>

<p>At Law. Action by William Johnston against the Canadian Pacific Railway Company to recover for personal injuries.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Statement by Tiiayeb, District Judge s</p> <p>This was an action at law, brought by the defendant in error to recover-possession of a mining lode or vein known as the “ Aliunde Tunnel Lode No. 2,” situated in the Argentine mining district, Clear Creek county, state of Colorado. The plaintiff in error, who was defendant in the lower court, is the owner and is in possession of three mining claims known respectively as the “Colorado Central,” the “Subtreasury ” and the “Colorado Central Extension” claims. The Aliunde claim belongs to the defendant in error, and adjoins the Colorado Central claim on the south, and at its northern end also abuts against the Subtreasury claim. The accompanying diagram (plat B) shows with sufficient accuracy the relation of the several claims to each other, their general direction, and the manner in which they adjoin, and in some places overlap on the surface of the earth.</p> <p> </p> <p>The region of country where these claims are laid is mountainous, and the surface is broken to a considerable extent by ridges and ravines. As a general rule the granite — or, as it is usually termed, the “country rock ” — in which the ore fissures are found lies from 50 to 100 feet below the surface of the earth, and is covered to that depth with a slide or wash from the mountains, consisting of loose'gravel and detached boulders. By reason of that fact, as the evidence shows, it is and was a difficult task to trace the true apex or outcrop of a vein at the surface of the country rock. On the trial in the lower court the defendant in error maintained, and offered considerable evidence tending to show, that he had the apex of a mineral bearing vein within the side lines of the Aliunde claim, and had traced the apex or outcrop of that vein for some distance within the boundaries of his claim; that the vein became divided a short distance below the surface of the country rock, forming a north and south vein, (so termed,) as shown on the accompanying diagram, (plat A,) the same being a transverse section:</p> <p> </p> <p>—That the north vein had a dip to the northwest of about 70 degrees from the horizon, and at a distance of about 60 feet below the outcrop or apex passed under the south side line of the Colorado Central claim. That the south vein descended into the earth with a slight dip to the northwest, but eventually passed under the south side line of the Colorado Central, and on its strike and dip also became united with the north vein underneath the Colorado Central claim. On the other hand, the plaintiff in error stoutly maintained before the jury (and this seems to have been its chief contention) that both the Colorado Central and Aliunde claims were laid on one and the same broad lode, which was from 100 to 200 feet wide, and was confined between two porphyry walls; that neither party to the suit' had the apex of this broad lode exclusively within the boundaries of their respective claims, and that, in view of that fact, the defendant in error had no right, under the statutes of the United States, (section 2322,) to follow his alleged vein outside of a vertical plane extended downward through the side lines of his claim. In addition to the main defense last mentioned, the plaintiff in error presented three other defenses in the form of instructions, which defenses, it may be conceded, were not distinctly outlined by the pleadings, and. all of which the circuit court overruled. Without pretending to state the exact language of the several instructions last referred to, it will suffice to say that the court was asked to declare in substance — First, that, if the plaintiff below had the apex of what might be termed an independent vein within his own side lines, and the defendant below also had the apex of an independent vein within its side lines, and the two veins, descending downward, became united within the side lines of the Colorado Central claim, then the defendant was entitled to hold all of the vein from the point of junction downward, because it was the owner of the senior patent; second, that the proprietor of the Aliunde claim was in no event entitled to recover his vein within the side lines of the Colorado Central claim, because the latter claim was patented before the discovery on which the Aliunde patent rested; and, third, that the proprietor of the Aliunde claim was not entitled to recover his vein under the Colorado Central claim (the latter being held under the oldest patent) if the jury believed the Aliunde lode “to be a part of the same lode as that on which the Colorado Central patent issued.” As the jury found against the plaintiff in error on its main contention that there was only one broad lode covered by the several claims, and as that issue was submitted under directions from the court that are not challenged, the most important questions that we have to determine concern the action of the lower court with reference to the three other defenses above outlined. Of the four claims above mentioned the Colorado Central claim appears to have been held under the oldest patent. The Aliunde claim, however, was patented before the Colorado Central Extension claim.</p>

<p>In Error to the United States' Court in the Indian Territory.</p> <p>Action by Adolph Baer, Simon Seasongood, and Lewis Bierman, trading as Baer, Seasongood & Co., against C. C. Rooks, William Rooks, and Agnes Rooks, trading as C. C. Rooks & Co., and Edmund H. Doyle, intervener. Verdict and j udgment for defendants. Plaintiffs bring error. Affirmed.</p> <p>The action was commenced by attachment on a stock of goods in the hands of Doyle, to whom defendants had made an assignment for the benefit of creditors; it being alleged that such assignment was fraudulent and void.</p> <p>Statement by Caldwell, Circuit Judge:</p> <p>C. C. Rooks, under the name and style of C. C. Rooks & Co., was . engaged in business as a merchant at McAlester, in the Indian Territory. Rooks represented to some of his creditors that two children he was raising, a boy and a girl, aged respectively 8 and 14 years, were his partners. This alleged partnership need not be further noticed. In February, 1890, Rooks owed between $23,000 and $30,000, and had a stock of goods which invoiced at cost and carriage between $19,000 and $20,000. At this time the indebtedness of Rooks to J. J. McAlester, including the sums for which McA-lester was surety for Rooks, amounted to about $6,500. On the 27th of February, 1890, Rooks sold his stock of goods to McAlester at 80 cents on the dollar in satisfaction of the $(5,500 duo to McAlester, who was to pay Rooks the balance of the purchase price for the goods in three equal payments, in three, six, and nine months. The day or day after this sale was consummated, Me-, Alester was advised by counsel that he would probably have trouble with the other creditors of Rooks, and thereupon the sale was rescinded, and both parties placed back -where they stood before negotiations were' begun. On the 1st day of March, afterwards, Rooks sold and delivered to McAlester, out of his store, goods enough, invoiced at cost and carriage,; to pay McAlester the $(5,500 before mentioned. As soon as the goods sold to McAlester were taken out of the storehouse of Rooks, he executed and delivered a general assignment of all his property subject to execution to 15. H. Doyle, as trustee', for the benefit of his creditors, with preferences to certain of his creditors who "were named in a schedule annexed. Upon the delivery of the deed of assignment the assignee took possession of the stock of goods remaining in Rooks’ storehouse. This deed of assignment was executed before the Arkansas statute on the subject of assignments for the benefit of creditors was put in force in the Indian Territory. On the 4th day of March the plaintiff in error sued out a writ of attachment against Rooks, in the name of C. C. Rooks & Co., for the sum of $572.59 and for $30 costs, upon the ground that they had sold, conveyed, or otherwise disposed of their properly with the fraudulent intent to cheat, hinder, and delay their creditors. This writ of attachment, by direction of the plaintiffs, was levied by the marshal on the stock which Rooks had assigned to Doyle, as trustee, for the benefit of his creditors. In apt time, Doyle intervened in the suit of plaintiff's against Rooks, and claimed the goods attached, as trustee under the deed of assignment. The plaintiffs answered the intervening petition of the assignee, alleging:</p> <p>“That the pretended deed of assignment is fraudulent and void as to the creditors of the said firm, because the said O. C. Rooks, J. J. McAlester, and E. If. Doyle, the intervener herein, about the time of the pretended execution of the said deed of assignment, the said O. 0. Hooks, J. J. McAlester and E. II. Doyle, with the fraudulent intent to convert and appropriate a large amount of the assets of said firm for the benefit of J. J. McAlester and C. C. Rooks, agreed to and did deliver to the said J, ,T. McAlester a large amount of the goods and merchandise of said firm, of about the value of $15,000. That after the execution of the pretended deed of assignment the said C. C. Rooks, J. J. McAlester, and the intervener, E. II. Doyle, with the fraudulent intent to delay, cheat, and hinder the creditors of the said firm, and to convert the .same to the use of. the said J. J. McAlester, took from the said stock of goods merchandise of about the value of $15,000.00, and delivered the same to the said J. J. MeAIester, who converted the same to his own use. ”</p> <p>The defendant Rooks traversed the affidavit for attachment. The issue on the interplea and the issue on the traverse of the attachment were tried together before a jury,* who found both issues against the plaintiffs, who thereupon sued out this writ of error.</p>

<p>At Law. Action of replevin. Heard on demurrer to the special plea.</p>

<p>1. Bill op Exceptions — Signed after Term.</p> <p>No bill of exceptions was presented to the trial judge for signature and signed by him during the term at which the trial was had and judgment rendered, nor Within any extension of time for that' purpose, either by order or by consent of counsel, but a paper was filed entitled a “Bill of Exceptions. ” Held, that a certificate of the trial judge that “all of the exceptions set out in the assignment of errors, called the ‘Bill of Exceptions,’ ” were duly taken at the trial and noted by him on the minutes, and reduced to writing as the assignment of errors, and allowed by him, was unavailing.</p> <p>2. Federal Courts — State Practice — Review by Circuit Court op Appeals.</p> <p>The practice and rules of the state courts do not apply to proceedings taken in the circuit courts of the United States for the purpose of review in the circuit court of appeals.</p>

<p>Customs Duties — Property Subject to Duty — Silk Veils.</p> <p>Silk goods, which, although made in the manner of laces, and having the substantial characteristics' of laces, are not commercially known as “laces, ” but as “silk nets,” “veilings,” and “drapery nets, ” are dutiable under Schedule L, par. 414, of the customs act of 1890, as a manufacture of silk not otherwise provided for, and not as silk laces.</p>

<p>1. Customs Duties — Duty on-Wool — Sobtin®.</p> <p>Tariff Act Oct. 1, 1890: construction of paragraphs 383, 385, 386.</p> <p>2. Same.</p> <p>The “sorting clause” (so called) of paragraph 383, Schedule K, Tariff Act Oct. 1, 1890, (26 IT. S.' St. p. 567,) applies to wools of all classes.</p> <p>3. Same.</p> <p>The term “sortlng”in paragraph 383 means a changing of the original fleeces, and, not a separation of wools as to color.</p> <p>4. Same.</p> <p>The provision that “the duty on wool which has „een sorted shall be twice the-duty to which it would be otherwise subject” means “twice the duty to which it would have been subject if it had not been sorted. ”</p> <p>5. Same.</p> <p>Id applying the “sorting clause” to wools of the third class, which are subject to, ad valorem duties, the value of the wool in an unsorted condition.should be ascertained, and multiplied by twice the rate provided by law for wool of such value.'. Arthur v. Pastor, 109 U. S. 139,‘ 3 Sup. Ct. Rep. 96, followed. - . ■</p> <p>6. Sams.</p> <p>The proviso in paragraph 383 that “wools on which a duty is assessed amounting to three times or more than that which would be assessed if said wool was imported unwashed, such duty shall not be doubled on account of its being sorted, ” applies to. wools of all classes.</p> <p>7. Same.</p> <p>Where sorted wool of class 3 is worth over 13 cents per pound, and the duty thereon at 50 per cent, ad valorem,, under paragraph 38(5, amounts to more than three times the duty which could have been assessed upon it if it had been imported unwashed, double duty cannot be assessed upon it, under the sorting clause of paragraph 883.</p> <p>(Syllabus by the Court0</p>

<p>1. Pekjtiey — Indictment—Time.</p> <p>In an indictment for perjury, the day on which the perjury was committed must be truly laid, and to lay it on the -day of September, 1891, ” is insufficient.</p> <p>⅛. Same — Affidavit.</p> <p>In an indictment for perjury, in making an affidavit, it is unnecessary, under Rev. St. § 5396, to set out the affidavit fc hmo iierba.</p> <p>3. Same — Affidavit—Authority of Notary.</p> <p>Rev. St. § 1778, authorizing notaries public to administer oaths in all cases in which justices of the peace have power to administer them, gives no power to administer an oath in an investigation hy the post office department as to the alleged loss of a registered letter, for there is no statute giving justices such power, and hence no indictment for perjury can be based upon false statements in an affidavit made before a notary in such an investigation.</p>

<p>At Law. Indictment of George W. Martin for mailing obscene letters in violation of Rev. St. § 3893. Heard on motion to quash and demurrer'.</p>

<p>1. Mailing Obscexis Letter— Constitutiostai, Law.</p> <p>Rev. St. § 3S98, as amended bv Act Cong. July 12, 1876, (19 St. p. 90,) prohibiting the mailing of obscene papers, is not in contravention of the first amendment to the federal constitution, providing-that the freedom of the press shall not he abridged. Ex parte Jackson, 96 IT. S. 727, and Plx parle lia,pier, 12 Sup. Ct. Rep. 374,143 TT. S. 110, followed. 45 Fed. Rep. 414, affirmed.</p> <p>2. Same — Sextexce—Omission of Haro Labor.</p> <p>Where a person convicted of mailing- obscene papers is sent to tho penitentiary, a failure to sentence him to hard labor, as required by Rev. St. § 3893, is a fatal error, lor which the judgment will he reversod.</p>

<p>Natukatjkatiox — Selling- Certifícate.</p> <p>Under Rev. St. § 5434, H is a criminal offense to sell a certificate of naturalization to other than tho person to whom it was issued, and it is immaterial that such certificate was fraudulently procured, by misrepresentation to the court, or that it was forged, if prima facie and apparently valid.</p>

In Equity. Bill by Marie Louise Fuller against Minnie Renwood Bemis for infringement of copyright. On motion for preliminary injunction. The subject of the copyright was a stage dance, which is described in the following copyrighted composition: “The SerpeNTINe Dance, by Marie Louise Fuller. “Tableau I. . “Stage dark. Music. Yalse. Dancer enters in the dark, unseen, and stands at back of stage, up center.

In Equity. Suit for infringement of letters patent No. 270,239, issued January 9, 1883, to J. Wilson McCrillis, for an “improvement in the process of manufacturing furniture nails and analogous articles. ” Heard, on demurrer to the bill.

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>In Equity. Bill by the Steam Gauge & Lantern Company against Irvin A. Williams for infringement of patent. Decree dismissing the bill. Complainant appeals.</p>

<p>In Equity. Bill by the Remington Standard Typewriter Manufacturing Company against Frank W. Bailey for infringement of letters patent No. 170,239, issued November 23, 1875, to Rucien S. Crandall for an improvement in typewriting machines. Heard on application for a preliminary injunction.</p> <p>In the specifications the inventor states that — -</p> <p>“The invention consists mainly in a vibrating platen and paper-feed arranged in connection with a series of type bars, which are provided with more than one type, and operated by oscillating finger levers in such a manner that, according to the backward or forward motion of the same, two adjoining types are printed on a common center, which centers may bo increased in proportion to the type by definite vibrations of the platen produced by suitable mechanism. ”</p> <p>The claims are as follow's:</p> <p>“ (1) A typewriter constructed of a vibrating platen, with a series of swinging compound type bars and oscillating finger levers, substantially in the manner and for the purpose set forth. (2) In a typewriter, a platen or printing cylinder, vibrated in a direction transverse to the lines of printing, by means of mechanism substantially as described, for the purpose of creating additional printing poinls or centers. (3) The combination of the vibrating platen with the swinging compound type bars, provided with types corresponding to each vibration on printing point of the platen, substantially as specified. (4) The combination of the swinging type bar with the oscillating finger lever, and with mechanism, substantially as described, for imparting a double action to the type bar, so that the same may be thrown a fixed distance in forward or backward direction, and compel two adjoining types to strike the same printing point of the platen, substantially as described.”</p>

Appea] from tbe Circuit Court of tbe United States for the Eastern District of Louisiana. hi Admiralty. Libel by tbe Otis Manufacturing Company against the schooner Iva B. Ellems to require (he delivery of cargo. Cross libel by the claimants of the schooner for freight, demurrage, and damages. Decree for claimants. Libelant appeals.

<p>1. Charter Party—Construction—Convenient Speed.”</p> <p>A charter party made November 5th with a ship at Charleston, S. C., actively éngaged in trading, by which she was required to proceed 1.o Philadelphia with all convenient speed, and to be in readiness for cargo after December 31st, with the privilege to the shippers to cancel the charter if she “shall not be ready on or before the 3) st of January” following, is complied with if the ship be in readiness by January 81st, although she undertake another voyage, and puts in for ordinary repairs in the interval.</p> <p>2. Same—Beadiness por Cargo—Sunday.</p> <p>The tender of a ship to a charterer on the Monday following the Sunday which would be, by the terms of the charter party, the last day for such tender, is in time, in the absence of some controlling custom of the port to the contrary.</p> <p>3. Custom op Port.</p> <p>There is no custom of the port of Philadelphia requiring that, where the last day that a ship could be in readiness falls on Sunday, she should present herself on the previous Saturday.</p> <p>4. Same—Evidence.</p> <p>A custom is not shown to be established at the port, where the testimony of the witnesses who aver that the custom exists is met by an almost equal number of witnesses with equal facilities of knowing, who testify to never having heard of such custom.</p>

<p>In Admiralty. Libel to enforce lien for supplies.</p>

<p>Salvage — Compensation.</p> <p>The steamer T., bound from Galveston to Liverpool, went aground on the Florida coast about 25 miles north of Cape Florida, December 5th, and was without assistance until the morning of the 8th, when two small vessels reached her. They at once got an anchor and heavy chain into deep water, but before they could make fast night came on, with a heavy storm, during which the T. was driven fast upon the rocky bottom. Other vessels arrived until the 10th, when there were 15 vessels, of 489 tons, and 200 men; also the wrecking schooner Cora, from Key West, with steam pumps and other appliances. The whole force was engaged 25 days in taking out the cargo of cotton and carrying it to Key West, 158 miles, a revenue cutter assisting therein by towing some of the vessels two trips. They thus saved 3,105 bales, the largest part dry. There was no anchorage nearer than 25 miles, and several times the salving vessels were driven there by bad weather. Two of them were damaged while taking off cargo in the heavy seas. Finally a wrecking vessel arrived from New York, and, though her services were not absolutely necessary, they were accepted, and the T. was got off and taken to Key West. She was appraised at §90,000, and her cargo at §115,000. Held, that 25 per cent, would be proper compensation for the whole service, but in view of the aid rendered by the revenue cutter and by the New York vessel, for which the latter was compensated by the claimants, there should be allowed but 22⅝ per cent.</p>

<p>In Admiralty. Libel by B. W. Johnson 'and others against a portion of the cargo of the steamer El Dorado.</p>