Volume 51 — Federal Reporter

<p>1. Mining Companies—Validity ok Mortgage—Publication ok Notice.</p> <p>Comp. St. Mont. div. 5, § 492, provides that the officers of a mining company shall not mortgage its property, except in pursuance of an order of a stockholders’ meeting convened by publication of notice, etc. Held, that a mortgage executed by the unanimous order of a stockholders’ meeting of such company, at which all of the stockholders were present, but which was convened without observing the statutory requirements, was not void, but voidable only.</p> <p>2. Same—Availability op Objection.</p> <p>The corporation and its stockholders were tho only persons who could take advantage of tho voidability of the mortgage. The defect could not be availed of by others holding liens on the mortgaged property.</p> <p>8. Same—Estoppel.</p> <p>Tho corporation and si ockholders, having received the benefit of the mortgage, were estopped to deny its validity.</p>

<p>1. Creditors’ Bill—Dissolved Corporations—Creditors at Large.</p> <p>Where, in conseqnenee'of the dissolution of a corporation, no action at law can be maintained against it by creditor's at large for the recovei'y of judgments, they may maintain a creditors’ bill unsupported by judgments, to reach the assets of the company in the hands of third persons.</p> <p>2. .Same—Prooeddre.</p> <p>. The assets in question having been fraudulently assigned to trustees, who had notice of the fraud, one of whom was interested in maintaining it, plaintiffs were excused from demanding that their suit should be brought by the trustees.</p> <p>3. Same—Practice.</p> <p>A bill in substance a creditors’ bill, but which fails to state that it is brought as well on behalf of all creditors who will come in and make themselves parties on plaintiffs’ behalf, is fatally defective.</p> <p>4. Same—Parties.</p> <p>Suit was brought by creditors oí the G. Co., to subject real estate fraudulently conveyed to S., and by S. conveyed with warranty to the M. Co., to the payment of plaintiffs’ claims. There was no prayer that these conveyances be set aside, the object of the bill being merely to have them declared void as to plaintiffs. Meld, that S. was not a necessary party to the suit.</p> <p>5. Equity—Pleading—Multieakiousness.</p> <p>A bill seeking to subject property fraudulently conveyed in separate parcels to different persons, but charging that each and all of the transactions were parts of one scheme to deprive plaintiffs of the power to collect their claims, with the knowledge-and consent of each and all the defendants, is not multifarious.</p>

In Equity. Bill to foreclose a railway mortgage. Heard on demurrer to the intervening petition of the Blue Ridge Marble Company.

<p>Al Law. Action by Seth H. Smith against David S. Walton and George West to recover penalties for alleged violation of the patent laws. Heard on demurrer to the complaint.</p>

At Law. Indictment of Adolph Barnaby, a Flathead Indian, for an assault with intent to murder, committed on the Flathead reservation, against another Indian of the same tribe. Verdict of guilty. Heard on motion in arrest of judgment.

<p>1. Patents for Inventions—Anticipation.</p> <p>Letters patent No. 306,980, issued October 21,1884, to Ed ward Weston, for an improvement in tbe process of manufacturing carbon conductors for incandescent electric lamps, are void because of anticipation by patent No. 211,262, issued Januai'y 7,1879 to William E. Sawyer and Albon Man for the same invention; the evidence of prior invention by Weston being -insufficient to overcome the presumption attaching to the prior patent.</p> <p>2. Same—Prior Public Use.</p> <p>Independently of the question as to priority of invention, the Weston patent is invalid because of two years’ public use prior to his applifcation, by Sawyer and Man, in their workshop in New York city.</p>

In Admiralty. Libel by Jacob E. Sorensen and others, owners of the bark Urania, against W. S. Keyser, for demurrage. Libel dismissed. See 48 Fed. Rep. 117. Libelants appeal. Heard on motion by the appellee to be authorized, to take testimony as to the meaning of the word “drought” in the charter party, as understood by the parties.

<p>In Equity. Suit by Samuel F. Barr against the Pittsburgh Plato Glass Company and others.</p>

<p>At Law. Indictment for mailing obscene matter. The objectionable writing was not set out in the indictment, and the question whether it came within the meaning of the statute arose on an objection to its introduction in evidence. The court directed a verdict of not guilty.</p>

<p>Seamen's Wages—Shipping Articles—Pilot—Pleading.</p> <p>If it is to be assumed that a pilot of a steam vessel, who is a licensed and sworn Officer, is a“seaman, "within the meaning of sections 4520,4521, Rev. St., and that his hiring in consequence must be by shipping articles, yet he cannot, under these statutes, recover the highest rate of wages paid to any seaman for a similar voyage during the three months preceding his hiring, unless his libel avers or his proofs show that the vessel on which he was employed was of the burden of 50 tons or upwards. 49 Fed. Rep. 650, modified.</p>

<p>Shipping—General Average—Usage op Port.</p> <p>Held, that there -is no local usage in the port of Baltimore by which, in case of jettison of lumber cargo lawfully carried oh deck, the vessel and freight are exempted from contributing in general.average,</p> <p> {Syllabus by the Court.) </p>

<p>In Equity. Creditors’ bill.</p>

<p>In Equity. Bill by George W. Morris against Graham & Hubbel and others to remove cloud from title. The cause, was commenced in a state court, and subsequently removed to this court.</p>

<p>In Equity. Suit by Frederick W. Bound against the South Carolina Railway Company and others for the foreclosure of a mortgage. Heard on the petition of Mitchell & Smith for an allowance of counsel fees to-be paid by the receiver.</p>

<p>In Equity. Bill by Louis Ranger against the Champion Cotton-Press Company and others. Heard on a motion for leave to inspect the books of the defendant company.</p>

<p>1» Corporations—Exclusion op Stockholder—Damages.</p> <p>Plaintiff and others formed a partnership, to which plaintiff contributed a large part of the capital, in the form of real and personal property. Afterwards it was agreed to form a corporation, the partners to take stock therein “to tho full amount of their interest in the firm as such interest shall appear on the 1st day of October, 1888. ” A dispute arose as to the amount of plaintiff’s interest, and in January, 1889, the corporation declared his interest in the concern forfeited, and excluded him from any share in its management. He then brought an action for damages, which, on the trial, took the form of an accounting as to his interest. Held,, that plaintiff was entitled to recover the value of his interest at the time it was taken from him, and that in computing the same there should he included, not only the technical profits, but also the increase in value of the assets of tho concern.</p> <p>2. Same—Interest.</p> <p>On the amount thus found to be due, plaintiff was entitled to interest from the time he was excluded from the concern.</p> <p>S. Same—Bvi dence—Admissi bilit y.</p> <p>Plaintiff testified that he also put into the concern a steam boilor owned bv him, worth 8400. But on the books of tho company he was credited with only $200, the other 8200 being credited to N.. another stockholder, who had formerly been in partnership with plaintiff. Defendant offered in evidence a paper executed long after the formation of the corporation, and purporting to be an assignment by if. of a half interest in the boiler. Held, that the paper was properly excluded, as it could have no effect upon any title previously vested in plaintiff.</p> <p>4. Appeal—Harmless Error—Instructions.</p> <p>Where instructions to tho jury are proper in themselves, the giving an erroneous reason therefor, which is not applicable to the case, and which manifestly could not have misled the jury, is no ground for reversal.</p> <p>5. Same—Review—Assignments op Error. .....</p> <p>..... The assignments of error are to be considered with reference to the theory on which the cause was actually tried by mutual consent of the parties, and the formal claim made in the statement and declaration is not controlling.</p> <p>6. Same—Weight op Evidence—Amount op Verdict._</p> <p>Where there is evidence to sustain a verdict, a circuit court of appeals has no power to reverse the judgment thereon, on the ground that the jury erred in the amount of thoir finding.</p>

<p>1. Public Lands—Railroad Grants—State. Taxation.</p> <p>The grant of lands to the Northern Pacific Railroad Company, under Act July 2,1864, was a present grant, which attached to the specific sections as they became capable of identification by the definite location of the road; and, upon a report by the government surveyors that the lands surveyed are nonmineral, such lands become subject to state taxation, although the land commissioner refuses to issue patents therefor until further satisfied that the lands are in fact nonmineral. Northern Pac. R. Co. v. Walker, 47 Fed. Rep. 681, followed.</p> <p>2. Same—Nonmineral Lands—Land Commissioner’s Decision.</p> <p>Since the determination of the mineral or nonmineral character of such lands must be upon evidence extrinsic of any terms of the grant, it is not necessary that the land commissioner shall pass upon the question, before it can be judicially determined whether certain sections are reserved by the grant because of theii mineral character.</p>

<p>1, Tax Title—Estate Acquired.</p> <p>Under the tax laws of Washington Territory, taxes due on lands constituted a debt due from tho owner, collectible by distraint, and the lands were only subject to sale on failure of the collector to find personal property of the delinquent owner sufficient to produce tho amount due. Held, that a tax title under this law was purely derivative, and the tax deed conveyed only such title as was vested in the delinquent.</p> <p>2. Action to Recover Lands—Common Source op Title.</p> <p>In an action to recover possession of lands the rule that title need not be traced beyond a common source cannot be applied in favor of plaintiff, after tho parties have actually introduced evidence showing that the common source had, in fact, no title whatever.</p> <p>8. Same—Evidence—Prior Decision.</p> <p>In a suit between numerous parties for partition, and to remove cloud from title, a decree was entered which, in effect, operated as a quitclaim deed to each party of the land claimed by him from all the other parties. Held that, in a subsequent suit by one of the parties against a stranger to recover possession of some of the lands, such decree was admissible in evidence in plaintiff’s favor, hut was not conclusive upon defendant.</p> <p>4. Dower—Conveyance.</p> <p>The grantee by quitclaim of a widow’s dower right which has never been set oft by any proceeding under the statutes for the assignment of dower takes no title or right of possession.</p>

<p>Customs Laws—Tariff Aot of October 1, 1890.</p> <p>Small, highly polished disks of pearl, which are plain on the back, with grooved rings or hollowed out in front, with rounded edges, and with small cavities in their centers, and which, except that they are not pierced with holes or shanked through their centers, exactly correspond in appearance with the ordinary superfine pearl buttons of commerce, are not dutiable as pearl buttons, under the provision for such buttons contained in paragraph 429 of the tariff act of October 1, 1890, (26 St. p. 567,) but are dutiable as manufactures of mother of pearl, under the provision for such manufactures contained in paragraph 462 of the same tariff act.</p>

<p>At Law. Information charging that the defendant is a Oninese person found in the United States, and that he is not lawfully entitled to be or remain therein.</p>

<p>1. Patents foe Inventions—Limitation of Claims—Peioe Aet—Bath Oveeflows.</p> <p>Letters patent No. 170,709, issued December 7, 1875, to William S. Carr, for an improvement in waste valves and overflows for baths and basins, claim: “The tube, a, provided with tho collar, i, and lock nut, l, for clamping the slab, m, in combination with the tubular stem, /, of the valve, e, passing through the lock nut, l, and means for sustaining tho tube, /, when elevated, substantially as set forth. ” Held that, in view of the prior state of the art, as shown specially by the patent of July 21, 1874, to J. T. Foley, the patent must be limited to the spocifie mechar nism described.</p> <p>8. Same—Combination—Unpatentable Aggeegation.</p> <p>Claim 2 of letters patent No. 358,147, issued February 22,1887, to John Demarest for a kindred improvement, is for a mere aggregation of parts without eo-operating action, and not for a patentable combination.</p> <p>8. Same—Limitation of Claim—Disclaimee.</p> <p>Where an'applicant acquiesces in the rejection of his original claims by filing a disclaimer, submitting modified claims, and accepting a patent therefor, such claims must be strictly construed.</p>

<p>L Patents for Inventions—Assignment and License—Power of Attorney.</p> <p>C., the owner of letters patent, by a power of attorney appointed Y. his “sole agent” for the “purpose of working and developing the business of the said patents, ” for and in consideration of a specified royalty “upon every lever fitted upon any railway in the United States, ” etc., to be paid by Y. to 0., “ with power for the said Y. to negotiate the sale of said patents upon terms to he agreed upon. ” Held, that the power thus conferred did not warrant Y. in making an absoluto sale of the patents without the concurrence of C.</p> <p>2, Same.</p> <p>By an instrument of writing executed by Y. in his own name, and as his own act and deed, without the consent or knowledge of C., nor his subsequent acquiescence, Y. granted to a corporation, its successors and assigns, “the sole and exclusive right and license under said recited patents to make, use, and sell the improvements therein described and claimed, or intended so to he, to the full ends of the respective terms of said patents, ” with a proviso that the grantee pay to Y. the said royalty. .Held, that this was an attempted sale by Y. of the entire patents, and, being unauthorized by his power of attorney, was inoperative to pass the title thereto as against a subsequent grantee of C.</p>

<p>In Equity. Bill by the Barnes Automatic Sprinkler Uompany against the Walworth Manufacturing Company and others for an injunction and an accounting.</p>

<p>Appeal from a' Decree of the District Court of the United States for the District of Maryland.</p> <p>In Admiralty. Libel for personal injuries. Tho court below awarded libelant one half his damages. 49 Fed. Rep. 393.</p>

<p>1. Mandamus—Municipal Corporations—Dormancy op Judgment—Limitations.</p> <p>The statutes of Kansas provide that judgments against municipalities shall ha paid by taxation, and that the levy and collection of taxes may he enforced by mandamus. Held, that for the purpose of keeping a judgment alive such a mandamus is equivalent to the issuance of execution against a private person, and therefore that, under the state statutes relating to the life of judgments, (Gen. St. Kan. §§ 4543, 4537, 4533, 4535, 4530,) as construed by the state courts, a judgment against a municipality becomes dormant if more than five years elapse between the issuance of two successive writs of mandamus, and absolutely dead if no application to revive is made or suit brought upon the judgment within one year after the expiration of the five years.</p> <p>8. Limitations—Townships—Service op Process on Opeicers.</p> <p>Section 31, Code Kan., provides that the time of the absence from the state or the concealment of a person against whom a cause of action accrues shall not he computed as part of the period within which the action must be brought. Held that, even if this section can be held to apply where the persons elected officers of a township either fail to qualify or remove from the township, for the purpose of preventing the enforcement of judgments against it, still the question is not presented where service of process or of notice to revive the judgments could have been made, within the statutory period, upon a trustee of the township, such trustee having been duly appointed by the county commissioners, upon the ground that there were no township officers.</p> <p>8. Townships—Nonresident Oppicer—Service op Process.</p> <p>The fact that a township officer removes from the township and thereafter resides in another township of the same county, does not necessarily prevent the service of mandamus upon him. Salamanca Tp. v. Wilson, 3 Sup. Ct. Rep. 344, 109 U. S. 627, followed.</p> <p>4. Mandamus—Limitations—Pendency- op Proceedings.</p> <p>Where a writ of mandamus was issued and served, hut no other steps were taken for more than six years, it cannot he said that the mandamus proceeding was pending during that time, within the rule that limitation does not run against a party while he has a suit pending to enforce his claim.</p>

<p>In Equity. Bill by Isaac L. Hewitt against Warren Story and others to establish a right to take certain water for irrigation and other purposes, and to restrain interference therewith.</p>

In Equity. Suit by the Union Loan & Trust Company against the Southern California Motor Road Company and others to foreclose a mortgage. Heard on motion of defendant for payment of its counsel fees and expenses.

<p>Injunction Bond—Assessment of Damages—Action on.</p> <p>A federal court, which, on granting a temporary injunction, requires the giving of a bond for possible damages, may, on dissolving the injunction, itself decide what damages, if any, should be paid; and it would never send the bond to another jurisdiction to be sued upon, and only in very exceptional cases would it send the matter before a jury.</p>

<p>In Equity. Bill by Wesley Young and the Maryland Hedge & Wire Fence Company against the Baltimore County Hedge & Wire Fence Company for infringement of patent.</p>

In Equity. Bills by Jacob M. Harmon and Jeremiah R. Harmon, respectively, against Anthony Harmon and others, beneficiaries under the will of Jacob Harmon, deceased, for the specific performance of parol i .«ltracts made by the deceased with complainants. The two cases were argued together.

In Equity. Bill by Frederick Edler against George Clark, executor of James Greenhow, deceased, and Richard Greenhow, and cross bill by Richard Greenhow against Frederick Edler and George Clark, executor. The executor excepts to the master’s report.

<p>L Wills—Construction—Nature of Estate—Jus Disponrndi.</p> <p>A testator, after directing the payment of his debts, bequeathed to his wife all his “goods, chattels, merchandise, moneys, choses in action, lands, and personal property, to be hers during her natural lifetime or widowhood. ” He further provided that a sufficient portion of his estate should be appropriated to the support and education of his children, and that at the death of his wife an equal division of his estate should he made to his children. Held, that the wife did not take a mere life estate with remainder in fee to the children, but she had full power to sell the personalty affected by the will, for the purpose of carrying out its provisions.</p> <p>2. Same.</p> <p>Where the wife receives land in payment for the personalty so sold, she can convey it in fee simple to a purchaser for value, free from any claim or interest on the part of the children.</p>

<p>t. Attachment—Issuance—Duties oe Clerk.</p> <p>Gantt’s Dig. Ark. § 438, provided that an attachment for a debt not due might he granted by the court in which the action was brought, or by the judge thereof, or some circuit judge. Section 439 required that the order of the court or judge granting the attachment should specify the amount for which it was allowed. By the act of March 18,1881, (Mansf. Dig. § 363,) section 438 was amended by conferring on the clerk of the court the same authority to grant such an attachment as that possessed by the court or judge. Meld that, the purpose of the requirement that the order of the court or judge should specify such amount being that the clerk might know what sum to insert in the attachment, it was not necessary that the clerk, when the attachment was allowed by himself, should make an order specifying the amount for which it was allowed.</p> <p>X Same—Mansfield’s Dioest, §§ 363, 364.</p> <p>In the subsequent compilation of the statutes of Arkansas known as “Mansfield’s Digest, ” the word “clerk” is inserted in the former provision of Gantt’s Dig. § 439, so as to require that the order of the court, or the clerk or judge, granting the attachment, shall specify the amount for which it is allowed, (Mansf. Dig. § 363,) and provides (section 364) that “the order of attachment, as granted by the court, or the clerk or judge, ” shall not be issued by the clerk until a bond has been filed. Meld, that the word “clerk” was inserted in these two sections (Mansf. Dig. §§363, 364) without legislative sanction, unless authorized by a proper construction of the act of March 18, 1831, (Mansf. Dig. § 363,) and that such construction was not authorized, as it would be a vain and. unnecessary proceeding to require the clerk, when he issues an attachment, to certify to himself the amount for which he has allowed it.</p> <p>& Same—Technical Defects.</p> <p>Even if it be conceded that the statute does require the clerk.to first make such an order, an attachment issued by him without it would not be invalid, since, under the rulings of the state supreme court, the proceeding by attachment, like any other civil action, may be amended in matter of substance, as well as of form, at every stage of the case, and all errors or defects not injuriously affecting the substantial rights of the defendant will be disregarded.</p> <p>4. Same—Clerk—Official Acts Outside -his Office.</p> <p>Mansf. Dig. § 547, provides that the county clerk shall keep his office at the county seat, shall keep therein the records, seals, and property belonging to his office, and shall there transact his business. Meld, that this does not render void official acts performed by the clerk away from his office, such as issuing a writ of attachment and affixing thereto his official seal.</p> <p>8 Same.</p> <p>Mansf. Dig. Ark. § 4967, provides that a civil action is commenced by filing in the office of the clerk a complaint, and causing a summons to be issued thereon. Section 5308 declares that no summons or order for a provisional remedy shall be issued by the clerk in any action before the complaint or petition “is filed in his office. ” Meld, that this does not require that the complaint shall be actually lodged within the walls of the office before the issuance of the writ, and where the clerk, outside of his office and at the office of an attorney, receives and stamps as “Filed” a complaint, affidavit, and bond for an attachment, and thereupon signs and attests the writ with his official seal, delivers the same to the marshal, and then immediately takes tlie papers to his office, tlie attachment is valid; especially as section 5083 declares that tlie court must, at every stage of the proceedings, disregard any error or defect which does not affect the substantial rights of the parties.</p> <p>6. Samk.</p> <p>Even if it be conceded that the writ was prematurely issued, the service and levy thereof became effectual and binding against the defendant, and all others who acquired no rights before the papers were actually lodged in the office.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p>

At Law. This is ail action of damages, originally brought by the plaintiff, a merchant at Memphis, in the circuit court of Shelby county, Tenn., the summons running against “R. G. Dun &Co., the 'mercantile agency;” and the return of the sheriff shows that it was “executed on S. Patterson, manager of R. G. Dun & Co., of the ■agency in Memphis, Tennessee, by making known to him the contents” • thereof.

At Law. Action by the Davis & Rankin Building & Manufacturing Company against William W. Barber and others for breach of contract. Heard on demurrer to the declaration for want of jurisdiction.

u.rt. of the United States for the District of ¿Kansas.- Reversed. Statement by Caldwell, Circuit Judge: The defendant in error, J. J. Sqnior, brought suit against Quindaro township, in Wyandotte county, Kan., and the trustee, clerk, and treasurer of said township, to recover the possession of a parcel of land/ particularly described in the complaint.

<p>Insurance—Action on Policy—Declaration.</p> <p>An insurance company issued a policy, one item of which was “against all direct loss or damage [excepting all losses caused directly or indirectly by fire or lightning] to the property ” of the insured. Held, that a declaration attempting to state a cause of action under said item, without stating that the loss was not caused, directly or indirectly, by fire, was demurrable.</p>

<p>At Law. Action by Harry William Easun against the Buckeye Brewing Company and others. On. demurrer to petition.</p>

<p>At Law. Action by the City National Bank of Birmingham, Ala., against Robert G. Dun and others. Judgment for plaintiff. Defendants move for a new trial.</p>

<p>At Law. Action by James B. Dodge against the city of Memphis, Mo., on certain municipal bonds. Heard on demurrer to the plea.</p> <p>The contract of subscription in the case at bar was valid, and expressly authorized, and the bonds were not wholly void, but valid, except as to their commercial quality, in which case the contract will be enforced in so far as it is valid, and the provision in the contract of subscription to pay in bonds will be held, in effect, a contract to pay in money at the time and under the conditions imposed in the order of subscription. Gelpcke v. Dubuque, 1 Wall. 222; author’s views, subdivision 6, § 125, (4th Ed.) Dill. Mun. Corp.; Mayor v. Ray, 19 Wall. 468; Hitchcock v. Galveston, 96 U. S. 350; Little Rock v. Merchants’ Nat. Bank, 98 U. S. 308; Wall v. Monroe Co., 103 U. S. 78; Claiborne Co. v. Brooks, 111 U. S. 400, 4 Sup. Ct. Rep. 489; Wells v. Supervisors, 102 U. S. 625; Norton v. Dyersburg, 127 U. S. 160, 8 Sup. Ct. Rep. 1111; Hill v. City of Memphis, 134 U. S. 198, 10 Sup. Ct. Rep. 562; Cause v. City of Clarksville, 5 Dill. 177; Babcock v. Goodrich, 47 Cal. 488; State Board v. Citizens' St. Ry., 47 Ind. 407; Allegheny City v. McClurkan, 14 Pa. St. 81; Maher v. Chicago, 38 Ill. 266; Oneida Bank v. Ontario Bank, 21 N. Y. 490; Argenti v. City of San Francisco, 16 Cal. 256; Bank v. North, 4 Johns. Ch. 370; Ketcham v. City of Buffalo, 14 N. Y. 356; Evansville, etc., R. Co. v. City of Evansville, 15 Ind. 395; Mullarky v. Cedar Falls, 19 Iowa, 21; Sheffield School Tp. v. Andress, 56 Ind. 162; opinion by Mr. Justice Story in Bank v. Patterson, 7 Cranch, 305; Knapp v. Mayor, 39 N. J. Law, 394.</p> <p>The promise to give bonds in payment was, at furthest, only ultra vires, and, in such ease, though specific performance of an engagement to do a thing transgressive of its corporate power may not be enforced, the corporation can lie held liable on its contract. Oneida Bank v. Ontario Bank, 21 N. Y. 490; Curtis v. Leavitt, 15 N. Y. 95-99. The later ease especially decides that,; where the right to make the contract exists,—but the bonds or security taken are unlawful,—the right to disaffirm the entire contract, and sue for “money .had and received,” or to only disaffirm the illegal security and sue upon the contract, rests with the holder of the security, and not with the corporation which gave it.</p> <p>The contract can be enforced subject to the equities between the original parties, if there are any. Hackettstown v. Swackhamer, 37 N. J. Law, 191; Dill. Mun. Corp. (4th Ed.) §§ 120-123; Daniel, Neg. Inst. (2d Ed.) § 420; Knapp v. Mayor, 39 N. J. Law, 394.</p> <p>. The ground has been broadly taken that, for.debts and obligations lawfully created, any corporation, public as well as private, has the implied authority, unless prohibited by statute, charter, or by-law, to evidence the same by the' execution of a bill, note, or bond, or other contract; that the power to contract a debt carries with it the power to give a suitable acknowledgment of it; and there is no rule of law, in the absence of a statute limiting the length of the credit. Municipality v. McDonough, 2 Rob. (La.) 244, (1842;) Barry v. Merchants' Exchange Co., 1 Sand. Ch. 280; Curtis v. Leavitt, 15 N. Y. 9; Smith v. Law, 21 N. Y. 299; Bank v. Carpenter's Adm'rs, 7 Ohio, 31; Ketcham v. City of Buffalo, 14 N. Y. 356; Douglass v. Mayor, etc., 5 Nev. 147; City of Richmond v. McGirr, 78 Ind. 192; Evansville, etc., R, Co. v. City of Evansville, 15 Ind. 395; Sheffield School Tp. v. Andress, 56 Ind. 162; Dill. Mun. Corp. (4th Ed.) 443; 2 Kent, Comm. 224; Beach, Ry. Law, § 223; Green’s Brice, Ultra Vires, p. 122; Chicago, B. & Q. R. Co. v. City of Aurora, 99 Ill. 211.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p>

At Law. Action by Mrs. William Worth against the Chicago, Milwaukee <fc St. Raul Railway Company to recover damages for personal injuries. Verdict for defendant. The case is now heard on motion for a new trial.

<p>Imputed Negligence—Passenger in Private Vehicle.</p> <p>Where a person accepts the gratuitous invitation of the owner and driver of a vehicle to ride with him, and exercises no control over such driver, the latter’s negligence cannot he imputed to his guest, so as to defeat his recovery against a third person for injuries resulting from the concurring negligence of the driver and such third person. 50 Fed. Rep. 172, affirmed. Little v. Hackett, 6 Sup. Ct. Rep. 391, 116 U. S. 366, followed.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Action by Harry McDonald against the Kansas City, Ft. Scott & Memphis Railroad Company to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant brings error.</p>

<p>1. Master and Servant—Negligence op Vice Principal.</p> <p>The foreman of an extra gang of track repairers, whose sole duty it was to supervise the work of track repairing over some IS or CO miles of the roadbed of a railroad company, to hire the men necessary to do that-work, and to direct the operations of the force so employed, is a vice principal, for whose negligence the railroad company is liable, where a workman in said gang was injured while under his orders. Railway Co. v. Ross, 5 Sup. Ct. Rep. 184, 112 U. S. 377, construed; Woods v. Lindvall, 48 Fed. Rep. 62, 4 U. S. App. 49, followed.</p> <p>2. Fellow Servants—Wisconsin Rule in Federal Courts.</p> <p>A workman, while acting under the orders of the foreman of a gang of track re- . pairers, was injured in the state of Wisconsin. Reid, in accordance with the federal adjudications, the question involving the construction of no statute of the state, that the foreman was not a fellow servant, although the rule of law was otherwise in Wisconsin.</p>

Action by Refugio and Jose Munos, minors, by their next friend, Juan D. Ochoa, against the Southern Pacific Company. Judgment for defendant on demurrer to plaintiffs’ petition. Plaintiffs bring error.

<p>L. Internal Revenue—Violation op Laws—Distilled Spirits—Warehouse Stamps and Inspection Mark.</p> <p>Under Rev. St. § 3289, declaring a forfeiture of any cask or package containing more than five gallons of distilled spirits, when found without having thereon “ each mark and stamp required by law, ” such a package is forfeited when found bearing a distillery warehouse stamp and an inspection mark, neither of which have any date; for section 3287 requires eaoh warehouse stamp to bear the date of the receipt of the package into the warehouse, and the regulations promulgated by the commissioner of internal revenue require the inspection brand to show the date of inspection.</p> <p>2. Same—Information.</p> <p>If the dates have been removed through accidental causes, their absence is no ground of forfeiture, but, as the statute does not in terms contain any exceptions, ■ this fact need not be negatived by the information; it is matter of defense to bo set up by the claimant.</p> <p>3. Same—Changing Contents of Package.</p> <p>Under Rev. St. § 8155. a person cannot buy a package containing distilled spirits, already stamped and branded, and take out the contents and put in other distilled spirits of a lower proof, without rendering the property subject to forfeiture, although the other spirits iiave paid the tax; and this result follows irrespective if any intent to defraud any private person. Rut no forfeiture would take place if the proof was reduced by natura! causes, or by the addition of water.</p>

In Bankruptcy. Re-examination of claim. The claim was founded on a contract made by the bankrupt to deliver oleomargarine or fat in specified quantities weekly. He made deliveries of less amounts weekly for 10 weeks, complaint being made and notice given that damages would be claimed therefor. At the end of that time further acceptance was refused.

<p>1. United States Marshals—Power to Arrest without Warrant—Violation or Revenue'Laws.</p> <p>Under Rev. St. § 788, giving to United States marshals and their deputies the powers possessed by sheriffs of the states, a deputy marshal in Virginia has power to arrest without a warrant a person who, in his presence, has in possession whisky for the purpose of selling the same without payment of the internal revenue tax, in violation of Rev. St. U. S. § 3452. '</p> <p>2. Same—Evidence—Removal of Causes.</p> <p>A deputy United States marshal, having been informed that two men were selling whisky in the neighborhood in violation of the revenue laws, met them a few minutes later in the highway, carrying a keg. Bie asked what was in the keg, and and they replied, “A little whisky. ” One of them said, “Who the hell are you'i” and he replied, “A deputy marshal. ” The former then said that no deputy marshal should arrest him, and drew his pistol, whereupon the deputy shot and killed him. Meld, that the deputy was justified in presuming that they had the whisky for the purpose of selling the same in violation of the revenue laws; and that whether it was his intention to arrest them, or to make further inquiries as to whether they had been engaged in violating the revenue laws, he was acting within the scope of his authority; and, a prosecution having been commenced against him in the state court for murder, he was entitled to have the same removed to the federal circuit court.</p>

<p>Petition for Leave to Amend an order made after hearing on habeas corpus, so as to allow an appeal therefrom to the supreme court.</p> <p>On the 18th day of December, 1891, petitioner presented bis petition to the judge of the district court, in vacation of the court, alleging that he was unlawfully detained in custody by the respondent on an alleged charge of murder in killing one James Nelson, and alleging that the killing of said Nelson was no murder, but was done in petitioner’s own necessary self-defense, while in the discharge of his duties as deputy marshal in enforcing the internal revenue laws of the United States, and praying for a writ of habeas corpus cum, causa, and also alleging that he had a right to be tried in the circuit court of the United States for said alleged offense. Upon this petition the judge of the district court made the following order:</p> <p> “In the District Court of the United States for the Western District of Virginia, in Vacation. </p> <p>“Upon the petition of Joseph II. Carico, stating that he is illegally detained in custody by W. D. Wilmore, the jailer of Smyth county, Virginia, a writ of habeas corpus is granted him, directed to the said W. I). Wilmore, jailer of Smyth county, Virginia, commanding him to have the body of the said petitioner, Joseph II. Carico, before the judge of this court on Wednesday, the 23d day of December, 1891, at 10 o’clock a. m., at Abingdon, Virginia, together with the day and cause of his caption and detention.</p> <p>“John Pace,</p> <p>“U. S. District Judge for the Western District of Virginia.</p> <p>“December 18, 1891.”</p> <p>On this order a writ of habeas corpus was issued, returnable to the 23d day of December, 1891. On that day respondent filed his return to said writ, as follows:</p> <p>“To the Hon. Judge Paul, Judge of the District Court of the United States for the Western District of Virginia: W. D. Wilmore, keeper of the jail of Smyth county, to whom the within writ is directed, has now here before the court the body of Joseph II. Carico, therein named, as thereby commanded; and I certify that the cause of the detention of said Joseph H. Carico is a warrant of commitment directed to me, a copy of which is hereto annexed, marked ‘Exhibit A,’ and the proceedings of the county court of Smyth county and the commonwealth of Virginia, marked ‘Exhibit B,’ and made part and parcel of this return.</p> <p>“Dated this 23d day of December, 1891.</p> <p>“W. D. WILMOTHS, Jailer of Smyth Co., Va.” j</p> <p>Upon this return petitioner was admitted to bail, and the further hearing of the case continued to the 8th day of January, 1891, and at a special term of the district court begun on the last-named day at Abingdon, Va., the court heard the evidence in the case, and on the 12th day of January, 1892, entered the following order:</p> <p>“It appearing to the court that petitioner is in custody for an act done in pursuance of a law of the United States, and is held in custody contrary to law by the jailer of Smyth county, Virginia, and that he has a right to have removed into the circuit court of the United States for the western district of Virginia the prosecution pending against him in the county court of Smyth county, Virginia, it is therefore ordered that the petitioner be recognized in the sum of one thousand dollars for his appearance before the circuit court for this district on the first day of the next regular term thereof to answer the indictment found against him by a grand jury of the county court of Smyth county, Virginia.”</p>

<p>At Law. Letters patent of the United States were issued to James A. Marsh, February 22, 1887, No. 358,284. On the 10th day of March, 1887, the Quick-Meal Stove Company took a license under the patent, agreeing to pay a stipulated royalty on ail stoves made by the company under the Marsh patent. An action at law, under the license, was brought by Marsh to recover royalties upon certain stoves made by the Quick-Meal Company, which Marsh maintained came under his patent, while the Quick-Meal Company contended they did not. The claim of the patent involved reads as follows:</p> <p>“1. In a gasoline stove, a retort, a commingling chamber, and a duct connecting said retort and said chamber, in combination with a side burner and a communicating pipe between the said chamber and the side burner, whereby ignited gas may be carried from one to the other, as and for the purpose set forth.”</p> <p>The defendant’s stove contained only the ordinary commingling chambers, with a tube between the burners which communicated with one of the commingling chambers, and which served as an automatic lighting device between the burners. At the close of plaintiff's evidence, defendant asked the court to direct the jury to find for the defendant, on the ground that the plaintiff had not made out a prima facie case.</p>

At Law. Indictment against Joseph B. Greenhut and others for violating the law against monopolies. Heard on application for a warrant to remove defendants to another district for trial.

<p>1. Criminar Law—Habeas Corpus—Jurisdiction of Circuit Courts—Removau of Prisoner.</p> <p>Where a prisoner, arrested under warrant based upon an indictment in a distant state and district, is held pending an application to the district court for a warrant of removal for trial, the circuit court of the district in which he is held has authority on habeas corpus to examine such indictment, and to release the prisoner, if in its judgment the indictment should be quashed on demurrer.</p> <p>2. Ildicoau Combinations—Contracts in .Restraint of Trade—Indictment.</p> <p>An indictment under the act of July 2, 1890, relating to monopolies, averred in the fourth count that defendants, in pursuance of a combination to restrain trade in distillery products between the states, shipped certain whisky to Massachusetts, and sold it there through their distributing agents to dealers under a contract whereby said dealers were promised a rebate of five cents per gallon on their purchases, providing such dealers purchased their distillery products exclusively from the distributing agents, and sold them no lower than the prescribed list prices; said rebate to be paid when such dealers should sign a certificate that they had so purchased and sold for six months; and that by this means defendants had controlled and increased the price of distillery products in Massachusetts. Held, that no crime was charged with respect to such sales, since there was no averment of any contract whereby the dealers bound themselves not to purchase from others, or not to sell at less than list prices. In re Corning, 51 Fed. Rep. 205, approved.</p>

<p>In Equity. Suit by Cornelius E. Masten against Edmund S. Hunt et al. for infringement of letters patent No. 321,833, issued July 7,1885, to complainant for a firecracker.</p> <p>The specification and claim of the patent are as follows:</p> <p>Be it known that I„Cornelius E. Masten, of Boston, in the county of Suffolk, state of Massachusetts, have invented a certain new and useful improvement in firecrackers, of which the following is a description sufficiently full, clear,'and exact' to enable any person skilled in the art or science to which said invention appertains to make and use the same, reference being had to the accompanying drawing, forming a part of this specification, in which the figure is a vertical longitudinal section.</p> <p>My invention relates more especially to large firecrackers, or the class known as “cannon crackers;” and it consists in a novel construction and arrangement of the parts, as hereinafter, more fully set forth and claimed, by which a more desirable article of this character is produced than is now in ordinary use. The nature and operation of the improvement will be readily understood by all conversant with such matters from the following explanation, its extreme simplicity rendering an elaborate description unnecessary: In the drawing, A represents the body of the cracker, B the match, and 0 the fuse. The body is cylindrical in form, and is composed of layers of strong, tough paper overlapping each other, and cemented together in the usual manner. The match is composed of cotton, powder, and gum, the cotton being saturated with a solution of the gum, and then rolled in powder, or the powder rubbed into it and dried. The fuse is composed of a short cord or twist of ordinary touch-paper, into the inner end of which the outer end of the match is inserted and secured, as seen at x. The breech plug, D, of the cracker consists of fire clay; and is inserted in the body around the fuse and match as follows: The fuse and match having been first united, as shown and described, the fuse is inserted in a vertically-arranged hole in the center of an anvil or stake, which fits closely into the lower end, ci, of the body. This stake is provided with a rabbet or shoulder on which the end, r, of the body rests; the body standing vertically with the match in its center when the stake is inserted. Powdered fire clay, or similar material, of proper temperament, is then introduced around the match through the open upper end of the body, and rammed down to form the solid plug, B, by means of a hollow ramrod, which is adapted to pass freely over the match. The body is</p> <p> </p> <p>then filled with the charge oí explosive compound, E, and the wad of the muzzle plug inserted., This plug consists of a cylindrical shell, H, open at both ends, and adapted to fit closely into the body, the shell being provided with a centrally disposed plug, M, composed of fire clay, or similar material, which is rammed in solid before the shell is inserted. The shell, H, is composed of layers of paper overlapping each other, and properly cemented together, and is secured in the body. A, by means of glue, or cement. In firecrackers of this character the muzzle plug or wad is usually rammed down onto the charge or filling with sufficient force to secure the wad firmly in the body of the cracker, thereby, on account of the nature of the filling, greatly reducing the force of the explosion, and causing it to produce far less noise than when the plug is loosely inserted, and cemented into the body, as described.</p> <p>Having thus explained my invention, what I claim is: (1) In a firecracker, the match, B, and fuse, C, in combination with the solid plug, D, and body, A, substantially as set forth. (2) The improved firecracker herein described, the same consisting of the body, A, fuse, C, match, B, plug, D, shell, H, plug, M, and filling or charge, E, constructed, combined, and arranged to operate substantially as described.</p>

<p>Patents eor Inventions—Construction oe Claim—Novelty.</p> <p>Letters patent No. 311,053, for a dumping-wagon, are to toe construed as for a dumping-wagon wherein the body is raised front and rear simultaneously, by folding arms connected with the body and running gear, and suitable connections between the forward ends of the arms and wagon body, whereby, as the latter is raised, it moves rearwardly also with a single power device operating upon one or more of its arms, whereby a single continuous operation will elevate both ends of the body, and move it rearwards, and embrace patentable novelty.</p>

<p>In Equity. Bill by the Abbott Machine Company against Robert H. Bonn and others for injunction and accounting.</p>

<p>1. Patents bob Inventions—Novelty—Cultivatob Cowlings.</p> <p>The first claim of letters patent No. 190,S16, issued May 15, 1877, for an improvement in couplings for cultivators, consisting of a pipe box provided with a projection adapted to co-operate with a spring, weight, or the draught, to rook trie pipe box against, or with the weight of the rear cultivators or plows, is void for want of novelty, having been anticipated by letters patent issued June 11, 1873, to William Haslup. Mawufaeturing Co. v. Deere, 31 Fed. ítep. 709, reversed.</p> <p>2. Same—Extent oe Claim—Combination.</p> <p>Said claim cannot be considered a combination claim for the combination of the pipe box with a spring or weight and a plow beam and axle, since a claim cannot be treated as a combination claim, in the absence of the word “combination, ” and of a statement of the specific elements of which it is composed.</p>

<p>1. Patents fob Inventions—Preliminary Injunction—Prior Adjudication—Appeal.</p> <p>On appeal from a preliminary injunction, the prior adjudication on which such injunction was based will, in the absence of some controlling reason, have the same weight with the circuit court of appeals which it should have had with the circuit court which granted the injunction.</p> <p>2. Same.</p> <p>The review of the interlocutory order for an injunction cannot be converted into a review of the final adjudication upon which it is based; but while the circuit court, upon a motion for an injunction, might deem itself constrained, contrary to its own judgment, to adopt the rulings of another circuit court upon questions of law made at final bearing, the circuit court of appeals is at liberty to re-examine such rulings, dispose of the questions of law conformably to its own convictions, and accord to the former adjudication such weight as in its own judgment such adjudication was entitled to upon the motion.</p> <p>S. Same—Improvement in Paper Boxes—Infringement.</p> <p>The circuit court for the southern district of New Xork having adjudicated the validity .of the second claim of letters patent No. 171,866, for an improvement in paper boxes, (41 Fed. Rep. 139.) thereafter granted a preliminary injunction, based Upon such prior adjudication, against a third party, (48 Fed. Rep. 913,) no new deSenses having been interposed. Held, on appeal to the circuit court of appeals for the second circuit, that'the prior adjudication wouid have the same weight with the circuit court of appeals which it had with the circuit court.</p> <p>4. Same—Inprix&emest—Paper Boxes.</p> <p>The second claim of letters patent No. 171,806, issued January 4. 1876, to Reuben Ritter for an improvement in paper boxes, describes a box consisting of a single sheet of paper, and retaining its shape by the interlocking of flaps projecting from the sides into slots in the ends. The slots are perpendicular to the bottom of the box, and made longer than the width of the flaps, so that when adjusted the straight edge of the flap engages with the straight edge of the slot, and does not merely hook into the corner of it. In defendant’s box the projections of the flaps are substantially the same as those of the patent. The slots, however, are at an angle with the vertical corner of the box, instead of parallel with it, but the straight edge of the projection is also altered, so that its locking edge and the locking edge of the slot are parallel with each other. A transverse slot-is added at the úpper extremity of the locking slot, but on the examination of models it appears that the projection and slot engage straight edge to straight edge. Held, that there is infringement, notwithstanding the apparent differences. 48 Fed. Rep. 913, affirmed.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>In Equity. Suit by Peter K. Dederick against Carl Seigmund for infringement of a patent. The court below dismissed the bill. 42 Fed. Rep. 842,. Complainant appeals.</p>

<p>In Equity. Bill by Ebenezer Buckingham and others against the Springfield Iron Company for an injunction and an accounting.</p>

<p>1. Patents eok Inventions-Anticipation-Prior Use—Roll-Paper Cutters.</p> <p>Letters patent No. 201,598, issued July 8, 1884, to Richard W. Hopking, cover an improvement in roll-paper holders and cutters consisting oí a bracket irom which the roll of paper is suspended by means of a yoke, which passes through a slot in the bracket, and has its arms bent to form a spring, and its ends curved to pass a short distance into the roller or core. A blade, having' its ends bent at right angles, to guide the paper, is connected with the bracket by means of a knife yoke, upon which are two coil springs to continually press the knife against the roll, so that the paper may bo pulled out and cut at any desired length. Held, that the invention was anticipated by the device constructed in Richmond, Ind., by Martin Nixon, and used there by himself and others about 1875 or 1876, and which consisted of a bracket holding the roll, and a follower with a metal edge, which'was held above the roll by slots in the bracket, and of its own weight followed the roll as it diminished in size, and continually pressed against it ready for cutting.</p> <p>2. Same.</p> <p>The patent was also anticipated by the device constructed by O. J. Livermore about 1878-79 at Worcester, Mass., for cutting sheet wrapping paper from rolls, and used there for several years in the dry goods store of Clark, Sawyer & Oo. This machine operated in substantially the same manner as the Nixon device, having a wooden frame with a slot, in which the roll was carried on an iron rod, and in which was a heavy wooden follower with a metal edge, acting by force of grav ity. 45 Fed. Rep. 6SH, reversed.</p>

<p>In Admiralty. On motion.</p> <p>Libel by the firm of Griswold & Manchester against the propeller T. W. Snook for damages caused by a collision. A decree was rendered in favor of the libelants. The Continental Insurance Company intervened, and now moves to be let in to participate in the decree.</p>

<p>Charter Party—Liability of Owner—Breakage of Machinery.</p> <p>Under a charter party by which a steamer was let for the fruit trade the owners stipulated to maintain the steamer’s machinery in a thoroughly efficient condition for the service, accidents excepted. Held, upon the proof, that the breaking of the junk ring of the high-pressure cylinder was an accident not attributable to defects in the machinery, or want of efficiency, and that the owners of the steamer were not liable for damage to a cargo of fruit caused by delay in the voyage resulting from the accident.</p>

<p>L Shipping—Bill or Lading—Preliminary Contract—Live Stock.</p> <p>On a voyage from Baltimore to Liverpool fire broke out in tbe cotton cargo of the steamship Queensmore, and in consequence respondents’ cattle were suffocated or thrown overboard. Afterwards the ship became unmanageable, and, striking on a rock on the coast of Ireland, was lost. The freight by the bill of lading was ex-</p> <p>Eressed to be paid by the shipper, “ship lost or not lost.’’ By the preliminary ve stock freight contract, it was expressed to be paid on the number of animals shipped, whether delivered alive or not delivered at all, payable in Liverpool on the arrival of the ship. Held, that the bill of lading was the final agreement of the parties, and by it the freight was payable, notwithstanding the loss of the ship and her nonarrival at Liverpool.</p> <p>2. Same—Construction of Freight Contract.</p> <p>Held, that the meaning of the liv« stock freight contract was -merely to waive prepayment of the freight at Baltimore, and not to make the freight depend on the contingency of the ship’s arrival at Liverpool.</p> <p> (Syllabus by the Court.) </p>

<p>1. Salvage—Pilot Boat—Public Poliot—Compensation.</p> <p>The British steamship Alexander Elder, worth $225,000, with cargo and freight worth as much more, went ashore near Cage Henry light, while in charge of a Maryland pilot, under circumstances which indicated that it was the fault of the .pilot. The Virginia steam pilot boat Relief, which was attending to take off the •pilot, rendered salvage service in pulling the steamship afloat. Meld, that it was against public policy that a liberal salvage award should be allowed a pilot boat under such circumstances.</p> <p>2. Same—Compbxsatios.</p> <p>Held, under the circumstances of the expensive litigation in this case, that $1,000 should be allowed, although a prompt tender of considerably less would have been held sufficient.</p> <p> (Syllabus by the Court.) </p>

<p>In Equity. Suit by Mary E. Wills against A. Pauly.</p>

<p>In Equity on Demurrer to the Bill.</p>

In Equity. Action by the Cosur d’Alene Consolidated & Mining Company against the Miners’ Union of Wardner and others. Order continuing injunction against defendants pending the action.

In Equity. Bill by J. J. Robinson, trustee, to foreclose a trust deed given by the Alabama & Georgia Manufacturing Company and others to secure certain bonds. A demurrer to the bill ivas overruled, (48 Fed. Rep. 12,) and a decree of foreclosure directed. The case is now heard on a petition for the allowance of attorneys’ fees, and demurrer thereto.

At Law. On demurrer to declaration. Action by Andrew D. Bishop against the American Preservers’ Company, Bernard E. Ryan, and T. E. Dougherty, for injuries alleged to have been sustained in his business and property by reason of acts of the defendants in violation of the “Anti-Trust Law,” (26 St. at Large, p. 209.) That act makes illegal all combinations “in restraint of trade or commerce among the several states,’’and provides that “any person who shall be injured in his…

<p>Accounting of E. B. Sherman, chief supervisor of elections -for the northern district of Illinois. ■ .. - .: .. .</p>

<p>1. Immigration — Superintendent's Decision — Habeas Corpus — Jurisdictional Question.</p> <p>The powoi- o£ the federal superintendent of immigration to return passengers is confined to “alien immigrants, ” and the question whether persons ordered to be returned are of that description is jurisdictional, and may be determined by the courts on habeas corpus.</p> <p>3. Same—Unnaturalized Residents Returning prom Visit.</p> <p>One who is a resident of the United States, though of foreign birth, and nut naturalized, and who is returning from a visit to the country of his birth, is not an alien-immigrant within the meaning of the laws regulating immigration.</p>

<p>Petition of A. W. Marsh, by George E. Gard in his behalf, for a writ of habeas corpus.</p>

<p>At Law. Petition by Charles E. McAllister for writ of habeas corpus. Petitioner had been convicted in a Maryland court of the offense of selling'oleomargarine, and the judgment was affirmed in the state supreme court. See 20 Atl. Rep. 143.</p>

<p>Patents fob Inventions—Patentabilitt—Coen Hüskeb.</p> <p>Letters patent No.. 290,571, issued December 18,1883, to S. B. Goddard, for an improvement in the method of reducing corn in the stalk and separating the kernels, consisting of a cutter with feed rollers in front, a beater or thresher, a revolving screen or separator, and a shaking screen .under it, all mounted in one frame, and so geared that the parts are driven by a single hand wheel, are void, since it consists of old and well-known devices, not so combined as to form a single machine.</p>

<p>In Equity. Bill by Willis J. Perkins against the Interior Lumber Company, Charles A. Street, Wayne B. Chatfield, and Frederick A. Keep for injunction and accounting.</p>

In Equity. Bill by tbe Dixon-Woods Company against Pfeifer for infringement of letters patent No. 258,156, issued May 16, 1882, to Cleon Tondeur, for an improvement in glass-annealing furnaces.

<p>X. Trade-Marks—Fraudulent Imitation—Evidence.</p> <p>Complainant, “California Fig Syrup Co., ” manufactured a syrup from figs, aud put it up in packages, having as a device thereon a fig tree, with leaves and fruit, and the words “Syrup of Figs, ” as a trade-mark. Respondent, “Improved Fig Syrup Co., ” made aud put up the saiue article in a package with the same device and the words “Improved Syrup of Figs” as a trade-mark. Respondent, on remonstrance, changed its device to the figure of a woman holding up a fig, with the words “Fig Syrup ” as a trade-mark, all of 'which occupied the same place and space on the package as complainant’s device, and was, besides, an imitation of complainant’s newspaper advertising device. Held, that complainant was entitled to an injunction.</p> <p>2. Same—Effect of Plaintiff’s Deception.</p> <p>The factthatplaintiff’s trade-mark, “Syrup of Figs,’’being merely descriptive, was deceptive as a designation of the compound, did not affect plaintiff’s right to an injun etion; the matter in controversy being, not the right to the exclusive use of the words, but respondent’s simulation of complainant’s devices and packages with a view to deceive customers.</p> <p>3. Same—Pleading.</p> <p>An objection to the bill on the ground that it was uncertain whether complaint was made of the use of the words “Fig Syrup” or “Syrup of Figs” by themselves or in combination with other words, devices, etc.,'could not be sustained; it being enough, for the purposes of a demurrer, that complainant was entitled to relief in respect of the combined use, which was clearly set forth in the bill.</p> <p>4. Same—Parties,</p> <p>The bill alleged that respondents B. and others were using respondent corporation as a means of infringement, they being themselves substantially the corporation. Hela, that thene was no misjoinder in making them parties defendant.</p>

In Admiralty. Suit in personam by Granville 0. Haller against Charles L. Fox, Adolph Behrens, and H. W. Baker on a bond given by charterer to owner, conditioned for'due performance of a contract for employment of a steamboat for a specified term. The sureties filed exceptions to the libel denying the jurisdiction of the court.

<p>1. Practice—Tender—Southern District oe New York.</p> <p>In the district court for the southern district of New York a libelant may at any time, on order of the court, obtain money tendered and deposited in court, sufficient only' being reserved to cover future costs.</p> <p>2. Same—Interest.</p> <p>In the same court, when respondent serves written notice that he consents to libelants taking an order for the withdrawal of the whole or any specific portion of a sum so deposited in the registry, interest on so much of libelants’ claim thereafter ceases.</p>

In Admiralty. Libel of Information against Robert Roehrig and Mrs, - J. R. Em, owners of the steamer Benton, for transporting coal oil and gasoline on a passenger steamboat contrary to the provisions of Rev. St. §• 4472.

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

<p>In Equity. Bill by the city of Boston against Thomas P. Beal, as receiver of the Maverick National Bank, to recover taxes. Heard on bill and answer.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska. '</p> <p>Statement by Sanborn, Circuit Judge:</p> <p>These were suits brought by the appellees in the district court of Doug- ■ las county, Nebraska, in January, 1891, to compel the specific performance of two contracts, dated May 1,1890. The suits were immediately removed on petition of appellants to the United States circuit court for-the district of Nebraska, where they were heard by Mr. Justice Brewer, and decrees entered for appellees, from which these appeals are taken.</p> <p>To one of these contracts the Union Pacific Railway Company, the • Omaha & Republican Valley Railway Company, and the Salina & Southwestern Railway Company are parties on one side, and the Chicago, Rock Island & Pacific Railway Company and the Chicago, Kansas & Nebraska.. Railwaji Company, on the other. The other contract was between the-Union Pacific Railway Company and the Chicago, Milwaukee & St. Paul Railway Company. In this statement, and in the opinion, the Union-Pacific Railway Company is called the "Pacific Company;” the Omaha & Republican Valley Railway Company, the "Republican Valley Company; ” the Salina & Southwestern Rail way Company, the "Salina Company;” the Chicago, Rock LJand & Pacific Railway Company, the “Rock Island Company;” the Chicago, Kansas & Nebraska Railway Company, the “ Kansas, Company;” and the Chicago, Milwaukee & St. Paul Railway Company, the "St. Paul Company.” The Pacific Company owned nearly all the stock and bonds, elected the directors, and built, controlled, and operated the railroads of the Republican Valley and Salina, Companies; and the Rock Island Company operated the roads of the Kansas Company under a lease for 999 years; so that in reality the Pacific Company and the Rock Island Company were the only parties in interest in the Rock Island Company’s contract.</p> <p>The negotiations that led to these contracts commenced about the 1st of March, 3890, and the contracts were formulated and signed by the various officers of the corporations before the middle of May in that year. The Pacific Company at this time controlled and operated more than 5,000 miles of railroads; among others, a main line extending from Council Bluffs, Iowa, by way of Omaha and Valley Station. Neb., to Ogden, in Utah territory, a distance of about 1,100 miles; a main line from Kansas City, Mo., by way of Topeka and Salina, Kan., to Denver, Colo.; the Republican Valley Railroad, extending from Valley Station, Neb., by way of Lincoln and Beatrice, in that state;, to Manhattan, Kan.; the Salina Company's railroad, extending from Salina to McPherson, in Kansas; a railroad extending from Hutchinson, Kan., to the southern border of that state; and other auxiliary roads. The Rock Island Company owned and operated a line of railway extending from Chicago, hv way of Davenport, to Cornual Bluffs, Iowa, and from Davenport to Ml. Joseph, Jilo. As the owner of the latter line, and lessee of the railroads of the Kansas Company and other corporations, it controlled and operated a through lino of railway from Chicago, by way of Davenport, Iowa, Ht. Joseph,' Mo., and Beatrice. Neb., to Colorado Springs and Denver, Colo.: a line from St. Joseph, Mo., by way of Horton, Topeka, and Hutchinson, to Liberal, Kan.; and such other lines that it controlled and operated, in the aggregate, more than >>,000 miles of railway. The St. Paul Company was operating more than 6,000 'miles of railroad, and one of its lines extended from Chicago to Council Bluffs, Iowa.</p> <p>Early in 1890 the Rock Island Company determined to connect its line from Chicago to Council Bluffs with its more southerly line to Colorado Springs by constructing a bridge across the Missouri river at Council Bluffs, and a railroad from its terminus in that state, by way of Omaha, Mouth Omaha, and Lincoln to Beatrice, Neb., thereby shortening its line from Chicago to Denver and Colorado Springs; and the St. Paul Company joined in the undertaking in order to extend its line from Chicago to Council Bluffs on to Omaha and South Omaha. To accomplish this purpose, these companies caused a corporation, with the necessary powers, to bo created, obtained for it by act of congress the necessary franchise to build and operate the bridge, made the preliminary-surveys and estimates, showing the probable cost of construction to be about $2,500,000, and were proceeding to raise the necessary funds when the Pacific Company requested them to suspend operations, and proposed to make a trackage arrangement with them by which they could use the bridge and certain tracks of the Pacific Company between Council Bluffs and South Omaha for their terminal facilities in Omaha and South Omaha, and to complete the continuous line desired by the Rock Island Company. By direction of the president and at least two of the directors’ of the Pacific Company, its chief of construction and two of its directors requested and obtained a meeting with the presidents of the Rock Island and the St. Paul Companies, and there agreed with them upon the terms of the contracts in question. From memoranda there made by the chief of construction of the Pacific Company, the contracts were subsequently drawn. They were examined and approved by the general solicitor of the Pacific Company at Omaha. The executive committee of the board of directors of that company had a meeting on April 22, 1890, at which six of the seven members of that committee -were present, considered and unanimously voted to approve of thé contracts and authorize the president to execute them; but the custom of the secretary had been not to specify in the calls of the meetings of this committee the subjects to be considered thereat, and the call of this meeting did not state that the subject-matter of these contracts would be there considered. At the annual meeting of the stockholders of this company held on the 30’th day of April, 1890, at which more than two thirds of the stock was represented, these'contracts and the action of the executive committee thereon were considered, and resolutions unanimously passed approving and ratifying the contracts and the action of the committee authorizing their execution; but the call of this annual meeting did not state that the subject-matter of these contracts would bo considered thereat, but stated that certain other subjects were to be considered, and that the meeting was “for the choice of directors for the coming year, and the transaction of any other business which may legally come before the meeting.” The resolution approving the contract with the Rock Island Company read as follows:</p> <p>“Resolved, that the agreement between the Union Pacific Railway Company, the Omaha and Republican Yalley Railway Company, the Salina and Southwestern Railway Company, and the Chicago, Rock Island and Pacific Railway Company, and the Chicago, Kansas & Nebraska Railway Company, dated May 1, 1890, (a copy of which is herewith submitted,) granting to the two last-named companies trackage rights over this company’s lines from Council Bluffs to Omaha, including the Omaha bridge, and the lines of this company’s Omaha and Republican Yalley branch, from Lincoln to Beatrice, Nebraska, and providing, further, for the use by this company of the Chicago, Kansas and Nebraska Railway Company’s lines between McPherson and South Hutchinson, Kansas, and the line from South Omaha to Lincoln, Nebraska, on the terms therein provided for, be and is hereby approved, and the action of the executive committee in authorizing the execution thereof is hereby ratified, approved, and confirmed. ” .</p> <p>The president of the Pacific Company signed and acknowledged the contracts on behalf of that company, and the secretary attested them and affixed the corporate seal thereto. The contracts so executed, with copies of the resolution of the meeting of the stockholders approving and ratifying them, were immediately delivered to the Hock Island Company and the St. Paul Company, and the Pacific Company immediately entered upon the enjoyment of the portion of the contract beneficial to itself. It is conceded that the board of directors and the body of the stockholders of each corporation that is a party to those contracts, the Pacific Company alone excepted, took proper action to authorize or ratify the execution of the contracts of their respective corporations, and that the formal execution of the contracts by all the parties to them was sufficient. These contracts are long, and only those stipulations that are material to the determination of the questions presented here will be stated. The contract with the Rock Island Company provides that “the Pacific Company hereby lets the Rock Island Company into the full, equal, and joint possession and use of its main and passing tracks now located and established, or which may be hereafter located and established, between the terminus of such tracks in the city of Council Bluffs, in the state of Iowa, and a line drawn at a right angle across said tracks within one and one half miles southerly from the present passenger station of South Omaha, in the state of Nebraska, including the bridge on which said tracks extend across the Missouri river, between said cities of Council Bluffs and Omaha; connections with Union Depot tracks in Omaha, the side or spur track leading from its main tracks to the lower grade of the Pacific Company’s sidings and spur tracks in Omaha, and such extension thereof as may be hereafter made; side tracks in Omaha on which to receive and deliver to the Rock Island Company freight that may be handled through the warehouses or switched by the Pacific Company; the connections with the Union Stock Yards at South Omaha, and conveniently located grounds in South Omaha, on which the Rock Island Company may construct, maintain, and exclusively use a track or tracks three thousand (3,000) feet in length for the storage of cars and other purposes, for the term of nine hundred and ninety-nine (999) years, commencing on the first day of May in the current year; for which possession and use the Rock Island Company covenants to pay to the order ol’ the said Pacific Company monthly, during the continuance of said term, the sum of throe thousand seven hundred and fifty dollars;” and a certain proportion of the cost of maintaining some of the tracks to be so used; and that tiro Pacific Company lets the Rook Island Company into the full, joint, and equal possession and use of its tracks, stations, and appurtenances along the lino of 7-ailway of the Republican Valley Company from a point near the northern boundary of the city of Lincoln to the point where its tracks connect with those of the Kansas Company at Beatrice, Neb., for the same length of time, for which the Rock Island Company agrees to pay the Pacific Company a certain rental computed on a percentage of the value of the main track, and a proportion of the cost of maintenance; that the Rock Island Company lets the Pacific Company into the full, joint, and equal possession and use of its tracks and stations along the lines of the Kansas Company from McPherson to Hutchinson, for the same length of time for a rental to be computed in the same way; that the Rock Island Company lets, leases, and demises to the Pacific Company for a like term, commencing October 1, 1890, the right to move and operate over the tracks of the railway it proposes to construct between the cities of South Omaha and Lincoln, in the state of Nebraska, its passenger and freight trains, engines, and cars of all classes, for a rental based upon the mileage of the trains; that each of the parties to the contract shall take such steps as will be necessary to continue all the stipulations of the contract in force; that each contract of lease shall attach to that portion of the railway leased during the corporate existence of the owner thereof, and all extensions of such existences by renewal or otherwise; and that the contract shall bind the parties thereto, their successors, grantees, and assigns. That “schedules of rules and regulations for the movement of engines and trains over the several railways hereby let and demised shall be made for each railway by the duly-authorized officers of the lessor and lessee company by which said railways shall at the time be operated. Such schedules shall, as nearly as may be practicable, accord equality of right, privilege, and advantage to trams of the same class operated by the lessor and lessee, and to trains of a superior class operated by either a preference over trains of an inferior class operated by the other. All rules and regulations shall be reasonable and just to both lessor and lessee, and shall secure to neither any preference or discrimination against the other. They shall be executed and all trains moved under the immediate direction of the superintendent or other officer of the lessor company. If the parties cannot agree upon the adoption of any schedule,'rule, or regulation, or as to the modification of any one existing, either party may demand a'decision of such controversy by referees, as hereinafter provided. The referees are herebj7invested with power to prescribe schedules, rules, and regulations, and to modify existing ones; and, in case of willful disregard by either partj^ of the rights of the other, to award damages to the party injured for injuries sustained because of such willful act;” and that the referees shalla be appointed when needed by the selection of one by. each party, and the appointment of a third by the two so chosen, with further provision for their action in case of disagreement, not material here.</p> <p>This agreement upon the construction of its proposed line from South Omaha to Lincoln gave the Rock Island Company access to Omaha and South Omaha, and a shorter continuous line from Chicago to Denver, b} way of Council Bluffs, Lincoln, and Beatrice, than it had-by its more southern route; while by the use of the proposed railroad from South Omaha to Lincoln it gave the Pacific Company a line from Omaha to Lincoln and Beatrice about 40 miles shorter than its former route by way of Valley Station, and by its use of the railway from MePherson to Hutchinson it filled the gap in the Pacific Company's line there, gave it a continuous line from Omaha, by vray of Salina, to the southern boundary of Kansas, and a rental of 845,000 a year.</p> <p>The contract with the St. Paul Company Jets it into the joint and ■equal use of the bridge and tracks of the Pacific Company between Council Bluffs and South Omaha, for the same time and on the same terms named in the contract- with the Bock Island Company. The main tracks of the Pacific! Company covered by this contract were two, extending ¡i distance of about seven miles from Council Bluffs across the bridge and through the city of Omaha to South Omaha.</p> <p>Under the contract with the Bock Island Company the Pacific Company immediately entered upon and continued to use the tracks of the Pock Island Company between McPherson and Hutchinson until some time in January, 1891, and the Rock island Company before December 1, 1890, constructed its railroad from South Omaha to Lincoln and such depots and buildings at those cities as were necessary and useful only in connection with the use of the Pacific Company’s railroads at South Omaha and Lincoln in the way provided in this contract; and the St. Paul Company under its contract entered about June !, 1890, upon and continued to use the bridge and tracks between Council Bluffs and South Omaha, until some time in January, 1891. Early in January, 1891, the Pacific Company forcibly prevented the uso by the Rock Island Company and St. Paul Company'of its tracks at Omaha, which they were entitled to use under the contract, and absolutely refused to perform the contract. Thereupon those suits were commenced. These contracts are not inequitable or unconscioiuibb1. The president of the Pacific Company instructed his agents who negotiated them to ask but 850,000 rental per annum for the privileges granted by each of these contracts, and further instructed them not to fail to make the contracts if they could get a rental of 815,000 per annum. This they did get. The complete performance of these contracts does not, and will not, at least for many years, if ever, prevent the Pacific Company from dip-charging every duty to the government and the public imposed by its charter or demanded by public policy; its facilities are ample to transport all the freight and passengers il can obtain, and to perform these contracts to the letter, without delay or serious inconvenience to itself or the public.</p> <p>The charter of the Rock Island Company will expire in the year 1930, if not renewed; but reserves to the company tiie right to renew its charter from time to time, “as may be provided by the laws of the states of Illinois and Iowa.”</p> <p>The defenses to those suits and objections to these decrees therein now urged are — First, that these contracts are ultra vires of the Pacific Company; second, that the Pacific Company is not bound by them, because they were not authorized by formal action of its board of directors; third, that the contracts are ultra, vires of the Rock Island Company and of the St. Paul Company; fourth, that the contract with the Bock Island Company is void, because its charter expires in 1930, 'and it could not contract beyond the stated period of its own existence; fifth, that the contract with the Rock Island Company is void as to the Republican Valley Company, because it does not provide for the payment to that company of any consideration for the use of its railroad; sixth, that specific performance of these contracts cannot be decreed in equity, because the acts to be performed under them are so numerous and complicated, and to be performed through such a long term of years, that it is impracticable for a court of equity to supervise and enforce their provisions; seventh, that the contracts are inequitable and were improvidently made, and no court of equity ought to enforce them.</p> <p>The opinion of Mr. Justice Brewer upon the hearing below is reported in'47 Fed. Rep. 15. All the objections urged against the contract and decree involved in the suit by the St. Paul Company are urged against and equally affect the contract and decree in the suit brought by the Rock Island Company, and the latter only will be considered in the opinion.</p>

<p>Í. Reference—Construction of Order—Appeal.</p> <p>On a petition by contractors against the receivers of a railway to secure payment for the erection of a building, the court referred the cause to a master to ascertain the amount “justly and equitably due as the true value of the work done and materials furnished. ” The master found the work was done under a contract between the receivers and 'the builders, refused to hear evidence as to value, and reported the contract price as the amount due. The court, after a hearing on exceptions, confirmed the report, and entered judgment thereon. Meld, that while the order of reference was open to the construction that the actual value of the work and material was to be ascertained, yet as the trial court had held that it was not intended to bear so broad a construction, and had confirmed the report, an appellate court would not be justified in holding the contrary, where no injustice had resulted.</p> <p>9. Contract—Evidence to Establish—Master’s Findings.</p> <p>While certain railroad buildings were in course of construction, a foreclosure suit was instituted against the railroad company, and two receivers were appointed. Shortly afterwards, by a joint letter, the receivers notified the builders to stop work, stating that they would later furnish designs and directions for completing the work, “and you will name a gross sum for the performance of the same, which will be submitted to the court for approval.” New plans and specifications'were then prepared and approved by the court, and an order was entered directing that the buildings be completed in accordance therewith. The receiver in active charge of that portion of the road notified the builders of this order, and soon afterwards they answered by letter submitting 'a bid for which they would complete the work on the new plans. The active receiver testified that the receivers accepted the bid, and that a formal contract was prepared, and was signed by the builders, but was never signed by the receivers. Relying on this contract the builders completed the work. The other receiver testified that he knew nothing of the bid, but . that he afterwards saw the work going on, and assumed it was with his colleague’s concurrence, and without any estimates or contract. Meld, that these facts were sufficient to justify the master in finding that the work was completed under a binding contract with the receivers.</p> <p>8. Receivers—Repudiation of Pending Contracts.</p> <p>A builder who is engaged, under contract, in erecting a building for a railroad company at the time that receivers are appointed for the road, is entitled to remuneration on the basis of the contract price for the work done after the receivers are appointed, and before they make a new arrangement with him or notify him to stop work.</p>

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

<p>Principa!, and Agknt—Exoiikding Authority—Ratification.</p> <p>Plaintiff authorized defendant, to purchase for him a halt interest in a mining claim for 81.500, and sent §500 to be used as a first payment. Defendant purchased the whole mine'for 84,000, and took a deed in his own name. He then wrote plaintiff, explaining what he had done, and saying he would make a deed for one half on receipt of §1,500 more. .Plaintiff answered, accepting the offior, and asked for a, more specific description of the property, but sent- no more money. Defendant testified that he never received this letter, but that he wrote another letter, stating that the money must be paid within a certain time. Plaintiff said he never received this letter. He waited 10 months, and then sent §1,000 instead of 61,500, asking defendant to state the balance due. Held, that defendant, as plaintiff's agent, had exceeded Ms power in the purchase, and his action was not binding without ratification; that the letter of acceptance, without sending money, was not a sufficient ratification, oven if received; and that the delay of 10 months was unreasonable, and defendant had a right to repudiate the agency, and hold the mine as his own.</p>

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.</p> <p>Statement by Caldwell, Circuit Judge:</p> <p>This suit was brought by Augustus K. Barnum on behalf of himself and numerous other persons who joined with him, in the state court, under section 4,, c. 75, Gen. St. Minn. 1878, p. 814, to remove a cloud from, and quiet the title to, the lands described in the bill. The defendants removed the suit to the circuit court upon the ground of diverse citizenship. An answer was filed and much testimony taken, and on .the final hearing the court below rendered a decree in accordance with the prayer of the bill, and the defendants appealed.</p> <p>It would serve no useful purpose to set out at length the testimony in the case. It' is sufficient, to say that, upon a careful consideration of the pleadings, stipulations, and evidence, we find the following facts:</p> <p>That on the 13th day of February, 1850, Peter Poncin located a military land warrant on the N. } of the S. E. I-, and the S. I- of the N. E. }, of section 36, township 29 N., of range 23 W., in the district of land subject to entry at Stillwater, Minnesota territory, containing 160 acres, and received from the proper officers of the United States land office a certificate of such location and entry. The premises in controversy are a part of that tract, to wit, theS. \V. i of the N. E. i of said section. On the 28th day of March, 1850, said Peter Poncin, for the consideration of $150, conveyed the S. 1- of the N. B. 1, except 20 acres off the east end thereof, and the N. } of the S. E. i of section 36, township 29 N., of range 23 W., to Antoine Pepin by deed containing the usual covenants of warranty, which deed was duly recorded on the 2d day of April, 1850. On the 29 th day of March, 1850, said Antoine Pepin, for the consideration of $100, conveyed the N. W. 1 of the S. E. i, the S. W. i of the N. E. i, and the W. & of the S. E. i of the N. E. i, in the section, township, and range aforesaid, to Alpheus R. French, by deed containing the usual covenants of warranty, which deed was duly recorded on the 15th day of January, 1851. On the 19th day of April, 1850, the said Alpheus R. French executed and delivered to Louis- C. Elfelt and Charles D. Elfelt a bond for a deed, whereby he agreed to convey said laud last described to said Elfelts for the consideration of a stock of saddlery and harness, valued at $500, which bond was recorded on the day of its date. The said Louis C. and Charles L>. Elfelt paid for said lands in a mode satisfactory to said French, and thereupon the said French, on the 19th day of March, 1851, executed, acknowledged, and delivered to said Elfelts a quitclaim deed for said lands, which deed was duly filed for record March 20, 1851: but, by a clerical mistake of the register of deeds, said deed was not accurately and truly recorded at that time. The error in recording said deed consisted in this : Among the. lands conveyed by said deed, and properly described therein, was the 8. W. I of the N. K. I of the section, township, and range aforesaid, being the land here in controversy, but in recording said deed this 40-acre tract was omitted, so that the record thereof did not show, as it should have done, that this tract was a part of the land conveyed by said deed. Subsequently the mistake in recording this deed was discovered, and on the 4th day of February, 1857, said deed was again filed for record, and duly recorded. The complainants, through sundry mesne conveyances, are the1 grantees of the said Charles 1). and Louis C. Elfelt of the lots and parcels of land claimed by them respectively, and which are situated upon, and in the aggregate comprise all of, the said 8. W. 1 of the X. E. i of said section 36. Said 40-acre tract was laid out into lots, blocks, streets, and avenues, and the plat thereof duly recorded years ago, and it now constitutes a part of the city of St. Paul, and is occupied by a large population, who purchased and paid full value for their lots, and have in good faith made lasting and valuable improvements, and paid the taxes thereon. The aggregate value of their several holdings is from 8600,000 to $1,000,000.</p> <p>Before Poncin’s location and entry, the section in which the land was situated was reserved by act of congress for school purposes, and Poncin’s entry was therefore void, and was for that reason sot aside by the commissioner of the general land office on the 10th day of October, 1852. On the 27th of July, 1854, congress passed the following act:</p> <p>“An act authorizing a patent to he issued to Peter Poncin for certain lands therein described. Be it enacted by the senate and the house of representatives of the United States of America, in congress assembled, that the entry by Peter Poncin of the north half of the southeast quarter, and the south half of the northeast quarter, of section 36, in township number twenty-nine, of range twenty-three, in the Stillwater land district, Minnesota, canceled by the commissioner of the general land office, be, and the same is hereby, allowed and reinstated as of the date of said entry, so that the title to said lands may inure to the benefit of his grantees, as far as he may have conveyed the same: Provideo, that the money paid for said land shall not have been withdrawn, or if withdrawn shall be again paid at said land offices, and that thereupon a patent shall issue in the name of said Peter Poncin for said land. See. 2. And bo it further enacted that the superintendent of public schools in said territory of Minnesota be, and is hereby, authorized to select other lands in lieu of said section thirty-six, as far as the same has been granted or sold. Approved July 27, 1854.”</p> <p>In compliance with the proviso of this act, Poncin paid into the United States land office the price of said land, and on the 24th day of March, 1855, a patent was duly issued to him for the same under and in pursuance of said act of congress. After the passage of this act of congress, French, conceiving that it gave him some right to the land, notwithstanding his previous conveyance of the same to the Elfelts, on the 14th day of January, 1856, conveyed the land to Pierce P. Furber, by deed of bargain and sale, for the expressed consideration of $100. French was not acquainted with Furber, and did not see or have anything to do with him, personally, in this transaction. One Gibbs acted as agent for Furber in procuring this conveyance from French, and knew before and at the time he procured the conveyance to be made that French had previously conveyed the land to the Elfelts. The agreement between Gibbs, acting for Furber, and French was that French and Furber would divide “the spoils of .this ground when they did get a title to it.” Subsequently Gibbs, acting for Furber, agreed to pay French $100, but that sum was not paid, and Furber never paid anything for the land. At the date of this conveyance the land embraced in it was worth $30,000. On the 28th day of June, 1856, Furber, for the expressed consideration of $150, conveyed the land by deed of quitclaim to John P. Dunn. At the date of this conveyance, the land embraced in it was worth $50,000. It will be seen that French is the common source of title of both parties to the suit, the complainants claiming under and through the deed of French to the Elfelts made in 1851, and the defendants, who are the heirs of Dunn, claiming under and through the deed from French to Furber made in 1856, and the deed from Furber to their ancestor made the same year.</p>

<p>1. Townships—Railroad Aid Bonds—Authority to Issue—Construction op Statute.</p> <p>Laws Kan. 1876, c. 107, authorizing municipal townships to subscribe for railroad stock, requires (section 1) a petition by two fifths of the taxpayers, asking the county commissioners to submit to the township electors a proposition of subscription; such petition to designate (section 3) the amount of the stock, “the terms of payment, ” and other conditions of the subscription; the proposition to be accepted (section 5) by two thirds of those voting at the election held for that purpose, and the bonds to have coupons attached “as may be required by the terms of said proposition;” the county commissioners to levy a tax (section 6) “sufficient to pay the interest on such bonds as the same shall become due, and to create a sinking fund sufficient to pay such bonds at maturity; ” the principal of the bonds to be made payable (section 13) “at any time that may be fixed in the proposition voted on, ” not exceeding 30 years. Section 14 declares, among other things, that to the said bonds shall be attached coupons for annual installments of “the principal and interest accruing from time to time by the terms of the bonds. ” Held that, in view of the prior provisions, the language quoted from the last section did not require that all bonds issued under the act should provide for annual payments on the principal, but merely that, if the proposition voted on provided for such annual payments, coupons therefor should be attached; and the township had authority, by proper proposition, vote, etc., to issue bonds, the whole principal of which should not mature until 30 years.</p> <p>3. Same—Estoppel—Recitals.</p> <p>In an action by an innocent purchaser against a township on railway aid bonds, which on their face refer to the.act authorizing their issuance and specifically recite the taking of each step required thereby, the township is estopped to allege invalidity of the bonds on any ground except that they were issued in violation of some constitutional or statutory requirement.</p>

<p>At Law.</p> <p>This ás an action of contract upon a bond. The facts, as agreed upon, were; ini substance,'as follows: -A suit in equity had been brought by the plaintiffs in' this suit against Joseph J. Burns and Robert Tarr, one of the defendants, to wind up a partnership. A receiver had been appointed, and lie had paid into the registry of the court a large sum of money, to await the disposal of the suit. On May 6, 1886, it was decreed that the amount in said registry be paid over to the plaintiffs, and it was further decreed that the said defendants pay to said plaintiffs §1,079.14, together with interest thereon from the date of said writ, and cost of this-suit, amounting in all to §3,105.28. An appeal to the supreme court of the United States was taken by the said defendants, and a mpermlean bond was filed, in which Joseph .!. .Bums and Robert Tarr are principals and William C. Dolliver and John tí. Dolliver are sureties, in the penal sum of §8,000, conditioned to anstver all damages and costs if they fail to nmke their plea good. Joseph J. Burns died during the progress of the suit. Bohert Tarr and the said sureties are the defendants in this suit upon the bond. The supreme court affirmed the decree of the circuit court in said case, and thereupon the mandate in said supreme court issued, commanding said circuit court that such execution and proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said appeal notwithstanding. A decree was accordingly entered June 28, 1890, by tlie circuit court, affirming its previous decree, with costs and expenses, as provided in said mandate. Execution upon and in accordance with said decree of -June 28, 1890, was issued July 10, 1890, which execution is in no part satisfied. Notice was given the sureties on the aforesaid bond, and received by them July 2, 1890, of the decree of the said supreme court, and that the plaintiffs looked to them for payment of the amount of the decrees, including interest and costs from the date of the appeal. But the said sureties paid no attention to the notice.</p> <p>On July 10, 1890, the aforesaid sureties were duly summoned as alleged trustees of the plaintiffs in this case in a writ "brought against the plaintiffs in this case, returnable before the superior court in the county of Essex and commonwealth of Massachusetts, but the case was later removed to this court, where it is now pending, on the ground that these plaintiffs—the defendants in said action—were residents of another state. The aforesaid sureties did not appear and answer as alleged trustees, and were defaulted in the state court. The aforesaid sureties, William C. and John S. Dolliver, were and are copartners at Gloucester. Since July 11, 1890, they had had a balance in the bank to be drawn upon, varying from §2,894.71 to over §4,000, and had also had in their office sale about §500 constantly, and they had always been ready and able to pay the amount legally clue from them on said bond. The aforesaid money was kept for the uses of their business, and especially for the payment of the amount due on said bond; and they had received no interest on the money in said bank and safe. However, as said alleged trustees, they had sot apart no money to await the decision of the court in said trustee process, or to bo applied lo the payment of said bond, separate from the money used in their business. It was agreed that the condition of the bond bad been broken, and that judginent might be entered in favor of the plaintiffs against the defendants for the penal sum therein named.</p> <p>The question here raised for the court is, for what shall the execution issue? Shall the execution issue for an amount including (1) the amount of the decree appealed from of May 6, 1886; (2) interest on the amount left in the registry of the court from the date of the decree appealed from; (3) interest on the further amount of the final decree of June 28, 1890, after the trustee process was served on the aforesaid sureties, July 10, 1890?</p>

<p>1. Limitation op Actions—Colon op Title—What Constitutes.</p> <p>A landowner gave a trust deed to secure her promissory note. In an action by a third person against the payee, tho note was levied on and sold, tho third person becoming tho purchaser. He then demanded payment of tho maker, which was refused, and ho notified her that ho would have the land sold undor the trust deed, to which she assented. Before such sale, however, she made a direct conveyance to the payee for an expressed consideration equal to the face of tho note. The land was afterwards sold by the trustee, and was purchased by the third person, who received a deed conveying on its face the full legal title, field, that irrespective of the question whether the sales of the noto and of the land, respectively, wore valid in Saw, this deed -was sufficient to give color of title, and, being accompanied with payment of taxes, in good faith, for more than five years, was sufficient to confer absolute, title, under the Colorado statute of limitations relating to unoccupied lands. Gen. St. 1888, § 2187.</p> <p>2- Same—Goon Faith.</p> <p>The fact that the third person took the advice of counsel, and was advised that the note was subject to levy, and that, having purchased tho same, he evidently believed that he had a right to cause the land to be sold for its satisfaction, was sufficient to show that in paying the taxes he relied on color of title obtained in good faith.</p>

<p>1. Evidence—jVI.VriOUTAT.ITT—I’KOOP OP VAT/t’K.</p> <p>In an action by a newspaper company against an association organized to procure and distribute news, tor the alleged.’ wrongful cancellation oi its membership therein, evidence as to the number oi proposed purchasers of the membership and the amounts offered was admissible, as showing tin; value thereof.</p> <p>2. Samu—Pliiadings and Evidence.</p> <p>The damages sought being limited by the pleadings to the value of the canceled membership, the tact that the paper suspended publication shortly after the can-collation was immaterial, and it was error, therefore, to admit evidence ot want of business ability in the manager and of the causes of the suspension.</p>

Action by John Glenn, trustee of the National Express & Transportation Company, against John-E. Liggett, to recover an assessment on the stock' of said company. Judgment for plaintiff, allowing interest from the commencement of the suit. 47 Fed. Rep. 472. Both parties bring error, plaintiff complaining only of the allowance of interest as insufficient.

Action by John Glenn, trustee of the National Express & Transportation Company, against John G. Priest, to recover an assessment on the stock of said company. Judgment for plaintiff, allowing interest from the commencement of the suit. 47 Fed. Rep. 472. , Subsequently a motion for a new trial was denied. 48 Fed. Rep. 19. Both parties bring error.

<p>L Appeal—Harmless Error—Evidence.</p> <p>In an action to recover an assessment on the stock oí a corporation, tried to the court without a jury, a privileged communication was erroneously admitted to prove that the defendant was a stockholder. The court held that he was a stockholder, but the findings of fact showed that this decision was based upon other competent evidence. Held, that the admission of the privileged communication was harmless error. Liggett v. Glenn, 51 Fed. Rep. 381, distinguished.</p> <p>3. Corporations—Assessment on Stock—Limitations.</p> <p>Each call for unpaid subscriptions to the stock of a corporation gives rise to a separate cause of action from the time of default thereunder, and a refusal to pay a draft for the first call cannot be considered as a denial of liability under all future calls, so as to set the statute of limitations running as against them.</p>

<p>L Corporations—Action por Assessments—Res Judicata.</p> <p>In an action to recover an assessment on the stock of a corporation, a decision that the cause of action was barred by limitation is no bar to a subsequent action between tbe same parties to recover a subsequent assessment.</p> <p>3 Same—Limitations—Running of Statute.</p> <p>The Missouri statute of limitations, requiring the presentation of claims against tbe estates of deceased persons within* wo years from the publication of notice of the appointment of an executor or administra,tor, does not begin to run in favor of the estate in respect to unpaid subscriptions to the stock of a corporation until a cause of action is created by a call for such subscription.</p>

<p>1. Corporations—Stock— Actions tor Assessments—Evidence ok Subscription— Stock Ledger.</p> <p>The name Tanssing, Livingston & Co. is not idem somi.iis with Taussig, Livingston & Go., and the entry of the former on the stock books oí a corporation, in the handwriting oí its Treasurer, is not competent evidence that the latter firm, or any oí its members, are stockholders or subscribers to the stock of the corporation, when unsupported by any evidence tending to identify the name with the firm, especially after the lapse of 35 years and the death of the members of the firm.</p> <p>2. Same.</p> <p>A draft drawn by the treasurer of the corporation on the firm of Taussig, Livingston & Go. about, the time of flic alleged subscription, but which did not correspond in date with any requisition entered in the subscription account, could have no tendency to identify the firm as having made the subscription, when there was no evidence that, the draft had ever been called to its attention.</p> <p>y. Same—Best and Secondary Evidence.</p> <p>In an action against the executors oí a deceased member of a firm to recover an assessment on the stock of a corporation, the complaint alleged that the firm subscribed and agreed to pay for the stock, and thereby became stockholders. Defendants specifically denied each of these allegations. Held that, as the issue was as to the fact of subscription, the best evidence was the written subscription itself, and, antil it was produced or accounted for, the stock ledger oí the corporation was inadmissible.</p> <p>4. Causes op Action— Recovery-.</p> <p>The action being brought solely upon the written contract of subscription, a recovery must be had upon that instrument or not at all; for suit cannot be brought on one cause of action, and a recovery had upon another.</p>

Action by Louis Ullman and others against Joel B. Erhardt, as collector of the port of New York, to recover duties paid under protest. Verdict and judgment for plaintiffs. Defendant brings error.

<p>At Law. Information filed August 21, 1891, as follows:</p> <p>To the Honorable, the Judge of the Distriet Court of the United States for the Distriet of Kentucky, sitting at Louisville, Ky.: Be it remembered that on the 21st day of August, in the year of our Lord one thousand eight hundred and ninety-one, comes George W. Jolly, the attorney for the United States in the district of Kentucky, to prosecute a civil action in which the United States is concerned, and informs the court that the United States of America hereby brings this suit against certain property and merchandise, described as follows, to wit: Pifteen barrels of distilled spirits, marked and numbered as follows: 12,010, 12,011, 12,012, 12,013, 12,015, 12,016, 12,018, 12,019, 12,020, 12,021, 12,022, 12,023, 12,027, 12,031, and 12,032, and containing five hundred and two taxable gallons of distilled spirits, being within the district of Kentucky, in the custody of 1). It. Collier, of Louisville, Kv., as an officer of the customs of the United .States, to wit, as surveyor of the port of Louisville, in the district of Kentucky, which said goods and meichandise, to wit, said fifteen barrels of distilled spirits, the said 1). K. Collier, on the fifth and sixtli days of J une, in the year of our Lord one thousand eight hundred and ninety-one, within said district of Kentucky, being-then and there such surveyor as aforesaid, did seize on land and secure as liable to seizure and forfeiture to the United States by virtue of certain acts of congress of the United States respecting the revenue; and that said surveyor, hitherto having retained the said goods and merchandise, to wit, said fifteen barrels of distilled spirits, in his custody within the district of Kentucky, as forfeited as aforesaid, has caused this suit to be commenced upon the said seizure, and to be prosecuted for tiie said forfeiture. And the said attorney for the United States in that behalf doth articulately propound the matters relied on as grounds and causes of the said forfeiture, as follows, to wit:</p> <p>Por that on or about the 22d day of September, in the year of our Lord one thousand eight hundred and ninety, the said goods and merchandise, to wit, said fifteen barrels of distilled spirits, were imported and brought into the United States, to wit, into the port of Mew York, at the city of Mew York, in the United States of America, from Hamilton, Bermuda, a foreign port or place, in a ship or vessel called the Orinoco, and transported from the said port of New York thence to the port oi Louisville, in the distriet and state of Kentucky, by railroad, and were so imported subject to the payment of specific duties to the United States.</p> <p>Por that afterwards, to wit, on the 22d day of September, in the year of our Lord one thousand eight hundred and ninety, at the office of the collector of the said district of the city of Mew York, in the city of Mew York, an entry in writing of the said goods and merchandise, to wit, the said fifteen barrels of distilled spirits, purporting to be duly signed, was made with Joel B. Erhardt, who was then and there the collector of said district aforesaid, by M. Hofheimer & Go., as the importer thereof, for immediate transportation in bond to the port of Louisville, in the district of Kentucky, and said goods and merchandise, to wit, said fifteen barrels of distilled spirits, were allowed to bo shipped immediately after said entry, and were delivered to and transported by a common carrier, namely, the Baltimore & Ohio Bailroad Company, to the port of Louisville, in the state and distriet of Kentucky, and afterwards, to wit, on the 26th day of May, in the year of our Lord one thou* sand eight hundred and ninety-one, at the office of the said surveyor of said port, in the city of Louisville, in the state and district of Kentucky, an entry in writing of the said goods and merchandise, to wit, said fifteen barrels of distilled spirits, purporting to be duly signed, was made with the said I), R. Collier, who was then and there the surveyor of said district as aforesaid, by W. G. Coldewey, produced to the said surveyor, which entry and invoice were thereupon, then and there, verified, and said invoice signed in manner and form as required by law.</p> <p>• For that the said surveyor thereupon found, and it is hereby charged, that the said goods and merchandise, to wit, said fifteen barrels of distilled spirits, of which an entry was made and an invoice produced as aforesaid by the said owner, consignee, or agent thereof, and which were subject to the payment of specific duties as aforesaid, were then and there knowingly entered by the said owner, consignee, or agent thereof by means of the said invoice, which was then and there a false invoice, and by means then and there of a false certificate of a consul, vice consul, or commercial agent, and by means of the said invoice, which then and there did not contain a true statement of all the particulars therein required by the statutes of the United States, and by means then and there of other false and fraudulent documents -and papers, and by means of other false and fraudulent practices and appliances, contrary to the statute of the United States in such case made and provided. Whereby and by force of the statute of the United States in such case provided, to wit, the 2864th section of the Revised Statutes of the United States, the said goods and merchandise became and are forfeited to the United States.</p> <p>For that the said surveyor thereupon found, and it is hereby charged, that the said goods and merchandise, to wit, the said fifteen barrels of distilled spirits, of which an entry was made and an invoice produced as aforesaid by the said owner, consignee, or agent thereof, were then and there subject to a specific duty, and.were then and there knowingly entered or attempted to be entered as aforesaid by the said owner, consignee, or agent thereof, by means of said entry, which was then and there a false entry, in this: that said goods and merchandise, to wit, said fifteen barrels of distilled spirits, were entered as American whisky, reimported in the same condition as when exported.</p> <p>That on or about the-26th day of May, in the year of our Lord one thousand eight hundred and ninety-one, the said W. G. Coldewey, the owner, importer, consignee, or agent of the said merchandise, or some other person or persons now unknown to said surveyor and said attorney, made or attempted to make an entry as aforesaid of said merchandise, which was then and there subject to specific duties, and had been imported into the United States within said port of Louisville, in the city of Louisville, in the district and state of Kentucky, from Hamilton, Bermuda, a foreign port or place, by way of the port of Hew York, at the city of Hew York, in'the ship Orinoco, from Bermuda to Hew York, and from Hew York to Louisville by railroad transportation, by means of a fraudulent and false invoice, affidavit, letter, and paper, and by means of certain false statements, written and verbal, and by means of certain false and fraudulent practices and appliances, by means whereof the United States was deprived of the lawful duties, or a portion thereof, accruing upon the said goods and merchandise, or a portion thereof, embraced and referred to in said invoice, affidavit, letter, paper, or statement.</p> <p>Whereby, and by force of the statute of the United States in such case made and provided, to wit, the ninth section of the said act of congress, approved June 10, 1890, the merchandise herein proceeded against, being the whole of the' merchandise contained in the barrels and packages containing the particular merchandise, to wit, distilled spirits, to which such fraudulent and false paper and statement related, became and is forfeited to the United States.</p> <p>For that on or about the ‘20th day of -May, in the year of our Lord one thousand eight hundred and ninety-one, the said W. G. Ooldewey, the owner, importer, consignee, or agent for the said merchandise, to wit, said fifteen barrels of distilled spirits, or some other person or persons now unknown to said surveyor and to said attorney, made or attempted to make an entry as aforesaid of said merchandise, which was then and there subject to specific duties, and had been imported into the United States at the port of Louisville, in the city of Louisville, in the district of Kentucky, from Hamilton, Bermuda, a foreign port or place, by way of the port of Hew York, in the ship or vessel Orinoco from Bermuda to Hew York, and from Hew York to Louisville by railroad transportation, and that the said owner, importer, consignee, or agent, and other person or persons unknown, was and were then and there guilty of certain willful acts and omissions, by means whereof the United States was deprived of its lawful duties, or a portion thereof, accruing upon said goods and merchandise, or a portion thereof, affected by such acts or omissions.</p> <p>Whereby, and by force of the statute of the United States in such case made and provided, to wit, the ninth section of the said act of congress, approved .1 une 10, 1890, the merchandise herein proceeded against, to wit, distilled spirits, being the whole of tlie meicbandise contained in the barrels' and packages containing the, particular distilled spirits to which said alleged frauds and said acts and omissions related, became and is hereby forfeited to the United ¡States. And thereupon, and by reason of, all and singular, the premises, the said attorney for the United States prays the court that due process issue to enforce the forfeiture of the said goods and merchandise, aud to give notice to all persons concerned in interest to appear and show cause, on the return day of process, why tiie said forfeiture should not be decreed.</p> <p>Geo. W. Jolly, United States Attorney, District of Kentucky.</p> <p>On October 12,1891, the claimant filed exceptions to the information, as follows:</p> <p>VIrut. For that the invoice mentioned in the said information is not so specifically described, nor its contents so stated, as to enable said claimants to know what invoice is meant, nor wherein it is claimed to be false.</p> <p>Smond. For that the said information does not state who the consul, vice consul, or commercial agent was who gave the false certificate alluded to in said information.</p> <p>Third. For that the said information does not show wherein such certificate is claimed to be false.</p> <p>Fourth. For that the said information does not show what were the other false and fraudulent practices and appliances charged against the owner, consignee, or agent of said distilled spirits, by means of which it is claimed that they became forfeited to the United States.</p> <p>Fifth. For that the said information does not show what was the false invoice, affidavit, letter, or paper, or what were the certain false statements, ■written or verbal, or what were the certain false and fraudulent practices and appliances, by means whereof the United States is alleged to have been defrauded of its lawful duties upon said spirits, or a portion thereof.</p> <p>Sixth. For that the said information does not show what were the certain ■willful acts and omissions by means whereof the United States was deprived of its lawful duties, or a portion thereof, accruing upon said spirits,—in ali ■which particulars the saicl information is imperfect and insufficient, and'therefore the said claimant is not bound to answer the same further, and prays that the said information may be dismissed.</p> <p>December 29, 1891, exceptions Nos. 1 and 2 overruled, and Nos. 3, 4, 5, and 6 sustained. On February 9,1892, the United States attorney moved to set aside the order sustaining the exceptions, and on April 12, 1892, the motion was sustained as to exception No. 3, and overruled as to Nos. 4, 5, and 6.</p>

<p>X. Slander—Innuendo—Demurrer.</p> <p>A complaint for slander charged the use of the following words in the sense indicated : “I can only regard her proposition (meaning the plaintiff) for money for the letters as a blackmailing scheme, pure and simple, (meaning that plaintiff is guilty of the crime of concocting a blackmail or extortion scheme.) ” Meld that, as the words were susceptible of the construction placed on them by the innuendo, the court, in considering a demurrer to the complaint, must accept that as the true meaning, though they were also susceptible of a different meaning. Mess v. Sparks, 24 Pac. Rep. 979, 44 Kan. 465, distinguished.</p> <p>2. Same—Actionable Words. ,</p> <p>, It is not actionable to say'of another that he “is guilty of the crime of concocting a blackmail or extortion scheme, ” as the words charge merely a plan or purpose to extort money, which is not punishable unless an attempt is made to carry it out.</p> <p>8. Same.</p> <p>It is actionable per se to charge another with being a “blackmailer, ” for this is equivalent to saying that he is guilty of the crime of extortion.</p>

<p>On Habeas Corpus.</p>

<p>At Chambers.1 Application in behalf of H. Clay King for a writ of habeas corpus.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>In Equity. .Bill by Samuel E. Mosher against Jacob O. Joyce and ■others for infringement of a patent. The patent was sustained, infringement declared, and a reference for an accounting ordered. 31 Fed. Rep. 557. Subsequently the cause was heard on exceptions by defendants to the master’s report, which exceptions were sustained, and a decree entered for nominal damages. 45 Fed. Rep. 205. Complainant appeals.</p> <p>Statement by Jackson, Circuit Judge:</p> <p>In 1883 the appellant brought suit against the appellees for the infringement of letters patent Nos. 168,663 and 172,471, granted to him October 11, 1875, and January 18, 1876, respectively, for certain new and useful improvements in lifting jacks. After the issues were made up and the proofs taken the cause came on for hearing in 1887, when the circuit court sustained the patents, adjudged that respondents’jack, No. 29, embodied and infringed the patented improvements, and do-' creed “that the complainant recover of the defendants the profits which they have received or made, or which have accrued to them, from said infringement by the manufacture, use, or sale of the improvements described, and secured by said letters patent, at any and all times since the 18th day of January, 1876, and also the damages which the complainant has sustained thereby.” And, as it did not appear what said profits and damages were, it was further ordered and decreed that the cause be referred to a special master, “to take proof and report to the court an account of the profits which the defendants have received, or which have arisen or accrued to them, from the manufacture, use, or sale of said iiriprovements, or from said infringement, and to ascertain and report the damages which the complainant has sustained thereby since January 18, 1876, from the papers and evidence in the cause, and from any evidence which either party may produce before him of the same.” Upon the execution of this reference neither party introduced before the special master any evidence as to the profits made or realized by defendants from the manufacture, use, or sale of the patented improvement, nor as to the damages .which complainant had sustained by reason of the infringement. The master took proof as to the profits defendants had made from the manufacture and sale of the entire jacks embodying the patented improvements, and reported such profits upon the whole machines at the sum of $1,905.06. He found and reported that defendants had manufactured and sold 301 jacks embodying the patented inventions, for which they received the aggregate or gross sum of $3,956.86. From this he deducted the cost of manufacturing and materials, and found a net profit of $1,905.06, which he reported as due to complainant from defendants, “on account of damages irom infringement adjudged in this case.” The master’s findings and report were founded upon the theory that complainant was entitled to the entire profits made by defendants upon the whole machines, or the entire jacks manufactured and sold by them, and that the amount of such net profits was the measure of complainant’s damages for the infringement of the patented improvement. After his report was filed the defendants moved the court to refer the account back to the master, which motion was overruled and denied. Thereupon the defendants filed exceptions to the report. The main grounds of exception were that there was no evidence produced before the master or found in the cause that the patented improvement or device had any market value, or that defendants had derived any profit by the use thereof, or that complainant had sustained any damage from the infringement, and, further, that there was no evidence to show what value or profit on the jacks manufactured and sold by defendants was due to, or had accrued from, the use of the patented improvement, or that they had.realized or derived any profits therefrom, and that the master erred in awarding complainant the whole net profits upon the entire machines. The defendants, in the opening of the reference before the master, claimed that only such profits as resulted from the use of the patented improvements could be allowed the complainant; that the burden of showing what such profits were rested upon the complainant, inasmuch as defendants had the right to make and sell ja.cks, and all parts thereof, not covered by complainant’s patent, and that complainant’s profits or damages should be confined or limited to such as were shown to have resulted from the manufacture and sale of the infringing jacks, over and above other and similar jacks which they had the right to make and sell. The complainants claim and contention was that, the improvement covered by his invention and patents made, in effect, an entirely now machine,—an improved lifting jack,—so different in operation from lifting jacks previously in use, and so much more efficient, that the doctrine of the apportionment of proiits could not properly be applied, and that he should be allowed the entire profits on all jacks embodying his improvement.</p> <p>The court below held that complainant’s patents were for improvements only, and not for an entirely new machine or lifting jack; that it was the duly of complainant to give evidence separating or apportioning the defendants’ proiits and his damages between the patented feature and the nn paten ted features of the jacks made and sold, as held in Garretson v. Clark, 111 U. S. 120, 4 Sup. Ct. Rep. 291, and Black, v. Thorne, 111 U. S. 121, 4 Sup. Ct. Rep. 326; and that, complainant having failed to show’ either proiits or damages that were attributable to the use of the improvements infringed, he ivas entitled to only nominal damages. The respondents’ exceptions to the master’s report were accordingly sustained, and the complainant was decreed nominal damages and taxed with the costs of the reference. The complainant moved for a modification of the court’s rulings, and for a recommittal of the cause to the master to take additional testimony, which motions were denied.</p> <p>1'rom the decree of the court below' awarding him only nominal damages, assessed at the sum of six cents, tlie complainant lias appealed to this court, and has assigned various errors as grounds of reversal. These assignments need not be severally noticed or considered in detail. The principal ones relied on relate to the ruling of the lower court upon the character and scope of the invention and the rule of apportionment applied as to the profits. It is also claimed that the interlocutory decree of reference directed the muster to find and report the profits made by defendants on the entire jack, which infringed the patented improvement; that the court erred in decreeing nominal damages for want of testimony apportioning the same; and that the cause should have been referred back to the master to take proper testimony on which to make such apportionment.</p>

In Equity. Exception to a master’s report. Complainants brought suit for an injunction and recovery of damages and profits for infringement of the first claim of letters patent No. 227,926, dated May 25, 1880, and the first claim of letters patent No. 290,358,dated Decemberl8,1883, both granted to J. A. Robb for improvements in edgers.

<p>Salvage—Towage Sekvioh — Compensation.</p> <p>Ttie “whaloback” sicamor W., valued, with her cargo, at 8109,319, lost her rudder plates, and was drifting shoreward in a storm near Tillamook rock, about .'SO miles south of the mouth of the Columbia river. The steamer Zambesi, worth 8320,000, bound from Victoria, B. C., to Portland, Or., having been driven south of the Columbia, discovered the Wetmore flying signals of distress. With some difficulty a hawser was made fast, and the Wetmore was towed near the mouth of the Columbia, but, no pilot being available, the vessels were held off the bar until next morn - ing. The Zambesi then steamed for the, river, but when three and a half miles oil McKenzie’s head the hawser parted. It was recovered, and again made fast during a period of increasing danger. A pilot was procured, and the bar was crossed in safety. The Wetmore, being very heavy,'yawed from side to side, rendering it necessary to cross the bar very slowly, and, as the tide was flooding, the heaving seas traveled faster than the Zambesi, thus beating upon and sweeping over her, straining her decks, breaking in her house, and otherwise injuring and imperiling her. ÍLclti, that 830.000 should be allowed for salvage, and distributed, 87,000 to the Zambesi, 85,000 to her master, 85,000 to her crew, 83,000 to the pilot, and 81,000 to the mate.</p>

<p>Collision—Tugs—Mutual Fault.</p> <p>The tug H., having left a ship about the middle of Cooper river, off the wharf front of Charleston, S. C., was proceeding down stream, in a curve towards her berth, with her wheel hai’d aport. While on this course, and about a quarter of a mile from and heading towards the wharf front, the tug B. was also proceeding downward, and much nearer to the piers, bound for her berth; below that of the H. The B. blew one blast, which was answered by one from the H., and the B. then ported. Soon after the H. gave two blasts, not to indicate that she would direct her course to port, according to the rules of navigation, but to induce the B. to go under her stern. The B. answered with one blast, and each tug kept its course. Collision impending, both stopped and reversed, but the B. struck the H., causing - injury to both. Held, that the H., having the B. on her starboard side, was bound to keep out of the way; that she was in fault in giving the two blasts, and keeping her course; and that the B. was also in fault for not starboarding, as she might have done, when she saw that the H. was crossing her bow; for under rule 38 a vessel has no right to run into collision for the enforcement of her right of way.</p>

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

<p>In Admiralty., Cross libels for a collision between the schooners Silver Star and Robert Healey.</p>

In Equity. Action by Oregon Short Line & Utah Northern Railway Company against the Northern Pacific Railroad Company.

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.</p> <p>Statement by Caldwell, Circuit Judge:</p> <p>Eeuben W. Chadbourne, a citizen of the state of Wisconsin, filed his bill in equity in the circuit court for the district of Minnesota, against Orlen P. Whitcomb, a citizen of the state of Colorado, and James N. Coe, a citizen of the state of Minnesota, alleging that Whitcomb was indebted to the complainant in a sum exceeding $5,000 upon certain promissory notes set out in the bill; that Whitcomb was insolvent, and that, to hinder, delay, and defraud his creditors, he had by deeds conveyed certain real estate, and by bills of sale transferred certain personal property, to Coe, upon certain secret trusts in writing, which instruments creating the alleged trusts are made exhibits to the bill. The last in date of these alleged trust agreements included all the property, real and personal, conveyed and transferred by Whitcomb to Coe, and the powers conferred and the trusts imposed on Coe thereby are as follows:</p> <p>“Zs’ow, in consideration of the premises, I, the said Orlen P. Whitcomb, hereby authorize and fully empower the said James if. Coe to sell, exchange, or dispose of any or all of the said property mentioned in the agreements herein-before referred to, which iias not been already disposed of, together with ail of the personal property hereby conveyed to said Coe to such person or persons, and for such prices and on such terms, as said Coe shall see lit, and hereby fully investing him with all the rents, profits, and increase of said property, both real and personal, and giving him full, authority to execute and deliver any and all conveyance or instruments necessary orproper to convey or dispose of or in the management of the same, without obtaining my consent thereto; and the net proceeds, either cash, securities, or other property, derived from the sale of any of said property, or the rents, profits, or increase thereof, said Coe is hereby authorized and directed to hold and apply, when reduced to money, on any sum or sums of money now due or hereafter owing to said Coe from said Whitcomb, and on any indebtedness incurred in the management of said property or taxes paid, and on any and all liabilities now or at any time or hereafter incurred by said Coe for said Whitcomb, as surety or otherwise, and after the satisfaction and payment of all such claims and indebtedness whatsoever, the balance thereafter to be paid to said Whitcomb.”</p> <p>It is alleged that Whitcomb has no other property out of which complainant can make his debt. The prayer of the bill is that the conveyances to Coe be set aside, the trust agreements declared void, and Coe be required to account; that the real estate be sold, and the complainant’s debt paid out of the proceeds, and the moneys received from Coe on tiie accounting. The complainant died, and the suit wes revived in the name of Catherine E. Chadbourhe and Smith W. Chad bourne, his executors. Whitcomb appeared specially, and filed a plea to the jurisdiction of the court, upon the ground that he was a citizen of Colorado, which plea was sustained, and the bill dismissed as to If . No.complaint is made of this ruling, touching which counsel for appellants in their brief say:</p> <p>“Whitcomb was originally made a defendant, but he was dismissed upon filing a plea to the jurisdiction, and, as we think, properly, under the act of August 13, 1888, defining the jurisdiction of federal courts; and no exception is taken to the dismissal. ”</p> <p>After the suit, was dismissed, as to Whitcomb, Coe filed a demurrer to the bill for want of proper parties, which the court sustained, and entered a decree dismissing the bill without prejudice, and the complainants-appealed. In the brief of the counsel for appellants it is.said:</p> <p>“The only question for the consideration of this court is as to whether or not the circuit court erred in sustaining the demurrer upon the ground that Whitcomb was not a party to the action.”</p> <p>The opinion of the circuit court dismissing the bill is reported in 45 Fed. Rep. 822.</p>

<p>Í. Attorney and Client—Compensation—Contract. .</p> <p>A law firm agreed with a railroad company to institute proceedings to recover certain land. If the land was recovered the attorneys were to receive compensation commensurate with their services, but, in case of defeat, only an amount sufficient to cover expenses. The proceedings resulted in placing the fee title of the land in the company. Further action against parties claiming possession under tax sales was brought, resulting in decision adverse to the company. T.ho company declined to appeal the case, and settled with tho firm by paying an amount sufficient to cover expenses. The company afterwards appealed the caso, and the decision was reversed, and the land given to tho company. Held, that the settlement was no bar to an action by the attorneys under the provision of tho contract, which guarantied to the firm the full fee if tho land was ultimately recovered.</p> <p>3. Same.</p> <p>The property recovered was worth from $95,000 to $50,000. The trial court allowed a fee of $5,000 under the agreement, deducting therefrom $9,000 due or paid to the counsel who conducted the case to final judgment in the supreme court. Held, that this fully mot the equities of the case.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Statement by Caldwell, Circuit Judge:</p> <p>This is a suit in equity commenced on the 2d day of July, 1888, in the circuit court of the United States for the eastern district of Missouri, by the appellant, Louis It. Lemoino, against Dunklin comity, the appellee, to compel the county to convey to the appellant about 17,000 ¡teres of land, which the bill alleges the county holds in trust for the appellant, and to require the county to account for the proceeds of such of said lands as it has sold. The lands in question are swam]) lands, granted by the United States to the state of Missouri by act of congress approved September 28, 1850, and granted by the state to the county in 1851. The receiver and register of swamp lands for the county were invested by law with authority to sell the swamp lands of the county’; and, in 1857, these officers issued receipts and certificates of purchase for a portion of these lands to sundry persons, who subsequently transferred their rights to the appellant. The certificates of purchase were in the following form:</p> <p>“Lard Office at Kennett, Dunklin County, State of Missouri.</p> <p>“Mo. 425. January 26, 1857.</p> <p>“It is hereby certified that in pursuance of law Clark and Richardson, of Shelby county, state of Tennessee, on this day purchased of the register of this office, [here follows a description of the lands,] at the rate of one dollar per acre, amounting to-dollars, for which the said Clark and Richard-</p> <p>son have made payment in full as required by law. Mow, therefore, be it known that, on presentation of this certificate to the governor of the state of Missouri, the said Clark and Richardson shall be entitled to receive a patent for the lots above described.</p> <p>[Signed] . “James B, Rice, Register.”</p> <p>On the 27th of February, 1857, an act of the legislature of the state, vested in the county court of the county the exclusive power to make deeds or conveyances of the swamp lands belonging to the county. ’ As to the principal portion of the lands, the leading facts, as far as they are disclosed by the record, are these: An act of the legislature authorized the county to receive the stock of the Dunklin & Pemiscot Plank Road Company, at the rate of one dollar per acre, for the swamp lands of the county l3ing within six miles of the proposed plank road. The road was surveyed and located, and the company issued its stock to the county, at the rate of one dollar per acre for the land lying within six miles on each side of the line of the road, as located, and received in exchange therefor, from the proper county officer, certificates setting aside these lands to the company. The company transferred its interest in the lands under these certificates to Clark and Richardson, and Clark and the heirs of Richardson transferred their interest therein to the appellant. The plank road was never built.</p> <p>The county answered, among other things, that it had never recognized appellant’s or his grantors’ rights to the lands; that the certificates of purchase were procured b3>' fraud; that the lands -were never paid for; that the plank road was never built, and the company never intended to build it; that the appellant’s grantor, Clark, in 1866, while he was the owner and holder of said certificates, and repeatedly afterwards, demanded patents for the lands of the county, which had been refused; that the lands have been in the adverse possession of the county more than the period required by the statutes of limitations to bar an action for their recovery; that the county had at all times, and continuously, from the year 1859 down to the bringing of this suit, distinctly notified Clark and his grantees that said certificates were fraudulent and void, and that it would not convey to him or his grantees the said lands; that during all of that time, the county, to the knowledge of Clark and his grantees, was selling and conve3fing these lands to bona fide purchasers, who went into possession and made valuable improvements, and that a large proportion of the lands have thus been sold; that appellant has been guilty of laches, and that his claim is stale. Other defenses were pleaded, not necessary to he noticed. A demurrer was filed to the bill, which was overruled. 38 Fed. Rep. 567. Upon final hearing, the court below dismissed the bill for want of equity, (46 Fed. Rep. 219,) and the complainant appealed.</p>

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.</p> <p>Statement by Bukwee, Circuit Justice:</p> <p>This case comes on appeal from the circuit court of the district of Minnesota. In that court a demurrer to the bill was sustained, and a decree entered dismissing the bill."</p> <p>The facts, as they appear from the bill, are, in a general way, as follows: Plaintiff and appellant on January 1, 1863, received from the United States a patent for the land in controversy, situated in St. Louis county, Minn., to wit: The S. W. & of the N. 15. 1 of section 5, township 49, range 14. On June 26, 1863, plaintiff, intending to remove, and in fact removing, to the province of Quebec, Can., executed a conveyance to his nephew, Pierre Etu." Though in form a warranty deed, it was intended by the parties only as a power of attorney to enable said Etu to manage and control the property in the absence of plaintiff. On July 7, 1864, having returned to the county of St. Louis, and Pierre Etu having removed to Canada, the latter conveyed the land to plaintiff by a deed executed in Canada, in the French language, duly executed according to the laws of Canada, but not witnessed or acknowledged according to the laws of this state. In September, 1870, plaintiff removed to Marquette county, Mich., where he resided 12 years, and then removed to Canada, living there till the commencement of this suit. During all these years he never revisited the county of St. Louis. On the 24th of September, 1870, he executed a power of attorney to one Richard G. Coburn, giving him power to sell and convey the lands, with right of substitution. Thereafter, and in 1872, a suit was brought against plaintiff by J. D. Ensign in the district court of said county of St. Louis, and a writ of attachment issued. In such suit a judgment was rendered, and under the judgment a levy and sale was made of the tract in controversy to John C. Hunter, of Duluth, for the sum of $400. A certificate of sale was issued by the sheriff on the 10th day of March, 1873. The title conveyed by this sale passed to James Bardon by certain conveyances of date July'15, 1875, and June 1, 1876. On March 7, 1874, by proper written instrument, James Bardon was substituted by Richard G. Coburn as agent for the plaintiff under the authority given in the power of attorney, and on May 13,1S74, a quitclaim deed was executed by said Bardon under such power of attorney and substitution .by which the land was conveyed to John Q. Hubbard, and on the next day said Hubbard, under previous arrangement, reconveyed the land to said James Bardon individually, the consideration expressed in each of these deeds being the sum of one dollar. All the instruments up to and including the deed to Hubbard were duly and promptly recorded in the office of the register of deeds of the county; but the deed of reconveyance was not placed on record for over a year, and not till June 4, 1875. On May 14, 1875, Bardon obtained a quitclaim deed to himself from Pierre Etu, on the representation that there was a defect in the latter’s conveyance to plaintiff, and that such quitclaim deed would perfect the title of plaintiff. On June 4, 1875, Bardon bought the land at a tax sale for the back taxes of 1872, and took the deed to himself. In 1878 the land -was sold at another tax sale for the taxes of 1874, and bid in in the name of Mary Bardon, the sister of said James Bardon, and by her conveyed to him. These deeds were also promptly recorded. On February 4, 1880, James Bardon conveyed the property to Henry IV. Sage for a consideration stated in the deed of $2,250. Some other transfers took place subsequently, by which all the titles transferred through these various transactions passed to Frederick W. Paine, who on June 19,1886, platted the land as an addition to the city of Duluth, under the name and style of “West Park Division of Duluth,” which plat was on August 30, 1886, duly recorded. Thereafter lots were sold in this addition by him to different persons. On May 11, 1891, this suit was commenced. Some 94 persons were made defendants,—James Bardon, the substituted attorney, and the others, lot and block holders in the West Park division. The hill sets out the various conveyances, over 120 in number, by which these parties claim to hold title. The circuit court sustained the demurrer, and dismissed the bill on the ground of laches.</p>

<p>1. Eminent Domain—Condemnation by United States—Compensation.</p> <p>Act March 3,1891, authorizes the secretary of war to modify existing plans for the excavation of Petty's island and the adjacent shoals in the Delaware river, but declares that the title to any additional lands “acquired” for this purpose shall be vested in the United States without charge. .Held that, in view of this express declaration that no compensation shall he paid, the government has no constitution il power to institute condemnation proceedings to obtain such lands, and that there is nothing in the acts of April 21 and August 1, 1888, giving officers of the government general authority to proceed by condemnation, which qualifies or removes this condition against compensation. 48 Fed. llep. 896, affirmed.</p> <p>2. Svme.</p> <p>A suggestion that the compensation would bo paid by voluntax’y contributions is without merit, for that resource is too uncertain to justify condemnation.</p> <p>8. Same—Cluozht Coukt op Appeals—Judicial Notice.</p> <p>The circuit court of appeals could not take judicial notice of independent proceedings in tho trial court and other courts of the circuit, for the condemnation of other lands such proceedings not being a part of the record.</p>

<p>National Banks—Insolvency—Depositors—Right op Set-Ofp.</p> <p>The indorser of a note which is discounted by a national bank, and which matures after the hank becomes insolvent and a receiver is appointed, is entitled to set off against the note the amount of his deposits in the bank at the time of its failure. 49 Fed. Rep. 837, affirmed. Armstrong v. Scott, 36 Fed. Rep. 63, and Stephens v. Schuchmann, 33 Mo. App. 333, disapproved.</p>

<p>3. Pleading—Amendment'—New Cause ok Action.</p> <p>Under Code S. C. § 194. which governs the federal courts in actions at law in that state, no amendment proposed at the trial can be allowed for the purpose of introducing a new cause of action.</p> <p>2. Same—Action to Recover Lands.</p> <p>Where, in an action to recover lands and damages for the withholding thereof, the complainant avers that defendant is in possession of said lands wrongfully withholding them from plaintiff, a proposed amendment adding an averment of illegal and tortuous disseisin, with intent to convert the lands to the use of defendant without any legal claim, does not set up a new cause of action, but is merely an amplification of the old one.</p> <p>3. Sanie—Damages.</p> <p>The damages in such an action aro properly placed in the prayer for relief, which is no part of the cause of action, since they are merely an incident of the wrong alleged, and necessarily flow from it; and, as the amendment to the cause of action heightens and colors the wrong, an amendment should also be allowed increasing the damages prayed for.</p>

<p>Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Edward G. Rutherford against the Morning Journal Association to recover damages for an alleged libel.’ The jury rendered a verdict for plaintiff in the sum of §1,000. A motion for a new trial was denied. 47 Fed. Rep. <187. Defendant appeals.</p> <p>Statement by Lacombk, Circuit Judge;</p> <p>The plaintiff, a resident of Toronto, Canada, came to New York city on the 8th of June 1890, accompanied by the wife of a friend of his, who resided in Toronto. When the train arrived, they were met at the station by the husband. All the parties were people of high respectability, and were, apparently, intimate friends who had arranged for a visit to New York together. While they were staying at the Hotel Brunswick, and on the 14th of June, there appeared in the newspaper published by plaintiff in error a communication, under the heading “ Eloped to New York; Wife of a Wealthy Toronto Merchant ‘Skips Out,’”—which purported to have been sent to it by its special correspondent at Toronto, the day before. The communication stated, in substance, that the defendant in error had eloped with the lady; that for some time the intimacy between the two had excited comment in Toronto, and, when they wore found to be missing, “ tongues wagged freely;” that a dispatch from New York city had been received by the husband, stating that his wife and defendant in error had been seen there, and that he at once started for New York. No special correspondent in Toronto had sent any such com-' munication to the plaintiff in error. One Cronin, a reporter for a Toronto newspaper, with no more information on the subject than “talk which was going on about it in the office” of his paper, had, without investigating into the facts, sent the communication to a Chicago newspaper, which published it. The article, as published in the Chicago newspaper, was forwarded by a news agency to the plaintiff in error. Just prior to its receipt, a similar article was published in the Nerv York Evening Sun. The telegraph editor of the plaintiff in error cut out the article from the Sun for publication in his own paper, and inserted it therein as an item of nows, without making any inquiry as to its authenticity.</p> <p>Defendant in error brought suit in the United States circuit court for the southern district of New York, laying his damages at $10.,000. The action was tried May 12, 1891, before Judge Wallace and a jury, and a verdict rendered for $4,000. A motion for a new trial was made and denied, judgment was duly entered, a bill of exceptions settled and filed, and writ of error allowed.</p>

Statement by Sanborn, Circuit Judge: This was an action brought by the defendant in error against the Northern Pacific Railroad Company for damages alleged to have resulted to him from the negligence of the corporation.

Error fo the Circuit Court of the United States for the Southern District of New York. Action by Paul C. R. Stoermer against the Central Railroad of New Jersey. Judgment for plaintiff. Defendant appeals. This action was brought by Stoermer, a brakeman in the employ of the Lehigh & Wilkesbarre Coal Company at Bergen point, N. J., to recover damages for personal injuries alleged to have been sustained by negligence of the Central Railroad of Now Jersey.

<p>At Law. Action by Mary F. Smith against the Preferred Masonic Mutual Accident Association.</p>

<p>Appeal from the United States District Court for the Southern District of New York.</p> <p>In Admiralty. Action by the United States against the schooner Miranda, her tackle, etc., and George H. B. Hill. Judgment for defendants. Plaintiff appeals.</p>

<p>Error to the Circuit Court of tho United States for the Southern District of New York.</p> <p>Action by William King and Robert A. Lawrie against Daniel Ma-gone, as collector of the port of New York, to recover $370.31, alleged to be an excess of duty paid by them. The court directed a verdict for plaintiffs, and defendant brought this writ of error.</p> <p>The imports in question were certain rollers composed wholly of copper, and used in printing patterns on oilcloth. The collector levied and collected a duty of 45 per cent, ad valorem, under the last paragraph of Schedule C, Tariff Act of March 3, 1883, (22 St. at Large, c. 12.1, p. 500; Heyl, 216.) Tho importers protested, claiming that the rollers were dutiable at 35 per cent, ad valorem, under the copper clause of said schedule, (Heyl, 186.) The importers appealed to the secretary of the treasury, who affirmed the collector’s decision, and thereupon this action was brought.</p>

Ln Admiralty. Libel by the Cornell Steamboat Company against the ferryboat Jersey City and others to recover damages for collision with a tow -while in charge of a tug belonging to libelant. An exception to the libel was overruled. 43 Led. Itep. 166. ^ Afterwards a deerée was' rendered against the ferryboat, (44 Fed. Rep. 112,) and her owners appeal.

<p>In Equity. Suits for injunction. On motion for temporary injunctions.</p>

<p>1. Suits in Indian Territory—Common Law to Govern—Lex Fori.</p> <p>In actions in the federal courts in the Indian Territory, the rule of decision, in the absence of statute, or of proof of the laws, rules, or customs prevailing in the territory, is the common law, since it is the lex fori.</p> <p>2. Chattel Mortgages—Registry Laws—Indian Territory.</p> <p>The registry law of Kansas does not apply to a chattel mortgage executed in Kansas by a resident of the Indian Territory upon property situated in the territory.</p> <p>3. Same—Validity at Common Law.</p> <p>At common law an unrecorded chattel mortgage, unaccompanied with possessi on of the chattels mortgaged, is prima facie fraudulent and void as to creditors of the mortgagor; but this presumption of fraud may be rebutted, and, where it is admitted or proved that such a mortgage is not fraudulent as to creditors, the mortgage may be sustained, notwithstanding t he possession in the mortgagor.</p> <p>4. Same—Vesting ou Title.</p> <p>At common law a chattel mortgage vests the title conditionally in the mortgagee, which title, in case of default, becomes absolute; and therefore a mortgagee of domestic animals is entitled, after default,, to the increase thereof.</p> <p>5. Same—Attachment—Instructions.</p> <p>In an action by the mortgagee in such case to recover the property from creditors who attached it after default, defendants were not prejudiced by a charge that plaintiff was entitled to recover if defendants had knowledge of the mortgage before bringing their suit, for the right to recover was complete, whether defendants had such knowledge or not.</p> <p>6. Same—Pleading.</p> <p>In such an action it was competent for plaintiff to recover under the mortgage upon general allegations of title and right to immediate possession.</p>

On motion to dismiss appeal. Statement by Knowles, District Judge: The California Electric Light Company', and the San Jose Light & Power Company, desiring to commence a suit against the Electric Improvement Company of San Jose, for an'infringement of a certain patent, joined with them as a plaintiff the Brush Electric Company.

<p>Error to the Circuit Court of the United States for the District of Washington.</p> <p>At Law. Action by Hugh Charless against the Northern Pacific Railroad Company for damages for personal injuries. Judgment for plaintiff in the sum of $18,250.</p>

At Law. Action by W. J. Rainey against J. B. Maas, in which the Humboldt Iron Company was served with garnishee process. Heard on motion of the garnishee to discharge the proceeding against it.

At Law. Action by Charles C. Young against the board of county commissioners of Mahoning county, Ohio, the city of Youngstown, Ohio, and others, to recover lands. Jury waived, and trial to the court. Statement by Taft, Circuit Judge: This is an action for the recovery of the possession of real property by Charles C. Young, a citizen of the state of New York, against the county commissioners of Mahoning county, Ohio.

In Equity. Bill by the Canton Steel Roofing Company against Alvin C. and William Kanneberg, doing business as the Kanneberg Roofing Company, to restrain infringement, and for an accounting, as to letters patent No. 188,079, issued March 6, 1877, to Henry W. Smith, for an. improvement in sheet metal roofing.

In Admiralty. Libel by Carter and others against the steamship Mascotte for damage to cargo. The cause was tried, together with another suit between the same parties, to recover the extra cost caused by discharging certain tea in Brooklyn instead of within the “tea district,” on the New York side of the East river. Decree for libelants. 48 Fed. Kep. 119. Claimants of the vessel appeal.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In Admiralty. Libel by Carter and others against the steamship Mascotte for breach of contract by bill of lading. The cause was tried below together with another libel by the same parties for damage to cargo. Decree for libelants. 48 Fed. Rep. 119. The claimants of the vessel appeal.</p>

<p>1 Federal Courts—Jurisdiction.</p> <p>A suit in a federal court against an executor, to recover a legacy, wherein a receiver of a national bank which held assets of the estate is party defendant, will be dismissed, on demurrer, as to the executor for want of jurisdiction, when all the parties are citizens of the same state.</p>

In Equity. Pending on motion of the complainant to vacate and set aside the supersedeas heretofore allowed the defendant Blount on the appeal from the order granting complainant an injunction.

In Equity. Suit for an injunction to eompel the defendant, a railway corporation and owner of a wharf, to allow steamboats operated by the complainant to receive and discharge passengers and freight upon said wharf.

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.</p> <p>In Equity. Suit by Lee L. Bigelow against Jesse B. Chatterton to determine an adverse claim to land. Decree for defendant. Plaintiff appeals, and also brings error.</p> <p>Statement by Caldwell, Circuit Judge:</p> <p>A statute of the state of Minnesota reads as follows:</p> <p>“Sec. 2. Action to Determine Adverse Claims. An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein, or lien upon the same, adverse to him, for the purpose of determining such adverse claim, estate, lien, or interest; and any person having or claiming title to vacant or unoccupied real estate may bring an action against any person claiming an estate or interest therein adverse to him, for the purpose of determining such adverse claim, and the rights of the parties, respectively.” St. Minn. 1878, c. 75, § 2, p. 814.</p> <p>This suit was brought in the circuit court of the United States for the district of Minnesota by the appellant, Lee L. Bigelow, under the last clause of the section of the statute above quoted, against the appellee, Jesse B. Chatterton, to determine the adverse claim of the latter to an undivided one half of the vacant and unoccupied town lots described in the bill, situated in the first and second divisions of Grand Rapids, in the county of Itasca, Minn. The court below decreed that the appellant was not, and that the appellee was, the owner of the property, and the complainant appealed.</p>

<p>At Law. Action bj Lillian I. Green against the city of Tacoma and others to recover possession of land occupied as a street.</p>

Action.by George N. Baxter against the United States to recover moneys claimed to be due him as district attorney. Judgment for plaintiff. Both parties bring error. Plaintiff moves to dismiss defendant’s writ of error.

Cross Errors to the Circuit Court of the United States for the District of Washington, Northern Division. Action by Edward Blewett against the Front Street Cable Railway Company on a penal bond. Jury waived, and trial to the court. Findings and judgment for plaintiff for the amount of the penalty, without interest. 49 Fed. Rep. 126. Both parties bring error.

<p>j, fiqtnTY—Pleas—Replications—Suit to Forfeit Land Grants.</p> <p>Act Cong. Feb. 25,1867, granted certain lands to the state of Oregon to aid In the construction of a military road, and authorized the sale of the lands on the certificate of tho governor of the state that the road was completed. The state granted the lands to a road company, and thereafter the governor issued the required certificate, and the lands were sold. Subsequently, in pursuance of Act Cong. March 2,1889, (25 St. at Large, 850.) a suit was brought to declare the forfeiture of the lands on the ground that the road was never built as required by the act of congress, and that the governor’s certificate was procured by fraud. Defendants filed two pleas, supported by answer: (1) That the issuance of the certificate was without any fraud on the part of the road company; and (2) that defendants were bona fide purchasers without notice of the alleged fraud. The circuit court held these pleas sufficient in law, and dismissed tho bill. On appeal to the supreme court, this decree was reversed, tho court holding that the government was entitled to file replications to the pleas, and saying that “congress intended a full and legal investigation of the facts, and did not intend that the important interests involved should be determined upon the untested allegations of the defendants. ” Subsequently replications were filed to the pleas. Held, that the case was thereafter to be tried on the issues raised by tho pleas, and, if defendants were found to he bona fide purchasers, the bill should be dismissed, irrespective of the questions Of the building of the road, or of fraud in obtaining the governor’s certificate.</p> <p>9. Same—Evidence—Bona Fide Purchasers.</p> <p>Evidence that the governor’s certificate of the completion of the road was procured by fraud was inadmissible, when such fraud was not shown to have been committed by tho road company or its grantees, or any one acting in its or their behalf, or that either had any knowledge thereof.</p> <p>8. Land Grants—Forfeiture—Evidence.</p> <p>The act of congress having determined that the lands might be sold on the governor’s certificate of the completion of the road, and Die subsequent act of 1874 (18 St. at Largo, 80) having authorized the issuance of patents upon the same evidence, bona fide purchasers from tho road company had a right to rely on such certificate, and, in the absence of any fraud or notice of fraud, evidence that the road was never in fact constructed as required by the act was immaterial.</p> <p>4. Same—Military Roa»—Certificate of Completion.</p> <p>The act of 1867 provides that such lands may be sold in quantities not exceeding 80 sections, “when the governor of said state shall certify to the secretary of the interior that 10 continuous miles of said road are completed, and so on, from time to time, until said road shall be completed. ’’ Held, that the fact that the govern- or’s certificate was not given until the whole road was completed did not affect its validity.</p> <p>5. Same.</p> <p>The certificate of the governor that ho had “made a careful examination of the said road since its completion, and that the same is built in all respects as required by the abovo-recited acts, ” was a sufficient certificate that the road had been “ constructed and completed. ”</p> <p>8. Same—Bona Fide Purchasers—Notice.</p> <p>The fact that the governor’s certificate of the completion of tho road was dated only about eight months after the date of the state act granting the lands to tho road company was not sufficient to put a purchaser from the road company on inquiry, since there was nothing to show that the work may not have been commenced before tho date of such grant.</p> <p>7. Same—Deed—Bona Fide Purchasers.</p> <p>In a suit by the United States to forfeit certain lands granted in aid of a military road, defendants claimed to be bona fide purchasers under a deed which declared that the road company “does hereby alien, release, grant, bargain, sell, and convey” to the grantee, “ his heirs and assigns, the undivided one half of all the right, title, and interest” of the grantor “inand to all the lands lying and being in the state of Oregon, granted or intended to be granted to the state of Oregon by the act of congress approved July 2,1864, * * * and granted by the stato of Oregon ” to the grantor by Act Or. Oct. 24, 1864, “and the undivided one half of the right, title, and interest” of the grantor “to said grant of land under the several acts aforesaid, whether listed and approved or otherwise, also the undivided one half of all future right, titlo, and interest, claim, property, and demand, ” which the grantor “may at anytime hereafter acquire to any lands by virtue of any further compliance with, the requirements of said acts of congress, together with the hereditaments and appurtenances; *’ * * to háve and to hold the lands'hereby granted unto” the grantee, “his heirs and assigns, forever. ” Held, that this deed shows an intent to grant the’lands themselves, and not merely any interest which the grantor may have therein, and hence that it is not a mere quitclaim, such as deprives the grantee of the right.to rely upon the plea of an innocent purchase for value. U. S. v. California & Oregon Land Co., 49 Fed. Rep. 496, followed.</p>

<p>1 Wrongful Attachment—Remedies—Replevin.</p> <p>One whose property has been wrongfully seized under a writ of attachment, to which he is a stranger, is not confined to an action on the official bond o£ the sheriff, but may bring an action of replevin against him individually.</p> <p>8, Same-Defenses.</p> <p>In an action against a sheriff to recover goods, or the value thereof, taken by him under a writ of attachment from the possession of a stranger to the writ, the fact that he has subsequently turned them over to a receiver, in accordance with an order of court made in a third suit, to which plaintiff was not a party, is immaterial, since his liability arose at the time of wrongful seizure, and was not affected by the subsequent disposition of the goods.</p> <p>8. Same—Pleadings and Evidence.</p> <p>In replevin against a sheriff for the wrongful attachment of goods held by plaintiff’s agent under a bill of sale given by the person against whom the attachment was directed, as security for debt, the sheriff cannot prove that the bill of sale was made for the purpose of defrauding other creditors, when the only fraud averred in the answer was that the agent used the hill of sale, after its execution, falsely and fraudulently, for the purpose of gaining a secret advantage over other creditors of the seller.</p> <p>4 Same—Defenses.</p> <p>If the allegation of fraud by the agent were admitted to ho true, the sheriff could not justify under the writ, however regular, without showing that,he had first made a tender of the sum due plaintiff from the common debtor, as required by Comp. St. Mont. § 1546.</p> <p>5. Same—Pleading—Amendment—New Cause of Action.</p> <p>In replevin in a federal court defendant pleaded in justification that he was a sheriff, and took the goods under an attachment issued by a state court. At the closo of plaintiffs’ evidence, defendant moved the court to directa verdict for him. This was denied, and plaintiffs thereupon obtained leave to amend their replication so as to allege that the suit in which the attachment issued was determined, the judgment satisfied, and the property disposed of long prior to the commencement of the present suit; and proofs were thereafter given by both parties. Held, that the amendment did not set up a new cause of action, but- was merely an additional replication to the new matter pleaded in the answer, and its allowance was within the court’s discretion.</p>

At Law. Action by William Ingate Balls against Tyler Woodward and others, constituting the common council of the city of Portland, Or. Tried to the court without a jury.

<p>1. Railroad Companies—Negligence—Collision op Trains at Crossing op Tracks.</p> <p>In an action against two railroad companies to recover for personal injuries sustained in a collision at a crossing of their tracks, a verdict was rendered against one company and in favor of the other. Held, that tho former could not complain that the verdict in favor of the latter was contrary to the evidence, for, if itself guilty of negligence contributing to the injury, it was liable for the entire damages.</p> <p>Z. Same—Evidence.</p> <p>In an action against a railroad company for personal injuries sustained in a collision of its freight train with the passenger train of another company at a crossing of their tracks, it appeared that the freight train was stopped about 150 feet before reaching the stopping post; that the view was there much obstructed by timber: that the engineer got down and walked around his engine to the west, and got up on that side; that before starting he gave two blasts of the whistle, the fireman rang the hell, and ho opened the throttle; that he could not seo to the east from his position on the west side' of the cab, but was keeping a lookout to the west; that as the engine started the fireman looked to the east, and then went to shoveling in coal; that the engineer first saw the other train when it was directly on the crossing, about 100 feet in front of him; and that he reversed the engine, and applied sand to the rails, but was unable to stop. Held, that these facts showed negligence, and justified a verdict against defendant.</p> <p>3. Same—Appeal—Harmless Error.</p> <p>At the trial it appeared that the freight train was not on schedule time, and counsel read to the jury tho Arkansas statute, which provides that every railroad company “shall start and run their cars for tho transportation of passengers or property at regular times, to be fixed by public notice. ” Appellant company requested an instruction that this statute had no application to the case, that the running of a freight train “wild” was no evidence of negligence, and that the question of negligence was to he determined solely by what took place at the crossing. This request was refused, but the nhargo given related only to the alleged negligence at the crossing. Held, lhat while tho refusal was technical error, yet the error was harmless, in view of the fact that the evidence conclusively showed negligence at the crossing.</p> <p>*. Same.</p> <p>Technical errors in the admission of testimony respecting the speed of the freight train at the time of collision wore harmless, in view of the fact that the train was moving at such speed that it could not be stopped within tho 100 feet at which the engineer first saw the other train on the crossing.</p> <p>& Evidence—Admissibility.</p> <p>In an action for personal injuries, there was read the deposition of a physician, who had examined plaintiff pending the suit. On cross-examination, he testified that his diagnosis of her condition was based on a physical examination, and on statements made by her in reply to questions. He also detailed some of the questions he put to her for the purpose of testing her good faith, and her answers thereto. Held, that the admissibility of these questions and answers was not affected by the fact that they were made after the suit was commenced; and as it was apparent that they were merely introduced for the purpose of showing that the physician’s opinion as to her condition was partly based on her statements, and not as direct evidence of her past sufferings, the jury could not have been misled thereby.</p> <p>8. Depositions—Suppression—Technical Defects.</p> <p>Depositions will not be suppressed for merely technical defects, in the absence of any showing of injury, when it appears that counsel for both parties were present, and participated in the examination of the witnesses.</p>

<p>L Railroad Companies—Negligence—Setting Out Fires—Defenses.</p> <p>One who, without permission, has out cord wood from public,‘ lands, and piled it along a railroad, and who is in actual possession thereof, and engaged in selling it for his own benefit, may recover its full value, if negligently destroyed by fire from a locomotive; for the railroad company cannot justify its negligence by showing that the plaintiff was a trespasser, or question his title without, connecting itself with the true title.</p> <p>2. Same—Evidence as to Other Fires.</p> <p>Evidence of other fires, at other points on the road, and at other times, both ‘ before and after the destruction of the wood, though set by other locomotives, was admissible, as tending to show the possibility, and consequent probability, that a locomotive caused the fire, and to show a negligent habit of the officers and agents of the railroad company.</p> <p>3. Same—Evidence as to Combustibles on Track.</p> <p>As Comp. St. Mont. p. 830, § 719, makes it the duty of a railroad company to keep its track and right of way, to the distance of 100 feet on each side, free from dead grass, weeds, and other combustible material, and declares a failure to do so prima facie evidence of negligence on its part, evidence that the right of way and track, at points other than that at which the fire wa3 set out by its locomotive, but in the immediate neighborhood, were incumbered by dead grass and other combustible material, is admissible.</p> <p>4. Same—Contributory Negligence—Burden of Proof.</p> <p>It was incumbent upon the railroad company to prove, by a preponderance of evidence, that plaintiff was guilty of contributory uegligenoe; and plaintiff’s failure to clear the brush and other combustible material out of an open draw, through which the fire was communicated to the wood, did not shift the burden of proof, for plaintiff was not bound to clear the ground around bis woodpile.</p> <p>5. Same—Proximate Cause.</p> <p>A simple change in the direction of the wind could not be considered as disturbing the unbroken connection between the negligence of the railroad company and the destruction of the wood, and it was in the province of the court to instruct the jury that it was not an intervening cause.</p>

<p>3. Res Judicata—Dismissal oi? Suit.</p> <p>In an action in a federal court, in one state on a. judgment of a supreme court of another state, it is no defense that, before the action in the state court was commenced, a suit on the same cause of action was pending in such federal court, which suit was dismissed subsequent to the entry of judgment in the state court. 2. Writs—Personal Service on Nonresident—Judgment—Collateral Attach.</p> <p>Where a nonresident, ivas personally served with summons in a state court, while within the jurisdiction of such court, solely for the purpose of trying another suit pending in said court as party defendant, and the court held the service good, and gave judgment thereon, such service cannot he collaterally attacked in a subsequent suit on the judgment in a federal court.</p>

<p>1. Ejectment—Stating Separate Causes op Action—Motion to Make Complaint</p> <p>More Definite.</p> <p>In an action to recover possession of distinct parcels of land, not contiguous to each other, whore defendant’s alleged wrongful entry upon and withholding of one has no connection with the other, if the complaint fails to state separately the distinct causes of action as to each parcel, as required by the Code of Civil "Procedure of South Carolina, the remedy is by motion to make the complaint more definite and certain, not by demurrer. Westlake v. Farrow, 13 S. E. Rep. 469, 34 S. C. 270, followed.</p> <p>2. Same—Damages for "Withholding Possession.</p> <p>But a claim in sueh complaint for damages for such wrongful entry and possession need not be separately stated, as such damages arc not, under the Code, an independent cause of action.</p>

<p>1. District Attorneys—Rer Diem Fees.</p> <p>Rev. St. U. S. § 834, provides that a district attorney shall ho allowed five dollars a day for the time necessarily employed in examining, before a judge or commissioner, a person charged with crime, and “for each day of his attendance in a court of the United States, on the business of the United States, * * * $5. ” Section 831 provides that, “when the circuit aud district courts sit at the same time, ” he shall be allowed only for attendance on one court. Held, that a district attorney who is in attendance upon a federal court, and also on the same day, conducts the examination, before a commissioner, of a person charged with crime, is entitled to only one per diem fee for the day.</p> <p>2. Same—Mini-,age.</p> <p>Under Rev. St. § 834, providing that the district attorney shall be allowed, “for traveling from the place of his abode to the place of holding any court of the United States in his district, * * * 10 cents a mile for going and 10 cents a mile for returning, ” a district attorney in attendance on a federal court is not entitled to mileage for going to and returning from his home during an adjournment over Sunday.</p> <p>8. Same—Interest on Accounts.</p> <p>A district attorney is not entitled to interest on Ms accounts for a period intervening between the time of their allowance by the treasury department and the time of their payment.</p>

<p>In Equity. Bill by the Standard Folding-Bed Company against Charles E. Osgood and others for infringement of letters [latent Nos. 311,623 and 397,766, issued to Lyman W. Welch, Fébruary 3, 1885, and February 12, 1889, respectively, for folding beds.</p> <p>At the hearing the issue was really upon claim 1 of the later patent. As to the feature, covered by this claim the inventor says :</p> <p>“The object of niv present invention is, in part, to provide the foot of the*' bed with automatically operating legs,—that is to say, with legs which automatically fold in when the bed is turned up, and which automatically turn out into position to serve as supports when the bed is pulled down.”</p> <p>' Jn the’ specifications he ¿lescribés 'this invention as follows :</p> <p>“On the side of the bed rail is pivotally mounted a lever-like crank, e, to one end of which is attached the end of the chain or connector, O, and to the other end is attached a link or bar, E, which is coupled at its other end to one of the connected legs, D. The other end of chain,' 0, is attached to the bed proper, B. There will be or may be a crank,' e, and bar, E, on each side of the bed proper, B, in order that both of the connected legs may be acted on simultaneously, but the arrangement will be the same as that described in any case.</p> <p> </p> <p>“The operation of this device will be understood by noting the two positions of the parts as represented in Figs. 1 and 2. When the bed is lowered to the position seen in Fig. 1, the chain, C, holds the legs, D, through the medium of crank, e, and bar, E, in a position to support the bed; but when the bed, B, is turned up, the crank swings on its pivot, and folds the legs in. In reality the swinging of the legs is only relative. They always stand substantially in the same position with respect to the floor. When the bed, 15, is turned down, the movement of the parts is reversed, and the same instrumentalities cause the legs to swing out to the' position seen in Fig. 1. The strain of the chain, C, keeps the crank lever constantly aligned with that portion of the chain to which it is attached in all positions of the bed proper. This imparts the proper amount of movement to the lever to cause it to hold the legs in their position, perpendicular to the floor, while the bed proper is being raised and lowered. I am aware that it is not new to provide a folding bed with automatic devices whereby the legs are operated by the movement of the bed; but these are constructed differently from that herein described, and are not adapted to a bed suspended in the manner described herein.”</p> <p>Claim 1 reads as follows :</p> <p>“The combination with the standard and bed proper of the crank lever, c, pivotally mounted at its middle to the face of the bed rail, the suspending chain or connector, 0, secured at one end to the bed proper, and at the other end to one end of the said crank lever, the legs, 1), hinged to-the bed proper, and the rod, E, connecting the other end of said crank lever with the legs, D, said parts being respectively arranged as shown, whereby said crank lever is held at all times aligned with that portion of the connector to which it is attached. ”</p> <p>Respondents’ machine was a combination folding bedstead having a wardrobe or bookcase construction in front, and a folding bed in the back. The side rails of the bed frame were supported at the head by a rod or bar on each side, pivoted at the top to the upright casing, and near the bottom to the side rail. Each bar projected downard, beyond the point at which it was pivoted to the rail, and was pivoted at its end to another rod, which was fastened at its opposite end to the foot leg. The foot legs were pivoted to the foot of the bed. As the bed frame was raised, the head swung inward and downward, the ends of the rails having wheels attached to them which rolled downward on a curved track, to the floor, the foot legs being drawn inward, meanwhile, by the rods connecting them with the ends of the suspending bars.</p>

<p>In Equity. Suit by John Hunt against Robert P. Garsed to restrain the infringement of letters patent No. 307,049, of October 21, 1884; granted to complainant.</p>

<p>Patents fob Inventions—Bending Block—Patentable Invention.</p> <p>Letters patent No. 337,006, issued March 2, 1885, to David G. Mahon and others, lor a “bending block, ” consisting of a block or former adapted to the bending or shaping of the loop in guide rods Cor grain-car doors, are void for want of patentable invention.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>In Equity. Suit by the executors of Albert Northrop against Rasner & Dinger for infringement of patent.. The circuit court sustained the patent, but held that it must be strictly construed, and that defendants did not infringe it, and therefore dismissed the bill. 48 Fed. Rep. 449. Complainants appeal.</p>

<p>1. Life Insurance—Application—Presumptions.</p> <p>Where an application for life insurance has been made to an insurance solicitor, but the applicant dies before a policy is issued, and none in fact is ever issued, the presumption is, that there was no contract of insurance, and no purpose to contract, otherwise than by a policy made and delivered upon simultaneous payment of the premium.</p> <p>2. Bvme.</p> <p>This presumption is rendered conclusive whei-e the application provides that, it is agreed and understood that only the home office of the company has authority to determine whether a policy shall issue on the application, and that there shall be no contract until a policy is issued and delivered and the first premium paid, while the applicant is living, and in the same condition of health described in the application.</p> <p>3. Same—Powers op Local Agent.</p> <p>In view of such provisions, there is no room for the application of the rule that the powers of a local agent of a corporation are sometimes measured, not by his actual, but by his apparent, authority; and it is immaterial that such agent agrees to take, or does take, a portion of the first premium in trade from the applicant's store.</p> <p>4. Same—Death op Applicant before Acceptance.</p> <p>The death of the applicant before his application reaches the home office revokes the offer to become insured, as well as destroys the subject of the insurance, and renders the making of the proposed contract impossible.</p> <p>5. Same—Acceptance—Notice.</p> <p>The approval of the application by the company’s medical director before receiving notice of the applicant’s death, even if it amounts to a determination to accept the same, does not complete the contract, when such acceptance is never communicated to the applicant’s personal representative.</p>

In Equity. Bill in the nature of a suit of interpleader brought by John Clafiin and others, composing the firm of H. B. Clafiin & 'Go., against Jessie I. Bennett, administratrix of Milton H. Bennett, deceased, and others.

<p>In Equity. Action by Lizzie E. Ralston against E. W. Sharon and F. G. Newlands, trustees, etc. Judgment for defendants.</p>

<p>1. Eire Insurance—Reformation or Contract—Receivers.</p> <p>A policy of insurance issued to “E. S. Kearney, receiver for Holladay v. Holladay, * * * on their one-lial[ interest in the four-story frame building, ” etc., sufficiently shows the intent-to insure the receiver as the representative of such interest. and no reformation of the policy is required to enable his successor in the receivership to sue thereon.</p> <p>3. Same—Waiver ok Conditions—Time eor Bringing Suit.</p> <p>A delay in suing on an insurance policy for more than the 12 months allowed by the policy is no bar to an action, if the delay was caused by thb promises of the company's agent that the loss would be paid. 47 Fed. Rep. 803, reversed.</p> <p>3. Same—Period op Limitation—Construction of Conditions.</p> <p>A condition in an insurance policy that no suit can be maintained unless brought: within 13 months “after the date of the fire,” should be so construed as to give 12 full months during which the insured has a right to sue; and'when, by another clause, the policy does not become payable until (50 days from the proofs of loss, suit may be brought within 12 months from the expiration of the 60 days. Mc-Kenna, J., dissenting. 47 Eed. Rep. 863, reversed.</p>

<p>At Law. On demurrer to complaint.</p> <p>This was a suit brought by a general agent of a life insurance company against his principal to recover compensation for four years’ services, and for certain outlays and expenditures while conducting the agency, the whole claim amounting to $11,466.66. The-plaintiff asked judgment for the reasonable value of his services during the period in question, although its appeared from the complaint that the services had been rendered under a contract existing between the parties, which provided that the plaintiff should receive as compensation for his services as agent a certain commission on all first and renewal premiums that might be collected on all policies issued under the contract. The defendant demurred generally to the complaint, on the ground that it did not state a cause of action. The terms of the contract and the allegations of the complaint are sufficiently stated in the opinion.</p>

<p>At Law. Action by Dexter, Horton & Go., commenced by attachment, against W. P. Sayward, to recover a balance on account.</p>

<p>Attachment—Dissolution—Contract.</p> <p>A certain firm were creditors of defendant, having supplied him with merchandise and money for operating a sawmill. Thereafter they made a contract with a third person, whereby the latter was to furnish money and supplies to operate the mill in future, and receive and sell the product; paying to the firm §20,000 at the beginning, and $2,500 monthly for a period of 30 months, unless defendant should in the mean time pay the firm the sum due them. The contract contained a stipulation that payment of the sum due the firm should not be enforced during that time against defendant, with the proviso that the agreement should not prevent the firm from taking the necessary steps to preserve the “legal life” of their demand. While this contract was in force the firm brought an action against defendant for the sum due, commencing the same by an attachment on the ground of nonresidence. On demurrer to a plea in abatement, the court held that the stipulation was no bar to the action or its prosecution to judgment, but that the stipulation would have prevented the enforcement thereof by execution or other process, if defendant were a party to the contract or had adopted it, but that his allegations were insufficient to show an adoption. Thereafter defendant moved to discharge the attachment, filing an affidavit showing an adoption of the contract,' and alleging that all payments had been made thereunder until the bringing of the suit, when, by reason of the attachments, the monthly payments were discontinued. Held that, while defendant would have^been entitled to a dissolution of the attachment had he stood strictly upon the co'ntract by causing a continuance of the monthly payments, his failure to do so defeated his right; for the relief sought by him was analogous to the specific performance of a contract, and he was not entitled thereto without showing full performance on his part.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>Action commenced by attachment by the Rainwater-Boogher Hat Company against John Malcolm. Paul Waples intervened, claiming the attached goods under a deed of trust from Malcolm. Judgment and verdict for the intervener, and for defendant Malcolm on the issue as to the attachment. Plaintiff brings error.</p> <p>statement by Caldwell. Circnil Judge:</p> <p>On the 19th day of January, 1891, John Malcolm made and delivered to Paul Waples, the trustee therein named, the following’ instrument:</p> <p>“Dfbant, Indian Tkbbitoby.</p> <p>“Know all men, that 1, John Malcolm, a merchant and doing business at Durant, Indian Territory, in consideration of one dollar to mo in hand paid, have this day and by these presents do bargain, sell, and deliver to Paul Waples, of Denison, the following described personal property, to wit: [Here follows a description of the property, which consisted chiefly of a stock of goods.'| The condition of this conveyance is such, however, lint whereas, 1 atn indebted to the Deeper Hardware Company $2,552.23, and to Waples, Platter & Co. two notes aggregating $745.00, not including interest or attorney’s fees, and to Waterman, Star & Co. $224.95, and to Burton, Dingo & Co. $184.00, and to John R. Carr estate $142.90, and to various other parties named in Schedules A and B, hereto annexed and made a part hereof, in the sums set opposite their respective names: Now, if, at any time within sixty days from this date, I pay off and discharge all of the indebtedness described aforesaid, including interest, then this conveyance shall be null and void, and of no further force or effect, and said goods, merchandise, and property shall be restored to mo. But if I fail to pay all of said indebtedness, with accrued interest, if any, within the sixty days aforesaid, then said Paul Waples, or his successor, shall have the right and it shall be his duty, at the expiration of said sixty days, after first advertising the time, terms, and place of sale for ten days previous to the day of sale in the Denison Daily Herald, to sell all of the aforesaid property then on hand in the front of said storehouse to the highest bidder at public outcry for cash. Pending said sale said Paul Waples shall take exclusive possession of all the aforesaid property in person or by his agents or employes, and the merchandise he shall have the right to sell in due course of business for cash only, it appearing to me that such sales would operate to the benefit of all concerned. The sums of money realized from the sales of aforesaid property, or any portion thereof, whether at public sale or private sale in due course of business pending the public sale, and all such as may he realized at public sale, shall be appropriated as follows: First. Towards the payment of the reasonable expenses of executing this trust, including reasonable compensation to such agents and servants as it may be necessary for said Paul Waples to employ, and reasonable compensation for his own services, not exceeding $75.00 per mouth and board; but it is distinctly understood that whatever attention I give to the property herein conveyed, or whatever assistance I may render the said Paul Waples, shall be voluntary op. my part, and for which I atn to receive nothing. Second. To the payment of the claim of said Deeper Hardware Oo., Waples, Platter & Co., Dingo, Waples & Co.. Waterman, Star & Co., Burton, Dingo & Co., John R. Carr estate in full, including interest. If not enough for that purpose, the same shall be prorated between them. Third. To the payment of the creditors named in Schedule A in full. If not enough for that purpose, the balance shall be prorated between them. Fourth. To the payment of creditors named in Schedule B in full; and, if not enough for that purpose, the balance shall be prorated between them. Fifth. The balance, il' any, shall be paid to me. Witness my hand this the nineteenth day of January, 1891.</p> <p>[Signed] “John Malcolm.”</p> <p>On the (lay the instrument was executed, Waples, the trustee, took actual and exclusive possession of the personal property therein described, which he retained until the same was taken from him in the manner now to be stated. Two days after the execution of this instrument and the delivery of the property to the trustee, the plaintiff in'error, Itainwater-Boogher Hat Company, brought suit by attachment in the United States court in the Indian Territory against John Malcolm; the grantor in said instrument, for $295.75, and caused the marshal to levy the writ of attachment on the personal property so conveyed by Malcolm to Waples. The latter intervened in the suit, and claimed the property as trustee under said instrument. The trial court held that the instrument on its face was a deed of trust in the nature of a mortgage, and so instructed the jury.</p> <p>The court, at the request of the plaintiff in error, instructed the jury—</p> <p>“That where an insolvent debtor executes one or more instruments, by whatsoever name or form, with the intent that they shall operate as a security to his creditor or creditors, thus giving time to enable him to raise funds to meet his debts, then such instrument or instruments constitute a mortgage; but if .the debtor executes one or more instruments, by whatsoever name or form, with the intention, expressed or implied, that the same shall operate as an absolute conveyance of the property to the grantee, to enable him to raise a fund to pay the debts of the grantor, then such instrument or instruments constitute an assignment. The test is this: If the debtor retains title to his property, and the same is delivered actually or conditionally to the grantee merely as a security for his debt pending a day to be fixed by the instrument, within which time the debtor may pay the debt and regain his property, then the instrument or instruments constitute a mortgage; but if the debtor transfers possession to the grantee with power to convert the property forthwith into cash to pay debts, then the instrument is an assignment, although the debtor may have reserved in the instrument the right to pay off the debts, and regain his property, before a final sale thereof.”</p> <p>The court gave other instructions, and among them the following:</p> <p>“The court instructs the jury the form of an instrument, or the name given to it by the parties, is not conclusive of the character of the instrument. A deed absolute in form may be conditional and defeasable in fact, while an instrument with formed defeasance may be intended to be and may operate as an absolute conveyance; the intention of the parties as gathered from the instrument, and all the facts and circumstances surrounding its execution, determines its character. The court instructs the jury that where an insolvent debtor recognizes the fact that he can no longer go on in business, and determines to yield the dominion of bis entire estate, and in execution of that purpose, or with the intent to evade the statutes, transfers all or substantially all of his property to a trustee for the benefit of his creditors, with the intent to part with the title as well as the control of such property, then such instrument or instruments by which such transfer is made will be held to operate as an assignment. The court instructs you that you are the sole judges of the evidence and its effect, and it is for you to say from all the evidence in this cause whether or not the instruments read in evidence were intended to operate as an assignment or mortgage; and in determining this you will take into consideration whether or not the grantor conveyed, all or a greater portion of his property to the grantee; whether or not the debtor included all of his creditors in said instrument; whether the debts thereby secured, or a material portion thereof, had matured; whether the defeasance in the instrument was bona fide, of whether it was a mere device to cover his real intention, together with all the other facts and circumstances connected with the transactions; and from all these facts and circumstances you will, under the law given you by the court, determine by your verdict whether or not the instrument read in evidence was intended to operate as a mortgage or as an assignment.”</p> <p>There was a verdict and judgment for the intervener, and a verdict and judgment for the defendant Malcolm on the issue on the attachment, and the plaintiff sued out this writ of error.</p>

<p>L Contracts—Interpretation—Breach op Conditions.</p> <p>It being proposed to purchase a certain site for a board of trade building in Chicago, subscriptions for that purpose were sought from the owners of neighboring property, on the theory that the value thereof would be largely increased by the erection of such a building. Defendants agreed to pay a certain sum in consideration of the proposal to sell the site, and of the probable inprease in value of the neighboring estates, “ and the further consideration that the said board of trade shall erect and complete said proposed building and occupy the same for its regular sessions within two years from January 1,1881. ” Held, that the latter condition went to the whole promise, and on a breach thereof no suit could be maintained on the contract.</p> <p>2. Same—Quantum Meruit.</p> <p>Defendant was not liable under the common counts on a quantum meruit, for the benefit accruing to it was incidental only, and its liability was determined by the contract alone.</p>

<p>1. Constitutional Law—Due Process—Modifying Verdict.</p> <p>Under an indictment for murder in the first degree, a verdict was returned of “guilty as charged.” The prisoner was accordingly sentenced to death, but the state supreme court, considering- the evidence insufficient to show murder in the first degree, reversed the judgment, and remanded the case, with directions to allow the verdict to stand, and enter a now judgment, adjudging the prisoner guilty of murder in the second degree, which was done. Held, that this second judgment. was void, for it was the jury’s province to determine the degree of the crime, and the prisoner’s confinement thereunder was wit hout due process of law, and in violation of the fourteenth amendment to the constitution of the United States.</p> <p>2. Same. ,</p> <p>The action of the supreme court was not warranted by Hill’s Code Wash. § 1429, which gives it authority to -‘affirm, reverse, or modify any judgment, or order appealed from, ” and.to “ direct the proper judgment or order to be entered, ” for these are merely the powers usually possessed by appellate courts.</p> <p>3. Habeas Corpus—Conviction by State Court.</p> <p>The prisoner was not, however, entitled to be released by a federal court on habeas corpus, for the trial court liad complete jurisdiction of the person and the crime, and he could appeal from the void judgment to the state supremo court, and there present the question involved, and, if relief were then denied, he would be entitled to a writ of error from the supreme court of the United States.</p> <p>4. Criminal Law—“Verdict” and “Judgment” Defined.</p> <p>That which legally differentiates a “verdict” from a “judgment” or “sentence” is found in the fact that the former ascertains the guilt of the accused, while the hitter designates the action of the court in declaring the consequences to the convict of the fact thus ascertained.</p>

In Equity. Action by the United States Credit Company for infringement of patent, originally brought against one Langsdorf, and, upon intervention, the American Indemnity Company was made defendant.

<p>!, Patents fob Inventions—Construction of Claim—Electric-Lighting Gas-Burn BBS.</p> <p>In letters patent No. 230,590, issued July 27, 1886, to George F. Pinkham, as assignee of Jacob P. Tirrell, the claim is for, “in an electric-lighting gas-burner, a magnet for turning the gas cock by one electric impulse, combined with a fixed electrode, a', and a movable electrode, e', normally in contact, and mechanism connecting the armature with the movable electrode, to break the contact between a' and c’ the instant after the gas is turned on, and create a spark for ignition, substantially as described. ” In the drawings, a' designated a platinum point on the fixed arm, and tí a small bent arm normally in contact with the fixed electrode. Meld, that the word “electrode” generally, and especially as used in the patent, means the platinum or other metal points constituting the poles of the circuit. 48 Fed. Rep. 375, affirmed.</p> <p>2. Same—Infringement.</p> <p>The mechanism being otherwise sitbstantially the same, the fact that defendant’s apparatus has a horizontal armature, which moves ill a vertical direction, while the patented apparatus has a vortical armature, which moves in a horizontal direction, does not prevent infringement-. 48 Fed. Rep. 375, affirmed.</p> <p>8. Same—Past Infringements—Equity Jurisdiction;</p> <p>When a patent has been assigned, together with all claims for past infringements, the fact that a person sued by the assignee has not sold any of the in fringing articles since the assignment, and testifies that ho intends to sell no more, is not sufficient to exclude equitable jurisdiction, when it appears that he still has them in stock, and has published a catalogue offering them for sale, and that in his answer he asserts a right to sell them. 48 Fed. Rep. 375, affirmed.</p>

<p>In Equity. Bill by Howard T. Marshall against Fred Packard and others for infringement of letters patent- No. 340,135, issued April 20, 1886, to complainant. The invention relates to boots and shoes “more particularly designed for use in playing lawn tennis, although capable of use for other purposes.”</p> <p>The claims of the patent are as follows:</p> <p>“(1) A boot or shoe having an outer sole permanently secured to the upper and inner sole, and its outer or treading surface made of india rubber or any of its compounds, and provided with independent projections integral with said rubber, and severally separated from each other, and with the surface of the sole exposed between and around them, substantially as described, and for the purpose specified.”</p> <p>“(2) A boot or shoe having an outer sole permanently secured to the upper and inner sole, and its outer or treading surface made of india rubber or any, of its compounds, and provided with independent projections integral with said rubber of conoidical and in planes parallel with said outer surface of circular or substantially circular form, and severally separated from each other, and with the surface of the sole exposed between and around them, substantially as described, and for the purpose specified.”</p>

In Equity. Bill by Jeremiah M. Watson against George Ii. Stevens and others for infringement of letters patent No. 367,484, issued August 2, 1887, to the complainant for the “method” of, and apparatus for, compressing shank stiffeners. The circuit held that the alleged invention consisted only of the mechanical adaptation of well-known machines and processes to a new use, and dismissed the bill. 47 Fed. Rep. 117. Complainant appeals.

In Equity. These are two suits brought by the Johnson Company against the Pacific Rolling Mills Company and the Sutter Street Railway Company, respectively, for infringement of letters patent No. 272,554,-issued February 20, 1883, to Tom L. Johnson for street railroad rails. The circuit court dismissed the bills, holding that there was no infringement, and that the patent was void for want of invention. See 47 Fed.

<p>1. Patents »or Inventions—Invention—Interpretation—Corncob Pipes.</p> <p>Letters patent No. 205,81(i, issued July 9,1878. to Henry Tibbe, claiming “ a smoking pipo made of corncob, in which the interstices are filled with a plastic, self-hardening cement, ” must be interpreted as for corncob pipe in which the exterior interstices of the cob are filled with a self-hardening cement; and though the invention is not of a high order, yet, in view of the generally recognized morit of the article, the patent is valid. ' Manufacturing Co. v. Heincken, 43 Fed. Rep. 75, followed.</p> <p>•2. Samis—Anticipation.</p> <p>The fact that prior to the application the bowls of corncob pipes had been varnished with shellac, unmixed with other substances, does not constitute anticipation.</p> <p>8. Same.</p> <p>Nor is it sufficient to show anticipation that plaster of Paris had been used to fill small cavities or cracks occasionally found in the cob.</p> <p>4. Same—Inehinoemiínt.</p> <p>The patent is not limited to the use of plaster of Paris for the fining material, and it is an infringement to use either a mixture of finely pulverized corncob mixed with cornstarch, and moistened in the act of putting on by saturating tha cob in alcohol, or a mixture of pulverized corncob and shellac.</p>

<p>In Admiralty. Cross libéis to recover damages caused by a collision. Decreed that both vessels were in fault, and that the damages be divided.</p>

<p>1. Kailroad Companies—Municipal Aid—Subscription to Stock—Consolidation.</p> <p>A general statute authorizing the consolidation of railroad companies must he considered a silent factor in a subsequent contract of subscription made by a township to the stock of a railroad company, and a consolidation of such company with another company will not release the township, hut will transfer its obligation to the new company.</p> <p>8. Same—Contract of Subscription—When Completed.</p> <p>In Indiana a mere vote by a township of a given sum in aid of a railroad gives the company no legal right to or interest in the tax, until the same has been levied and collected and a valid contract of subscription made in behalf of the township. 8. Same.</p> <p>If it be conceded that such a vote gives a contingent interest which will pass to a new company by consolidation, such new company cannot assert any claim to the fund when it has not tendered its stock therefor, and has no stock which it may legally tender.</p>

<p>1. Removal of Causes—Local Prejudice—Notice of Motion.</p> <p>Under the “prejudice and local influence” clause,of the act of March 3, 1887, § 3, notice to the adverse party of a motion for the removal of a cause is not jurisdictional, and such motion may be made upon ex parte hearing, though it is the better practice to give notice. Adelbert College v. Toledo, etc., Ry. Co., 47 Fed. Rep. 836, approved.</p> <p>3. Same—Motion to Remand—Counter Affidavits.</p> <p>.Where a petition supported by affidavits for the removal of a cause from a state to a federal court has been legally granted under th.e “prejudice and local influence.” clause of Act March 3,1887, § 3, cl. 4, plaintiff will not he allowed to file counter affidavits denying the existence of local prejudice in support of a motion to remand, when it is not shown that the court was misled or imposed upon in granting the order of removal.</p> <p>'3. Same—Citizenship—Arrangement of Parties.</p> <p>Where one of the defendants is a mere stakeholder or interested on the side of plaintiff, the fact that he is a citizen of the same state with plaintiff will not defeat the right of his codefendant, with whom the real controversy exists, to remove the cause, under the provisions of Act 1887, I 3.</p> <p>4. Patents for Inventions—Assignment—Rescission.</p> <p>The purchaser of a patent right cannot rescind the sale on the ground of false representations that the patent was valid, and did not interfere with any prior patent, where the contract of sale itself contains an express warranty to the same effect, and an engagement on the part of the grantor to defend at his own expense all suits for infringement.</p> <p>'5. Same—False Representations—Matters of Opinion.</p> <p>Representations by the seller of a patent right, that the same is valid and does not interfere with any prior patent, must be regarded as matters of opinion, and not as statements of fact,-unless it appears that there was a prior patent covering the identical invention, and that the seller was aware thereof.</p> <p>6. Same—Rescission—Statu Quo.</p> <p>Where a contract for the sale of certain patent rights is sought to he rescinded, plaintiff must first show that he has done all in his power to place defendant in statu quo by returning the patents.</p> <p>•7. Same—Assignment—State Regulation—Constitutional Law.</p> <p>Rev. St. Ind. 1881, § 6054, requiring a person who sells or offers for sale patents to file with the clei-k of the proper county a duly authenticated copy of the letters patent, and an affidavit that the letters are genuine and have not been revoked or annulled, and that he has a right Jo sell the same, is a legitimate exercise of the police power of the state, and is not in conflict either with Const. U. S. art. 1, § 8, granting to authors and i nvontors the exclusive right to their respective writings and discoveries for limited times, or with the provision of the fourteenth amendment, which forbids the stales to abridge the privileges and immunities of citizens of the United States. Brcehbill v. Randall, 1 N. E. Rep. 362, followed. Castle v. Hutchinson, 25 Fed. Rep. 394, distinguished.</p> <p>8. Constitutional Law—Validity of Statutes—Powers of Courts.</p> <p>A court has no power to adjudge a duly enacted statute unconstitutional simply because it may seem to the court that such legislation does not conform to tho general theory upon which tho government is founded.</p>

<p>At Law.- Action by Joseph C. Small, as receiver of the City National Bank of Lawrenceburgh, against the Westchester Fire Insurance Company on a policy' of insurance. Heard on demurrer to' certain paragraphs of the answer.</p>

<p>Sleeping Cab Company—Liability fob Loss of Money.</p> <p>A sleeping oar company is bound to use reasonable care to protect only so much money carried by a passenger as is necessary and appropriate, in view of his circumstances and condition in life, for his wants and comforts during his contemplated journey, and is not liable if a sum of money carried for another purpose is stolen from him through the negligence of its servants, provided no special circumstances exist which impose on it a peculiar duty with reference to such money.</p>

Petition for a review of a decision of the board of general appraisers ■assessing a duty of 12 cents a pound on certain goat hair. The circuit court reversed such decision, holding that the hair was embraced in the free list. 48 Fed. Rep. 630. The United States appeals.

<p>Petition filed August 19, 1892, by Thomas Eaton and othei’s fora writ of habeas corpus.</p>

<p>At Law. Indictment of It. G. Elliott for mailing a nonmailable postal card.</p>

<p>1.. Introducing Liquor into Indian Country—Lager Beer.</p> <p>Section 3139,Rev. St., provides that “every person who * * * introduces, or attempts to introduce, any spirituous liquors or wine into the Indian country shall be. punishable, ” etc. According to the true sense of the words “ spirituous liquor”, ” as used in this statute, lager beer is comprehended by its terms, and it is spirituous liquor, and its introduction into the Indian country was intended by the statute to be prohibited, and the words “spirituous liquor” are comprehensive enough to embrace lager beer.</p> <p>3. Construction oe Statutes—Penal Laws.</p> <p>It is true there can be no constructive offenses, and penal laws are to be construed strictly; yet tbey are not to be construed so strictly as to defeat the obvious intention of the legislature. The true rule in the construction of all statutes is to search out and follow the true intent of the legislature, and to adopt the sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature. Courts, in the construction of penal statutes, will give them a fair and reasonable construction, according to the legislative intent expressed in the enactment. They will, upon the one hand, refuse to extend the punishment to cases which are not clearly embraced in'them, and, on the other, they will equally refuse, by any mere verbal nicety, forced constructions, or equitable interpretation, to exonerate parties plainly within their scope.</p> <p> (Syllabus by the Court.) </p>

In Equity. Suit by William Straii and others against the National Harrow Company for an injunction to restrain actions and suits for infringement of patents. On demurrer to the bill.

<p>1. Patent* for Inventions—Assignment and License.</p> <p>Letters patont wore granted for a new improvement in school desks. The patentees formed a copartnership for its manufacture, and sale, which, becoming involved in debt, was dissolved. Tbe plant and manufactory were transferred to one of the firm, who agreed to carry on the business and pay off the indebtedness, and relieve the other member from all liability for the firm’s debts. A deed for the plant was executed by the retiring member and placed in escrow, to be delivered on the performance of the condition. There was no mention of the letters patent in the deed or agreement. Belli, that the right to manufacturo and sell the patented improvement continued so long as the condition was complied with, and the, custodian of the deed had a right to deliver it upon full performance of the condition.</p> <p>2. Piidgum. Jurisdiction—“Breach of Contract as to Patents.</p> <p>Where the right to manufacturo and soli a certain patented improvement was dependent on the. performance of a condition contained in the agreement, of transfer, the question of the breach of the condition must be first settled in favor of plaintiff before tlio federal courts can have jurisdiction of an action to recover damages for the unauthorized manufacture and sale of the articles.</p>

<p>Iii Equity. Suit for infringement of patent. Heard on pleadings and proofs.</p>

<p>1. Mortgages—Foreclosure—Trustee and Bondholders.</p> <p>When a mortgage is made to a trustee to secure coupon bonds, the right to bring suit of foreclosure is in the trustee, which rig-ht, however, is not exclusive of the bondholders unless made so by the terms of the deed.</p> <p>2. Same.</p> <p>Where a trustee in a mortgage securing coupon bonds accepts the position of trustee in a subsequent deed of general assignment made by the mortgagor for the benefit of all his creditors, which embraces the pi’operty covered by the mortgage, the respective interests to be represented by the trustee under the deed are conflicting and antagonistic, and such acceptance causes a forfeiture of any preference the trustee might otherwise have had, as against the bondholders, to bring suit to foreclose the mortgage.</p> <p>8. Saiik—Rowers, op Boxdhdi.dkrs.</p> <p>A mortgage made to a trustee to secure coupon bonds provided that, in case of nonpayment of any one of the bonds or coupons for 80 days after maturity and payment demanded, it would be lawful for one fifth or more of the holders of the bonds to cause the principal to be at once matured, and to call on the trustee to foreclose the mortgage. Held, that- tho bondholders alone were to exercise the op tion. and the trustee need not join with them therein.</p>

<p>1. TRADE-MARKS—W HAT WJIJ. BE PROTECTED—«TAR.</p> <p>The word “Star, ” and the symbol of a star, adopted and used during many years by manufacturers of shirts, waists, underwear, and furnishing goods, to mark and designate their goods, in combination with the words “Star Shirts,” and other words describing the articles, so that the goods become well known by such mark, and by the designation of “Star Goods, ” constitute a valid trade-mark.</p> <p>2. Same—Iktringement.</p> <p>Such trade-mark is infringed by marking similar goods with a star and crescent, making the star so prominent that such goods may also ho designated as “ Star Goods, ” and purchasers may be readily deceived into the belief that the goods were made by the proprietors of the trade-mark, even though the star so used is not of the color usually employed for the trade-mark, and is a five-pointed star, while that in the trade-mark is uniformly six-pointed.</p> <p>8. Same—Injua’Citox.</p> <p>The facts that the infringer of a trade-mark, on being notified of his infringement, told his customers to erase the trade-marks from their goods, and had since gone out of business, are not ground for denying an injunction to the true owner of the trade-mark, where every step of the suit for an injunction and accounting has been contested by the infringer, and he has put the complainants to the expense of proving every fact necessary to establish their right and his infringement.</p>

<p>In Equity. Bill by Gardiner S. Hutchinson, Henry B. Pierce, Ira Cole, and Thomas S. Morison against George H. Covert for infringement of trade-mark, praying an injunction and accounting.</p>

In Equity. Bill by the city of New Orleans against Ruffin B. Paine, a deputy surveyor, to enjoin the obliteration of an old survey and the making of a new one directed by the secretary of the interior. An injunction was denied and a temporary restraining order dissolved. 49 Red. Rep. 12. Complainant appeals.

<p>In Equity. Suit by the Union Loan & Trust Company against the Southern California Motor Road Company to foreclose a mortgage.</p>

In Equity. Bill by the city of Carlsbad and others against S. Tibbetts and others for infringement of trade-marks. Heard on demurrer to amended bill.

<p>1-, RAiléoad Comeanies—Inteksection of Road—Res Judicata.</p> <p>The decision of the highest court in the state of New Jersey as to the right of one railroad company to cross the lands of another railroad company in the same state is conclusive, and cannot be reviewed by the United States circuit court in a suit between the same parties, involving the same subject-matter, though a federal question' be involved.</p> <p>3. Same—Injunction—Dismissal-of Bill—Practice.</p> <p>motion to dismiss a bill for an injunction filled by the proprietor company will not, however, be granted, though the injunction be refused, since the bill may be available to complainant to regulate the mutual use of the premises by the parties.</p>

<p>. 1. Specific Performance—Requisites of Contract—Evidence.</p> <p>Specific performance of an alleged oral contract to convey land, when the proctf of such contract is vague, uncertain, and fragmentary, will not be enforced 30 years after the alleged date thereof, and when the relation of the parties and surrounding circumstances rebut the presumption of the existence of such contract.</p> <p>3. Same—When Decreed—Discretion of Court.</p> <p>Specific performance of a contract for the sale of land rests in the discretion of the court, and will not be decreed when it would work a hardship or injustice to either party. The parties, in such a case, may be left to their remedies at law.</p> <p>3. Same—Improvements—Equities.</p> <p>Defendant bought a farm in order to secure a home for her indigent brother and his family, taking the deed in her own name. He took possession, and lived thereon for many years, until his death, making some improvements, but in the mean time defendant advanced him money far exceeding the value thereof. Held, in a suit by his widow for specific performance of an alleged oral contract to sell the farm to deceased, that there was no equity arising in complainant’s favor because of the improvements.</p> <p>4. Vendor and Purchaser—The Contract—Proposition and Acceptance.</p> <p>Where an offer of sale of land stands for 30 years, and until after the death of , the party to whom it is made, without compliance with its terms, the widow and sole devisee of such party cannot accept the proposition, and offer to perform it, and thereby make a contract binding upon the proposer.</p>

<p>IiACHks—"What Constitutes.</p> <p>In a bill to have a deed declared a mortgage and to be allowed to redeem, complainant alleged that she was the owner in fee of certain lands, subject to three mortgage liens, aggregating 8185,000, two of which had been foreclosed; that prior to the decree of foreclosure defendant purchased all of said liens, “as a moans of securing title to said property and for no other purpose; ” that complainant was then in indigent circumstances, and defendant, well knowing the same, took advantage thereof, and by means of said mortgage indebtedness induced her to sell him her equity of redemption, and to make him a deed of said lands for §19,000, whereas they were in fact worth 845,000. The bill showed that nearly 10 years had elapsed since the conveyance, but alleged that since the sale defendant hail been absent from the state “for a period aggregating four years.” Held that, whether the conveyance be regarded as a deed or mortgage, complainant, in tha absence of excuse for the delay, must be deemed guilty of laches. 47 Fed. B,ep. 761, affirmed.</p>

<p>Error to the Circuit Court of the United States for the Southern District of Ohio, Western Division.</p> <p>Action by the John Shillito Company against David W. McClung, as surveyor of customs, to recover duties paid. A.demurrer to the second amended reply was sustained, (45 Fed. Rep. 7-78,) and thereupon the plaintiff’s petition was dismissed, with costs. Plaintiff brings error.</p>

<p>At Law. Libel to enforce a forfeiture under revenue laws.</p>

<p>Application by the United States, at the relation of Samuel C. Davis, for a writ of mandamus against Knox county and others, to compel the levy of a tax to pay a certain judgment. Motion to quash return.</p>

Application by the United States, on the relation of Arthur C. Huidc-koper, for a writ of mandamus against the country court of Macon county.

At Law. Action by the Insurance Company of the State of Pennsylvania against the Continental Insurance Company of the City of New York to recover $33,105, with interest. Defendant in its answer, by way of counterclaim, demanded judgment against plaintiff for $5,252.88, with interest. Verdict for plaintiff in the sum of $16,420.73, and motion for new trial denied. .Judgment for said amount, and for interest thereon, the whole amounting to $18,732.20. Defendant brings error.

<p>L Assignment von Benefit of Creditors—Validity—Provision for Attorneys' Fees.</p> <p>An assignment in Mississippi for the benefit of creditors empowered the assignee, “for the proper execution of the trust, ” to employ competent attorneys “to defend and protect the trust created herein, and this assignment, if the same be assailed. ” The rule announced by the state supreme court (Mattison v. Judd, 59 Miss. 99) is that such a provision avoids the assignment if intended to provide payment for services to be rendered after the conveyance is executed and recorded, and. for which the grantors are liable; but that it does not avoid the deed, if it is only intended to apply to services rendered to the assignee in defending the assignment if attacked. Held that, on an issue as to the validity of an attachment issued on the ground that the assignment was fraudulent in law, the court could not declare that the above provision rendered the assignment void, and the question as to the purpose of the assignor was for the jury.</p> <p>t. Same—Time of Filing Claims.</p> <p>An assignment for the benefit of creditors, after directing that creditors named in a certain schedule should be preferred in their order, further directed that all the creditors named in a certain other schedule should be paid ratably, and that, if the names of any creditors had been omitted from the latter schedule, such accidental omission should not debar them from sharing in the distribution, but that such creditors, if their claims were unsecured by collaterals, or otherwise, should be entitled to share in the distribution “upon proper presentation of their accounts. ” Held, that the failure to fix any definite time within which such omitted creditors must file their claims rendered the assignment void.</p> <p>3. Same—Exclusion of Secured Creditors.</p> <p>The fact that omitted creditors, whose debts were secured by collaterals or otherwise, were excluded from the benefit of the assignment, was also fatal to its validity; for, in a general assignment, creditors holding security cannot be entirely shut out, but a reasonable time must be fixed within which they may come forward and account for their securities and present the balance of their claims, or surrender the securities and share in any surplus fund which may remain.</p> <p>A Attachment—Fraudulent Assignment—Fictitious Debts.</p> <p>In Mississippi a general assignment for the benefit of creditors, which provides for the payment of fictitious or simulated debts, is fraudulent and void; and on an issue as to the validity of an attachment sought to be sustained on the ground that the debtor has made a fraudulent assignment, the question as to whether any of the debts provided for are simulated is for the jury to determine.</p> <p>5. Same—Knowledge of Grantor.</p> <p>When an assignment provides for the payment of a simulated debt, the presumption is that the grantor knew it, if the debt was created by him; but the presumption is rebuttable, and, on an issue as to the validity of an attachment sought to be sustained on the ground that the debtor has made a fraudulent assignment, it is a question for the jury whether the grantor knew, or had reasonable cause to know, that the debt was fictitious.</p> <p>8. Same—Province of Court and Jury.</p> <p>Where an attachment is sought to be sustained on the ground that the debtor has made an assignment which is fraudulent in law, the fact that the assignment is, on its face, constructively fraudulent and void, will not warrant the court in directing a verdict for the attaching creditor, when it appears that the attachment was in fact issued before the making of the assignment; for, to sustain the attachment, it is necessary for the jury to find that, at the time the attachment was issued, defendant contemplated making the assignment.</p>

<p>At Law. Action by the United States against Henry Wolters and others. Heard on the application of the clerk of the court for the distribution money paid into the registry of the court in satisfaction of a judgment in favor of the government.</p>

<p>In Bankruptcy. Sur exceptions to the register’s report. The former opinions of the court upon questions arising in the same proceedings are reported in 39 Fed. Rep. 193; 46 Fed. Rep. 850; 47 Fed. Rep. 438; 48 Fed. Rep. 161.</p>

<p>1. Patents fok Inventions—Extent of Claims—Glass-Melting Tanks.</p> <p>Letters patent No. 261,051, issued July 11,1882, to C. W. Siemens, as assignee of Frederick Siemens, cover “a tank for the continuous melting of glass, having gas and air ports, and of the depth herein described, for the purpose of forming, below the upper fluid portion of the metal, a layer of metal in a semifluid or partially solid condition, as and for the purposes described. ” In his specifications the applicant states that “in the fusion of window or other white glass there is a continuous descending and ascending movement of the particles throughout the mass, as is proved by the wearing away of the bottoms of shallow tanks. The advantage to be obtained from increasing the depth of the tanks will be the formation of a layer of chilled glass at the bottom, at which point the movement of particles ceases, whereby the bottom blocks will be protected from wear, the presence of stone in the glass avoided, and a larger proportion of first-quality glass be produced. ” Held, that the increased depth of the tank was only for the purposes here specified, and did not, and was not intended to, provide for the alleged discovery of the so-called “vertical fining” of the glass.</p> <p>2. Same—Novelty—Prior Art.</p> <p>The fluid layer and its function, as well as the ascending and descending motion of the particles, were known in the prior state of the art, as shown in'the Granger patent, (1872,) No. 80,623; the Leuffgen patent, (1870,) No. 103,208; and the following foreign patents to C. W. Siemens: English, (1868,) No. 1,172; French, (1876,) No. 110,125; Italian, (1877.)</p> <p>3. Same—Anticipation.</p> <p>The patent was anticipated by the Belgian patent of 1877 to C. W. Siemens, which not only showed a tank exceeding IS inches in depth, but met every-other requirement of the claim and specifications.</p> <p>4. Same—Infringement—Burden of Proof.</p> <p>The burden is on complainants to prove that defendant’s furnaces perform the functions covered by the patent, and it is insufficient to show that theoretically they should do so, or merely to meet defendant’s proofs as to the actual fact.</p>

<p>In Equity. Suit by the Bromley Bros. Carpet Company against John Stewart and George Stewart, trading as John Stewart & Son, to restrain an infringement of- patent No. 418,349, granted December 31, 1889, to Thomas Bromley, Jr., for a power loom.</p>

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

<p>COIAISION BETWEEN Steamers.</p> <p>A steamboat approaching her wharf is bound to observe the signal of another steamer backing out from another wharf, and to note the visible effect of the tide on the latter, and whether she has sufficient steerageway for handy control or speedy movement, before shaping and holding her course directly towards her, even though the former had given a lawful signal, by obeying which the latter, under ordinary circumstances, would have cleared.</p>

In Equity. Bill by the Nashua & Lowell Railroad Corporation against the Boston & Lowell Railroad Corporation for an accounting. Decree for complainant for $29,676.41, and interest amounting to $3,363.32. Complainant appeals from the part of the decree relating to interest.

ín Error to the Circuit Court of the United States for the Northern District of Florida. Action in ejectment by Caleb W. Loring against the Florida Southern Bailroad Company. Verdict and judgment for plaintiff. Defendant brings error.

Action by Lula Eason against the East Tennessee, Virginia & Georgia Railway Company for the killing of a minor child. Verdict and judgment for defendant. Plaintiff brings error.

. Action by the Russia Cement Company against The LePage Company to.recover damages for the wrongful use of the name “LePage” in connection with glues manufactured by defendant. The court ruled that defendant’s use of the name was a violation of plaintiff’s rights, and that the only question for the jury was the amount of the damages. A verdict was returned for $8,000, and judgment entered thereon. Defendant brings error.

In Admiralty. Libel by the Bedouin Steam Navigation Company, Limited, against the steamship City of Macon, (the New England & Savannah Steamship Company, claimant,) for collision with the steamship Nedjed. The district court held that the Nedjed alone was in fault, and dismissed the libel. 47 Fed. Rep. 919. Her owner appeals.

In Admiralty. Libel by Albert Dennett against the steamship Main to recover for services rendered as a stevedore. The libel was dismissed by the district court, aDd libelant appeals.

<p>Salvage—Compensation—Contbact.</p> <p>An award by the district court of salvage equal to the amount contracted for by the master will not be disturbed merely because it seems large in proportion to the value of the property saved, when it appears that the contract was entered into after full deliberation, and with opportunity to procure other aid, and that it seemed fair and just at the time it was made. 49 Fed. Rep. 662, affirmed.</p>