Volume 52 — Federal Reporter

<p>1. Res Judicata—Injunction—Appeal.</p> <p>Both members of a partnership .being dead, the widow of the partner who first died had set off to her a dower interest in the partnership lands, and afterwards sued the heir at law of the other partner to recover back rents on her dower interest. The heir at law thereupon brought a bill to enjoin this suit and for an accounting of the partnership affairs, which bill was dismissed on demurrer. The heir at law appealed to the supreme court, notwithstanding which the widow prosecuted her suit for rents to a final decree, and the same was paid by the heir at law without compulsory process. Thereafter the supreme court reversed the decree appealed from, holding that the widow was not entitled to the rents, and remanded the case for further proceedings. Held, that neither the decree in the widow’s suit for rents nor the fact of its voluntary payment was a bar to the heir at law’s right under her bill to an accounting of the rents thus paid.</p> <p>2. Same.</p> <p>Nor was her right affected by the fact that, before sustaining the demurrers and dismissing the bill for injunction and accounting, the trial court offered to retain the same for the purpose of an accounting, which offer was declined by the heir at law.</p> <p>3. Bill op Review—Want op Equity.</p> <p>A bill to review a decree rendered in the heir at law’s suit¡ which, among other things, ordered the restoration of the rents collected in the widow’s suit, was without equity, since the debts of the partnership were entitled to precedence over the widow’s dower right in the partnership property, and since, therefore, the widow had obtained, as a result of the prior proceedings, a sum of money which in equity and good conscience she was not entitled to retain.</p> <p>4. Same—Citation on Appeal—Service.</p> <p>An allegation in the bill of review that the widow was not a party to the appeal to the supreme court, because no citation was ever served upon her or any agent or attorney of hers, was immaterial, it appearing from the record that this fact was not alleged in the pleadings filed by her in the main case after the cause was remanded, and that the citation was in fact served upon her attorney of record in that case.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>In Equity. Bill by Benjamin S. Atwood against Charles C. Richmond for infringement of a patent. The circuit court sustained the patent, found infringement, and entered a decree for perpetual injunction and for an accounting. 47 Fed. Rep. 219. Defendant appealed. The circuit court of appeals, after a hearing on the merits, reversed the decree, holding that the patent was void for want of novelty, or that, if sustainable at all, defendant had not infringed it. 48 Fed. Rep. 910. Thereafter the appellee filed a motion for a rehearing, and a petition that the question as to the construction of the patent should be certified to the supreme court. At the hearing of this motion the court raised the question as to its jurisdiction to entertain an appeal at the stage which the case had reached below, and as to the form of its mandate, to wit, whether it should simply order that the decree for an injunction be reversed, or should direct that the bill be dismissed; and upon these questions leave was given the appellant to file a brief. Reversed, injunction vacated, and bill ordered dismissed.</p>

<p>1. Municipal Corporations—Contracts—Franchises.</p> <p>The charter of the city of Oconto conferred the powers belonging to municipal corporations at common law, and contained the “general welfare” clause usual in city charters, (Laws Wis. 1882, c. 56.) The general law conferring on cities the power to legislate upon the construction and operation of waterworks had not been adopted by the city, so as to derive any powers therefrom. Held, that the city had no power to confer a franchise for owning and operating waterworks, and for other things collateral thereto.</p> <p>2. Corporations—Bonds—Validity—When “Issued.”</p> <p>A water company put forth bonds of the par value of $125,000, depositing $25,000 of them with a trust company under a deed of trust, and the other $100,000 in trust as collateral for an advance of $40,000. Thereafter advances of $27,000 were contracted for, and in part made. Held, that the bonds, although pledged and not sold, were “issued,” within the meaning of Rev. St. Wis. § 1753, which declares void any bonds issued by a corporation, except for money actually received, egual to 75 per cent, of their par value; and the same were not enforceable in the hands of the pledgee.</p>

In Equity. Bill by the Brush Swan Electric Light Company of New England against the Brush Electric Company for specific performance of a contract. This relief was denied by the circuit court on the ground that the contracts were of such a nature as to render specific performance impracticable, but the bill was retained for the purposes of injunction and an accounting, which were accordingly decreed. 41 Fed. Rep. 163. A rehearing was subsequently denied. 43 Fed. Rep. 225.

<p>In Equity. Bill by the National Foundry & Pipe Works, Limited, to foreclose a lien upon the plant and premises of the Oconto Water Company. Decree directing a sale of the plant, premises, and franchises.</p>

<p>1. Banks and Banking—Deposits—County Funds.</p> <p>Where the treasurer and tax collector of a county, without authority of law, deposit county moneys In a bank, and receive certificates of deposit marked “ Special, ” the title to the moneys does not pass, although there is no agreement that the identical bills shall be returned, and they are mixed with the bank’s general funds, and the county is entitled to recover an equal amount from a receiver of the bank prior to the payment of the general depositors.</p> <p>2. Same—Equitable Remedies.</p> <p>The county’s rights in such case are enforceable only by a bill in equity, for there is no privity of contract between it and the bank. National Bank v. Insurance Co., 104 U. S. 54, followed.</p>

<p>1. Railroad Companies—Mortgages—Authority op President—Estoppel.</p> <p>When the president of a company chartered by the state of Florida for the construction of a railroad, under the authorization of the board of directors, mortgages the company’s land, and the money, which is loaned in good faith, is used by the officers of the company for company purposes, and the validity of the transaction is recognized by payment of interest, and the transaction is brought to the notice of the directors, both actually and by recordation of the deeds, and there is no repudiation of the mortgage or denial of the authority of the president in the premises, a subsequent resolution by part of the directors, made long afterwards, disapproving and annulling the president’s authority, does not invalidate the transaction or prevent a foreclosure, since the company tacitly ratified the act of the president, by not promptly disaffirming the transaction.</p> <p>2. Same—Mortgage op Land Grant—Title.</p> <p>The land was granted to the company by the state of Florida, to which it had been donated under the swamp and overflowed lands act, (Act Cong. Sept. 28, 1850.) The mortgage conveyed all and any interest the company might have in the land. Field, that if the company did not have a legal title to the land, by reason of the absence of a patent in the original grant to the state, it had a full equitable title, and the mortgage passed whatever title the company had.</p> <p>8. Same—Acts op Secretary de Facto—Estoppel.</p> <p>When an assistant secretary of a railroad company acts as the secretary.in fact, transacting the business of the company, with the knowledge of the directors, and, as such de facto secretary, attaches the seals of the company to mortgages executed by the company on its land, it is not necessary for the mortgagee, in establishing the validity of the mortgages, to show that he was an assistant secretary de jure.</p> <p>4. Same—Construction Contract—Validity—Fraud.</p> <p>The mere fact that the president of a railroad company, unknown to the other directors, is interested in a construction contract let by the company, does not make the contract void, if it is otherwise free from fraud.</p>

<p>Appeal from the United States Circuit Court for the Eastern District ©f Louisiana.</p> <p>In Equity. Bill by James W. Peake, a judgment creditor of the drainage fund of New Orleans, in his own behalf, as well as in behalf of other parties similarly situated, against the city, as trustee of the fund, to close and liquidate the trust. A receiver was appointed to sell the property belonging to the fund, and the court below confirmed the sales made by him. The city appeals. Affirmed.</p> <p>For decisions in prior litigation between the same parties, see 38 Fed. Rep. 779, and 11 Sup. Ct. Rep. 541.</p>

<p>1. Sale—Rescission—Fraudulent Representations.</p> <p>A large tract of land was sold at an agreed price, a certain portion to be paid in cash and balance to be secured by mortgage. Subsequently the seller was induced, by false representations in regard to the solvency of a bank, to accept stock in it as part payment of the balance of the purchase price. The purchaser, who was president of the bank, organized a joint-stock company, and conveyed the land to it, taking mortgage bonds in payment, which were delivered to the bank in consideration of prior indebtedness to it.' The bank and the intermediate parties knew of the fraudulent transaction. The bank soon after was declared insolvent, and a receiver appointed. Held that, since the bank was the real vendor of the stock, the seller was entitled to a complete rescission of the fraudulent sale.</p> <p>2. Same—Sale op Rank Stock—Rights op Creditors.</p> <p>When bank stock is fraudulently sold, and the proceeds are turned over to the bank, and a receiver is subsequently appointed, no creditor of the bank can be said to have any such interest in the proceeds as would prevent restitution and a rescission of the sale; and such appointment of a receiver does not in itself show that there are creditors of the bank who had prior equities.</p> <p>3. Same.</p> <p>A decision rescinding the sale, so as to restore to the purchaser the proceeds of the stock fraudulently sold, does not necessarily involve a decision that the purchaser is not liable to an assessment on the stock, if necessary to pay debts.</p>

In Equity. Statement by Parker, District Judge: This is a suit brought by the United States for the purpose of procuring the cancellation of two certain patents issued by the government to the defendants to certain lands named in the complaint.

<p>1. Trial—Instructions—Directing Verdict.</p> <p>If a case is one which fairly depends upon the effect or weight of evidence, a court has no right to withdraw the case from the jury, unless the testimony he of such a conclusive character as to compel it, in the exercise of a sound judicial discretion, to set aside a verdict in opposition to it. The court may direct a verdict for the defendant, if the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such verdict, if returned, must be set aside.</p> <p>2. Master and Servant—Contributory Negligence—Dangerous Premises—Notice.</p> <p>A yard master in the service of a railroad company is not required to quit the service of such company, or fail or refuse to perform the work devolving upon him, although he knew of the dangerous condition of the company’s car yard, provided the same was not so far dangerous as to threaten immediate injury, or the condition of the car yard was not so dangerous but that the yard master, as a reasonably prudent man, could come to a well-grounded conclusion that he could safely perform his duty for the benefit of his employer. If the above conditions exist, and the yard master is killed in the discharge of his duty, without contributory fault on his part, his wife and children may recover of the company.</p> <p>8. Federal Courts—Directing Special Findings—Following State Statutes.</p> <p>The federal courts are not bound by a clause in the Code of a state with regard to the duty of courts to direct a jury to make special findings.</p> <p>4. Excessive Damages.</p> <p>A court cannot interfere with a verdict of a jury on the ground of excessive damages, unless the damages are so excessive as to lead to the conclusion that the same is the fruit of passion or prejudice. To warrant a conclusion of that kind, the damages must be shocking to the sense of justice, or it must be manifest that the same are unreasonably, large.</p>

<p>Deeds—Execution and Acknowledgment—Effacement of Seals.</p> <p>Deeds executed in Massachusetts in 1800 and 183S conveying land in Virginia, the signing and ensealing whereof were acknowledged and verified according to the registry acts then in force, (Acts Va. Deo. 1792, and Feb. 1819,) and duly admitted to record in pursuance thereof, must he held to have passed the legal title, although no seals appear upon the deeds at this date; for it will be presumed that the waxen seals then in use, and which were liable to be effaced, were properly affixed.</p>

<p>Carriers—Ejection of Passenger—Measure of Damages.</p> <p>In an action by a passenger against a railroad for being put off at K., nine miles from her destination, because, under the rules of the company, the train did not stop at the latter place, the court, without objection, gave an instruction which substantially declared the company’s liability; and further stated that the measure of damages was the price of the ticket she purchased next morning from K. to her destination, and the increased damage suffered by reason of being left at K., instead of at some earlier place, provided that the conductor, by promptly informing her that the train did not stop at her destination, would have enabled her to stop at some other station, where she would have suffered less than she suffered at K. Meld, that the rule as to the measure of damages was favorable to the company, as authorizing a lessening of the actual damages suffered, and the instruction was not objectionable as stating a conjectural or hypothetical case.</p>

<p>1. Pleadings—Amendment—Verification.</p> <p>In a suit in a federal court on certain notes, pleas filed alleging want of consideration, which are verified hy an officer authorized under Code Ga. § 3150, to administer oaths, to wit, a justice of the peace, and afterwards sworn to at the trial before the clerk of the court and by the direction of the court, are sufficiently verified to make an issuable defense; and such verification before a clerk at the trial is allowable under Code Ga. § 3179 et seq., as well as by Rev. St. U. S. § 951, providing that the court “may at any time permit either party to amend any defect in process or pleading” on certain conditions.</p> <p>2. Negotiable Instruments—Bona fide Holders—Notice op Equities.</p> <p>Where a bank takes three negotiable notes before maturity as collateral-for money loaned, together with three other past-due protested notes by the same makers and indorsers, there being nothing on the face of the notes to indicate that they were given for the same consideration or formed part of one transaction, mere knowledge of the dishonor of the past-due notes will not operate as notice to the bank that the three notes not yet duo were tainted by defective consideration, or of any equities existing between the original parties thereto, and the bank is entitled to recover the whole of the indebtedness of the borrower to it in a suit on such notes.</p> <p>3. Same—Commercial Law—State Decisions.</p> <p>When a bank advances money on certain negotiable notes, some of which are past due, the question of notice of any equities existing between the original parties, arising from knowledge on part of the bank of such overdue notes, is not a question of the construction of a contract, which is usually determined by the locus contractus, but is governed by the rule of commercial law which affects subsequent holders in the matter of notice of prior equities, and not by the statutes, rules, or decisions of the particular state where such notes were executed.</p>

At Law. Petition by Louis H. Greene for a writ of habeas corpus to release him from the custody of the United States marshal, by whom he is held under a warrant of a United States commissioner, awaiting an order for hi3 removal to the district of Massachusetts to answer an indictment for an alleged violation of the act of July 2, 1890, relating tp monopolies. Prisoner discharged.

<p>1. Counterfeiting — Notes in the Similitude op Treasury or National Bank Notes.</p> <p>The fact that a note was originally issued by a duly-authorized state bank, and that it was a legal note at the time of its issuance, does not, after it has become utterly worthless by the insolvency of the bank, exempt the holder of it from prosecution, under section 5430 of the Revised Statutes, if he has it in possession with intent to sell or otherwise use it, and pass it as a genuine note or obligation of the United States.</p> <p>2. Same—Province op the Court and Jury.</p> <p>The question as to the similitude of such note to the treasury notes or other obligations of the United States is a question to be decided by the jury, as are also the facts as to whether the defendant had the note in question in his possession with intent to sell or otherwise use the same, and whether he knew at the time that said note was worthless.</p>

Application by H. B. Claflin Company for a review of a decision by the board of general appraisers, as to the classification of certain imported hemstitched cotton handkerchiefs. The collector had held that the goods were “hemmed handkerchiefs,” within the meaning of the act of March 3,1883, Schedule I, par. 325, and accordingly assessed a duty of 40 per cent, ad valorem.

In Equity. Bill by the Indurated Fibre Industries Company and the Builders’ Insulating Tube Company against James J. Grace, Charles S. Pinkham, and Eugene W. Godfrey, for infringement of letters patent No. 273,869, issued March 13, 1883, to the Underground Electric Cable Company, as assignee by mesne assignments of William and Timothy G. McMahon, for certain improvements in underground cables. Heard on demurrer to the bill. Demurrer overruled.

<p>1. Patents for Inventions—Novelty—Construction op Claims—Secondary Batteries.</p> <p>Claims 1, 2, and 3 of letters patent No. 337,299, issued March 2, 1886, to Charles F. Brush, for an improvement in secondary batteries consisting in a plate or element having active or absorptive material primarily and mechanically applied thereto or combined therewith, cannot be invalidated on the theory that the term “secondary battery” was used therein in its older and looser sense, and included batteries which were sometimes primary and sometimes secondary according to the method of their use, for the distinction between primary and secondary batteries is definitely marked and recognized, and the Brush invention was professedly an improvement over the Plante battery, which was of the purely secondary class.</p> <p>8. Same—Definitions—“Primary” and “Secondary”Batteries.</p> <p>A “secondary battery” is one which has no original power of developing a current, and is active only when rendered so by sending a current through it from an independent source of electrical energy, while a “primary battery” is one which is active in virtue of the materials of which it is made.</p> <p>B. Same—Priority op Invention—Foreign Patents.</p> <p>The invention described in letters patent No. 252,002, issued January 3,1882, to C. A. Faure, a citizen of France, for an improvement in secondary batteries, having been conceived by the patentee in France, and- being covered by a French patent issued October 20, 1880, he cannot claim the invention in this country prior to the latter date, as against a citizen of the United States who, being an original inventor, subsequently received an American patent.</p> <p>4. Same—Limitation op Claim—Disclaimer.</p> <p>The owner of the Faure patent in this country having, as the result of certain litigation, filed a disclaimer limiting his invention to an electrode coated with a mechanically applied layer of lead, or like insoluble substance, placed upon the supporting plate in the form of a paste, paint, or cement, prior to immersion in the battery fluid, any further discussion of the question of priority of invention between Faure and Brush is now useless.</p> <p>5. Same—Anticipation.</p> <p>Brush’s patent 337,299 was not anticipated by the patent of April 3, 1866, to George G. Percival for secondary battery electrodes consisting of cells filled with coarse conducting powder, and divided by a porous partition; or by the patent of April 23, 1867, to Georges L. Led anche, for a “polarization apparatus or electrical accumulator, ” consisting of two plates of graphite or unoxidizable metal buried in two flasks of powdered graphite moistened with a liquid which is a good conductor, such as potash water.</p> <p>6. Same—Two Patents eor Same Invention.</p> <p>The Brush patents Nos. 337,298 and 337,299 were issued on the same date, (March 2, 1886;) the difference between them was the difference between “an absorptive substance, or an absorptive substance adapted to be transformed into active material, ” on the one hand, and-“active material, or material adapted to become active, ” on the other. Held that, in view of the admitted fact that all distinction between the two disappears the moment a battery so constructed is charged or discharged, there was no substantial difference, and the two patents were for the same invention.</p> <p>7. Same—Priority—Presumptions from Patent Numbers.</p> <p>These patents were issued on the same day to the same person, and the evidence showed that it would be impossible ever to ascertain which first received the official signature that rendered it a valid deed. Held, that the mere fact that one had an earlier number was no proof of priority, for it merely signified that the patent office followed the alphabetical order of Brush’s contemporaneous applications, and hence that one could not be held an anticipation of the other.</p> <p>3. Same—Election by Patentee.</p> <p>Under these circumstances the owner of both patents was entitled to elect upon which one he would rest his monopoly; but having elected to rely upon No. 337,-299, it became improper that No. 337,298 should be left in a condition in which it could be assigned and sold, and a final decree should be framed, which, in connection with its finding of the validity of No. 337,299, should declare 337,298 inoperative. and prohibit its assignment or sale.</p> <p>9. Same—Anticipation.</p> <p>The Brush patent No. 337,399 was not invalidated by patents 260,653 and 270,155, issued to him prior to 1886, for improvements subsidiary to the main invention, for their subsidiary character appears on the face of such patents, although, owing to delays in the patent office, they were issued before the patent for the main invention. 47 Fed. Rep. 48, affirmed.</p> <p>10. Same—Foreign Patent—Effect op Expiration on American Patent.</p> <p>The Brush patents No. 337,299, and No. 206,090 did not expire with the Italian patent issued to him August 8, 1882; for division D of the Italian patent was designed to cover, not the main invention, but Brush’s invention made in 1882 of plates specially prepared for the purpose of more rapidly forming active material thereon by the Plante method of electrical disintegration. 47 Fed. Rep. 48, affirmed.</p> <p>11. Same—Limitation op Claim.</p> <p>The Brush patent No. 266,090 must be limited to electrodes on which the active material is made by applying the Plante method of electrical disintegration, or other “forming” process, to plates which are ribbed, honeycombed, studded, or equivalently prepared. 47 Fed. Rep. 48, modified.</p> <p>12. Same—Enlargement op Claims—Overlapping Patents.</p> <p>Where an inventor makes a generic invention and also subordinate specific inventions, and presents the whole series in a set of contemporaneous applications, he cannot be allowed, by subsequent amendments couched in general terms, to enlarge the boundaries of each invention so as to extend each into the borders of another, and thus obtain a series of overlapping patents.</p>

<p>In Equity. Bill by the Ironclad Manufacturing Company against the Jacob J. Vollrath Manufacturing Company, Limited, and others, for infringement of a patent. On motion for a preliminary injunction. Denied.</p>

<p>1. Patents for Inventions—Infringement—Filtering Compound.</p> <p>Letters patent No. 336,385, issued February 16,1886, to Charles Edward Chamberland, is for a filtering compound composed of pipe clay, or other suitable clay, diluted with water, and then mixed with porcelain earth or its equivalent, the latter being first baked and then reduced to a fine powder; the proportions being about 20 to 40 per cent, of the clay to 60 to 80 of the earth. Held, on motion for a preliminary-injunction, that it was an infringement to use a compound of kaolin clay, or porcelain earth, and finely ground silex, in about the proportions of 30 to 45 per cent, of the kaolin and the rest silex.</p> <p>2. Same—Preliminary Injunction—Bond—Bad Faith of Defendant.</p> <p>On the granting of a preliminary injunction against infringement, complainant will not be required to give a bond for the protection of defendants, when the latter have been guilty of bad faith towards him.</p>

<p>1. Patents for Inventions—Novelty—Prior Art—Beating-Out Machines.</p> <p>Letters patent No. 384,893, issued June 19, 1892, to the assignees- of James O. Cutcheon, covers, in claim 1, “a machine for beating out the soles of boots and shoes, provided with two jacks, two molds, and means substantially as described, having provision for .automatically moving one jack in one direction, while the other is being moved in the opposite direction, whereby the sole of the shoe upon one jack will be under pressure, while the other jack will be in a convenient position for the removal of the shoe therefrom. ” Held, on a review of the prior state of the art, that the essence of the invention is that it was the first machine in which both the motions of compressing the last and of clearing the last from the die were performed automatically, and the claim is valid.</p> <p>3. Same—Infringement—Equivalents.</p> <p>The fact that defendants in their machine use lasts instead of jacks does not prevent infringement, since the two are well-known equivalents.</p> <p>3. Same—Anticipation—Prior Use.</p> <p>The third claim of the patent, relating to certain details of construction, seems to have been anticipated by the old style Knox molder, but, in the absence of proof that the Knox machine was used prior to the date of the patent, this claim must be held valid, and infringement declared.</p>

<p>In Equity. Bill by the Smith & Davis Manufacturing Company against Mellon for infringement of letters patent No. 269,242, issued December 19, 1882, to John G. Smith for an improvement in bed bottoms. Bill dismissed.</p>

In Equity. Bill by Charles M. Loring against Quentin W. Booth and Irving E. Booth for infringement of patent. On motion for preliminary injunction. Order for injunction unless defendants give bond.

In Admiralty. Libel against the master of the City of Para for damages caused by the stranding of the vessel. Decree for libelant.

<p>Shipping—Damage to Caego—Insufficient Fittings—Negligence.</p> <p>A cargo of tea was delivered damaged by water which had been admitted to the hold of" a vessel through an open bolt hole in the water ballast tank. The court found that the damage proceeded either from the original insufficiency of a stanchion, which the bolt had served to fasten, or its bad condition or bad fastening at the commencement of the voyage. Held, that the ship, not the cargo, took the risk of such defect.</p>

<p>1. Shipping —Delay in Sailing—Controversy between Owner and Charterer — Liability to Cargo Owner.</p> <p>The owners of a vessel chartered her for the purpose of procuring freight, and the master issued the usual hills of lading to a shipper, importing a delivery of the goods within a reasonable time. Thereafter a controversy arose between the owners and charterers, by reason of which the sailing of the vessel was unduly delayed. Held, that the vessel was liable to the shipper for the excessive delay caused by such controversy.</p> <p>2. Same—Delay Due to Attachment op Vessel—Duty op Owner to Shipper.</p> <p>When a vessel was attached after cargo had been put aboard, and could not be released until the end of an uncertain litigation, held, that the shipper’s goods should have been transferred to another vessel, or notice given the shipper of the liability to delay, with the privilege of reshipping. In default of this, the ship took on herself the risk of loss by delay, with right of recourse for indemnity over to the person causing it.</p>

<p>Shipping—Hired Vessel—Railment—Shortage—Owner pro Hac Vice.</p> <p>A canal boat was hired by libelant at a specified daily rate for an indefinite time, to be used by libelant for storing or carrying its own grain. A man was attached to the boat, who, however, had nothing to do with the manipulation of cargo or the navigation of the boat, which was done exclusively by the libelant A shortage in a cargo of grain having occurred, this suit was brought to recover its value. Held, that the boat was not a common carrier, and that the libelant, in putting its grain aboard, did not part with its possession, or deliver it to the boat owner. Therefore, apart from the unsatisfactory nature of libelant’s proof as to the actual shortage, held, that the libel should be dismissed.</p>

<p>In Admiralty. Libel for damages to cargo. Decree for libelants. Wing, Shoudy & Putnam, for libelants.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of Mississippi.</p> <p>In Admiralty. Libel by Jacob E. Sorensen and others, owners of the bark Urania, against W. S. Keyser, for demurrage. The libel was dismissed, (see 48 Fed. Rep. 117,) and the libelants appealed. The cage was then heard on motion of appellee to be allowed to take testimony as to the meaning of certain words in the charter party, which motion was overruled. 51 Fed. Rep. 30. The case is now on final hearing. Reversed.</p>

<p>Appeal from the United States District Court for the Southern Division of the Southern District of Mississippi.</p> <p>In Admiralty. Libel by Carl Alfred Skantze and others, owners of the Norwegian bark Arab Steed, against W. S. Keyser, for demurrage. Libel dismissed. Libelants appeal. Reversed.</p>

<p>Appeal from the United States District Court for the Southern Division of the Southern District of Mississippi.</p> <p>In Admiralty. Libel by Hermann Wold and others, owners of the bark Foldin, against W. S. Keyser, for demurrage. . Libel dismissed. Libelants appeal. Reversed.</p>

<p>In Admiralty. Libel on policies of marine insurance. Libel dismissed.</p>

Suit under Act March 3, 1887, (24 St. at Large, p. 505,) by Lawrence Murray, master of the British steamship Viola, to recover for services rendered in towing the United States lightship No. 45 into port. Decree for libelant.

<p>1. Collision—Vessels at Wharves—Impinging Boat Takes Kisk op Construction.</p> <p>A boat wbieb is allowed to swing against a steamer at rest takes all the.risks of the steamer’s construction, and of any damage to herself caused by such contact.</p> <p>2. Same—Propeller Blade—Alleged Injury prom—Weight op Evidence.</p> <p>Where a lighter swung under the stern of a steamship laying at a wharf, and received injuries from which she sank, and the weight of evidence indicated that the injuries were not caused by a blow from the steamer’s propeller, but probably by the surging of the lighter against the yoke of the rudder, it was held that the lighter could not recover.</p>

<p>At Law. Action by J. A. Cloud against the city of Sumas on city warrants, of which plaintiff was assignee. Defendant demurred, on the ground that the United States court has no jurisdiction. Sustained.</p>

In Equity. Bill by the Chicago, St. Paul & Kansas City Railway Company to compel the Kansas City, St. Joseph & Council Bluffs Railroad Company to allow the plaintiff the use of the defendant’s tracks within the limits of the city of St. Joseph. A preliminary mandatory injunction was denied. 38 Fed. Rep. 58. The case is now on final hearing. Decree for plaintiff as. to a part of its claim.

<p>In Error to the Circuit Court of the United States for the Western District of Michigan.</p> <p>At Law. Action in assumpsit on a contract of guaranty by Robert W. Elston against Adolph H. Kortlander. Judgment for plaintiff. Defendant brings error. Affirmed.</p> <p>Statement by Taft, Circuit Judge:</p> <p>Robert W. Elston, an alien, brought his action in assumpsit against Adolph H. Kortlander, a resident of Michigan, on a written contract of guaranty. Elston was the owner of an hotel and tract of land in Kent county, Mich., which in June, 1890, he contracted to sell to one Edwin Carman for $12,000, to be paid: $200 on the delivery of the contract; $200 or more on the 27th day of each month, up to and including June 27, 1891; and the remainder in monthly payments of $300 on the 27th of each month thereafter, with interest at the rate of 7 per cent, per annum, to be paid semiannually from the date of the contract upon so much of the purchase money as remained unpaid. Carman agreed, among other things, to insure the buildings then erected and to be thereafter erected on said premises in companies to be approved by Elston, for Elston’s benefit, in the sum of at least $6,000, so long as any balance should remain unpaid on the contract; and to forthwith deliver the policy or policies therefor to Elston; and, in case Carman failed to insure, Elston was given the right to do so, and to add the cost thereof to the amount due under the contract, with interest at 10 per cent. A deed was to be executed when $8,000 of the purchase money had been paid. Right of re-entry was reserved to Elston in case of default in any payment by Carman. Carman covenanted that all buildings, erections, and improvements then upon or thereafter to be placed upon the premises should stand as security for the payments of sums agreed to be paid by him, and should not be removed from the premises without the. written consent of Elston.</p> <p>Kortlander guarantied the payment of $3,000 of the purchase money, as follows:</p> <p>“In consideration of the making by the said Robert W. Elston with the said Edwin Carman, at my request, of the foregoing agreement, and also for other good and valuable consideration, the receipt whereof is hereby confessed and acknowledged, I do hereby become security for the punctual payment of the three thousand dollars ($3,000) of principal first to be paid by the terms of the foregoing contract by the said Edwin Carman to the said Robert W. Elston, together with the interest thereon, at the time and in the manner expressed in said contract, and hereby guaranty the payment thereof as expressed in said contract, and, in default of payment by the said Edwin Car-man, I do hereby promise and agree to and with the said Robert W. Elston to pay him said amount, with the interest thereon, without requiring notice or proof of demand being made.</p> <p>“ Bated this 24dh day of June, 1890.</p> <p>“A. H. Kortlander. [l. s.]</p> <p>“In presence of Charles Chandler.”</p> <p>Carman already had possession of the premises under a lease from Elston, and now continued it under the contract. He had, in May, 1890, bought the hotel furniture from Elston for $1,500,—$388 in cash, and the rest to be paid in monthly installments, the last payable in May, 1891. The contract of purchase provided that the title to the chattels should remain in Elston until the purchase money was fully paid, but that Carman might use them, subject to Elston’s right to repossess himself in case of default on any payment. Carman paid $588 in cash on the furniture contract. At the date of the contracts, Elston had three policies of fire insurance on the hotel and furniture,—one in the Citizens’ Pire Insurance Company for $1,300 on buildings and $700 on the furniture, the second in the Underwriters Company for $1,400 on the buildings and $600 on the furniture, and the third in the Royal Insurance Company for $1,300 on the buildings and $700 on the furniture. When Elston delivered the property to Carman, he took the policies to the office of the agent of the companies. He did not find the agent, but left the policies, with notice that he had sold the place on contract. The policies were returned to Elston, and by him put away without examination. The agent had indorsed upon the Citizens’ and the Underwriters’ policies a memorandum that the land and buildings insured had been sold on contract to Edwin Carman, to whom the loss, if any, was payable, as his interest might appear. Upon the Royal policy there was no indorsement.</p> <p>On the 14th of August, 1890, all the buildings and a large part of the furniture were destroyed by fire. On August 16th, Carman assigned his interest in the two policies indorsed to him to Elston, at the request of Elston’s attorney, Fitzgerald, with whom Elston had left the policies during his absence from home. Suit was begun on all three policies, and, pending suit, the claim was settled for $4,050 without reference to any division of the fund between the buildings and the personal property. This amount Elston kept, and on August 17, 1891, brought suit against Kortlander on the guaranty. The amount of money due on the land contract by its terms, up to and including July 27, 1891, was $3,000 and interest. Of this, Carman had paid $400, as Elston admitted, and he claimed to have paid $200 more. This made one issue of fact at the trial. Another controversy was as to the manner in which the insurance money should be applied. Kortlander claimed that Elston should credit it on the first amounts due under the contract, thus paying everything which he had guaranteed; and he introduced himself and Carman as witnesses to prove that, in consideration of Carman’s assigning the policies, Elston agreed to apply the money so as to release Kortlander. Elston denied having made any such agreement, and this presented another issue of fact on the evidence. Finally, Kortlander claimed to be credited with the amount received by Elston as insurance on the personal property, on the ground that Carman, having paid Elston the premium when he bought the furniture, was entitled to apply the insurance as he wished, and had applied it to the land contract and the first payments thereunder. Elston denied that Carman had paid the premium on the personal property insurance, and this made a third issue of fact for the jury. Under the instructions of the court, the jury returned a verdict for Elston of $2,441.60. Upon this was entered the judgment which this writ of error was brought to reverse. Defendant’s counsel requested several charges, which were refused, and excepted to a number of passages in the charge as given. The assignments of error, based on these rulings of the circuit court, are referred to in the opinion.</p>

<p>Application by the Interstate Commerce Commission to enforce an order against the Texas & Pacific Railway Company. Petition granted.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>Action by the Farmers’ National Bank of Valparaiso, Ind., against the Sutton Manufacturing Company to recover on a bill of exchange accepted by the defendant. Judgment for defendant. Plaintiff brings error. Reversed.</p> <p>Statement by Taft, Circuit Judge:</p> <p>The action in the court below was in assumpsit by the Farmers’ National Bank of Valparaiso, Ind., as the indorsee of a bill of exchange against the Sutton Manufacturing Company of Detroit, Mich., as acceptor of the bill for the amount of the bill and interest. The bill was as follows: ■</p> <p>“$2,000. Office of Hopper Lumber & Manufacturing Co., Successors to J. S. Hopper & Sons, Wholesale Lumber Dealers.</p> <p>“Michigan Citv, Indiana, June 4, 1890.</p> <p>“Ninety days afterdate, pay to the order of Hopper Lumber & Manufacturing Co. two thousand dollars, with interest at the rate of eight per cent, per annum after maturity, and attorneys’ fees, without any relief from valuation or appraisement laws. Value received, and charge to account of “Hopper Lumber & Manufacturing Co.</p> <p>“Per J. S. Hopper, Pres.</p> <p>“To the Sutton Manufacturing Co., Room 40, Hodges Building, Detroit, Mich.</p> <p>“Due Sept. 5th.**</p> <p>Written on the face of note:</p> <p>“Accepted. Pay at Michigan Savings Bank.</p> <p>“The Sutton Manufacturing Co.</p> <p>“Per IIenry S. Hopper, Treas.</p> <p>Protested for nonpayment September 5, 1891.</p> <p>Indorsed on back of note:</p> <p>“Hopper Lumber & Manufacturing Co.</p> <p>“Per J. S. Hopper, Pres.</p> <p>“Pay to G. F. Bartholomew, cashier, or order,</p> <p>“O. E. Arndt, Cashier.”</p> <p>C. E. Arndt was the cashier of the Citizens’ National Bank of Michigan City, Ind., and G. P. Bartholomew was the cashier of the plaintiff bank. J. S. Hopper was president of both the Hopper Lumber & Manufacturing Company of Michigan City, and of the Sutton Manufacturing Company of Detroit, and Henry S. Hopper, his son, was the secretary of both companies. The Sutton Manufacturing Company was a solvent and prosperous concern, engaged in the manufacture of pails and buckets and smaller wooden ware. The Hopper Manufacturing Company was a new enterprise, engaged in making refrigerators and furniture specialties. The Sutton Manufacturing Company was a corporation organized under the general laws of Michigan, as contained in chapter 124 of Howell’s Annotated Statutes of Michigan, the fourth section of which (Comp. § 4130) reads as follows:</p> <p>“The stockholders of every corporation formed under this act shall * * * distinctly and definitely state in said articles (of association) the purpose for which every such corporation shall be established, and it shall not be lawful for said corporation to divert its operations, or appropriate its funds, to any other purpose exceptas hereinafter stated.”</p> <p>The acceptance sued upon was given for the accommodation of the Hopper Lumber & Manufacturing Company, and was without any consideration moving to the Sutton Company. The bill was drawn by J. S. Hopper at Michigan City, Ind., and sent to his son, Henry S. Hopper, the secretary and treasurer of the Sutton Company, at Detroit. Henry accepted it, and returned it to his father, at Michigan City, who procured the note to be discounted by the Citizens’ National Bank of Michigan City. The evidence on the trial was conflicting upon the point whether the officers of the Citizens’ Bank knew that this bill was accommodation paper, or knew that the Hoppers, father and son, filled the same offices in both companies. It was undisputed, however, that the plaintiff was a bona fide purchaser of the bill without notice and for value before maturity. At the conclusion of the evidence the court below directed the jury to return a verdict for the defendant on two grounds; First, that the acceptance sued on, being without consideration, was beyond the power of the defendant company to make, and was void; and, second, that the bill was not a negotiable instrument, and it was therefore open to the defendant to show that it was without consideration. A writ of error was sued out by the plaintiff to the judgment for defendant, and the error assigned was the direction of the court to the jury.</p>

Action on the case by John B. Poulin against the Canadian Pacific Railway Company to recover damages for ejection from a train. The declaration was demurred to on the ground that it should have sounded in contract. Demurrer overruled. 47 Fed. Rep. 858. Jury instructed to find for defendant. Plaintiff brings error. Affirmed.

<p>Chinese Exclusion Acts — Mercantile Domicile.</p> <p>A Chinaman who formerly resided in the United States, and acquired an interest in a firm long established and doing business here, although he returned to China, a-nd remained over six years, retaining his interest in the firm, and receiving his share of the profits, has a “commercial domicile” in the United States, and cannot be sent back to China under the exclusion act. Lau. Ow Bew v. XT. 8., 12 Sup. Ct. Itep. 517, 144 U. S. 47, followed.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Michigan.</p> <p>In Equity. Bill by William R. Fox against Harford J. Perkins, William J. Perkins, and Joseph W. Oliver for infringement of a patent. Decree for defendants. Complainant appeals. Affirmed.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>In Equity. Bill by Royal E. Robbins and Thomas M. Avery against the Illinois Watch Company for infringement of patent. Decree for complainants. 50 Fed. Rep. 542. Defendant appeals. Affirmed.</p> <p>Statement by Woods, Circuit Judge:</p> <p>By the decree of the circuit court the appellant was held to have infringed the 1st, Ed, 4th, 5th, and 6th claims of reissued patent No. 10,631, issued August 4, 1885, to the appellees, as assignees of the original letters No. 280,709, granted July 3, 1883, to Duane H. Church. Here, as in the court below, the appellant, besides denying infringement, disputes both the validity of the reissue and the novelty of the claims. Only the first and second claims of the original patent are relevant to the question of the validity of the reissue, and they are as follows:</p> <p>“(1) In a pendant winding and setting watch, a movement having winding and setting mechanism, adapted to be operated by the endwise movement of a winding bar or key, and normally in position to operate the hands, whereby a positive connection between the movement and the winding bar is avoided, as set forth. (2) In a pendant winding and setting watch, a movement having winding and setting mechanism normally in position to operate the hands, a winding bar or key having no positive connection with said mechanism, and a loose or sliding device, adapted to communicate the inward end thrust of the winding bar to the devices for engaging the winding portion of said mechanism with the main winding-wheel, as set forth.”</p> <p>The following are the reissued claims:</p> <p>“(1) As an improvement in stem winding and setting watches, a winding and hands-setting train, which is adapted to be placed in engagement with the winding wheel or the dial wheels by the longitudinal movement of a stem arbor that has no positive connection with said train, substantially as and for the purpose specified. * * * (3) As an improvement in stem winding and setting watches, a winding and hands-setting train, which is adapted to be placed in engagement with the winding wheel or the dial wheels by the longitudinal movement of a stem arbor, and is normally in engagement with said dial wheels, substantially as and for the purpose set forth. (4) As an improvement in stem winding and setting watches, a winding and hands-setting train, which is normally in engagement with the dial wheels, in combination with a rotatable stem arbor that has no positive connection with said train, and is adapted to be moved longitudinally within the case stem, to cause said winding and hands-setting train to engage with the winding wheel, and to be simultaneously disengaged from said dial wheels, substantially as and for the purpose shown and described. (5) As an improvement in stem winding and setting watches, a winding and hands-setting train, which is normally'in engagement with the dial wheels, in combination with a rotatable longitudinally movable stem arbor that has no positive connection with the watch movement, and, when moved longitudinally to the inner limit of its motion, will cause said winding and setting train to be disengaged from said dial wheels, and engaged with the winding wheel, and, when moved longitudinally to the outer limit of its motion, will permit said'train to be disengaged from said winding wheel and engaged with said dial wheels, substantially as and for the purpose specified. (6) As an improvement in stem winding and setting watches, the combination of a winding and hands-setting train, which is normally in engagement with the dial wheels, a stem arbor having no positive connection with said train, and an intermediate device which is adapted to communicate the longitudinal inner movement of said stem arbor to said winding train, and cause the same to engage with the winding wheel, substantially as and for the purpose shown and described.”</p> <p>The original letters contained this statement:</p> <p>“My invention has for its object to obviate a positive connection between the winding bar arid the intermediate mechanism in a watch of the class above named, and thereby make the movements and cases freely interchangeable, without special adaptation of any movement to any case. To this end, my invention consists in making the intermediate mechanism above referred to normally in position to operate the hands, so that only an inward movement of the winding bar will be required to change the connection of said intermediate mechanism, the winding bar having only to exert a pushing pressure against said mechanism, and requiring no positive connection therewith.”</p> <p>The reissue contains the following:</p> <p>“The object of my invention is to render watch movements and cases read ily interchangeable, to which end said invention consists principally as an improvement in stem winding and setting watches, in a winding and hands-setting train, which is adapted to be placed in engagement with the winding wheel or the dial wheels by the longitudinal movement of a stem arbor that has no positive connection with said train, substantially as and for the purpose hereinafter specified.”</p> <p>And besides this there are added statements of what the invention consists in, substantially in the language of the several claims respectively. The illustrative cuts, letters indicating parts, and the explanations of the respective uses of the parts are not essentially different in the two instruments.</p> <p>In deciding this ease the judge below reaffirmed his own ruling and opinion in the case of Same Plaintiffs against Aurora Watch Co., 43 Fed. Rep. 521; and as a convenient mode of presenting clearly and comprehensively the questions to be considered we quote at length from that opinion:</p> <p>“The improvement covered by the Church patent is applicable to the class of watches where the watch is wound and the hands set by means of the stem, and consists of an oscillating yoke, carrying upon its under side, pivoted at or near its longitudinal center, a pinion, which is so set as to engage with smaller pinions carried at each end of the yoke; this central wheel or pinion having beveled cogs on the under side thereof, which engage with the beveled pinion, which is set in the line of the stem, and into which the inner end of the stem arbor enters a short distance, by a square or octagonal opening, so that this beveled pinion can be rotated by the stem arbor. By rotating the stem arbor, motion is imparted to the central pinion of the yoke, whereby such motion is communicated to the two pinions at the end of the yoke. Passing the small beveled pinion with which the stem arbor engages is a loose sliding block or bar, which meets the inner end of the stem arbor, for the purpose of a thrust or push motion of the stem arbor, and acts as an extension or prolongation of the stem arbor. By pressing the stem arbor inward, this sliding bar acts upon a spring, which throws the stem winding and setting train into engagement with the winding wheel, which is done by swinging the yoke so as to bring the pinion on one end of it into contact with the winding wheel, when, by rotating the stem arbor, the watch can be wound up, there being a latch in the sheath or case of the stem, which is arranged to hold the stem arbor at the extreme of its inward movement, whereby the winding wheels are kept in winding engagement; while, when it is desired to set the hands, the stem is drawn outwardly, which allows a spring arranged for that purpose to swing the yoke out of winding and into setting engagement. It will be seen that a latch or catch in the stem, which shall hold the stem arbor safely at the points of its extreme inward and outward movement, is necessary to the stem-winding and stem hands-setting device, and the patent shows a latch or retaining device in the stem to lock the arbor in either the winding or setting position, of which Church claimed to be the inventor, and for which claims were allowed him in his original patent; but on the application for a reissue an interference was declared between himself and Colby as to these claims, on the hearing of which Colby was decided to be the prior inventor of the locking device in the stem, and Church’s claims for that part of his device were disallowed, and the patent for that feature awarded to Colby. The Church patent, therefore, while it contains a description of the latch or retaining device in the stem sheath, has no claims covering it, but the stem-winding and stem-setting devices of his patent are adapted to be used only with some device for locking the stem arbor in its inward and outward positions; and perhaps this comment will hold true as to all practical stem-winding and stem-setting watches. Infringement is charged in this case of the first, third, fourth, fifth, and sixth claims of the reissued patent, which are as follows, [given above;] * * *. The defenses insisted upon are (1) that the patent is void for want of novelty; (2) that the claims sued upon are too general, and do not describe with sufficient certainty the device by which the results are effected; (3) that defendant does not infringe.</p> <p>“The distinctive characteristic of the Church device is that the winding and hands-setting engagements are not effected by the direct force of the push and pull upon the stem arbor, which is objectionable, because the force of the hand of the operator directly applied is liable to injure the delicate cogwheel mechanisms which are thus forced into contact with each other. These winding and hand-setting engagements are brought about by longitudinal movements of the stem arbor, which bring into action certain light springs, arranged to swing the yoke which carries the winding and setting trains. Por instance, the watch, as ordinarily carried in the pocket, is always in winding engagement, and this is effected by pushing the stem arbor inwardly, to the limit of its movement in that direction, when it is caught and held by the latch in the sheath of the stem. This inward movement of the stem arbor carries inward the loose sliding bar or block, N, as it is called in the specifications, which by such inward movement comes in contact with and swings inwardly an arm, which by such inward movement causes a spring to bear upon the end of the yoke which carries the winding train, and thereby brings the winding pinion in contact with the winding wheel of the mainspring. This spring being light, if the cogs of these wheels meet on end, or do not mesh, they rest in contact until the winding pinion has revolved, when its cogs come at once into engagement with the cogs of the winding wheel, when they are kept in winding engagement so long as the stem arbor is held at its inward limit. When the stem arbor is released from its inward movement, and drawn outwardly, it releases the arm upon which the bar, N, has been pressing, and another spring is brought into action, which swings the yoke out of the winding engagement, and brings the end carrying the hands-setting pinion into contact with the dial wheels, and the cogs of the respective wheels mesh, if they happen to meet in the proper relation, and, if not, they are retained in contact until the rotation of the pinions bring the cogs into engagement.</p> <p>“It will be seen from this description, if I have made it clear, that the engagements of the pinions of this yoke with the winding and dial wheels are effected by the operation of springs, which are brought into operation by the inward and outward movements of the stem arbor. It is because these springs are in their natural positions, and not constrained, when the parts are in the hand-setting engagements, that the inventor says < that the hands-setting engagement is the normal condition of the mechanism.’ It is not claimed that Church was the first to make a stem-winding and stem hands-setting device for a watch. The English patent shown in this case, granted in 1844, to Adolphe Nicole, shows a device for winding a watch and setting its hands by the stem arbor, the winding and hands-setting train consisting in a Y-shaped metal plate with a pinion pivoted near its center, having cogs or teeth on its outer periphery, and beveled cogs on the under side of its rim. The beveled cogs engage with the beveled pinion attached to the inner end of the stem arbor, which has an endwise movement. This Y-shaped metal plate carries upon its point a small pinion, which gears with the large central pinion, so that by rotating the stem arbor motion is transmitted to this small pinion on the end of the plate. This Y-shaped metal plate is pivoted to the rim, which holds the movement at its right-hand corner in such a position that the small pinion on its point rests between the winding wheel and dial wheels of the watch, and by pressing on the stem arbor this small pinion is swung into contact with the winding wheel, while, when the stem arbor is drawn outwardly, it brings the pinion into engagement with the dial wheels. Here, then, is shown a device for winding and. setting the hands of the watch by a longitudinal movement of the stem arbor, and the Y-shaped plate shown operates substantially in the same manner as the oscillating yoke in the Church patent. But the stem arbor was positively connected with the winding and setting train, and these two engagements for winding and setting were brought about by the direct pull and push of the operator upon the stem arbor, which was liable to injure the delicate structure of the small wheels, if they happened to come in contact in such a way as not to directly engage or mesh into each other. In the Lehman American patent of July, 1866, a stem-winding and stem hands-setting device is shown, in which a rotating and longitudinally moving stem arbor is made to work the winding and hands-setting mechanism without the oscillating yoke or plate; the winding and hands-setting engagements being brought about by clutches arranged upon the stem arbor within a movement, so that this stem arbor has a positive connection with the movement or works of the watch, and with the hands-setting and winding train. The engagements of the winding and hands-setting train are also effected by the pull and push of the stem arbor, which makes the mechanism liable to be injured in bringing about these engagements, as I have already described. These two patents seem to me to be fair representative types of the different classes of stem-setting and stem-winding watches, which are shown in the art, from the proofs in the case. The Carnahan patent of October, 1881, shows an oscillating yoke, carrying the wheels at each end, which are respectively brought into engagement with the winding and setting wheels by longitudinal movements of the stem arbor. The patent granted to Charles Y. Woerd, February 9,1883, also shows an oscillating yoke, carrying a winding pinion at one end, and the hands-setting pinion at the other end, by means of which the winding and hands-setting engagements are obtained through the instrumentality of a longitudinally moving stem arbor; but in both the latter devices, as in the Nicole patent, the force of the pull or push to effect these engagements is expended upon the wheels, and is therefore liable to injure the wheels in the manner which has been described; so that Church seems to have been first in the art to obtain the winding and setting engagements by means of springs, which were brought into action by the inward and outward movements of the stem arbor, thereby avoiding the liability to injure the wheels.</p> <p>“It is true there is but little difference, mechanically speaking, between the operations of the Carnahan and Woerd devices and the device of Church. Both Carnahan and Woerd show the winding engagement as the normal condition of their watch, and the hands-setting engagement to be the exceptional or constrained condition. But, as I have already said, their mechanism and arrangement of operative parts are such that the pull and push upon the stem arbor is transmitted directly to the wheels which are to be brought into engagement, and therein they differ from the Church device. The advantages claimed for the Church device are (1) that the movement can be removed from the case of the watch without taking the movement apart so as to remove the stem arbor; (2) that there is no liability to injure the wheels in effecting either the setting or winding engagements.</p> <p>“As to the first advantage insisted upon, it appears clearly from the proof that Church was by no means the first to show a device whereby the movement could be taken from the watch without removing the stem arbor or disturbing the same. It is shown in the Brez patent of July, 1875, in the Fitch patent of April, 1879, in the Bisen patent of December, 1880, and in the Woerd patent, which I have already cited, besides in several other patents which appear in evidence in the case, and which it is unnecessary to refer to. But I find in none of the patents cited any mechanism which effects the winding and setting engagements by means of springs which are brought into action in such a manner as to relieve the wheels from the direct force of the pull and push upon the stem arbor. As I have said, Church did not invent the short stem arbor, which allowed of the removal of the movement from the case of the watch, nor did he invent the latch or lock, in the sheath of the stem arbor, by means of which the stem arbor is retained at the limit of its inward and outward movement; but he has adjusted and attached what he did invent to be used with such a stem arbor, and I therefore think he has the right to claim that his winding and hands-setting train has no positive connection with the stem arbor, as he has, by means of his sliding block, N, within the movement, secured all the results which would be accomplished by a longer stem arbor; this sliding block or bar, while it has no positive connection with the stem arbor, being so arranged in connection with the stem arbor that it is pushed inwardly by the inward movement of the stem, and follows the stem arbor outwardly when the stem is withdrawn to (from) its inward limit, by reason of the action of the springs belonging to the winding and hands-setting trains.</p> <p>“As to the criticism that the claims of the plaintiff’s patent are too broad, and include results rather than devices, I will merely say it is one of the settled canons for the construction of the claims of a patent that they must be so construed, if possible, as to uphold the patent; and in the light of this rule, when the first claim is, in terms, for a winding and hand-setting train that is adapted to be placed in engagement with the winding and dial wheels of the watch by a longitudinal movement of the stem arbor that has no positive connection with the train, the claim cannot be held to mean any kind of a winding and hands-setting train, but such a one as is shown in the specifications and drawings of the patent. If the claim is held to mean any winding and setting train adapted to be put into winding and setting engagement by a longitudinal movement of the stem arbor, which has no positive connection with the train, then it would manifestly be anticipated by the Woerd and Carnahan patents, and perhaps other inventors who show winding and setting trains adapted to be placed in winding and setting engagements by endwise movements of stem arbors that have no positive connection with such trains. And this explanation applies to all the claims.- If they are to be read in the broadest sense of which their language is capable of being understood, then they are obnoxious to the criticism that they are claims for results and not devices. But the words ‘substantially as and for the purpose shown,’ take us back to the specifications and drawings, and bring the devices'there shown into the claims, and I construe the claims as for the devices there shown. Therefore, while these claims are broad, I think they can be sustained as for the devices which are described. Corn Planter Patent, 23 Wall. 218. * * *”</p> <p>In respect to infringement in this case, the court below, after giving a list’ of patents in proof, which had not been adduced in the Aurora Company Case, said:</p> <p>“A careful study of these additional patents, as well as a re-examination of those considered in the former case, has failed to change the conclusion announced in that case as to the novelty and validity of the device covered by the Church patent as reissued. There is therefore no question left in this case'but that of infringement. A comparison of the Church patent with the defendants’ watches, shown in evidence, and a consideration of the expert testimony in the case, satisfies me that the defendants’ watches embody all the essential elements of the Church watch, as covered by this reissued patent. Both use a pivoted yoke to effect the engagement of the winding and setting wheels. In eaeh case this yoke is acted upon by two opposing springs, one to obtain the winding, and the other the setting, engagement. In both the spring producing the setting engagement is the stronger of the two; hence, when they are equally free to act, this stronger spring controls the action of the train,—automatically puts it into setting engagement. In other words, the watch would normally be in setting engagement if these two springs were left to the operation of their respective forces. In each watch the winding engagement is effected by restraining the action of the stronger spring, and allowing the weaker one only to act without restraint. In both watches this stronger spring is held out of action by pressing the stem arbor inward, and locking it at the innermost position. In both the restraining force upon the stronger spring is applied by means of a short pin or nib upon the sliding stem arbor, and in each the inward movement of the stem arbor bends and holds the strong spring from its normal work, and the withdrawal of the stem arbor releases this spring, so that it at once brings the train into setting engagement. It is true that in defendants’ watch there are some slight changes in the shape and location of the operative parts, and by reason of these changes intermediate levers and pins are interposed at some points and dispensed with at others, to effect the connections and movements of the operative parts, which, ás I think, is quite tersely stated by the complainants in their brief: ‘The operative parts of each watch receive power from the same source, under the same conditions, transmit it to the same destination fo th< same purpose, and with the same result.’”</p> <p>The Church patent has been upheld by Judge Sage of the sixth circuit in a case of Same Plaintiffs against Columbus Watch Company, reported in 50 Fed. Rep. 545.</p> <p>In respect to the question of infringement the appellant insists that the evidence establishes the following propositions: First, that the normal engagement of appellant’s shiftingtrain is with the winding wheels, instead of with the dial wheels, as in Church’s; second, that the stem arbor has no thrust operation in effecting a winding connection, as the Church has; third, that it has the improvement for preserving the teeth on both sides of the watch, as stated by Hoyt to be the object of his improvement, which Church does not mention, and has only on one side; fourth, appellant overcomes a weak spring by a stronger one, while Church overcomes a strong spring by a hand thrust on the knob or crown of the stem; fifth, that appellant’s shifting spring acts directly on the yoke, while the single Church spring acts on one arm of the four-pronged rock shaft; sixth, that appellant’s train has no block, N, as the Church has; seventh, that appellant does not have the four-armed rock shaft that Church has; eighth, that appellant does not have the three-wheeled yoke which is essential to the Church combinations; ninth, that appellant’s combinations are new, and radically different from the Church.</p>

In Equity. Suit by George W. Blair and said Blair associated with Paul Zimmerman, partners as Dithridge & Co., against the Lippincott Glass Company, for infringement of a patent. Heard on demurrer to bill. Demurrer sustained.

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>In Equity. Bill by A. Johnston & Co., Limited, against the American Heat Insulating Company, Limited, and others, for infringement of reissued letters patent No. 8,752, granted August 10, 1879, to John C. Reed, upon original patent No. 171,425, issued to him December 21, 1875. The circuit court sustained the reissue, and entered a decree in favor of complainant. 48 Fed. Rep. 446. Defendant appealed. Reversed.</p>

<p>Shipping—Trade between American Ports—Foreign Vessels.</p> <p>Act March 1,1817, § 4, (now Rev. St. § 4347,) prohibits, under pain of forfeiture, the transportation of merchandise from one American port to another in foreign vessels. Act July 18, 1866, (now Rev. St. § 3110,) declares that, if any merchandise “shall at any port of the United States, on the northern, northeastern, or northwestern frontiers thereof, ” be laden on a foreign vessel, and taken to a foreign port, and thence reshipped to any other “port of the United States on said frontiers, ” with intent to evade the provisions of the fourth section of the act of 1817, such merchandise shall be seized and forfeited. Held, that while it is a palpable evasion of the act of 1817 to ship goods from New York to Antwerp in a foreign vessel, and thence reship them in another foreign vessel to San Francisco, such transshipment is not within the prohibition of either act, when the two are construed together.</p>

In Admiralty. Libel by Auguste A. Bellais, owner of the schooner J. J. Clarke, against the steamer Sarah, (the H. Weston Lumber Company and C. D. and F. Koch, claimants,) for damages for a collision. Decree for libelant. Claimants appeal. Reversed.

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

<p>1. Mechanics’ Liens—Labor Contractors—Kentucky Statutes.</p> <p>Contractors supplying laborers and teams for the construction and repair of a railroad, being paid for the same by the day, and either party having the right to stop work at the end of any day, are not “laborers” or “employes” within the terms of Act Ky. March 20, 1876, which, among other things, gives a lien for work done and materials furnished in keeping the road a going concern, but must rely' on the contractors’ act of March 27, 1S88, which gives a lien in favor of persons “furnishing labor or materials for the construction or improvement” of any railroad, canal, or other public improvement.</p> <p>2. Same—Material Men.</p> <p>Where supplies, suitable either for the construction of the unfinished part of a railroad or the carrying on of the finished part, are furnished without any contract as to how they shall be used, the material man has a lien under the act of .1876 for the part actually used in operating the railroad, and another lien under the contractors’ act for the part actually used for construction and repairs; but where he has lost the lien under the latter act because of a failure to file his statement within 60 days, the burden of proof is on him to show what part of the supplies was actually used for the operation of the road.</p> <p>3. Mortgages—Foreclosure—Interveners—Personal Judgments.</p> <p>Where the mortgagees of an insolvent railway apply for the appointment of a receiver and the sale of the property, and material men intervene by petition, claiming a superior lien, the failure to give the claimants personal judgments for their respective debts against the railway is not erroneous.</p>

In Equity. Bill by Margaret Billings and others against the Aspen Mining & Smelting Company, asserting the rights of complainants in a mine as the heirs at law of William James Wood, one of the original locators. The circuit court dismissed the bill on the merits, and complainants appealed. The circuit court of appeals reversed this decree, (see 51 Fed. Rep. 338,) and the defendants now petition for a rehearing. Denied.

<p>1. Congressional Elections — Federal Supervisors — Applications eor Appointment.</p> <p>Rev. SI. |§ 2011, 2012, providing for the appointment of supervisors of congressional elections on proper application to the circuit judge, declares that “the judge, within not less than ten days prior to the registration, if one there be, or, if no registration be required, within not less than ten days prior to the election, shall open the circuit court at the most convenient point iu the circuit, ” and “when so opened shall proceed to appoint and commission from day to day and from time to time, ” etc. held, that registration, where necessary, is not such an integral part of the election as to require an application for the appointment of a supervisor of the election to be made within 10 days prior to the registration, rather than 10 days prior to the election.</p> <p>2. Constitutional Law — Local Legislation — Elections—Registration Laws.</p> <p>The local registration laws of Georgia for the various counties of ¿the state, which differ in material features as to the time, place, methods, and necessary qualifications for registration, do not.affect the appointment of federal supervisors of a general election, because they are unconstitutional and void, under Const. Ga. 1877, art. 2, § 2, providing that “the general assembly may provide from time to time for the registration of all electors, ” and article 1, § 4, providing that “ laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law;” since provision was already made by a prior general law,,(Code, f 1278,) which empowers “ any qualified voter for members of the general assembly to vote for any candidate or upon any question which is submitted to all the voters of the state, in any county in the state, and for any candidate or question which is submitted to all the voters in any district or circuit, in any county of the district or circuit in which is embraced the county of the voter’s residence. ”</p> <p>■ 3. Same — Federal Statutes.</p> <p>Such local registration laws are also void in that they are in conflict with Rev. St. U. S. § 2005, which requires that all officers charged with the duty of furnishing to citizens an opportunity to qualify as voters under state laws shall give equal opportunity therefor to all citizens of the United States.</p>

At Law. Action by George Lemon against the Pullman Palace Car Company to recover damages for refusal to sell him a sleeping car berth. Verdict for defendant.

Affirmed. Statement by Hughes, District Judge: This action was commenced in 1890 by the service of a complaint and summons on the defendant in the court of common pleas for Laurens county, state of South Carolina.

<p>In Error to the Circuit Court of the United States for the District of West Virginia.</p> <p>At Law. Action of ejectment by the Marmet Company against P. J. Hackett and others. Judgment for plaintiff. Defendants bring error. Affirmed.</p> <p>Statement by Hughes, District Judge:</p> <p>This was an action in ejectment, instituted and conducted under the practice in such cases observed in West Virginia. The action was brought for the recovery of lots of ground and houses upon them, contained in a tract of land in Putnam county, in that state, embracing 4,500 acres, described in the declaration. At the trial of the cause, the defendants below elected to sever, and pleaded not guilty, severally. It was after-wards agreed upon the record that the case against P. J. Hackett should be tried singly, and that the final judgment in that action should be entered in each of the other cases,—about 120 in all. The defendants below had been miners in the employment of the plaintiff company, as such occupying houses on its property, under leases the same as that under which Hackett held. That lease contained the following stipulations:</p> <p>“ This lease shall terminate and close whenever the said lessee, from any cause, ceases to work for said company. The said company may terminate this lease at any time by giving the said lessee ten days’ notice in writing that the same shall end and terminate upon some day named in such notice, and upon the day so named in said notice this lease shall terminate and end, and the said lessor may re-enter and take possession of said leased premises without further notice or proceeding. The said lessee hereby agrees and promises to pay to the said Marmet Mining Company the rent, as aforesaid, monthly, and also agrees that such rent may be withheld by said company out of any wages accruing to him from said company; and he also agrees to deliver possession to said company of said tenement building and appurtenances upon the termination of this lease, whether the same is terminated by notice or by his ceasing to work for said company, as hereinbefore provided, or in any other manner whatever; and under no circumstances and in no event shall this lease be construed to be a renting from year to year. It being the purpose of this lease to secure the said company the use of said tenement building and appurtenances for the persons in its employ, the said P. J. Haekett enters into this lease with a full understanding of this purpose, and admits its justice and propriety, and also recognizes and admits the right and power of the said company to terminate this lease in the manner hereinbefore provided, at any time and for any purpose it may choose, and hereby agrees to all provisions of the foregoing lease. ”</p> <p>The lease was dated June 22, 1886. It was made in the name of the Marmet Mining Company. Prior to the month of June, 1885, the Mar-met Company, the plaintiff in this cause, leased of its subsequent vendors the premises mentioned and described in the declaration in this cause, and as such lessee, and under the name of the Marmet Mining Company, operated said property as a coal property, and continued said operations in said name until the deeds aforesaid were executed to it, and thereafter continued said business in said name, as owner of said property, and still does so.</p> <p>The Marmet Company derived title through Henry J. Raymond and Elisha Riggs, and through the Averill Coal & Oil Company. Henry J. Raymond and Elisha Riggs, at the date of their deed to the Averill Coal & Oil Company of October 20, 1866, had good title to the premises therein described. Said premises are of value greater than $2,000. The plaintiff, and those under whom it claims under the deeds aforesaid, are and have been, by its agents and tenants, in the actual possession of said premises ever since the date of said deed of October 22, 1866, and have paid all the taxes charged or chargeable thereon since that date, to wit, the taxes for the year 1866 and each year since. They have had possession and paid taxes for more than 10 years preceding the institution of this suit. Since the date of the deed of December 22, 1866, the plaintiff, under the name of the Marmet Mining Company, has been largely engaged in mining and shipping coal from said premises, and has had on said premises, for the use of its miners and employes, many houses, one of which houses, to wit, house 52, is now, and was at the commencement of this suit, occupied by the defendant P. J. Haekett. The plaintiff, under the name of the Marmet Mining Company, using said name to distinguish its transactions and business in West Virginia from its transactions and business elsewhere, leased to its miners these houses, and, among them, leased to the defendant P. J. Haekett, as one of its miners, the house 52 and premises set out in the written lease aforesaid, dated June 22, 1886. Haekett signed said lease at its date, and delivered the same to the plaintiff, and has ever since occupied said house, and paid to the plaintiff, under the name of the Marmet Mining Company, under said lease, the rents therein provided for up to the 1st ■day of January, 1891. About the 1st day of January, 1891, the miners, including the defendant Hackett, struck, and ceased to work for the plaintiff, doing business as aforesaid, because of the plaintiff’s refusal to increase its prices of and for mining coal from 2 cents per bushel to 2i •cents per bushel, whereupon the plaintiff, by the name of the Marmet Mining Company, gave to the defendant Hackett more than 10 days’ motiee to terminate the lease and tenancy, and to quit the premises, which ■notice was in writing, but the said defendant refused to vacate said house and premises, and still occupies the same. Said notice was given dn January, 1891, and no rent has been paid by said defendant for said, •premises since January, 1891. The plaintiff has complied with all the requirements of the laws of West Virginia authorizing foreign corporations to hold property and do business and prosecute suits in that state.'</p> <p>On the part of the defendant below it was proved affirmatively that he had entered into the possession of the house and premises in question in this suit in June, 1885, as the tenant of the plaintiff, the Marmet Company, and that he held and occupied the same as such tenant, and paid the rent thereof to the said company as such tenant prior to the date of said lease given in evidence in this case by the plaintiff, during all of which time he was mining coal for the plaintiff; that after the date of the lease •he continued to mine coal for the Marmet Company, and paid his rent for the house and premises to that company up to the time he quit work for said company; that the plaintiff’s agent informed him at the time he executed the lease that he should not work for the plaintiff unless he •executed the same, and thereupon he did execute said lease, and thereafter paid the rent thereof to the plaintiff, as aforesaid, up to January 1, 1891; that he did not, in terms, refuse to work for the plaintiff, but did voluntarily cease to so work about January 1, 1891, because the plaintiff refused to increase its miners’ wages for mining coal from 2 cents per bushel to 2½ cents per bushel, and that he never received any notice to quit and surrender the premises in question from any one, except the notice in writing given in evidence in this cause by the plaintiff; that the plaintiff paid him for all the coal mined by him up to January 1, 1891, and that he had not worked for the plaintiff in any way since that date. And, the plaintiff not objecting to the evidence and proof so offered, the same was given to the jury in the words and figures stated in said offer. The defendant further proved that in a suit in the circuit court of Putnam county, W. Va., brought by R. N. Lilly against the Marmet Mining Company, the plaintiff here, the Marmet Mining Company, filed a plea in bar of said suit, duly verified, that there was no such corporation's the Marmet Mining Company, and that said suit was thereupon dismissed without trial. In the descent of the property embracing the leased premises one Elisha Riggs was a holder of some of the bonds secured by mortgage upon it at one stage of the descent. Riggs died. The mortgage was foreclosed. Riggs’ executors were among those who purchased at the sale in foreclosure. Deed was made ;to them, as executors, among other grantees; and these executors, as such, united with other grantors, afterwards, in conveying the property to the Marmet Company. It is objected on behalf of Hackett that no power by will to sell real estate is shown by the Marmet Company to have been given the executors of Riggs, and therefore that no title passed to that company as to the undivided portion of the property which represented the bonds belonging to the estate of Riggs.</p> <p>Other objections to the right of the plaintiff company to recover in this suit, based on other facts in the case, are stated as follows in behalf of the plaintiff in error:</p> <p>“The court erred in overruling the objection of the plaintiff in error to the reading in evidence to the jury of the lease dated June 22, 1886, executed by the Marmet Mining Company, by W. W. Adams, cashier, to the plaintiff in error, by the defendant in error, and in permitting said lease to be so read in evidence to the jury, notwithstanding said objections. This lease was not the lease of the defendant in error, the Marmet Company, the plaintiff below, but it was the lease of aD entirely different company. The plaintiff in error was not, therefore, the tenant of the defendant in error, but of the Marmet Mining Company. And the oral evidence improperly permitted by the court to be given in connection with said lease against the objections of the plaintiff in error did not make the said lease proper evidence in this cause. The defendant in error, the plaintiff below, is an Ohio corporation, which, but for the statutes of the state of West Yirginia granting the privilege to nonresident corporations, could not do business in that state. The corporate name of the defendant in error, as shown by its articles of incorporation, was and is the The Marmet Company. The several papers and certificates filed by it for the purpose of acquiring the fight under the provisions of said statute to transact its corporate business in West Yirginia all show its corporate name to be the'Marmet Company. And conceding, for the purpose of argument only, that the misnomer of a resident corporation in pleading might not be fatal to the pleader, it does not follow that a foreign corporation can obtain authority to transact its corporate business in the state of West Yirginia in its proper corporate name, and then, instead of doing so, as matter of convenience, assume another and different name, and transact its corporate business in that name, which the defendant in error in this case, by its own showing, did.</p> <p>“The court erred also in overruling the objections of the plaintiff in error to the reading in evidence to the jury by the defendant in error of the notice to the plaintiff in error to quit and surrender the possession of the premises •occupied by him, signed, Marmet Mining Company. By Geo. W. Guysi, Superintendent,’ and of the return of the service thereof, and in permitting said notice and the return of the service thereof to be read in evidence to the jury, notwithstanding the objections. If the theory of the defendant in error in this case is correct, the notice to quit should have been in the name of the Marmet Company, and not in the name of the Marmet Mining Company. And the service of this notice did not entitle the defendant in error to a verdict for the recovery of the possession of the leased premises. And the return of the service of the notice was not sufficient in law, (1) because it did not show that the notice was served on the plaintiff in error in the county of Putnam; (2) it did not show that Goff, whose name is signed to said return, was either sheriff, deputy sheriff, or constable of Putnam county; (3) and said return is not verified by affidavit.”</p>

<p>1. Conspiracy to Defraud United States—Fraudulent Increase of Mails During Weighing Period.</p> <p>On separate trial of one defendant, on an indictment against two for conspiring to defraud the United States by mailing a large quantity of old newspapers for the purpose of fraudulently increasing the weight of mail matter, (transported over a railway post route during a period fixed by the postal authorities for weighing such mail matter, as a basis for ascertaining the additional compensation to be paid the railway company,) thereby offending against Rev. St. § 5440, which provides that if two or more persons conspire to commit any offense against, or to defraud, the United States in any manner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties thereto shall be liable, etc., before the jury can convict they must find the defendant guilty beyond any reasonable doubt; and this includes finding from the evidence (1) that the conspiracy charged existed, (2) that the overt act charged was committed in furtherance of the conspiracy, and (3) that defendant was one of the conspirators.</p> <p>2. Same—Benefit to Conspirators.</p> <p>To constitute such conspiracy it is not essential that defendant, or any other of the alleged conspirators, should have derived any pecuniary benefit therefrom; but any benefit so accruing therefrom may be considered by the jury as a circumstance in determining defendant’s relation to the acts committed.</p> <p>3. Same—Success of Conspiracy.</p> <p>To constitute the statutory offense, it is not necessary that the alleged conspiracy should have been successful.</p> <p>4. Same—Knowledge of Acts of Other Conspirator.</p> <p>Mere suspicion or bare knowledge by an alleged co-conspirator that defendant was attempting to defraud the United States is nob sufficient to make such person a party to the attempt to defraud, and to sustain the charge of conspiracy. To constitute a conspiracy the evidence must also show intentional participancy in the attempt to defraud; and if the evidence shows that such alleged co-conspirator had knowledge that defendant was mailing over said post route such newspapers with intent to defraud the United States, and such alleged co-conspirator, with a view to assist defendant therein, remailed such newspapers over said post route, a conspiracy to defraud the United States is thereby proven, and by such remailing such alleged co-conspirator becomes an active party to such conspiracy.</p> <p>5. Same—Place of Conspiracy.</p> <p>If the fraudulent mailing was Committed within the judicial district charged in the indictment, it is immaterial where the alleged conspiracy was formed, or whether or not the parties thereto, or either of them, were ever within such district.</p> <p>6. Same—Time of Conspiracy.</p> <p>It is not necessary, to justify a verdict of guilty, that the conspiracy should have been formed and in full existence prior to the weighing of such fraudulent mail matter. It is sufficient if the defendant and any other person at any time during the weighing formed a common design to defraud the government in connection with such weighing, and that then the defendant or such other person committed an overt act in connection therewith.</p> <p>7. Same—Previous Acts of Conspirator.</p> <p>If, prior to the formation of such common design, defendant or any other person had been doing the very act which afterwards, by being committed to effect the conspiracy, ripened into the statutory offense, a verdict of guilty would be warranted.</p> <p>8. Same—Acts out of District Charged in Indictment.</p> <p>Evidence that the newspapers, the fraudulent mailing of which within the district constituted the overt act charged in the indictment, were rewrapped and re-mailed over the post route in question, from a place without the district, by an alleged co-conspirator, is not competent as proof of such overt act, but may "be considered as showing the nature, extent, plan, and operations of the conspiracy, if one existed.</p> <p>9. Same—Acts of Employes or Agents.</p> <p>If such mailing was done by defendant’s employes, servants, or agents, as such, and not as parties to, or members or abettors of, the c ommon design, they will not be deemed co-conspirators, nor will such mailing amount to an overt act</p> <p>10- Criminal Law—Reasonable Doubt.</p> <p>A reasonable doubt of the guilt of a defendant charged with the statutory offense of conspiring against the United States is a doubt based on reason, and which is reasonable in view of all the evidence. It is an honest, substantial misgiving generated by insufficiency of proof. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or jury, and unwarranted by the testimony; nor is it a doubt born of a merciful inclination to permit the defendant to escape conviction, nor prompted by sympathy for him or those connected with him.</p>

<p>Immigration—Contract Laborer Once Passed—Power to Arrest and Return.</p> <p>Under due authority from the secretary of the treasury, granted either by general regulations or by special instructions in individual cases, pursuant to the act of October 19, 188S, the superintendent or inspector of immigration may, at any time within one year after his landing, take into custody, and return to the country from which he came, an alien emigrant arriving in violation of law, even though he may have been previously passed and allowed to land.</p>

In Equity. Bill by Gilman Waite against Charles H. Robinson and others for infringement of letters patent No. 829,805, issued November 3,1885, to William Boscawen, assignor to Daniel L. Thompson, Charles A. Perley, and Gilman Waite, for an improvement in chairs. Bill dismissed.

<p>At Law.</p> <p>Action by the California Artificial Stone Paving Company against Mary A. Starr and others for infringement of reissued letters patent No. 4,364, granted May 2, 1871, to John Schillinger, on the surrender of original patent No. 105,599, granted to him July 19, 1870, for an improvement in concrete pavements. Judgment for plaintiff. The claims of the patent are as follows:</p> <p>“(1) A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described. (2) The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose set forth.”</p> <p>The advantage of the invention is stated to be that this arrangement “allows the blocks to heave separately from the effects of the frost, or to be raised or moved separately, whenever occasion may arise, without injury to the adjacent blocks.”</p>

In Equity. Bill by the Edison Electric Light Company against the United States Electric Lighting Company. The suit was originally brought on the three following patents: No. 223,898, issued January 27, 1880; No. 227,229, issued May 4, 1880; and No. 265,777, issued October 10, 1882. But by stipulation the bill was amended b}' withdrawing the last two patents.

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p> <p>In Equity. Suit by the Ashton Valve Company against the CoaleMuffler & Safety Valve Company and others for infringement of patents. In the circuit court the bill was dismissed. 50 Fed. Rep. 100-Complainant appeals. Affirmed.</p>

<p>1. Admiralty Pleading — Departure.</p> <p>Under a libel -in rem on a contract of affreightment to recover for cargo destroyed in extinguishing a fire, libelant may be allowed to shift his claim to a demand for a general average, when the facts alleged in the libel and answer are sufficient, taken together, to sustain the same. Dupont de Nemours v. Vance, 19 How. 173, followed.</p> <p>3.Shipping — D image to Freight — Fire.</p> <p>A steamer with a cargo, chiefly of lime, took fire, and was scuttled by the city fire department, that being the only method of preventing a total loss of the vessel and cargo, whereby the lime was destroyed. Held, that under Rev. St. § 4339, which provides that no owner of a vessel shall be liable for any loss happening to the cargo by lire unless caused by his design or neglect, the purchaser has a complete defense against an action in rem against the vessel.</p> <p>3. General Average — Cargo Injured in Suppressing Fire.</p> <p>The owner of cargo which is damaged by water in suppressing fire is entitled to compensation in general average. The Roanoke, 46 Fed. Rep. 317, followed.</p> <p>4. Same — Basis of Shipowner's Contribution — Insurance.</p> <p>Insurance is not a part of an owner’s interest in a ship, and in cases of general average the amount of insurance received by him should not be added to the value of what was saved, for the purpose of increasing the fund to be distributed. The City of Norwich, 6 Sup. Ct. Rep. 1150, 118 U. S. 403: The Scotland, 0 Sup. Ct. Rep. 1174,118 U. S. 507; and The Great Western, G Sup. Ct, Rep. 1173,118 Ü. S. 520,— followed.</p> <p>5. Admiralty — Costs.</p> <p>A libelant in rem, suing on the contract of affreightment to recover damages for loss of cargo, failed to sustain the allegations of his pleadings, and increased the expense of the case by introducing immaterial evidence. He was allowed, however, to recover in general average, hut had not attempted an adjustment on that basis before commencing the suit, field, that he was not entitled to full costs.</p>

<p>In Admiralty. Libel for salvage. Cross libel for damage by collision.</p>

. In Admiralty. Libel by Albert B. Eldridge, owner of the steam tug A. C. Nickerson, against the schooner Rose Culkin, for collision. Cross libel by Catharine A. Culkin, owner of the Culkin, against the Nickerson. Immediately after the filing of the libel against the Culkin,' her owner gave a stipulation for $3,500 as the agreed value of the vessel, and thereafter repaired and used her in voyages between New York and Rockaway.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Southern District of Ohio.</p> <p>Statement by Jackson, Circuit Judge:</p> <p>On application of the parties to have this court, under the appeal from an interlocutory order of the lower court granting an injunction, hear and finally determine the merits of the controversy relating to the validity of the patent in suit and the infringement of same.</p>

In Equity. Bill by the Mercantile Trust Company of New York against the Zanesville, Mt. Vernon & Marion Railway Company and others to foreclose a mortgage. The receiver of the railway filed a cross bill to scale down the mortgage bonds. On demurrer to the cross bill. Sustained, and the cross bill dismissed.

<p>At Law. Action of replevin brought by the Trinidad Asphalt Paving Company against Eugene Robinson. A verdict was directed for plaintiff, and a motion for a new trial denied. The question as to whether costs should follow the judgment was reserved by the court, and is now up for determination. Judgment for plaintiff.</p> <p>Statement by Swan, District Judge:</p> <p>This is an action of replevin for 766 barrels of asphalt that were formerly the property of Carter, Hawley & Co., of New York, both parties tracing title to them. The evidence is uncontradieted that plaintiff, wishing to obtain asphalt of Carter, Hawley & Co., whom plaintiff knew would not sell to it, employed one Coburn to make the purchase for it, —the Trinidad Asphalt Company,—instructing Coburn not to reveal the name of his principal, but to make the purchase as for himself. The asphalt was bought for the benefit of plaintiff, who had the right to it as against its agent, Coburn, or any one to whom the latter might deliver it, except a purchaser in good faith and for value. Coburn, it seems from the facts found by Mr. Justice Brown, who tried the case, went to Carter, Hawley & Co. for the plaintiff, but exceeded his authority in effecting the purchase. Instead of representing himself simply as the principal in the transaction, or withholding the name of his employer, he untruly stated that he had no connection with the plaintiff whatever,—a statement which he had no authority from plaintiff to make. Carter, Hawley & Co. delivered to Coburn the asphalt, which he turned over to plaintiff. A month or two afterwards, Coburn made a contract with a lighterman to go to South Amboy, where the asphalt lay, load it on board his lighter, and take it up the North river. The asphalt was accordingly laden on the lighter, and was insured for transportation to the docks of the plaintiff at Jersey City. Instead of thus forwarding it, Coburn diverted it from its original and proper destination, and sent it to Weehavrken, when it was delivered to the West Shore Railroad for transportation and delivery to defendant, and in due course of time came into the possession of defendant, who in good faith had dealt for and purchased it through Coburn from Carter, Hawley & Co., whom he supposed to be the owners of it, and whom he paid for it. The asphalt was taken from defendant’s possession under the process in this cause. After the commencement of this suit defendant wrote Carter, Hawley & Co., who had received their pay for the' property from plaintiff, through Coburn, asking them to credit him with the amount which he had paid them for the asphalt, and this Carter, Hawley & Co. did. , The trial judge held that, because of the allowance of this credit to Robinson by Carter, Hawley & Co., though Robinson, the defendant, bought and paid in good faith, a verdict in his favor for the value of the asphalt in this action of replevin would put four or five thousand dollars in his pocket for which he had paid no consideration, and for which he would be obliged to account to Carter, Hawley & Co., who had received their pay through Coburn, and thus will be twice paid for the asphalt. The consequence would be that plaintiff would be obliged to resort to an action against Carter, Hawley & Co. to recover the amount paid by it for the property on Coburn’s purchase. To avoid this circuity of action, the court permitted plaintiff to show the fact that defendant had been credited by Carter, Hawley & Co. with the sum paid for the property taken by the writ since the beginning of this suit, and directed a verdict for plaintiff, with nominal damages, reserving the question whether costs to plaintiff should follow the judgment. A motion for a new trial was made and overruled. On the foregoing facts both parties claim costs.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>Action by William H. Morton against the city of Nevada, in the state of Missouri, for money had and received. Trial by the court on an agreed statement of facts. Judgment for defendant. 41 Fed. Rep. 582. Plaintiff brings error. Affirmed.</p> <p>Statement by Caldwell, Circuit Judge:</p> <p>This was an action brought by the plaintiff in error against the defendant in error for money had and received. The defense was a general denial, and a plea of the statute of limitations. The case was tried by the court below upon the following agreed statement of facts:</p> <p>“It is hereby stipulated and agreed that the following facts are admitted by both plaintiff and defendant to be true, and no other proof thereof than this stipulation need be produced upon the trial of said cause, but the same may be used by either party. It is further agreed that either party shall, under this stipulation, have a right to introduce any other testimony they may deem proper; it being understood this agreement only extends to the admission of the truth of the facts herein contained. In March, 1869, the town of Nevada, Yernon county, Missouri, was incorporated under chapter 41, Gen. St. Mo. 1865. In the year 1870, in order to secure the location of the depot of the Tebo & Neosho Railroad, then building, within one half mile of the public square of said town, instead of within the distance of three quarters of a mile of said public square, as then contemplated by the board of trustees, agreed with the Tebo & Neosho Railroad Company to donate ten acres of ground for depot purposes if it would put the depot within one half mile of said public square, and by resolution entered of record on June 29,1870, made the following proposition: ‘Resolved, that whereas, the county of Yernon has subscribed to the capital stock of the Tebo & Neosho Railroad Company to aid in building the railroad of said company within the county of Yernon, and it will be advantageous to the town of Nevada to have the depot of said company established as near as practicable to the business-of said town: It is therefore ordered that the town of Nevada will procure and donate to the said Tebo & Neosho Railroad Company the right of way for said company’s railroad within and through the said town, and will also pay the said company such sum of money, not exceeding the sum of five thousand dollars, as shall be the actual cost to said company of establishing the depot of said company within one half mile of the public square of said town, instead of within the distance of three quarters of a mile of said public square. Ordered further, that the town will procure and donate said company suitable grounds for said depot and the other purposes in connection with the operation of said railroad, not less in quantity than ten acres.’ And thereafter, to wit, on June 4,1870, under and by virtue of the act of the general assembly of the state of Missouri entitled ‘An act to authorize cities and towns to purchase land, and to donate, lease, or sell the same to railroad companies, approved March 18,1870,’ the board of trustees of said town ordered an election of the qualified voters of said town to he held on October 25, 1870, to vote upon the proposition to issue ten thousand in bonds of said town, with which to purchase ground to be donated to said Tebo & Neosho Railroad Company. That said election was held, as ordered, on October 25,1870, and at said election a majority of the qualified voters of said town voting at said election voted in favor of issuing said bonds to purchase ground to be donated to said railroad company; and thereafter, to wit, on November 1, 1870, under and by virtue of said act of the general assembly of the'state of Missouri, approved March 18, 1870, before referred to, and in pursuance of said election so held as aforesaid, and under the order of said board of trustees, there was executed, by its chairman, John T. Birdseye, signing his name thereto, and by the clerk of said board, S. A. Claycomb, attesting the same and affixing thereto the seal of said town, twenty bonds numbered from 1 to 20, both inclusive, each for the sum of $500.00, which said bonds, by their terms, were made payable at the National Bank in the city of New York, in the state of New York, ten years after the date thereof, to wit, on the 1st day of November, 1880, and were made payable to the Tebo & Neosho Railroad Company or bearer. That said bonds, by their terms, were to bear interest at the rate of ten percent, per annum, payable semi-annually at the National Bank on the 1st day of May and the 1st day of November of each year thereafter, on the delivery of certain interest coupons thereto attached to each of the said 20 bonds. That, after said bonds had been executed, Oscar M. Nelson, then a citizen of the town of Nevada, was appointed by said board of trustees the financial agent for said town for the purpose of selling said bonds and receiving the money therefor, for and on behalf of said town. ‘That said bonds were placed in his hands, and he, acting for said town as its financial agent by virtue of said appointment, all of said bonds, through the firm of Jaynes & Newkirk, bankers at Sedalia, Mo., to Wm. H. Morton, the plaintiff. That in January, 1871, said firm of Jaynes & Newkirk, bankers, as aforesaid, paid to Oscar M. Nelson, the financial agent aforesaid, the following amounts: January 19, 1871, $4,000.00; January 31,1871, $1,171.00,—total, $8,171.00; making the total sum actually received by the said board of trustees in money on account of the sale of said bonds eight thousand one hundred and seventy-one dollars, ($8,171.00.) Thatin pursuance of the agreement with the Tebo & Neosho Railroad Company, said board of trustees purchased from various parties ten acres of ground, to be donated to said railroad for depot purposes, paying therefor out of the $8,191.00 dollars derived from the sale of said bonds the sum of $6,785.50 dollars, and had all of said land deeded directly to the ‘ incorporated town of Nevada.’ The balance of said money was used by said board of trustees for various purposes incident to the government of said town. The said Tebo &' Neosho Railroad Company, having fully complied with the terms and conditions upon which said donation was to be made, took possession of said property. The said Tebo & Neosho Railroad Company having thereafter sold, conveyed, and merged all of its entire line of railroad in this state, and all its property, rights, and franchises, in and to the Missouri, Kansas & Texas Railroad Company, the inhabitants of the town of Nevada, by E. E. Kimball, chairman of the board of trustees, on the 19th day of May, 1875, conveyed said ten acres of ground to the Missouri, Kansas & Texas Ry. Co.; the Tebo & Neosho Railroad Company having taken possession of said ten acres, as before mentioned, some time prior to its merger into the M., K. So T-. R. R. It is further agreed that on the 23d day of August, 1877, Wm. H. Morton, plaintiff herein, instituted suit against the town of Nevada in the United States circuit court for the western district of Missouri, at Jefferson City, to recover upon the past-due'coupons that were attached to said issue of bonds, and thereafter, to wit, on the 20th day of November, 1877, the town of Nevada interposed a defense to said suit by filing an answer, in which it was claimed that said town was not liable in said action, for the reason that the act of March 18,1870, under which the bonds to which said coupons had been attached, was unconstitutional. That thereafter, and on the same day, plaintiff in said action filed a demurrer to said answer, and on the 22d day of November, 1877, said demurrer was submitted. That at that time there was pending in the supreme court of the United States the case of Jarrolt v. Town of Moberly, in which the same question, to wit, the constitutionality of the act of March 18,1870, was involved, which said cause has been certified to the supreme court of the United States by reason of a division in opinion of the two judges sitting in said cause, which fully appears by a record of said cause reported in 103 U. S. 586, and to which reference is made. The parties to said case of Morton v. Town of Nevada, by their attorneys, then agreed that no further action was to be taken in the matter, but that the same was to stand upon the pleadings as then made until the supreme court passed upon said Jarrolt Case, after which either party might proceed in said matter as might be deemed best by said party; and that the same stand continued. That the supreme court in said Jarrolt Case, in 103 U. S. 580, decided the act of March 18, 1870, unconstitutional, to which case reference is made to show what was passed upon, and that thereafter, and, to wit, on the 25th day of November, 1881, said cause of Morton v. Town of Nevada was taken up, and, following the rulings,—said Jarrolt Case,— the demurrer to the answer was overruled, and judgment given for defendant, the town of Nevada, on the pleadings. It is further agreed that in the year 1884 the-town of Nevada was reincorporated under the general laws of Missouri as a city of the third class, under the name of the ‘ City of Nevada,’ and as such succeeds to all rights of said town, and assumed all of its liabilities. It is further stipulated that the interest on said bonds was paid by the town of Nevada for the year 1871 and 1872, after which the town refused to pay plaintiff any further interest, for the reason that said bonds and the coupons thereon were unconstitutional, and issued without any authority.</p> <p>“J. B. Henderson,</p> <p>“Reynolds & Lewis, and “J. B. Johnson,</p> <p>“Attorneys for Plaintiff. "Burton & Wight,</p> <p>“Attorneys for Defendant.”</p> <p>The lower court held the defendant was not liable for the money had and received, except possibly as to the sum of $1,385.50, and that the whole cause of action was barred by the statute of limitations. There was judgment for the defendant, and the plaintiff thereupon sued out this writ of error.</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by Lyman F. Hodges and Samuel Y. Hyde against Michael Scanlan and O. G. Wall to recover the value of 24 car loads of wheat. Verdict and judgment for plaintiffs. Defendants bring error. Affirmed.</p> <p>Statement by Caldwell, Circuit Judge:</p> <p>This suit was brought in the circuit court of the United States for the district of Minnesota by Lyman F. Hodges and Samuel Y. Hyde, the defendants in error, against Michael Scanlan and O. G. Wall, the plaintiffs in error, to recover the value of 24 car loads of wheat, alleged to be of the value of $8,601.90. The defendants in error were dealers in wheat on the Southern Minnesota Railroad, with headquarters at La Crosse, Wis. The plaintiffs in error were bankers, doing business under the name of Bank of Lanesboro, at Lanesboro, a station on the railroad, in Minnesota, about 50 miles west of La Crosse. At Lanesboro there was a firm engaged in operating flour mills under the name of Lanesboro Milling Company.</p> <p>The complaint alleges “that in the year 1884 the plaintiffs and the defendants entered into an agreement and arrangement whereby the Lanesboro Milling Company, a company doing business as millers in said Lanesboro, were to order from the plaintiffs such wheat as they desired to use in their milling business, and that the plaintiffs would deliver said wheat free on board of cars to said defendants, and the same should be consigned by rail to said defendants under their style of Bank of Lanesboro. That the said bills for said wheat should be mailed by plaintiff to said bank, and the said wheat should be shipped by plaintiffs-exclusively to the said Bank of Lanesboro. That said bank would receive said wheat and hold possession thereof until the said Lanesboro Milling Company paid for the same, when the bank was to remit therefor to the plaintiffs; or, in default of so holding possession, defendants agreed to pay for said wheat themselves. That under said agreement and arrangement wheat was shipped by plaintiffs to the Bank of Lanesboro, as ordered by the Lanesboro Milling Company, almost daily from May, 1884, up to April 9, 1889. The wheat was consigned in the same way, and the said defendants have during all of said time, up to March, 1889, paid on presentation the bills for the price of said wheat.” That between March 8 and April 9,1889, plaintiffs, at the request of the milling company, shipped to defendants 24 cars of wheat, which “was all received by the defendants under the agreement above stated. * * * That the said defendants, in violation of their contract with plaintiffs, allowed .said Lanesboro Milling Company to take possession of and use said wheat without collecting or receiving the price therefor;” and that the mill company has not paid for the same, and is insolvent; and they demand judgment for the value of the wheat.</p> <p>In their answer the defendants admit that the plaintiffs sold wheat to the milling company, and shipped it by rail consigned to the defendants; “but the defendants never had, nor was it agreed or understood that they should have, possession of or dominion over or any responsibility for the said wheat, excejjt to give an order for its delivery on payment therefor, and to-transmit to the plaintiffs, less exchange, on payment therefor to them by the said milling company.” They deny that they ever authorized delivery to the milling company of any of the wheat shipped under that arrangement until it was demanded and paid for by that company, or that any wheat was delivered to them by the plaintiffs.</p> <p>Prior to June, 1884, one Easton owned and managed the Bank of Lanesboro, and there existed between him and the defendants in error, and the milling company an arrangement by which the wheat sold by the defendants in error to the milling- company was consigned to the bank upon the understanding expressed in the following letter:</p> <p>“La Crosse, Wis., May 12th, 1884.</p> <p>“Bank of Lanesboro, Lanesboro, Minn.—Gents: Hereafter our agent on the railroad will send bill of wheat shipped you for Lanesboro Milling Company, and we shall expect you to collect on those bills, and not wait for a bill from our office, unless you stand in the gap,—that is, become responsible for the wheat. If there are any errors, the mill company and our firm can adjust afterwards. We inclose a list of freights from stations that are liable to ship there. We will advise our agents to put rate of freight on bills.</p> <p>“Yours, truly, Hodges & Hyde.</p> <p>“We ship the wheat to you to collect before the wheat is delivered.</p> <p>“H. & H.”</p> <p>About the 1st of June, 1884, the plaintiffs in error became the owners of Bank of Lanesboro, and succeeded to its business, which they continued to conduct in that name. At their respective dates the defendants in error wrote the plaintiffs in error the following letters:</p> <p>“Hodges & Hyde.</p> <p> “Dealers in Grain and Produce on the Southern Minnesota Division of the </p> <p> C., M. & St. P. Ry. </p> <p>“La Crosse, Wis., June 6th, 1884.</p> <p>“Bank of Lanesboro, Lanesboro, Minn.—Gents: Your favor 5th inst., with statement, at hand, If possible, we will examine account before this letter is mailed. We are surprised at your inquiry, how about wheat shipped to Lanesboro Milling Co. ? as we supposed you knew all about it, and had been following method as follows: We ship wheat from certain stations to Bank of Lanesboro. At time of shipment, our agent at station shipped from, mails an invoice to Bank of Lanesboro. On arrival of car of wheat. Bank of Lanesboro collects the bill from and delivers the wheat to Lanesboro Milling Co. Bk. of L. then credits our account with the amount collected. Why the inquiry? Has Bk. of L. changed proprietors?</p> <p>“Hodges & Hyde.</p> <p>“Clarke.”</p> <p>“June 18th, 1884.</p> <p>“Messrs. Scanlan & Wall, Some Exchange Bank, Lanesboro, Minn.— Gentlemen: We have sold to Lanesboro Milling Company eleven cars of wheat, which will be shipped to you. The price of wheat is 91 cents per bushel, less freight to Chicago. Invoice will be mailed to you from station shipped from. On arrival of each car please collect amount from Lanesboro Milling Company, then deliver wheat, and remit proceeds to us. * * * “Yóur friends, Hodges & Hyde.</p> <p>“Clarke.”</p> <p>The course of business was this: When a car of wheat was shipped to the bank the defendants in error sent to the bank a bill therefor in the following form:</p> <p>“Wells, Minn., March 14th, 1889.</p> <p>“Bank of Lanesboro, Lanesboro, Minn., to Hodges cB Hyde, Dr., Dealers in Coal, Grain, and Produce:</p> <p>“On Southern Minnesota Division, 0., M. & St. P. Railroad.</p> <p>“1 car wheat, No. 5,594, Am’t.</p> <p>“467 bushels, at 85c. $396.95.”</p> <p>At the same time the milling company was advised of the shipment by a notice in the following form"</p> <p>“La Cbosse, Wis., March 8th, 1889. “Wheat shipped to Lanesboro, Minn.</p> <p>“Bought of Hodges & Hyde,</p> <p>“Dealers in</p> <p>“Grain and Produce.</p> <p>“On the Southern Minnesota Division, 0., M. & St. P. Railway.</p> <p>“Date. Car. Where Prom. Bushels. Grade. Price. Am’t. “One (1) car wheat. “5304 Mapleton 462 76c. “Tare 15 4* “447 80| $359.80.”</p> <p>The defendants in error continued to ship wheat to the bank and the bank continued to collect and remit, less its exchange, for the wheat consigned and billed to it from June, 1884, until May, 1889. The shipments amounted on an average to 6 car loads of wheat per week, averaging in value about $350 per car, making the total value of all shipments for the whole period between $500,000 and $600,000. During this time the business was conducted to the satisfaction of both parties, and without complaint, save in one instance, the occasion and the nature of which is shown by the following correspondence: On the 6th day of January, 1889, the defendants in error wrote the plaintiffs in error the following letter:</p> <p>“(Confidential.) Jan. 6th.</p> <p>“Bank of Lanesboro, Lanesboro, Minn__Gents: There are 34 cars</p> <p>wheat billed to your bank by us that has not been paid for. We understand they have been, or most of them have been, unloaded. Now, will you please tell us just how this matter stands? We are holding you, and we suppose you are holding the R. R. Co. We presume this matter is all right, but it implies a good deal of money, which we want before you give orders to have it unloaded. Have they the wheat on hand that is not paid for? We hope this matter will come out O. K. without trouble; and please consider this letter confidential. Tours, truly, Hodges & Hyde.”</p> <p>To this letter the plaintiffs in error made the following answer:</p> <p>“M. Scanlan, President. O. G. Wall, Cashier.</p> <p>“Bank of Lanesboro. Scanlan c& Wall, Successors to J. C. Easton.</p> <p>“Lanesboro, Minn., 1-7-1889.</p> <p>“Messrs. Hodges & Hyde, La Crosse—Dear Sirs: Tours 6th at hand. The railroad company, through its agent here, had permitted L. M. Co. to unload cars without orders from us, we exacting payment for all cars delivered by order. The auditor of the road came along one day this week, and checked up agent, and got ‘ onto ’ the arrangement, which precipitated a crisis. I delivered the company (its agent) orders for the cars, taking a bill of sale of all wheat, flour, and stock in the mills, and an assignment of all insurance covering the same, ($9,000.) There was, approximately, $9,000 to $10,000 worth of wheat on hand, or in flour ready for shipment, at this time. I have since then remitted you nearly $3,000, and would have been able to have remitted you $2,000 more to-day had it been possible to handle the cars, but the push engine is off bucking snow, and will not be back until to-night, if then. If the stock can be gotten out, 1 will be able to remit you $2,000 or $3,000 to-morrow. It will be ready for the cars, and I trust we will be able to get them set in where they can be loaded. I have taken every precaution to be on the safe side, and think everything safe, and assure you that it will be looked after with more anxiety on our part than you can feel. If the cars can be handled, the whole matter can be cleaned up by the middle of next week. Oar ‘ 20 Tyler,’ 600 bushels, is not unloaded yet, and will not be until all else is cleaned up. Please send me a statement of all cars charged to us.</p> <p>“Resp’y, O. G-. Wall.”</p> <p>The station agent of the railroad company at Lanesboro testified that, at the request of the auditor of the railroad company, he went to Mr. Wall, to get a writing with reference to the cars which had been delivered without the order of the bank, and that Mr. Wall gave him a paper, the original of which has been lost, and cannot be found, which read as follows:</p> <p>“The Chicago, Milwaukee & St. Paul Railway Company is not held responsible for wheat, or are not liable for the wheat consigned to the Bank of Lanesboro and delivered to the Lanesboro Milling Company without written orders.”</p> <p>There was evidence tending to show that wheat consigned to the bank was sometimes delivered to the milling company without an order from the bank, and that the bank had knowledge of this fact. The cars loaded with wheat intended for the milling company were placed on a spur track running up to the mill, from which the wheat could be unloaded directly into the mill.</p> <p>The court below ruled that the letters of the 6th and 18th of June „ constituted the contract between the parties, and that that contract imposed on the defendants the obligation, upon the arrival of the wheat at Lanesboro, to use reasonable diligence and ordinary care to take possession of the same, and not deliver to the milling company until it was paid for according to the bills of invoice sent the defendants. The court, in the course of a lengthy charge to the jury, told them that—</p> <p>“These two questions of fact are submitted to you: First. Did the defendants receive the wheat in question ? Second. Did they allow the mill company to take or get possession thereof or of any portion of said wheat, without collecting or receiving the pay for the same? These two facts must be found in favor of the plaintiffs, or they cannot recover. * * * The burden of proof is upon the plaintiffs to show by a preponderance of evidence that the defendants either expressly or knowingly or tacitly assented to or acquiesced in the taking of that wheat by the mill-company without their first paying the price for the same. * * * This is an action against the defendants for allowing the mill company to get possession of this wheat after it was delivered to them. If, therefore, the wheat was never delivered to defendants by tlie railroad company, they cannot be legally held in this action.”</p> <p>And at the request of the plaintiffs in error the court gave the following, with other, instructions to the jury:</p> <p>“The burden is on the plaintiffs to show by a preponderance of evidence that this wheat in question was delivered to the defendants, and, if the plaintiffs have failed to show this, they are not entitled to recover in this action.</p> <p>“If the railroad company or its agents or servants delivered this wheat to the mill company without the authority or consent of the defendants, the defendants are not liable therefor.</p> <p>“There can be no recovery in this action for any wrongful or illegal act of the railroad company unless the defendants authorized such act.</p> <p>“The burden is on the plaintiffs to show by a preponderance of evidence that the defendants delivered or authorized the delivery of this wheat to the mill company, and, if the plaintiffs have failed to show that fact, the defendants cannot legally be held liable in this action.</p> <p>“Delivery of cars by the railroad company to the mill company without orders from the defendants cannot make defendants responsible to plaintiffs, unless defendants knew of such delivery, and consented to it.</p> <p>“These defendants were not bound to guard against the illegal delivery of this wheat to the mill company by the railroad company before it had been delivered to the defendants.</p> <p>“ The transportation of the wheat by the railroad company to the village of Lanesboro, and the notice that such wheat had arrived at Lanesboro, or even the setting of the cars on the side track of Lanesboro, did not constitute a delivery of such ears to these defendants, unless the defendants knowingly consented to accept such acts as a delivery.”</p> <p>There was a verdict and judgment for the plaintiffs, and the defendants sued out this writ of error.</p>

<p>1. Master and Servant—Fellow Servants—Engineer and Brakeman.</p> <p>A brakeman who is sent by the conductor from the rear portion of a parted train to signal' the forward portion, of which the engineer is, by the rules of the company, the conductor, is a fellow servant of the engineer, and cannot recover from the company for an injury caused by the engineer’s negligence. Radlroad Co- v. Andrews, 50 Fed. Rep. 728, 1 O. C. A. 636, followed.</p> <p>2. Same—Rule of Decision in Federal Courts—State Decisions.</p> <p>In the absence of statutes, the decision of the courts of Kentucky that a brakeman and an engineer are not fellow servants, so as to prevent recovery from the company by the brakeman for the engineer’s negligence, since it is a construction of the general contract of service, and not a rule of property, does not bind federal courts when construing the common law of Kentucky.</p> <p>3. Same—Negligence—Proximate Cause.</p> <p>An engineer running back at night in search of cars broken from his train owes no duty to keep a sharp lookout with respect to a brakeman who, being sent forward to signal him, has gone to sleep upon the track; and the company is only chargeable with negligence constituting proximate cause in case of want of care by the engineer after discovering the brakeman.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Action by Mrs. D. L. Needham against the St. Louis, Iron Mountain & Southern Railway Company to recover for the death of her husband. Verdict and judgment for plaintiff. Defendant brings error. Reversed.</p> <p>- Statement by Sanboen, Circuit Judge:</p> <p>This is a writ of error to reverse a judgment against the plaintiff in error for its negligence in causing the death of the husband of the defendant in error, who was the plaintiff below, and will hereafter be so designated. The statute of Arkansas under which this action was brought reads as follows:</p> <p>“Sec. 5225. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. Sec. 5226. Every such action shall be brought by and in the name of the personal representatives of such deceased person, and if .there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death to the wife and next of .kin of such deceased person: provided, that every such action shall be commenced within two years after the death of such person. Act March 6, 1883.” Mansf. Dig. Ark. §§ 5225, 5226.</p> <p>Plaintiff in her amended complaint alleged the citizenship of thé parties to the suit; her marriage with D. L. Needham; that he was killed through defendant’s negligence; and then averred that there had never been any administration of his estate; that he left no issue or father or mother, but did leave a brother of the half blood, a son of his mother, who was a minor, and his next of kin. The Arkansas statutes provided that in such a case the personal property should be distributed to the widow and next of kin in equal shares. Sections 2522, 2533, 2592, Mansf. Dig. To this complaint a demurrer was interposed by the railroad company, and overruled by the court. The company then answered, and for a second defense pleaded the statute set forth above, (section 5226, Mansf. Dig.,) and averred that the plaintiff could not maintain the action under this statute. The plaintiff interposed a demurrer to this second defense, and this demurrer was sustained. The rulings of the court upon these demurrers and various rulings during the trial which followed are assigned as error.</p>

<p>1. Appealable Orders—Continuance.</p> <p>A motion for a continuance is addressed to the discretion of the court, and its action thereon is not reviewable by the circuit court of appeals.</p> <p>2. Same—New Trial.</p> <p>The action of a federal court in disposing of a motion for a new trial is not reviewable in the circuit court of appeals.</p> <p>3. Negotiable Instruments—Bona Fide Holders—Notice.</p> <p>A manufacturing corporation received negotiable notes for property sold. The notes were discounted by a banking firm, in which the president of the corporation was a partner, but he had no actual knowledge as to the consideration for the notes, or of the transaction in which they were given. Held, that the mere fact of his connection with the two concerns was not sufficient to affect the banking firm with constructive notice of the consideration for the notes and of an alleged failure thereof.</p>

Action by the state of West Virginia, to the use of the Society for Savings, against Sanders Spurlock and his sureties upon his official bond as sheriff of Wayne county. Jury waived, and cause submitted on an agreed statement of facts. Judgment for plaintiff. Defendants bring error. Affirmed.

In Equity. Bill by the Cleveland Target Company and Orator F. Woodward against the United States Pigeon Company and others for infringement of a patent. On motion for a preliminary injunction. Granted.

<p>1. Maritime Liens—State Statutes.</p> <p>The lien given by Acts Me. 1889, c. 287, to a part owner of a vessel for debts contracted and advances made for certain purposes, is not maritime in its nature, and. is therefore not enforceable through the admiralty jurisdiction of the federal courts.</p> <p>2. Admiralty—Jurisdiction of Federal Courts—State Statutes.</p> <p>While the federal courts sitting in admiralty may enforce,- according to their own rules of procedure, a right created by a state statute, which right is maritime in its nature, no subject which is not of a maritime nature can be brought within their jurisdiction by state legislation.</p> <p>3. Same—Accounting between Part Owners.</p> <p>Matters of account between part owners of a vessel belong to a court of equity, not to a court of admiralty. The Larch, 8 Ware, 28,34, and The Charles Hemje, 5 Hughes, 359, disapproved.</p>

<p>Appeals from the District Court of the United States for the District of South Carolina.</p> <p>•In Admiralty. Libel by John Hamilton against the British steamship William Branfoot to recover damages for personal injuries. Decree for libelant in the sum of $2,286 and costs. 48 Fed. Rep. 914. Both parties appeal. Affirmed.</p> <p>The libel averred that Hamilton was employed on board the steamship William Branfoot, then lying afloat in the navigable waters in the port of Charleston, in unloading a cargo of pyrites, and injured by the sudden fall of an iron stanchion, by reason of its defective, unsafe, and insecure condition, through the negligence of the steamship, her owners and officers, contrary to their duty in that behalf. The answer denied that the stanchion suddenly fell, or was either unsafe, defective, or insecure, and alleged that it “was in all respects and purposes, as far as could be ascertained by external examination, strong, safe, secure, and properly and safely riveted and fastened,” and charged that the injuries were the proximate and immediate result of the negligence of Hamilton, his coemployes, and the stevedore by whom they and he were employed, in so carelessly managing the hoisting of the cargo as to permit the iron tubs used for that purpose so to strike against the stanchion as to finally wrench it from its fastenings, and cause it to fall. Evidence having been taken, and hearing had, a decree for libelant was rendered for $2,286 damages and costs. The opinion of the district judge will be found in 48 Fed. Rep. 914. Exceptions to the taxation of costs were taken by libelant, and overruled.</p>

In Admiralty. Libel by J. W. Hall, owner of the schooner F. S. Hall, against the steamer Chatham, John S. Marsh, master, for collision. Decree for libelant in the district court, which was affirmed pro forma on appeal to the circuit court. The master of the Chatham appeals. Motion to dismiss appeal denied, and decree affirmed on the merits.

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

In Admiralty. Libel by William Chisholm, trustee, and others, against the steam barge Alexander Folsom and the schooner Mary B. Mitchell (the Mitchell Transportation Company being claimant of both) for collision. Decree for libelants. 44 Fed. Rep. 932. Claimants appeal. Reversed.

<p>Maritime Liens—Enforcement—Disposition of Surplus—Jurisdiction of District Court.</p> <p>A tug was sold to satisfy certain maritime liens, after tbe discharge of which there remained in court a surplus, which was claimed by both the former owner and his creditors. The creditors who petitioned that the fund be paid to them were of two classes,—those claiming for supplies furnished to boats other than the tug, and for which suits in personam, were pending; and those claiming for services rendered as master of the tug and of other boats, and for which judgments in personam had been obtained and executions returned nulla bona. Held, that the suits and judgments in personam conferred no vested right on the master of the tug or other petitioning creditors to a specific interest in the surplus, such as the forty-third admiralty rule contemplates, and that, therefore, the district court had no jurisdiction in admiralty to create liens on the surplus as against the former owner.</p>

<p>1. Circuit Courts—Jurisdiction—Construction op Will.</p> <p>Where the necessary diversity of citizenship exists, the circuit court has jurisdiction of a suit for the construction of a will, the execution, validity, and probate of which are recognized, there having been no construction of the will, and no adjudication of complainant’s rights thereunder, either by the probate court in which the settlement of the estate is pending, or by any other tribunal having jurisdiction of the subject and the parties. Colton v. Colton, 8 Sup. Ct. Rep. 1164, 127 U. S. 801, 308, followed. Broderick’s Will, 21 Wall. 503, distinguished.</p> <p>2. Deed—Delivery—Evidence.</p> <p>A husband used moneys of his wife in settling his own debts, and thereafter had the use of her funds, without ever accounting. He subsequently conveyed to her all of the property then possessed by him by a deed, reciting a consideration of $50,000, and reserving a life use of the property. The deed, executed with all due formalities, was found after his death in his office safe, in an envelope containing other valuable papers which belonged to his wife, and of which he had charge; and in a will made shortly before his death he formally declared that he had “executed aud delivered ” to his wife such a conveyance. Held, that these facts were suffi-' cient to establish the delivery of the deed.</p> <p>3. Wills—Construction—Creation op Trust—Intent op Testator.</p> <p>By the second clause of his will, the husband, after stating that his reasons fot making the will were to avoid all questions that might arise about the previous deed to his wife, and to express his wishes as to the use and disposition of the property conveyed to her, devised and bequeathed to her all the real and personal property of which he died seised or possessed; and by the fifth clause he expressed his desire that his wife “should make free use of all the property so conveyed and devised to her for her own use or for charitable purposes, knowing that, in case any of my immediate relatives or her sister should, by misfortune or otherwise, 'need any assistance, she would generously share with them; and therefore I feel no hesitation in leaving with my wife the power to carry out the wishes as expressed herein.” Held, that no enforceable trust was created, for the desire of the testator was not imperative, as it left with the wife the power to judge both when aid was needed and the amount thereof.</p> <p>4. Same.</p> <p>By the sixth clause testator provided that “it is my wish that such property as my wife may have remaining undisposed of at her death that she should previously will the same to her sister, and to m v brothers and sisters, in equal proportions, leaving it entirely with her to make such disposition of her property by will as her judgment shall dictate, merely expressing my desire in the premises; and, should she-prefer to retain or dispose of the property so conveyed and devised to her in a manner diSerent from my wishes as herein expressed, she is at full liberty to do so, without having her right or motives for so doing called in question. ” Held, that no trust was created in favor of the brothers and sisters of testator enforceable against the estate of the wife, who died intestate, as the power given to her was discretionary.</p>

In Equity. Bill by Northern Pacific Railroad Company to restrain the city of Spokane and others from destroying an existing -depot, and from preventing the building of a new one. A preliminary restraining order was granted. Heard on motion to vacate the order. Granted in part.

<p>In Equity. Bill by the Cleveland Stone Company against John E. Wallace, Lee R. Wallace, William H. Wallace, and Margaret Wallace to restrain infringement of trade-mark. Temporary injunction granted.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>In Equity. Bill by Harriet W. Leighton and Charles M. Leighton against Rowena Young, Ellis L. Bierbower, United States marshal, and James H. McMurtry, to restrain the execution of a writ of possession by the United States marshal until the value of certain improvements should be paid. Injunction granted, and decree for cómplainánts on certain conditions. Complainants appeal. Reversed.</p> <p>Statement by Caldwell, Circuit Judge:</p> <p>In 1884, Rowena Young brought suit in ejectment in the circuit court of the United States for the district of Nebraska against Harriet Leigh-ton and Charles M. Leighton for the land which gave rise to this suit. On the trial of the ejectment suit the land was adjudged to belong to the plaintiff in that suit. The defendants were bo'na fide occupants and claimants of the land, and entitled to the rights secured to such occupants by the occupying claimant’s law of that state.</p> <p>In answer to an inquiry submitted to them by the court, at the request of the parties, the jury in the ejectment suit returned a special finding to the effect that the'land was worth $6,000 without the improvements, and that the improvements were worth $11,000. The statutory mode of proceeding to ascertain the value of the land and the improvements was not observed, and the special finding returned by the jury was not made the basis of any order or judgment of the court in the case. On the 17th day of December, 1888, judgment was entered in favor of the plaintiff for the recovery of the land. See 87 Fed. Rep. 46. In this state of the record, the plaintiff in that suit, on the 19th day of March, 1889, without paying or tendering to the defendants the value of their improvements, caused a writ of possession to issue on the judgment in ejectment, and the.marshal was about to put the defendants out of possession of the land, when they filed the present bill against the plaintiff in the ejectment suit and the marshal, setting up the foregoing facts, and their rights as occupying claimants, and praying that the execution of the writ of possession be enjoined until the complainants had been paid the value of their improvements on the land.' The injunction was granted.</p> <p>The defendant answered the bill, admitted the special finding of the jury in the ejectment suit, but denied that it was binding on either party as to the value of the land and improvements; alleged that it was merely made “for the purpose of that hearing, and for the purpose of appeal, if necessary;” that the land was worth more, and the improvements less, than was stated in the special finding; admitted the defendant had sued out a writ of possession upon the judgment in ejectment, “and that this defendant desires possession of said property, or that the said plaintiff shall proceed according to law to have the value of said property fixed, and duly tender to this defendant the value of said property.”</p> <p>The cause was heard on the bill, answer, and replication before Mr. Justice Brewer, then circuit judge, and it was decreed that the special •verdict did not estop the parties on the question of the value of the land and improvements, and á master was appointed, with directions to as•certain and report (1) the value of the lasting and valuable improvements erected on the land by the complainants before they received actual notice of the defendant’s claim; (2) the net annual value of the rents and profits received by the complainants after they received notice of the defendant’s title by service of process, which amount was to -be deducted from the value of the improvements; (3) the value of the land at the time the complainants went into possession thereof, or when they commenced to pay taxes thereon, as the case might be. On the 8th of November, 1890, the master reported that the value of the lasting improvements put upon the land by the complainants prior to receiving notice of the defendant’s claim to the land was $10,368; that the value of the rents since the service of the process in ejectment was $180, leaving $10,188 as the net value of the improvements after deducting the rents; that the value of the land at the time the complainants became the actual occupants thereof, which was on the 28th day of April, 1881, was $1,300. The order of reference to the master embraced only these matters, but the parties stipulated that the master might report the value of the land without improvements at different dates, which he did as follows: The value of the land March 12, 1886, the date of the verdict in the ejectment suit, was $2,000; 12th of December, 1888, the date of the judgment in the suit, $4,500; 27th of December, 1889, the date of the order of reference to the master, $5,000; and at the date of the master’s report, 8th of November, 1890, $5,500. No exceptions were filed to the .master’s report. J. H. McMurtry, having purchased the land from Rowena Young, was, upon his own motion, substituted as defendant. The court below decreed “that the defendant has the right to elect whether he will take the value of the land or shall pay for the improvements; and, the defendant having filed in court his election to take the value of the land, and tendered his deed therefor, and placed the same in the hands of the clerk of this court for future delivery, it is therefore considered and adjudged that, unless said plaintiff within ninety days pay to said defendant the sum of five thousand five hundred dollars, with interest from the date of the master’s report, November 8, 1890, at seven per cent, per annum, this injunction shall stand dissolved, and this cause be dismissed, at plaintiff’s costs.” From this decree the complainant appealed.</p> <p>The sections of the Nebraska statute most material to the consideration of the case read as follows:</p> <p>“4386. Ii upon the final hearing there shall be found a balance in favor of the occupant or unsuccessful claimants, the person proving the better title may either demand of the occupant or claimant the value of the real estate without improvements, as shown by the appraisement, and tender a general warranty deed for the real estate in question to such occupant or claimant, or he may pay into court the balance so found due such occupant or claimant within such time as the court shall allow in its final decree.</p> <p>“4387. If the successful claimant shall elect to pay, and does pay, to the occupant or claimant the balance found due him on the final hearing within such time as the court shall direct, then a writ of possession shall be issued in his favor against such occupant, or decree shall be entered against such unsuccessful claimant, as the case may require.</p> <p>“4388. If the successful claimant shall elect to receive the value of the real estate without improvements, to be paid by the occupants or claimant within such time as the court shall direct, and shall tender a general warranty deed for such real estate to the occupant or claimant, and such occupant or claimant shall refuse or neglect to pay said sum of money to the successful claimant within the time allowed by the court for that purpose, then such successful claimant shall deposit with the clerk of the court the amount found due the occupant or claimant, and thereupon a writ of possession shall be issued in favor of such successful claimant, or decree shall be entered in his favor, as the ease shall require.</p> <p>“4389. The occupant or claimant shall in no case be evicted from the possession, or deprived of his right in the premises, except as provided in the two preceding sections; and, in case the successful claimant shall neglect to elect to take said real estate with improvements, or to convey the same to the occupant or claimant within such time as the court shall direct, then decree shall be entered in favor of the occupant or claimant upon his paying into the court the value of the real estate without improvement. Such decree shall have the effect to transfer and convey to such occupant or claimant the title and rights of the successful claimant.” Cobbey, Consol. St. Neb. 1891, c. 47, §§ 4386-4389, pp. 933, 934.</p>

<p>At Law. Action by the state of North Carolina, on the relation of Bain, public treasurer, to recover a tax alleged to be due from the Seaboard & Roanoke Railroad Company. Judgment for plaintiff.</p>

<p>1. Trade-Mark at Common Law—Rights or Foreigners.</p> <p>A foreigner engaged in manufacturing and selling medical preparations in bis own country, under a registered trade-mark, has no common-law right to such trade-mark in the United States, such as will enable him to claim the same, on establishing a branch business here, as against a domestic firm which had an established business under a similar trade-mark, adopted in good faith, before he had sold any goods in this country.</p> <p>2. Same—Abandonment—Registration.</p> <p>A foreigner who registers in this country a trade-mark consisting of “a red anchor, in a white oval space or field, ” in connection with particular words, cannot afterwards enlarge his rights, as against persons having in good faith an established business under the symbol of an anchor, by a new registration, claiming broadly the use of the picture of an anchor.</p>

In Equity. Bill by the Municipal Signal Company, licensee, and James F. Oyster, assignee, of letters patent No. 178,750, issued June 13, 1876, to Henry Ennis, for an improvement in telegraphic fire alarms, against the Gamewell Fire Alarm Telegraph Company and others, for infringement. Decree for complainants.

<p>In Equity. Bill by the Municipal Signal Company against the Game-well Fire-Alarm Company and others for infringement of patents. Decree for complainants.</p>

<p>In Equity. Suit for infringement of patent. Bill dismissed.</p>

In Equity. Suit by the Gamewell Fire Alarm Telegraph Company against the Municipal Signal Company for infringement of letters patent No. 164,425, issued June 15, 1875, to Stephen Chester. Bill dismissed.

<p>Patents foe Inventions—Anticipation—Infringement—Apparatus for Driving Spindles.</p> <p>Letters patent No. 296,377, issued April 8,1884, to John E. and Eugene Atwood for an improvement in tbe means of driving spindles by bands, so as to permit the use of narrow spindle frames, consist of the combination of a drive pulley and a guide pulley having parallel axes, and arranged one above the other, two spindles on opposite sides of said pulleys, and two driving bands, each encircling both pulleys and the whirl of the spindle, and each consisting of three parts, two of which pass horizontally between the whirl and the adjacent sides of the pulley, and the third passing directly from one pulley to the other between the horizontal portions. Meld, that the patent was not anticipated by a machine alleged to have been constructed and used continuously from 1877 by the W. G. & A. R. Morrison Company in its factory at Willimantic, Conn.</p>

<p>Salvage—Towage—Steamship with Broken Shaft.</p> <p>On the night of the 26th of October, 1891, the steamship Chatfield, of 1,904 tons register, and loaded with 7,400 bales of cotton, when about 53 miles out from Cape Henry, broke her shaft and lost her propeller. A strong wind was blowing at the time, which increased during the next day to a gale. There is also a strong cub-rent in that part of the ocean, setting south, and the Chatfield was carried to a point some 70 miles from Cape Henry, and off soundings. On the following morning she set signals of distress, and about 11 o’clock was approached by the cargo steamship Brixham, of 400 tons net register, and loaded deep with iron, which with great difficulty got hawsers to her, and in 9 hours towage against the wind, her hawser parting 3 times, brought her within 43 miles of Cape Henry, and into 16 or 17 fathoms of water, where the Chatfield anchored. The Brixham remained with her all night, and in the morning, the gale increasing, the Chatfield signaled the Brixham to go to port for additional help, with which request the Brixham complied. Thereafter the passenger steamship City of Augusta came up, to which the Chatfield exhibited signals of distress; she at this time dragging her anchor and drifting towards the coast. The City of Augusta, with great difficulty, and danger of fouling her propeller and disabling herself, got hawsers to the Chat-field, and towed her into Hampton Roads; the service lasting about 12 hours. The Chatfield, with her cargo and freight, was worth about $435,000, the Brixham $80,000, and the City of Augusta $440,000. Each of the salving vessels was damaged to the extent of some $5,000. Held, that the Brixham should recover $12,-500, and the City of Augusta $15,000; the same to cover» both salvage and damage claims.</p>

In Admiralty. Salvage. Ex parte the Merritt Wrecking Organization, on a petition claiming half of a salvage bounty, which had been sued for as a chose in action by the libelant. Whitehurst & Hughes, for the Brixham.

<p>In Admiralty. Libel by Thomas Pringle and others, owners of the schooner Delaware, against the schooner Michigan, for collision. The district court found that the collision was the result of inevitable accident, and dismissed the libel. Libelants appeal. Reversed.</p>

<p>Witnesses—Per Diem Pees.</p> <p>Witnesses attending federal courts are not entitled to the per diem fee of S1.50, in addition to their mileage, for time spent in coming to and returning from the place of trial, or for time occupied previous to the day of trial in conference with counsel or proctor.</p>

<p>In Admiralty. Libel by W. H. Titus, master of the tug Geo. E. Weed, against the steamer James Bowen, to recover damages for collision, and cross libel by Augustus Murphy, master of the tug James Bowen, against the tug Geo. E. Weed. Decree against the Bowen.</p>

<p>In Equity. Bill by H. K. & F. B. Thurber & Co. against the Cecil National Bank, Jacob Tome, president, and A. M. Hancock. Decree for complainants.</p>

In Equity. Bill of interpleader brought by the Bangor Electric Light & Power Company, a Maine corporation, and Frederick M. Laughton, president thereof, and a citizen of Maine, against Elizabeth R. Lee and Augustus G. Robinson, both citizens of Massachusetts, to determine the right to a certificate of 100 shares of stock in the complainant corporation. Decree in favor of defendant Robinson.

In Equity. Bill by the Finance Company of Pennsylvania against the Charleston, Cincinnati & Chicago Railroad Company and others. D. H. Chamberlain appointed receiver. 45 Fed. Rep. 436. The Pocahontas Coal Company and others intervene by petition to assert claims for materials furnished. Reference to a master ordered. 48 Fed. Rep. 188. Heard on master’s report.

<p>In Equity. Bill by the Finance Company of Pennsylvania and others against the Charleston, Cincinnati & Chicago Railroad Company and others. A receiver was appointed. 45 Fed. Rep. 436. Heard on the intervening petition of John B. Moon. Decree for intervener.</p>

<p>In Equity. Suit by Frederick Bellows against Edward A. Sowles, as executor of the wills of Hiram and Susan Bellows, and against Chester W. Witters, as receiver of the First National Bank of St. Albans. Motion by complainant for an order of court making Charles Bellows and Bert Bellows parties to the suit. Denied.</p>

<p>In Equity. Motion for preliminary injunction. Denied.</p> <p>Suit by John T. Foote, Catharine J. Cooper, and Robert D. Foote against John Glenn, trustee of the National Express & Transportation Company, to restrain the enforcement of a judgment recovered by defendant against the complainant John T. Foote. See 36 Fed. Rep. 824.. The complainants joining with Foote in the bill were the sureties upon, the bond given by him upon allowance of a writ of error to review said judgment. Complainants moved on their bill and affidavits for a preliminary injunction.</p>

In Equity. Bill filed by the American Loan & Trust Company, trustee, for which company George S. Coe was substituted, pending the suit, as trustee and complainant, against the East & West Railroad Company of Alabama and others, to foreclose the first consolidated mortgage of said railroad company, for the equal benefit of the holders of its bonds, to the number of 1,750; and auxiliary bill by Grant Bros, and others against the same defendants and James W. Schley, an…

<p>In Error to the Circuit Court of the United States for the Eastern District of North Carolina.</p> <p>Action by the city of Goldsborough against John F. Moffett, Henry C. Hodgkins, and John Y. Clarke, as principals, and Daniel G. Griffin as surety, upon a bond given to secure the performance of an alleged contract to construct waterworks. Jury waived, and trial by the court. Judgment for plaintiff. 49 Fed. Rep. 213. Defendants bring error. Reversed.</p>

At Law. Action by Henry W. Oliver and others, constituting the firm of Oliver Bros. & Phillips, against Edwin W. Gilmore upon a contract. On demurrer to the declaration. Sustained.

<p>1. Fkobate Courts—Jurisdiction—Specific Performance—Repeal op Statute.</p> <p>Act Tex. 1846, entitled “An act to organize probate courts,” (2 Sayles’ Early Laws Tex. art. 1736,) which, in section 27, expressly repeals “all laws and parts of laws heretofore in force relative to the duties of probate courts, ” was applicable only to laws conferring general probate jurisdiction, and not to Act Tex. 1844, § 2, (1 Sayles’ Early Laws Tex. art. 1341,) which vests in those courts the special power of enforcing specific performance of contracts to convey land. 50 Fed. Rep. 376, affirmed.</p> <p>2. Same.</p> <p>The act of 1846, itself, by sections 2,13-16, conferred power upon the probate courts to authorize an administrator to make a deed in satisfaction of a claim for land due by the estate, when the administrator accepted the claim, and the court, on evidence taken, approved the same.</p>

<p>At Law. Suit by Charles R. Allen against the United States to recover a drawback on certain imported coal. On demurrer to the complaint. Overruled.</p>

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p> <p>This was an appeal by William M. Marine, collector of the port of Baltimore, from the decision of the board of general appraisers, reversing the action of the collector in levying certain duties on empty bottles and demijohns. The decision of the appraisers was affirmed by the circuit court, and the collector appealed. Reversed.</p>

Habeas Corpus. Petition by C. Sanborn to be released from imprisonment, on the ground that his further confinement is in violation of Rev. St. § 990, and the constitution of California relating to imprisonment for debt. Petitioner remanded.

In Equity. Bill by the Hammond Buckle Company against the Goodyear Rubber Company and others for infringement of letters patent No. 301,884, issued July 15, 1884, to Theodore E. King and Joseph Hammond, Jr., for an overshoe clasp. The alleged infringing buckle was made by defendants under letters patent No. 418,924, issued January 7, 1890, to John Nase. A motion for preliminary injunction was heretofore denied. 49 Fed. Rep. 274. The case is now heard on the merits.

<p>In Equity. Bill by the Sawyer Spindle Company and others against the W. G. & A. R. Morrison Company for infringement of a patent. Decree for complainants.</p>

<p>At Law. Condemnation proceedings brought by the Seattle & Montana Railway Company against the state of Washington, the Columbia & Puget Sound Railroad Company, the Oregon Improvement Company, the Farmers’ Loan & Trust Company, the Northern Pacific & Puget Sound Shore Railroad Company, the Northern Pacific Railroad Company, and King county, to secure a right of way. The action was commenced in the superior court of the state of Washington for King county, and removed into the United States circuit court by the Northern Pacific Railroad Company, the Oregon Improvement Company, and the Farmers’ Loan & Trust Company. On motion to remand. Granted.</p>

<p>L Limitation op Liability—Who may Institute Proceeding.</p> <p>Under tbe limitation of liability statutes, any damage creditor may institute proceedings to arrest the offending vessel, and to have the amount of all damages, as well as the value of the vessel, judicially ascertained, and the proceeds of the vessel and freight distributed pro rata among all claimants.</p> <p>8. Same—Appraisement and Stipulation—Ex Parte Application Valid—Subsequent Suit Dismissed.</p> <p>Where, under admiralty rule 54, a stipulation is given for the value of the vessel, instead of the “transfer” provided for by statute, a “due appraisement” of the vessel is requisite to the validity of the proceeding. As, however, it is competent for a court, having ordered an ex parte appraisement,' to order a reappraisement and further security on cause shown by any creditor, the mere fact that the first appraisement and giving of the stipulation were ex parte does not render the proceeding void, or invalidate an ex parte injunction against other suits; and a subsequent suit in another district, for the same cause, should be dismissed.</p>

<p>L Towage—Duty oe Master—Approaching Storm.</p> <p>A tug towing two lumber schooners from Cheboygan to Buffalo passed Thunder bay when there were some in dications of a storm. Three hours later she was struck by a heavy squall, and two hours thereafter, during a fierce gale, a heavy sea carried away her starboard deck load, giving her a list to port, which interfered with-steering. She rounded to, trimmed her load, and then proceeded on her course. Later the towline broke, and the schooners were driven on shore and lost. Held, that the master was not negligent in not taking shelter in Thunder bay, under the-circumstances then prevailing, or in failing to turn back after he was struck by the squall, being then many miles on his course to Tawas bay, where safe shelter was-to be found. 47 Fed. Rep. 89, affirmed.</p> <p>3. Same.</p> <p>Nor was it negligence to proceed on her voyage after rounding to and trimming-her load, since the position was one of great exposure, and the storm of uncertain, duration. 47 Fed. Rep. 89, affirmed.</p>

<p>In Amiralty. Libels in rem against the steamship Wellington by C. H. Hewitt, master, and William Robertson and others, seamen, of the-San Pedro, for salvage. Decree for libelants.</p>

<p>In Equity. Bill by Louis Ranger, a stockholder, against the Champion Cotton-Press Company and all other stockholders. Heard on motion for the appointment of a receiver. Denied.</p>

<p>In Equity. Bill by Louis Ranger against the Champion Cotton-Press Company, B. P. McCabe, and other stockholders, for the declaration of a dividend and other relief. A motion for the appointment of a receiver before the answers were due was denied. 52 Fed. Rep. 609. Heard on demurrer. Overruled.</p>

<p>In Equity. Bill by Martha A. Moulton against Henry G. Sidle and others to redeem mortgaged premises foreclosed under a power of sale contained in the mortgage. Bill dismissed.</p>

In Equity. Suit by J. L. Tilley and Vesta Tilley, his wife, against the American Building & Loan Association, to cancel a bond and mortgage executed by plaintiffs to defendant. Defendant filed an answer and a cross bill asking a decree for the amount claimed to be due to it, and foreclosure of the mortgage.

In Equity. Suit by the St. Louis & San Francisco Railroad Company against Mary A. Foltz to restrain the prosecution by her of an action of ejectment against the railroad company. Heard upon bill and answer and on the pleadings and exhibits in the action of ejectment as-exhibits. Decree in favor of complainant for a perpetual injunction.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia.</p> <p>In Equity. Bill by Richard H. McDonald against O. E. Whitehurst, Daniel J. Turner, Dennis Ethridge, and Frank Dusch, trustees of the-Norfolk Classified Building Association, the said Norfolk'Classified Building Association, and Joseph B. Allen, to remove cloud from and to quiet title. Judgment for complainant. 47 Fed. Rep. 757. Defendants appeal. Affirmed.</p>

<p>1. Contracts—Sale —Agency.</p> <p>Plaintiff and defendant entered into a written agreement, in which the defendant agreed to purchase in its own name and upon its own credit, as the agent irrevocable of the plaintiff, certain goods, and to deliver the same at a specified time. Meld, that defendant was liable to plaintiff, as a vendor, for failure to deliver the goods according to the agreement.</p> <p>2. Same—Construction.</p> <p>The fact that there was attached to such agreement an exhibit showing a form of contract with a manufacturer for the manufacture and sale of such goods does not bind the defendant to procure the goods under such contract.</p>

<p>L Review on Appeal—Jurisdiction of Oirouit Court of Appeals.</p> <p>Under Rev. St. § 700, which, provides that, where there is a special finding of facts, the review on appeal may extend to the sufficiency of the facts found to support the judgment, the circuit court of appeals cannot examine the evidence to ascertain whether it justifies the finding.</p> <p>3. Same—Harmless Error.</p> <p>Where there is a special finding of facts sufficient to support the judgment, the admission of immaterial evidence, not affecting such finding, is harmless error.</p> <p>8. Negotiable Instruments—Transfer after Dishonor.</p> <p>Where one pays the note of another to a bank, and has the bank cancel the note, and deliver to him a dishonored certificate of deposit held by it as collateral security, which certificate he takes as collateral security for a new note given to him by the debtor, he takes such certificate subject to equities existing against the original payee, even though the bank was an innocent holder for value before dishonor.</p>

At Law. Indictment under the act of July 2, 1890, (26 St. at Large, p. 209,) “ to protect trade and commerce against unlawful restraints and monopolies.” Demurrer to all the counts sustained.

<p>In Equity. Bill by George H. Stahl against Albert E. Williams for infringement of- patents. On motion for preliminary injunction. Denied.</p>

<p>In Admiralty. Suit by Charles Haritwen against the steam schooner Louis Olsen for wages as master. Exceptions to libel. Overruled.</p>

<p>1. Removal op Causes—Special Appearance in State Court—Eeeect op Removal.</p> <p>A nonresident defendant, who files in the state court a special appearance, for the purpose of objecting to the jurisdiction, and subsequently removes the cause to a federal court, expressly disclaiming in his petition for removal any purpose to enter a general appearance, does not by such removal waive the jurisdictional question, but may renew the same, and have it determined by the federal court.</p> <p>2. Appearance—Special and General.</p> <p>In an action commenced in an Ohio court by attachment and garnishment proceedings, supplemented by publication of service, defendants, being nonresidents, entered a special appearance, as follows: “And now come the defendants, [naming them,] for the purpose of this motion only, and-disclaiming any and all intention of entering an appearance to this action except for the purpose of this motion, and move the court for an order dismissing this action, quashing the process of garnishment herein and the service of notice upon them by publication, for the reason that this court has acquired no jurisdiction in this action of either the persons or the property of these defendants, or either of them, none of them having been served with summons herein, and no property belonging to them, or either of them, having been seized upon such order of attachment, and none of the garnishees named therein, or served therewith, having property of these defendants, or either of them, in their possession or under their control, or being indebted to these defendants, or either of them, in any way, and these defendants being nonresidents of and absent from said state; and also move the quashing of said process of garnishment upon the further ground that the affidavit of the plaintiff filed herein was not sufficient to authorize the issuing of said process. ” Held, that this motion was not broader than that contemplated by the Ohio statute, and did not operate as a general appearance. Smith v. Hoover, 39 Ohio St. 249, followed.</p> <p>3. Service by P obligation—Res to Support.</p> <p>In an action in an Ohio court against a nonresident, commenced by the issuance Of attachment and garnishment process, and supplemented by publication of service, the sheriff’s return on the summons and garnishment showed that neither defendant nor any of his property had been found in the county. Each of the garnishees answered that he had no property or credits belonging to defendant, and these answers were not controverted by plaintiff, as allowed by the Ohio law, though sufficient time had elapsed for him to do so. Held that, as the case stood, there being no personal service and no res to support the publication, defendant was entitled to a dismissal of the cause, on’ special appearance and motion therefor.</p>

In Equity. Suit by the Heaton Peninsular Button-Fastener Company against Joseph C. F. Dick and others to restrain defendants from, procuring or inducing purchasers of button-fastening machines from, complainant to violate their contracts with complainant entered into on. the purchase of such machines. Heard on general demurrer to the bill and on motion for preliminary injunction. Demurrer overruled, and injunction granted.

In Equity. Bill by S. W. Carey and others, stockholders in the Houston & Texas Central Railway Company, against the company and various other parties, to set aside a foreclosure decree entered by consent in pursuance of a plan to reorganize the company, and to enjoin the carrying out of the scheme of reorganization. A motion for an injunction pendente lite was denied. 45 Fed. Rep. 438. Bill dismissed.

<p>Depositions—Agreement por Taking—Abandonment.</p> <p>Where, under equity rule 67, counsel have agreed that the deposition of a witness may he taken down by a typewriter in their presence, at the office of one of them, in th6 absence of the examiner, but under his constructive direction, one of the counsel cannot abandon such examination without adequate cause shown to the court on a subsequent motion to compel the production of the witness before the examiner, and, if he does abandon it without such cause, the testimony of the witness will be closed.</p>

<p>In Equity. Suit by the Finance Company of Pennsylvania and others against the Charleston, Cincinnati & Chicago Railroad Company to foreclose a mortgage. Heard on the separate intervening petitions of Robert W. Shand and the firm of Sheppard & Bro., asserting claims for legal services, and asking payment prior to the satisfaction of the mortgage bonds. Petitions dismissed.</p> <p>For prior opinions delivered in the course of this litigation, see 45 Fed. Rep. 436, 48 Fed. Rep. 45, 188, and 49 Fed. Rep. 693.</p>

In Equity. Bill by Jay Gould against the Little Rock, Mississippi River & Texas Railway Company and Henry Wood, as trustees, to… Held: to the present plaintiff. The purchase price of the road at the foreclosure sale was such that the holders of the first mortgage bonds received 56.52 cents on the dollar for the bonds, and the plaintiff received this percentage, amounting in the aggregate to $167,864.40 on the first mortgage bonds which he held as collateral security…

<p>1. Subrogation—Assignment for Benefit of Creditors.</p> <p>M., the owner of a mortgage, loaned it to a hank for temporary use, to sustain its oredit when in a financial strait. The bank pledged the mortgage with a creditor as collateral security, and subsequently pledged with the same creditor commercial paper, owned by it, as collateral security for the same debt. Afterwards the bank made a general assignment for the benefit of creditors. The mortgagor then voluntarily paid the amount of the mortgage to the pledgee, who applied the money towards the debt of the bank. The pledgee collected the commercial paper, and, after full satisfaction, there remained a balance therefrom in the pledgee’s hands. Held, that by right of subrogation M. was entitled to this balance as against the voluntary assignee.</p> <p>2. Same—Estoppel.</p> <p>M. had proved as a general creditor against the assigned estate, and received a pro rata dividend on the full amount of his claim. Held, that he was not thereby estopped from asserting his right by subrogation to the whole of the special fund remaining in the hands of the pledgee, as that fund and his dividend together did not satisfy his claim in full.</p>

In Equity. Bill by the Patapsco Guano Company against the board of agriculture of North Carolina to perpetually enjoin the latter from enforcing against it the state inspection tax on fertilizers. Heard on motion to dissolve injunction. Motion granted, and bill dismissed.

Reversed. Statement by Sanborn, Circuit Judge: This was an action by the plaintiff in error to recover the contract price of certain stationery and advertising matter furnished the defendant. It was tried on the merits, and at the close of the evidence the court instructed the jury to return a verdict for the defendant, and this instruction is assigned as error.

<p>Limitation op Actions—Running op Statute.</p> <p>Defendants contracted to haul the steamer Butte, owned by plaintiff,'out of a river, on marine ways operated by them, and made a similar contract with the owners of the steamer McLeod. By reason of defendants’ negligence in improperly blocking the ways, the Butte slipped back into the river, and collided with the McLeod, which sank. The owners of the McLeod libeled the Butte, and recovered damages. JHeld, that the right of plaintiff to sue defendants for indemnity for the money which he was compelled to pay did not accrue, nor did the statute of limitations begin to run, until the payment was made.'</p>

<p>1. Railroad Companies—Fires—Evidence.</p> <p>In an action against a railroad company for the negligent burning of buildings situated near its tracks, where the only issue was as to the origin of the fire, evidence that, on different occasions within some weeks prior to the loss, fire had escaped from engines of the company in the immediate vicinity of the property, was admissible as tending to prove the possibility, and the consequent probability, that some engine caused the fire. Railway Co. v. Richcurdson, 91 U. S. 454, followed.</p> <p>2. Same—Instructions—Charge Taken as a Whole.</p> <p>In such case it was not error for the court to charge that it is the duty of a railroad company to keep its right of way entirely free from combustible materials, where the instruction as a whole directed the jury to determine whether inflammable materials had been spread over the right of way by employes of the company, and, if so, that such, fact was not conclusive evidence of negligence, trat only a circumstance to be considered as tending to show a careless mode of carrying on the business.</p> <p>3. Same—Parol Evidence—Title to Land.</p> <p>In such case testimony of one of the plaintiffs that the buildings belonged to himself and his coplaintiff was admissible to show a prima facie right of ownership in the property destroyed. No issue having been made as to plaintiff’s title, it was not necessary to prove the same by the best evidence.</p>

<p>1. Railroad Companies—State Regulation—Unreasonable Rates—Railroad Commissions.</p> <p>Sections 1, 10, and 11 of the act of the legislature, (Laws Mo. 1887, p. 15, Ex. Sess.,) standing alone, would seem to entitle the shipper to recover triple damages from the common carrier for exacting unreasonable and unjust freight charges, whenever a jury might deem the rate unreasonable or unjust; but looking at the whole act, in connection with antecedent legislation, in pari materia, it is held that the triple liability does not arise where-the carrier has not charged a rate in excess of the maximum rate established by the railroad commissioners, or the maximum rate permitted by the statute in the absence of any action thereon by the commissioners.</p> <p>2. Same—Common-Law Rights.</p> <p>The right of action existing at common law in favor of the shipper for extortionate charges was superseded by the remedies provided by the’statute.</p> <p>3. Same—Construction op Statute.</p> <p>The act of 1887 declares that “it shall be the duty of the railroad commissioners to see that all schedules of rates adopted by common carriers are reasonable and just, and they may, upon complaint of any person, or upon their own motion without complaint, make inquiry from time to time, and determine whether the schedule of rates prepared and adopted by any common carrier is reasonable and just. ” Held, that tbe word “may” should be construed as “shall, ” for the statute is evidently intended to be mandatory.</p> <p>4. Same—Limitations of Actions—Demurrer.</p> <p>Under the statute, causes of action which arose more than three years before the institution of the suit are barred, and where this fact appears on the face of the petition it may be taken advantage of on demurrer. Henoch, v. Chañen, 61 Mo. 139, and Bliss v. Pritchard, 67 Mo. 181, followed.</p>

<p>At Law. Action of replevin, brought by Cornelia Mackey against Moses M. Holmes to recover personal property held under a chattel mortgage. On motions to strike.out the two counts of tljp answer. Denied as to the first count, and sustained as to the second.</p>

At Law. Action by Maggie Harkins against the Pullman Palace Car Company to recover damages for the death of her husband. Verdict for plaintiff for $7,000. On motion for new trial. Refused.

<p>1. Railroad Companies—Construction Contract—'Validity—Interest op Directors.</p> <p>A railroad company, a corporation in form only, by its president entered into a construction contract, whereby defendants agreed to complete the superstructure of the road, furnish materials, and equip it by a certain date, and in payment therefor certificates for $1,600,000 of its full-paid stock and $1,600,000 of first mortgage bonds, comprising the entire capital stock and bonds, were to be delivered to defendants. On the day of the contract, and contemporaneously therewith, defendants agreed with plaintiff, acting on behalf of certain directors who were the actual stockholders, that if the contract was complied with on the part of the company they would pay to him one half of the net profits realized from the contract out of the stocks and bonds. The road was completed. One hundred and fifty thousand dollars was determined, without formal accounting, as the proportion of net profits due plaintiff, $50,000 of which was paid. Held, that though the contract was voidable, yet being an executed one, and no stockholders or creditors objecting, defendants could not retain the balance of the amount which they agreed to pay complainant.</p> <p>2. Same—False Representations. (</p> <p>The alleged fact .that defendants were induced to enter into the agreement as to amount of profits by false representations as to the amounts remaining due for right of way, and as to the amount of work done, could not entirely release defendants from liability, but could only go in reduction of the recovery.</p> <p>3. Same—New Trial—Compromise Verdict.</p> <p>In an action for the remaining $100,000 due plaintiff under the contract, after a trial occupying 10 days, a verdict was returned for plaintiff for the full amount, less $7,500, which sum represented one half of the amount paid by defendants for the assignment of a judgment against the road. Held that, this part of the verdict being a compromise, the same would not be set aside because defendants were not credited with the whole amount of the judgment.</p>

<p>In Equity. Bill by the Steiner Fire Extinguisher Company against the city of Adrian, Mich., for infringement of a patent. Bill dismissed.</p>

<p>Patents fob Inventions—Actions fob Infeingembnt—State Statutes of Limitation.</p> <p>The weight of judicial opinion being that state statutes of limitation are not applicable to actions in federal courts for infringements of patents, a circuit court of the United States, although of the contrary opinion, in the absence of any authoritative decision of the question by any appellate court, will sustain a demurrer to a plea of such statute in an action on the case for infringement of a patent, where part of plaintiff’s claim is within the saving clause of Act Cong. June 18,1874, repealing the previous limitation of such actions, and where there must be a trial in any event, and the question may be considered on appeal.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>In Equity. Bill by the Celluloid Manufacturing Company ágainst the Arlington Manufacturing Company and others for infringement of a patent. The circuit court dismissed the bill, (44 Fed. Rep. 81,) and complainant appeals. Affirmed.</p>

<p>Patents for Inventions—License—Royalty—Rescission oe Contract.</p> <p>Before the issue of a patent the patentee agreed to grant an exclusive license to manufacture under it, in consideration of the licensee’s agreement to pay a certain royalty, the agreement providing that, if the licensee should decide at any time not to continue making the patented device, then the license and the agreement should be surrendered without damage to either party. The licensee, having found that the patent, when issued, did not include all the claims he supposed it did, notified the patentee that he could not go on with the contract, paid him royalty on all the machines made up to that time, and proceeded to make others under a different patent, embodying substantial changes in the machine. Meld, that the patentee was not entitled to royalty after he received said notice.</p>

<p>Patents fob Inventions—Novelty—Wheel Harrows.</p> <p>The 5th, 6th, and7th claims of reissued letters patent No. 8,765, dated June 24,1879, to Jay S. Corbin, for an improvement in wheel harrows, consisting of the combination with a gang of rotating harrow disks of a lever for setting the same, are void for want of novelty, the improvement being merely a change in the location of the lever previously used.</p>

<p>Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Action by the American Paper-Bag Company for the use of Frank T. Benner, trustee, against William M. Van Nortwick and T. R. Troendle, to recover royalties. Judgment for defendants. Plaintiff brings error. Reversed.</p>

<p>In Equity. Suit by Herschel Caverly, administrator of Sarah Caverly, deceased, against Deere & Co., for alleged .infringement of a patent. Decree dismissing bill.</p>

At Law. Action of ejectment by the Washington & Idaho Railroad Company against the Coeur d’Alene Railway & Navigation Company and others for a right of way over public lands. Judgment for defendants.

<p>Removal oe Causes—Joint Dependants—Separable Controversy.</p> <p>An action for wrongful arrest and imprisonment and for malicious prosecution, instituted in a state court against two defendants jointly, cannot be removed by either into the federal court, under Act March 3, 1875, § 2, upon the ground of a separate controversy; and the fact that the defendant seeking removal has filed separate defenses does not make such cause of action separable.</p>

<p>1. Circuit Courts—Jurisdiction—Diverse Citizenship—Corporations.</p> <p>Under Act Aug. 13,18S8, (25 St. at Large, p. 433,) § 1, providing that, “where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either plaintiff or defendant, ” the circuit court for the southern district of California has no jurisdiction of such a suit by a Missouri corporation against an Illinois corporation, although the latter was organized for the purpose of doing business in the southern district of California, and has its principal office there.</p> <p>2. Same—Jurisdiction by Consent.</p> <p>The fact that defendant filed an answer on the merits would not authorize the maintenance of such a suit, for this would be to give jurisdiction by consent in a case not within the general jurisdiction of the court.</p>

<p>In Equity. Suit by the Electrolibration Company against John A. Jackson for infringement of patent. On demurrer to the bill. Sustained.</p>

These two actions were brought by Albert N. Monroe against the British & Foreign Marine Insurance Company, Limited, and the Union Marine Insurance Company, Limited, both being British corporations, on policies of insurance issued by them, respectively. The cases were tried together in the circuit court, and in each case a verdict was directed for defendant.

<p>1. Limitation op Actions—Construction op Statute.</p> <p>Act Ind. April 7,1881, provides that actions must be brought within the times named, as follows: “Upon promissory notes, bills of exchange, and other contracts for the payment of money, hereafter executed, within ten years: provided, that all such contracts as have been heretofore executed may be enforced, under this act, within such time only as they have to run before being barred under the existing law,” etc. Held, the words “existing law” apply to laws existing when the contract was made, and not when the suit was brought; and therefore contracts executed prior to the act are still enforceable within 20 years, as before.</p> <p>2. Same—Constitutional Law—Special Legislation.</p> <p>The fact that the statute continues in force one period of limitation for past contracts, and provides a different period for future contracts, does not render it invalid, as lacking a uniform operation, or being in (She nature of special legislation, for it is general and uniform upon all persons or things, under the same circumstances.</p>

Petition for habeas corpus and certiorari. Denied. Statement by Taft, Circuit Judge: This is a petition for habeas corpus filed by George P. Haskell, and is as follows: “In the United States Circuit Court in and for the Southern District of Ohio. “Ex parte George P. Haskell.

Petition for writ of habeas corpus and certiorari. Denied. Statement by Taft, Circuit Judge: This is a petition for habeas corpus filed by Hiram P. McKnight, and is as follows: “In the United States Circuit Court in and for the Southern District of Ohio. “Ex parte Hiram P. McKnight.

<p>1. Constitutional Law — Interstate Commerce — State Regulation —Original Packages.</p> <p>Acts N. C. 1891, o. 831, providing that persons selling seed in packages unmarked by tbe date when such seed were grown, except farmers selling seed in open bulk to other farmers or gardeners, shall be guilty of a misdemeanor, is unconstitutional and void under the interstate commerce clause of the constitution (article 1, § 8, cl. 3) with respect to the selling of seed in the original packages imported from another state.</p> <p>2. Same—Police Power.</p> <p>Where a certain subject-matter is exclusively delegated to congress by the constitution, any state legislation thereon is void, even if passed in the exercise of the police power.</p>

<p>At Law. Motion for a direction of a verdict. Granted.</p> <p>Maurice Strausky & Co. imported into the port of New York, in January, February, and March, 1890, certain steel kitchen utensils, hollow in form, glazed or enameled, blue and white, which he put upon the market, in his trade circulars, as “Strausky’s Steel Ware.” The collector classified them under Schedule C of the act of March 3, 1883, as manufactures of steel, etc., (paragraph 216,) and assessed duties thereon at 45 per centum ad valorem. The importers protested and brought suit claiming the merchandise to be dutiable at 3 cents per pound as “hollow ware,” under the same schedule and act, (paragraph 201.) The testimony of wholesale dealers was to the effect that, in the trade, the term “hollow ware” was restricted to cast-iron utensils, and did not cover the articles in suit. At the close of the testimony, Asst. U. S. Atty. Henry C. Platt moved for a direction of a verdict for the defendant on the following grounds: (1) That congress had defined the tariff meaning of the term “hollow ware,” in the first act in which the words had been used, viz., the act of March 2, 1861, where it was associated (paragraph 44) solely with castings of iron; and in the act of June 30, 1864, (paragraph 352,) the same association was made of hollow ware with cast-iron articles exclusively. (2) That the evidence established the fact that the trade meaning of the term corresponded with the congressional definition. (3) That the rulings of the treasury department had always been in conformity with such interpretation of the term.</p>

<p>In Equity. Suit by the Carpenter Straw-Sewing Machine Company against Haskell A. Searle and others for infringement of a patent. Bill dismissed.</p>

<p>In Equity. Bill by the Philadelphia Novelty Manufacturing Company against Albertus A. Weeks for infringement of patents. On final hearing. Bill dismissed.</p>

<p>Design Patents—Patentability—Album Cases.</p> <p>Design patent No. 20,347, issued November 25, 1890, to Frederick Bergner, for an album case set upright on a baseboard, and having on its exterior an oval, ornamental frame, with an open center, is invalid, since the patentee invented neither the album case nor the ornamental frame, but merely conceived the idea of placing the ornament on the case; and this conception is not patentable, for the statute only provides for patents on designs for articles of manufacture and for ornaments to be placed upon or worked into such articles.</p>

<p>In Equity. Suit for infringement of two letters patent granted to William Mack. These patents have been the subject of judicial decision, on final hearing, in Mack v. Levy, 43 Fed. Rep. 69-73; on contempt proceedings, in the same case, 49 Fed. Rep. 857; and on motion for a preliminary injunction in the suit at bar, 44 Fed. Rep. 346. Decree for complainant.</p>

<p>1. Patents fob Inventions—Pleading—Allegation of Ownership.</p> <p>In a bill for infringement it is insufficient merely to allege that complainant became the owner of the patent on a certain date, without also alleging continued ownership at the time of filing the bill.</p> <p>2. Same—Allegation as to Prior Use and Sale.</p> <p>A bill for infringement is demurrable when it merely states that the alleged invention had not been in public use or on sale for more than two years prior to the application with the patentee’s consent or allowance.</p> <p>3. Same—Novelty—Demurrer—Floral Designs.</p> <p>Letters patent No. 408,416, issued to William C. Krick, are for an improvement in floral designs, whereby, instead of tying single flowers to a toothpick and sticking them into a floral piece, so as to form a letter or design, the letter or design is first cut out of some stiff material, the flowers fastened to it, and when the form is complete it is fastened to the floral piece by toothpicks. Meld, that a want of patentable novelty is not so manifest on the face of the patent as to render a bill for infringement demurrable.</p>

<p>In Equity. Bill by Evan James Francis and Charles Banfield against Kirkpatrick & Co., Limited, for infringement of a patent. Decree for complainants.</p>

<p>In Equity. Bill by George H. George and another against George Waldo Smith and another for infringement of a trade-mark. Injunction granted.</p>

In Equity. Suit by Dexter Hatch and others against E. C. Ferguson and others to annul a decree of the state court in a partition suit. On demurrer to bill. Overruled.

<p>1. Electric Street Railways—Franchise—Powers or Council.</p> <p>The charter of the city of New Orleans (Laws La. 1882, No. 20, § 8) provides, Inter alia, that the common council shall have power to authorize the use of the streets for “horse and steam railroads. ” Held, that the words “horse and steam railroads ” were not words of limitation, and that the council was empowered to grant such franchise to electric railways.</p> <p>2. Same.</p> <p>Laws La. 1888, Act No. 135, provides that the council shall not have power to “dispose of any street-railroad franchise except after at least three months’ publication of the terms and specifications of said franchise, ” and after adjudication of same to the highest bidder at public auction, as provided for by section 21 of the city charter. Held that, after a regular adjudication to the defendant of a franchise embracing certain streets, the council could not, by simple agreement with defendant, without readvertisement or any new public auction, change the route so as to embrace 16 blocks not included in the original franchise.</p> <p>8. Same.</p> <p>The provision that the sale shall be made to the highest bidder means the highest bidder in money, and the sale of the franchise is invalid where the specifications call for, and the adjudication is made to the highest bidder in, “square yards of gravel pavement. ”</p> <p>4. Same—Injunction—Laches.</p> <p>The interval between the sale of the franchise and filing of complainants’ bill to enjoin the construction of the railway in front of their premises was one month and eight days. Held, that this was not such delay as amounted to an acquiescence in the grant, such as would preclude complainants from asserting their rights.</p>

<p>1. Ejectment—Evidence—Copy of Unrecorded and Lost Deed.</p> <p>Plaintiffs in ejectment, under a deed given by the heirs of E. in 1888, claimed a one-third interest in a boundary of land in Virginia patented to P., J., and T. in 1796. Defendant claimed that P. deeded his interest to T. in 1796; that the whole tract was sold to O. in 1834 for delinquent taxes against T.’s heirs, and deeded to O. by the clerk of the county court in 1836; and that O., his heirs, and his and their vendees, continued in actual possession ever since. Defendants showed that the original deed from P. to T. was lost; that after T.’s death it had been proven in a county in Tennessee, and recorded there in 1816; that a certified copy was recorded in 1823, in a county in Virginia where a part of the land conveyed, though no part of that in controversy, was situated; and offered in evidence a copy of the latter record held, that such copy was properly admitted as secondary evidence in connection with other evidence tending to show an abandonment of P.’s title by his heirs, the jury being cautioned that it could not be considered as constructive notice to one purchasing in good faith for value.</p> <p>2. Taxation—Porfeitures—Virginia Statutes.</p> <p>Act Va. March 19,1832, providing for the release of forfeitures of land for nonpayment of taxes, applied only to the years prior thereto, and did not affect the sales directed by the act of March 10,1832, for failure to pay taxes thereafter accruing.</p> <p>8. Same.</p> <p>Act Va. Feb. 27,1835, §2, requiring owners of lands granted by the state, and never entered on the books of the commissioner of revenue of the proper county, to have them so entered and charged with all taxes and damages in arrear, and pay the same, unless they were such as would have been relinquished by the act of 1832, and providing for the forfeiture thereof, upon default, until after July, 1836, did not apply to lands which had been long on the commissioner’s books, and which had been sold for the taxes of 1834, and not redeemed.</p> <p>4. Same—State Decisions.</p> <p>The decisions of the state supreme court relative to the acts of the Virginia legislature relating to the forfeiture of lands for nonpayment of taxes are controlling in the circuit court of appeals.</p> <p>6. Trial—Modification op Instructions.</p> <p>Plaintiff’s requests to charge that the purchaser at the tax sale took T.’s one-third interest only, and thereby became a cotenant with F. and J., and could not hold against them by adverse possession, were properly modified by the court so as to make the proposition applicable only in case the jury found that F.’s interest in the land had not been forfeited to the commonwealth or sold to T.</p> <p>6. Same.</p> <p>It was not error for the court to strike from an instruction the words, “and all the other facts and circumstances of the case, ” when all the facts and circumstances bearing on the question covered by the instruction were embraced in it.</p> <p>7. Vendor and Vendee—Dona Fide Purchasers—Notice.</p> <p>The fact that lands at the time of their sale are in the open and notorious possession of others than the vendor, and that the deed from the vendor purports to convey only the land of which the vendor’s ancestor died possessed in certain counties, without further description, is sufficient to put the vendee on inquiry, and prevent his protecting himself as an innocent purchaser for value without notice.</p> <p>8. Adverse Possession—Color of Title.</p> <p>The land was listed fortaxation in the names of T.’s heirs alone, and was sold for taxes in their name in 1834, and was conveyed to the purchaser by deed, describing it by metes and bounds. Held, that the deed gave the purchaser color of title to all the land described in it, so that the purchaser’s claim of title to and entry upon all the land, and his uninterrupted possession with payment of taxes for the time prescribed by law, ousted F.’s heirs as tenants in common, and made his possession adverse to such heirs from the time of entry.</p> <p>9. Boundaries—Adverse Possession.</p> <p>Where a person enters upon land under a deed purporting to convey a certain boundary, and actually occupies a portion of the tract, the law extends his adverse possession to the boundaries, without his fencing or cultivating the whole.</p> <p>10. Adverse Possession—Between Cotenants.</p> <p>A tenant in common will be deemed to have notice of the adverse holding by his cotenant, where the hostile character of the possession is so openly manifested that a man of reasonable diligence would discover it.</p> <p>11. Trial—Instructions—Province of Court.</p> <p>A judge of a United States court does not invade the province of the jury by expressing his opinion on the facts, when the law is correctly stated, and all matters of fact are submitted to the final determination of the jury.</p> <p>13. Same—Statutes.</p> <p>An instruction in strict accordance with the statutes of the state, relating to the length of time necessary to bar a right of entry, is proper in an aetion in ejectment, when there is no evidence before the jury rendering it inapplicable.</p>

<p>1. Constitutional Law—Trustees.</p> <p>Rev. St. Ind. § 2988, which provides that it shall be unlawful for any person, association, or corporation to appoint a nonresident a “trustee in a deed, mortgage, or other instrument in writing, except wills, for any purpose whatever, ” is in con fiict with Const. U. S. art. 4, § 2, which provides that “citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. ”</p> <p>2. Federal Courts—Jurisdiction—Diverse Citizenship.</p> <p>Where a citizen of Illinois is appointed- trustee by an Indiana court of property situated in the latter state, the citizenship of such person for the purpose of jurisdiction is not affected by such appointment, and he may maintain an action in a federal court for Indiana in his trust capacity for damages to such property.</p>

<p>Dower in Mining Claims.</p> <p>The mere possessory right given by Rev. St. § 2322, to the locator of a mining claim is not such an estate as that dower can be predicated thereon by state legislation as against the United States or its grantee. 49 Fed. Rep. 549, disapproved.</p>

The patent is infringed by a car brake which is the same in construction and operation, excepting that in the patent the first toggle lever is connected directly with the rock shaft, while in defendant’s device it is connected therewith by an intermediate rod or link. . In Equity. Bill by the Pacific Cable Railway Company against the Butte City Street Railway Company for infringement of a patent. Decree for complainant.

<p>In Equity. Bill by the Union Switch & Signal Company against the Johnson Railroad Signal Company for infringement of a patent. Decree for complainant.</p>

<p>1. Patents fob Inventions—Novelty—Side-Hill Plows.</p> <p>Claim 3 of letters patent No. 220,453, issued October 7, 1879, to Wiard & Bullock, for an improvement in side-hill plows, consisting of a “reversible double mold-board jointer, in combination with a reversible moldboard plow, ” discloses patentable novelty, and is valid'.</p> <p>2. Same—Infringement.</p> <p>A double moldboard, one part forming the land side and the other the furrow side, is an essential element of the claim, and a plow having a jointer lacking this feature does not infringe, although the words “double moldboard” were inserted, by requirement of the patent office, without sufficient reason.</p>

In Equity. Bill by Mathias Hohner against William R. Gratz for infringement of a trade name. On final hearing. A motion for leave to file a supplemental answer setting up a foreign judgment was heretofore denied. See 50 Fed. Rep. 369. Decree for complainant.

<p>Admiralty Appeals—New Evidence—Rules of Court.</p> <p>Rule 7 of the admiralty rules promulgated by the circuit court of appeals for the second circuit, to take effect July 2, 1892, authorizes the taking of new proofs only on sufficient cause shown to the court or a judge thereof pursuant to an application made within 15 days after the filing of the apostles, and upon 4 days’ notice to the adverse party. Held, that this rule will not be enforced as against a party whose case was tried in the district court prior thereto, in reliance upon the right to introduce such new testimony on an appeal as was permissible under the then existing rules and practice of the circuit; and in such a case the court will, as under the old practice, receive new material evidence which was not intentionally withheld in the district court. The new rule is not an innovation in admiralty practice.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia.</p> <p>In Admiralty. Libel in rem against the steamboat Mattano and George L. Sheriff, her owner, by the Marine Railroad, Shipbuilding & Coal Company, to recover for repairs made on the vessel. Decree for libelant as to a small part of its claim, which decree was affirmed in the circuit court. Libelant appeals. A motion to dismiss the case for want of jurisdiction was heretofore overruled. Reversed.</p>

<p>In Admiralty. Libel by Peter H. Riggs, master of the schooner John H. May, against the steamer Orion, whereof William H. Smith is master, and the barge Oakland, whereof George A. Belcher is master, for damages for a collision. Decree for libelant.</p>

<p>1. Collision between Steamers—Signals—Failure to Reverse.</p> <p>A collision happened in the nighttime at the junction of the Ft. McHenry and Brewerton channels of the Patapsco river, between two sidewheel passenger steamers, the Virginia and the Louise. The Louise, the incoming steamer, at a proper distance, signaled to the Virginia by two blasts that she desired to take the southerly side of the channel, being the side which was on her port. The signal was answered by a steam tug, which was hetweep her and the Virginia. Without getting any reply from the Virginia, the Louise put her helm to starboard, and continued, at her full speed of 11 miles an hour, until she was about a quarter of a mile from the Virginia, when she again gave a signal of two blasts. The Virginia, being then over on the southerly edge of the channel with her wheel to starboard, and the channel being obstructed by a schooner, was unable to avoid the Louise, and they collided just at the bend of the channel. Meld, that the Louise was in fault (1) in putting her helm to starboard, and taking the side of the channel which was on her port, without getting an assenting signal from the Virginia: (2) in not obeying the rule which required her, having the Virginia on her starboard side, to keep out of the Virginia’s way; (3) because, when the risk of collision was apparent, the Louise did. not stop and reverse her engines, but merely slowed. 49 Fed. Rep. 84, affirmed.</p> <p>2. Same—Rate of Speed—Signals—Mutual Fault.</p> <p>The Virginia heard the signal of two blasts given by the Louise, and, when the tug answered, supposed it was intended for the tug. She continued at full speed, but neither made out the side lights of the Louise nor signaled until the Louise came from behind the schooner and signaled, when the steamers were less than half a mile apart. Then the Virginia blew danger signals, reversed, and did all she could to avoid a collision. Held, that the Virginia was in fault in continuing at full speed in a place of danger in violation of rule 21, and in failing to have a distinct understanding with the Louise by interchange of signals as required by inspectors’ rule 8. 49 Fed. Rep. 84, affirmed.</p>

<p>1. Collision—Steamer with Ship and Tugs—Proximate Cause.</p> <p>In a suit for collision occurring in New York harbor between a steamer and a steamship in charge of two tugs, the latter three at no time moving more than two knots an hour, exclusive of the current, it appeared that the steamer might have so shaped her course when half a mile away as to easily avoid danger of collision, but the district court found that the vessels would have safely passed starboard to starboard had not one of the tugs, owing to inattention to the steamer’s movements, hauled off strongly to starboard and been followed by the ship; that there was no proper lookout on either of the tugs or the ship; and that those in charge were inattentive to the signals of the steamer. Held, that on the facts found the steamer must be acquitted of fault, for, if negligent in the beginning, her negligence was not a proximate cause of the collision.</p> <p>2. Same—Ship Participating in Tug’s Fault.</p> <p>A steamship was taken in tow by two tugs under an agreement that the tugs should have practical command of her, and the master of one tug stood upon the ship’s deck beside the ship’s master and delivered orders, which were communicated by the latter to the ship’s crew. A fault was committed by the other tug, wherein it was followed by the ship through orders thus delivered, resulting in a collision with a steamer. Held, that while the tug was not the mere agent of the ship so as to render the latter liable under the rule of respondeat superior, yet the ship was a participant in the fault, and on that ground was liable with the tugs. The Doris Eckhoff, 1 C. C. A. 494, 50 Fed. Rep. 134, 1 U. S. App. 129, distinguished.</p> <p>3. Same.</p> <p>Both tugs were liable because they were engaged in a joint undertaking and belonged to the same person, and the collision was caused by the concurring negligence of the masters of both.</p> <p>4. Same—Apportionment op Damages.</p> <p>Under these circumstances, the decree properly apportioned the damages of the steamer between the ship and the two tugs, and divided the damages received by the ship between herself and the tugs.</p> <p>5. Same—Appeal—Review—Conclusions op Fact.</p> <p>In a collision case the district court’s conclusions of fact will not be disturbed when they involve doubtful questions of fact depending upon testimony which is quite conflicting, and upon the credibility of" the witnesses examined in the presence of the court.</p>

<p>Collision—Steam Vessels Meeting—Inspectors’ Rules — Necessity for Timely Signaling.</p> <p>The steam tug McCaldin Brothers, going up the Hudson without a tow, met nearly head and head the steam tug Ice King, with a tow on a hawser, just below Anthony’s Nose. It was flood tide, on which tide it is the custom for boats going up in that neighborhood to take the middle of the river. The captain ana pilot of the McCaldin Brothers were under the influence of liquor,' and that boat sheered to the east side of the river, on which side the Ice King was coming down. Neither of the boats blew whistles, in accordance with the inspectors’ rules, though each was visible to the other when half a mile away. The McCaldin Brothers was struck on her port bow, and sunk. Held, that the chief fault for the collision lay with the McCaldin Brothers; but that, as it was impossible to find that the giving of a timely signal by the Ice King might not have been of use in preventing the collision, held, that both vessels were liable.</p>

<p>In Equity. On motion to remand. Motion granted.</p>

<p>In Equity. Bill by Will O’Keefe and .John D. Brayman against Charles W. Cannon, Theodore II. Kleinschmidt, and Edward W. Knight, Sr., to quiet the complainants’ title to certain mining lands. On objections to the answer.</p>

In Equity. On motion for judgment on a bill of review. The original proceeding was a suit brought by Martha A. Miller, as legatee under the will of Mrs. Irene Clark, against five o'ther legatees, who were entitled with her to equal shares in the residuary estate. The purpose of the bill was to compel defendants to pay to the executor $5,377.83, which they claimed by gift inter vivos from the testatrix. The court rendered a decree dismissing the cause on the merits. 40 Fed.

In Equity. Bill by Dan P. Eells, trustee, etc., against the St. Louis, Keokuk & Northwestern Railway Company. Intervening petition by Isaac Kelly against the receiver, W. W. Baldwin, to recover the value of a horse alleged to have been killed by the receiver’s negligence while in course of transportation. Heard on exceptions to the master’s report. Overruled.

<p>Railroad Companies—Receivers—Liability on Contracts.</p> <p>The W., St. L. & P. Ry., as assignee of the M., I. & N. Ry., held a half interest in a certain bridge and piece of track, the maintenance and repair of which was provided for in a general contract with the other joint tenant. Receivers of the W., St. L. & P., including its leased lines, among them the M., I. & N., were appointed, and made a special contract for specific repairs, which were made by the joint tenant in accordance therewith. Thereafter a special receiver for the M., I. & N. was appointed. Held, that the receivers of the W., St. L. & P. were liable as such for the repairs, though as against the M., I. & N. they might have had a good claim therefor.</p>

<p>At Law. Action in ejectment by the Northern Pacific Railroad Company against Ernst Kranich. On motion to strike from the answer alleged inconsistent averments. Overruled.</p>

<p>1. Carriers—Interstate Commerce—Long and Short Hauls—Joint Tariff Rates.</p> <p>Where two railroad companies owning connecting lines of road unite in a joint through tariff, they form for the connected roads a new and independent line, and the through tariff on the joint line is not the standard by which the separate tariff of either company is to be measured in determining whether such separate tariff violates Act Feb. 4, 1887, § 4, which forbids greater compensation for a shorter than for a longer haul. .48 Fed. Rep. 49, reversed.</p> <p>2. Same—Publication of Joint Tariff Rate—Noncompeting Point.</p> <p>Under section 6 of the interstate commerce law, (Act Feb. 4, 1887,1 and the order of the commission of June 21, 1887, relating to the publication of joint tariffs, it is not necessary for either of the connecting lines to publish their joint, tariff at a noncompeting point, or to volunteer information of such tariff to shippers.</p>

<p>In Error to the District Court of the United States for the Northern Division of the Eastern District of Missouri.</p> <p>George K. Tozer was indicted for a violation of the interstate commerce act, (section 3,) prohibiting undue preferences. The court sustained á demurrer to the fourth count. 37 Fed. Rep. 635. Defendant was convicted under the second and third counts. For charge to jury, see 39 Fed. Rep. 369. The court subsequently denied defendant’s motions for a new trial and in arrest of judgment. 39 Fed. Rep. 904. From the judgment of conviction, defendant brings error.</p>

<p>1. Contracts—Manufacturer’s Warranty.</p> <p>Where a contractor agrees to build an experimental machine, the first under a new patent, on plans to be approved by the patentee, with warranty for the workmanship and materials of his own shop, but expressly excepting from the warranty the boiler and other parts bought outside, and the working of the machine as a whole, the relative capacity of the boiler and engines is not a matter of the contractor’s workmanship, nor is he liable for an error therein.</p> <p>2. Action on Bond—Valuation.</p> <p>In Illinois, when an experimental machine, nearly complete, is replevied from the person under contract to make it, at a valuation of $10,000 by the replevisor, such valuation is conclusive upon him in an action on the replevin bond, in the absence of evidence that he was misled, and made it in ignorance of the actual condition of the property. 48 Fed. Rep. 652, affirmed.</p> <p>3. Same.</p> <p>In any event, where the replevisor removed the property to a distant place, thus making a fair valuation impossible, and sold it and the patent right for $16,000, the value of the royalty, wholly in the control of the replevisor, having'been unknown at the time of replevin, his own valuation is conclusive, upon the replevisor.</p>

<p>1. Public Lands—Railroad Grants—Invalid Patents — Breach of Warranty.</p> <p>The fact that a patent to lands granted to a railroad company by the act of July 1, 1862, is void because pre-emption rights had attached thereto before the definite location of the road, will not enable a remote grantee thereof to maintain an action against his immediate grantor for a breach of warranty, when the grantee still retains possession, and has pending in the land department an application for a patent as a bona fide purchaser, under the act of March 3, 1887, § 3, (24 St. p. 556,) which gives preference to such purchasers in case the original pre-emptioner does not perfect his entry within the time fixed by the secretary of the interior, as authorized by the act.</p> <p>2. Same.</p> <p>The provision of the act of 1887, that nothing contained therein "shall prevent any purchaser of lands erroneously withdrawn, certified, or patented, as aforesaid, from recovering the purchase money therefor from the grantee company, ” does not add to or vary the rights of the parties at common law, but was merely intended to preserve such rights as they had thereunder.</p>

<p>1. Clerks of Court—Fees—Filing Discharges of Witnesses.</p> <p>The clerks of the federal courts are entitled to fees for filing the discharges given by the district attorney to witnesses for the government, since Rev. St. U. S. § 877, provides that such witnesses shall not depart without leave of the court or the district attorney, and it is the approved practice to give them written discharges for use in drawing their pay from the marshal. 48 Fed. Rep. 643, affirmed.</p> <p>2. Same—Filing Receipts.</p> <p>Although there is no law expressly requiring the clerks of the federal courts to take receipts from the United States collector for fines paid by persons sentenced for violation of the internal revenue laws, yet, as such receipts are necessary for the proper settling of the accounts of both clerks and collectors, they are “papers,” within the meaning of Rev. St. U. S. § 828, cl. 3, giving fees to the clerks for filing “a declaration, plea, or other paper.” 48 Fed. Rep. 643, affirmed.</p> <p>81 Same—Report on Accounts.</p> <p>Under the rule of court requiring the district attorney to examine the accounts of the marshal, clerk, and commissioners, and make a written report thereon to the court, such report, though not required by statute, becomes a part of the records of the court, and the clerk is entitled to a fee for filing the same. 48 Fed. Rep. 643, affirmed.</p> <p>4. Same—Certificate of Allowance of Accounts.</p> <p>Act Cong. Feb. 22,1875, requires the accounts and vouchers of the marshal, clerk, and district attorney to be made out in duplicate, the original to be forwarded to Washington, and the duplicate to be retained by the clerk; the papers forwarded to be accompanied by a certified copy of the order of allowance. Held, that the latter paper is no part of the vouchers required to be made in duplicate, and hence the clerk is not entitled to a fee for duplicates thereof. 48 Fed. Rep. 643, affirmed.</p> <p>®. Same—Entries of Submission and Approval of Accounts.</p> <p>Under Act Cong. Feb. 22, 1875, requiring the official accounts to be presented to the court in the presence of the district attorney or his assistant, it ;is necessary that an entry should be made, showing such submission; and the clerk is entitled to a fee for making the same, as well as for entering the subsequent order of approval or disapproval. 48 Fed. Rep. 643, affirmed.</p> <p><3. Same—Drawing Juries.</p> <p>The clerk is entitled to compensation for services rendered in procuring the names of persons to serve as jurors, and in drawing the juries for the terms of court in the district. Goodrich v. U. S., 42 Fed. Rep. 392, followed. 48 Fed. Rep. 643, affirmed.</p> <p>7. Same—Duplicate Vouchers of Accounts.</p> <p>The clerk is entitled to fees for filing the vouchers and duplicates accompanying the accounts of the marshal, since, by the instructions of the department of justice, he is required, when sending forward the originals, to certify that duplicates thereof are on file in his office. 48 Fed. Rep. 643, affirmed.</p> <p>8. Same—Copy of Bail Bond.</p> <p>Rev. St. U. S. § 1018, authorizes the sureties on a bail bond to arrest their principal, and to deliver him to the marshal before a judge or committing officer, and requires the latter, on request of the sureties, to enter their exoneration upon the recognizance or a certified copy thereof. Held, that the clerk is not entitled to a fee from the government for making a certified copy for this purpose, as the sureties themselves should pay him for the same. 48 Fed. Rep. 643, affirmed.</p> <p>9. Same—Issuing Warrant to Bring Prisoner prom Jail.</p> <p>Under Rev. St. U. S. § 1030, a formal warrant is not necessary to authorize a marshal to bring a prisoner confined at Sioux City to Ft. Dodge for trial; and the clerk is not entitled to a fee for issuing the same. 48 Fed. Rep. 643, affirmed.</p> <p>10. Same—Indictment—Copy Furnished to Accused.</p> <p>The clerk is entitled to a fee for a certificate and seal to a copy of an indictment furnished to the defendant under the rule of court, as it is the usual practice to certify copies of all parts of the record furnished by the clerk. 48 Fed. Rep. 643, affirmed.</p> <p>11. Same—Indorsing Approval op Recognizances.</p> <p>As it is the duty of the clerk to approve recognizances in criminal cases, his indorsement of approval thereon, in accordance with the usual practice, is the making of an entry or certificate, within the meaning of Rev. St. U. S. § 838, allowing a fee of 15 cents per folio for such entries. 48 Fed. Rep. 643, affirmed.</p> <p>12. Same—Paying Jurors.</p> <p>The clerk is entitled to fees for administering the oath to jurors, hoth grand and petit, when they prove up their attendance before him; for the issuance of a certificate to each juror showing the number of days’ attendance and the miles traveled, as a basis for the marshal's payment; for entering the order requiring the marshal to pay the jurors, and for making copies thereof for the marshal; and for making a report to the court of the per diem and mileage due the jurors,—since all these acts are required by the rule of court, and are useful checks upon the accounts of both officers. 48 Fed. Rep. 643, affirmed.</p> <p>13. Same—Order for Drawing Jurors.</p> <p>The clerk is entitled to fees for the certificate and seal attached to the copy of the order for drawing juries, under the provisions of the statute and rules of court, as this is the proper method of furnishing that officer with evidence of the court’s order. 48 Fed. Rep. 643, affirmed.</p> <p>14. Same—Final Entries in Criminal Cases.</p> <p>According to the settled practice in Iowa, the final entries in criminal cases should contain the following papers, for which the clerks of the federal courts in Iowa are entitled to folio fees: The commissioner’s order for appearance before the grand jury; the entry showing the due presentment of the indictment by the grand jury; the indictment; the bench warrant, and return thereon; the arraignment and plea; the entry showing trial and verdict; the sentence and final orders, such as granting new trial, modifying or suspending sentence, or directing manner and place of executing it; the mittimus and return showing the execution of the sentence; and the entry of satisfaction when afine is paid. But it should not contain the bail bonds or entries of default and forfeiture thereof, the orders for attachments of witnesses who fail to appear, the attachments themselves, or the return thereon. 48 Fed. Rep. 643, affirmed.</p> <p>15. Same—Swearing Witnesses.</p> <p>The docket fee of three dollars in criminal cases does not include compensation for swearing the witnesses, and the clerk is entitled to the statutory fee .therefor. 48 Fed. Rep. 643, affirmed.</p> <p>16. Same—Copy op Sentence.</p> <p>Code Iowa, § 4515, requires that when a prisoner is committed to the custody of a jailer the latter shall be furnished with a certified copy of the entry of judgment. Held that, when a prisoner is committed to the state jail under the sentence of a federal court, it is the duty of the clerk to furnish such certified copy, and he is entitled to the statutory fee therefor. 48 Fed. Rep. 643, affirmed.</p> <p>17. Same—Copies op Indictments.</p> <p>When the clerk, upon the written order of the district attorney, furnishes him with copies of indictments containing numerous counts against the officers of a national bank, and it clearly appears that such copies are necessary for the proper preparation of the government’s case, the clerk will be allowed folio fees therefor. 48 Fed. Rep. 643, affirmed.</p> <p>18. Same—Mittimus.</p> <p>When a prisoner is ordered to be confined until his fine is paid, the clerk is entitled to fees for issuing the mittimus, for filing the same when returned by the'marshal, and for entering his return thereon. 48 Fed. Rep. 643, affirmed.</p> <p>19. Same—Vouchees.</p> <p>The order of the court of the northern district of Iowa, directing the marshal to procure the necessary record books for the Cedar Rapids division of the district, constituted the proper voucher for his expenditures; and, as he is required to file with the clerk a duplicate of all vouchers which accompany his account, the clerk was entitled to fees for furnishing duplicates of the order. 48 Fed. Rep. 643, affirmed.</p>

<p>L Contempt—Procedure—Petition and Rule por Attachment—Time por Answer.</p> <p>Petition and rule for attaobment is a proper method to pursue in a proceeding for contempt in disobeying an order of court, although not the only remedy; and, when a copy of such petition containing the specific charges is served on defendant, six days is sufficient time in which to make answer thereto, or to ask for additional time in which to make such answer.</p> <p>2. Same—Proceeding against Corporation and Oppicers.</p> <p>On a motion for attachment against a railroad company and its officers for contempt in violating a temporary injunction and an order appointing a receiver, an objection that the motion does not specify any person by name, whom it is sought to attach, cannot avail, when such officers are well known to the court, have been served with a copy of the petition, have appeared in their official capacity, and as counsel in "litigation connected with the road, and when a proper order, if necessary, may be made from the record.</p> <p>3. Same—What Constitutes.</p> <p>After a receiver of a railroad has been appointed, a collection by the vice president of money due the company under a mail contract, and depositing same in bank to the company’s credit, and attempting to dictate what disposition the receiver should make of it, constitute contempt.</p> <p>4. Receivers op Railroad Companies—Order for Delivery op Books—Interpretation.</p> <p>An order appointing a receiver of a railroad company among other things provided that “all the hooks, vouchers, and papers touching the operation of the road ” should he delivered by its officers, servants, and agents to such receivers. Meld, that the order included all books relating to the previous history of the corporation, and all records of its transactions, and was not confined to hooks relating to the future operation of the road, or to such as the receiver might specifically demand.</p> <p>5. Same—Order por Delivery op Property.</p> <p>When an order of court appointing a receiver of a railroad company provides for the delivery to such receiver of “all and every part of the properties, interest, effects, moneys, receipts, earnings, ” etc., such order embraces the company’s seal.</p>

<p>At Law. This was an application by the importers under the provisions of section 15 of the so-called “ Customs Administrative Act” of June 10, 1890, for a review by the circuit court of the decision of the board of United States general appraisers affirming the decision of the collector of the port of New York in the classification for customs duties of certain merchandise entered at that port October 27, and November 17, 1890, which consisted of goods commonly known as “astrachans,” or “astrachan cloth,” which were returned by the United States appraiser as “manufactures, goat hair and cotton, goat hair chief value, as pile fabrics,” and duty was accordingly assessed thereon by the .collector at 49½ cents per pound and 60 per cent, additional ad valorem, under the provisions of paragraph 396 of Schedule K of the tariff act of October 1, 1890, which, omitting immaterial portions, is as follows:</p> <p>“396. On * * * and plushes and other pile fabrics, all the foregoing composed wholly or in part of * * * the hair of the camel, goat, alpaca, or other animals, the duty per pound shall be four and one half times the duty imposed by this act on a pound of unwashed wool of the first class, and, in addition thereto, sixty per centum ad valorem</p> <p>The importers protested that the goods, being manufactures of hair, valued at over 40 cents per pound, were dutiable only at the rate of 44 •cents per pound and 50 per cent, additional ad valorem, under paragraph •392 of the same schedule and act, which, omitting immaterial portions, is as follows:</p> <p>“392. On * * * all manufactures of every description made wholly or in part of * * * the hair of the camel, goat, alpaca, or other animals, not specially provided for in this act, * * * valued at above forty cents per pound, the duty per pound shall be four times the duty imposed by this act on a pound of unwashed wool of the first class, and, in addition thereto, •fifty per centum ad valorem</p> <p>The board of United States general appraisers, sitting at the port of New York, proceeded to take voluminous testimony offered on behalf of -the importers and of the government; the former producing the evidence •of a large number of importers and merchants dealing at wholesale in the fabrics in question, whose testimony tended to show that at the date •of the passage of the tariff act of October 1,1890, and prior thereto, the term “pile fabrics” had in trade and commerce a restricted meaning, which comprised and included only a group of fabrics such as velvets, plushes, etc., in which the pile was uniformly cut in the process of weaving and stood erect, the surface of the fabrics consisting of the ends of the piles; and that in this class or group of fabrics the trade did not include the astraehans in question, which were always bought and sold by the specific term of “astraehans,” and were never included within the ¡group of “pile fabrics” as known to the trade.</p> <p>On behalf of the government the testimony of a number of merchants ■and dealers was produced, tending to show that in trade and commerce in the United States at the time of the passage of the tariff act there were •no fabrics bought and sold in trade by the name or designation of “pile fabrics;” and there was some testimony tending to show that “pile fabrics” was not a term or designation known or used in the trade, as applied to any goods. On behalf of the collector and the government the testimony was further produced of several manufacturers in the United States of merchandise identical with or similar to the plaintiffs’ importations, which manufacturers testified that in their trade the term “pile fabrics,” as technically understood, included the entire class of fabrics which were woven with a pile, namely, where the pile threads—usually the warp threads—were “thrown up” from the warp; and that, then the loops of the “pile,” so-called, were either cut by a system of wires and knives following the process of weaving, or in some cases were left uncut, pile fabrics including with them all fabrics where the pile was either cut ■or uncut, and that it made no difference whether the pile remained standing straight or was cut or steamed or crushed in the process of finishing. ’The testimony of these manufacturers likewise tended to show that, as they understood commercial terms as used in the wholesale trade with which they came in contact, “pile fabrics” had no special or restricted meaning different from the technical or common signification of the term as applied to all fabrics having a pile, whether cut or uncut, and whether curled or straight.</p> <p>The board, of United States general appraisers, in deciding the case, delivered a very elaborate opinion, going over the question of manufacture, and finding in substance, among other things, that the words of the statute, “other pile fabrics,” could not refer to plushes, that article being enumerated in paragraph 396, and that, therefore, the words must be taken as descriptively covering fabrics which in some respects differed from, but were akin or allied to, the only fabric named. The board also cited the definition of “pile fabrics” as given in the Encyclopedia Britannica, which covered looped or uncut pile and cut pile; also the Century Dictionary definition of “astrachan” as a “rough fabric, with a long, closely curled pile in imitation of the fur;” and also the definition in Webster’s and Worcester’s Dictionaries of the word “pile.” The board further held that the testimony of manufacturers should be admitted to explain the meaning of words used in the tariff act, inasmuch as manufacturers appeared before the committees of congress and gave testimony concerning the goods made by them, and the rates of duty to be imposed thereon. The board further found as follows:</p> <p>“From the inspection of other protests concerning the same subject-matter now before us, it appears that a number of the witnesses who testify in this case to the effect that ‘ pile fabrics ’ is a term understood in the trade to embrace only fabrics similar to velvets and plushes in which the pile threads stand erect, presenting a smooth surface, are pecuniarily interested in maintaining the claims of these protests. A considerable number of disinterested merchants, both in and outside of New York, whose testimony we have taken, concur in saying that the term ‘ pile fabrics ’ was not, prior to October 1,1890, a term in commercial use, by whieh goods were bought or sold; that all such fabrics are specially designated in the trade; indeed, the claim is made by merchants in a case now before us from San Francisco that certain astrachans, classified as trimmings, are pile fabrics. ”</p> <p>The board of United States general appraisers made the following findings of fact:</p> <p>“(1) That the protestants, H. Herrman, Sternbach & Go., imported into the port of New York, in October and November, 1890, certain fabrics, whieh the collector classified for duty as ‘pile fabrics,’ and levied duty upon the same at the rate of 49£ cents per pound, and, in addition thereto, 60 per cent, ad valorem, in accordance with the provisions of paragraph 396 of the act of October 1, 1890. (2) That thefabrics so imported were in fact pile fabrics, andonthelst day of October, 1890, and prior thereto, were bought and sold and exclusively known in trade by the name of ‘ astrachans.’ (3) That the so-called, ‘astraehan ’ is a fabric composed of cotton and goat hair similar in texture to plush, but different therefrom generally in the length of its pile and the style of its finish, both fabrics being often made to imitate furs, and both are largely used for similar purposes. (4) That the term ‘ pile fabrics’ was not at the time of the passage of the act aforesaid a term of commercial designation in the United States for the purchase and sale of any fabrics made wholly or in part of wool, worsted, or goat hair. (5) That at the time last mentioned there was no established, well-known, certain, and uniform general usage or custom in trade and commerce in the United States in relation to ‘ astraehans,’ excluding them from or including them within the term ‘ pile fabrics.’ ”</p> <p>And found the final conclusion of law as follows:</p> <p>“In our opinion, the words * other pile fabrics,’ contained in the paragraph above mentioned, are generic and descriptive; and, believing that the claim of the protestante is not well founded, we overrule these protests, and affirm the action of the collector. ”</p> <p>The record, including the evidence taken by the board, together with their certified statement of the facts involved and their decision thereon, was returned to the circuit court on the application of the importers, pursuant to section 15 of the above-cited “ Customs Administrative Act” of June 10,1890, and thereupon the circuit court proceeded to hear and determine the questions of law and fact involved in such decision, and, after an elaborate examination and presentation of the record and arguments by counsel in behalf of the importers for reversal and by the United States attorney in behalf of the government for affirmance of the decision of the board of United States general appraisers, the circuit court decided the case in favor of the importers’ contention, delivering an opinion, which is given below.</p>

<p>1. Patents for Inventions—License—Rights of Licensee.</p> <p>A grant by the owner of a patent of an exclusive license to sell the patented article in a specified territory carries with it an implied authority to join the owner, even against-his will, as a party plaintiff, in suits against infringers. Brush-Swan Electric Light Co. v. Thompson-Houston Electric Co., 48 Fed. Rep. 334, approved. 49 Fed. Rep. 73, affirmed.</p> <p>2. Same—Assignment of License.</p> <p>A licensee cannot divide up his license and assign to third parties all his rights in certain portions of his territory, unless a manifest intent to confer such rights appears in the contract of license; and such intent cannot be inferred merely from the grant to him and his “assigns. ”</p> <p>3. Same.</p> <p>An attempted assignment. by a licensee, without authority, of all his rights in j)art of his territory, causes no forfeiture of the rights which he acquired by his-license, and, as it passes nothing to his assignee, he may still sue for an infringement committed in the assigned territory, and may join his licensor as a party complainant therein.</p> <p>4. Same.</p> <p>The right to so join the licensor is not affected by the fact that the licensee has-also joined as a party plaintiff a corporation which is merely its agent, and which is therefore not a necessary party.</p> <p>5. Same—Estoppel.</p> <p>A patent may be assigned before it is actually issued, and where the assigneegrants to a third person an exclusive right to sell the patented article in a specified territory, and, after obtaining the patent, treats such grantee as having a valid license, and allows it to acquire an extensive business, he is estopped to deny the validity of the license.</p> <p>6. Same—Nature of Licensee’s Rights.</p> <p>A grant by the owner of a patent of an exclusive right to sell the patented article within a specified territory excludes the grantor from such territory, and confers upon the grantee a right which he exercises for his own benefit, and therefore he is not merely the agent of the owner, under an agency which may be revoked at any time.</p> <p>7. Same—Evidence -Opinions of Witnesses.</p> <p>Affidavits by the officers of a licensee corporation that it was “understood” between it and the licensor corporation that both companies should actively prosecute infringers in the licensee’s territory, were insufficient to show an agreement by the licensor to allow the use of its name in suits by the licensee; nor was such an agreement shown by the affidavit of a former superintendent of the licensor that it was understood by the officers of that company that it would support the licensee in all legal efforts to defeat infringement; for in both cases the affidavits stated .conclusions, merely, and not the facts on which they were based.</p>

<p>In Equity. Suit by the California Electric Company (licensee of the Brush Electric Company) and others against the Electric Improvement Company, the Brush Electric Company being joined as a plaintiff. A preliminary injunction was granted. 45 Fed. Rep. 241. Decree for complainants.</p>

<p>1. Patents bob Inventions—Anticipation—Trunk Looks.</p> <p>In letters patent No. 285,916, issued October 2, 1883, to Frank W. Mix, for a trunk lock, the first and fifth claims both cover the combination of a hasp plate, a hasp hinged thereto, the keeper plate, the lock bolt or lock mechanism, and the dowel pin and socket, or similar means of interlocking the plates. The first claim includes, in addition, a spring constantly pressing the hasp outward. Held, that these claims were anticipated by the Star lock, which has all these elements; and it is immaterial that it differs from the patented article in that the lock is not mounted upon the hasp or hasp plate, and that there is no holding protection and socket other than the staple, which takes directly into the lock proper, and is engaged by the lock bolt, for these features are not included in such claims.</p> <p>3. Same—Combination—Prior Art.</p> <p>The first claim of letters patent No. 337,187, issued March 2, 1886, to Frank W-Mix, for a trunk lock, covers “a hasp plate and a lock plate, the. adjacent edges of which are constructed to interlock with each other, in combination with a hasp hinged to the hasp plate, and provided on its free end with a lock, which is received in a cup or frame in the lock plate, substantially as set forth. ” Held, that as all these elements were old, the claim is too broad to be sustained in view of the prior state of the art, as shown by the “Star” lock; the Jones patent No. 44,869, November 1,1864; the Uitting patent, No. 62,453, February 26,1867; the Terry patent, No. 107,133, September 6,1870; the Hillebrand & Wolfe patent, No. 120,0 7, October 17,1871: the Haskell patent, No. 214,252, April 15, 1879; and the Crour' jatent, No. 235,130, December 7, 1880.</p> <p>3. Same—Utility.</p> <p>The second claim covers a hasp plate “secured to the cover of the trunk, ” and a lock plate “secured to the body, ” the two plates extending to the edges of the cover and body respectively, and the lock place having a cup or frame for the reception of the lock, which is carried on .the free end of the hasp, the hasp being “hinged to the hasp plate a considerable 'distance above its lower edge. ” The claim concludes with the words “substantially as set forth, ” and in the specifications the hasp is described as being “spring-pressed. ” Held, that the claim must be limited by this element and by the further element that the cup shall be so shaped as to receive and protect both the hasp lock and the hasp; and that, as thus restricted, giving due weight to the presumption of validity arising from the issuance of the patent, the claim is valid as producing a new and useful result.</p> <p>4. Same—Utility.</p> <p>When the existence of invention is doubtful, the fact of utility should have great weight in favor of the patent. Smith v. Vulcanite Co., 93 U. S. 486; Washburn & Morn Manuf’g Co. v. Beat ’Em All Barbed Wire Co., 12 Sup. Ct. Rep. 443,143 U. S. 275; Gandy v. Belting Co., 12 Sup. Ct. Rep. 598,143 U. S. 587; and Topliff v. Topliff, 12 Sup. Ct. Rep. 825, 145 U. S. 156,—followed.</p>

<p>In Admiralty. Libel in rem by the owners and insurers of the schooner John Sherman against the steamer Olympia for collision. Libel dismissed.</p>