Volume 53 — Federal Reporter

In Equity. Petition by the New York Construction Company, in the court of common pleas of Allen county, Ohio, against Kauffman Simon, the Chase National Bank of New York, and the First National Bank of Lima, Ohio, to have a promissory note delivered up and canceled. The Lima Bank was- enjoined from transferring the note. The Chase National Bank removed the cause to this court. Motions to remand and to quash the summons issued against the Chase National1 Bank.

<p>In Error to the Supreme Court of the Territory of New Mexico.</p>

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

<p>Federal Jurisdiction — Diverse Citizenship — Limited Partnership.</p> <p>A limited partnership organized under the laws of Pennsylvania, and empowered thereby to sue in its partnership name, is neither a corporation nor a citizen of that state, within the meaning of the statute requiring diverse citizenship to give jurisdiction to a federal circuit court; and it can only maintain such a suit by averring the proper citizenship of the partners.</p>

<p>Appeals from the District Court of the United States for the Northern Division of the District, of Washington.</p> <p>In Admiralty. Libel by the United States against the British steam tug Pilot for towing an American vessel between American ports, in violation of Rev. St. § 4370. A decree for libelants was entered in the district court. 48 Fed. Rep. 319. Joan Olive Dunsmuir, owner of the Pilot, appealed to this court, and the decree was reversed. 50 Fed. Rep. 437, 1 O. O. A. 523. Libelant now moves to vacate the decree of reversal, and to dismiss the appeal, on the ground that under 26 St. at Large, c. 517, § 5, subd. 5, the circuit court of appeals had no jurisdiction of the case. Denied.</p> <p>Also, a libel by Joan Olive Dunsmuir, owner of the British steam tug Lome, against Charles M. Bradshaw, collector of customs of the United States for the district of Puget sound, to recover money paid by her under protest in order to release the Lome from a seizure made to enforce a fine for violation of Rev. St. § 4370. In this case the libel was dismissed, libelant appealed, and the decree was reversed. 50 Fed. Rep. 440, 1 C. C. A. 525. The libelee now moves to vacate the decree of reversal, and to dismiss libelant’s appeal, on the ground that under 26 St. at Large, c. 517, § 5, subd. 5, the circuit court of appeals had no jurisdiction of such appeals.</p> <p>| Rev. St. § 4370 provides: “All steam tugboats, not of the United States, found employed in towing documented vessels of the United States, plying from one port to another, shall be liable to a penalty of fifty cents per ton on the measurement of every such vessel so towed by them, respectively, which sum shall be recovered by way of libel or suit. This section shall not apply to any case where the towing, in whole or in part, is within or upon foreign waters. ” The treaty between the United States and Great Britain of June 15, 1846, fixes the boundary between the two countries in the straits of San Juan de Puca by a boundary line following the middle of the strait, and also secures to each a right of free navigation over the entire waters of the strait. 26 St. at Large,, c. 517, § 5, subd. 5, provides that “appeals or writs of error may be taken from the district court or from the existing circuit courts direct to the supreme court, in any case in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority, is drawn in question. ”</p>

<p>Appeal from the District; Court of the United States for the Eastern District of Pennsylvania.</p> <p>Applications by the United States for a warrant of removal of Frank W. Fowkes from the district court for the eastern district of Pennsylvania to tlie district court for the eastern division of the eastern district of Missouri, and by the prisoner for babeas corpus. The district court denied the warrant, and discharged the prisoner. 49 Fed. Rep. 50. The United States appeal.</p>

At Law. Action by the state of Indiana against the Tolleston Club of Chicago and others, commenced in a state court, and removed to this court by defendant.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>In Equity. Bill to establish and enforce a lien on certain pumping engines for the purchase price thereof. Decree for complainants. 48 Eed. Rep. 879. Defendants appeal.</p> <p>Statement by WALES, District Judge:</p> <p>This was a suit in equity, brought in the United States circuit court for the eastern district of Pennsylvania by the Holly Manufacturing Company, a corporation organized under the laws of the state of New'.York, and a citizen of that state, against the New Chester Water Company and the South Chester Water Company, corporations organized under the laws of the state of Pennsylvania, and citizens of said state; William G. Hopper and Harry S. Hopper, citizens of the state of Pennsylvania, trading under the name of William G. Hopper & Co.; William Bucknell, a citizen of the state of Pennsylvania; Richard Wood, George Wood, Walter Wood, and Stuart Wood, citizens of the state of Pennsylvania, trading under the firm name of R. D. Wood & Co.; and the Bienville Water Supply Company, a corporation existing under the laws of the state of Alabama, and a citizen thereof.</p> <p>The bill, as originally filed, alleges that on March 21, 1887, the New Chester Water Company made á contract with Samuel R. Bullock and William S; Mercer, citizens of the state of New York, doing business under the name of Samuel R. Bullock & Co., by which Bullock & Co. agreed to construct and equip, at their own proper cost and expense, a system of waterworks at or near Chester, Pa., in the manner and according to the plans and specifications prepared by the chief engineer of the water company: the said works, to be completed and ready for occupation on or before the 1st day of January, 1888. Bullock & Co. also agreed to furnish at their own expense all lands necessary for the location of engine and boiler house and reservoir site. • On the completion of the works the water company was to cause an inspection and test of the same, to satisfy it that the said works were constructed and equipped in accordance with the terms of the contract. Bullock & Co. covenanted to transfer and deliver the said waterworks and other property to the New Chester Water Company free from and unincumbered by any liens for the benefit of laborers, mechanics, or material men. In consideration of the execution and performance of the contract by Bullock & Co., the water company was to pay that firm $500,000 in first mortgage 6 per cent, bonds of the water company, secured by a first mortgage on all the property and franchises of the water company, as authorized by resolutions of its stockholders and board of directors, and 17,000 shares of its common capital stock at a par value of $50 each-. The bonds and stock were all delivered to Bullock -ft Co. to enable them to proceed with and to procure the construction and completion of the water supply system, and to be used for that purpose, and to the payment of the said Bullock & Co. therefor when completed. That, for the purpose of carrying out their contract with the water company, Bullock & Co., on August 3, 1887, made a contract with the Holly Manufacturing Company to set up in working order at the pumping station in Chester. Pa., two pumping engines, for which Bullock & Co. were to pay to the Holly Manufacturing Company the sum of $50,-000 in six specified installments until the whole amount of the purchase money of the said engines and connections should be fully paid to the Holly Manufacturing Company. That the Holly Manufacturing Company constructed and erected the engines in accordance with lie contract, and received from Bullock & Co. $8,333.33 on account; and there remains duo and owing to the complainant the sum of 841,067, with interest fiom August 11, 1888. That Bullock & Co., after making the contract of August 3, 1887, with the Holly Manufacturing Company, for the purpose of raising money to carry on the construction of the water works, pledged the bonds and shares oi' the water company t,o William Gr. Hopper & Co. to secure the price of materials and money to he supplied for the completion of the said waterworks.</p> <p>The hill averred, in substance, the facts above stated, and prayed a decree establishing a lien in favor of the 1 lolly Manufacturing Company, free and superior to any and all liens and claims of any other parties upon the said pumping engines'; and, further, that the defendants in this cause may he decreed to pay to the Holly Manufacturing Company the amount ascertained to be due for said pumps at a short day; and that, in default thereof, the defendants ho absolutely foreclosed of all right in equity of redemption in the same.</p> <p>To the hill as originally filed the defendants demurred upon the ground of the nonjoinder as parties in the cause of Samuel K. Bullock and William S. Mercer, trading as Samuel R. Bullock A, Co., whereupon the said Samuel R. Bullock & Co. were brought upon the record by an amendment which sol forth they joined u.s parlies plaintiff, “not as seeking any special or distinct relief in the premises ii". this proceeding, hut in affirmance of the rights of their coplaintiff, the Holly Manufacturing Company, and la order to invest the court with full jurisdiction in the premises, so that a complete decree, protecting the rights of all parties, Can bo made. ” Thereupon the' defendants answered, inter alia, suggesting that the principal controversy in the cause was between the complainant the Holly Manufacturing Company and Bullock & Co., all of whom were citizens of the state of New York, and that, therefore, the court was without jurisdiction in the premises.</p> <p>At the hearing upon the bill, answer, and proofs, the following facts appeared:</p> <p>In the year 1885 charters of incorporation were obtained for four water companies, namely, the New Chester Water Company, the South Chester Water Company, the Penn Water Company, and the Upland Water Company, formed for the purpose of furnishing water for public and domestic use to the city of Chester and adjacent boroughs in Delaware county, Pa. On December 9,1886, before any work was done by them, a written agreement was entered into between the four named companies in their corporate capacity, all the stockholders thereof individually, and Samuel R. Bullock & Co., a firm of waterworks contractors. The leading purpose of the' paities to this agreement is expressed in the following clause of the preamble:</p> <p>“And whereas, the stockholders are desirous of selling their said shares of capital stock, and of transferring and surrendering the absolute control of the water companies, and the vendees (Bullock & Company) are desirous of purchasing and acquiring the same, accordingly the stockholders thereby agreed to transfer all the stock of said companies to ¿Samuel R. Bullock & Company, and to deliver to them all the charters, certificates of organization, hooks, papers, deeds, maps, plans, estimates, stock certificate hooks, transfer books, minute books, receipts, accounts, contracts, the corpoi ate seals, and all other property of any and every description, kind, or nature belonging to the water companies, or any of them; and. in consideration thereof, Bullock & Company agreed to enter into a contract with the water companies, on terms to be arranged, for the construction and equipment of a system of waterworks for furnishing water to the places which the companies were authorized to supply. ”</p> <p>The stockholders having complied with their part of this agreement, the following transactions took place and contracts were entered into, all on March 31,1887: Resolutions were adopted by t he stockholders of the Penn Water Company and Upland Water Company to soil and convey the franchises and property of those companies to the South Chester Water Company, and such written transfers were executed. Resolutions wore adopted by the stockholders of the South Chester Water Company to increase its capital stock from $1,000 to $600,000, and to issue its bonds for $300,000, to bo secured by a mortgage upon its franchises and property. Resolutions were adopted by the stockholders of the New Chester Company to increase its capital stock from $500,000 to $1,000,000, to issue its bonds for $500,000, to be secured by a mortgage upon its franchises and property, and that the company guaranty the said bonds of the South Chester Water Company. The New Chester Water Company and the South Chester Water Company entered into an agreement which, inter alia, provided that the former company, by itS'machinery, and from its reservoirs, would supply water through the pipes of the latter company to its territory. And, finally, a contract in writing was entered into between Samuel R. Bullock & Co. and the New Chester Water Company, whereby the former agreed to provide the necessary land for an engine and boiler house and a reservoir site, and to furnish all material and labor for and to construct and equip waterworks at Chester, to be accepted by the water company after completion and satisfactory inspection and test, for the consideration to the contractors of $500,000 in the mortgage bonds of the water company and 17,000 shares of its capital stock of the par value of $50 each. At that date, March 81, 1887, the stockholders of the New Chester Water Company and the number of their respective shares were as follows: Samuel R. Bullock & Co., 9,995 shares; J. L. Forwood, 1 share; W. H. Miller,! share; E. F. Fuller, 1 share; Ellis Morrison, 1 share; Charles M. Berrian, 1 share. Each of the last-named five persons then held one share of stock in'each of the other named water companies, Bullock & Co. holding the rest of the stock thereof. The proofs fully warrant the conclusion that these holdings of stock by Forwood, Miller, Fuller, Morrison, and Berrian were nominal and formal, merely to give a legal status to the organization. These five persons constituted the board of directors of the New Chester Water Company, Forwood being president, and Miller secretary. Fuller was chief engineer of the company, and an employe of Bullock & Co. Berrian was the attorney of the company, and private counsel of Mr. Bullock. All these five directors were completely under the control and direction of Samuel R. Bullock & Co. Emil Woltman, the treasurer of the company, was the confidential clerk of that firm. Samuel R. Bullock testified: “An arrangement was perfected, whereby the per: sonnel of the New Chester Water Company was subordinated to the management, direction, and'control of my firm, based upon the idea that we would carry out the objects for which that company was incorporated. ” At the dates of several transactions to which reference is about to be made, and from March 21, 1887, continuously down until November, 1888, Samuel R. Bullock & Co. had “the absolute control” of the New Chester Water Company, and the organization of that company was wholly under the management and practically in the hands of that firm. The directors acquiesced in whatever that firm did, and practically wore but its agents.-</p> <p>On April'l, 1887, the New Chester Water Company executed a mortgage of its franchises and property, then owned or thereafter to be acquired, to the Farmers’ Loan & Trust Company, a corporation of the state of New York, to secure payment of $500,000 of its bonds, payable to Samuel R. Bullock & Co. or bearer, and the South Chester Water Company executed a like mortgage to the same trustee, to secure-like bonds to the amount of $300,000. On May 31, 1887, an agreement in writing was entered into between the Southward- Waterworks, a corporation, the city of Chester, and the New Chester Water Company, whereby, for a consideration mentioned, and moving from the last-named company, the first-named corporation agreed to sell, transfer, and convey all its property, real and personal, to the New Chester Water Company. On June 13, 1887, a contract in writing was made between William G. Hopper & Co. and Samuel R. Bullock & Co., whereby, for a specified consideration, the formed agreed to furnish to the latter advances of money upon the bonds of the New Chester Water Company, as earned by and delivered to Bullock & Co., and the notes of that firm, with a deposit as further collateral security of all the stock of the New Chester Water Company and the'property of the South Ward Waterworks. On July 7, 1887, Hopper & Co. made a special advance of about $300,000 to Bullock & Co., to enable them to consummate the purchase of the South Ward Waterworks, and as securitjr therefor Bullock & Co. delivered to Hopper & Co. the above-mentioned $300,000 of bonds of the South Chester Water Company. In pursuance of a written authority signed “J. L. Forwood, President,” and “W. H. Miller, Secretary,” the real estate of the South Ward Waterworks, by the deed of that corporation, dated and executed July 7, 1887, was conveyed t-o Samuel R. Bullock in fee. On July 12, 1887, Samuel R. Bullock, by deed of that date, conveyed the said real estate to H. S. Hopper, who. on July 29, 1887, executed and gave to Bullock an instrument in writing setting forth that the conveyance to him was made as security for advances made and to be made by Hopper & Co. to Bullock & Co. All the advances which Hopper & Co. ever made under-their contract of June 13, 1887, were made prior to September, 1887. On August 3, 1887, Samuel R. Bullock & Co. and the Holly Manufacturing Company, a corporation of the state of New York, entered into a written contract,, whereby the latter agreed to manufacture two pumping engines of specified capacity, and set up the same at the city of Chester-, for the sum of §50,000; payable §8,333.33 on each engine when delivered in Chester, and the like sum on each engine when it has been properly run 30 days, and the like sum on each engine 30 days thereafter. The contract contains the following clause;</p> <p>“When said engines and connections are completed and ready for service, and on notice thereof to the party of the first part (Bullock & Co.) to that effect, the same shall he subjected to a'faT' trial of their capacity and efficiency for not exceeding twenty-four hours, anti on the successful testing thereof tlie liability of the party of the second part (Holly Company) hereunder shall cease and determine, but it is expressly understood and agreed that the party of the second part shall have a lien on all of said engines and connections, and the party of the second part may remain in and have full possession thereof until the whole amount of the purchase price of said engines and oonnections shall have been fully paid to the party of the second part or its assignee. ”</p> <p>One payment only, namely, tfie sum of §8,333.33, was made to the Holly Company under its contract, and at the date of the bringing of this suit the balance, or sum of §41,667, was due that company on said engines.</p> <p>On October 26,1887, a tripartite agreement was entered into between Samuel R. Bullock & Co., R. D. Wood & do., and William G. Hopper & Co., whereby, after reciting contracts between Bnl'ock & Co. and Hopper & Co. for advances by the latter to the former upon a pledge of bonds and stocks of water companies, and assignments by Bullock & Co. 10 Wood & Co. of the bonds and stock so pledged as collateral security for materials that they had furnished, and contracts between Bullock & Co. and Wood & Co., by which the latter had undertaken to complete waterworks at Chester. Greencastle. and Mobile, and the representation by Bullock & Co. that §200,0! <0 would enable them to complete those works, William G. Hopper & Co. agreed to advance to Bullock & Co. §200,000, the same to be applied by Wood & Co. to the completion of the waterworks at the 1hree, named places in certain specified proportions, Wood & Co. to present to Hopper ¡ & Co. the detailed applications by Bullock & Co. for money as needed, and Hop-' per & Co. thereupon to furnish such amounts (within the limit stated) to Wood) & Co., who should give their checks for the same'to Bullock & Co., who should' disburse the moneys for the purposes aforesaid: and, in consideration of this ad-! vaneo by Hopper & Co., Wooo & Co. agreed to procure the completion of the waterworks at the three named places, “clear of all lions ahead of the securities held by William G. Hopper & Co.” Under this agreement Hopper & Co. advanced the §200.000, which was all applied to the waterworks at the three named places, but not in the proportions mentioned in the contract. The specified amount applicable to the work:, at Chester was §129,800, whereas the sum actually applied was §61,000 only. But the representation by Bullock & Co. that'8200,-000 would suffice to complete the works at the three places proved to be incorrect, for, besides the money so advanced by Hopper & Co., Wood & Co., in the completion of these works, used §105,000 of their own money, and even then the balance of §11,667 due the Holly Company on the pumping engines at Chester was left unpaid, and also 825,000 duo that company on engines at Mobile. All the advances by Hopper & Co. under the tripartite agreement were made before the latter part of January, 1888, except a trifling sum, which was paid shortly afterwards.</p> <p>In October, 1887,'the Holly Company shipped one of the pumping engines to Chester, and in February, 1888, the other. Each was consigned to that company itself, and its agents at Chester received the engines, and proceeded, at its expense, to put them in place. They were set on the top of masonry foundations, and were attached thereto by a number of two inch iron bolts. They could not be operated or tested otherwise. The engines stand in a brick building erected on land which the South Ward Waterworks Company agreed to sell and convey to the Hew Chester Water Company, but actually conveyed to.Samuel R. Bullock, who conveyed the same to IT. S. Hopper for the purpose set forth in the paper executed by the latter, as already mentioned. Each engine weighs from about 70 to 80 tons, but they can easily be disconnected from the foundations on which they rest without disturbing the foundations, and can readily be taken apart aud through the door of the engine house without injury to the building. When the first engine was shipped to Chester, John Lockman, by order of the Holly Company. and as its agent, went there to superintend the erection of the. engines, and to take charge and control thereof. This he did, remaining constantly in charge. The work of setting them up and ready for service was not completed until some time in July, 1888, but for the .delay the Holly Company was mot responsible. From the time the first engine was got in working order Lockman acted as engineer, and he has maintained the exclusive charge and custody of both engines. He has carried a key to the building. His wages have all been paid by the Holly Company, and he has acted throughout as its agent. No formal test of the pumping capacity of the engines, as provided by the contract, was ever made; nor was there any formal acceptance of them by any .one. When ready, they were set to work pumping water into the reservoir, and have continued to do so under Lock-man’s control. It is shown that explicit instruction was given by the Holly Company to Lockman to hold possession of the engines for that company, but the exact date thereof does not appear. Lockman states that it was given about midsummer, 1888. Samuel R. Bullock, referring to conversations he had with the officers or representatives of the Holly Company, testified thus: “They told me that they proposed to have Lockman remain there as their representative in charge of the pumps, but they didn’t want to interfere with the operations of the company, so he could act as engineer and run the pumps right along;” and Mr. Bullock further testified that he consented to Lockman’s remaining in possession and charge, as desired by the Holly Company. The bill in this case was filed September 19, 1888, while Lockman was still in control of the pumping engines, In November, 1888, Bullock & Co. assigned their entire .remaining interest in the bonds and stock of the New Chester Water Company to Wood & Co., .and at the same time delivered to them resignations of the officers of the water company. Thereupon new officers were elected, and the water company then took the actual possession of the works, but Lockman’s control of the engines continued.</p> <p>Hopper & Co. and Wood & Co. together hold substantially the entire mortgage bond issue of $500,000 of the New Chester Water Company; 16 bonds of $1,000 each are held by Dyer & Black, under a pledge made in J uly, 1887, but only to indemnify them against a claim which the water company itself may have against them as sureties for Bullock & Co., touching a lien of $15,000 which they were to remove. All the bond's and stock of the New Chester Water Company which Bullock & Co. were to receive under their construction contract had been delivered to them probably before the first pumping engine reached Chester, and certainly before its erection began. On March 81,1890, Samuel R. Bullock and wife executed and delivered to the New Chester Water Company a deed of conveyance of the land upon which the engine house and pumping engines stand.</p> <p>Upon this finding of facts by the court, a decree was entered on the 12th- of October, 1891, dismissing the bill as to R. D. Wood & Co. so far as it sought to establish an individual liability against that firm, and sustaining the lien of the Holly Manufacturing Company upon the pumping engines; fixing the balance of the purchase money due upon the said engines and remaining unpaid at the sum of $41,667, with interest thereon from the 11th day of August, 1888; and further ordering.that, unless the defendants, or some of them, shall, on or before the 28d day of November next, pay to the plaintiff's the amounts found due them, then the said engines and their appliances, etc., to be sold at public sale on at least three weeks’ notice, etc.; whereupon the defendants the New Chester Water Company and D. R. Wood & Co. prayed an appeal to this court, and through their counsel have filed the following assignments of error:</p> <p>First. The learned court erred in holding that “upon the whole case, then, we are of the opinion that the contractual lien of the Holly Manufacturing Company upon the pumping engines here in question is valid and binding, and is enforce-' able in this suit. ” i</p> <p>Second. The learned court erred in holding that Samuel R. Bullock and William S. Mercer, trading as Samuel R. Bullock & Co., were not necessary parties defendant to the cause.</p> <p>Third. The learned court erred in holding: “So far as the bill seeks to enforce the Holly Company’s lien, it is manifest that there is no dispute between the company and Bullock & Co. Samuel R. Bullock, indeed, was one of the principal witnesses in the case on behalf of the Holly Company to establish its lien, and hence a decree in its favor would conclude him and his firm, if there was any open question on that subject affecting them. But there is no such open question. 'The Holly Company is not seeking any relief, and needs no decree against Bullock & Co. It is urged, indeed, that that company is proceeding as for a foreclosure without making its debtor, who is the owner of the property, a party defendant; but this is a mistaken view. The ownership of the engines is not in Bullock & Co., and, in truth, was never intended to be in them, for in the purchase they acted in the interest and behalf of the New Chester Water Company. But there can be no longer any pretense of ownership in Bullock & Co., for Sam«el R Bullock, by his deed, has conveyed the title to the real estate to the water company. It is laid down in Jones on Mortgages (volume 2, $ 1404) that in an equitable suit for foreclosure the mortgagor, after he has conveyed the whole of the premises mortgaged, is not a necessary party to the suit. Moreover, Bullock & Co. have assigned all their interest in the bonds and stock of the water company to Wood & Co.; therefore they have no longer any interest, near or remote, in this particular controversy. They are altogether formal parties, whose presence does not oust the jurisdiction of the court, coming within the rule laid down in Wormley v. Wormley, 8 Wheat. 453., where the applied test was whether a decree was sought against the party. Here the Holly Company seeks to enforce a charge in rein, and Bullock & Co. have neither title to nor interest in the tiling. ”</p> <p>Fourth. The learned court erred in holding that the Farmers’ Loan & Trust Company was not a necessary party defendant to the cause.</p> <p>Fifth. The learned court erred in saying to the objection that the Farmers’1 Loan & Trust Company is not joined as a defendant in this suit: “It is sufficient to say that, as substantially the whole body of bondholders is before the court, the presence of their tru itec is wholly unnecessary. Moreover, the enforcement of the Holly Company’s specific lien' does not involve the validity of the trust mortgage, nor affect Its standing as respects the principal mortgaged thing, the controversy relating to a mere incidental matter. “Again, as the joinder of the trust company might oust the jurisdiction of the court, the omission to make it a party defendant is fully warranted by equity rule 47. ”</p> <p>Sixth. The learned court erred in holding: “But, in truth, with respect to this transaction, the distinction between Bullock & Co. and the water company is purely formal and fictitious. Bullock & Co. were the water company in everything hut name. They really held the entire capital stock. Now, no court has ever yet decided that an incorporated company in this artificial capacity can be deemed to be ignorant of a matter affecting the company which is known to every individual stockholder. In our judgment, to treat the water company as a bona fide purchaser or possessor of the engines without notice of the contractual lien of the Holly Company would be unreasonable and unjust. The water company cannot honestly retain the engines without paying the balance of the purchase price. ”</p> <p>Seventh. The learned court erred in holding that the contractual lion of the Holly Manufacturing Company' was effective after the pumping engines had been delivered and put into operation upon the property of another.</p> <p>Eighth. Theloax-nod court erred in holding that the lien of the mortgage made by the New Chester Water Company to the Farmers’ Loan & Trust Company of New York, dated April 3, 1887, did not attach to the pumping engines when they were placed upon the mortgaged premises.</p> <p>>,inth. The learned court erred in directing a sale of the pumping engines upon which complainant asserted a lien without the prior entry of a decree in personam against Samuel R. Bullock & Co., who, by the undisputed evidence in tlie cause, wore primarily liable to the Holly' Manufacturing Company for the debt, to secure payment of which the sale is ordered.</p>

In Equity. Bill by Jeremiah M. Watson against George H. Stevens and others for infringement of letters patent F o. 367,484, issued August 2, 1887, to the complainant, for the “method of” and apparatus for compressing shank stiffeners. Thecircuit court held that the alleged invention consisted only of the mechanical adaptation of well-known machines and processes to a new use, and dismissed the bill. 47 Fed. Rep. 117.

<p>Res Judicata — Questions Wnicu might hayk been Litigated.</p> <p>A bill was filed in the federal jircuit court iu New Jersey for the cancellation or reformation of an agreement alleged to have been fraudulently procured. Complainant set forth that, do ¡ring to constitute his divorced wife his agent for the management of his property, and to make certain provisions for her support, but with no intention of thereby recognizing any existing marital rights, but for the sake of conciliation, he requested liis counsel to draw an agreement containing such pre visions, but, on the contrary, such agreement was fraudulently so written thr t it constituted in law a separation agreement, which recognized the claims of his divorced wife, and invested her with the power to sign deeds as such. To this bill defendant pleaded that a bill had been filed in the chancery coui t of Now Jersey to restrain complainant from collecting rents, in violation o1 such agreement, and for an accounting, etc.; that complainant answered, admitted the execution of the agreement, but averred that defendant had fi iled to keep up repairs, so that the rents had fallen off. and that in conseqm neo he was unable to pay the annuity provided for: that complainant also filed a crossbill, which defendants answered; that a final decree was entered upon ihe issues raised, dismissing the cross bill and sustaining' the agreement, lie. d, that the decree of the New Jersey court was conclusive of the validity of the agreement: for plaintiff was then in possession of all the facts, and might have litigated them in that suit.</p>

<p>National Banks — Receiver—Shareholders—Compounding Statutory Liability.</p> <p>A federal court will not, even if it has the power under Rev. St. § 5334, grant an order authorizing a receiver of a national bank to compound the statutory liability of certain stockholders by accepting payment of a gross sum, less than is'due, in satisfaction and discharge thereof, although more money would thus be realized than by proceedings to collect the same in the usual'way, when it appears probable that such stockholders have fraudulently conveyed their property to avoid their legal obligations as stockholders, or to shield themselves from injury and exposure by litigation.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>Statement by CALDWELL, Circuit Judge:</p> <p>On the 18th day of October, 1890, John R. Case, the appellant, filed his bill in the district court of Buffalo county, Neb., against Dillard R. Fant, William A. Fash, Melvina C. Fash, Ethan H. Cowles, Bessie Cowles, Stanley Thompson, and the Buffalo County National Bank, to foreclose a mortgage on certain real estate. The mortgage was made on the 11th of September, 1884, by the defendants Fash and wife to the defendant Ethan H. Cowles, to secure the payment of k promissory note, of even date with the mortgage, made by Fash, and payable to the order of Cowles, due September 11, 1889, for the sum of §18,000, drawing 8 per cent, interest por annum, for which annual interest coupons were attached, running until the maturity of the note, the principal sum drawing 8 per cent, interest after maturity until paid. Case acquired the note and mortgage in the following manner: On the 7th of February, 1885, Case loaned the defendant Cowles $9,000; and to secure the payment of the same Cowles indorsed and assigned to Case the Fash note and mortgage. On the 12th day of December, 1885, Case loaned Cowles §18,000, for which sum Cowles executed his note, payable one year after date. Out of the money received on this last loan Cowles paid the $9,000 previously borrowed, and the Fash note and mortgage, which had been pledged to secure the payment of the §9,000 loan, were now pledged to secure the payment of the §18,000 loan. The $18,000 note was not paid at maturity, and its payment was extended one year by a change of its date, but it was not paid at the expiration of the year, and on the 19th of October, 1888, it was renewed by Cowles giving a note payable 12th of December, 1889. The old note was not canceled or surrendered, and the Fash note and mortgage continued to be held by the appellant as security for the payment of the §18,000 loan. On the 19th of October, 1888, Case lent Cowles the further sum of §10,000, which was secured by a pledge of collaterals. The §10,000 note was not paid, and on the 16th of November, 1889, was renewed, there being included in the renewal note the overdue interest on the §18,000 note to that date, making the sum of the note $14,183.50. On the 10th day of June, 1890, Cowles and wife executed a certain instrument assigning to Case certain property as further security for the payment of the notes for $18,000 and $14,183.50, respectively. Case was authorized by the terms of this instrument to apply the proceeds of the securities therein mentioned to either of the notes, “as he shall elect,” and the instrument was not to affect or impair the securities which he already hold. The property mentioned in this instrument was sold, and the proceeds applied in part payment of the note for $14,183.50, except the sum of §1,307.50, which was credited on the note for §18,000. On April 4, 1888, Fash and wife conveyed by deed to Cowles the land covered by the mortgage from Fash and wife to Cowles, and which mortgage had been transferred by the latter to Case in the manner and for the purpose before stated. This deed warranted against incumbrances, “except a mortgage of $18,000, which grantee hereby agrees to assume as part of purchase price. ” On February 1, 1884, the defendant Cowles executed his promissory note to the defendant D. R. Fant for the sum of $6,488, and on the 6th day of March, 1889, to secure the payment of said note, less §1,000 which had been paid thereon, Cowles and wife executed a mortgage on the lands embraced in the mortgage from Fash and wife to Cowles, and which lands Fash and wife had conveyed by deed to Cowles, as before stated. At the time this mortgage was given, Fant executed the following instrument:</p> <p>■ “Mr. E. H. Cowles having this day given a mortgage to D. B. Fant on land in Buffalo county to secure a note of $6,488, dated 2-1-84, due July 1, '84, on which was paid $1,000 May 22, ’86, this is to certify that said Cowles represents and claims that there is now existing on said lands a mortgage for $18,000; but said Fant does not acknowledge the existence of said mortgage for want of full information. ”</p> <p>Fant appeared to the suit in the state court, and removed the case into the circuit court on the ground of diverse citizenship, and there filed an answer and cross bill. By his cross bill he seeks the foreclosure of the mortgage made to him by Cowles, and to have the lien of this mortgage decreed to be prior and superior to the mortgage from Fash to Cowles, and which the complainant is seeking to foreclose.by the original bill. The grounds upon which Fant claims that his mortgage should be decreed to be the first lien on the mortgaged premises are (1) that the conveyance of the mortgaged premises by Fash to Cowles merged the legal title to the lands in Cowles, and thereby extinguished the Cowles mortgage, whichhad been previously assigned to the complainant Case; (2) that the renewal on the 19th of October, 1889, of the Cowles note to Case for the $18,000 w.as the creation of a new debt, or was amw loan, and, if the Fasli note and mortgage was pledged to secure the renewal note, the pledge must have relation to the date of that note, and be operative onh from that date, and that as Fash had six months before that time conveyed';he mortgaged premises to Cowles, that conveyance worked a release of the mortgage, and Cowles had no mortgage to assign Case, as collateral security or otherwise; (3) that the proceeds of the sale of the securities mentioned in the assignment from Cowles to Case, dated June 10, 1890, should be applied on the 818 ,000 note. The lower court decreed that the mortgage from Cowles to Fant was ;.he first lien on the property, and gave it priority over the mortgage from Fash í o Cowles, which had been assigned to Case. From this decree the complainant, (’ase, appealed to this court.</p>

Statement by BIM.OVTON, District Judge: The Gay Manufacturing Company is a corporation under the laws of Virginia, engaged in the lumber business. Its operations were extensive, and it enjoyed large credit. Getting into pecuniary straits, a bill was filed against it by Gitfcings a,nd others, — a creditors’ bill.

<p>At Law. Action in tlie nature of ejectment by the Northern Pacific Railroad Company against Maria Amacher and others.</p>

<p>1. Landlord and Tenant — Lease—Assignment—Conditions and Covenants.</p> <p>A lease contained the following clause: “This lease not to be sold, assigned, or transferred without the written consent of the party of the first part.” Held, that this was a covenant, and not a condition, and the lease would pass by an assignment without the lessor’s consent, so that the assignee could maintain ejectment under it.</p> <p>2. Same — Instructions—Surrender op Lease.</p> <p>A request to charge that a surrender of a lease had occurred by operation of law because of the facts therein stated contained only a part of the facts bearing on the question of surrender. Reid, that the court properly refused the request, and submitted the question to the jury on all the evidence.</p> <p>3. Same — Ejectment:—Burden op Proop.</p> <p>AVhere, in an action of ejectment, based upon a lease from the owner, defendant relies on an alleged surrender thereof, the burden is on him to show it, and that burden is not shifted merely because the evidence as to the surrender went in with plaintiff’s proofs.</p>

In Error fco the Circuit Court of the United Slates for the Southern District of Iowa. Action by A. T. Davis, admi nistra tor of the estate of Olaf Hoedling, deceased, against the Chicago & Northwestern Railway Company, for death by wrongful act. Terdict and judgment for plaintiff. Defendant brings error.

e United States for tiie District of Wyoming. Action by Edward Jarvi against the Union Pacific Railway Company for injuries received in its employ. Verdict and judgment for plaintiff. Defendant brings error. Affirmed.

<p>At Law. Action by tbe Chicago Cheese Company against W. K. Fogg. A verdict was directed for defendant. On motion for new trial.</p>

<p>Examination of the Accounts of the Chief Supervisor of Elections.</p>

At Law. Action by the United States against the Great Falls & Canada Railway Company to recover the penalty of $1,000 for the importation of a laborer under contract. On demurrer to the complaint. •

At Law. Application by the importer undei 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 hoard of United States general appraisers affirming the decision of the collector as to the merchandise which was imported into the port of Now York October 10, 1890, consisting of certain linen and cotton handkerchiefs, part of which had a hemstitched border only; others were…

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p>

<p>1. Patents fob Inventions — Invention—Fly Paper.</p> <p>Letters patent No. 278,294, issued May 22,1883, to Otto Tbum for a sheet of fly paper partially covered with a sticky composition, the latter being surrounded by a margin of less adhesive material, so as to prevent it from spreading over the edges, and the third claim of letters patent No. 305,118, issued September 16, 1884, to the same person, covering the fly paper with adhesive faces placed together, so as to be packed without folding, and adapted to be separated when ready for use, are not invalid for want of invention because plasters for the body had long been made with an adhesive margin surround- , ing the less sticky substance of the medicinal compound.</p> <p>'2. Same — Prior Use and Sale — Evidence.</p> <p>A patent cannot be invalidated because of prior use and sale on the evidence of witnesses who, after the lapse of over 10 years, testify loosely and entirely from recollection, and do not produce samples of the articles sold, and when their statements are contradicted by the alleged purchasers thereof.</p>

<p>1. Jurisdiction of Federal Courts — Diverse Citizenship — Arrangement of Parties.</p> <p>Where a part owner of a distillery joins a number of associates in a contract to purchase the whole, and for that purpose agrees to convey his . existing interest therein, and afterwards, being ready and willing to perform his contract, joins with the other vendors in a suit for specific performance, he is a proper party plaintiff, and cannot be considered a defendant for the purpose of destroying the diverse citizenship necessary to maintain the suit in a federal court. 49 Fed. Rep. 183, affirmed. . .</p> <p>2. Specific Performance — Stock of Corporation.</p> <p>A clause in a contract providing for the purchase of all the stock of a- distillery company may be specifically enforced against the purchasers when it appears that it was only adopted as an expedient to secure the performance of the main stipulation, which was for the transfer of the real estate and plant. 49 Fed. Rep. 183, affirmed. ■ . ■</p> <p>3. Partnership — Firm. Real Estate — Authority of Surviving Partner.</p> <p>Where one partner in a firm which is engaged in operating a distillery . dies while the real estate is incumbered by mortgage to secure partnership. debts, and while the firm is under contract to feed cattle, and liable in damages for nonperformance' thereof, the surviving partner may have power, under the Kentucky decisions, to continue the business for the purpose of discharging these obligations, or to sell the whole property, including the real estate, for cash, but tbe existence of the obligations will not authorize him, as against the heirs of his copartner, to convert the partnership into a corporation, and convey the real estate to it for shares of stock.</p> <p>4. Same — Lands Treated as Personalty — Rights op Heirs.</p> <p>Where a distillery is purchased with partnership funds, and the naked retd estate on which it is situated forms but an insignificant part of its value, it will be presumed, under the Kentucky decisions, nothing appearing to the contrary, that the land was to be treated as personalty, as this would be for the benefit of the partnership in order to secure a prompt and profitable disposition of the firm assets; and the surviving partner can convey the whole beneficial interest, leaving only a naked legal title in the heirs. Carter v. Flexner, (Ky ) 17 S. W. Hep. 851, considered and distinguished.</p> <p>6. Same.</p> <p>Where, however, the real esf ate originally belongs to one of the partners, and several years after the formation of the partnership he conveys a one-third interest therein to his (opartnor, the land cannot bo considered as ■personalty, and on the death of the grantor his interest in the land will be subject to dower, and will pass to his heirs in the usual course of descent.</p> <p>6. Guardian and Ward — Sale o:1 Lands — Powers of Equity Courts.</p> <p>In Kentucky it is the settled rule that the po wers of the equity courts to sell and reinvest an infant’s real estate are not inherent, but are merely statutory, and the statutes must be strictly followed, or the proceeding is a nullity.</p> <p>7. Same.</p> <p>A partnership owned and operated two distilleries situated on separate tracts of land, one of which was purchased with the partnership funds and treated as personalty, wMle the other was held as real estate, each partner owning a distinct int ¡rest. One partner died, and the other organized two corporations to carry on the business of the distilleries respectively, and conveyed to them the whole property, including the real estate. Afterwards the guardian of the infant heirs of the deceased partner commenced a proceeding in chancery under Oivil Gode Ky. § 489, relating to the sale and reinvestment of infants’ lands, which proceeding resulted - in a deed by the commissionei purporting to convey the infants’ title to the corporations respectively. In this proceeding, however, the guardian failed to give the bond required by section 493, and, moreover, a reinvestment of infants’ lands in tbe shares of a corporation was not authorized by the statutes. Gen. St. Ky. c. 48, art i, § 19. Held, that the proceeding was a nullity, and neither divested the beneficial interest, of the heirs in the land which was owned in separate interests by the partners nor transferred their naked legal title to the 1 tnd which was treated as personalty.</p> <p>8. Same.</p> <p>Civil Code Ky. § 490, authorizes a sale by proceedings in chancery of real estate owned jointly by two or more persons when the same cannot be divided without materially impairing its value, even though some of the owners are infants or of unsound mind. Section 497 declares that on such a sale the share of an infant or person of unsound mind shall not be paid by the purchaser, but shall remain a lien on the land, bearing interest, until the disability is removed, or until the guardian or committee executes a bond as required by section 493. Held, that, these provisions show that only a sale for money in cash or on credit is authorized, and an exchange for shares of stock in a corporation, to which the land is conveyed, is void. 49 Fed. Rep. 183, reversed.</p>

In Equity. Bill by the Socio be Anonyme du Filtre Chamberland Systeme Pasteur and the Pautenr Chamberland Filter Company against Ambrose A. Blount ami Frank K. Way for infringement of a patent. An order gran ting a preliminary injunction was entered in the circuit court, partly on the authority of a like injunction granted in the seventh circuit in a suit between the same parties See Pasteur-Chamberland Filter Company v. Funk, 52 Fed. Bep. 146.

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p>

<p>1. Patents eob Inventjons — Inven won — Pipe Cotteks.</p> <p>Claim 2 of reissued letters patent No. 10,121, issued January 31, 1882, to Andrew Saunders, for a pipe cutter, consisting of a stock, rotary cutters, antifriction rollers, arm, and feeding screw, is void for want of invention; for rotary cutters were well-known substitutes for knife cutters, and every element in the combination had theretofore been patented in the same place, as is shown by the following patents: No. 52,715, to William S. Haworth, January 20, 1866; No. 65,066. to Theodore S. Foster, May 28, 1867; No. 67,530, to Henry Getty, August 6, 1887.</p> <p>2. Same — Anticipation—Pi,ead¡no.</p> <p>In a suit for infringement, the defense of anticipation is not sufficiently set out by an answer which merely avers that the invention had been fully described and publicly made known in several patents, among them those of two persons named, stating the names and dates, without directly averring that the invention had been before patented; for an invention might be publicly made known by a patent, and not be patented.</p> <p>3. Same — Waivkr.</p> <p>But where, under such an answer, the patents referred to by it have been received in evidence without objection, and without subsequent motion to suppress, the right to object thereto is waived.</p>

<p>1. Patents foe Inventions — Validity.</p> <p>Reissued patent No. 11,153, granted March. 24,1891, to John B. DuH'lop, for wheel tires for cycles, is valid. Featherstone v. Cycle Co., 53 Fed. Rep. 113, followed.</p> <p>2. Same — Infringement by an Employe.</p> <p>A. person who is employed as manager of a partnership, and who in that capacity sells an ¿rticle which infringes a patent, is guilty of infringement, and may he enjoined, hut he will not he compelled to account if it fails to appear that he had any interest in the sale.</p> <p>8. Same — Foreign Patent — Licensk—Importation and Sale.</p> <p>An inventor obtained a patent on cycle tires in Great Britain, and subsequently in the United States, and then assigned to complainants the American patent. The owner of the British patent licensed defendants to apply the tires to a bicycle in Great Britain. This bicycle was then imported into the United States, and sold by defendants. Meld, that defendants were guilty of infringement.</p>

<p>1. Supersedeas Bond — Liability on.</p> <p>A supersedeas bond, conditioned according to the statute for prosecuting an appeal with effect and answering all damages and costs, covers, not merely compensation for the delay arising from the appeal, but also the amount of the decree appealed from, so far as the latter directs the payment of money by appellant to appellee. 51 Fed. Rep. 388, affirmed.</p> <p>2. Same — Interest—Money Deposited in Court.</p> <p>But in an action on the bond neither the principal nor sureties can be mulcted beyond what was adjudged as the result of the appeal; and where a sum deposited in court by a receiver was there retained pending an appeal, and no provision was made for interest thereon in the mandate or the decree entered in pursuance' thereof, no such interest could be recovered in an action on the supersedeas bond. 51 Fed. Rep. 368, affirmed.</p> <p>8. Same — Liability op Sureties — Eppect op Trustee Process.</p> <p>A decree for the payment of money by defendant to complainant was affirmed on appeal, and the decree entered in pursuance of the mandate allowed interest from the date of the appeal. Notice was at once given to the sureties on the supersedeas bond that plaintiff looked to them for payment of the decree. Two days later the sureties were summoned as trustees in a suit against the plaintiff, but gave no attention to the same, and were defaulted therein. Held that, as they were in actual personal default to plaintiff from the date of receiving the notice, they could not escape payment of interest to him because of the trustee process, especially as they did not set aside and cause to remain idle any fund to meet the decree or the judgment in the trustee action. 61 Fed. Rep. 368, affirmed.</p> <p>4. Same — Federal aNd State Courts.</p> <p>No restraint or embarrassment can lawfully be put on the enforcement of judgments or decrees of the federal courts by means of trustee process issued by a state court; and, as execution could have issued against the principal debtor upon the. decree entered in pursuance of the mandate, the enforcement of such decree against his sureties could not be prevented by the trustee suit, for, while execution could not have gone against them, they were so intimately connected with him as to stand in the same position. 5Í Fed. Rep. 368, affirmed.</p>

<p>In Equity. Bill by Alfred Featberstone against tbe George B. Bid-well Cycle Company for infringement of reissued letters patent No. 11,153, granted March 24, 1891, to John B. Dunlop, upon the original patent issued to him September 9, 1890.</p>

<p>Appeal from. Hie Circuit Court of the United States for the Northern District of Illinois.</p> <p>In Equity. Suit by Pettibone, Mullikeu & Co. against Arthur L. Stanford for infringement of patent. Bill dismissed. See 48 Fed. Rep. 302. Complainants appeal.</p> <p>Affirmed.</p>

<p>1. Patents for Inventions — Patentability—Novelty—Sulky Plows.</p> <p>The first claim of letters patent No. 134,293, issued August 18, 1874, to William Starling, for an improvement in sulky plows, consisting of the combination of a crank bar with the plow beam, lever, and axle, so that the horses are made to raise the plow out of the ground, is void for want of novelty. 49 Fed. Rep. 637, affirmed.</p> <p>2. Same — Res Adjudicata.</p> <p>A decision that a patent which has three claims, covering different features of the device, is not void for want of novelty, does not render the question of novelty res adjudicata when a single one of the claims is attacked in a subsequent suit for want of novelty, and proof is introduced in such subsequent suit that was not offered in the former suit. 49 Fed. Rep. 687, affirmed.</p>

<p>1 Patents for Inventions — Device for Carrying Railroad Rails — Anticipation.</p> <p>The first and second claims of reissued letters patent No. 7,898, (original No. 190,211, dated May 1, 1887,) “for improvement in apparatus for carrying railroad rails, ” whereby the upper surface of the carrier is arranged at or below the level of the bed, and provided with projecting catches in combination with the bed, the driving chains, and the guide rails, are anticipated by the patent to White and Wostenholm, March 19, 1873, No. 124,687. 47 Fed. Rep. 508, affirmed.</p> <p>2. Same.</p> <p>The third claim of said letters patent, in reference to “the combination with an endless chain, B, subject to expansion by hot rails of a pulley, h, arranged in a side bearing, d, held by a movable weight, ” is void, in view of the prior art, and anticipated by the patent to S. E. Jewett, June 9, 1874, No. 151,705, showing a movable pulley controlled by a weight at the end of a chain. 47 Fed. Rep. 508, affirmed.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>In Equity. Suit by P. P. Mast & Co. against the Rude Bros. Manufacturing Company for infringement of a patent. Decree for defendant. Complainant appeals.</p>

In Equity. Bill by Armstrong & Co. against the" Savannah Soap - "Works and others to enjoin infringement of trade-mark. Demurrer for improper joinder of parties defendant.

<p>Shipping — Limitation of Liability — Single Claim — Common-Law Action— When not Stayed.</p> <p>Where there is but a single damage claim, full relief, under Rev. St. § 4283, can be had by answer in a common-law suit. Hence a petition in an admiralty court to limit liability and to restrain the prosecution of a pending common-law action.must show the existence, or probability of existence, of more than one damage claimant, and the need of an apportionment, in order to make such a special proceeding either necessary or appropriate, under Rev. St. §& 4284, 4285; or else it must show such a special case as does not admit of the full statutory remedy upon a single claim in a common-law suit. Failing such averments, this court must observe Rev. St. § 563, which saves to the suitor his common-law remedy, and refuse to entertain the proceeding or to enjoin the common-law action in the state court on a single claim, though such claim may exceed the value of the vessel.</p>

<p>In Admiralty. Libel by George P. Forwood and Harold S. Forwood ■ against the steamship Caroline Miller for nondelivery of part of cargo.</p>

<p>Salvage — Catsized Vessels — Tow .gb and Righting — Awajrds.</p> <p>A schooner in ballast, while passing Bandy Hook, was struck hy a shot from the government practice works, in consequence of which she capsized, after having been abandoned by her >-rew. During a period of over two days, six tugs, working at different times, and a wrecking company rendered service in getting her off the beach when she first grounded, lying hy her during one night, towing her to shallow water near the entrance to New York harbor, and righting her, and.finally he iching her in Gravesend bay. The court regarded the services as one continuous operation, begun and continued by the tug which first reached her, wiili assistance from other tugs, the chief and most valuable service being rendered by the wrecking company, without whoso aid the vessel could not h ive been saved. At a marshal's sale she was sold for §2,900. Held that, as the vessel was derelict and of small value, about 75 per cent, of her value should be awarded as salvage, and divided among the tugs and the wrecking company in proportion to the services.</p>

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

<p>In Admiralty. Libel by the Merritt Wrecking Organization against the steamship Sir William Armstrong to recover on a contract for salvage.</p>

In Admiralty. Libel by Kobert Lichtenfels and John Lichtqnfels against the schooner Enos B. Phillips for supplies, and to recover for advances to meet seamen’s wages.

<p>CJonnisroir — -Titos axd Tows — Yersei.s at Atchoj®.</p> <p>A dredge anchored in the Delav are river, on a clear night, with lights properly burning, was struck by a shi ,> in tow of a tug- on a hawser. .Held, on the weight of the evidence, that the collision was not due, as alleged, to a sudden" change of course by the lug from the east to the west sido of the dredge, hut was caused solely by the fau/t of the ship in failing to follow the tug’s course, which, from a point more than a mile away, was directed and steadily maintained to the westward of the dredge. 46 Fed. Rep. 806, followed.</p>

At Law. Action by the People's Bank of Greenville, S. C., against the Aetna Insurance Company, on a money demand. The cause was removed from the state court of common pleas, and is now heard on motion to remand.

<p>1. Remo vat, of Causes — Citizens or Different States — Substituted Parties.</p> <p>Where replevin is brought in a ¡ ¡late court by a citizen of the state against the sheriff of a county therein (*> recover goods levied on by writ of attachment, and the plaintiffs in the attachment are substituted for the sheriff as defendants, they, although citizens of another state, are not entitled to remove the action of replevin to a circuit court of the United States, as the original defendant had no such rigid.</p> <p>2. Same- — Comity between Federad and State Courts.</p> <p>Query, whether, on the ground of comity, a United States court should not refuse to take jurisdiction by removal of such action.</p> <p>3. Same — Time of Appijcation.</p> <p>Under Act Aug. 13, 1888, § 3, (?5 St. p. ,33,) requiring the application foi the removal of a cause from a state court on the ground of diverse citizenship to be iiled in the state court not later than the time within which, by the state statutes, the defendant is required to plead, a petition for such removal from a court of the state of Kansas, iiled 75 days after the summons was made returnable, is too late; Gen. St. Kan. 1889, requiring a declaration to be answered within 20 days from the day the summons is made returnable.</p>

<p>REMorAL of Causes — Separable Controversy.</p> <p>In a suit brought in a state court by a citizen of the state against a railroad company, also a citizen of the state, setting up certain claims and ‘ liens, a trustee, representing the bondholders, was made a party defendant. Being a citizen of another state, the trustee removed the cause on the ground of a separate controversy between it and plaintiff. Held that, as any judgment determining the rights and fixing the priority of liens of plaintiff and the trustee would of.necessity be against the railroad company, there was no separate controversy between the former two to justify a removal under the act of 188S, § 2, cl. 3. Ayres v. Wiswall, 5 Sup. Ct. Rep. 90,112 U. S. 187: Safe Deposit Co. v. Huntington, 6 Sup. Ct. Rep. 733, 117 U. S. 280; Young v. Parker’s Adm’r, 10 Sup. Ct. Rep. 75, 132 U. S. 267; Sharon v. Tucker, 12 Sup. Ct. Rep. 720, 144 U. S. 533; and In re San Antonio & A. P. Ry. Co., 44 Fed. Rep. 145, — followed.</p>

<p>1. Federal Courts — Appellate Jurisdiction — Circuit Court of Appeals.</p> <p>By Act March 3, 1891, the entire federal appellate jurisdiction is divided between the supreme court and ¡he circuit courts of appeals, by enumerating the classes of cases wherein the judgment of each court shall be final. MeLish v. Rolf, 12 Sup. Ct. Eex). 118, 141 TJ. S. G61, followed,</p> <p>2. Same — Final Judgments — Review of Decisions of Territorial Courts.</p> <p>Cases wherein the judgment of the circuit court of appeals is “final,” within the meaning of Act March 3, 1891, § 15, giving the right of appeal to such court from territorial supreme courts in such cases, are only those enumerated in the first clause-of section G; and no appeal to the circuit court of appeals lies in a case not Hiere enumerated, although an appeal to the supreme court is denied by section 6, the amount in controversy being less than $1,000. Mining Co. v. Ripley, 53 Fed. Rep. 7, applied.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action by Byron B. Floyd against Ezra F. Merrill for fraudulent representations. Trial to the court, which filed its “findings of fact and verdict.” A motion to set aside the “verdict” was thereafter overruled. Defendant brought error, and a .notion to dismiss the writ of error was denied. See 5 U. S. App.--, 2 C. C. A. 58, 50 Fed. Rep. 849, where a full statement of the facts will be found. The case is now heard on the merits.</p>

In Equity. Bill to foreclose a mortgage, brought by Sarah A. Havemeyer against J. H. Van Closter, mortgagor; O. F. Davis Company, subsequent mortgagee; Fred W. Cray, mechanic’s lienor; and other lienors. Decree for complainant. Defendant Cray appeals, causing citation to issue only to complainant, Havemeyer, and defendant O. F. Davis Company.

<p>1. Service of Process — Conclusiveness of Beturx — Collateral Attack.</p> <p>In Indiana, tbe return' of tbe sheriff, showing tliatjie has made service in the manner prescribed by the statute, is conclusive, as against a resident of the state, both as to facts in the personal knowledge of the officer and facts which he must ascertain from others; and such return cannot be impeached collaterally, for the purpose of quashing the service and return and ousting the court of jurisdiction, by showing that the facts stated in the return are untrue.</p> <p>2. Same — State Statutes — Bules of Court.</p> <p>The federal circuit court for the district of Indiana, having adopted the state statutes relating to service of process in actions at law, is bound by the statute, as construed by the supreme court of the state; and, as there ought to' be no difference in the force and effect of the marshal’s return in actions at law and suits in equity, a return to a subpoena in chancery, showing that service "has been made in the manner required by the statute, is conclusive against a collateral attack.</p>

In Equity. Bill by tbe Fanners’ Loan & Trust Company against tbe Kansas City, Wyandotte & Northwestern Railroad Company to-foreclose a mortgage. On complainant’s application, a receiver was appointed on condition that priority should be given to certain described claims, to which condition the complainant assented.

In Equity. Bill by tbe Richmond & Danville Railroad Company against L. M. Trammel, Virgil Powers, and Allen Fort, constituting the railroad commission of the state of Georgia, to enjoin them from instituting suits to collect penalties for alleged violations of a certain freight rule established by the commission.

In Equity. Bill by John P. Fuller and others, heirs at law of Simeon Fuller, Jr., against T. J. Montague and others to establish an interest in certain lands, and to have the same partitioned. Heard on demurrers and motions to dismiss the bill.

In Equity. Bill by John P. Fuller and others, heirs at law of Simeon Fuller, Jr., against T. H. Montague and others to establish an interest in lands, and to have the same partitioned. The bill was heretofore dismissed on demurrer. See 58 Fed. Bep. 204, where a. full statement of the case will be found.

<p>In Equity. Bill by Rosa Weinfeld against the Mutual Reserve Fund Life Association.</p>

<p>Injunction — Proceedings in State Courts.</p> <p>Where a bill prays, among other tilings, for an injunction to stay proceedings in a state court, and the purpose of the suit can only be attained by granting the same, the bill will be dismissed, for such an injunction is expressly forbidden by Bev. St. § 720.</p>

<p>1. Railroad Ronds — Trustees—Authority to Represent Bondholders in Litigation.</p> <p>Tbe trustees of railroad mortgage bondholders represent such bondholders in any litigation relating to the trust, and, where the purpose of the suit is substantially the same as a foreclosure of the mortgage, the fact that the trustee is a party defendant instead of plaintiff is immaterial, and the bondholders are bound by the decree, although they are not parties to the suit.</p> <p>2. Same — Reorganization Decree. !</p> <p>In a suit to collect certain railroad bonds according to the terms of the original mortgage, it appeal'd that all of the company’s bonds, except plaintiff’s, had been surrendered and exchanged pursuant to a reorganization agreement which he refused to accept; that by a judgment of the United States circuit court in Oregon the reorganization had been substantially confirmed; that the trustee of the bondholders was a party defendant to the suit, and fairly represented the rights of all; that the interests of 99 per cent, of the bondholders demanded the judgment; that the court, by its decree, fully recognized the rights of the nonconforming bondholders, providing that the company should execute an indemnity bond conditioned for the payment of the bonds of the dissenting holders, and that plaintiff might recover under the decree all that he was entitled to. A cross bill was filed to compel plaintiff to surrender his bonds', and receive new bonds . in lieu thereof, according to the reorganization agreement. H'eld, that the decree properly protected plaintiff’s interest; that he must surrender his old ljonds, and accept the new ones, as provided for in the agreement; but that he was entitled to the same security afforded the majority bondholders.</p> <p>3. Same — Rights oe Dissenting Bondholder.</p> <p>The cross complainant having taken the position throughout the suit that complainant could at any time surrender his bonds and receive new ones in lieu thereof under the Oregon decree, and counsel in their brief having offered to deliver the lieu bonds and cash upon such surrender, the cross complainant was not in a position to insist that complainant had by misconduct forfeited his right to interest.</p>

At Law. Action by the Aetna Life Insurance Company against Pleasant township, Van Wort county, Ohio, on certain bonds issued for the construction of a railroad. A demurrer to the answer was sustained, but this judgment was reversed by the supreme court. 11 Sup. Ot. Eep. 215. The case is now on trial before the court, a jury being waived.

<p>In Error to the Circuit Gouri of the United States for the District of Minnesota.</p>

At Law. Action by Mintie Carver for damages on the ground of personal injuries caused by suffering from cold while traveling in a car on defendant’s road. Verdict and judgment in the sum of S^OOO for plaintiff.

<p>Erections — Appointment of Surtan tsous — Jurisdiction—Petition.</p> <p>It is doubtful whether a federal circuit court has jurisdiction to appoint supervisors of registration for a city of loss than 20,000 inhabitants, constituting only part of a county, or to make such appointme.nis in any case unless the petition is filed at least 10 days before the commencement of registration; and where, on such a petition, the appointment would result in interposing federal jurisdiction after the cases had been partially heard before the proper state boards, the court will follow the general rule that, where jurisdiction is doubtful, it should not interfere with the official duties of other properly constituted bodies.</p>

<p>1. Carriers — Interstate Commerce Act — Short Haul Clause- — Joint and Local Rates.</p> <p>The long and short haul clause <4 the interstate commerce act (section 4) does not apply to a case where the short haul rate is the combined local rates of two connecting lines, and the lower long haul rate is a joint rate made by the two lines acting together: and an indictment alleging such rates is bad. Railway Co. v. Osborne, 52 Eed. R'ep. 912, followed.</p> <p>2. Same.</p> <p>An indictment alleging that tbe ¡ hare of a joint rate taken by one company is less than its local rate for a shorter haul, etc., is bad. Railway Co. v. Osborne, 52 Fed. Rep. 912, followed.</p> <p>3. Same.</p> <p>A count of the indictment wherein Kansas City is named as the point for the joint rate, by a typographical error, instead oí Topeka, is bad.</p> <p>-4. Same — Collecting Agent not Indictable.</p> <p>An agent of a railroad, who merely collects freights, and has nothing to do with fixing them, is not indictable, under the interstate commerce act, for collecting a greater rate for a shorter than for a longer haul, etc.</p>

<p>At Law. Indictment of Hing Quong Chow for being unlawfully in the United States. On motion to quash.</p>

<p>Customs Duties — Classification— Boiler Flues.</p> <p>Certain imported articles were invoiced as ‘Turves’ ribbed boiler flues.” They consisted of ribbed cylinders flanged at one end, designed and adapted for use in the boilers of steamboats. They are made to order, and delivered in the condition ui which they leave the factory, and are known by the inventor, maker, importer, and seller, and by practical , engineers, as “ribbed boiler flues.” Both English and American patents-have been issued for them as an “improvement in boiler flues.” Well-known scientific works describe these' articles as “flues,” etc. An extensive manufacturer of corrugated furnace flues, similar in all essential features to the articles in question, advertised such articles as-“corrugated boiler flues with flanged or plain ends.” They were in use for nearly four years prior to the tariff of October 1, 1890. Held, that the articles are dutiable as “boiler .flues,” under Schedule C, par. 157, at 21-2 cents per pound, and not at 45 per centum ad valorem under Schedule C, par. 215, as manufactures not specially enumerated, composed wholly or in part of iron, steel, etc.</p>

■ Application of Timothy G-. Phelps, collector of customs for the port of San Francisco, Cal., for a review of the questions of law and fact involved in the decision of the board of general appraisers on duty at the port of Hew York on the 19th day of December, 1891, in respect to. the classification of 146 bales of leaf .tobacco, imported by Liebes Bros, into the port of San Francisco in bond from Hamburg, Germany, by way of the port of Hew Orleans.

<p>Customs Duties — Classification—Silk and Cotton Velvets — Selvedges.</p> <p>Silk and cotton Velvets imported subsequent to October 6, 1890, are dutiable on the weight of the goods, including the selvedges, under paragraph 411 of the tariff act of October 1, 1890.</p>

<p>Patents — Suit for Infringement — Pleading—Demurrer—Amendment-</p> <p>In a suit by a corporation for infringement of a patent, defendant de- ■ murred to the bill because it failed to allege a written assignment of the patent, or that the article had not been patented or described in any printed publication prior to the invention. Complainant then moved for leave to file an amended bill supplying these omissions. Held, that such a bill was not a new bill, and that defendant was not entitled, as a condition of allowing the same no he filed, to have his demurrer sustained as on final hearing, hut the filing would be allowed on payment of defendant’s reasonable costs, without passing upon the demurrer.</p>

<p>Patents for Inventions — Infringement—Accounting—Master’s Findings.</p> <p>In a suit for infringement of ¡he Kraetzer patents, No. 290,067, and No. .106,021, for glove fasteners, the court held that the first claim of the former and the fourth claim of the latter were infringed by the “Mead solid-hall” fastener, and accordingly ordered an Injunction and accounting. The master found that the “Mead hollow-ball” Listener was included in the decreo, as being only colorably different from the solid-hall fastener. Held, that the finding should not he disturbed, the only difference being that in the solid-ball' fastener the connecting shank goes down through the upper plate and the material, and is upset underneath the lower plate, on the underside of the material, while in the former the connecting shank goes up through the lower plate, material, and upper plate, and is upset or compressed in the hollow ball.</p>

<p>Patents for Inventions — Pleading—Profert of Patent.</p> <p>A bill for infringement alleged that "‘on the 30th day of October, 1SS8, letters patent of the United States numbered No. 391,875 * * * were issued, * * * as by a certified copy of said letters patent in court to be produced will more fully appear.” Held, that this was sufficient profert of the patent to make the same a part of the bill. Bogart v. Hinds, 25 Eed. Rep. 484, and American Bell Tel. Co. v. Southern Tel. Co., 34 Eed. Rep. 803, followed.</p>

<p>In Equity. Bill by tbe Overman Wheel Company and tbe Pope Manufacturing Company against Henry J. Curtis for infringement of a patent. On motion for a preliminary injunction.</p>

<p>L Patents fob Inventions — Patentability—N ovelty.</p> <p>Letters patent No. 385,648, July 3,1888, and reissued letters patent No. 10,977, December 25, 1888, issued to Walter Thomson for an improvement in the manufacture of bank account books, whereby the short leaves are creased or perforated for folding in such a manner as to transfer the column of balances on the right-hand page to the succeeding left-hand page, are valid, as even skilled bookkeepers had not previously discovered it, although the device is so simple and obvious, as well as useful, that it would seem that it should have been always known and used. Hollister v. Manu- , fadturing Co., 5 Sup. Ct. Rep. 717,113 U. S. 59, 72, distinguished.</p> <p>2. Same — Scope of Patent Laws.</p> <p>A new and useful improvement in the manufacture of bank account books is embraced within the terms of the patent laws.</p> <p>3. Same — License—Nontbansfesable.</p> <p>A copartnership conducting a bank was permitted to use an improvement in bank account books for seven months before application for a patent was filed, which was done December 31, 1886. The firm was dissolved January 1,1887, and succeeded by a corporation which used the old account book, and perhaps other similar books, with the patentee’s consent, during 1887. In 18S8, 1889, and 1890 it paid a royalty for all such books used, though purchased in part from unlicensed makers. Thereafter it used the books, but paid no royalty. Held, that the implied license to the co-partnership under Rev. St. § 4899, was incapable of assignment or transfer, and that the corporation infringed.</p>

<p>1. Patents fob Inventions — Infringement— Opinion — Evidence — Drying Apparatus.</p> <p>In an action for infringement oí a patent for improvements in fruit dryers, the patentee, after stating that hi- had been engaged in mechanical pursuits, had seen many different dryers, and had sufficient knowledge of mechanics to permit him to give an intelligent opinion as to the cost of a piece of machinery when he saw it, wa; asked which in his judgment would be the cheaper to construct, his or ih ■ alleged infringing dryer. Held, that the question was not objectionable, on the ground that the witness had said he did not know the cost of the infringing dryer.</p> <p>2. Same — Invention—Burden of Proof — Directing Verdict.</p> <p>The existence of letters patent issued in due form constitutes prima facie evidence of the validity of the patent, and where, in an action at law for infringement, such letters are introduced, an alleged want of invention is matter of defense, the burden of showing which is on defendant; and the court cannot direct a judgment for defendant, even though the patentee, on cross-examination, has given evidence that may tend to show a prior state of the art excluding invention on his part,</p> <p>3. Same — Infringement—Instructions—Questions for Jury.</p> <p>Whether there was invention in the patent, whether plaintiff was the fir3t inventor, and whether the use of gravity catchos as mechanical equivalents of spring catches was known at the time of plaintiff’s application, were questions of fact for the jury</p> <p>4. Same — Disclaimer— Mechanical 'Equivalents.</p> <p>In letters patent No. 172,608, issued January 25, 1876, to John W. Cassidy, for an improvement in fruit dryers, the patentee first claimed “spring or other catches,” but, on an objection that his application was not in proper form, amended by striking out “or other.” Held, that this was not a disclaimer of gravity catches, whicb were known mechanical equivalents for spring catches.</p> <p>5. Same — Nominal Damages — Evidence.</p> <p>Plaintiff, owning a patent for two improvements in fruit dryers, sued for the infringement of but one. Held, that nominal damages only were recoverable, where the evidence showed only the amount of a license fee for both devices; and the profits to be made iii manufacturing fruit dryers containing both improvements.</p> <p>6. Trial — Instructions—Waiver of Objections.</p> <p>An exception to the court’s refusal to direct a verdict for defendant at the close of plaintiff’s evidence is waived by proceeding in the cause, and introducing evidence for the defense. Railway Co. v. Cummings, 1 Sup. Ct. Rep. 493, 106 ü. S. 700, and Insurance Co. v, brandal, 7 Sup. Ct. Rep. 685, 120 U. S. 527, followed.</p>

<p>Trade-Marks — Infringement.</p> <p>" In an action to restrain the infringement of a common-law trade-mark in the words “One Night Cough Core,” it appeared that plaintiff began in 1888 to sell a com remedy labeled, “One Night Corn Cure,” and a certain cough remedy, labeled “Rocky Mountain Cough Syrup.” The labels for the latter having been exhausted, it was thereafter sold in small quantities under the name of “One Night Cough Cure,” the labels being in writing. In the fall of 1891 printed labels were used, and the business was actively pushed -until the commencement of this action, in February, 1892. The respective remedies, and the labels for the one and the other, rendered it difficult to understand what was intended to apply to the one and what to the other. In the application for registration of the trade-mark the label recorded was as follows:</p> <p>“Com Salve and Cough Syrup.”</p> <p>' “One Night Cure.”</p> <p>In the accompanying affidavit plaintiff states that the trade-mark of said company consists of the words, “One Night” preceding the words “Cure" and “Remedy.” II<M, tint plaintiff had not acquired a trade-mark in either collocation of wonts, and that, even if he had, it was not infringed hy the use of a label with the following words: "Beshore One Night Cough Cure.”</p>

<p>Copyright-- Law Reports and Digests— Infringement — Injunction.</p> <p>On motion Cor a preliminary injunction in a, suit for infringement of complainant’s copyrights in law reports and iu a digest thereof, by the publication by defendant of a similar digest, the instances of alleged piracy pointed out amounted to less than 1 per cent, of defendant’s book, and while, as to some of them, identity of language raised a presumption, well-nigh conclusive, of copying from complainant’s books, defendant contended', as to olhers, that both parlies liad copied from the opinions digested, and denied any piracy. It, appeared that the parts of defendant’s digest, issued semimonthly during the year, had been sent to complainant, wiio was a subscriber thereto; that llie volume for the year, compiled from said parts, was printed and ready for delivery; and that complainant had supplied its customers with its ‘own digest for llie year. Held that, as the determination of the question of infringement would involve a long and complicated comparison, and an injunction meantime would work irreparable injury to defendant, om. of proportion to tbe injury to complainant from a refusal thereof, the temporary slay previously granted should be vacated, and defendant be restrained only from futuro infringement, and from Sidling its digest to any persons other than its regular subscribers and those with whom it had previously contracted to deliver the same; defendant to give bond to keep account of all digests sold, and to pay such damage's as might be awarded to eomplainam.</p>

<p>In Admiralty. Libel by tbe Union Marine Insurance Company against tbe steamer Roanoke and others to recover in general aver- ( age. Certain exceptions filed to the libel were heretofore overruled. 46 Fed. Rep. 297. The cause was thereafter submitted upon the agreed statement of facts.</p>

<p>In Admiralty. Libel by Thomas Martial, Nils Hansen, Ambrose Pablete, Thomas Hosford, Frank Wallace, George Peterson, Emil Menendez, and William Morris against (he ship Eclipse for balance of seamen’s wages. Libel dismissed as to libelants Menendez and Morris.</p>

<p>1. Maritime Lien — Waiver.</p> <p>An agreement to accept, in payment for certain machinery furnished a steam mg under a written contract, a promissory note, payable four months after date, does not in bself constitute a waiver of the lien against the tug for the contract price, . ;specially where it is not claimed that any such waiver was ever contemi dated by the parties.</p> <p>2. Same — Admiralty Practice — Pi-ematurb Piling oe Libel.</p> <p>When such promissory note is not delivered in pursuance of the agreement, the filing- of a libel before the fuliillment of tbe contract on libel-ant’s part (wliich, however, is fully performed soon after) does not constitute cause for dismissing such libel, but, under admiralty practice, affects the question of costs only.</p>

<p>.Appeal from the District Court of the United States for the Southern District of New York.</p> <p>' In Admiralty. libel by James McCaldin and Josepli McCaldin against- the steamship Stroma to recover for coal furnished and towage' services rendered. The district court dismissed the libel, holding that no lien existed. 41 Fed. Eep. 599. Libelants appeal.</p>

<p>In Admiralty. Libel by Robed. Rogers against the barge D. L. & W. No. 6 0, and her cargo of coal, and the barge Ocean Wave, for salvage.</p>

<p>In Admiralty. Libel by A. L. Nickerson against the steamer Riversdale, to recover damages for a collision with the schooner Allen Green, and cross libel by Arthur Laing against the schooner.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>In Admiralty. Libel by Cyprien Fabre, manager of the Compagnie Francaise de Navigation a Vapeur against the Cunard Steamship Company, Limited, to recover damages for the total destruction of the steamship Iberia in a collision with the steamship Umbria. The district court held that the Umbria alone was in fault. 40 Fed. Rep. 893. Subsequently, on exceptions to the report of the com-, missioner to whom the cause was referred to ascertain the damages, thé court held that libelant was entitled to recover the net freight which the Iberia would have earned on a subsequent voyage for which she was already engaged, and which was to begin at New York, whither she was bound at the time of collision. 46 Fed. Eep. 801. Respondent appeals.</p>

In Admiralty. This is an appeal taken by Robert Singlehurst and others, owners of the British steamship Lisbonense, from a final decree of the United States district court for the southern district of New York, adjudging the Lisbonense solely at fault for her collision with the appellee’s steamship La Champagne, and dismissing appellant’s cross libel with costs. See 47 Fed. Rep. 122.

<p>At .Law. Action brought in the court of common pleas for Berkeley county, R. 0., by Thomas B. Rivers against William L. Bradley and one (laillard, for personal injuries. Defendant Bradley removed the cause to the United States ebeuit court. On motion to remand.</p>

<p>At Law. Action by Sarah J. Brisenden, administratrix of Henry J. Brisenden, deceased, against Daniel H. Chamberlain, receiver of the South Carolina Bailway Company, to recover damages for wrongfully causing the death of the said Henry J. Brisenden. On motion to remand.</p>

<p>Appeal — General Exception to Charge — Circuit Court of Appeals.</p> <p>Under rule 10 of the circuit court of appeals, (47 Fed. Rep. vi., 1 C. O. A. xiv.,) which requires a party excepting to a charge to the jury “to state distinctly the several matters of law in such charge to which he excepts,” and provides that those matters only “shall be inserted in the .bill of exceptions and allowed,” an exception to “the whole of said instruction, and to each and every part thereof,” cannot be sustained, if any of the propositions of law contained in such charge are sound.</p>

In Equity- Bill by tbe Merchants’ National Bank and others against the Chattanooga Construction Company for an injunction, the appointment of a receiver, and for other relief.

<p>In Equity. Bill by tbe Southern Pine Fibre Company against the North Augnsta Land Company for the specific performance1 of a . contract. A demurrer to the hill was overruled. 50 Fed. Rep, 26. The case is now on final hearing.</p>

<p>In Equity. Bills by the Kico-Awpen Consolidated Alining Company and others against the Enterprise Mining Company. Injunction's pendente lite granted, and final decree for complainants in respect tp one of the claims in controversy. The relative position of the several claims on the surface is shown in the following diagram:</p> <p> </p>

<p>In Equity. Bill brought in the state chancery court by Frederick Bellows and Charles B. Weeks against Edward A. Sowles, Margaret .,B. Sowles, Susan B. Sowles, and Chester W. Witters as receiver of the First National Bank of St. Albans. The last-named defendant removed the cause to this court. Decree dismissing the hill as to him, and remanding the cause to the state court as to the other defendants.</p>

' In Equity. Bill by Eranldin B. Daniels and Sarah J. Bliss, doing business under the name of the Manchester One Price Clothing Store, against Hannah F. Straw, to enforce specific performance of the renewal clause in a lease.

At Law. Actions by the Jarecki Manufacturing Company, Limited, against the city of Toledo, Ohio, to recover for materials furnished and used in the completion of a natural gas plant. Heard on demurrer to the amended reply.

At Law. Actions of ejectment by William H. Laldn against O. B. Dolly, (No. 10,590,) and against J. H. Roberts and others, (No. 10,630.) In canse No. 10,596 judgment was heretofore given for plaintiff. It is now resubmitted on an agreed statement of facts. Cause 10,630 is submitted on the same facts.

At Law. Action by Wight & Lackey against the Royal Insurance Company to recover loss on a policy of fire insurance. On motion for judgment for want of a sufficient affidavit.of defense.

<p>In Bankruptcy. Petition by the Amoskeag National Bank and David B. Varney, creditors of Cyrus Dunn, a bankrupt, against Alfred Gf. Fairbanks, assignee, David C. Whittemore, a creditor, and Adoniram J. Lane, as administrator of Cyrus Dunn, deceased, to vacate an order granted on the application of David C. Whittemore, which rescinded and nullified an order permitting a resolution of compromise to be recorded, and orders of acceptance and confirmation.</p>

At Law. “Plucked coney skins” were imported by James A. Wotton and William C. Wotton, as Wotton Bros., and were entered at the port of Boston, and appraised by the collector as subject to a duty of 20 per centum ad valorem, as hatters’ furs, or dressed fur skins.

Rule to show cause why an atttachment should not issue against George Stuart for contempt in refusing to produce certain letters iu obedience to a subpoena, duces tecum issued by tbe clerk in an interference proceeding pending in the patent office. The subpoena was issued under Jlev.

of the United States for the District of Maine. - Petition by Edward M. Rand for allowance of claim against the United States for fees for services rendered as commissioner of the circnit court of the United States for the district of Maine, from January 1, .1886, to September 30, 1886, and from January 1, 1889, to June 30, 1890. Claim allowed. Defendí) nt appeals.

<p>1. Witnesses in Criminal Cases — Competency—Conviction of Crime — State Statutes.</p> <p>The provision of Rev. St. § 858, that the laws of tbe state in which, the court is held shall be the rule of decision, as to the competency of witnesses in the federal courts “in trials at common law and in equity and. admiralty,” does not apply to criminal cases, and, in the absence of special provision by congress, the competency of witnesses is to be determined by the law of the state as it existed when the judiciary act of 1789 was passed, regardless of any subsequent state legislation. U. S. v. Reid, 12 How. 363, and Logan v. U. S„ 12 Sup. Ct. Rep. 617,144 U. S. 302, followed.</p> <p>2. Same — Effect of Pardon.</p> <p>On a criminal trial In the federal courts of Pennsylvania, a person who has been convicted and sentenced in the courts of that state for murder is incompetent to testify except when his disability has been removed by a pardon.</p> <p>3. Same — Legislative Pardons.</p> <p>Act Pa. March 31, 1860, (Purd. Dig. p. 469, pi. 357,) provides that when any person convicted of a felony, or misdemeanor punishable with imprisonment at labor, has endured his punishment, the punishment so endured shall have the like effect and consequences as a pardon by the governor. Held, that this was a legislative pardon, and operated to remove the disability in the same manner as a pardon by the executive, and therefore enabled such persons to testify in criminal trials in the federal courts.</p>

At Law. Indictment of A. J. Patrick, Morgan Petty, and James • Epps, under Eev. St. §§ 5508, 5509, providing a punishment for any persons who conspire to intimidate, etc., any citizen in the free exercise of his rights under the constitution and laws of the United States, or who, in carrying out such a conspiracy, commit any felony or misdemeanor.

<p>1. Patents for Inventions — Limitation, of Claim — Prior Art.</p> <p>Letters patent No. 192,014, issued Juno 12,1877, to George S. Roberts for an improvement in railway cars, consisting of bay windows integral with the sides of the oar, and not projecting beyond the general line thereof, must, in view of the prior state of the art, be restricted 'to the specific structure described therein.</p> <p>2. Same — Infringement.</p> <p>The shape of the bay windows of the patent being represented by lines oblique to the sides of the car, and meeting at an obtuse angle, the patent is not infringed by cars having b iy -windows the sides whereof are represented by lines extending obliquely from the sides of the car, and connected at their outer extremities by a line parallel with the sides of the car.</p>

In Equity. Suit by George Streat- against William Simpson, Jr., and others, for infringement of letters patent No. 16,375, issued November 10, 1885, to George Streat for a design for printing textile fabrics in imitation of seersucker.

<p>1. Constitutional Law — Maritime Liens —State Oyster Laws — Confiscation of Vessel by State.</p> <p>Code Va. § 2186, providing that a sale of a vessel forfeited by proceedings in tbe state court for violating tbe oyster laws of tbe state “shall vest in tbe purchaser a clear and absolute title,” is null and inoperative, in so far as it would divest the maritime liens of innocent parties attaching before tbe arrest of the vessel; and such vessel may be subsequently seized in tbe hands of tbe purchaser, ami subjected to such liens, by proceedings in the federal admiralty courts. Taylor v. Carryl, 20 How. 583, distinguished.</p> <p>8, Same — Maritime Liens — Supplies and Materials.</p> <p>On such a libel, claims for su; «plies, materials, and repairs furnished within six months before the seir-.ure of tbe vessel by tbe state must be allowed, but materials furnished a Eter such seizure must be disallowed, as not within tbe jurisdiction of the court.</p> <p>3. Same — Seamen’s Wages. ‘</p> <p>Claims for wages by seamen who were on tbe vessel at tbe time of her seizure, and presumably participating in the violation of law for which she was seized, must be disallowed.</p>

In Equity. Bill by the National Cash Register Company, Michael Campbell, and Maria G. Wellbrock against the American. Cash Register Company for infringement of a patent. The circuit court, following the decision of the circuit court for the district of Massachusetts iu National Cash Register Co. v. Boston Cash Indicator & Recorder Co., 45 Fed. Rep. 481, held that there ivas no infringement:, and dismissed the bill. 47 Fed. Rep. 212. Complainants appeal.

<p>In Equity. .Suit by Anton F. Baumer against Louis Will and others for infringement of a patent.</p>

<p>1. Patents for Inventions — Sufficiency of Specifications — Description.</p> <p>The first claim of letters patent No. 279,094, issued June 5, 1883, to Emile Kegreisz, covers ail improved process of giving a variegated appearance to the ornamentation of enameled ironware, by recoating it with a colored liquid after it has been enameled in the usual way. In the specification the process is describe!Í as follows: “After the ordinary process of enameling has been completed, I prepare a thin glaze composed of any coloring matter that can be made to remain mechanically suspended a short time in water, and apply it to the article. * * ® The glaze should , fie made sufficiently thin to avoid being pasty, so that it will freely sprea.fi or run over the surface. * * s The glaze will be found’to separate anil coagulate in irregular spots,” eic. Held, that the patent is not invalid for insufficiency of description, in that it does not state that the enamel must be coarse ground, so as to remain but a short time mechanically suspended;, for one skilled in the art would know that the result could only be obtained by the use of coarse-ground enamel.</p> <p>2, Same — Invention.</p> <p>In view of the fact that Kegreisz was the first to perfect the art, and make it a commercial success, and that the goods are pleasing and ornamental, and have become popular with the public, it must be held that the discovery of the process involved the exercise of inventive faculty.</p> <p>3. Same — Anticipation.</p> <p>Anticipation of the patent by the Vollrath process was not sufficiently shown, the evidence thereof being that of witnesses who attempted to describe a complicated process practiced by them .10 or 15 years ago, and who did not agree as to the composition of the enamel then used, or the object they had in view; and it appearing that the results produced by that process were crude and ungainly, and that Vollrath himself, in his 1881 patent, stated that the mottled appearance ivas due to an oxidation of the metal surface during thé operation of drying, (a process entirely foreign to that of the patent,) and it also appearing that he is himself a licensee under the patent, — a position wholly inconsistent with the theory that he was the first inventor.</p> <p>4. Same — Infringement.</p> <p>The claim is infringed by one who employs the same process, although he adds thereto another step, namely, that of shaking the article after it has been dipped in the glaze, in order to hasten the process of accumulating the particles to" produce the mottled appearance, since this kind of manipulation was well known in the art of enameling.</p>

<p>In Equity. Bill by tbe Balance & Grosjean Manufacturing Company for infringement of a patent. Decree for complainant.</p>

<p>Patents for Inventions — Validity—Prior Use and Sale — Am Engines.</p> <p>Reissued patent No. 9,414, granted October 12, 18S0, upon original patent No. 226,052, issued March 30, 1880, to John Ericsson for an air engine, is invalid because the assignees of tbe inventor made and sold several machines substantially tbe same as that of the patent more than two years prior to tbe application.</p>

■ Appeal from, the Circuit Court of the United States for the Northern District of California. In Equity. Bill by the Pacific Cable Railway Company against the Consolidated Piedmont Cable Company for infringement of letters patent No. 244,147, issued July 12, 1881, to Henry Root, for a tension apparatus designed for taking up the slack of the cable in cable railways.

In Equity. Bill by the Pacific Cable Bailway Company against the Consolidated Piedmont Cable Company for infringements of letters patent No. 189,201, issued April 3,1877, to William Eppelsbeimer, for an “improved clamp apparatus for tramways or street railways.” The circuit court entered a decree sustaining the validity of the third claim, finding infringement thereof by defendant, perpetually enjoining the same in future, and referring the cause to a master to take an…

<p>In Equity. Suit by the Eagle Pencil Company against the American Lead Pencil Company for infringement of certain design patents.</p>

<p>In Equity. Suit by William H. Brower against William G. Boulton and others for alleged infringement of a certain trade-mark.</p>

<p>In Equity. Suit by the Putnam Nail Company against the Au-sable ilorsenail Company for infringement of a trade name.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>In Admiralty. Libel by John L. Browne, owner of the steamship Harbinger, against Gill & Fisher, Limited, to recover for the breach of a charter party. The court below decreed in favor of the libelant. 50 Fed. Rep. 941. Respondents appeal.</p>

<p>1. Collision — Damages—Salvage Claim.</p> <p>A reasonable amount paid in settlement of a salvage claim against a vessel damaged in collision, where tbe claim actually went to suit on disputed facts, and there is no reason for supposing that tbe settlement was collusive, is a proper item of damage to be charged against tbe vessel found in fault for tbe collision.</p> <p>2. Same — Ascertaining Value of Vessel before Collision.</p> <p>A vessel, after collision, was sold in her damaged condition for $6,650, and tbe damage was repaired for $9,500, making her sound value by this method $16,150. Estimates as to her value by witnesses for one party varied from $12,000 to $14,000, for tbe other party from $22,000 to $25,000. Tbe commissioner adopted tbe value first above given. Held, that bis finding would not be disturbed.</p> <p>8. Same — Demurrage—When not Recoverable — Interest.</p> <p>Where owners of a vessel damaged by collision elect to have her sold in her damaged condition, they cannot recover demurrage; for interest is the legal indemnity for tbe delay in collecting tbe balance of her original value from tbe wrongdoer.</p> <p>4. Same — Interest on Amount Paid for Wreck — When Recoverable.</p> <p>Interest should be added on the amount paid for the wreck by the pur- ' chaser during tbe period occupied by him in repairing, when that mode is adopted of settling tbe value of tbe vessel, since, in order to repair, it is necessary that such amount should lie idle during that period.</p> <p>5. Same — Loss of Freight — Vessel's Expenses.</p> <p>On a voyage broken up by collision, an allowance, as an item of damages, of tbe whole amount of freight, less tbe expenses of tbe vessel (luring the time it would have taken her to complete her voyage, is proper.</p>

<p>1. Ware housemen — Implied Contr.' ct of Storage — Evidence.</p> <p>The; father oí a resident member of a firm, presumably from the personal interest which he took in the firm’s success on account of his son's connection therewith, caused a warehouse to be built at his own expense, in immediate connection with a system of railroads, thus facilitating the handling, delivery, and storage of the bulky and heavy articles which the linn dealt in. During the building of the warehouse the son wrote numerous letters to his partner, using expressions which would indicate That the warehouse was being built by the Arm, and was of an inexpensive character, and that, it would reduce tho expense of the goods stored therein to the cost of handling only. The father, however, had no financial interest in the firm, never authorized such statements, and was ignorant ot them. He made his son superintendent of the warehouse, and, the firm having stored large; quantities oc goods therein, tho business of the two concerns became somewhat mixed. No contract was made as to the terms of the storage, and, although the father had several settlements with the firm as to other matters, ho never said anything in regard to the charges for storage, but he regularly entered such charges on his own books. A receiver, having been appointed for the firm, attempted to remove the stored goods, whereupon the fat iier claimed a lien for storage. Held, that the presumption that a man intends to obtain remuneration for the use of his property was not overcome by those facts, and it must be held that there was an implied contract of storage. !</p> <p>2. Same — Charges.</p> <p>Under the circumstances the firm should be allowed the best rates given by other warehouses of equal capacity and facilities.</p> <p>S. Same — Lien fob General Balance Due for Storage.</p> <p>The father as warehouseman was entitled to a lien on goods remaining in tlie warehouse for a general balance of storage due on all goods stored under the implied contract, for a warehouseman is entitled to a hen for such general balance for all goods stored under a single contract.</p> <p>4 Same — Lien—Goods Retained — t ¡ontinuance of Storage.</p> <p>A warehouseman who retains goods for a general balance of storage under a single contract is entitled to storage at the same rate after the time of asserting his lien until payme nt is made;, and lie cannot lie deprived of the same on the theory that tho storage from (hat time on is for his own benefit. Somes v. Shipping Co., 8 H. L. Gas. 338, distinguished.</p>

<p>1. Public Lands — Cancellation of Patent Issued by Mistake.</p> <p>Certain adjustments of land scrip locations, being- contested, were appealed to the secretary of the interior, by whom it was held that the adjustments were invalid, and that the contesting claims must also be rejected, and the land disposed of under the public land laws. Thereafter one R. entered said lands, and obtained a final certificate. On the same day several other persons attempted to make entries or locations of the ■ same land, but tbeir applications were denied, and tbey appealed to the commissioner of the general land office. Pending these appeals a motion was made for a review of the decision of the secretary of the interior in respect to the former adjustment and claims, and thereupon, in pursuance of a standing rule of the interior department, an order was made, suspending all action under the decision sought to be reviewed. But, notwithstanding such order, through the mistake of a subordinate clerk in the land department, B.’s entry was approved, and a patent was inadvertentty issued to him. Held, that the patent should be canceled on a proceeding by the ' United States for that purpose.</p> <p>2. Same.</p> <p>On a proceeding by the United States to cancel a patent inadvertently issued pending appeals by other claimants, the government is not bound to show that the other claimants would be successful in theii* appeal, but is entitled to have the patent canceled, unless the patentee proves that by the law properly administered he would be entitled to the patent, and it is doubtful whether even such proof would be admitted.</p>

<p>In Equity. BUI by Charles I. Dryfus against Charles Burnes and Catherine Burnes to foreclose a mortgage.</p>

In Equity. Bill by John P. Fuller and others against the county of Hamilton, Tenn., to establish title to a half interest in certain lands, and to have a partition thereof. Heard on a plea of res judicata;

In Equity. Bill by Eunice Bugan, Louvira Hart, and Martha E. Edwards against Bobert W. Sabin, Gabriel Beachley, and Mary L. Sabin, to set aside a sale of land, and for further relief. Demurrers to the bill were sustained. Complainants appeal.

In Equity. Bill by Elias A. Tuttle and wife against Daniel T. Cburcb and others, doing business under the firm name of Joseph Church & Co., to enjoin them from maintaining a nuisance.

<p>In Equity. Sait by Ifllins Tuttle and wife against William J. Brightman and others to enjoin tlie continuance of a nuisance.</p>

In Equity. Bill for dissolution of a mining copartnership, and for a decree compelling defendant to convey an undivided one-half interest in certain mining claims.

In Equity. Bill by A. L. Blanks, a resident and citizen of Alabama, and F. W. Starke, representative of Margaret Starke, deceased, a resident and citizen of Germany, against Mis. E. B. Klein individually and as executrix of John A. Klein, deceased, and George M. Klein, all residents and citizens of Warren county, Miss., to set aside an alleged fraudulent conveyance of real estate. The circuit court dismissed the bill, and complainants appeal.

In Equity. Bill by tbe United States against tbe Trans-Missouri Freight Association, the Atchison, Topeka & Santa Fe Railroad Company, and others, for the dissolution of an association or combination alleged to be in restraint of trade in violation of the act of July 2, 1890, and for an injunction restraining the several companies from carrying into effect the agreement under which the association was formed.

<p>In Error to tlie Circuit Court of the United States for the Northern District of Iowa.</p> <p>Statement by CALDWELL, Circuit Judge:</p> <p>This is an action brought by M. J. Foley and Nora M. Kelley, administrators of the estate of M. B. Kelley, against the Hlhiois Central Railroad Company, to recover damages for the death of the intestate, M. B. Kelley, which it is alleged was brought about by the negligence of the railroad company.</p> <p>On March 18, 1890, M. B. Kelley, the owner, delivered at Manson station, hi Iowa,, to the Illinois Central Railroad Company, for transportation over its road to Chicago, eight car loads of live stock. The train carrying this stock was what is known as a “special stock train,” which runs through to Chicago with all convenient speed, and makes no stops except for coal and water. Shippers of live stock are required, by a regulation of the railroad company, to take care of their stock while in course of transportation, and for that purpose they, or their agents, are required to accompany the train that carries the stocu; and they are expected to look after and care for it when the train stops for coal and water. The train hauling Kelley’s stock consisted of 17 cars. The total length of the train, including the engine and tender, was about 650 feet, and Kelley’s stock was in the first 8 cars, counting from the tender. Kelley, with a helper, Mulroney, -was on the train to look after his stock. At Dubuque, a steer in the car next to the engine was seen to be down. Between 8 and 9 o'clock at night the train reached Council Hill station, in Illinois, where freight trains going east commonly take water; and this traiu stopped there, in the accustomed place, for that purpose. The conductor told Kelley the train would stop five minutes, and that he would have time to look after his cattle “if he hurried up;” and, just as the train stopped, Kelley, with a prod and lantern, and his helper, with a stick, got off on the south side of the track, and hurried towards the head of the train to look after the steer that was down in the car next to the tender. The conductor saw them start, and knew their business was to look after the stock. When they got to the front end of the car, next to the tender, Kelley gave the lantern to his helper, and told him to go around on the other side of the ear, and hold the light up so he could see the cattle. 'She helper took the lantern, and started to walk around in front of the engine, as directed, and what befell him is thus told by himself: “Just as I got in front of the engine, it kind of ■started, and the steam kind of went off, and I had the impression that the engine was about to start I stopped. The fight was in my hand. The thought came to my mind, what would I do, — go back or forward; and, without giving it a second thought, I stepped over the north rail. I saw nothing but black. I was looking towards my feet. I took one step, and I was in the air. The next I remember was seeing Mr. Kelley beside me, dead. I knew it was he, for some reason or other. My recollection is, I was sitting in the water, his body a few feet from me. It must have been a headlight that gave me the view. I do not know how iong I was there. I was only conscious a few seconds. Don’t know when I was taken out. I remember of making a noise, — a kind of loud groan. The next I recollect I was lying on a cot in Passamore’s store. Before I fell, I could see nothing but just black. It looked beyond the rail just like the rest of the place, — nothing but darkness. There was no guald rail or obstruction to prevent my going over. I passed across the track, ahead of the nose of the engine, a few feet. When I stepped over the rail, there was no steam, I had passed that. The headlight was there, but it didn’t show me anything at my feet. The headlight struck about my shoulders, I should think. It did not enable me to see. Was holding lantern in right hand, and had a prod with me. When Kelley said we would .go to the head of the train and work back, the conductor was right there. After I left Mr. Kelley, to go around the engine, I did not know, by touch, feeling, or sight, when I struck the bridge. I had a pair of rubbers on. Mr. Kelley had also rubbers. I saw him put them on. When I saw Mr. Kelley last,* he was at the back of the tender, at the end of the head car. When he gave this direction, I turned right around and left him. I have no knowledge how Mr. Kelley came around there, — only supposition.”</p> <p>It appears from the evidence that there is a bridge running east and west, 122 feet long, over a stream at this station, and that the front end of an engine going east, when it is taking water, extends 30 feet onto this bridge, from the west end theréof. The main track and switch pass over the bridge, which is planked between the two tracks and between the rails, and there is a narrow planking outside of the north rail of the main track, which extends about 80 feet from the west end of the bridge, and is used by the employes while oiling the engine, hut there is uo planking beyond this point on the outside of the north rail of the main track, and no guard; and one passing around the engine from the south to the north side would, as soon as he stepped over the north rail of the main track, he precipitated to the rooky bed of the creek, a distance of 17 feet. This is just what happened to Kelley and his helper; the fall killing the former, and seriously injuring the latter. The distance from the west end of the bridge to the depot is 229 feet. The water-tank is between the depot and the bridge, ilie center of the tank being 20 feet from the west end of the bridge. The depot platform extends nearly to the water tank, and all the buildings and facilities Cor business at the station are between the bridge and the depot. The evidence shows that freight trains going west that carry passengers take water at this tank and do not always pull up and stop at the depot to lei the passengers off, hut that the passengers have to get off on (he east side of the creek, and cross the bridge, to reach the depot; and passengers purchasing tickets for freight trains are sometimes sent across the bridge by the station agent to take the caboose. Passengers on freight trains going west got off where the caboose happens to he when the engine stops to take water. The customary method of proceeding at night, where there are two men looking after cattle, is for one of them to hold the lantern and the oilier to use the prod, ancl when a steer is down, near ihe end of the train, it is usual for one of them to go round the nearest end of the train, whether it be the engine or caboose, with the lantern, to enable the other to look through the car and do his work. The night was so dark and misty that a lantern shed light but a very short distance. One witness testifies that, with a lantern and a torch or two, “we could not see to distinguish anything outside <'1' the little space around us.”</p> <p>That part of the charge of the court relating to the material issue in the case was as follows: “It seems to me, gentlemen, that the main question for your consideration in this ease is as to the use expected to he made of the bridge, and as to its condition. Was this bridge at Council Hill a place where, as the business of the company was ordinarily carried on, it should reasonably have been (expected and foreseen by the company that when stock trains would stop at the water tank, for the purpose of taking water for the use of the engine, the men engaged in looking a I'ter the stock would naturally go upon the bridge when thus employed? Was such a use, in fact, made of it? It is for you to say, under the evidence, whether or not that bridge was or was not such a part of the Council Hill station grounds, in the use that was made of it, as that the stockmen, including Mr. Kelley, when transporting cars of stock over that line of railway, had a right to go upon the bridge when they were called upon to go about the train of the company for the purpose of examining their stock. The evidence shows that when the engine is placed in position at (he water tank, so that water < an he taken, it will extend some distance on the bridge; and, of necessity, persons seeking to pass around the front end of the train, thus placed, must go upon the bridge. Now, under these circumstances, was that bridge a pan. of the yard or premises of ihe company, so that the company should have reasonably foreseen that stockmen would use it when examining their stock in the train? And were or were not such stockmen, including Mr. Kelley, justified by ihe practice of the company in making use of the bridge as pari of the yard of the company when looking after their stock? If, by the usage of the company, they were justified in using the bridge as part of the premises of the company, where they were expected to go in examining their stock, then the duty rested upon the company of exorcising ordinary care to put and keep the bridge, as part of the company’s yard, in a reasonably safe condition for the use of parties engaged in shipping stock over defendant’s line of railway. If, however, the bridge did not form part of the station grounds, and the company did not hold it out to the public as a place to he used for ihe purpose for which Mr. Kelley used it, then you cannot hold the company responsible for the consequences resulting from it being so used by him, because in that case the company would owe him no duty or obligation to keep the bridge safe for such use. If, however, you lind that the bridge was a part of the defendant's premises at Council Hill, which Mr. Kelley was justified in using, under the instructions given you, when engaged in examining his stock, and that he was justified in endeavoring to páss around the front end of the engine, in the position in which it was placed, then the next question will be as to the condition of the bridge for such use. As I have already said to you, the rule on that point is that the company is required to use ordinary care — such a degree of care as men of ordinary prudence should exercise where human life or limb may be exposed to danger — in keeping its premises, where the public are invited to come in transacting business with the company, in a reasonably safe condition, so that in the use thereof no unnecessary risk or danger is cast upon the public.”</p> <p>There was a verdict and judgment for the plaintiffs, and the defendant sued out tins writ of error.</p>

<p>1. Railroad Companies — Accident at Crossing — Child on Track — Evidence,</p> <p>In an action against a railroad company to recover for an injury to a child upon the track it is competent to show by a recorded plat, according to which the town had been built and the lots sold, that the place where the accident- occurred was within the limits of the town and of a street crossing, although such plat was not acknowledged in the manner required by the statutes.</p> <p>2. Same.</p> <p>Some children playing near a railroad track within the limits of a town, upon hearing the whistle of an approaching train, placed pins upon the rail, and then ran into some bushes. The persons in charge of the train in- • tended to make a “flying snitch,” so as to cut out several cars from the middle of the train, and for that purpose the train was cut in three sections, the conductor pulling the pin between the first and second sections, and then immediately going to the rear of the first car 'of the second section to man the brake. After the first section bad passed, the children ran out from the bushes, and one of them, while stooping to pick up the pins, was struck by tbe second section, the conductor being- unaware of his presence. The place of the accident was within the limits of a street which, according to the plat of the town, here crossed the track, but the street had not been opened for vehicles, and was only used by pedestrians. Held, that on these facts the court properly refused to direct a verdict for defendant, for the failure to have a lookout on. the front of the second section tended to show a want of proper care.</p> <p>8. Same — Instructions.</p> <p>The .charge of the court being otherwise full and accurate, it was not error to state that the fact that the children were playing in a public street would not malee them trespassers, and it would not be presumed that the jury inferred therefrom that the children had a right to play upon the track at the place in question.</p>

At Law. Action in assumpsit by William A. Orman against the North Alabama Development Company, Limited. Motion to dismiss an attachment.

At Law. Action by the Third Rational Bank of Chattanooga against Eugene C. Cordon and others upon certain promissory notes. Verdict and judgment were rendered for plaintiff, and the judgment was affirmed on writ of error by the supreme court. 12 Sup. C+. Rep. 657, 144 U. S. 97. The cause is now heard on motion for judgment against the sureties on ihe supersedeas bond.

<p>At Law. Motion to strike out amended complaint. Denied. Demurrer to amended complaint.</p>

<p>Application by the Interstate Commerce Commission for an order to compel W. G. Brimson, J. S. Keefe, W. B. Stanley, and others to produce certain books and papers before the commission, and to answer certain questions.</p>

<p>Application by the Interstate Commerce Commission for an order to compel Sumner Hopkins and Henry Walker lo answer certain questions.</p>

In Equity. Suit by tlie Boston tasting Machine Company against Erastus Woodward and others for infringement of a patent. Decree for complainants as to the second, third, and fourth claims of the patent and that the iirst and fifth claims are void.

<p>Patents fob Inventions — Infringement—Photograph Cameras.</p> <p>Letters patent No. 294,959, issued March 11, 1884, to Thomas Henry Blair, covering a combination with the frame and partition of a camera, of two adjustable bars, closing the mouths of the plate chambers, respectively, when in their inmost positions, must, if sustainable at all as containing novelty or utility, he restricted substantially to the structure described, and is not infringed by a camera with bars which are on the outside of the end bar of the plate-holder frame, and are not adapted to close the mouths of the plate chamber.</p>

<p>In Equity. Bill by Simon IMman and Frederick Hillman against the Arnkoldt & Schaefer Brewing Company for infringement of a patent.</p>

<p>Tbade-Mabks — Ini’kingfaiext—-Tam «diction of Pkdekat, Coubts.</p> <p>A federal court lias no .jurisdiction of a suit for tlie breach o£ a registered common-law trade-mark wherein plaintiff and the principal defendants are citizens of the same stare, and no charge is made of infringement in foreign commerce or commerce with the Indian tribes. ;</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>At Law. Action by tbe Wheeling Steel Works against Edward W. Clark, Sabin W. Colton, Jr., Edward W. Clark, Jr., Edward E. Denniston, J. Milton Colton, and C. Howard Clark, trading as E. W. Clark & Co., for breach of conti act. Verdict and judgment for plaintiff. Defendant brings eiTor.</p>

<p>1. Copyright- — Infringement—Joint Tort Feasors.</p> <p>Defendants bought certain copyrighted pictures, furnished them to a photogravure company, ordcre 1 copies to bo made, and gave general directions as to how the work ,should be done; the company agreeing to take the risk of infringement. Held, that defendants were liable for in- , fringement as joint tort feasois.</p> <p>2. Same — Intent Immaterial.</p> <p>When the infringement of copyright is established, the question of intent is immaterial. Harper v. Shop pell, 26 Fed. Rep. 519, followed,'</p> <p>8. Same — Engravings and Etchings — Incomplete Copies — Photogravure.</p> <p>A photogravure company, under an agreement with defendants, made copies of copyrighted engravings and etchings, omitting the tint, title, and plate mark, shipped, them to l ondon, and there caused the tint, title, and plate mark to be put on, and delivered the finished pictures to defendants. Held, that under Rev. St. § 4953, the copyright was infringed, whether the unfinished copies were market able or not.</p> <p>4. Same — Remedies—Injunction without Proof of Damage.</p> <p>On proof of infringement of copyright, injunction should issue without proof of actual damage.</p>

<p>Collision — Vessels Ekthbistg Casal — Evidence.</p> <p>A schooner, the stem vessel in a tow lying near the lower entrance of the ship canal at Sault Ste. Ma rie, awaiting the locking through of another vessel, was injured by collision with a steamer. The libel therefor alleged that Hie steamer came up astern of the schooner with great speed, striking the dock, then- bounding off and striking the schooner; and was supported by testimony of libelant, and of the crews of the schooner, the tug, and another vessel in tow, which was contradicted by the evidence for the defense. From uncontested facts and testimony of disinterested wit- „ nesses, uniwpeached, it appeared That, while the tow was moving up the river, the steamer was on her way to the dock, and came around under the stem of the schooner, and on her port side, between her and the dock. The wind, about northwest, varying from 22 to :>(> miles per hour, would strike ascending vessels on the starboard bow, and the starboard side of the schooner was exposed to ihe full force of the wind and current. The injury to the schooner was confined to her plarik-sheer, rail, and bulwarks, without any mark of the steamer’s stem. The only damage to the steamer was tlie splintering' of a starboard fender, and she liad no mark, or even abrasion of paint, on either side; and the jar of the contact was scarcely noticeable on the steamer. Held, that the cause of the collision was that the schooner was suffered to drift, and the combined force of the wind and current carried her across the bow of the. steamer, her rail and bulwarks receiving and yielding to her momentum as she rubbed along the fender of the steamer; and that the libel should be dismissed.</p>

<p>In Admiralty. Libel against tbe steamer Iron Chief for collision with the schooner J. F. Card.</p>

In Equity. Bill by John Henry Mangels against the Donau Brewing Company and others to foreclose a mortgage given to secure the payment of certain bonds. On demurrer to the amended bill.

In Equity.- Bill by Bobert P. Olapp, mortgagee of an electric street railway, against the city of Spokane and Bolla A. Jones to enjoin the construction of a sewer in such manner as to unnecessarily damage the railway, and obstruct its operation. On demurrer to bill. Sustained.

At Law. Action by Thomas Hogan against the Northern Pacific Railroad Company for damages for injuries sustained while coupling cars, which was outside the scope of his employment by defendant. On motion to instruct the jury to find for defendant.

<p>At Law. Action in ejectment, brought by the Northern Pacific Bailroad Company against James B. flinchman and others. Tried to the court on an agreed statement.</p>

<p>At Law. Action by the United States against Samuel L. Pox and Edward B. Pox, trading as James W. Queen & Co., to recover customs duties. Heard on motion for new trial.</p> <p>From July to November, 1889, the defendants imported into the port of Philadelphia certain small plates of glass of various shapes, with their faces polished, but with their edges rough, these plates of glass being fitted for use as lenses in optical instruments, when their edges should be cut to fit them to ihe instruments. These goods were entered as manufactures of glass. They were examined by the appraiser, who reported them to be manufactures of glass of .a certain value, and subject to a duty of 45 per cent. This duty was duly paid, but in each case there was a protest by the importer, claiming that the articles were glass disks, unwrought, for use in the manufacture of optical instruments, and therefore within paragraph 708 of the free list. Pending these protests, on October 8, 18S9, a suit brought by the present defendants was tried in the United States circuit court at .Philadelphia, which involved, among other matters, a question of duty upon similar articles. The charge of the court was to the effect that the articles were manufactures of glass, and were dutiable as such. The .case was not appealed, as the principal matters involved were articles of another description, as to which a similar question was pending in another case in the supreme court of the United States, and nothing further was done pending the decision of that question. A short time prior to the trial of this case at Philadelphia, a case had been tried in the circuit court at New York, which also involved the rate of duty upon certain glass plates. At the trial in Philadelphia, it was claimed that this decision in New York applied to the articles in suit at Philadelphia, but the court distinguished the two cases, and refused so to rule.</p> <p>On December 13, 1889, W. Rood Williams, who was also an importer at Philadelphia of similar goods, and who had protests pending, applied to the secretary of the treasury, claiming that the New York decision covered the invoices at Philadelphia, and asking the secretary to investigate the matter, and to order a refund of the duties collected on said merchandise at Philadelphia. In pursuance of this request, the secretary of the treasury asked the collector at Philadelphia for a report, and the matter was referred to the appraiser at Philadelphia for a report upon all the entries of said merchandise. He reported that all the goods were covered by the New York decision, and upon his report refunds were ordered in all the cases. The present defendants had nothing to do with the application of W. Reed Williams, or with the investigation and order which followed. They, however, received under this order the refunds made by the direction of the secretary of the treasury. After the date of the report of the appraiser upon this question of refunds, viz. from December 23, 1889, down to September 29, 1890, the defendants made a number of importatiens of the same merchandise, which they entered as glass disks, unwrought. These were duly examined by the appraiser, and returned as glass disks, unwrought, free of duty, and a liquidation was made by the collector accordingly.</p> <p>In November, 1890, the collector, in the belief that a mistake had been made in holding these goods to be within the decision of the New York case, re-liquidated all the entries, including those in which the money had been refunded and those where the goods had been passed free of duty. In the forsuer class of cases lie restored tlie original duty; in the latter class of cases he liquidated a duty of 45 per cent., as manufactures of glass. In both oases, before liquidating, he sent tlie invoices and entries to the appraiser, who made a new return that the goods were manufactures of glass, dutiable at 45 per cent., and were valued at the amount stated in the invoices, and upon this return the collector based his liquidation. In the case of three of the entries in which tlie money had "been refunded the; last liquidation was made more than a year after the origina] eniry. At the time of this last liquidation all the goods, including the examination packages, had been delivered to tlie importer, and had passed into consumption. Tlie appraiser and collector, however, were in possession of samples of this kind of goods which they considered sufficient to enable ihem 1o judge of the goods, but which they could not identify as coming from the particular invoices or examination packages thereof. The testimony of the examiner on this point was as follows:</p> <p>“By the Court: Question. Had you the lenses before you at that time? Answer. I had samples; a sufficient number of samples. By the District Attorney: Q. At the time that you had those invoices before you the socond time, or at any time after the original appraisement, state whether or not you had before you a line of samples which was sufficient to enable you to correctly describe the character of the goods to the collector. A. I had. Q. What did you have before yon? A. I had a sufficient line of samples. By the Court: Q. Wiiat had you? What quantity of these glasses had you? A. Quite a number. Many of them are present here. Q. Of tiiis same invoice, not of some others? A. I had some of this invoice and some of others. Q.‘ Were the original samples still in the office? A. Some of them were. Q. And you had those before yon? A. 5es, sir. We have some of them there yet. By the District Attorney: Q. State what is the practice of your office with reference to taking samples of such importations as these at the time the invoice and examination packages are before yon. A. We take a sufficient number of samples, so (hat in the event of any question arising we can refer to the samples. That is an every-day occurrence. Q. At the time yon made the second report, you had those samples before you? A. I had. * ® ® By Mr. Prichard: Q. You had before you certain samples which came from various Queen invoices, — samples which, in your judgment, were quite sufficient to determine the value of the goods, and which ought to fairly represent them? A. Yes. Q. Yon did not have a sample there of this particular invoice in suit? A. No, sir; I cannot say that I had. Q. But you had various samples, which represented generally a line of goods throughout this invoice? A. I had sufficient quantity to answer my purposes.- Q. Have von got those samples here which you can identify as being' from any invoice In this case? A. I had some samples here, and I had them marked, each one wrapped in separate paper, and marked representing the number of entry or steamer, but those papers were taken off. Possibly if was not understood about them. They have become somewhat mixed up now. When 1 brought them here originally I had each one marked, so that I could apply it to each individual invoice. Q. Can you tell me, in these twenty-odd invoices, about how many samples you had which you identified as coming from the particular invoices in suit? A. They may not have been all from this importation, but they represent the goods. Q. I only want to understand how many samples, in point of fact, that you could identify as coming from those particular invoices. A. That I could not do. Q. Could you give ns any idea? A. I could not do tha (:. They are all of them of one character. To pick out one of these samples, and say it belonged to this identical invoice, 1 could not do. Q. You were able to do that once because you had thorn put up in papers? A. I was. I kept a memorandum of the numbers. I wrapped the samples up in papers, and put labels on them, by which 1 could identify them. Q. You did not, in point of fact, at the time of your second return, have the examination packages or the goods before you? A. Not the original goods. Q. I mean other than the samples? A. Not other than the samples. Q. Did yon go to the store of the importer, and endeavor to find the goods? A. I did in some cases; probably not in this identical case. Q. I mean as to this particular invoice. I do not mean what your custom is. I mean at the time of the second liquidation in Novembef, .1890. A, 1 do not remember whether it was necessary at that time to go to him for samples. I think possibly'we bad a sufficient number. We bad the identical samples at that time. I might say that some of the samples were sent to the department at Washington, some were sent to New York, and were sent to .different places, and I think some were sent to the collector. They became scattered.”</p> <p>Against this final liquidation.the defendants protested, not only upon the ground that the articles were glass disks, unwrought, and entitled to free entry, but also upon the ground that the return was made by the appraiser without any inspection of the goods, or of the portion thereof required by law. There was no evidence of fraud in the case, nor of any mist alee, excepting the error of judgment, if it was an error, made by the appraiser, and which, so far as the evidence disclosed, was not occasioned by any action of the defendants; nor was there any evidence of concealment as to the character of the goods, it appearing that the mistake, if it was such, was made with full knowledge of the facts.</p> <p>At the conclusion of the evidence a verdict was taken for the defendants under the following written stipulation:</p> <p>“It is agreed that, in order that the questions of law may be discussed in the above case, a verdict shall be taken for the defendants, and a motion for a now trial made by plaintiff, and, if a new trial is ordered by the court, the case shall be submitted upon the stenographic report of the evidence already taken, without new evidence on either side, and a verdict rendered in accordance with the instructions of the court as to the law upon such evidence. It is further agreed that the reasons for a new trial shall include all objections and exceptions taken during the trial, as well as the points submitted by either side. Both parties reserve the right to take a writ of error of appeal from the decision of ihe court.”</p>

Indictment against Carmen Ybanez for violation of the neutrality laws by setting on foot a military expedition against the republic of Mexico. Verdict, “Guilty,” and sentence of three years in the penitentiary.

<p>False Pretenses — Intent to Defraud.</p> <p>■ Under Act April 18, 1884, making it a felony to falsely pretend to be an officer or employe of the United States, with intent to defraud’ the United States or any person, where an indictment charges such false personation in order to defraud the United States or a certain railroad company, it must be shown, to authorize a conviction, that defendant, to consummate his fraudulent intent, so falsely represented himself to some agent of the government, or to some agent of the railroad company.</p>

<p>Indians- — Sales of Liquok.</p> <p>Itov. St. § 2139, provides tb it every person who disposes of spirituous liquors to any Indian “under flio charge of any Indian superintendent or agent !! * shall be pimbiied. * * *” Held, that an Indian of the Nez Forces tribe, a soldier in rite United States army, is within the meaning of the statute.</p>

<p>In Equity. Suit by the Blab Camera Company against-William H, Robey and others for infringement of a patent.</p>

<p>In Equity. Suit by the Pacific Gable Railway Company against ihe Butte City Street Railway Company for infringement of a patent.</p>

<p>In Admiralty. Suit in rem by J. A. Mellquist against tbe passenger steamer Wasco, to recover damages for a personal injury to libelant while a passenger, caused by negligence. Findings and decree for tbe libelant.</p>

<p>1. Constitutional Law- — Navigable Waters — Powers ojc States.</p> <p>In the absence of legislation by congress a state may authorize tlie erection of a bridge of-any character across a navigable water within its borders, subject to the power of congress to abate or regulate the same. Bridge Co., v. Hatch, 8 Sup. Ct. Rep. 811, 125 U. S. 1, followed.</p> <p>2. Admiralty Jurisdiction — Navigable Rivers*— Unauthorized Obstruction — Collision.</p> <p>The owner of a vessel injured by a collision with an unauthorized obstruction in a navigable water may maintain a suit in personam in admiralty to recover damages from the person who placed or maintains such obstruction therein; and a bridge built under tlie sanction of an act of the legislature, in so far as it fails to comply with the same, is such an unauthorized obstruction, but in such suit it must be alleged and proved that such obstruction was the cause of the collision.</p> <p>3. Navigable Waters — Unauthorized Obstructions — Criminal Prosecution — Jurisdiction.</p> <p>The act of congress of September 19, 1890, (26 St. 453,) only gives this court jurisdiction of a criminal action against the owner of a bridge to recover a lino of $5,000 at 1he suit of the district attorney, when the secretary of war shall find that such bridge as constructed or maintained is an unreasonable obstruction to free navigation of the water which it crosses, and when said owner shall fail or neglect to obey the order of the secretary thereabout.</p> <p>(Syllabus by tlie Court.)</p>

<p>On Habeas Corpus.</p>

<p>In Admiralty. On libel and cross libel for collision.</p>

<p>Appeal — Mandate—Proceedings Below — Jurisdiction.</p> <p>It is too late to question tile jurisdiction of the circuit court after the return of a mandate from the circuit court of appeals, and the circuit court has no discretion but to enter a decree pursuant to the directions of the mandate, and carry the same into effect.</p>

<p>At Law. Action of ejectment by Lillian I. Greene against the city of Tacoma, Tacoma Bailway & Motor Company, and Steilacoom Bail-way Company..</p> <p>For decision overruling demurrer to complaint, see 51 Fed. Rep. 622.</p>

<p>1. Federal Courts — Jurisdiction—Receivers of National Banks.</p> <p>Tlie federal courts have jurisdiction of suits by receivers of national banks, to collect the assets thereof, without regard to the citizenship of the plaintiff.</p> <p>2. New Trial — Discretion on Court — Nonresident Juror.</p> <p>Where there has been a fair trial, and the verdict is fully warranted by the evidence, the court will not, in the exercise of its discretion, grant a new trial because one of the jurors was a nonresident of the district, which fact was not disclosed at, the trial.</p>

<p>At Law. .Action by Mary J. Buckles against tke Chicago, Milwaukee & St. Paul Railway Company, instituted originally in the state court. La that' court plaintiff took a nonsuit after the hearing of the evidence and the giving of instructions, but afterwards, and within a year, reinstituted the action in the same court. Defendant then removed the cause to the federal circuit court, where, on motion made by it, an order was granted to stay further proceedings in the cause until plaintiff had paid the costs assessed against her in the first proceeding in the state court. See 47 Fed. Rep. 424. Plaintiff now moves to have that order vacated.</p>

<p>At Law. Statutory proceedings by Eva Levy against Thomas R. Brown, United States marshal, and Ralph S. Hopkins, execution creditor, to establish her claim as owner of personal property levied upon to satisfy a judgment against her husband. Jury waived. Trial by the court.</p>

At Law. Action by Andrew Johnson against tbe Merry Mount Granite Company to recover damages for a personal injury. At tbe time of tbe injury plaintiff was on land adjoining tbe quarry, but not owned by tbe granite company, and was struck by a stone thrown from tbe quarry by a blast. There was a jury trial, and, after tbe evidence for both sides was in, defendant offered a written release, signed by tbe plaintiff.

<p>1. Patents for Inventions — Preliminary Injunctions — Prior Decisions in Foreign Court.</p> <p>Decisions by Canadian courts sustaining the validity of a patent, while not controlling, are entitled to consideration on a motion for preliminary injunction.</p> <p>2. Same — Preliminary Injunction in Another Circuit.</p> <p>On a motion for preliminary injunction, a decision in another circuit upholding the patent and ¿.warding a, preliminary injunction after elaborate argument by experienced counsel, is entitled to great weight, it appearing that the cause never proceeded to final hearing.</p> <p>8. Same — New Evidence.</p> <p>Where the field of invention is circumscribed and minute differences are of utmost importance, the weight to be attached, on a motion for preliminary injunction, to a prior adjudication sustaining the patent, cannot be easily destroyed by evidence as to anticipating devices not presented in the former case, when such evidence consists of the ex parte statements of witnesses as to devices not seen by them for 13 years.</p> <p>4. Same — Laches.</p> <p>On a motion for a preliminary injunction against infringing a patent, complainant cannot be held guilty of lacbes because a suit on the same patent was pending in another circuit in June, which might have been heard at the October term following, if complainant had labored diligently during July and August.</p> <p>5. Same — Amount op Infringement.</p> <p>A preliminary injunction will not be denied merely on the ground that the infringement is so small that it does not seriously imperil complainant’s business.</p> <p>6. Same — Validity — Preliminary Injunction — Duplicate Memorandum Slips.</p> <p>On a motion for a preliminary injunction against the infringement of the first claim of letters patent No. 238,048, issued November 6, 1883, to John H. Prink, for an improvement in duplicate memorandum slips, it appeared that the patent had been twice sustained in the Canadian courts, that a preliminary injunction had been granted after full argument in another circuit, and that the book of the patent was the most popular sales book In this country, and had superseded all other books of a similar character. There was also strong, though not entirely satisfactory, evidence of acquiescence by the public. Held sufficient to warrant the granting of the preliminary injunction.</p> <p>7. Same — Bond.</p> <p>A bond should not be substituted for an injunction when defendant is not a manufacturer, but merely a user, and the value of the infringing articles used is only $22.</p>

<p>In Equity. Bill by Garter & Go., Limited, against S. S. Houghton and others for infringement of letters pateiit Ho. 288,048, issued Hovember 6, 1883, to John H. Brink, for an improvement in duplicate memorandum slips. One of the defenses was that the patent was anticipated by devices made under letters patent Ho. 266,189, granted October 17, 1882, to James L. O’Connor, and reissued letters patent Ho. 10,359, dated July 24, 1883, to John R. Carter upon original patent Ho. 252,646, issued January 24,1882. On motion for preliminary injunction.</p>

In Equity. Bill Tby the Brown Manufacturing Company against P. P. Mast & Co. for infringement of letters patent Ho. 190,816, issued May 15, 1877, to William P. Brown, for a cultivator. The alleged infringing machine was made under letters patent Ho. 260,447, issued July 4, 1882, to D. Berlew and M. L. Kissel.

In Equity. Bill by the Adams & Westlake Manufacturing Company against William Westlake to enjoin alleged violations of a contract granting a license lo manufacture under a patent owned by him.

<p>Appeal from tlie Circuit Court of the United States for the Southern District of New York.</p> <p>In Equity. Bill by the Edison Electric Light Company and the Edison General Electric Company against the Sawyer-Man Electric Company for infringement of a patent. A pro forma decree, awarding a preliminary injunction, was entered below, and the defendant company appeals.</p>

In Admiralty. Libel in rem by James P. Lyman, Charles F. Guptill, and others against the schooner H. E. Willard. Dismissed for want of jurisdiction. This decision has been affirmed by the circuit court, the opinion being delivered by Mr. Justice Gray.

<p>1. Venue in CrviL Cases — Divisions of District of Washington.</p> <p>The act fixing the times and places of holding federal courts in the state of Washington (26 St. at Large, p. 45, § 4) provides that actions not of a local nature shall be brought in the division where the defendant resides. Held, that it is the intent of the act that actions of a local nature shall be brought in the division where the res is when the suit is begun.</p> <p>2. Same — Libel in Rem.</p> <p>A libel in rem is an action of a local character, within the meaning of the act fixing times and places for holding federal courts in the state of Washington, (26 St. at Large, p. 45, § 4,) and must be brought in the.division where the res is when the suit is begun.</p> <p>3. Same — Change to Proper Division.</p> <p>Where a libel in rem is brought in the wrong division, the objections thereto being purely formal, and it is probable that the case will be tried on issues of fact, a motion by the respondent to transfer the cause to the right division should be granted.</p>

<p>In Admiralty. Libel by Minna F. Marquardfc and others against Henry C. French to recover insurance.</p>

<p>In Admiralty. Libel by Joseph McNamara against the steam dredge Atlantic to recover for wages as engineer thereof.</p>

<p>In Admiralty. Libel by Charles W. Davis against the steam tug Transfer No. 1 and Float No. 23 to recover salvage for assistance rendered to them by the Mary E. Gordon.</p>

<p>1. Salvage — Contract for Towage — Duress—Amount of Compensation.</p> <p>On a libel on contract for salvage services rendered by the steam schooner Tillamook to the steamer Sirius, the evidence showed that the Sirius, having lost her propeller and part of her shaft, was placed under such sail as she had, and, after drifting for three days, was anchored in a bay of an island off the coast of lower California; that she was in a dangerous position, as she could not get an oiling with her small sail power, and in case of a southerly gale might go ashore; that the master of the Tillamook, which came to her assistance, proposed either to tow her to San Diego for §20,000, or to furnish stores and gratuitously hike an officer to San Diego to procure assistance; that the original purpose of the master of the Sirius was to send to San Diego for assistance; that he was positive his position was safe, and that he could get to sea before a southerly storm became dangerous; that he decided not to send an officer to San Diego, as he wished to avoid lengthening his voyage; that he clainied that §20,000 for the towage services was unreasonable and exorbitant, and proposed either a reduction in the charge, or arbitration, or to leave the question to the owners to settle; that his propositions wore rejected by the master of the Tillamook, whose vessel, with its small engines, ■might become disabled, or too greatly strained by towing the Sirius, which was much larger; that the negotiations occupied an hour and a half; that the contract for the towage services at $20,000, contingent on success, was drawn by the purser of the Sirius, and subsequently signed by her master; and that the Tillamook was valued at §32,000, and the salved property at §143,539. Held, that the situation of the master of the Sirius did not force him into the agreement, and the contract was not made under duress; and that the compensation provided for the service, though high, was not so unreasonable in amount as to justify the court in setting the contract aside as wholly inequitable and unjust. The Wellington, 48 Fed. Rep. 478, and The Agnes 1. Grace, 51. Fed. Rep. 958, 2 C. C. A. 581, followed.</p> <p>8. Same — Apportionment.</p> <p>The award of §20,000 under the contract was distributed among the salvors by the court as follows: §13,250 to the charterers of the Tillamook, which was the principal factor in performing the salvage services, and assumed the risk of failure and disaster; §2,500 to the master of the Tillamook, who promptly procured additional stores for the Sirius, offered to go to San Diego at once for assistance, and undertook the towage service against the protest of two of his passengers; and §4,250 to the other officers and crew of the vessel, according to their relations to the service performed, their extra work, and their regular wages.</p>

<p>1. Federal Courts — Jurisdiction.</p> <p>The question of jurisdiction may he raised upon the final argument oí a. cause in a federal court, and hy statute it is made the duty of sucli court to dismiss the same, upon its own motion, whenever the want of jurisdiction shall appear.</p> <p>2. Same — Interstate Commerce — "Navígable Streams — Obstructions.</p> <p>By 24 St. at Large, p. ¡520, appropriations were made for the.improvement of certain rivers in California, with a provision that the balance of such appropriation should not be used until certain hydraulic mining, hurtful to navigation, liad ceased on such rivers, and in the event of its continuance authorized the secretary of war to institute legal proceedings to prevent the same. Held, that this legislation was a sufficient assumption of national jurisdiction over the waters in question, under the commerce clause of the constitution, to confer upon the federal courts jurisdiction of a suit hy the United States to enjoin the continued deposit of mining debris injurious to navigation.</p> <p>3. Navígable Waters — Obstructions—Mining Debris — Injunction.</p> <p>■ In an injunction suit by the United Stall's against a company engaged in hydraulic mining, alleged to lie obstructive of navigation of the waters in question, it appeared that the operation of defendant’s mine had heen enjoined some time prior to the commencement of this suit; that intimation was made in the decree that, when it was satisfactorily shown to the court that proper impounding reservoirs liad been constructed, such decree would lie modified so as to permit resumption of operations; and that the company, before the bringing of the present suit, liad caused to be erected extensive works, hy means of which it impounded upon its own land, and within its own mine, all materials likely to injure the navigation of the streams. Held, that an injunction should lie denied.</p>

<p>Navigable Waters — Obstructions—Hydraulic Mining — Injunction.</p> <p>An injunction will be granted, at tlie suit of tlie United States, to restrain hydraulic mining operations, when it appears that the dam consiracted in connection with the impounding works is of wood, standing in the bed of a torrential mountain stream, and of necessity is liable to be carried away by freshets, so as to discharge all the impounded debris into the streams, thereby cansing great damage to navigation.</p>

<p>At Law. Indictment of Rufus E. Graves under Rev. St. § 5209, for making false entries' in reports to the comptroller of the currency of the condition of a national hank of which he was president and director.</p>

<p>Negligence — Personal Injuries — Usual Construction.</p> <p>Libelant, a fireman on a tug, was thrown against the deck house by a lurch of the vessel, and at the same time,' the iron door of the house swinging to, his fingers were caught near the hinges and cut off. Thereupon he brought this suit, alleging negligent construction of the vessel. Held, that the weight of the evidence showed no negligence in the construction of the tug. Held, further, that not only were the appliances of the tug in good order, but they were in the exact condition in which they were when libelant engaged work, and were perfectly known to him, which fact would bar recovery.</p>

<p>In Admiralty. Libel by Riggs, master of the schooner John H. May, against the steamer Orion and the barge Oakland for a collision. The latter vessels were heretofore adjudged to have been alone in fault. 52 Fed. Rep. 882. The cause is now heard upon a case stated for the assessment of damages for detention of the schooner by bad weather after repairs were completed.</p> <p>The case stated was as follows:</p> <p>“The schooner John H. May, on a voyage from New York to Jacksonville. Florida, was run into by the Orion and Oakland, while lying at anchor in the mouth of Chesapeake bay. The Orion and Oakland have been adjudged in fault for the collision. The schooner was seriously damaged, and was obliged to put into Norfolk, Virginia, for repairs. The repairs were made, and in coming out from Norfolk, and before getting back to the place in the mouth of Chesapeake where the collision happened, the May was unavoidably detained in Hampton Boads by stress of weather from February ■ 19th to March 1st. Upon the latter date she again reached the point on her voyage where the collision occurred. Compensation is claimed by the libelants, as part of the damage arising from the collision, for this detention of eleven days at Hampton Boads. This claim is resisted by thé respondents as too remote. Are the libelants entitled to compensation for this delay?”</p>

In Admiralty. These were two libels by Jacob Du Bois, as owner of scow No. 3, against the steam tng H. S. Nichols and the steam tug Ceres, in the one case, and against the steam tug G. W. Wright and the tug James T. Easton, in the other. Decree for libelant against the Nichols and the Easton, and exempting the Ceres and the Wright.

<p>In Admiralty. Libel by Charles A. Pox, as owner of the steam tug F. W. Devoe, agaiust the steam tug Charles H. Senff, to recover damages for collision.</p>

<p>Collision — Tugs and Tows — East River — Navigation Near Piers.</p> <p>Steam tug No. 2, with, a heavy tow alongside, having just left the eu'1 of pier 5, East river, heading up, was swinging out in the ebb tide to go down the river. Steam tug No. 8, with a car float in tow alongside, was coming up the river at the rate of about 6 or 8 knots, and so near the pier that she could not be seen by No. 2 until the latter had left her pier, and when the two were about 750 feet apart. No. 2 thereupon whistled twice, and hooked up, in an attempt to pass ahead of No. 8, and out into the river; but the tow on her starboard side was struck and sunk by the car float alongside of No. 8. Séld, that the cause of the collision was the fault of No. 8, in going at such speed, so close to the shore, around the bend, and that, the situation being critical from the moment the vessels discovered each other, the ordinary rule of the starboard hand" did not apply, and that the navigation of No. 2 was not, under the circumstances, negligent, but, if erroneous, was so by an error of judgment in extremis, and by the other’s fault.</p>

Proceeding in the probate court of Payette county, Ohio, hy the city of Washington against the Columbus «fe Cincinnati Midland Railroad Company for the aiipropriation of a right of way for a street. Prom the verdict assessing the damages, defendant appealed to the court of common pleas of Payette county.

At Law. Action brought by Julia Egan, administratrix of the estafe of John J. Egan, in an Iowa state court, against the Chicago, Milwaukee & St. Raul Railway Company, to recover damages for the alleged wrongful death of the said John J. Egan. The cause was removed by the defendant to the United States circuit court, and is now heard on a motion to remand.

In Equity. Hill by O. 0. Wyman and others against Ida A. Mathews and others to enforce a trust in the property of an insolvent trader under the provisions of section 4660 of the Civil Code of South Dakota. Heard on application to dissolve an injunction and set aside an order appointing a receiver.

At Law. Action of trespass to try title, brought by Thomas Tinsley against A. B. Hoot and others. Verdict and judgment for defendants, and plaintiff brings error.

<p>In Equity. Creditor’s bill brought by the Cleveland Rolling-Mill Company against the Joliet Enterprise Company, Henry M. Fish, George M: Fish, Charles M. Fish, and Henry M. Fish, of the firm of Henry Fish ’& Sons, and others.</p>

In Equity. On petition and motion of receiver for injunction. The Mobile Street Railway Company defaulted in the payment of Interest on its bonds, and a bill was filed by the complainant above named, as trustee under the mortgage, to foreclose tho mortgage and sell the property, and a receiver was appointed.

In Equity. Suit by Thomas Tinsley against Henry M. Warren and others to foreclose a deed of trust to secure the payment of money. By a stipulation filed by the parties the controversy was submitted to arbitration in the manner provided by the Texas statute. The award of the arbitrators having been filed, plaintiff moved to set the same aside, which motion, after a hearing, was granted, and a decree entered in favor of plaintiff.

<p>Appeal from the Circuit Court of the United States for the Southern District of Mississippi.</p> <p>In Equity. Bill by Lucy E. Gastrell against Marx Wineman to remove cloud from, title. Decree for complainant. Defendant appeals.</p> <p>Statement by LOCKE, District Judge:</p> <p>March 5, 1850, the legislature oí Mississippi hy an act provided for the appointment of the several persons therein named as a board of commissioners for the improvement of the Homochitto river, auihorizing them to receive any appropriations granted by the state or voluntary contributions from citizens, and to expend the sums of money so received for the purpose of removing obstructions in said stream, and excavating and digging a canal into Buffalo bayou, and to perform any other such acts as might tend to the improvement of the navigation of said stream as they might deem expedient and'proper. Afterwards, on the 28th day of September, the same year, congress, by act of that date, donated to Mississippi the swamp and overflowed lands within its limits, and subsequently, by an act approved March 3, 1852, the legislature of that state declared that 35,000 acres of these swamp lands granted by act of congress, and located In the Homochitto swamp, “be, and the same are hereby, granted to the commissioners of the Homochitto river, created by an act regulating and defining the powers of the commissioners of the Homochitto liver, approved March 5, 1850, and to their successors in office, for the purpose of removing ail obstructions in said stream, to create an outlet for said river through Old river, and by a canal into Buffalo bayou, and the removal of obstructions in said bayou from the said canal to its mouth, for the effectual drainage of said swamp, the improvement of the navigation of the Homochitto river, and to make a levee across tire present outlet of said river on the Mississippi.”</p> <p>The second section of said act provided that the commissioners might sell and dispose of any of said lands for the jiurposes mentioned, and cause certificates to issue to any purchaser or grantee, specifying the number of acres and number of section, or subdivision of section, transferred, upon the presentation of which certificate the secretary of state should issue a patent to the purchaser for the land sold.</p> <p>The board had been regularly organized, and, as it appears from the record, appointed and employed one James Aiken as general superintendent, to look1 after the interests of said board and said land, and take general supervision and care of the improvements about to be made. It is alleged, and appears in evidence, that said Aiken entered upon such duties ,of superintending the improvements, purchased materials, hired laborers, and incurred expenses. He was to have a monthly compensation for his services, and a certain amount per diem for his expanses. There is nothing in the record showing how much was accomplished in the way of improving the navigation of the river or cutting the canal, but after a while the efforts appear to have been abandoned. There were several attempts at settlement of the claims made by Aiken for the amounts alleged to be due him, but they were unsuccessful, and on June 1, "1855, he commenced a suit against the commissioners in the vice chancery court in Natchez, by a bill for an account and settlement for his services and the amounts expended by him in making such improvements as he had made, and for a discovery of the assets of the board, out of winch to obtain satisfaction of the amount which might be fomid due him. This suit progressed until May 1, 1858, a decree was rendered by the chancery court of Adams county, to which the suit had been transferred, for the sum of $8,182.55 in favor of said Aiken against the said board of commissioners, and upon which an execution was issued to the sheriff, and by him returned nulla bona.</p> <p>' On the 28th of September, 1859, Aiken filed his petition in said court, praying a mandamus to compel the commissioners to sell some of the lands which had been granted them, to pay him the amount due on said decree. Upon a demurrer being filed to said application by the board, it was overruled, and a mandamus issued, returnable to the May term, 186L The court having been suspended by.reason of the war, no further action appears to have been taken in the cause until the October term, 1866, when George N. Raymond, to whom Aiken had assigned the former judgment, filed a petition in the name of Aiken, praying the appointment of a special commissioner to sell said land, the board having failed to do so. An order was granted and decree appointing Samuel Wood such commissioner, aud directing him, after advertising the time and place in some newspaper published in the city of Natchez, to sell so much of said lands to the highest bidder for cash as might be necessary to pay said demand. The record shows that the commissioner proceeded to advertise for sale a large amount of land by description, by townships, sections, and lots, aggregating, as stated in said advertisement, 29,924 acres, more or less. There is no rc cord of a report of sale by the commissioner, but it appears that an order vas entered on the 30th day of April, 1872, approving Ote sale of said lands to George N\ Raymond, assignee of James Aiken, for the sum of $14,-995.95, — an amount not sufficient to cover the judgment, with accumulated interest and costs; whereupon tito commissioner execrated a deed of conveyance of the lands, among which were those in question in this suit, to said George N. Raymond, and they passed by record of conveyance, which has been unquestioned in this case, to Imoy E. Gastrell, the appellee. The commissioner’s deed was filed for record and duly recorded in the clerk’s office of Adams county, in which the lands were situated, June 3, 1872. It is not denied that tiie lands thus sold were swamp and overflowed lands, and situated in Ilomocliitto swamp.</p> <p>The appellant claims under patents issued by the state of Mississippi to several parties under file act of the legislature of Mississippi passed on the 1st day of February, 3877, by which it was provided that a commissioner of swamp lands in tlie state should be appointed and authorized to sell all swamp lands remaining unsold at the price of 25 cents per acre. The bill herein was filed under file provisions of section 1833, Code 1880, of the state of Mississippi, by Lucy E. Gastrell, the appellee herein, for the removal of the cloud upon the title to this land, claiming that she had both legal and equitable title therein, and that the title held by Marx Wineman, the assignee of several parties who had purchased under the act of 1877, was a cloud thereon, and praying to have such cloud canceled and removed. In the court below the matter was heart!, and the title of the complainant was held to be good, and a decree entered declaring the defendant’s title in these lands void, and that the same l)e canceled aud set aside. From this decree an appeal has been taken to this court, alleging as ground for error that the court erred in overruling the demurrer to the bill; that the court erred in admitting in evidence the record of the proceedings in the cause against the land commissioners in the superior court of chancery in Adams county, the same being incompetent, said court lmvmg no jurisdiction, and the sale thereunder conferred no title; that .it was error for the court to admit the certificate and list of land of Brouglier, secretary of state, and it was error to admit the pencil marks aud memoranda on the margin of the swamp-land commissioner’s book in evidence in the case; that it was error to render a decree in favor of the complainant; that the court should have made a decree dismissing the bill.</p>

In Equity. Suit by Aaron P. Whitehead against Nathaniel G. Jessup to compel tlie removal of a bridge over certain waters alleged to be navigable waters of the United States.

. In Equity. Bill by William H. Caulk against Ella A. Pace and others to recover an interest in lands. In the circuit court the bill was dismissed. Complainant appeals.

In Equity. Suit by the Citizens’ Street Railroad Company against the city of Memphis and W. L. Clapp, president of said city, to restrain defendants from interfering with plaintiff; in constructing tracks for its electric railway on West Court street, in said city. On motion for preliminary injunction.

In Equity. Bill by tbe state of Tennessee and others against the Bank of Commerce and others, filed in the chancery court of the state, to collect taxes assessed on the capital stock of the bank. The cause was removed to the United States circuit court as involving a federal question. Heard on bill and demurrer.

<p>In Error to the Circuit Court of the United States for the Western District of Texas.</p> <p>At Law. Action of trespass to try title, brought by J. P. Hamilton and others against J. G-. Brown and numerous other parties, to recover a league of land in Payette county, Tex. To a plea of estoppel filed by defendants, a general demurrer and two special exceptions were overruled by the circuit court; and, plaintiffs having elected to stand on their demurrer and exceptions, judgment was thereupon entered for defendants. Plaintiffs bring error.</p> <p>Statement by PAJRDEE, Circuit Judge:</p> <p>This action was instituted in the United States circuit court for the western district of Texas, Austin divison, by the plaintiffs in error, to recover a league of hind situated in Fayette county, Tex., originally granted to Walter Hamilton by the republic of Mexico on April 30, 1831. The action was brought in the ordinary form of trespass to try title, as prescribed by the laws of Texas. The defendants answered by a general demurrer, plea of not guilty, and special pleas! It will be unnecessary, however, to set out at length these various pleas, inasmuch as on the final disposition of the case the issues raised by them were not passed on by the court.</p> <p>The only matters for the decision of this court are embraced in a supplemental answer, in the nature of plea of estoppel, relied on by the defendants.' In substance, in this plea, defendants allege that Edward Colier, the district attorney, acting under authority of tire state of Texas, begun, in the name of the state, in the district court of Fayette county, a suit, whose object and purpose was to have said- court adjudge that the Hamilton league had es-cheated to the state of Texas, and to have the title to said league divested out of Walter Hamilton and his heirs, and have it vested in the state of Texas. The petition in that case alleged that Walter Hamilton, late a resident of Fayette county, died on-— day of-, A. D. -, intestate, and without heirs, and that no letters of administration had ever been granted upon said Hamilton’s estate in Fayette county, in which county the succession, according to law, should have been opened, and that decedent died the owner of the league of land involved in this suit. That there are no tenants upon said tract of land, and no person in actual or constructive possession of any portion of the land, nor is there any person claiming the estate in and to the same,, or paying taxes thereon, and that the estate in said land has es-cheated to the state of Texas; and there is a prayer for writ of possession. That .afterwards, on May 18, 1861, the district court of Fayette county entered up an order of publication in said suit, commanding the publication for four successive weehs, in a newspaper printed in the state of Texas, setting forth the substance of the allegations of Said petition, requiring all persons interested in the estate of Walter Hamilton to appear and show cause why the said league of land should not be vested in the state of Texas, and that pursuant to said order a notice was regularly issued and published for the required time in a newspaper called the “Ua Grange New Era.” That sundry persons intervened in said suit, and set up claims to parts of said league. That said suit was continued from term to term until July term, 1871, when there was a trial had, and judgment entered to the effect “that the Hamilton league is escheated to the state of Texas; that the title thereto is divested out of Walter Hamilton and his heirs, and forever vested in the state of ■ Texas.” That said judgment has never been reversed or vacated, but re•mains in full force, and that, because of said judgment, Walter Hamilton, and all persons claiming through or under him, are estopped from and barred ’ of the right to have or maintain this action for the recovery of said land. . .</p> <p>In this plea defendants further alleged that on August ”, 1872, pursuant •to said judgment, an order of sale issued to the sheriff of Fayette county, commanding him to seize and sell said land for cash, as under execution, without appraisement, as the law directs, in lots of not less than ten nor more than forty acres, and turn over the proceeds of the sale, after deducüng costs, to the comptroller of public accounts for the state of Texas. That said land was sold by said sheriff, and that these defendants, and those under whom they claim, became the purchasers of parts of said league claimed by them, paid for same, and received from the sheriff deeds conveying same, and that for this reason, also, plaintiffs are estopped from claiming said land, or any part thereof. To this plea is attached, as an exhibit, the judgment.</p> <p>To this plea of estoppel the plaintiffs in error urged a general demurrer, and by two special exceptions claimed that the matters therein contained in nowise affected their title, because:</p> <p>(1) The escheat proceedings and final judgment obtained therein were begun and prosecuted under an act of the legislature of the state of Texas, entitled “An act to provide for vesting In the state escheated property,” passed March 20, 1818, — there being at the date of the filing of said escheat proceedings no other law or statute authorizing escheats, — and that this act was repealed and annulled by the constitution of Texas of 1869, prior to the date when the escheat judgment pleaded and relied upon by defendants to defeat plaintiffs’ title was obtained, in tliis: the law of March, 18-18, § 11, provides that the sheriff of the proper county shall seize the real estate escheated to the state, and sell the same in the maimer therein provided, while the constitution of 1869, art. 4, § 20, prescribes a different mode, viz. that the comptroller of the state “shall take charge of all escheated property, keep an accurate account of all moneys paid into the treasury, and of all lands escheated to the state,” which provisions are contradictory and conflicting.</p> <p>(2) That if the escheat act of 1848 was not repealed and annulled, entirely, then said section 11 thereof, (Pasch. Dig. art. 3667,) which reads as follows: “A writ shall be issued to the sheriff of the proper county, commanding him to seize such estate vested in the state; and, if the samo he personal property or real estate, he shall dispose thereof at public auction, in a manner provided by law for the salo of property under execution,” — was by the constitution of 1869, art. 4, § 20, which provides that the comptroller of the state “shall take charge of all escheated property, keep an accurate account of all moneys paid into the treasury, and of all lands escheated to the state,” repealed and annulled; and there being no other provisions in said act by which compensation is made to the heirs of the intestate, whoso property has been sought to be escheated, the balance of said act is not self-acting, and is one of confiscar tion, being in violation of the fifth amendment of the constitution of the United States, and of section 14 of the hill of rights of the Texas constitution of 1809, in force at the time the judgment was rendered.</p> <p>March 30, 1891, the court below overruled these exceptions, and to this action of the court plaintiffs reserved a bill.</p> <p>On July 6, 1891, plaintiffs in error, by a pleading termed in the Texas practice a “first amended second supplemental petition,” renewed their former objections to the plea of estoppel, and, In addition, urged that if the act of March 20, 1818, (Escheat Act,) was not wholly repealed by the constitution of 1869, that said act, and especially section 31 thereof, was repealed by said constitution of 1869, which alone provides for compensation to the heirs owning the escheated property, and is in violation of section 10, art. 1, of the constitution of the United States, which, among other things, provides that no state shall impair the obligation of contracts, and that said law impairs the obligation of the contract between the state of Texas and Walter Hamilton and his heirs, by virtue of the grant nnder which they hold the land, and seeks to forfeit and confiscate the property of said Hamilton by appropriating it to tlie common fund without making due compensation therefor. These grounds for demurrers and special exception were by the court below overruled, and bill of exceptions again reserved.</p> <p>When the case was regularly called, the plaintiffs in error, through counsel, declined to introduce any evidence, declaring that they desired to stand on their demurrer and exceptions to defendants’ answer, as amended, whereupon judgment was rendered on July 18, 1891, in favor of defendants in error, and to which judgment plaintiffs in error duly excepted. Afterwards, on February 12, 1892, this judgment was made final. This judgment plaintiffs in error, by proper proceedings, seek now to have reviewed by this court.</p> <p>Assignments of Error.</p> <p>“First. That said circuit court erred in overruling plaintiffs’ first amended second supplemental petition, filed July 6, 1891, which supplemental petition presented a general demurrer and special exceptions to the sufficiency of the defendants’ supplemental answer, filed March 30, 1891, as fully appears by plaintiffs’ bill of exceptions, approved and filed July 18, 1891, and a part of the record of this cause:</p> <p>“Second. The circuit court erred in holding that the escheat proceeding set out in defendants’ first supplemental answer, wherein it was averred that the title to the land in controversy in this suit has been divested out of Walter Hamilton, under whom plaintiffs claim as heirs, barred these plaintiffs of any further Interest in said lands, and especially that said escheat proceedings were sufficient to show an outstanding title against plaintiffs, so as to prevent their recovering in this action.</p> <p>“Third. The circuit court erred in not holding that the escheat proceedings and final judgment obtained therein, as set out in the defendants’ first supplemental answer, were without the warrant and authority of any law in force in the state of Texas at the time said proceedings and judgment were had, the fact being that there was no law in Texas in force at the time by which real property could be escheated.</p> <p>“Fourth. The circuit court erred in not holding that the act of March 20, 1848, of the legislature of the state of Texas, under which the escheat proceedings and judgment relied upon by defendants to bar plaintiffs’ action were begun and prosecuted, had not been repealed and annulled by the con.stitution of - the state of Texas, which went into effect in July, 1809, and 'especially in not holding that said act of March 20, ISIS, was a nullity, in this: that said law' of 1848, § 11, provides that the sheriff of the proper county shall seize and sell the real estate escheated to the state, and sell the same in the manner therein provided; while the constitution of 1869, art. 4, § 20, provides that the comptroller of the state ‘shall take charge of all escheated property, keep an accurate account of all moneys paid into the treasury, and of ail the land escheated to the state,’ — which provisions are contradictory and conflicting.</p> <p>“Fifth. Said circuit court erred in not holding that section 11 of said act of March 20, 3848, (Pasch. Dig. art. 3667,) which reads as follows: ‘A writ shall be issued to the sheriff of the proper county commanding him to seize such estate vested in the state; and, if the same be personal property or real estate, he shall dispose thereof at public auction, in the manner provided by law for th.: sale of property under execution,’ — was by said constitution of 1869, art. 4, § 20, (which provides that the comptroller of the state ‘shall take charge of all escheated property, keep an accurate account of all moneys paid into the treasury and all lands escheated to the state,’) repealed and annulled; and, there being no other provision in said act by which compensation is made to the heirs of an intestate whose property has been escheated, the balance of said act is not self-acting, and is one of confiscation, and therefore in violation of the fifth amendment of the constitution of the United States, and section 14 of the bill of rights of the constitution of 1869 of the state of Texas.</p> <p>“Sixth. Said circuit court erred in not holding that the act of March 20, 1848, under which said escheat preceedings and judgment relied on in said supplemental answer of defendants were not in contravention and violation of section 10, article 1, of the constitution of the United States,- which provides that ‘no state shall pass any law * * * impairing the obligations of contracts,’ in this: that said law impairs the obligation of the contract between the state of Texas and Walter Hamilton and his heirs, by virtue of the grant under which they hold said land, and seeks to forfeit or confiscate the private property of said Hamilton and his heirs, by appropriating it to the common fund, without making due compensation therefor. * * *”</p>

' At Law. Action brought in tbe superior court of Suffolk county, Mass., by Sidney Smith against Henry De Forrest Weeks, as executor of tbe will of Joseph C. Delano, to recover tbe value of certain shares of stock in tbe Boston Soapstone Furnace Company. Tbe declaration also contained counts for salary alleged to be due plaintiff, and for a certain sum as profits in tbe business.

At Law. Action in the nature of ejectment by Mary E. McElrath, Linda E. Timmons, and Margaret C. McElrath against the Elyton Land Company. Verdict and judgment for plaintiffs, and defendant brings error. Statement by LOCKE, District Judge.

<p>1. Office and Officers — Resignation-—Appointment of Successor.</p> <p>The constitution of Missouri (article 14, § 5) provides that, “in the absence of any contrary provision, all officers hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be elected or appointed and qualified.” Rev. St. Mo. 1889, § 1584, provides that the mayor, marshal, collector, and board of aldermen of any city shall hold their offices for two years, and until their successors are elected and qualified. Held, that the saving of right of resignation in the constitution does not enable an officer to resign so as to create a vacancy before the election of his successor, and, notwithstanding such resignation, he holds office until that time.</p> <p>2. Same — Mandamus—Contempt.</p> <p>The mayor and aldermen of the city of Lathrop, Mo., having been served with a wilt of mandamus to enforce the collection of a judgment against the city, made no response thereto, and the aldermen immediately offered their resignations, which were accepted by the mayor, and adjourned sine die, and no others were elected to take their places. Held that, as they are still the governing body of the- city, they were guilty of contempt in refusing to comply with the writ of mandamus.</p> <p>3. Same.</p> <p>The mayor did not resign, but held office until his successor was elected and qualified, and thereafter removed from the city. Held that, as he alone was without power to comply with the mandamus, he was not guilty of contempt.</p>

<p>L Evidence — Records of Deeds — Loss oe Original.</p> <p>In an action of trespass to try title to certain lands in Trinity county, Tex., defendants, in order to prove a deed in their chain of title, offered in evidence a certified copy from the records of Cherokee county, dated August 5, 1835, and purporting to have been duly recorded In Trinity county July 2, 1856, and in Cherokee county July 15, 1856. It appeared that the records of Trinity county were destroyed by fire In 1872, and defendants proved that the original deed had been searched for in vain by them in all places where there was any reason to believe that it could be found, and that there bad been notorious assertion of title and possession under the deed, accompanied with payment of taxes. Held that, under these circumstances, the court properly permitted the certified copy to go to the jury, as a circumstance in the case, notwithstanding that plaintiffs had attacked the original as a forgery.</p> <p>2. Same.</p> <p>The certified copy was not rendered inadmissible by the fact that the name of the grantor was spelled “Joseph Hirtz,” instead of "Joseph Hertz," as this fact would only affect the deed’s weight as a circumstance in the case.</p> <p>S. Appeal — Objections Waived.</p> <p>Objections to the charge of the court to the jury, and Its refusals to charge, cannot be considered on appeal, when no seasonable objection was made thereto while the jury were at the bar.</p> <p>4. Same — Review—Rulings on Motion ron New Trial.</p> <p>Exceptions to the action of a federal court in overruling a motion for a new trial are not reviewable upon writ of error. Railway Co. v. Heck, 102 U. S. 120, followed.</p>

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

<p>Chinese — Exclusion Acts — Jukisdiction.</p> <p>A United States commissioner, while he has authority, in a summary proceeding under the Chinese exclusion acts, to order the deportation of a Chinaman found to be unlawfully within the United States, has no jurisdiction to order him to be imprisoned at hard labor for 30 days prior to the time fixed for his deportation. U. S. v. Wong Sing, 51 Eed. Itep. 79, applied.</p>

<p>At Law. Application of B. B. Ware for writ of habeas corpus.</p>

At Law. Indictment against Nathan Marcus for uttering a counterfeit note. On motion in arrest of judgment aud for a new trial.

At Law. Appeal by importers from decision of United States general appraisers. The Standard Varnish Works imported hy the steamer California on Ma,y 38, 1891, certain merchandise known as “candle tar” or “palm pitch,” whicli was classified and assessed for duty by the collector of customs at New York as a nonenumerated manufactured article, at 20 per cent, ad valorem, under section 4 of tlie act o£ October 1, 3890.

<p>At Law. Appeal from decision of the United States general appraisers.</p> <p>The imported merchandise in this suit consisted of jute goods woven, from 38 to 24 inches in width, commonly known in the trade as “paddings” or “canvas,” which were classified hy tlie collector as “manufactures of jute,” dutiable at 40 per cent, ad valorem, under paragraph 374 of the tariff act of October 1, 389Ó. The importers duly protested, claiming said merchandise, to be properly dutiable as “burlaps,” of jute, not exceeding 60 inches in width, at 1% cents per pound, under paragraph 364 of said act. The board of United States general appraisers sustained the protest of the importers, that the goods in controversy were burlaps, and reversed the decision of the collector. The collector appealed from them decision to the United States circuit court, under the provisions of the act of June 10, 1890.</p> <p>It was contended, on behalf of the collector, that the merchandise in suit was of that character and make which had always been known, prior to the passage of the act of October 1, 1890, in trade and commerce, as paddings or canvas, and was chiefly used in the clothing trade; that congress in the tariff act of March 3, 1883, had differentiated canvas and paddings from burlaps and placed a different rate of duty thereon, (quoting paragraphs 334 and 338 of the tariff act of March 3,1883;) that prior tariff acts had also made the same distinction between the two articles; that the decisions of the treasury department had for many years made his distinction; that under the act of 18S3 several cases had beer, tried in the United States circuit court wherein juries had found that paddings and canvas, under the act of 1883, were a different article from the burlaps of commerce; that congress, in the act of 1890, must be presumed to have legislated in view of the prior decisions of the department and the courts, and of the distinction always made in prior legislation; that as congress had seen fit in the act of October 1, 1890, to omit the paddings and canvas paragraph of the act of 1883, and had not provided specifically for a duty thereon, they intended such articles to fall under paragraph 374, and to be included within the terms “all manufactures of jute,” and under the principles of construction laid down by the supreme court in the case of Kobertson v. Uosanthal, 132 U. S.'460, 10 Sup. Ot. Hep. 120, paddings and canvas, such as those in suit, were not relegated to the burlap clause (paragraph 364) of the act of October 1, 1890.</p> <p>It was contended, on behalf of the importers, that “burlaps” was a general name for a class of goodi? that were used by various trades, such as the upholstery bagging, oil cloth, clothing trades, etc., and that the different trades used different widths and makes of the same articles of “burlaps; ” that in the clothing trade the narrow burlap was known as canvas or padding, and as congress had seen fit to omit any special mention of canvas or paddings, by name, in the act of October, 1890, the most specific description thereof to be found in that act was the term “burlaps” in paragraph 364, which more specifically described and designated the articles in suit than the more general term “manufactures of jute.”</p>

At Law. Action to recover duties paid. Verdict directed for plaintiff. Plaintiff imported at the port of New York, in 1886 and 1887, certain bales of jute secured by tie bands or ropes, also of jute, but so tangled, knotted, and broken as to be worthless except for paper stock.

<p>Patents for Inventions — Validity—Prior Use.</p> <p>Letters patent No. 291,606, issued January 8, 1884, to John L. L. Knox, for “an improvement in methods of and tools for blasting rocks,” was not invalidated by any prior use of the invention therein described.</p>

<p>1. Patents pots Inventions — Comity between Circuits.</p> <p>A circuit court should follow the decision of another circuit court upholding a patent, except when new evidence of invalidity is introduced, and in the latter event should coniine its investigation to tiie additional evidence. National Cash Register Co. v. American Cash Register Co., 53 Fed. Rep. 367, followed,</p> <p>2. Same — Circuit Court op Aiteaus.</p> <p>The rule of comity between circuit courts in respect to decisions in patent eases does not apply to the circuit court of appeals, and the latter court will examine independently all the questions presented by the record. ></p> <p>8. Sam®.</p> <p>The first claim of letters patent No. 271,398, issued to John G. Baker. January 30, 1883, for improvements in mocha,nism for cutting up plastic or yielding substances, consisting of a machine in which the sole reliance for cutting is upon a knife or other cutting device, operating- in conjunction with a perforated plate at the points of discharge from {lie casing, and. in which there is no intentional disturbance of the substance to be cut other than to force it forward before it reaches the plate, is not invalid because of anticipation. 46 Fed. Rep. 854, affirmed. Enterprise Manuf’g Oo. v. Sargent, 28 Fed. Rep. 185, and 84 Fed. Rep. 134, approved.</p> <p>4 Same — Infringement.</p> <p>This claim is infringed by a machine which contains all of the elements enumerated therein, although there is some unintentional disturbance caused by the forcing apparatus in the substance to be cut before it reaches the plate. 46 Fed. Rop. 854, affirmed.</p>

In Equity. Bill by the Accumulator Company against the Consolidated Electric Storage Company for infringement of reissued letters patent 'No. 11,047, granted December 17, 1889, to Joseph Wilson Swan, assignor to the Electrical Accumulator Company, for an improvement in storage batteries.

In Equity. Bill by the Accumulator Company against the Consolidated Electric Storage Company and others for infringement of a patent. Heard on motion for preliminary injunction.

<p>In Equity. Suit by Loyal Y. Cochran and William I. Lindsay against Frederick Zimmerman for infringement of a patent.</p>

In Equity. Bill by the Brush Electric Company and others against-the Accumulator Company for infringement of a patent. An injunction pendente lite was heretofore granted on the authority of the decision of Judge Coxe in the circuit court for the southern district of Kew York, in Brush Electric Co. v. Electrical Accumulator Co., 47 Fed. Eep. 48. The cause is now heard on motion to attach defendant as for a contempt in violating the injunction.

<p>Patents for Inventions — Validity—Novelty.</p> <p>Letters patent No. 300,744, issued June 17, 1884, to Elbert A. Whittelsey, for an improvement in a locking device for shawl straps, having endless bands wound upon a handle, disclosed patentable invention.</p>

In Equity. Bill by tbe Hew York Belting & Packing Company against tbe Hew Jersey Car Spring & Rubber Company for infringemeirt of design patent No. 11,208, issued March 27, 1879, to George Woifenden, assignor to complainant. The circuit court on a demurrer to the bill held that the patent was invalid, (30 Fed. Rep. 785,) and from a judgment entered in pursuance thereof an appeal was taken to the supreme court of the United States.

<p>In Equity. Bill by the Hoke Engraving Plate Company against Carl Schraiibstadter, Jr., for the infringement of letters patent of the United States, No. 388,361, granted to said company for an improvement in relief type production. On exceptions to master’s report.</p> <p>For a report of the opinion delivered at the time the interlocutory decree for the complainant was entered, see 47 Fed. Rep. 506.</p>

Iu Equity. Bill by the United States Credit System Company, against the American Credit Indemnity Company for the infringement of letters patent Ho. 465,485, dated December 22, 1891, and granted to Levy Maybaum for means for securing against excessive losses for bad debts. Heard on demurrer to the bill.

<p>1. Patents eor Inventions — Combination—Prior Art.</p> <p>Where a patent has been obtained for a combination after the patentee has availed himself of all the knowledge derivable from a series of existing devices of a similar character, the claims must be restricted to the precise form and arrangement of parts described in the specifications. Such a pate at is an entirety, and all tlie parts of tlie combination must be used, in order to constitute an infringement.</p> <p>2. Same — Limitation of Olaim — Rejection and Amendment.</p> <p>Where the claims of an application for a patent are rejected, and thereupon the patentee amends the same by inserting limitations and restrictions, the patent granted thereunder must receive a strict and narrow construction. 51 Fed. Rep. 81, affirmed. Sargent v. Safe & Lock Co., 5 Sup. Ot. Rep. 1021,114 U. S. 63, and Roemer v. Peddie, 10 Sup. Ct. Rep. 98, 132 XJ. S. 313, followed.</p> <p>3. Same — Prior Art — Bath Overflows.</p> <p>Letters patent No. 170,709, issued December 7, 1875, ‘to William S. Carr, for an improvement in waste valves and overflows for baths and basins, claim: “The tube, a, provided with the collar, i, and lock nut, 1, for clamping the slab, m, in combination with the tubular stem, f, of the valve, e, passing through the lock nut, 1, and means for sustaining the tube, f, when elevated, substantially as set forth.” Held, that in view of the prior state of the art, as shown especially by the patent of July 21, 1874. to J. T. Foloy, and also of the fact that xho above claim was filed as an amendment'after the rejection of the original claims, the patent must be limited to the specific mechanism described, and is not infringed by a device which omits some of the elements of the patent without supplying their places with equivalents. 51 Fed. Rep. 81, affirmed.</p> <p>4. Same — Combination—Unpatentable Aggregation.</p> <p>Claim 2 of letters patent No. 353,147, issued February 22, 1887, to John Demarest, for an improvement in waste valves and overflows for baths and basins, is for a mere aggregation of parts, without co-operating action, and not for a patentable combination.</p> <p>51 Fed. Rep. 81, affirmed.</p>

In Admiralty. Libel by Sylvester Greenwood and others against the town of Westport to recover for damages to the steam barge Hebe, alleged to have been caused by the negligence of the said town in the management of a certain drawbridge. Heard on exceptions to the jurisdiction.

<p>1. Admiralty — Practice—Motion to Dismiss.</p> <p>On reference of an admiralty canse to a commissioner to talco and report tbe evidence, the libelant rested after examining three witnesses, and without giving notice of intention to offer further proof at a later stage. The claimant thereupon filed a motion to dismiss for want of evidence sufficient to sustain the libel, but, without waiting to submit the motion to the court, he proceeded before the commissioner to take evidence on his side, after notice that the motion was not waived, field, that the claimant was entitled to have the case decided on tho evidence of the first three witnesses, unaided by evidence adduced by libelant on cross-examination of claimant’s witnesses or in rebuttal; no sufficient reason appearing for receiving such evidence out of time.</p> <p>2. Shipping — Carriage of Goods — Liability for Damage —Pleading and Proof.</p> <p>A libel charged that damage to a consignment of iron pipe, shipped under a bill of lading exempting the ship from liability “for leakage, breakage, or rust, except from improper stowage,” was caused by bad stowage and negligence of the master and crew, it was proved by libelant ’ that the goods were received in a damaged condition, and by claimant that the vessel was seaworthy at the time of sailing, that she made the passage in the usual time without developing any defect, that her pumps worked properly, and that the cargo was well stowed and properly dunnaged. Testimony that the pipe was rusted by sea water was given for libelant in rebuttal, by experts who knew nothing of the construction of the vessel, how the cargo was stowed, or how or when salt water could have come in contact with the pipe. Held, that the burden of proof rested upon libelant, and that the evidence was insufficient to sustain his libel.</p>

<p>1. Charter Party — Construction—Printed Forms.</p> <p>Matter expunged from a printed form used in drawing up a charter party may he considered in determining the intention of the parties. 50 Fed. Bep. 116, affirmed.</p> <p>2. Same — Freight.</p> <p>In making a contract for the transportation of a full cargo of sugar, the parties used a printed form containing this provision: “The freight to bo paid on the unloading and right delivery of a cargo of sugar at and after the rate of nine shillings sterling per ton of twenty hundredweight delivered.” The printed word “delivered” was struck oat, and the words “on intake weight” were interlined in writing. Held, that the charterer was bound to pay freight on the whole cargo taken aboard, although part of it was damaged without the ship’s fault by an excepted peril, and sold on the voyage. Dallas, ,T., dissenting. 50 Fed. Hep. 116, affirmed.</p>

<p>In Admiralty. Libel in rem by David Trundy and others against the lighter Tawtemio to enforce a lien for repairs under the New York statute giving liens on domestic vessels. Laws N. Y. 1862, c. 482, and the various amendments thereof.</p>

<p>Carriers by Water — Bill oe Lading to Charterer — Recitals as to Cargo Received not Conclusive — Mistake in Tally.</p> <p>A ship does not guaranty that the amount of cargo recited in her bills of lading as received on hoard, and based on her tally, has been actually so shipped and received; nor can the vendor and vendee of such goods, by any private arrangement, make the ship an insurer of the correctness of her tally, as against fraud or mistake, for their benefit, and as a fulfillment of the vendor’s contract, when not fulfilled m fact; and where there is proof of fraud or mistake the ship and owners cannot be held accountable to the consignee beyond the number actually received on board.</p>

<p>1. CORPORATIONS — ACTIONS—PROOF OF COHI'OHATM EXISTENCE.</p> <p>A libel in admiralty by a corporation will be dismissed where the legal existence of libelant is put In issue, and there is no proof of its organization.</p> <p>2. Shipping — Carriage of Goods — Liability for Damage —Pleading and Proof.</p> <p>Where goods were shipped under a hill of lading exempting the ship from liability “for leakage, breakage, or rust, except from improper stowage,” tlie proof that the goods were delivered, damaged by breakage, rust, chafing, sweating, and dampness is insufficient to sustain a libel charging damage to the goods by unsea'worthiness of the ship, bad stowage, want of proper dunnage, negligence, and improper conduct of the master and crew.</p>

In Admiralty. Libel by B. W. Johnson and others against a portion of the cargo of the steamer Eldorado (Henry J. Byrne, claimant) to recover for salvage services. The district court held that the service rendered was a salvage service, and awarded 25 per cent, of the value of the cargo saved as compensation. See 50 Fed. Sep. 951. The claimant appealed.

<p>Tn Admiralty. Libel by Peter Kelson against the steamship Manbanset to recover damages for personal injuries.</p>

<p>In Admiralty. Libel by William McDowell against tbe steamship France to recover damages for personal injuries caused by the falling of an ash bag down the hatch while he was engaged in shoveling cinders into another bag at the bottom of the hatch.</p>

In Admiralty. In tlie matter of the application of Michael Moran, part owner of the steam tug M. Moran, for limitation of liability.

'Appeal from the District Court of the United States for the Souths em District of Alabama. In Admiralty. Libel by J. E. Loxley & Son against the Russian bark Carl Gustaf and Gustaf Lindquist, her master, to recmee damages for a collision with a raft belonging to libelants, whereby some of the logs were lost. The district court entered a decree for the libelee, and libelants appeal.

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

In Equity. Bill by the Fidelity Trust & Safety Vault Company against the Mobile Street-Railway Company to foreclose a mortgage. A petition in the nature of a cross bill was filed by F. J. Gasquet and others, ton (.'holders under the mortgage, to recover damages against ihe tin si. company for improper execution of the trust.

Petition of intervention by B. P. Adams in the suit of the Pine Lake Iron Company against the La Payette Oar Works for the purpose of establishing a claim against the receiver.

<p>Appeal from the Circuit Court of the United States for the Northern District, of Illinois.</p> <p>Bill of review brought, by Robert C. Taylor, Katherine Taylor, and Margaret Taylor against, the Franklin Havings Bank, Hiram 11. Thomas, Henry Gilsdorff, James B. Sullivan, Frederick Baumann, Edward Baumann, Ojiarles II. Muiliken, Frank C. Taylor, Maria L. Taylor, Frank G. Taylor, Jr., Maria L. Taylor, Jr., Josepldne H. Taylor, Alexander Taylor, and Ira Scott, and cross bill by four of the respondents. Complainants and cross complainants obtained a decree. 50 Fed. Rep. 289. Defendants appeal.</p> <p>Statement by WOODS, Circuit Judge:</p> <p>The principal facts have been well stated by Judge Blodgett in his opinion— 50 Fed. Rep. 28» — as follows:</p> <p>“This is a bill to review, reverse, and sot aside a decree of foreclosure, entered in this court on the 30th of April, 1880, under which defendant claims title to lots 1, 4, and 5 of the subdivision of lot'4, in block 10, in Bushnell's addition to the city of Chicago; and also to set aside a sale made July 13, 1881, under a decree for a mechanic's lien, in favor of Gilsdorff and others, entered in the circuit court of Cook county, July 20, 1874. * * * The facts, as they appear from the proof, and which are not disputed, are that on the I3th of June, 3871, Maria. Louise Taylor, being seised in fee of all of lot 4, in block 16, in Bushnell’s addition to Chicago, joined with her husband, Frank O. Taylor, in the execution of a deed of the premises to Ira Scott, to hold upon certain trusts, in the deed set forth, which trusts, so far as it is necessary to si ate them for the purposes of this case, were that the property was to be held for the benefit of Mrs. Taylor and the children of the marriage between Frank C. Taylor, her husband, and herself, except that in the event of the death of Mrs. Taylor and of the children, before ihe youngest child had reached the age of twenty-one years,'Mr. Taylor, or his heirs, should become entitled to the remainder of the estate. The deed of trust contained an express provision ‘ that no lien, incumbrance, or charge shall be created on said premises;’ and although there was a provision in the trust deed that the trustee might sell some portion of the premises for the purpose of improving that which was unsold, yet the provision was so guarded as to prohibit the creaiion of any lien, incumbrance, or charge upon the unsold portion of said premises. At the time the deed was made, there was a house upon the premises, which was occupied by Mr. and Mrs. Taylor as their home, this house covering only a comparatively small part of the lot. When this trust was created, three children had been bom to Mr. and Mrs. Taylor, and four have since been born, and this bill was filed by the three youngest of the seven children; the three oldest having arrived at lawful age since this bill was filed, and the other four are still minors.</p> <p>“By the great fire of October 8 and 9, 1871, the house upon the trust premises was destroyed, and the public records of deeds of land titles in the city were also destroyed, and the trust deed itself was for several years sxipposed to have been destroyed by the same fire, although it had been duly recorded within a fexv days after its date. In January, 1872, Mr. Taylor borrowed the sum of $30,000 from the Franklin Savings Bank, the principal defendant in this case, for which he gave his own note, payable one yeai1 after date; and, to secure the payment .of that note, he and his wife executed to Edward Brown a trust deed upon the whole of said lot 4, in block 10. The money so borrowed by Taylor was xxsed in building upon the trust premises a block of five dwelling houses, which cost about $53,700. In January, 1873, Taylor and his wife filed a petition in the superior court of Cook comity, under the provisions of what 'is known as the ' Burnt Records Act ’ of this state, alleging the making and recording of the deed of trust, the destruction of the records, and the loss of the deed itself, and praying an establishment and confirmation of the trust deed and its terms, as set out in said petition; and such proceedings were had xmder this petition that on the 19th of March, 1873, a decree was entered establishing and confirming what was fouud, from the proof, to be a sxxbstantial copy of the trust deed, but in fact omitting the clause which provided that no lien, ineunibrance, or charge should be created on the premises, and containing, in place of that clause, a clause that authorized the trastee to make lien., for the purpose of rebuilding, etc. After the entry of this dev cree, Scott, the trustee, and Taylor.and wife made a subdivision and plat of said lot 4, dividing the same into five sublots, numbered from 1 to 5, inclusive. On the 22d day of July, 1873, Mr. Scott declined to act longer as trastee, and Taylor and wife filed a bill in the superior court of Oook county for the appointment of another trustee, and that such new trastee be empowered to make a loan of money sufficient to reimburse them for the fair value and cost of the improvements made on said lots; and a decree was on the 19th of August, 1873, entered appointing Charles H. Mulliken, trastee, as successor to Mr. Scott, and authorizing him to make a loan to pay Mr. and Mrs. Taylor the cost of the improvements made on the lots, not to exceed $53,700. Mr. Mulliken accepted the trust, and on the 23d of August made four trust deeds, covering sublots 1, 2, 4, and 5 of said subdivision, to Francis S. Howe, trastee, to secxxre the payment of four notes of $9,000 each given by Mulliken and Mr. and Mrs. Taylor to the Franklin Savings Bank; and on the 1st of January, 1874, Mulliken, the trustee, and Mr. and Mrs. Taylor joined in the execution of another trust deed to Francis S. Howe, to secxxre the individual note of Taylor to the Franklin Savings Bank for $2,875. The proceeds of the foxxr first-mentioned trust deeds w ere used to take up the $30,000 loan made by Taylor from the baisk in June, 1872, and the last-mentioned trust deed for $2,875 was to secxxre a personal indebtedness of Taylor’s to the bank, not growing, as the proof shows, out of the rebuilding.</p> <p>“In September’, 1873, a petition for a. mechanic’s lien was filed by Henry Gilsdorff for labor and materials used in the construction of the block of new buildings, in which petition other contractors intervened. This case came to hearing in July, 1874, and resulted in a decree establishing liens on the premises in favor of Gilsdorff and those who had intervened with him, which decree was afterwards affirmed by the supreme court of this state at the September term, 1874. 74 111. 354. In June, 1876, tlxe Franklin Savings Bank filed in this court a bill to foreclose the four trust deeds of August 23, 1873, which, after default of some of the adxxlt defendants, and answers by the guardian ad litem of the infant defendants, was in May, 1877, refereed to a master to take preofs and report. In June, 1877, the original deed of trust to Scott was foxmd, and very soon thereafter bills of review were filed in tlxe case xmder the burnt records act, and in the suit 'brought for the appointment of a new trustee in the place of Scott, and in which the decree appointed Mulliken trastee, and authorized him to make the loan to pay for building the five houses, which bills of review resulted in decrees setting aside the former decrees in those cases; hut the decree in the ease under which Mxxlliken was appointed trustee contained a clause that nothing therein ordered or contained shoxxld deprive the Franklin Savings Bank, or Howe, the trustee in the said trust deeds, of any interest they, or either of them, might have in the trust estate, the claims of tlxe bank and said Howe not having been heard or adjudicated.</p> <p>“After tlie original trust deed was found, tlie bank filed a supplemental bill In tlie foreclosure case, which was answered. Before a report was made by the master, terms of settlement or compromise were made between the bank and the guardian ad litem of the infant defendants then in court, which included all the children then bora, and all the children of the parents, except Margaret, the youngest. By this compromise the children wore to have one of the sublots and the house thereon, free and clear of all incumbrance. On the 29th of April, 1880, a decree of foreclosure was entered in the foreclosure suits in pursuance of the terms of this agreement, which by its terms was a foreclosure of the four trust deeds on sublots 1, 2, 4, and 5, respectively, and of the trust deed securing the $2,873 (Taylor's individual debt) on the whole four lots, and a sale was directed to he made by one of the masters of the court of the sublots 1, 2, 4, and 5 to pay the amount found due by said decrees on the respective trust deeds; the lien of the several trust deeds on the premises, covered by them, respectively, being found by the decree to be subject to the prior mechanic’s lien established by the decree in the Gilsdorff Case.</p> <p>“A sale was made under this decree on the 16th of June, 1880, and each house and lot sold to the hank, and certificates of purchase given by the master to the bank as such purchaser; and afterwards, to consummate the settlement made with the guardian ad litem of the infant children, the certificate of purchase for lot 2 at, such master’s sale was assigned to the guardian ad litem, and by him assigned to the six children then horn, and a deed was in due time made to them by the master, and a deed was also made to the bank of lots 1, 4, and 5. After the affirmance by the supreme court of the decree in the mechanic’s lien case, the bank purchased the decree in that case, and was the owner of such decree at the lime of the entry of the decree in the foreclosure case, and at the time of the alleged compromise and settlement; and on the 15th of July, 1881, a sale was made under the mechanic's lien decrees, and the defendant H. II. Thomas, who was then tlie president of the bank, became the purchaser of the three sublots 1, 4, and 5; and -it is admitted that this purchase was made by Mr. Thomas for the bank, and that he now holds the title solely for the bank, and has no individual interest therein. It also appears that the three oldest children were made defendants to the bill for the restoration of tlie deed of trust under the burnt records act, and appeared and answered by guardian ad litem; that the four oldest children were made parties to, and appeared and answered by guardian, ad litem in, the hill for the appointment of a new trustee, and that under the mechanic’s lien suit the four oldest children were made parties defendant, and appeared and answered by guardian ad litrim. But the supreme court, in the suits brought by Julia S. Taylor against the bank to. set aside the decree in the mechanic’s lien suit, so far as it affected lot 3 in said subdivision, found that there was no servicie upon the infant defendants in the mechanic’s lien case. It also appears that the youngest child, Margaret, who is one of the original complainants in this case, was bom after the entry of the decree in the foreclosure case. It also appears that all the seven eiiildren, bom of the marriage of Mr. and Mrs. Taylor, who are parties to the original and cross bills in this case, wore minors at the time the original and cross hills were filed.”</p> <p>Tn the Gilsdorff Cace there is in the record no proof of service of process upon the infant defendants, except the recital in the final decree of a finding that “due service 'of process was had upon all the defendants except the Franklin Savings Bank.” On the 20th of July, 1880, following the master’s sale under Hie foreclosuic decree, Mulliken, as trustee, and Frank 0. and Maria Ij. Taylor, joined in tlxe execution of a quitclaim deed of lots 1, 2, 4, and 5 to Thomas, as president, for the use of the savings hank. No reference is made to that deed in either the hill or cross hill. The supplemental bill filed by the savings bank in the foreclosure ease gave a true and full account of antecedent facts affecting the rights of the parties, Including the discovery and contents of the deed of trust. The terms in which the trust was defined, in so far as they are relevant here, are as follows;</p> <p>“Firstly, for the use and benefit of the said Maria Louise Taylor, and the children of the said Frank O. and Maria Louise Taylor, to be used and occupied by them as a homestead or place of residence, subject, however, to the trusts and uses hereinafter contained; it being, however, expressly provided and. understood that the improvements now standing on said premises may ho added to, altered, or removed, and new buildings erected thereon: provided,, always, there shall be no hen, incumbrance, or charge created thereby on said premises: and it is further provided that the whole or a portion of said premises may be used for the purpose of deriving a revenue therefrom, as is hereinafter provided, and that a portion only of said premises may be used as such homestead as aforesaid. * * * Secondly, and upon this further trust, namely: The said Ira Scott, or his successors in trust, shall bargain, sell, and convey a portion of said premises for the purpose of procuring funds to build upon and improve the remainder thereof during the joint lives of the said Frank 0. and Maria Louise Taylor, upon their joint written request, and such request shall be signified by their joining with such trustee in the execution of the deed or deeds of conveyance: * * * Provided, always, that no charge or incumbrance on said premises, or any portion thereof, shall be thereby created by said Ira Scott or his successors in trust.” Thirdly, to the effect, that, after the payment of costs, taxes, and assessments, the income shall be paid to Mrs. Taylor, for her sole use and benefit, during the fife of her husband, and that after his death there should be paid to her out of the income the sum of $8,000 annually, and the remainder, if any, to the children.</p> <p>The burnt records act of this state contains those provisions:</p> <p>“Said decree of said court, when' entered on either of the petitions above mentioned, [i. e. a petition to establish title and petition to establish lien,] shall be forever binding and conclusive, unless an appeal be taken during the term of the court at which the decree shall be rendered, or a writ of error shall be sued out within twelve months from the entry of said decree, in which case the final decree entered in said cause shaE be binding and conclusive, as aforesaid, from the entry thereof, except against minors and insane persons. * * * And provided, further, that married women, insane persons, and minors shaE have two years after their disabEities are removed to prosecute a writ of error from said decree. * * * And provided; further, that in all decrees against infants, persons of unsound mind, or married women claiming property in their own right, other than right of dower, the decree shaE set forth the evidence upon which it is based.”</p> <p>The scope of the suit in which the decree of August 19, 1873, was rendered is sufficiently indicated by the court's finding, winch followed closely the averments of the biE, and which, with abbreviations not affecting the sense, was as foEows:</p> <p>“That in and by said deed the premises were conveyed to Ira Scott and his successors in trust, to be held and managed by him and tiiem in trust for the ' benefit of Frank O. Taylor, Maria Louise Taylor, their children, and the devisees and legatees of the said Frank C. Taylor; that by the terms and provisions of 1I10 trust conveyance, among other things, the said Scott and his successors in trust were authorized and empowered to build upon and improve the premises, or any part of the same, for the purpose of deriving a revenue therefrom, and to borrow money for tlie purpose of making the improvements, and to secure the payment of the same by executing on the premises, or any portion thereof, mortgages or trust deeds, and also to sell a portion of the premises for the purpose of raising funds to improve the trust estate; that from the date of the trust conveyance, during and until the great fire of October 8th and 9th, the said Maria L. Taylor occupied the premises as a homestead, under the trust conveyance, in accordance with the terms thereof; that during that time the entire improvements of the premises consisted of the residence and outbuildings attached thereto; that by the fire aE of the improvements on the premises were destroyed, and the said Frank 0. and Maria L. Taylor, with their children, were thereby left without a home, and were also in other ways losers to such an extent that they could not suitably provide for their necessary wants and those of their children, and pay the taxes and assessments laid and assessed on the premises, without in some way making the trust estate avaEable as a source of revenue; that the premises were situated in a portion of the city of Chicago that had been and continued to be valuable for residence purposes, and that good, careful, and judicious management of the trust estate, for the best interests of all concerned therein, require^ the erection thereon of a block of five first-class residences; that owing to the destruction of the trust conveyance and the public records, it was impossible for the trustee either to sell and convey the' premises, or any portion thereof, or to borrow money upon the same as security, until the terms of the trust should be declared by the decree of some court having competent jurisdiction in such matters, which at that time could not have been had without great delay, and that such delay would have operated greatly to the prejudice and damage of the trust estate; that to protect and preserve the estate, and acting- for the best interests of all concerned, the said Frank C., as agent of Maria L. Taylor, and at her request, borrowed a large sum of money, and with the same erected on the premises a block of five marble-front residences, one of which is now occupied by said Maria Ij. Taylor and her family as a homestead under the trust deed; that llie improvements on the premises were commenced in the month of August, 1872, and completed ih the spring of 1873, and were wise and judicious; that Maria L. Taylor, through her husband as her agent, had expended in said improvements and the erection and completion of said block of residences the sum of $53,700; that the money was judiciously and wisely expended, and that the fair value of the improvements is the sum of §53,700; that it is advisable and necessary, for the best interests of the trust estate, to sell and convey one or more of the houses so erected on the premises, and to borrow enough money otherwise upon the trust estate to pay for the improvements the said sum of $53,700. It was decreed that the said Charles H. Mulliken, who was therein appointed successor in trust, be ‘authorized and empowered, out of any fends arising from the sale of said premises or any part thereof, or from any loan made for that purpose, to pay and discharge to the said Frank O. Taylor and Maria L. Taylor all the costs of said improvements as aforesaid advanced and paid by them or either of diem, not to exceed in amount the sum of $53,700.’ ”</p> <p>Besides the mortgages to the Savings Bank, Frank O. and Maria L. Taylor, and Mulliken as trastee, on the 3Otis of November, 3873, joined in a conveyance of sublot 3 to Julia S. Taylor, wife of a, brother of Frank O. Taylor, for S15.000; and in the case of Bank v. Taylor, 331 111. 37(5, 23 N. K Rep. 397, the state supreme court upheld the sale, and declared that the purchaser was not bound to look after the application of the purchase money.</p> <p>This suit was commenced December 3, 3-884, in the superior court of Cook county. The bill then exhibited was confined to an attack upon the title of the .appellant the Franklin Savings Bank to lots 1, 4, and 5 of the property in controversy, as derived through the sale made under the mechanic’s lien decree in favor of Gilsdorff and others. The suit was removed upon the petition of the appellant to 1he circuit court of the United States for the northern district of Illinois, where no steps were taken in it until the 18th of March, 1887, when the scope of the action was enlarged, and the relation of the parties changed, by the filing of an amended bill in which Robert C., Katharine, and Margaret Taylor became complainants, and the other children, Frank C., Maria I... Josephine S., and Alexander, who had been plaintiffs in the original bill, were made defendants. They at once filed a cross bill, adopting ihc averments of the amended bill, and praying substantially the same relief. The amended bill reviewed the various steps taken in relation to the trust estate from the creation of the trust in June, 3872, to the filing of the original bill, December 1, 1SS4, and in substance asked, and by the decree it was granted— First, that the decree of foreclosure in the federal court, and the master’s sale and conveyances made under it, be declared void as to the interests of the complainants in the premises; second, that the two decrees of the superior court of Cook county, entered upon bills brought for the review of iis previous decrees, be declared absolute in respect to the claims of the savings bank; third, that the Gilsdorff decree in the circuit court of Cook county, bo declared fraudulent a.nd void, and likewise the deed of the master in chancery made in execution of that decree; fourth, that a new trustee be appointed as successor to Scott in the original deed of trust; fifth, that the Franklin Savings Bank be required to account for and pay over io the new trustee the proceeds of the rents and profits of the trust property while it was in the bank’s possession.</p> <p>In respect to the Gilsdorff decree the ground of review or attack is stated to be that it “was procured by misrepresentation and imposition upon said circuit court, in this: that the said court was misled and imposed upon by the production, as evidence, of said pretended deed of trust as confirmed by the superior court.” There is in the amended bill no charge of suppression or fraudulent concealment of the trust deed. The averments touching the point are: “That the original deed had been lost or mislaid and could not be found;” “that it was not true, as alleged in said bill, [on which the burnt records decree was obtained,] that said deed of trust had been destroyed by fire; but it was true, as your orators believe, that at the time said suit was pending in the superior court the said deed was lost or secreted, and could not be found;” “that some time after the entry of the said decrees in the superior court the said deed of trust * * * was found;” and that in the proceedings for the review of those decrees the court found “that it was newly-discovered evidence, not possible for the complainants in review to have produced at the hearing of said original bills of complaint,” and thereupon ordered that the original decrees be set aside and annulled, but with a proviso to the effect that the rights of the Savings Bank had not been considered and were not determined.</p> <p>In respect to the decree of foreclosure in the circuit court of the United States the allegations are to the effect that the guardian ad litem acted without authority in entering into an agreement with the Savings Bank for a compromise and settlement of the suit; that the settlement was a fraud upon the rights of the complainants and upon the court, for which the foreclosure decree and sale ought to be set aside and declared void as to the complainants; and, “further, that the. decree is erroneous, and should be reversed and set aside for many apparent errors and imperfections, insomuch as it appears by the supplemental bill that said Mulliken, as successor in trust to the said Ira Scott, had no power or authority to incumber the trust estate, nor to create a lien or charge upon the land.”</p> <p>The respective positions of the parties, and the views which prevailed, arc shown in the following extracts from the opinion below:</p> <p>“The contention on the part of the complainants is that the four trust deeds given by Mulliken, trustee, with the consent of Mr. and Mrs. Taylor, on the four houses and lots, and also the decree in the mechanic's lien case, are all void and inoperative as against the complainants and cross complainants, under the clause in the deed of trust to Scott which prohibited the1 creation of any lien, incumbrance, or charge on the trust premises; that they are not bound by the decree in the foreclosure case because the decree was by consent, and they were not competent to give such consent; and that the decree in the mechanic’s lien case did not bind the infant defendants therein because there was no service of process on them, and also because such decree was obtained by imposing upon the court the false deed established by the decree in the burnt records act, — of all which, and of the true terms of the genuine trust-deed, it is claimed the petitioners in the mechanic’s lien case, and the bank and its president, Mr. Thomas, were bound to take notice. * * * It is insisted on the part of the defendants that the decrees in the burnt records act case, and in the case appointing a new trustee, fully empowered the making of the five trust deeds involved in the foreclosure suit; that lour of the children were parties to those suits, and hound by the terms thereof, and the other unborn children were hound by representation; and that those decrees remained in full force at the time such trust deeds were made.</p> <p>“It may be, and probably is, true, that so long as those decrees, as well as the decree in the mechanic’s lien case, are allowed to stand, they are binding by their terms upon the infant defendants as well as upon the adult parties; but the essential question is, can these infants attack those decrees, and have them set aside as against parties who acted under them while they wen* in force? I consider the law to be well settled that the infants can, by an original bill in the nature of a hill of review, attack any decree entered against them during their infancy, and have it set aside for fraud or error of fact. Daniell, Oh. Pr. 169, 170; Kogers v. Smith, 4 Pa. St. 93; Mills v. Dennis. 3 Johns. Oh. 367; Massie v. Donaldson, 8 Ohio, 377; Mathes v. Dobschuetz. 72 in. 438; Gooch v. Green, 102 111. 509; Lloyd v. Kirkwood, 112 111. 337; Ivuelienbeiser v. Beckert, 41 111. 172; Kingsbury v. Buckner, 134 U. S. 650, 10 Sup. Ot. Kep. 038. It is also well established, I think, by the authorities, that any consenting decree entered against a minor is not binding, and can be attacked by original bill for the purpose of setting it aside; and in support of this practice no other authority need be cited than that of Kingsbury v. Buckner, above died. Assuming, as I do, the right of these minors to attack this bill of foreclosure by their bill, I think the court must now assume that, had all the facts touching the validity of the securities involved In that suit been presented to the court, the court must have held that the securities sought to be foreclosed and enforced in that proceeding were Invalid, and have dismissed that suit for want of equity as against the infant defendants; and as the court was prevented from doing so, and was led into making an inequitable decree by the unauthorized agreement of the guardian ad litem, it will in this suit, now brought by the minors themselves, enter such decree as should have been entered in the original foreclosure case. As to the Gilsdorff decree, and the sale under it, I can see no reason why it is not properly the subject of attack by this bill. Undoubtedly, at the time that decree was rendered, the court properly assumed that it was justified by the deed of trust, as restored by the decree of March 29, 1873, under the burnt records act; but that decree was based upon a most palpable error of fact, of which the bank and its president were charged with notice, and it seems to me the right of these infants to set aside that decree, and all that has been done under it, is palpable. To set aside these sales under the foreclosure and mechanic’s lien decrees will, without doubt, work a hardship upon the hank, that has invested a large sum of money on the faith that the four §9,000 mortgages were valid; hut the court cannot escape the conclusion that there was ample constructive notice that the trustee had no power to make those mortgages, as well as that no valid mechanic’s lien could be created on the trust estate, and to hold that these incumbrances are valid as against these children would make a precedent for defeating the rights of many more minor children.”</p>

<p>Appeal from tlie Circuit Court of tlie United States for the Eastern District of Arkansas.</p> <p>In Equity. Bill by USTancy Armstrong Percy against Sterling R. Cockrill and others to recover a one-fifth interest in certain realty, with the rents and profits. Defendant Cockrill died pending the' suit, and the cause was revived in the name of Sterling R. Cockrill, Jr., his executor and trustee. A demurrer was sustained, and the bill dismissed. Complainant appeals.</p> <p>Statement by SAXIKXKX. Circuit Judge:</p> <p>TMs is an appeal from a. decree of the court; helow sustaining a demurrer to, and dismissing, the appellant’s hill in equity. Tin; hill was died January 15, 1891, and alleges that appellant’s father, William Armstrong, died testate June 13, 1817, leaving surviving Mm three sous and three daughters. That he died seised of a plan!a lion containing 1,003 acres of land adjoining Pine Bluff, Ark., and a large number of slaves, and some other personal property, then on the plantation. That his will, which vas duly probated, was as follows:</p> <p>‘•In the name of God. Amen. I, William Armstrong, being of sound mind, in view of the uncertainty of human life, do hereby make and declare this my last will and testament, in the words following, to wit: First. I hereby bequeath and devise all my estate, real and personal, including all my effects of every description whatever, subject to the limitations hereinafter sot forth, to my sons, James Trooper Armstrong, David 1. Armstrong, and Frank Wells Armstrong, whom 1 constitute and appoint my sole executors. Second. It is my wish and desire that my plantation below Pine Bluff, including the adjoining lands and all the appurtenances, should not be sold or disposed of, but remain and continue as at present, to be, together with my negroes and all my other effects, under the joint management and control of my executors aforesaid; not to be divided, but to remain as an entire estate until my son Francis becomes of age; and, in the event of either of my said sons dying without issue before that, the survivors or survivor to succeed ns heirs and executors. Third. Having full confidence in my sons aforesaid, and in their disposition to deal justly and liberally, I leave it to them to make proper and suitable provision for their sisters, Susan. Margaret, and Nancy. Fourth. It. is my wish and desire that my grandson, William Armstrong Cocke, be brought up at tlie cost and expense of my estate. In witness whereof, 1 have hereunto set my hand and seal, on tills 10th day of June, 1817.”</p> <p>That the sons named in tlie will deemed the legal title and beneficial ownership of the property devised by tills will in themselves, and proceeded to borrow money for their several individual purposes, and to secure the payment thereof mortgaged the properly in 1.819, when the youngest; son, Frank, had attained his majority, for 810,000, and in 1851 for 830,008.64. That in February, 1856, they sold, and undertook to convey, by a deed made in their own light, and as executors of the will of their father, to the late defendant Sterling It. Gockrill, the undivided two thirds of the property, in consideration of 813,000, to be paid, by him to James T. Armstrong and Frank W. Armstrong, and the assumption by him of two thirds of the debts ol' the estate and of the incumbrances then upon the property; and that in May, 1838, David 1. Armstrong, who had married a daughter of Mr. Ooekrill In 1.853 or 1854, and who claimed to own the remaining third of the estate, and Ms father-in-law, made a partition between themselves of the entire property and estate. That a portion of this land lias since been platted as Cockrill’s addition to the city of Pine Bluff; and more than 60 persons are made defendants, who claim title to, or liens upon, some of it, under Mr. Ooekrill and David 1. Armstrong.</p> <p>The bill alleges that tlie late defendant Ooekrill, before and when he purchased the two-thirds interest in this property, knew that the young Armstrongs were expending- and wasting the estate; that the mortgages they had executed thereon did not secure any debts of the deceased, William Armstrong; that none of the moneys they derived therefrom, or from their sale to him, went, or were intended to go, to the complainant; that they had made no suitable provision for her, and did not intend so to do, but had expended, and intended to expend, the moneys they derived from the estate, in utter disregard of the will, and the trust; in complainant's behalf thereby imposed, and that they did not intend to provide for her out of the one third of the estate remaining unsold.</p> <p>The MU also alleges that Susan Armstrong died, intestate and without issue In 1852; that Margaret died intestate in 3850, leaving an infant son by her husband, Barrow; that neither of these daughters had attained their majority when they died; that the throe brothers subsequently died insolvent;; that at the time of her father's death the complainant was 11 years old; that for at few years thereafter she resided on the plantation; that she was then sent to Maryland to school, and at the age of 19 took up her residence in Nashville, Tenn., with relatives', where she resided until she was married, on February 23, 1858; that she attained her majority in 1857; that her husband died July 19, 18SS; that she and her sisters were supported and educated during their minority by her brothers; that “she was kindly and tenderly raised, in a manner befitting her station in life, and the relations between her brothers and herself were of the most affectionate character, — questions of property or money matters were never discussed between them,” — and that she was entirely ignorant of all the mortgages, conveyances, and transactions set forth in the bill until the winter of 1858-59, when she and her husband went to Arkansas to visit her brothers; that she then learned for the' first time that the late defendant Cockrill was in the possession of her father’s home, claiming to own the same; and that it was only recently that she discovered the other facts set out in the bill.</p> <p>The relief sought by this bill is a decree that the complainant is entitled to an undivided one fifth of each lot and tract of land that belonged to William Armstrong at his decease, in 1847, and a judgment against each of the defendants for one fifth of any rents, profits, or personal property they have respectively received from any property that he then owned.</p> <p>The grounds of the demurrer were that the bill did not show that the complainant was entitled to any relief; that the suit was barred by the statute of limitations; that the complainant was barred from prosecuting her suit by her laches; and that it appeared from the bill that, if she had any right of action, she had an ample remedy at law. The only error assigned is that the court below sustained the demurrer and dismissed the bill. After the commencement of the suit the defendant Sterling R. Cockrill died, and the cause was revived in the name of Sterling R. Cockrill,' Jr., as his executor and trustee..</p>

<p>Appeal from the Circuit Court of tbe United States for the District of Kansas.</p> <p>In Equity. Bill by the Sari Gabriel Valley Land & Water Company against E. L. Raymond for the specific performance of a contract of sale of real property. Decree for complainant. Respondent appeals.</p> <p>Statement by CALDWELL, Circuit Judge:</p> <p>This suit is founded on 'nine contracts for the purchase of town lots. The contracts are alike in every respect save as to the number of the lots and the prices to he paid therefor. The following is a copy of one of the contracts:</p> <p>“This agreement, made on the 29th day of June, 1887, between the San Gabriel Valley Land and Water Co., a corporation, duly organized under the laws of the state of California, the party of the first part, and F. L. Raymond, the party of the second part, witnesseth that the said party of the first part, in consideration of the covenants and agreements on the part of the party of the second part hereinafter contained, hereby agrees to sell and convey to the party of the second part, and the said party of the second part agrees to purchase, that certain lot in the San Gabriel Valley Land and Water Oo.’s subdivisions of the East San Gabriel tract of land in the county of Los Angeles, state of California, described as ‘lot nine, block one hundred and thirteen,’ according to the map of said subdivisions filed in the office of the county recorder on the 12th day of August, 1887, and recorded in Book 21 of Miscellaneous Records, Los Angeles county, page 79, for the sum of two hundred dollars, to be paid as hereinafter stated. And the said party of the second part agrees to purchase said lands, and pay therefor the sum of two hundred dollars, as follows: Sixty-seven dollars to he paid on the execution of this agreement, the receipt whereof the party of the first part hereby acknowledges, and the remaining one hundred and thirty-three ($133.00) dollars, with interest at the rate of eight per cent, per annum from the. date hereof, at the times and in the manner following: Sixty-seven dollars, with interest iron» this date, at the rate aforesaid, on or before the 29th day of June, 1888; sixty-six dollars, with interest as aforesaid from this date, on or before the 29th day of June, 1889. And the said party reserves the right to lay pipes in said land to conduct water through said land whenever the grantors may desire to conduct the same.</p> <p>“The party of the second part shall have the immediate possession of said tract herein agreed to he conveyed, and in consideration of such possession, use, and occupation, the said party of the second part agrees to pay all taxes which may be assessed against the land after .the present year; and the said party of the second part agrees to care for ah trees that may he planted on streets and avenues fronting on said tract sold.</p> <p>“Time is the essence of this agreement, and, if default he made in the. payment of any installment of principal or interest when due, then the whole of the principal and interest shall become immediately due and payable, or this contract may, at the option of the party of the first part, he canceled, and said company shall have the right to re-enter upon said premises, and every part; and all payments which have been made under this agreement shall he retained by the party of the first part. And if the party of the first part shall elect to cancel this agreement for default of payment, as above provided, notice of such election shah be equivalent to re-entry, and the interests of the party of the second part in said land, and ail right of possession of the same, shall cease. And the party of the first part agrees that upon full payment being made as herein provided, it will make, execute, and deliver to the party of the second part a deed of grant for conveying the title to the above-described premises to the said party of the second part.</p> <p>“The provisions of this agreement shall apply to and bind the heirs, assigns, and successors of the parties hereto.</p> <p>“In witness whereof, the said party of the first part has caused its name to he hereunto subscribed and its seal affixed by its president and secretary, they being duly authorized by resolution of its hoard of directors; and the party of the second part has hereunto set his hand, the day and year first •above written.</p> <p>[Seal.] “San Gabriel Valley Land and Water Co.</p> <p>“By H. H. Markham, President.</p> <p>“By A. L. Burbank, Secretary.</p> <p>“F. L. Raymond, Purchaser. [Seal.]”</p> <p>The purchaser, Raymond, made default In the payment of the second and third Installments of the purchase money. The vendor waived his right to cancel the contracts on account of the nonpayment of the purchase money, and demanded payment thereof; and on the 9th day of December, 1889, tendered to the appellant, at his home in the state of Kansas, a good and sufficient deed for the lots, and thereupon brought this suit to compel him to specifically perform the contracts by paying the purchase money, and praying for a decree accordingly. The defendant demurred to the bill for want of equity, and filed an answer alleging the contracts wore procured by fraud and misrepresentation; that complainant could not make a good title to the lots, and was guilty of laches in not sooner bringing its suit. The lower court rendered a decree for the purchase money, and the defendant appealed. ,</p>

<p>1. Rati,road Companies — Overcapitalization-—Construction Contract.</p> <p>Laws Minn. 1887, c. 12, I 1, prohibiting any railroad company or officer thereof from selling or disposing of shares of its capital stock, or issuing ccrtitieaies therefor, unless such shares shall have been fully paid, or issuing any stock or bonds, except for money, labor, or property received and applied for the purpose for which the corporation was created, does not forbid the issue of first mortgage bonds and full-paid stock by a railroad company in payment for the construction of its road, if the amount issued does not unreasonably exceed the value actually received.</p> <p>2, Same — Fraudulent Issue op Stock — Rights of Purchaser</p> <p>The assignment of railroad stock issued in pursuance of a fraudulent scheme, to which, the assignor was a party, places the assignee in no better position than his assignor was, and equity will not aid such assignee seeking relief by injunction as to acts of the directors and others in relation to other stock of the same issue, and which he asks to have canceled.</p> <p>B. Corporations — Stockholders.</p> <p>An assignee of railroad stock, who has not registered his stock, nor obtained recognition as a stockholder, cannot bring suit in behalf of himself . and other stockholders to restrain the action of the officers of the corporation from acts alleged to be ultra vires and illegal.</p>

!At Law. Statement by TAFT, Circuit Judge: This was an action in ejectment by Young against the commissioners of Mahoning county to recover lot No. 96 on the original plat of the town of Youngstown, 'which is now occupied by the courthouse and other county buildings of Mahoning county. The case was submitted to the court on the evidence, a jury being waived, and the court held that the plaintiff was entitled to recover the land. The opinion is reported in 51 Fed. Rep. 585.

<p>In Error to the United States Court in the Indian Territory. Appeal from the United States Court in the Indian Territory.</p> <p>■ At Law. Action by Henry Platter, assignee for the benefit of creditors of Richard B. Burton, against said Richard B. Burton, to recover the possession of personal property wrongfully detained.</p> <p>■; Certain creditors of the defendant intervened, and were made parties defendant. By agreement of all parties, the' case was transferred to the chancery docket. Decree for plaintiff. Defendants appeal, and also bring error.</p> <p>Statement by SANBORN, Circuit Judge:</p> <p>In these cases the same parties prosecute a writ of error and an appeal to reverse a decree in chancery rendered in a code action for the recovery of specific personal property. The appellee and defendant in error will be called the plaintiff; the appellant and plaintiff in error, Burton, the defendant; and all other plaintiffs in error and appellants, interveners.</p> <p>April 1, 1889, the defendant made an assignment of the property in question to the plaintiff, and delivered its possession to him, to secure the payment' of certain creditors of the assignor therein named, whose claims amounted to $9,515.61. The plaintiff employed the defendant as a clerk to assist in disposing of the property, and $2,684.65 had been realized from its sale, and paid over to the secured creditors under the assignment, when the defendant, on August 19, 1889, repudiated it, and held possession of the remainder of the stock of goods for himself. The plaintiff demanded possession of the property, and it was refused. On August 24, 1889, he brought this action for it, and set forth the facts just stated in his complaint. He gave the usual bond for I the delivery of the property to himself, and under a proper order from the court, based upon this complaint and bond, the marshal seized the iiroperty on August 25, 1889, and on August 28, 1S89, the defendant gave a cross bond for the return of the property, and it was redelivered to him. On this cross bond there were six sureties, five of whom are the interveners in this action. On September 5, 1889, these five intereveners obtained judgments by confession against the defendant for amounts aggregating about $3,000, Issued executions thereon, and the marshal, in October, 1889, seized and sold the property In question thereunder, satisfied the judgments out of the proceeds, and paid over to the defendant a balance of some $2,000. On April 9, 1890, the interveners filed á petition in this action, in which they pleaded these judgments and executions, the sale thereunder, the satisfaction of their judgments from the proceeds, and the payment of the balance by the marshal to the defendant; averred that, in order to induce the marshal to seize this property under the execution, they gave him a bond of indemnity; that the assignment was fraudulent as to them as judgment creditors, and asked that they be made parties to this action; that the assignment be adjudged void as to them, and that their rights and those of the plaintiff and defendant to the property in question be determined in this action. On the same day the defendant filed his answer, which admitted the allegations of the complaint, and alleged that after the draft of the .assignment was made, and before it was executed, the plaintiff orally promised that the stock should not be sold out; that he would furnish new goods to keep it up to its general average; that these goods should be paid for out of the proceeds of the sales of the assigned stock, and that ho had not kept these oral promises, but had proceeded according to the provisions of the written assignment in executing his trust. The plaintiff demurred to this answer, and his demurrer was, at the final hearing, sustained. On April 9, 1890, on motion of the interveners, the action was transferred to the chancery docket. On November 30, 1890, the plaintiff filed a motion to dismiss the interveners’ petition, which was, at the final hearing, denied. On November 30, 1890, all of the parties to the action stipulated that it should be referred to a special master to hear and report the facts and conclusions of law, and the court so ordered. The master heard the proofs, and made a report, to which exceptions were filed. He reported the amount remaining unpaid on the claims of the secured creditors, and that the valuó of the property was $8,000, and then found that the plaintiff was entitled to judgment for the property, or the value thereof, against the defendant and the sureties on his bond. The defendant and interveners excexrted to this finding; their exception was overruled; and, upon the master’s report, a de cree was rendered that the plaintiff recover from both the defendant and the interveners the amount unpaid on the secured claims, which was $7,815.63, and the costs of the action. No judgment or decree in the alternative for the return of the property, or the payment of the value of plaintiffs special interest in it, was rendered. The cross bond, ui)on which the interveners’ names appeared as sureties for the defendant, was not pleaded or mentioned, nor was any recovery on its account prayed for in any of the pleadings, or sought by any motion in the case, and it was not introduced in evidence. It is assigned as error that the court rendered a decree for the recovery of money against the defendant, Burton, and his sureties, whereas the only judgment or decree it could have lawfully rendered was one against Burton only, and for the return, of the property or its value; that the master and the court should have found the assignment to be fraudulent “and void as to the interveners; and that it should have overruled the demurrer to the defendant’s answer. There are other assignments of error, but their consideration is not necessary to the determination of this case.</p>

<p>1. Customs Duties — Hemstitched Cotton Handkerchiefs.</p> <p>Imitation hemstitched cotton handkerchiefs are dutiable at 50 per cent, ad valorem, as “handkerchiefs composed of cotton,” under paragraph 349, Schedule I, of the tariff act of 1890, and not at 60 per cent, ad valorem, as “embroidered and hemstitched handkerchiefs,” under paragraph 373, Schedule J.</p> <p>2. Statutes — Construction—Customs Duties.</p> <p>Bevenue statutes, including those fixing duties on imports, are neither remedial laws nor laws founded upon any permanent public policy, and should be construed most strongly against the government; for burdens should not be imposed on the taxpayer, beyond what such statutes expressly and clearly import U. S. v. Wigglesworth, 2 Story, 369, and Net & Twine Co. v. Worthington, 12 Sup. Ct. Bep. 55, 141 U. S. 474, followed.</p>

This was a proceeding by Herter Bros, to review the decision of the board of general appraisers in the classification of certain marble blocks imported by them. That decision was reversed, and judgment was entered in favor of the importers. 50 Fed. Rep. 72. The United States appeals. Reversed, and the decision of board and of the collector of the port of Yew For’k affirmed.

<p>On Habeas Corpus.</p>

<p>1. Patents for Inventions — Combination—Claims.</p> <p>. . In a combination patent it is permissible for the patentee, after claiming tbe whole machine, to claim the combination of fewer parts than the whole, if this combination of parts is new, even though, taken alone, it will not result in any known useful product. Wells v. jaques, 5 O. G. 364, followed.</p> <p>2. Same — Rod-Coiling Cones.</p> <p>In letters patent No. 426,067, issued to Henry Roberts for an apparatus designed for coiling small red-hot metal rods as they run rapidly from the rolls, the patentee describes as the preferable form a rotary double cone, consisting .of two concentric cones having a space between them, being united by a spiral rib, and terminating in a collar at the apex, through which the rod is received, being afterwards delivered, coiled, at the base. The second, third, and fourth claims .cover substantially this double cone, but the first claim covers merely a rotary receiving and coiling cone, “having a channel,” which receives the metal at the apex, and delivers it at the base. Held that, this latter combination of parts being new, the first claim is not invalid because it covers loss than the whole machine.</p> <p>3. Same — Anticipation.</p> <p>In letters patent No. 444,652, also issued to Henry Roberts, the patentee dispenses with the outer cone, except so much of it as forms the hollow collar. The collar is connected with a single cone by means of pieces extending downward, and widening into longitudinal ribs with lateral flanges running spirally down opposite sides of the cone. Glaim 3 reads: “In metal-coiling apparatus, having an exposed outer surface, along which the rod travels, a hollow collar and driving gear, substantially as and for the purposes described.” The other two claims include, in addition, the longitudinal rib or ribs with a lateral flange. Held, that the third claim was not invalid because it covered less than the whole machine, and was not anticipated by the first Roberts patent, since it has the new feature, “an exposed outer surface.”-</p> <p>4. Same — Anticipation.</p> <p>The fact that in the prior coiling devices, known as “pipe reels,” the rod, in its course through the pipe, described in space a curved plane resembling the surface of a cone, did not render either of the Roberts patents invalid; nor were they anticipated by the Young patent, which had six curved, rotating lay-off pipos, arranged at equal distances around the mouth of the guide tube, and connected together with an outer covering, which gave the coiler the semblance of a cone; since this constituted simply a series of pipe coders, only one of which was used at a time, the object being to distribute the wear and tear due to the running of the rods through the pipe.</p> <p>5. Same.</p> <p>The mere fact that the pipes of the Young patent may in some sense he said to he channels running down the surface of a cone does not bring them within the language of the first claim of the first Roberts patent, since that claim is for a coiling,and receiving cone, having a channel of which the surface of the cone is one side or part, by means of which the rod is received at the apex of the cone and delivered at its base.</p> <p>6. Same — Prior Art — Evidence.</p> <p>The more fact that in rejecting one of the claims of Roberts’ original application the patent examiner said “that cones are common things in coiling machines,” is no proof that “rotary” coiling cones were before used; and, if any such cones were in fact used, the burden was upon defendant to show it.</p> <p>7. Same — Infringement.</p> <p>Claim 1 of the first Roberts patent and claim 3 of the second Roberts patent are infringed by a rotary coiling cone, having two flanged wings extending radially from the surface thereof, and uniting above the apex in a hollow collar, through which the rod is introduced and directed to the surface of the cone, and is taken np by one or the other of the wings, and is coiled beneath the base.</p> <p>8. Same.</p> <p>Such a cone is also an infringement of claim 2 of the second Roberts patent, which covers “a rotary coiling cone, having two longitudinal ribs with lateral flanges, substantially as and for the purposes described.”</p> <p>9. Same.</p> <p>Claim 2 of the second Roberts patent is also infringed by the Mcllvried patent, which differs from the Roberts machine only in having wider flanged ribs; and infringement is not avoided by simply cutting off the flange, since the necessity therefor Is obviated by the widening of the ribs, and by making the angle at which they meet the cone somewhat more acute.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of New York.</p> <p>In Equity. Bill by Frederick A. Stohlmann and others, trading as George Tieman & Co., against Bussell Parker and others, trading as Parker, Stearns & Sutton, for infringement of a patent. The circuit court dismissed the bill, and complainants appealed.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>In Admiralty. Libel by James C. Stout against the schooner Richard J. Carney and against James Davidson, mortgagee thereof, to recover possession. In the district court a decree was rendered in favor of the libelant, but on appeal by defendant Davidson to the circuit court this decree was reversed.- Libelant thereupon appealed to this court.</p>

<p>In Admiralty. Libel by Leali Seville and others, owners of the tug Hilen, against, the barge Georgia, for salvage. The owners of other tugs assisting in the service intervene by petition.</p>

<p>1. Carriers of Goods — Liability for Loss — Defenses—Advances by Insurer to Shipper.</p> <p>Certain fully insured cotton having been destroyed, as claimed, through the negligence of a carrier, the insurer advanced the value thereof to the owner as a loan without interest, with the understanding that the latter should sue the carrier, and, if successful, rdpay the loan, and, if unsuccessful, retain the money as payment of the insurance. Held, that ■ this arrangement was no bar to a libel by the owner against the carrier.</p> <p>2. Same — Bill of Lading.</p> <p>The owners of certain Mississippi steamboats formed an association, ■ and appointed a common agent, with authority to sign bills of lading, under an arrangement by which the bills were frequently signed on delivery of the goods at the landing, and the goods were to be taken by the first boat of the association which passed. The name of the particular boat was usually entered in the bill when the goods were received on board. Held that, where goods were destroyed at the landing after the bills of lading were signed, the fact that no particular boat was mentioned therein would not prevent the maintenance of a libel against the next boat which passed the landing, and upon which the goods would ha,ve been shipped.</p> <p>3. Same- Autiiobity of Agent.</p> <p>The common agent of (ho boats, being a general freight agent, had power to authorize others to sign bills of lading in his name, and bills so signed were binding upon tin; principal.</p> <p>4. Same — Deliveby of Goods.</p> <p>Where a person thus authorized by the agent to sign a bill of lading was also owner of a cotton yard in which cotton designed for shipment was stored, the transfer of the cotton by him from the cotton yard to the steamboat landing, and a signing by him of the bill of lading, was a valid delivery of the cotton.</p> <p>5. Shipping — Bill of Lading — Estoppel—Waives.</p> <p>On a libel by a shipper to recover for goods alleged to have been destroyed while in possession of a boat for transportation, it was claimed that the boat was estopped by a bill of lading from denying actual receipt of the goods under Act Miss. March 1«, 1880, providing that bills of lading shall be conclusive evidence in Hie hands of bona fide holders that the goods were actually received for transportation. But libelant himself introduced evidence that the goods were destroyed by fire at the steamboat landing, and were never received on board, and that such destruction was due to the negligence of the steamboat's agents. Held, that this evidence must be considered as in the case for all purposes, and that by introducing it libelant had to that extend waived the estoppel of the statute, and had opened the door to the introduction of evidence on these points by the libelee.</p> <p>6. Same — LrEN—Loss at Landing.</p> <p>There is no lien upon a vessel in respect to goods for which her agents have issued a bill of lading, but which are destroyed while in custody of the keeper of the landing before being received on board or coming under the control of the master.</p> <p>7. Same - Negligence — Bike.</p> <p>Where cotton alleged to be in charge, of a. carrier’s agents is destroyed by Arc while lying uncovered and unprotected at a lonely country landing awaiting shipment by a steamboat, there being no evidence as to liow the fire originated, the fact that no applianc.es for extinguishing Ore were at hand, and that no watch wras maintained, will not justify the inference of negligence, since, under such circumstances, no danger from lire could reasonably be apprehended.</p>

In Admiralty. Libel by Thomas J. Stewart and others, owners of the schooner Rabboni, against O. P. Rumball and others, owners of the barkentine Nellie 3Í. Rumball, to recover damages for a collision. Cross libel by the latter against the former for the same collision.

<p>Appeals from the District Court of the United States for the District of Maine.</p> <p>In Admiralty. Libel by Thomas J. Stewart and others, owners of the schooner Rabboni, against O. P. Rumball aid others, owners of the barkentine Nellie E. Rumball, to recover damages for a collision; Gross libel by the latter against the former for the same collision. The district court found that the barkentine was alone in fault, and decreed accordingly, 53 Fed. Rep. 948. Her owners appeal.</p>

<p>Shipping -r- Charter Party — Report to Customhouse — Right to Inward Business.</p> <p>A clause of a charter party providing that the vessel is to be “reported at the customhouse” by the charterers’ agents or their appointees, is not equivalent to a consignment to them, and does not give them the right to do the inward business of the ship. 49 Fed. Rep. 376, affirmed.</p>

In Equity. Suit by Charles L. Bueki against Victor Meyer and others to foreclose a mortgage upon realty, to which Ferdinand Gales was made a party defendant by amendment of the bill averring that he claimed a lien upon the mortgaged realty by an attachment thereof in proceedings by Mm in the state court.

<p>1. Nuisance — Pollution of Stream — Injunction.</p> <p>Tbe -discharge oí refuse matter from a strawboard factory into a non-navigable river, used by a water company owning land fronting on and ’ extending along said river, as a source of supply for furnishing a city, its inhabitants, and others with water for domestic, manufacturing, and other purposes requiring purity of the ’ supply, thereby fouling and polluting such stream, is necessarily a continuing nuisance, for which no plain, adequate, and complete remedy exists at law, and injunction will lie to restrain such discharge.</p> <p>2. Same — Riparian Rights.</p> <p>A water company engaged in supplying a city with water, and owning land bordering on a nonnavigable river, from which a portion of its supply is derived, and which, for a considerable distance, touches the flow of the stream, is a “riparian proprietor,” in the full sense of Hie word, and as such may perpetually enjoin the deposit in the stream of substances which pollute the water to such a degree as essentially to impair its natural purity.</p> <p>8. Same — Equity Jokisutction — Remedy at Law.</p> <p>In such a case plaintiff has not a plain, adequate, and complete remedy at law, so as to oust, the circuit court of jurisdiction, by reason of Rev. St. § 723, providing that suits in equity shall not be sustained in the United States courts in cases where such a remedy may be had at law.</p> <p>4. Same — State Statutes.</p> <p>The federal courts will enforce, either at law or in equity, according to their nature, any new rights created by state statutes, but their equitable jurisdiction of equitable rights cannot he affected by state statutes making such rights enforceable at Law.</p> <p>5. Same.</p> <p>Rev. St. Ind. §§ 289-291, defining a “nuisance,” and providing that, it may be enjoined or abated, and damages recovered therefor, by any person whose property is injuriously affected, are merely declaratory of the preexisting law, and do not affect the right to proceed in equity in proper cases.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>In Equity. Suit by Mary Smith, Eichard A. Smith, and others against Isaac M. Worthington, in his own right, and as administrator of the estate of Elisha Worthington, deceased; Abner Caines, administrator, substituted for W. W. Eose, deceased; William Starling; and William W. Ford, — for fraudulent and improper administration of deceased’s estate. The hill was dismissed below, and complainants appeal.</p> <p>Statement by SHIEAS, District Judge:</p> <p>From the record in this cause it appears that Elisha Worthington, for a number of years prior to November, 1873, resided in Chicot county, Ark., being the owner of three plantations in that county. He died intestate, and on the 25th of November, 1873, letters of administration were duly issued to Edward T. Worthington and Isaac M. Worthington by the probate court of the county, the administrators giving bond for the faithful performance of their duty, in the sum of $30,000, with W. W. Rose and William Starling as sureties thereon. The property of the estate passing into their hands consisted of the three plantations above named; certain mules, wagons, and other farming implements; moneys due; and other like personal property. About the time the letters of administration were granted a meeting of the heirs interested, who were quite numerous, was held, at which about four fifths of ¡ho interests wore represented, and at which meeting it was agreed that Edward T. Worthington was to take the active control over the property, and that the administrators, in addition to the statutory commissions, were to be pawl an extra salary iu such-sum as might be fixed by the probate court. In pursuance of this arrangement Edward T. Worthington had the immediate charge of the property until April 1, 1875, when, by arrangement between the eoadministrators, the active management: was assumed by Isaac M. Worthintgon. At the meeting in November, 1873, the general policy to be followed in handling the property was discussed, and seems to have been settled upon; the plan being to rent out small parts to tenants for a cash rent.</p> <p>On the 13th of December, 1873, there was filed in the probate court of Chicot county the report of the appraisers appointed, to value the personalty belonging to the estate, which re]wit was approved; the value of the personalty being fixed at §2,160.75. Oil the same day was presented a petition of the administrators, asking authority to rent out Ited Leaf plantation for the year 1874 in parcels to tenants, the administrators to retain the general management and control of the property; and an order was granted, authorizing the adminislrators to rent all the realty belonging to the estate, the same to remain under the general management of the administrators, to which end one of the administrators was to remain upon the premises. On the same day an order was granted, directing the sale at auction of the personalty on January 5, 1874, with leave, however, to sell before that day, at private sale, to any tenant upon the property, holding for the year 1874, any mule belonging to the estate, for a sum not less than the appraised value, to be secured by a lien on the mule, or on the crop raised by the tenant. From time to time further orders were made by the probate court, for the renting of the lands; for the sale of notes and accounts due the estate; for the employment of counsel in defending suite against the estate; and other like matters. In each year the administrators filed a report of their doings, including an account of receipts and expenditures, to which in some instances exceptions were filed ou behalf of some of the heirs. These accounts were finally adjusted, and orders entered approving the same as corrected. At the October term, 1880, of the; probate court a peüüon was filed by the administrators showing that there was then dne from the estate, including the expenses of administration, the sum of about §17,000, and that there was in the hands of the administrators, to meet the same; the sum of §12,500, including the rents of 1880, which wore not then duo and that, to pay the debts due a. sale of the realty was necessary. Upon this showing the court ordered that the three plantations, or so much as might be necessary, should be sold at public auction on January 10, 1881. The sale was had, and reported to the court; it appearing that the lands were appraised at §21,038, and had been sold to \V. W. Ford for the sum of §25,815, which sale was thereupon confirmed by The court. By the terms of sale one third was paid in cash, and the remainder in one and two years. On the 14th of January, 1884, 1he eighth annual account of the administrator was filed, showing all debts paid, and that there was loft for distribution among the heirs the sum of §10,342.60. This account was approved, and distribution ordered of the balance iu the hands of the administrator. For some reason, not made clear upon the record, the distribution of this sum among the heirs was not finally completed until in 1888; and at the October term, 1888, of the probato court, the following order was made: “On this day was presented the receipts of Mrs. Sallie W. Dugan and of William Kincliloe, whose shares, of §258.67 each, remaining in the hands of the administrator at the time of the approval of the final account current of said administrator, approved at ¡he July term, 1885, of this court, by the said administrator, with the prayer that he be discharged as such administrator as to these items, as he had been as to all remaining portions of said estate at said July term, 1885; and the court being well and sufficiently advised in the premises, and being of the opinion that said administrator should be discharged as to these items, it is ordered, adjudged, and decreed that the said administrator be, and he is hereby, fully discharged as to the said two items of §258.57 each, as well as to all other1 matters connected with said estate.”</p> <p>On the 14th of December, 1885, the bill in this canse was filed in the United •States circuit court for the eastern district of Arkansas by Mary Smith and Richard A. Smith, her husband, on their own behalf and that of such other heirs of Elisha Worthington as might join in the proceedings, — the defendants being Isaac M. Worthington; W. W. Rose, William Starling, (these two being sureties on the bond of the administrators;) and W. W. Eord.</p> <p>The bill recites at length the acts of the administrators, and the making their .annual reports to the probate court, and charges that these are false and fraudulent, because they contained charges for extra services in managing the property, improper commissions for traveling expenses, and that the annual accounts contain items not properly allowable. It is further charged that there was no authority for the renting the plantations from year to year, as was ■done, and that, when the order for the final sale of the realty was made, it was unnecessary, and therefore void, and that Isaac M. Worthington was interested in, and became a beneficiary of, the sale of the realty to W. W. Ford. By an amendment to the bUl the portion thereof praying that the .sale of the lands to Ford should be set aside for fraud was stricken out. A number of the ■other heirs of Elisha Worthington, by leave of court, were admitted as co-complainants. The defendants answered the bill, and the case, upon the pleadings and proofs, was-submitted to the court; and a decree for defendants was •ordered, dismissing the bill for want of equity.</p>

At Law. Action by Mary K. L. Black, against Mary M. Black, administratrix of the estate of Edgar N. Black, deceased. Heard on application for the approval of the surety on a writ of error.

At Law. Action, by Margaretta S. Ridgely against the Conewago Iron Company for breach of a mining lease. Rule for judgment for want of a sufficient affidavit of defense.

<p>In Error to the Circuit Court of the United States for the District of Maryland.</p> <p>At Law. Action by L. Roberts Coates, trading as Coates & Co., against the United States, to recover for materials used in the construction of a steamer. Judgment for defendant. Plaintiff brings error.</p>

<p>Carriers op Passengers — Who are Passengers.</p> <p>Tlie engineer of a railroad switch engine, while under pay for extra hours’ labor, went, under the direction of tlie yard master, to the company's shops, a distnnee of about two miles, being entirely within (he com- ■ pany's yards, and drew a passenger coach full of the company’s employes to the depot, where they attended a meeting. After the meeting- was over, about 10 o’clock at night, the employes again got into the coach, the yard master acting as conductor, and started on the return trip. A collision shortly ensued, in which plaintiff’s intestate received injuries causing his death. The intestate had come in from the shops on the coach, but there was no evidence that he or any of the others paid fare. Held, that in view of the presumption that one riding in a passenger coach is lawfully (here, by invitation or permission of the carrier’s employes, and that these employes have authority to bind the carrier by such invitation or permission, there was some evidencie that (he relation of passenger and carrier existed; and it was error to direct a. verdict for defendant on the ground 1liat there was no evidence of such relation.</p>

<p>Internad Revenue — Tax on Srinrrs — Disttddery Warehouses.</p> <p>Rov. St. § 3293, as amended by Act May 28,1880, § 4, (21 St. at Large, p. 146,) requires distillers to give a bond conditioned to pay the tax on spirits stored in distillery warehouses, before removal therefrom, or within three years from the date of the bond. Meld, that the destruction of sucli spirits by fire while in the warehouse constituted a “removal,” so as to make the tax payable before the expiration óf the three years. 48 Fed. Rep. 714, reversed.</p>

At Law. Trial of an indictment against Clementino Pagliano and Francesco Pagliano, for violation of the act of March. 3, 1875, (section 3,) forbidding the importation of women for purposes of prostitution. Judgment of conviction. Defendants move in arrest of judgment, and for a new trial. , The section in question reads as follows: “Sec. 3.

At Law. Appeal from decision of United States general appraisers. The importation in this suit consisted of five articles invoiced as “porcelain paintings,” valued at £26. 10s. sterling, from Stoke-on-Trent, Eng., which were assessed for duty by the collector of customs at New York at 60 per cent, ad valorem, under the following paragraph of the act of October 1, 1890: “Ear. 100.

<p>At Law.</p> <p>This was an appeal by the importers from a decision of the board of United States general appraisers affirming the decision of the collector of customs a,t the port of JSTow York in the classification for duty of certain crude cocaine imported into said port at different dates during the year 1891, and which was assessed for duty by the collector as a chemical compound at 25 per cent, ad valorem, under the provisions of Schedule A, par. 70, of the tariff act of October 1, 1890, which is as follows: "70. Products or preparations known as ‘alkalies,’ ‘alkaloids,’ ‘distilled oils,’ ‘essential oils,’ ‘expressed oils,’ ‘rendered oils,’ and all. combinations of the foregoing, and all chemical compounds and salts not specially provided for in this act, 25 per centum ad valorem.” The importers protested in the case of each of the entries that the merchandise was a medicinal preparation, in the preparation of which alcohol is used, and dutiable at 50 cents per pound, under paragraph 74 of said schedule and act, which is as follows: “74. All medicinal preparations, including medicinal proprietary preparations, of which alcohol is a component part, or in the preparation of which alcohol is used, not specially provided for in this act, 50 cenia per pound.” The importers appealed to the board of United States general appraisers, and a great deal of testimony was taken before said board, from which it appeared that the article was an alkaloid extracted from the leaves of the coca plant, and that alcohol was used in the production of this material either as a solvent or a xmritler. It also appeared that the article as imported contained from 10 to 20 per cent, of impurities. From the testimony of one expert witness it was shown liuit the substance in question was not suitable for medicinal use, but was used almost, if not entirely, in (he manufacture of certain oleatos and cocaine sails and preparations of refined cocaine, and that it could not be used as a medicine in rlio condition as imported. There was also some testimony, which was anconi radio ted by the importers, that all alkaloids wore medicine alkaloids. The testimony of one expert witness was taken on behalf of the importers, from which ir. was shown that this substance was crude, and was an alkaloid, in the preparation of which alcohol was commonly, if not universally, used, and always was used in the purification of cocaine after it liad been got out of the leaves; that large quantities of this crude cocaine were used by the makers of cocaine wines, the wine having a solving power over the cocaine, a.nd milking it a cocaine wine; that it might be used in the preparation of oleatos without further jrarifien Won, although the witness always made oleatos from the pure article; ¡hat this crude cocaine was used in a. very small degree as a medical article in its present condition, and sometimes for external applications, to be applied to felons or boils, or by dentists as an anaesthetic, as a cheap substitute for Hie purer article. The testimony of two well-known druggists of long experience was produced on behalf of the government, who testified that they did not use this crude cocaine pharmaceutically, nor In filling physicians’ prescriptions, and that they did not deal in it.</p> <p>The board of general appraisers found as facts “(1) that the cocaine in question is a crude alkaloid, in the extraction of which alcohol was used; (2) that it is known as ‘crude cocaine,’ and is handled exclusively by manufacturing pharmacists; (3) that it is not offered, bought, sold, used, or known as a medicinal preparation; (4) that it is not a medicinal preparation.”</p> <p>As a conclusion of law the board of appraisers overruled the protests of the importers, and affirmed the decision of the collector. The importers thereupon appealed the case into the circuit court, under the provisions of the so-called “Administrative Act of June 10, 3890;” and, no further evidence being taken by either side, the case came on for trial in the circuit court upon the return of the board of general appraisers as filed. After argument by the United States attorney in behalf of the collector and government, and by counsel for the importers, the circuit court delivered the following decision.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>At Law. Action by David B. Ingersoll and William P. G-lenney against Daniel Magone to recover an alleged excess of customs duties levied by defendant as collector of the port of New York. The circuit court directed a verdict for defendant. 48 Fed. Eep. 159. Plaintiffs bring error.</p>

Proceeding by Schefer, Schramm & Vogel to review a decision of the board of general appraisers, affirming the decision of the collector of the port of Yew York in assessing duties upou worsted shawls embroidered with silk, and worth over 40 cents per pound. The circuit court reversed the decision. 49 Fed. Eep. 826. The United States appeal.

<p>1. Customs Duties — Aot Oct. 1. 1890. £ 50.</p> <p>Goods arriving in port of entry on October 4, 1890, but not entered until October t!, 1890, pay the duty prescribed by the act of October 1, 1890, and not the duty under tlio prior act of March 3, 1883.</p> <p>2. Same — Construction on Section 50.</p> <p>The words, "no other duty,” in said section, mean “the same duty.”</p> <p>3. Same.</p> <p>The date when the new act went into effect for duty purposes was October (i, 1890.</p>

<p>Customs Duties — Classification—“ Glass-Headed Pins. ”</p> <p>Pins of different sizes, having iron or steel shanks from 1% to 6 inches in length, with more or less ornamental glass heads, some polished and some of a dull black, the articles being commercially known as “lace pins,” “hat pins,” and “bonnet pins,” the glass heads of some of the bonnet pins being in the form of sprays or sprigs, are dutiable as manufactures of glass at (¡0 per cent, ad valorem, under paragraph 108 of the tariff act of October 1, 1890, and not as “pins, metallic,” under paragraph 206 of the same act.</p>

<p>Customs Duties — Dyed Moss — Act of October 1, 1890 — Construction of Paragraph 24.</p> <p>Dyed moss, used by florists, held to he, dutiable at 10 per cent, ad valorem,..under paragraph 24 of the act of October 1,. 1890, as “Mosses * * * not odible, but which have boon advanced in value or condition by refining or grinding, or by other process of manufacture,” and not at 20 per cent, ad valorem, under section 4 of said act, as a nonenumerated manufactured article.</p>

At Law. Action by Charles A. Hotchkiss, for himself and to the use of the United States, against the Samuel Cupples Wooden-Ware Company to recover penalties under Rev. St. § 4901, for marking certain unpatented articles with the word “Patented,” for the purpose of deceiving the public.

<p>Appeal from the District Court of the United States for the District of Maryland.</p> <p>In Admiralty. Libel to recover freight. Decree for ’libelants. 51 Fed. Rep. 250. Respondents appeal.</p>