Volume 55 — Federal Reporter

At liaw. Action Toy John Sherwood & Oo. against the Newport News ik Mfeshbippi Talley Company and üie Chesapeake & Ohio Railroad Company, defendants. The caco was removed to the federal court on application of the defendants, and was heard on “a plea, In abatement of the petition lor removal,” according to a stipulation of the parties.

<p>Appeal — Time of Taking — Decree—Docket Estríes.</p> <p>The docket entry in an infringement suit, “Opinion — Decree for complainants,” does not constitute a decree for an injunction which is required to give the circuit court of appeals jurisdiction, nor can such entry be aided for that purpose by reference to the opinion; and hence an appeal taken before any decree is drawn is premature.</p>

<p>In Equity. Bill by J. Warren Brown and another against the Republican Mountain Silver Mines, Limited, and other defendants.</p>

<p>Í. Minks and Minino — Conflicting Claims — Pkiokity—Patents.</p> <p>N. discovered a metal-bearing lode, and on the same day erected a monument and posted a notice stating that he had “this day located and claimed” for mining purposes 1,000 feet northwesterly and 500 southeasterly therefrom, with 300 feet on each side, and claiming 20 days within which to complete his boundary monuments. Eleven days thereafter other prospectors located and set up the boundary monuments of a conflicting claim, and in so doing saw N.’s notice at a distance of 150 feet, but did not tafeo the trouble to go and read it. Subsequently, but before the expiration of the 20 days, transferees of part of the interest of N. (who was prevented from doing so himself by sickness) set up the boundary monuments of N.’s claim. Held that, in the absence of state statutes or mining rules fixing the lime within which the exterior boundaries should he marked, 20 days was a reasonable time, and that N. was entitled to a patent as against the subsequent locators. Érhar'dt v. Boaro, 5 Sup. Ct. Rep. 560, 113 U. S. 527, followed.</p> <p>2. Same — Boundary of Claim — Evidence.</p> <p>One of two locators of a mining claim, while they were busy in marking the boundaries thereof, set up a comer monument which the other did not see at that time, although he wrote a notice to be put thereon. Three months later, as they went over the ground together, the former pointed out a monument bearing the notice, and stated that it was the monument he had set up when, marking the boundaries, and that he had affixed the notice to it at that time. The monument was on a ledge of marked peculiarities, easy to be remembered. The man who set up the monument died before trial, and these facts were sworn to by the other locator, who also testified that he had pointed out tbis monument to the surveyor. The latter testified that the monument so pointed out determined the comer of the claim as represented by him on the map. Held that, in the absence of reasons for doubting this testimony, it was sufficient to prove that the monument had not been moved after it was first set up, and before the making of the survey.</p>

<p>Equity — Parties—Intis rventi on.</p> <p>Where, In a suit in equity, an execution has Issued, and a levy and calo have been made of certain lands, a third party, who claims to he the true owner, cannot intervene, for the purpose of moving to set aside the execution, when there is no privity of estate between him and the party against whom the execution has issued. His remedy is a bill to quiet title, or he may, in an action at law, plead the invalidity of the execution.</p>

Action by W. A. Orman against the North Alabama Development Company, Limited, of London, England, a corporation, originally brought in the circuit court of Franklin county, Ala., and thence removed into the United States circuit court, where a motion to dissolve an attachment issued by the state court was overruled, and judgment given for plaintiff. See 58 Fed. Rep. 469. Defendant brings error.

<p>In Equity. Bill by the Second Unitarian Society in Portland against Josephine P. Grant, Mary E. Paine, William E. Greeley, Dorothea Greeley, and Hugh P. Greeley, to quiet complainant’s title to certain real property. Hannah B. Greeley was made guardian ad litem for William E. Greeley, Dorothea Greeley, and Hugh P. Greeley. Heard on amended bül, answer, and replication.</p> <p>The Second Unitarian Society in Portland, Me., held the legal title to two thirds in common and undivided of the land occupied by it for purposes of worship, the legal title to the remaining one third being in one Samuel Winter, who held in trust for the said society. Winter, with two others, had bought the property for the uses of the society, and given their joint note therefor. The other two promisors on the note conveyed to the society their interest in consideration of their outlay, and the administrators of Winter were decreed by the supreme judicial court of Maine to do likewise with his interest, on the same terms. William ID. Greeley, a member of the parish, thoroughly familiar with these facts, was appointed, together with the parish committee, to purchase the outstanding one-third interest, which was accordingly sold to Greeley by the administrators of Samuel Winter’s estate, acting under license from the probate court. The society thereupon tendered to Greeley the purchase price and his charges and costs in making the purchase, and demanded a release of all his interest in the property. He refused this, but gave a deed conditioned upon the continuous use of the property by a Unitarian society; in case of breach the property to revert to Greeley’s heirs. The society accepted this deed with a formal protest, which was entered on the parish records. In the year 1890 the society allowed the property to be used as a Presbyterian church. Greeley’s heirs thereupon began an action at law in this court to recover the undivided one-third interest in the property. The Second Unitarian Society now seeks an injunction to restrain the further prosecution of the action at law, and that the heirs of Greeley he decreed to execute and deliver to complainant a quitclaim deed for their pretended interest in the property.</p>

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

<p>National Banks — State Taxation of Shares — Insolvency.</p> <p>Pub. St. Mass. c. 13, §§ 8-10, provide that shares of stock in all banks, state and national, shall be taxed to the owners thereof, to be paid in the first Instance by the bank itself, which, for reimbursement, shall have a lien ©a the shares and all flu» rights of the shareholders in the bank property, fit?'/, that no suit for this tax can bo maintained against tho receiver of an insolvent notional bank where the property represented by the shares has disappeared.</p>

<p>Jj'OBiETGjN feUKANCH COIHl'ANT- -SKBVK’K OP UoMXONiJ.</p> <p>The “.Timmons in an suction sigiimM. a foreign insurance company upon a liability incurred by doing bmimerJt: in 1,ho state oS Indiana may be served upon iiie auditor of state, if tbore iu no agent in the county where the suit is brought, tb.oug.il the company luis never been licensed to do busiaetw in the state, ami bus never filed with the auditor of state a written consent to such service of summons. Elliott's Supp. §§ 993, 994. Hhrman v. Insurance Go., 1 Pod. Rep. -Ill, followed.</p>

<p>1. Court Rooms — New York Emdejial Building- — Treasury Department— Allotment op Rooms — Powers Limited.</p> <p>The United States district court for the southern district of New York derives its right to the occupancy of its rooms in the New York post-office building directly from congress, under the acts passed to provide “permanent accommodations” in New York for the post office and the United States courts. The treasury department never had any power to allot rooms, except an implied power incidental to its duty to adopt plans of construction, so as to accommodate both the courts and the post office under one roof; and that power ceased with the completion of the building and the allotment and occupancy in accordance with such plans. The treasury department has now no power arbitrarily to dispossess either from the occupancy of any of the rooms thus permanently appropriated for its uses. The “control” of the treasury department referred to in the appropriation acts relates solely to care, custody, repair, furnishing, etc., as a custodian for the benefit of the courts and post office, and includes no right of dispossession.</p> <p>8. Threatened Dispossession — Public Omtch — Injunction—Contempt.</p> <p>An unlawful ousting of this court, its officers and records, from their rooms, would be a contempt; and a threatened attempt so to do may be properly enjoined, on the matter being brought before the court by petition of the clerk.</p>

At Law. Action by Francia-J. Byrne, adminiatrator, againat tbe Kanaaa City, Ft. Scott & Mempkia Railroad Company to recover for a death, by wrongful act of defendant. Heard on demurrer to plea in abatement.

<p>At Law. Action by Karl Danielson against the Northwestern Fuel Company. Hearing on motion to quash an execution.</p>

<p>1. Eminent Domain — Parties—Rights oe Lessee.</p> <p>A judgment condemning lands for public use does not affect a lessee’s right of possession when he is not made a party. it. Res Judicata — Suits at Law and in Equity. .</p> <p>Where a lessee who was not made a party to condemnation proceedings brings suit to enjoin a city from opening a street through the leased premises, a decree finding that the equities are with the defendant, and dismissing the bill, does not bar the lessee from maintaining a subsequent action at law to assert his legal right of possession.</p>

<p>At Law. Indictment against Zachariah Jacques for fraudulent registration.</p>

<p>1. Interstate Extradition — Fugitives from Justice — Purpose of Flight.</p> <p>Under Rev. St. § 5278, providing for interstate extradition, a person is a fugitive from justice wben be bas committed a crime within a state, and withdraws from the jurisdiction of its courts without waiting to abide the consequences, and it matters not that some other cause than a desire “to flee” induced such withdrawal. Roberts v. Reilly, 6 Sup. Ct Rep. 291, 116 U. S. 80, followed.</p> <p>2. Same — Habeas Corpus — Evidence.</p> <p>Where extradition proceedings are brought to remove a person from New York to Wyoming for the theft of certain shares of stock, it is not competent for such person, on habeas corpus, to show that the shares were pledged to him by tins aetpon charging the theft; for, while it is proper to inquire as to the prisoner's identity, and as to whether lie was within the demanding state when the alleged crime was committed, the question, of his guilt or inuoeence cannot bo inquired into. Leary's Case. 8 Abb. N. O. 48, followed.</p>

<p>1. Chinese Exclusion — Act of 1888 Operative.</p> <p>The Chinese exclusion act of September 13, 1888, (25 St. at Large, p. 476,) has a field of operation despite the nonratification of the proposed treaty of March 12, 1888, between the United States and China, and Is now In force excepting sections 2-4 and 15. ' U. S. v„ Jim, 47 Fed. Hop. 43:1, followed.</p> <p>3. Sa uh--Procedure imnuu Earlikr Apta.</p> <p>Tile Chinese exclusion act:» of 1832 and 1884 provlfled i}o procodiu’e. and It rested with. ¡.lie president to direct tho course to !>e pursued in removing a Chinese person found to be unlawfully in this country.</p> <p>Si Practice — Bktu.r;s ott Phooeju iivniui TUxpj.uprox Aur*.</p> <p>In general, procesa is not returnable in a different disMct from that ©£ it:» issue, hut ¡líe Cliineso exclivluio act of ItXSi alter.; Uiis rule so far as relate» to inquiry into the right oí a Chinese person to be In the United States,</p> <p>4. UVTDKNOB — PASHÜVfiKS UlST.</p> <p>iSvidenco of tho contents of is. ship list of CMuese puBsengerg is inailxn*rcdl>le unless the list Is shown to be authoritative, and a certified copy produced.</p> <p>3. CowvitottowaIi Law — Iíub Prociív, irannif IHcoivio;'. Acts.</p> <p>Under the Chinese exclusion acts, duo protiot-.y of law requires that tho United States, when prosecuting;, should chow that ilio defendant is unlawfully in this country, and not that ho should show a. right to be Lore.</p>

<p>In Equity. Suit by Henry Loewer and George Schelter against 0. P. Ford & Co. for the infringement of a patent.</p>

<p>In Equity. Suit by the Electric Gaslighting Company and other# against Charles E. Fuller and others for infringement of a patent.</p>

<p>Patents for Inventions — Limitation of Claims — Oar Couplers.</p> <p>Letters patent No. 337,780, issued to Charles Mueller, March 9, 1886, for an improvement in car couplings, was for an improvement in that class of drawheads in which the strain is received upon a reciprocating plate held in place by a spring, the object of the invention being to strengthen those parts on which there is a great amount of friction in order to retain them in place. The claim was as follows: “In combination with the draft bars and the follower plates, the wearing plates provided with bent ends entering the draft bar, and provided with slots or openings, and the lugs provided with tenons entering the slots in the plates, and the bolts passing through the said lugs, wearing plates, and draft bars.” Beldi that the patent, to be valid, must be strictly limited to the combination described in the claim, and is not infringed by a device wherein the plates are bent in towards the center of the car, and do not enter the draft bar.</p>

In Equity. Bill by Charles Seybold against William EL Christie to obtain the issue to complainant' of letters patent which had been refused after a decision against Mm on an interference. A decree was entered for complainant. Respondent appeals.

<p>1. Patents for Inventions — Construction of Claim — Combination.</p> <p>Letters patent No. 321,833, issued July 7, 1S85, to Cornelius E. Masten, for a firecracker, covers, in claim 1, the match, B, the fuse, 0, in combination with the solid plug, D, and body, A, substantially as set forth. The specification makes no reference to the prior state of the art, and merely states that the invention produces “a more desirable article” “than is now in ordinary use,” without particularizing the points constituting the improvement. Held, that the presumption of novelty. applies to the combination as a whole, and, in the absence of evidence as to the prior state of the art the court has no power to declare that the match, B, or its equivalent was not essential, and to hold that a like cracker, with a continur ous fuse, is an infringement. 51 Fed. Sep. 21G, affirmed.</p> <p>2. Same.</p> <p>The use of the conjunction “and” between the words “match, B,” and “fuse, C,” does not show that the match and fuse constitute but one element, of which a continuous fuse would be the equivalent. 51 Fed. Hep. 216, affirmed.</p>

<p>Patents wo® Inventions — 'Ikfktngkmrti^-Equivaliwits—I)rasss Forms.</p> <p>Claim 1 of letters patent No. 233,239, issued October 12, 1880, to John Hall, for an improvement in dress forms, whereby they may be made more readily adjustable to the varying styles and sbscs of dresses, was for “the combination with ribs, e, of the springs, h, each pair of springs having their upper ends secured to a single rib, substantially as and for the purpose specified.” The specifications show the ribs to he divided into sections, with the two springs attached to the upper section, and spreading downward to the adjoining ribs, and expressly disclaim as new the stretchers, blocks, rests, and band, and. their operation to expand and contract the dress form at pleasure. Held, that the patent was limited to the specific device, and that the equivalent thereof was not contained in the patent of November 29, 1887, to William Hi. Knapp, having double ribs composed oí a single U-shaped ’wire, extending in an unbroken piece their entire length, and rigidly attached to a segmented waistband. 48 Fed. Rep. 113, affirmed.</p>

<p>1. Constitutional Law — Conflict of Treaty and Statute.</p> <p>When an act of congress conflicts with a prior treaty, the act controls. Steamship Co. v. Hedden, 43 Fed. Rep. 17, followed.</p> <p>2. Treaty with Norway — Jurisdiction of Consul.</p> <p>The Norwegian consul has hy treaty exclusive jurisdiction to hear and determine complaints of ill treatment of seamen shipping from an American port for a voyage on a Norwegian vessel.</p> <p>3. Same — Admiralty Courts.</p> <p>United States statutes conferring admiralty jurisdiction do not apply to claims of bad treatment suffered by an American serving as a seaman on a Norwegian vessel.</p>

<p>In Admiralty. Libel by Patrick Q’Bourke against the New 'Fork Dyewood Extract & Chemical Company for damage to a casal boat sunk by discharge from a sewer while lying at respondent’s bulkhead.</p>

<p>In Admiralty. Libel by the British & Foreign Marine Insurance Company against the Southern Pacific Company to recover freight withheld by respondent.</p>

<p>¡Hiiííting — Personal Injuries — Shifting- IIawskr of Tow--Liability of Tua.</p> <p>Libelnnt, master of a canal boat in tow of defendant tug, lost two fingere by getting them «Tight in the loop of his hawser while shifting it from Hie pore cleat to the forward bites. On conflicting evidence the court found that the shifting of the hawser by libelant was in responso to an authorized hail from tlio tug-, and that the accident vías due to the premaiure starting up of the mg. Held, that the tug was liable; bat as the evidence also indicated that. Che libelant carelessly and unnecessarily exposed bis fingers in the loop of the luiwaer while pushing it down on the bitts held, that libelant was also negligent, but should recover 0450. The ¿Max Monis, 11 Sup. Ot. Itep. 29, 137 ü. S. 1.</p>

<p>1. SniprasG — Uksatte Berth — Damages -Ltabilttit.</p> <p>i.ibelant’s schooner was berthed alongside respondent's wharf to load ice, and after the cargo was xieaily all in she began to leak badly, showing signs of a severe sixain by hanging up at the ends. It. was shown that there was a greater depth of water under her amidships than at either bow or stem, and she was aground at the ends. At the bow there was a bed of sawdust, edgings, etc., of whose existence both her captain and the respondent wore aware, but neither took any steps to investigate its extent or character, assuming that it, was soft enough for the schooner to cut into it. Respondent had, however, examined the bottom for rooks, logs, or other hard substances, and removed such as were found. Ifehl, that both the respondent and the vessel were in fault as to the unsafe berth, and libelants’ damages should be divided.</p> <p>üamb — Próxima™ Cause.</p> <p>A survey was had, and the surveyors recommended that the schooner be beached, and repaired temporarily, which was done without taking the ice out of her. The ice, softened by the water she had taken, suddenly shifted in the hold, and strained the vessel much worse than before. Held, that the unsafe berth was nevertheless the .proximate cause of this injury, and damages therefor are recoverable.</p> <p>3. Same — Measure op Damages.</p> <p>The measure of damages in such case is the cost of repairing the schooner, and not the difference betwon her vahío before and her value after the injury.</p> <p>4. Same — Costs.</p> <p>In admiralty the costs are under the control of the court, and do not necessarily follow the rule in cases at law or in equity. They may bo denied in whole or in part to the prevailing party, or even allowed to the losing party, as, in view of all the facts, seems proper.</p>

<p>In Admiralty. Libel by James MeCaldin and others against the steam tug Richard S. Gairefi to recover salvage.</p>

<p>In Admiralty. Libel by Edwin E. Millard against tbe tugs Barnegat and Montana and tbeir cargoes.</p>

<p>In Admiralty. Libel by the Gharente Steamship Company against the steamship Dupuy de Lome, her cargo and freight, to recover salvage.</p>

<p>1. Constitutional Law— Maritime Legislation — State Statutes — Municipal Law.</p> <p>■The law administered in the admiralty courts of this country embraces not merely what is peculiar to the maritime law, but also much of the mu"¡ñicipal local law, derived from the constituted order of the state, and all competent state and national legislation. What is peculiar .to the maritime law, or that which, by its interstate or international relations would be incompatible with diverse state legislation, can be changed by congress alone, which, by implication, has the general power of legislation on the maritime law. This does not exclude state legislation upon maritime subjects of a local nature, nor legislation under the police power for the preservation of life or health, not incompatible with interstate and international interests, in the absence of legislation by congress. A state statute giving damages for death by negligence, as applied to a negligent collision on navigable waters within the state, does not infringe those conditions, and is valid.</p> <p>8. Admiralty — Action for Death — State Statute.</p> <p>Ac action to recover such damages is for a tort which by its nature and locality is a maritime tort, and as such is within the ancient jurisdiction of Shis court, and equally so whether the right of action is given by state or by federal legislation. Though no lien is raised by implication, the statutory right may be enforced by an admiralty proceeding in personam. The grounds of action are not statutory, but only the right to a remedy, which it is competent for the state to enact in the absence of legislation by congress, and which, under the provisions of the limited liability acts, (Rev. St. IT. S. i§ 4288-42S5,) as interpreted by the supreme court, it in incumbent on the district court to recognize and enforce.</p> <p>8. Sams — Contributory Negligence.</p> <p>Such a suit is subject to the conditions of the state statute. Contributory negligence of the deceased will, therefore, bar recovery in this court, as in the state court.</p> <p>4 Negligence — Seaman—Suit against His Vessel — Fellow Servant.</p> <p>A‘seaman, as fellow servant, cannot recover against his own ship for damages occasioned b.v tho negligence of any of the ship's company in the details of navigation, the owners being in no personal fault</p> <p>Collision — Steam Vessels Meeting — Inspectors’ Hulks.</p> <p>A lug, with a car float alongside, bound for the Harlem river oat of tho channel of the East river between Blackwell’s island and tho Long Island shore, and a steamboat coming down between Blood rock and Hallett’s point, collided by night at a point from one to three hundred feet above the northerly end of Blackwell’s island. The vessels saw each other when 700 yards apart, being then nearly head and head. Each mistook the other’s Intention. The lights were changing, and the evidence conflicting, but neither gave any signal to the other, as required by the inspectors’ rules. lie Id that, without considering any of the oilier faults alleged, both steam vessels were in fault for their failure to signal, and that the locality made signals more than usually imperative; but that no fault was shown in tho car float.</p> <p>8. Same- -Death of Shaman — Contributory Negligence — Limit of Recovery.</p> <p>The engineer of the steamboat jumped for the car float at the time of tho collision, but fell into the water, and was drowned, On suit by his administratrix against tho owners oC both vessels, it was claimed that such attempt to jump was negligence contributory to the accident, and that libelant could not recover. Held, that if such attempt to jump was an error, it was, under the circumstances, analogous to an error in extremis, Xoi* which he was not to blame. Both steam vessels having been found in fault for the collision, held, that libelant could not recover from the vessel on which her intestate had been employed, by reason of Ms relation of fellow servant wilh those whose negligence had caused the collision; that the liability oí the other vessel in collision, was not thereby to be mereased, but was limited to cue half the damages.</p>

<p>In Admiralty. Cross libels for collision. Libel by cargo owner for damage to cargo occasioned by collision.</p>

<p>In Admiralty. Libel by William Law and others against tbe steamship Trave for collision.</p>

<p>1. Towage — Negligence of Tow — Dredge.</p> <p>A tug with two scows and a dredge in tow left Au Sable, Mich., at 9 B. M., to cross Saginaw 'bay, there about 30 miles wide. At the time there was little or no breeze. At 11.30, when about halfway over, the captain of the dredge hailed the tug, and asked if it would not be better to turn back, but the tug’s captain thought it as well to go on. At this time there was a little sea on, but not of such a character as to indicate danger to the dredge. Between 1 and 2 o’clock the heavy crane and dipper of the dredge broke their chain fastenings, and rolled from side to side. The tug hauled up into the wind, and in about an hour the crane was secured. At 3 o’clock the dredge suddenly sank. She was not well shaped to withstand any sea at all, and the weight of evidence tended to show that her sinking resulted from the straining of her bottom caused by the swinging of the crane. The chains holding the crane were three sixteenths of an inch in size. Neither sea nor wind was heavy at any time during the night Held, that the sinking of the dredge was due to her unseaworthy condition, and the insecure fastening of the crane, and that the tug was not at fault in not turning back at the first hail.</p> <p>% Same — Burden of Proof.</p> <p>The burden was on the owners of the dredge to show that the sinking was due to the negligence of the tug.</p>

In. Admiralty. Libels Hied respectively by Petes? Teuton aa/t .Alfred DercndorfE against the tug Robert Kobinson and. Bcow No. 5, and ¡be tog Fanny 1». Bkeer, io recover damages for a collision. Beerees against both tugs, but dismissing the libels as to the scow,.

<p>Collision with Bulkhead — Moving Vessel prom Berth — Necessity por Caution.</p> <p>The steamboat E. was moored alongside a bulkhead in Gowanus creek, and outside of and moored to her was libelants’ canal boat A. The steam lighter L. R.,. desirous of reaching her berth, which the E. was occupying, put her bow against the stem of the E., and pushed her forward; libelants’ canal boat accompanying her. The forward motion, however, parted the canal boat’s stem line to the E., and when the latter was checked the canal boat ran ahead, and into the bulkhead, receiving injuries from which she sank. The claimants denied that the canal boat struck the dock at ail, and averred that the accident mnst have been caused by a floating log. .Eeld, that the weight of evidence sustained the libelants’ contention, and that, while the L. R. had the right to move the canal boat in order to reach her berth, she was hound to do so in a way to avoid accident, and was liable for her failure to use reasonable precautions.</p>

<p>At Law. Action by Thomas B. Walker and Healey G. Akeiey against Benjamin B. JBicliarda, Azro T. Crossly, and others. Heard on motion to remand to state court.</p>

<p>1. Appeal-Transcript- -Authentication.</p> <p>Rulo 14 of the circuit court of appeals for the fifth circuit requires “a true copy of the record, bill of exceptions, assignment of errors, and all proceedings in the cane” (47 Fed. Hep. vli.) to he sent up on appeal. Udii, Than an authentication siaiiug ‘‘that the foregoing is a true, fnü, and complete Inraseript of all the papers, orders, and decrees from the flies and records oí my office” is sufficient, but, to be strictly accurate, the authentication should follow the long nag® of the rule.</p> <p>So "Railroad Companies -Bonds an» Mortgages— Fokkolosure — Collusion.</p> <p>Whore a railroad company is sued by a few minority stockholders, and a receiver is asked, which suit is opposed by a great majority of stockholders, it is perfectly proxies for ilie mortgage bondholders, upon default in the payment of their bonds, to institute a foreclosure suit, and have a receiver appointed, and thus to control any litigation which might withdraw from the corporation the mortgaged property; and it is not fraudulent or collusive for the officers of the coiporattoa to admit the (.rath of the allegations of the bondholders’ bill.</p> <p>8. Appeal to Circuit Court of Appeals — Interlocutory Order — Injunction.</p> <p>Where, on the motion of an intervener, the proceedings in an equity ease in the United Stares eirenit court are stayed, and a receivership vacated until the Xui-ther order of the court, this is an interlocutory order graining an injunction, within the meaning of section 7 of the act of March 8, 1891, which allows an appeal in such case to the circuit court of appeals.</p> <p>A Sams — Intervertios—Stay of Proceedings.</p> <p>A stockholder who has brought salt against the corporation, asking to have a receiver appointed, cannot, by intervening in a subsequent suiic by the mortgage bondholders asking a foreclosure and the appointment oí a receiver, have such suit stayed until the stockholders’ suit is iiist determined, unless rhe case it: an extraordinary one, and such a proceeding is justified within sound judicial discretion.</p>

<p>In Equitv. Suit by the Pullman’s Palace-Oar Company against the Missouri, Kansas & Texas Railway Company, the Missouri Pacific Railway Company, the International & Great Northern Railroad Company, and the St. Louis, Iron Mountain & Southern Railway Company to enjoin the Missouri, Kansas & Texas Railway Company from using, on its line of railroad, sleeping or drawing-room -cars belonging to any person or corporation other than the plaintiff. ■On motion for a preliminary injunction.</p>

<p>1- Executory Process — Surrender of Property by Insolvent.</p> <p>If the surrender of an insolvent defendant’s property to Ms creditors has been accepted by the Louisiana insolvent court, executory process cannot he issued against it by a federal court thereafter.</p> <p>2. Same — Mortgaged Property — Pact de non Alienando.</p> <p>A mortgagor made a surrender of his property to Ms creditors under the insolvent laws, which was accepted. Five days later, and before the syndic had taken possession of the mortgaged realty, the mortgagee, whoso mortgage contained a pact de non alienando, issued what is known as “executory process” from a federal court, and the marshal took the mortgaged property into Ms possession. Held that, as the mortgagee cannot seize the property after a cessio bonorum of the mortgagor under the law of Louisiana, the enforcement of the executory process must he restrained, notwithstanding the pact de non alienando.</p> <p>8. Aliens — Contracts Relative to Real Estate.</p> <p>An alien who has long been a resident of a state, and is a resident at the time of mailing a contract relative to real estate situated witMn the state, is, so far as relates to such contract, subject to the laws of the state in the same manner as its citizens are.</p>

<p>In Equity. Petition by Waterhouse and others, styling themselves the “Committee of Adjustment of the Brotherhood of Locomotive Engineers,” against EL M. Comer, receiver of the Central Bailroad & Banking Company of Georgia, asking that the receiver be directed to make a contract with the locomotive engineers.</p>

<p>In Equity. Suit by Susan B. Sowles against Wellington B. Withers and Chester W. Witters, receiver of the First National Bank of St. Albans, to remove a clond on plaintiff’s title to land.</p>

<p>Quibtino Title — Whew Suit Lies.</p> <p>One who has purchased land at execution sale under a void Judgment obtained by him collusively with the defendant for the purpose of defeating the rights of a prior attaching creditor, cannot, by joining with him defendant’s husband, subject to -whose alleged marital rights the sale was made, entitle himself to maintain a bill to remove the cloud created by the sale under such prior attachment.</p>

<p>1. Homestead — Designation-- -Contiguous Tracts — Incumbrances.</p> <p>A husband and wife owned and lived with their family upon, and used as one tract, three tracts of hind containing 133, 280, and 5 acres, respectively, all adjoining. The 133-acre and the 5-acre tracts constituted, with u small parcel of the 280 acres, between them a continuous body of land. They also owned a tract of 59.82 acres in the same county, bat at a distance of three fourths of a mile from the land on which they lived. Tilt; husband made a written designation of the 183-acre, Uie 5-acre, and 59.82-aere tracts as his homestead; the 280-acro tract being, at the time, under a mortgage. Held, that under the Texas statute the designation was effectual as to the 133-acre and the 5-acre tracts, and that, a deed of trust thereof was invalid; but that it was ineffectual as to the 59.82 acres, and that a deed of trust thereof was valid.</p> <p>8. Same — Mortgage—Estoppel by Representations.</p> <p>Representations under oath, made by husband and wife for the purpose of obtaining a loan upon the security of their homestead lands, that"the lands are not their homestead, but that other lands therein specified are. do not estop them from claiming their homestead exemption under the Texas statute, such represen rat ions being contrary to the visible and actual facts.</p> <p>8. Same — Colorable Transfer to Tbtkd Party — Mortgage — Subrogation.</p> <p>A husband and wife conveyed their homestead to a third party by general warranty deed for an expressed substantial consideration. The grantee borrowed money on the security of the lands. The agent of the lander knew that the conveyance to the borrower was only colorable; that the real interest in the land remained in the grantors, and that they continued to occupy the land as their homestead. The lands wore reconveyed, and themiiier the husband and wife, by false representations that the lands were not their home,stead, borrowed money upon them, a part of which the lender, at their request, applied in payment of the first loan. Held that, although the deed of trust to secure the latter loan was invalid, the lender was entitled to be subrogated to the debt and lien of the first lender, and that the knowledge of the agent of the latter was not imputable to the former, as the payment of the first loan had been made by the second lender at the request of the owners of the homestead, and in ignorance of the facts as to the colorable conveyance.</p>

In Equity. Suit by Sarah Hershberger and John B. Hershberger, her husband, against Edward Blewett and wife. Plaintiffs move, after issue joined, to dismiss without prejudice.

la Equity. Bill by the Manhattan Trust Company against the Dayton Natural Gas Company. Heard on exceptions to the answers of the plaintiff and others to an-intervening petition filed by the city of Dayton, Ohio.

<p>In Equity. Bill by Frederick W. 'Bound against the South Carolina- Itoilway Company and others to foreclose a mortgage. Motion to postpone sale granted. For the history of fids litiga!ion, see prior reports: 46 Fed. Rep. 315; 47 Fed. Rep. 30; 50 Fed. Rep. 312 and 853 ; 51 Fed. Rep. 58.</p>

<p>Appeal from tlie Circuit Court of the United States for the Western District of Virginia.</p> <p>In Equity. Suit by the Leicester Piano Company against ike Front Royal & Biverton Improvement Company for specific performance. There was a decree for defendant, and plaintiff appeals.</p>

<p>la Equity. Bill to enjoin the collection of a tax alleged to have been illegally assessed again at the Pullman's Palace-Gar Company, of Illinois.</p>

Suit for mandamus, brought by T. M. Gares against the Northwest National Building, Loan & Investment Association, to compel defendant to hold a stockholders’ meeting for the election o£ d board of directors. Defendant demurs.

<p>L Death by Wrongful Act — Action by Appointee of Ooubt — Jurisdiction.</p> <p>Act Mo. April 20, 1891, provides that a cause of action accruing by virtue of the laws of another state “may be brought in any of the courts of this state by the person or persons entitled to the proceeds of such cause of action: provided, such person or persons shall be authorized to bring such action by the laws of the state when the cause ox action accrued;” and that if the beneficiaries of such action are not allowed, by the laws of such state, to prosecute the action in their own mimes, the same may be prosecuted by a person to be appointed by the Missouri court in which the action is sought to be instituted. Held, that where a cause of action, for death by wrongful act accrued in Minnesota, by whose laws the right of action is given to the personal representative for the benefit of the widow and next of kin, an appointee of the Missouri court could not maintain an action therein; for, as the right of action was given in contravention of the common law, and was dependent alone upon the statute creating it, the right must bo taken with the limitations placed upon the remedy, and it was therefore not competent for the Missouri legislature to authorize any one to bring the suit other than the person designated by tho Minnesota laws.</p> <p>3. Same — Action by Foreign Administrator — Trustees.</p> <p>The administrator appointed in Minnesota, where the cause of action accrued, could maintain a. suit in the Missouri court, notwithstanding the general rule that an administrator cannot sue in his official capacity without taking out letters of administration In the slate where the action, is brought; for the cause of action was vested in him, not in his character of administrator, but merely as the trustee of an express trust In favor of the widow and next of kin.</p>

United States for the Southern District of Mew York. At Law. Action by John E. Palmer against Charles W. Sanders and others for malicious prosecution. "Verdict and judgment for plaintiff. Defendants allege error.

<p>?. PnoMifsosT Noras — New Note — Iluhigamtv ok Op» Nora.</p> <p>A new noto given to raise money with which to pay off a prior note, which had 'been given to obtain means whereby to prosecute an anlawi'uli tasiaess, is net a Seated by the illegality o£ the first note.</p> <p>9. Same — Bights ok Boba J?ide Pubcdtasek.</p> <p>«¡ven if such new note were Illegal, a bank discounting it in ignorance of the purpose for which it was given might enforce it without regard to such illegality.</p> <p>8. USURY — OONFUTCT OK LAWS — I’liACE OF DISCOUNT AMD PAYMENT.</p> <p>A nolo dated and signed by tho makers in Tennessee, and payable In Chicago, 111., and forwarded by them to file payees in Chicago, to bo used by the latter in raising money wherewith to pay off a prior note made by Hi© same parties, and actually used in Chicago for that purpose by discounting if at a bonk there, must be held an Illinois contract, and governed by tho laws of Illinois relating to usury.</p>

<p>At Law. Action by Samuel Brown against the Reno Electric Light & Power Company for breach of the covenants of a lease. Tried by the court without a jury.</p>

<p>At Law. Action by George W. Kidd and others against the St. Paul Fire & Marine Insurance Company. From a judgment for plaintiffs, defendant brings error.</p>

<p>1. Federal Courts — Jurisdiction—-Proof of Citizenship.</p> <p>In an action by a married woman for libel, tbe testimony of tbe plaintiff’s husband, that be bas resided at Toronto, Can., all bis life, and of tbe plaintiff, that sbe bas been married nearly six years, during winch time she bas also resided there, is sufficient to establish an averment of the complaint that the plaintiff is a British subject, and resides at Toronto, Can., especially when no objection to tbe sufficiency of tbe evidence is Interposed at tbe trial.</p> <p>8. Libel — Competency of Evidence — Harmless Error.</p> <p>In an action for libel, alleged error in allowing witnesses to answer question, “Did you know to whom tbe article related?” does not prejudice tbe defendant, even if the testimony toe incompetent, when there was practically no dispute as to the identity of the person referred to; when no evidence was introduced to show that the article could apply to any other person than the plaintiff: when the defendant permitted testimony as to facts conclusively identifying the plaintiff with the person referred to in the libel to be received without objection, and without contradicting it in any way; and when the defendant permitted the court to instruct the jury that the plaintiff was the person referred to, without excepting to the charge.</p> <p>8. Same — Hearsay Evidence — Harm less Error.</p> <p>In an action for libel in publishing the statement that the plaintiff, a married woman, had eloped with ¡1 person not her husband, the reception of hearsay testimony of the plaintiff that her husband made an arrangement with her companion that lie should accompany her on a journey is not ground for reversal, when it appears that the husband subsequently test hied, of his own knowledge, without objection, to the same arrangement, and his testimony ivas not disputed or controverted by other proof.</p> <p>4 Game — Evidence—Burrs against Other Newspapers.</p> <p>In an action for publishing a libel in a newspaper, testimony that the plaintiff has also commenced suits against other newspapers for the publication of other similar libels in irrelevant and immaterial, and is properly excluded.</p> <p>5. Same — Evidence—'W rttkr of Article..</p> <p>In an action against a newspaper for libel, In which it is conceded that the defendant did not write the libelous article, but received it in the regular course ox business from a news agency on which it was in the habit ox relying for accuracy, and published the article relying on the source whence it came, the exclusion of evidence as to who wrote the article does not prejudice the defendant, when the court, instructs lia jury that the source from which the defendant received the article may be considered in mitigation of the defendant's act, and that the plaintiff has not proved actual malice or personal ill will.</p> <p>C. Same —Imit.ied Malice — Instructions to Just.</p> <p>In an action for libel, oven if there bo no evidence of actual malice, it is not error to instruct ibc jury that the law implies malice, when the court also correctly states the distinction between actual and implied malice, and the rule of law to be applied in casos whore actual malice or personal ill will is not shown, and also expressly charges that the plaintiff has not proved personal ill will.</p> <p>7. Same— Instructions — Opinion of Court on tub Facts.</p> <p>A federal court may. in submitting a case to the jury, express it» opinion on the facts, fuel it is not error, in an action by a. married woman for libel, for the court xo charge that, the libel complained of is “a sensational statement of the plaintiff’s disgrace,” or that It charged “an act of the greatest dishonor to a wife," or that “it was calculated to cause great injury to her reputation,” and was a ‘'most damaging article,” when the libelous article asserted, in a, sensational manner, that the plaintiff had doped with a person not her husband.</p> <p>8. Same — Instructions— Bourob of Information — Punitive Damages.</p> <p>in an action against a newspaper for publishing a libelous article received by it from a news agency, the jury are properly instructed that if they think thr<1 the fact the l the article was received, in the ordinary coarse of business, from a reliable and unusually correct news agency, is sufficient to excuse the defendant from inquiry and delay before publication, punitive damages should not, lie given, hut that, if they think that the defendant was guilty oí reprehensible negligence in publishing the article without verification of its truth, then punitive damages may be given. Morning .Toumal Ass’n v. Rutherford, 2 C. O. A. 854, 51 Fed. Rep. 518, followed.</p> <p>0. Bam® — Measure of Damage — Instructions.</p> <p>In an action for libel the jury may properly be instructed that the amount of the plaintiff’s damage cannot possibly bo arrived at by arithmetical calculation, when further instructions are given that the plaintiff is entitled to compensation for actual Injury received, and that, while the amount is in their control, the amount given should he reasonable and just. •</p> <p>10. Same — Instructions—Place of Publication.</p> <p>In an action against a newspaper for libel, the refusal of instructions that there is no proof of any publication of the libelous article in the city of the plaintiff’s home, and that the fact should he considered in fixing the damages, is not reversible error, when the court has already instructed the jury that the article was not published in that city, and that, so far as it is known, there are no people there who habitually take the paper, and it is not displayed on the nows stands.</p> <p>11. Same — Publication—Apparent Falsity.</p> <p>In an action fot libel, an instruction that, according to the testimony, the only persons who have read the libelous article are intimate friends of the plaintiff, who knew it to be untrue, is properly refused, when the testimony brought out on the cross-examination of a witness is inconsistent with the requested charge.</p> <p>13. Same — Actual Damage — Instructions.</p> <p>Although no special damage be shown, the law presumes injury to reputation and feelings by the publication of an article which is libelous perse,1 and, when the publication and the falsity of the article have been proved, defendant is not entitled to have the jury instructed that there is no evidence tending to show actual damage to the plaintiff by the publication of the libel.</p> <p>13, Same — Instructions—Conduct of the Press — Corporations.</p> <p>Although requested instructions that “the general conduct of the public press has nothing to do with this case,” and that, “whether a newspaper is published by a corporation or an individual, It matters not,” are correct as abstract propositions, yet the refusal to so charge is not reversible error, when there is nothing in the record to show that such instructions are material to a proper consideration of the case by the jury.</p> <p>14 New Trial — Damages—Excessive Verdict.</p> <p>When the proper rule for the computation of damages has been given to the jury, a verdict cannot be set aside as excessive} In the federal courts, upon a writ of error.</p> <p>15. Same — Appeal.</p> <p>A decision upon a' motion for a new trial is not the subject of review in a federal appellate court.</p>

At Law. Action by ¿L T. Hudson against the Charleston, Cincinnati & Chicago Railroad Company for personal injuries. As to the nature and extent of plaintiff’s employment the evidence was in conflict.

At Law. Action by H. T. Hudson against the Charleston, Cincinnati & Chicago Kailroad Company to recover damages for personal injuries. The plaintiff obtained a verdict and judgment, and the defendant tendered a bill of exceptions to be signed. Opinion by the judge, giving reasons for refusing to sign the same.

<p>Staow Servaste — Vicb PraiTOirATr — Liability of Employer.</p> <p>^ If an employe la injured by reason of the negligence of the foreman or superintendent in charge of file work, lie can only recover against the employer when the foreman or superintendent was negligent in performing duties wMch the law imposes on the master personally, and cannot recover if the foreman or superintendent was merely negligent in the performance of such work as properly pertains to a servant; as, for instance, in pounding and prying upon, a rock in a atone quarry.</p>

<p>At Law. Action by Alexander McDonald against the Press Publishing Company for libel.</p>

<p>At Law. Action by the American Exchange National Hank of New York against the Oregon Pottery Company on a promissory note. Heard on demurrer to the answer.</p>

<p>At Law. Action of ejectment by Thaddeus Hyatt against George T. Ohallis and others.</p>

<p>Post Office — Obstructing Mails — Refusal to Pay Toll.</p> <p>On indictment for obstructing the passage of the mail, the defendant, a toll-gate keeper on a gravel road, cannot justify bis act on the ground that the driver of the wagon conveying the mail refused to pay toll in advance, and that by statute (Gen. St. Ky. o. 110, § 3, subsec. 2) toll-gale keepers on gravel roads are authorized to stop persons who refuse to pay in advance from passing and using the road.</p>

<p>Interstate Rendition — Tnebactton Dischab&e — Habeas Oobbus.</p> <p>Relator was extradited from New York for larceny. lie furnished bail, and was at once rearresled on a prior charge of perjury, and was discharged by tlie federal circuit court on habeas corpus with protection, for one day, in which to return to New York. He appealed on the ground that</p> <p>'protection should have been extended during the pendency of the proceeding for larceny, which appeal was dismissed during his enlargement on bail and while ho was confined, in jail for contempt against a state court in an entirely different matter. He was then convicted in the state court of perjury, ami sentenced to the penitentiary for ten years, from which he claimed a discharge on the ground that he was convicted of the perjury pending his bail in tlio larceny proceeding. Held, that having, by his contempt of court, placed himself In a position where he could not surrender himself in discharge of Ms bail, and the state having done nothing on the indictment for perjury to prevent such surrender, he was not entitled to a discharge. ,,</p>

<p>(Jurarais Duties — “Cut” Aqatr and Ttkuii-Iíve Stones --“Precious Stones. ”</p> <p>Agate and tiger-eye otoñes, cut in parts, and ground into shapes of pen-holder handles asid other articles, and known to the trade by the names of “agate penholder handles,” “ttger-oye penholder handles,” etc., are dudable at 20 per cení, ad valorem, wider the tariff act of li!R.‘j, as non-enumerated manufactured articles, and are not admissible duty free, as “agate uninimnfaetare.il.” nor assessable at 1.0 per cent., under Schedule A, of che same act, as nondurable crude minerals which have been advanced In value by refining, grinding, or other processes, nor at 10 per cent., under Schedule N as “precious stones.” 46 Fed. Sep. 519, reversed.</p>

Sherman, Cecil & Co. protested against an assessment by the collector of the port of New York. The protest was sustained by the board of general appraisers. Their decision was reversed by the circuit' court, (49 Fed. Rep. 224,) and the protestants appeal

E. S. Higgins & Co. protested against an assessment of washed wools by the collector of the port of New York, and the board of appraisers sustained the protest. The collector appealed to the circuit court, which sustained the decision of the board, (50 Fed. Eep. 911,) and the collector appeals.

<p>Oumovs Duties — Cumumtx'vi; Dimua- -Misv’ts Fbwk-Seam Guovbs.</p> <p>The tariff not of October 1, 1890, par. 458, imposes a duty of 50 per cent, ad valorem on men’s lea ¡her gloves, and then provides that, “in addition to the above rates, there shall be paid on all men’s gloves, $1.00 per dozen; on all lined gloves, $1.00 per dozen; on all pique or prick-seum gloves, $.50 per dozen,” etc. Ueld, that these additional rales wore alternative, and not cumulaüve, and that, if the same article was included in two or more classes, it need only pay the rate applicable to iiie highest of those classes. 50 Fed. Rep. 67. affirmed.</p>

<p>1. Customs Duties — Effect o® Protest.</p> <p>When an importer protests that Mr, invoices aro dutiable under a certain paragraph oí the tariff act, Jae is not thereby concluded, so as to prevent the board of appraisers from adjudging that a part of the invoices is dutiable under that par.!graph, and a part under the classification, adopted by flic collector. Davies v. Arthur, 96 tí. 148, distinguished.</p> <p>8. Sake — Abtkw.bs m Sei’Aha.w Pasts — Invoice.</p> <p>The fact that articles in separate parts are invoiced as entireties is not controlling, and will not prevent a separate classification, when such classification, is otherwise proper. 50 Fed. Hep. 4.63, affirmed.</p> <p>S. Bamk-'-Oi,as,‘;i¥ication — EiiBJsor,shrew Dunns Pat mirks.</p> <p>Woolen dress patterns, embroidered with silk, or silk and metal, are not dutiable as woolen “embroideries,” under paragraph 398 of the tariff act of 1890, but at 44 cents per pound and 50 per cent, ad valorem, under paragraph 395, as woolen dross goods. In re Bcheior, 53 Fed. Bep. 1011, followed. 50 Fed. Bep. 465, affirmed.</p>

<p>Appeal by Importers from the Decision of the United States Board of General Appraisers affirming a decision of the collector of the Port of New York.</p>

<p>1, Patents for Inventions • - Suits pom Infringement — Suits Pounded on Contract.</p> <p>Tlie owners of certain patents granted to complainant the exclusivo riglit to make», use, and vend tlio patented machines in specified territory of the United States, and also, “so far as they could control the same, the exclusive right to make the patented machines for sale in Europe, Australia, and South America.” Thereafter the owners conveyed all iheir right in the patents to defendant, subject to the rights of the complainant, from which time complainant paid to defendant the royalties under its license. Subsequently' complainant sued defendant to restrain it from manufacturing machines under the patent, for sale in. Europe, Australia, and South America, 1-iekl, that under tho conveyance to it defendant assumed no contract relation wilh complainant, and'therejiJ.’ter the suit was not founded upon the contract, but was an ordinary suit, for infringement of a patent.</p> <p>S. Bamk —Jurisdiction of Federal Court,1v-Districts.</p> <p>In a suit in which the jurisdiction of the circuit court is founded wholly or partly upon the patent laws of the United States, a corporation organized under the laws of another state cannot be sued in a. state whore it does business by a citizen of ¡» third state, Shaw v. Mining Go., 12 Sun. Ct. Rep. 035, ¡Ai IT. S. 41-1, followed.</p>

<p>1. Patents for Inventions — Infringement Suits — Parties.</p> <p>A licensee may prosecute in his own name suit for infringement of a patent where the defendant is the owner of the legal title to the patent; citing Littlefield v. Perry, 21 Wail. 205.</p> <p>á. Contract — Construction of — Ambiguity.</p> <p>It is only a latent ambiguity, which may he explained by evidence aliunde. Doubts apparent upon the face of an instrument must be resolved by the court, resorting, if necessary, to the rule that a grant expressed in doubtful words shall be construed most strongly against the grantor.</p> <p>8. Patents for Inventions — License for Sale in Foreign Countries.</p> <p>In addition to the grant of an exclusive license to manufacture and sail in certain specified parts of the United States, the license in this case contained the following clause: “And, so far as we can control the same, the exclusive right to build harvesters and hinders, under the rights herein granted, for sale in Europe, Australia, and South America.” Held that, fairly and reasonably construed, this language conferred upon the licensee an exclusive right to mannfaciare within the United States, for sale in the foreign countries named, and hence that an injunction should issue against the parties manufacturing in the United States outside the territorial limits covered by the license to restrain them from manufacturing' for such foreign trade.</p> <p>4. Injunctions Ordered.</p> <p>Xn ¡'Ms case the court finds that complainant is entitled to a preliminary injunction to restrain infringement of 18 patents issued to James It. Severance for improvements in harvesters and binders.</p>

In Equity. These were two suits by the Lalance & Grosjeam Manufacturing Company against the Haberman Manufacturing Company and Julius E. Mosheim, respectively, for the infringement of a patent. There, were decrees for complainant in each case, and defendants appeal.

At Law. Action by Allen Russell against the Newark Machine Company and others to recover the penalties prescribed by Eev. 8t. § 4901, forbidding the wrongful marking of articles as patented.

<p>In Equity. Bill to restrain infringement of patent.</p>

This was an action by Joseph F. De Loriea and Griffin Place, as executors of James W. McDonald, against Reuben. Arey and George H. Maddock, partners doing; business under the name of Arey, Haddock Sr. Locke, for damages for the infringement of letters patent No. 210,797, issued December 10, 1878, to said McDonald, for a machine for unliairing and scouring hides and siting.

<p>In Admiralty. Libel for demurrage and for extra compensation for handling freight.</p>

In Admiralty. Libel in rem, against the schooner Governor Ames, by John Paulson, a seaman, to recover damages for a personal injury suffered while stowing cargo. Decree that libelant recover the amount of wages which he would have earned by completing the voyage for which he had engaged to serve.

In Admiralty. ’Libel In rera by shippers to recover damages itor breach, of charier party in that the master, before signing bills of lading, wMch he claimed viere Incorrect, indorsed on them that -* certain amount of cargo was in dispute. The shippers accepted the bills under protest, and then libeled the vessel.

<p>Shipping — Personal Injuries — Defective Appliances — Contributory Neg LIGENCE.</p> <p>A vessel is liable for maintaining defective and unsafe appliances, but an. employe who knew of such defect, but failed to use additional care, is not entitled to full damages in case of injury.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>In Admiralty. Libel by Briody against the steamship Persian Monarch for personal injuries. There was a decree for libelant, (49 Eed. Bep. 669,) and the libelee appealed.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>In Admiralty. Libel by Winfred S. Pendleton and others against the steam propeller Martin KalMeisch and B. Frank Coe. respondents. The libel was dismissed below without an opinion,, and libelants appeal.</p>

<p>Collision — Burden of Proof — Evidence.</p> <p>As the burden, in a collision case, is on the libelant to show that his adversary was in fault, the libel is properly dismissed when the court is convinced that the stories told by the principal witnesses on each side are both intentionally false.</p>

<p>In Admiralty. Libel by the Powelton Barge Company against the steamboat Express and the steam tug Abram P. Skidmore for collision.</p>

In Admiralty. Suit to recover damages caused by collision. The court below dismissed the libel. See 48 Fed. Bep. 844, where the came will be found stated in full in the opinion of BSOWN, district judge.

In Admiralty. Libel by Warren Low against the schooner Mary Augusta, her tackle, etc., and cross libel by Joseph M. Higgins and another against Warren Low.

In Admiralty. Libel by the New York Dredging Company and others against the steamship Norge. The district court dismissed the libel without filing any opinion. Libelant appeals.

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

In Equity. Bill by Daniel W. Ladd against James Gk West and William P. Bannigan, partners doing business as the Epplng Brick Company, for injunction and other relief. Heard on motion to remand to the state court from which, it was removed.

<p>1. Injunction — Adequate Remedy at Law — Transfer of Securities.</p> <p>Complainant alleged that he had deposited his note and stock, as col-laterals, representing a (.controlling interest in a corporation, in the hands of a third person, to be delivered to defendant upon its performance of certain things, and that defendant had wrongfully gotten possession of the note and stock before such performance, and was about to dispose thereof. Held, that a prayer for an injunction was properly granted, there being no adequate remedy at law in case of a sale of the stock to an innocent purchaser, nor could the loss of the controlling interest be properly measured in damages. Wallace, J., dissenting.</p> <p>■ 2. Same — Remedy by Replevin.</p> <p>In such case, also, he could maintain no action to recover the stock without tendering the money for which it was pledged, which would not be an adequate remedy, since he was entitled to hold defendant to its agreement without himself assuming any greater burden than he originally undertook. Wallace, J., dissenting.</p> <p>3. Action against National Bank — Injunction — Jurisdiction of Circuit Court.</p> <p>Rev. St. U. S. § 5242, providing that no injunctions shall issue from a state court against a national hank before final judgment, does not deprive the federal circuit court of power to issue such an injunction, or to continue, after removal of the case, an injunction previously granted by a state court Bank v. Mixter, 8 Sup. Ct. Rep. 718, 124 U. S. 721, distinguished.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Alabama.</p> <p>In Equity. Bill by A. L. Sayles and others — some of them as stockholders and bondholders and others as bondholders only, in the Et. Payne Coal & Iron Company — against the said company, the Old Colony Trust Company of Massachusetts, A. B. Green, A. J. Butler, the Citizens’ Bank & Trust Company, and G. N. Hensen, praying that a receiver he appointed for the Et. Payne Coal & Iron Company, and that the respondents be enjoined from disposing of the assets of said company. Temporary injunctions were granted, and a temporary receiver appointed. Demurrers were overruled, and a decree entered for complainants, making the receivership permanent, and continuing the injunction against the Ft. Payne Coal & Iron Company, which now prosecutes this appeal. Affirmed.</p> <p>Complainants are citizens of Massachusetts and other states, and the respondent Et. Payne Company, a corporation organized under the laws of Alabama, and engaged in the business of developing the coal and iron resources of De Kalb county, in that state, and in building and developing the town of Et. Payne. The company was organized November 22, 1888, with a capital stock of $5,000,000, (50,000 shares, at $100 each,) of which 40,QOO shares were subscribed and paid for chiefly in New England at $25 a share, the other 10,000 shares being reserved in the treasury of the company. The bill charges that financial difficulties forced the company to market the greater part of the reserved 10,000 shares at $37 per share; that this did not afford sufficient relief, and in order to raise more money a mortgage on all the property of the Et. Payne Company was given to the Old Colony Trust Company, respondent, a corporation organized under the laws of Massachusetts to secure an issue of $300,000 of bonds, whereof $212,000 worth were sold at or near par, and the rest hypothecated for debts; that valuable properties of the company had been disposed of at ruinous rates to meet debts of the company; that the real estate had been sold for taxes; that default had been made upon the interest of the bonds; that the price of the stock was depressed to $1.50 a share; that at a meeting where W. P. Rice held a majority of the proxies, few stockholders being present, it was voted to issue $1,000,000 in bonds; that the complainant stockholders were liable under the laws of Alabama for $75 unpaid subscriptions on each share; that the Old Colony Trust Company had brought no suit to foreclose the mortgage made to securo the principal and interest of the bonds; that the management was wasteful and extravagant, and entirely controlled by W. P. Rice, the president.</p>

<p>At jIjp.yis Action by the Tróvele"^ Lismranee Company agaixiüí. Sic ixiwiibiiijd of Olwego upon cttupoiis of certain refimdlng bonds. •Lb ileiPhsK'!* to petition.</p>

At Law. Action by Alfred Vallance against the Boston & Albany Railroad Company to recover damages for personal injuries. Verdict and judgment for plaintiff. .Heard on motion for new trial.

<p>1. Appeal — Decision—Pleas—Trial by Court — Absence op Findings.</p> <p>Where, in an action tried by the court without a jury under Rey. St. § 700, the court overrules demurrers to a number of pleas, but makes no special finding of facts, for which reason it is impossible to determine whether any particular plea which may have been erroneously sustained was not relied on in giving judgment, it will be necessary to reverse the judgment if any one of the pleas is found to have been, erroneously sustained.</p> <p>£. Same — Trial by Court — Rulings on Evidence.</p> <p>In an action at law, tried by the court without a jury, there is not the same necessity for nice distinctions in rulings upon the admission of evidence as when such evidence goes to a jury, for the same judicial mind which would exclude improper evidence from the jury can disregard it in considering the case; and hence, when there appears sufficient legal evidence to justify the conclusions reached, an appellate court will not reverse the judgment, although certain irrelevant evidence was heard, and was not positively excluded by order.</p> <p>3. Pleading — Construction op Pleas — Verification.</p> <p>A plea averring that plainliff “is not the owner in either or any of the capacities in which he sues’’ of the certificates of stock in question, or any right or interest therein authorizing him to recover thereon or to maintain tie suit, does not deny plaintiff's right to sue on account of personal incapacity, but on account of his lack of property in the certificates: nor does it deny the execution or genuineness of any document or its indorsement; and such plea therefore does not come within the provisions of Rev. St. Tex. 1879, requiring verification by affidavit.</p> <p>A Corporations — Stockholder’s Action for Refusal to Transfer Stock-Defenses.</p> <p>In an action against a corporation to recover damages for its refusal to transfer on. Its books certain shares of its stock, it is no defense that plaintiff acquired the same from a prior holder by means of an illegal gambling contract when there is no showing that the prior holder ever repudiated the transaction, or made any claim on the company for the stock.</p> <p>5. Same.</p> <p>It is no defense to such a suit that the certificates of stock are held by plaintiff as collateral socially for a debt which, is barred by the statute of limitations, for stock so held is a pledge, and not a mortgage, and the right to the statutory bar is a privilege purely personal to the debtor.</p>

<p>1. Schools and School Districts — Teachers’ Contracts — Duration.</p> <p>In the absence of statutory limitations, a school district can enter into a contract of employment with a teacher for the period of two scholastic years, though such contract extends beyond the term for which some of the directors were elected.</p> <p>2. Same — Compensation—Certainty.</p> <p>Such contract is not void for uncertainty where the stipulation for the teacher’s compensation provides that he shall receive the same salary for his services as was established at that date for libe services by the school district within which the city of Portland Is situated.</p>

<p>1 OljAMíi WAINS'!’ TUI! UNITED STATE",- -CJoM.VKS'SONKBte B'iSHS- -AFFIXING SEAL, Bov. St. § 1014, requires the process issued by a United States commissioner to bo the same that issued against offenders under the state law by examining magistrates, in Tennessee the Goal of the magistrate is necessary to validate the process. Bov. St. § 828, allows clerks for issuing and entering every process, with certain exceptions, $1, and a further allowance of 20 cents for affixing the seal of the court to any instrument, when required. Rev. St. § 847, allows commissioners the same fee as is allowed the clerks for like services. Held, that the allowance of 20 cents applies only to those instruments for which specific provisions are not made, and that a commissioner in Tennessee is not entitled to such fee for affixing bis seal to warrants, writs of mittimus, etc., issued by him upon preliminary examinations, since such action is a necessary part of the issuance of the process, and is paid for by the fee for the process. 47 Fed. Rep. 791, reversed.</p> <p>Z Same — Statutes—Construction.</p> <p>Where a statute allowing an officer’s compensation admits of two interpretations, the words should be construed strictly in favor of the United States, and not liberally in favor of the officer. 40 Fed. liep. 813, disapproved.</p>

<p>1. Federal Courts — -Circuit Court — Jurisdiction—Habeas Corpus — United States Commissioner.</p> <p>On a writ of habeas corpus, in behalf of one committed by a United States commissioner to the custody of the marshal to await action of the executive on demand of a foreign government for his extradition on the charge of forgery, the circuit court can inquire only as to the jurisdiction of the commissioner over the subject-matter, and whether there was legal ■evidence before him, supporting the judgment.</p> <p>2. Extradition — Proceedings—Necessity or Requisition.</p> <p>The initiative of proceedings for the extradition of an alleged criminal does not necessarily rest on a demand or requisition by the foreign government upon our government; but such proceedings may be commenced by the arrest of the person charged, under a warrant issued by a United States commissioner on complaint of a foreign consul. In re Koine, 14 How. 103; Benson v. McMahon, 8 Sup. Ot. Rep. 1240, 127 U. S. 457, — followed.</p> <p>3. Forgery — Uttering Forged Paper — Treaty.</p> <p>The crime of uttering forged papers is included in the common-law definition of forgery, and in the term ‘'forgery” as used in the treaty between Austria-Hungary and the United States.</p> <p>4 Same — Fraud by Means or Forgery.</p> <p>The term “forgery,” as used in the treaty, should have, so far as our government is concerned, its common-law definition, which includes forgery of commercial paper, though the crime of forgery, as known to the law of Austria-Hungary, comprehends the falsification of public obligations, and though the crime of forging commercial paper, charged against the prisoner, is there classified as “fraud by means of forgery.”</p> <p>5. Extradition — Pleading—Complaint by Foreign Consul.</p> <p>Where the complaint states that complainant is the duly-accredited official agent of the foreign government, it is not necessary that a consplaingnt should swear positively in the jurat that he is consul.</p> <p>Q. Same.</p> <p>The complaint, to give jurisdiction, need not have the precision and particularity of an indictment, hut should set forth the substantial and material features of the offense, so that the court can see that the particular crime charged is one enumerated in the treaty.</p> <p>7. Same — Warrant.</p> <p>A warrant charging the prisoner with forgery and uttering forged paper is not objectionable as charging two offenses, since both are comprehended within tlie crime of forgery at common law.</p>

<p>At Law. Indictment for obstructing the United States mails.</p>

At Law. Application to the circuit court by Blumlein & Co., importers, under the provisions of section 15 of the act of congress ■of June 10, 1890, entitled “An act to simplify the laws in relation to the collection of the revenues,” for a review of the decision of the hoard of United States general appraisers at the port of New York affirming the decision of the collector in the classification for •duty of certain Sumatra leaf tobacco entered at said port by the importers…

<p>In Error to the Circuit Court of the United States for the District of Connecticut.</p> <p>At Law. Action by Charles Soby against Charles C. I-Iubbard, collector of customs at the port of Hartford, to recover duties paid under protest on certain importations of tobacco. There was judgment for plaintiff. 49 Fed. Rep. 234. Defendant sued out a writ of error to the supreme court of the United1 States which was dismissed for want of jurisdiction. 13 Sup. Ct. Rep. 13. He now brings the case to this court.</p>

<p>Customs Duties — Entry below Value — Action nor Penalty.</p> <p>One who is assessed with a penalty for entering dutiable goods at a sum below their actual value cannot, in an action for the penalty, defend on the ground that he intentionally omitted certain items from the entry In order to pay them separately under protest. He must either give notice, and ask for a reappraisement, or take an appeal, as provided by law. Act June 10, 1S90, §§ 13, 14; 2 Supp. Rev. St 750.</p>

I» Fquity. This was a 'bill by the l)ix<ra-Woqd» Company .'igninsi Pfeifer for ih« infringement of letters patent No. 258,15(5, issued May 1(5, 1882, to Cleon Tondeur, fox* an improvement in glassaxmeít.ling furnaces. There was a decree for complainant, (51 Fed. Rep. 292,) and defendant appeals.

In Equity. Bill by the Dixon-Woods Company against the Syracuse Glass Company for infringement of a patent. There was a decree for complainant, and defendant appeals.

<p>Í. Patents for Inventions — Validity—Invention—Mantels.</p> <p>Design patent No. 19,872, issued June 3,1890, to W. Anderson, for a design for mantels, is valid, as showing invention, inasmuch as the elements, though old, are combined in a new and harmonious design, which presents a different impression to the eye from anything that preceded it.</p> <p>2. Same — Infringement—Defense—Abandonment.</p> <p>In a. suit for infringement of a patent, whore the defense is public sale and the use of the patented device more than two years before the patent was applied for, the burden of proof is on the defendant; and the defense is not sustained by evidence which leaves in doubt the identity of an exhibit which embodies the device, and is alleged to have been so sold.</p>

<p>1. PATENT3 FOB INVENTIONS — ABANDONMENT—PlIIOB SALE.</p> <p>In a suit for infringement of a patent, to sustain the defense that the device was exposed for sale more than two years before the patent was applied for, defendant offered evidence that an exhibit embodying that device was sold by bim for the patentee at such a time, but the testimony as to the identity of the exhibit was conjectural, merely. On the other hand, there was direct evidence that this exhibit, after being offered to a purchaser who did not find it satisfactory, was stored at such witness’ place of business, and was not sold until less than two years before application was made for the patent. Held, that the evidence was not sufficient to sustain the defense.</p> <p>8. Same — Infringement of Design — Mantels.</p> <p>Design patent No. 19,873, issued dime 3, 1890, to William Anderson,, was for a mantel in which the essential features were — First, a transverse groove giving the plain face of the pilaster the appearance of a finisiied and distinct base; second, the raised and rosetted caps at the top, which give the distinctive appearance of a cax>itai to the pilaster; third, a reeded frieze, which served, in appearance, to bind the pilasters. Held, that liiis is infringed by mantels made in accordance with design patent No. 21,155, issued November 10, 1891, to Edward T. Germain, inasmuch as the latter embodies the same distinctive features, and, while changing nonessential details, retains the general appearance of the Anderson mantel.</p> <p>S. Same — Injunction—Faiiuke to Mark Device.</p> <p>Where the infringement is shown, the failure of the patentee to marir. the devices “Patented,” with the date of the patent, will not affect his right to an injunction, whatever may be its bearing on the question of damages.</p>

<p>Pvrsjras tok An 'ctio:.-’ — Abandonment— Maxtbus.</p> <p>Id a suit for the infringement of design patent No. 19,876, issued June 3, J89Ü, to W. Anderson, for a design for mantels, the defense was that the patented device had been sold publicly, and used, more than two years before the patent was applied for. It was shown that a witness had received a. consignment of mantels from the patentee more than two years before the application, and another consignment within the two years. Defendant’s own evidence was conflicting, as to whether the exhibit produced, and embodying the patented device, was received in the first consignment, oi the second. Plaintiff introduced express evidence that it w.‘i« sent in the second consignment, and’the exhibit itself was marked with a stencil which, it was shown was not in. use until after the first consignment was made. Bcld, that the evidence was not sufficient to sustain the defense.</p>

<p>Patents fob Inventiokf. — Ab-wdoismEnt—Mínteos.</p> <p>in a suit for the infringement of design patent No. 19,877, issued June 8, 1890, to W. Anderson, for a design. for mantels, the defense was public sale and use more than two years before the patent was applied for. It was ssliown that one witness bad received articles embodying the patented device from the patentee at such time, and the order, receipt, and accounts of the parties showed that the transaction was a simple sale. Complainant and Ills traveling salesman testified that the articles were only shipped to the witness as sample», and the sale was not consummated until after-wards, and within the two years. IfeM that, as four years had elapsed since the transaction took place, hie written evidence is moro satisfactory than, the verbal testimony, and the defense is sustained.</p>

<p>.Eaten'.'s von Inventions— Tni-'iungbment — Orb Cbushkk.</p> <p>The first claim of reissue patent No. 3,633, granted to -I. W. Rutter, September 7, 3868, for an ore mill, covers “the cone, B. ’on the arbor, I>, when sustained an<! v*pora1eil ii> such maimer as to swing in a conical orbit around the axis of its surrounding cylinder, without, rotating around said arbor, substantially as set forth.” Held, that the essence of this invention consists in making Hie cone fixed, so as not to revolve on its own axis or arbor, but to swing in ;t conical orbit without turning, and so produce a grinding or nibbing action; and this claim is not infringed by a madiine having a similar cone which revolves on it-; own axis.</p>

<p>1. Seamen — Deserters—Penalty for Harboring — Evidence. '</p> <p>Upon an information for harboring deserting seamen it appeared that defendant was apprised of the shipping contract of the seamen, and of their coming by steamer to defendant’s town for the purpose of embarking with their employer; that defendant induced them to come ashore' and disregard their contract, guarantied delivery of their baggage, kept them for some time at his boarding bouse, and, when some of them were arrested as deserters, gratuitously furnished them with legal assistance. Defendant was engaged in the business of furnishing vessels with sailors, ■ and had had trouble in that respect with the master of the vessel employing the deserters. Held, that the evidence was sufficient to show a harboring, within the meaning of Rev. St. § 4601.</p> <p>2. Same.</p> <p>The penalty of the statute being denounced against “harboring and secreting” seamen, defendant was none the less guilty because there was no concealment of his acts.</p> <p>3. Same — Parol Evidence of Employment — Shipping Articles.</p> <p>The fact that the shipping articles, having been carried to sea, were not produced to show the employment of the seamen in question, was immaterial, in view of the testimony of the seamen that they were so employed, and of the admission of the defendant that he knew they had signed the articles.</p> <p>4. Same — Procedure—Information—Waiver.</p> <p>Under Rev. St. § 4610, an information as well as an action at law will probably lie for the recovery of the penalty for harboring deserting seamen; but, even if information is not tbe proper procedure, an objection on that ground comes too late when first raised at the final hearing.</p>

In Admiralty. Libel:? by the Insurance Company of North America. and the Atlantic & Calf Wrecking Company against the Steamship Venezuela, bee cargo, etc., (.Boulton, JíIíbd & Dallett, claimant.!,) and by Israel J. Merritt and others against, tiie same de- fendtuuu From a decree in favor of libelants Merritt ami olhoru, (see £50 Fed, Kep. 607,) defendants and libelants the insurance Coootuw of North America and the Atlantic & Gulf Wrecking Cempany appeal.

<p>Appeal from the District Court of the United States for the Southern District of Hew York.</p> <p>In Admiralty. libel by John lb Hawkins against the steam, yacht Lurline to enforce a lien for repairs. William B. Wetciore, claimant. From a, decree for libelant, claimant appeals.</p>

<p>Tugs and Tows — Towing oves Bar — Grounding—Duty or Tug — Knowledge or Tow.</p> <p>A tugboat, in undertaking to tow a boat over a' bar, the conditions of which are unknown to the tow, is bound to ascertain her draught, and not attempt to tow her if the water is insufficient. But when a tow is taken as usual in a long course of dealing, the requirements of which as to draught are well known to the tow, and the master of the tug has no reason to suppose that the tow is loaded deeper than allowed, and takes her in the best water, and the tow, in consequence of her unusual draught, grounds, the tug is not liable. 49 Fed. Rep. 681, affirmed.</p>

In Admiralty. Libel by Moses M. Gould against the Boston & AiiLladelpMa Steamship Company for damages resulting from a collision between the steaintMp Parthian and the schooner Florence about 55 miles southeast from Handy Hook. There was a decree dismissing the libel, (48 Fed. Bep. 175,) and libelant appeals. At tlie time of the collision the weather was foggy, and the wind light, Mowing in a direction between iV.

<p>Appeal irons the District. Court of (he Untied Sitttea Tor the Western f Met rid, of ¿"eniisylvauia.</p> <p>jit liankniptey. In the msdier of John. Carrier and A: R LL.iíib,. bimla-uore. An oi-ilor war. made allowing the claim of !<’. G. Carrier yy creditor, (51 Led. Hep. 990,) and the ivr.ignee, Levi JTkd J)tiff, a y .• >ra la</p>

<p>L Circuit Courts — Jurisdiction—Matter in Dispute — Simulated Claim.</p> <p>In November, 1889, H. commenced suit in tbe circuit court against a county on two bonds for $1,000, and tbe interest coupons for tbe period 1880 to 1886. On demurrer it was beld tbat tbe court hud no jurisdiction, as tbe amount involved did not exceed $2,000, exclusive of interest and costs. Afterwards, but before dismissal of this cause, E. commenced suit on tbe same coupons, and also on coupons wliich matured prior to 1880. On demurrer to tbe petition in E.’s suit, it was beld that tbe statute of limitations barred tbe cause of action on tlie coupons maturing prior to 1880. Without dismissing tbat suit, E. commenced a new suit on tbe same bonds, and ail tbe coupons fro-m 1873 to 1880; and in addition thereto on seven funding bonds of tbe county for $100 each, dated October 1, 18S5, and not maturing on their face until 1905. By condition in tbe funding bonds, tbo county reserved tbe right to redeem them at any time after five years from their date, and it was provided that, if not presented within 30 days after notice by tbe county of its election to redeem, tbe bonds should cease to bear interest, and should be payable on presentment to the county treasurer. Notice to redeem was given, but tbe plaintiff did not present bis bonds for payment within 30 days. Beld, tbat it was apparent tbat suit was brought on tbe funding bonds solely for tbe purpose of increasing tbe amount in suit beyond $2,000, and, as there was no real controversy between them, tbe court bad no jurisdiction.</p> <p>2. Res Ad.judicata — Judgment on Demurrer to Petition — Statute of Limitations.</p> <p>Where judgment for tbe defendant is given on a demurrer to the petition, in an action on the coupons of county bonds, on tbe ground that tbe cause of action on tbe coupons is barred by tbe statute of limitations, such judgment is res adjudica ta between tbe parties, in a second suit on tbe bonds, in which judgment is also demanded for tbe amount of tbe coupons.</p> <p>8. Limitation of Actions — Acknowledgment of Debt — Unaccepted Offer.</p> <p>In an action on tlie coupons of county bonds, an offer by tbe county, within tbe statutory period of limitation, to compromise its bonds at a specified percentage, which was declined by tbe holders of tlie bonds in suit, although accepted by tbe holders of all of its other bonds, is not a promise to pay or an acknowledgment of tbe debt which will interrupt tbo running of tbe statute of limitations.</p>

<p>Appurtenant Easements — Subdivision of Lots — Streets—Rights of Abutting Owner.</p> <p>An owner of land between the seashore and an avenue subdivided the land, and established one of the lots as a street leading from the avenue to the water, and conveyed another of them to plaintiff’s predecessor in title, by deed which recited that the street in question should be kept open'and used only as a street for the benefit of those purchasing lots. Afterwards the executors of the owner conveyed certain of the lots in question, together with the street so dedicated, to defendant’s predecessor in title, including the right to erect a bath house upon the seashore in front of such street. Held, that the interest conveyed by the executors to defendant’s predecessor in title was previously impressed with the easement created by the owner’s subdivision and deeds, and that defendant had no right to obstruct the same by building a bath house on any part of the street in question.</p>

In Equity. Bill by George W. and Thomas W. Herbert and ©titers against W. 3. Kainey to enjoin the erection and maintenance of a nuisance. In the court below there was a decree for complainants, the opinion by Judge Acheson (which in partially adopted % the circuit court of appeato) being reported in 54 Fed. Hep. 248. Defendant appeals.

In Equity. Bill by William P. Clyde and others against the Richmond & Danville Railroad Company and others for the appointment of receivers and the administration of the property and assets of the railroad company. On petition by J. Wilcox Brown and others to he made parties complainant in said suit.

<p>A Sat/k--1Test — Co ím;.i;t'Trov or Oovtract.</p> <p>Whore a contract for the manofactore and sale of gas piper, provides that tile pipes wlien laid shall i>-> tested witli reasonable promptness, without indica ling the nature of 1lic test to bo used, the proper mode of testing is that which is usual and customary in the trade with respect to such pipes.</p> <p>fj. bAii •!— Reason arur Time.</p> <p>A delay of several mouths before testing the pipes after they are laid is not reasonable promptness.</p>

<p>In Error to the Circuit Court of the United States for the Western .District of Pennsylvania.</p> <p>At Law. Suit by the Columbus Machine Company against the Carroll-Porter Boiler & Tank Company for the purchase price of a machine. Defendant claimed, by way of set-off, damages for breach of warranty. There was judgment on a verdict for plaintiff. Defendant brings error.</p>

<p>In. Emir to the Gircuit Court ot tho United States for the Eastern District of Pennsylvania.</p> <p>At Law. Action by Charles Wight and George E. Lackey, doing lousiness as Wight & Lackey, against the Royal Insurance Company, to recover on a policy of insurance. The affidavit of defense set up a cancellation of the policy, and notice thereof to the brokers who procured the policy as representatives of the insured. There was a judgment for plaintiffs, (53 Fed. Rep. 340,) and defendant brings error.</p>

At. Luw. Action by Theodore HA Mnltam. against the Post ]Pul> liBiüiay CoAijOiihi/ for «lautsiges ¡loi- ;i libelous publication. Veídier. fot tlie ribliidii ion «32,509. Oa vu-tloii tor a new LimL

<p>At Law. Action by the National Bank of Commerce of Kansas City, Alo., against W. T. Atkinson, receiver of the First National Bank ox Kansas City, Kan., upon certain promissory notes and a certificate of deposit.</p>

<p>Post Owio® — S'fKAi.iyH ano BKoannwo Letthbo.</p> <p>Rev. St. § 5467. doiii'CH and pu.’-ls’c's two cítalo» against the UuikMl States: (1) Secreting..emfaoMdmg. and destroying letter» containing anything of value; (2) stenting the «raleáis oí i utters of the same díamete;*, U. S. v. Laeher, 10 Sap. fit, lien. 625, 131 U. S. 624, followed. U. S. v. Graver, S3 Fed. Rep. 59, distinguished.</p>

<p>At Law. Appeal by the surveyor of customs from décision of the board of general appraisers.</p>

<p>In Equity. Bill by the Edison Electric Light Company and others against the Equitable Life Assurance Society of the United States. Defendant died a plea alleging laches and acquiescence in defendant’s alleged infringement for 11 years.</p>

<p>L Disstgn Patents — NovKury and Invention— New Arpeábanos.</p> <p>Tiie invention and novelty required in the case of design patents is very snmil and of low order, and differs from the novelty and invention required for mechanical patents. All that the statute requires in the case of designs is the production of a. new and pleasing design, which may add value to the object for which it was intended.</p> <p>8. Same — Masonic Design" con Decorating Rugs.</p> <p>Design patent No. 18,703, granted October 23, 1888, to William T. Smith, for a masonic design for decorating mgs, consisting of the selection of cerrain masonic symbols, and ihe grouping thereof in an. orderly and tasteful maimer, so as to form what many would consider an attractive panel, largo enough to cover the face of the rag, Involves novelty and invention, and is valid.</p> <p>3. Same — Inventor — Conoeptioiv of Idea — Adjustment of Details bs Draughtsman.</p> <p>An allegation that a design was; invented by the patentee’s draughtsman, and not by the patentee, is not sustained where it appears that tho patentee conceived the idea and manner of carrying it out, although tho draughtsman applied the idea and made the drawing.</p> <p>4 Same — Is mu ngemknt — Kuo;;.</p> <p>Design patent No. 18,703, for a. design for decorating rugs consisting of a panel, on which certain masonic symbols are arranged, with a border of oak leaves, is infringed by the manufacture of rugs which follow tho patented design literally, except Ihe border, the distinguishing and dominating feature of ihe patented design being the panel.</p> <p>5, Same — Infringement - Amount Recovera rue.</p> <p>In a suit for infringing a design patent for ruga, it appeared that tho defendants had copied tho plaintiff’s design; that, the rags manufactured by the plaintiff were marked as ihe statute requires; and that from the one copied the mark had been removed. One of the defendants testified that he was not aware of the patent, and that, he inquired of the designer of the copy about it, and war, told that there was no patent. At that time the patent had not issued, but, had been applied for. Tho defendants knew that the design was the complainant’s, and that he alone was using it. They also knew that the designer of the copy could not obtain rugs from the complainant. Held, that it was the duty of the defendants, before manufacturing, to inquire of the. complainant as to the existence of-the patent, and that complainant was entitled to judgment for $250, under the act of congress of February 4, 1SS7, entitling the owner of a design patent to recover that sum.</p>

<p>Appeal from the Circuit Court of the United States for the District of Ucw Jersey.</p> <p>This was a suit by the Accumulator Company for infringement of a patent. Complainant’s motion for a preliminary injunction was granted below, (63 Fed. Rep. 796,) and defendants appeal.</p>

<p>Appeal from the ’Circuit Court of the United States for the District of 'New Jersey.</p> <p>In Equity. Bill by the Union Switch & Signal Company against the Joliuiion Railroad Signal Company for infringement of a pa ton L There was a. decree for complainant, (82 Fed. Rep. 867,) and defendant appeals.</p>

<p>In Equity. Suit by the National Folding Box & Paper Company against the American Paper Pail & Box Company and Isador Tahl for infringement of a patent. A preliminary injunction was granted, (48 Fed. Ilep. 918,) and the order allowing; the same was affirmed by the circuit court of appeals. 51 Fed. Bep. 230, 2 C. O. A. 165. The cause is now on final hearing.</p>

<p>1. Patents — Electric Light — Edison Feeder Patent.</p> <p>Letters patent No. 204,642, issued to Thomas A. Edison, September 19, 1882, for an “electric distribution and translation system,” consist of a combination of two circuits, — the one, a consumption circuit, in the main conductors of which the “drop in tension” is not sufficient to vary, practically, the candle power of the lamps connected therewith; and the other, a feeder-circuit, having upon it no translating devices, so that all the harmful “drop in tension” due to distance may be located upon it without affecting the relative candle power of the lamps in the consumption circuit. Held that, in view of the prior state of the art, the patent involves a union of distinctive elements, forming a patentable combination, and not merely a collocation or aggregation of elements, which is not patentable.</p> <p>3. Same — Anticipation—Werdermann British Patent.</p> <p>The invention described in the Edison patent was not anticipated by the Invention described in the British letters patent granted June 21, 1878, to Richard Werdermann, for an improvement in apparatus for electric Sighting, in which the patentee endeavored to overcome the “drop in tension” by compelling tibie electrical current to pass over or through an equal length and sectional area of a conductor in going to and returning from each lamp, by so arranging the parallel circuits in which the lights are included that the light which is the first one or the nearest to the source of electricity on a positive conductor is also the first or nearest to the source of electricity on the negative conductor, or by so arranging them that the lamp of light which is first with regard to its position on the positive conductor is last with regard to its connection with the negative conductor.</p> <p>3. Same — Anticipation—Khotinsky French Patent.</p> <p>The Edison invention was not anticipated by the invention described in the French letters patent issued March 19, 1875, to M. D. Khotinsky, for improvements in electric lighting, consisting — First, of a peculiar arrangement of the conductors of the electrical current, which permits the current to pass into each lamp or light independent of the others, so that the variation or failure oí light in one lamp has no effect upon the others; anti, second, the arrangement of the burners of the lamps in such a manner that after the consumption in service of one carbon, or other luminous conductor, The current passes automatically into another luminous coudnetor, and from that into a third, and, after die consumption, of all the luminous conductors provided, the current, travels automatically to a spiral or conductor of any form, whose resistance is equal to that of the lamp in connection as described; such letters patent containing an indication that the inventor intended to obviate tlio “drop in tension'’ incidental to an extended system ox lighting, and not disclosing the law for the proportions of the circuit in regard to the number of lamps connected therewith, nor giving any data by which if might be concluded that the lamps would vary from each other in candle power, which variance would be cured by tho invention.</p> <p>4. Samk — Anticipation -Lane-Fox Letters Patent.</p> <p>The invention described in the Edison letters patent was not anticipated by the inventions for which two British letter.) patent were granted to Lane-Fox in 1878, although iheso inventions were intended to obviate tine difficulties due to “drop in tension;” the form adopted being to enlarge the system of conductors as they approach nearer to the central station, forming what is generally known as the “Tree System,” — a system of distribution in which the electrical energy starts from the central station on the largest of the conductors in the system, and divides itself into so many branches as are required to operate the lamps; the branches diminishing in sectional area as the distance from the central station increases; the system being aided by attaching Plante batteries for storing up electricity, and distributing it.</p> <p>6. Samk — Anticipation — Methods in Use tor Distribution of Gas and Water.</p> <p>The invention described in the Edison letters patent was not anticipated by the prior methods and systems of gas and water distribution for public use; these methods and systems not being such as to form a basis upon wlii eh the Edison electric system could have been constructed.</p> <p>6. Samm— Anticipation — Methods Employed in Elkctrotypino and Blec-TROPLATI5TG.</p> <p>The Edison invention was not anticipated by ihe methods in which electricity had previously been utilized in electrotyping and electroplating.</p>

In Equity. Suit by Nelson W. Green against the city oí Lynn for the infringement of reissued patent No. 4,372, granted May 9, 1871, to li.

<p>1. Repairs to Vessel — Libit—Evidence.</p> <p>If necessary repairs and materials he made and furnished to a vessel in a port other than her home port, the prima facie presumption is that they were made and furnished on the credit of the vessel, unless the work he done by order of the owner, in which case a lien by agreement of the parties must he shown. 50 Fed. Rep. 944, affirmed.</p> <p>2. Same — Personal Credit of Owner.</p> <p>Repairs to a yacht, amounting to $1,615.05, were furnished on the order and credit of the owner, who was reputed a rich man and solvent, by libelants, from whom the owner had purchased the yacht. Afterwards further repairs, amounting to $97.10, were furnished, and included in the same bill for the first repairs. Held, that in both instances libelants must be presumed to have relied upon the personal sufficiency of the owner for payment of their claims, and were not entitled to a lien on the vessel.</p>

<p>iS.-ai’i — Injuries to Goods — Liability—Evoustcr.</p> <p>Whore fho fact of damage to goods on the voyage, and tiie extent of such damage, are shov/a. the burden is on the carrier to show that it wag occasioned cither bj inherent detects in the goods or by sweat oi the ship, and lienee within the ox cep.dour, of Hie bih of lading.</p>

Appeal' from the District Court of the United States for the Eastern District of Louisiana. In Admiralty. Libel by William Cameron and J. W. Castles, trading as Cameron & Castles, against the steamship Beeche Dene, her tackle, etc., (the J. T. Lunn Company, Limited, claimant,) for damage to a cargo of sugar. The vessel was released on claimant’s bond with Richard Milliken as surety.

<p>Í. Demurrage — Exceptions—Political Occurrences — Evidence.</p> <p>Libelant’s ship proceeded to a Chilian port for cargo under a charter party which provided for demurrage at a certain rate, “the act of God, political occurrences, fire, » * ■* excepted.” Civil war was progressing in Chili. The port was blockaded by the de facto government, and the agent of the charterers was unable to procure cargo because the sellers would not deliver, for fear of being compelled to pay a second export duty in case the government fell. Held, there being no actual vis major encountered by the charterers, to prevent a loading, that they were not within the exceptions of the charter party, and were liable for demurrage.</p> <p>2. Same — Actual Prevention of Loading.</p> <p>The fact that the political occurrences in question indirectly prevented the charterers from procuring a cargo, or from bringing it to the port of loading, was not sufficient to exempt them from liability. They must have prevented the charterers, after procuring the cargo at the port of loading, from loading it on the vessel.</p>

<p>1. Collision — Evidence—Foundation fob Expert Testimony.</p> <p>In a libel against a bridge company for damage to a vessel, alleged to have been caused by improper construction of a draw, evidence that the secretary of war had notified the bridge company that their bridge was an obstruction to navigation; that the bridge had been examined by a board of officers, who prepared plans and directed changes to 'bo made; that the changes were made by the bridge company’s engineer; and that the work was examined by an officer representing the secretary of war and the board, — was properly admitted, as showing the opportunities for information which such officer possessed as an expert testifying to the sufficiency of the changes made.</p> <p>% Same — Injuries from Draw — Evidence.</p> <p>A tug having a schooner in tow in mid-stream, with a hawser 190 feet long, passed safely through the draw of a bridge, and the schooner, following straight behind, entered between the fenders of the draw, and proceeded some feet within, when she suddenly sheered, and struck the fender almost bows on. The master of the schooner was at the wheel. There was nothing to show that the current caused the sheer, nor that the tug caused it, and the testimony of the master showed that something occurred which he could not explain. Held, that libels against the bridge company and against the tug must he dismissed, retaining a libel by the bridge company against the schooner for further evidence.</p>

<p>In Admiralty. Libel in rem by the Charleston Bridge Company against the schooner John C. Sweeney and others for damages to a bridge. On motion to dismiss for want of jurisdiction.</p>

In Equity. This suit was originally brought in a district court of Bussell county, Kan., by Charles A. Wolcott, cashier of the First National Bank of Bussell, against H. F. íáprague and wife and the Oakland Home Insurance Company, to foreclose a deed, which, though absolute in form, was given by said Sprague and wife to secure the payment of a note to the bank for the sum of $3,000.

At Law. Suit brought by Sarah Lonergan, as administratrix, etc,, against the Illinois Central Bailroad Company in the district court of Floyd county, Iowa, and removed on application of the defendant to the United States circuit court for the northern district of Iowa, eastern division. Plaintiff moves to remand.

In Equity. Suit by John Single, a nonresident, against the Beata Paper Manufacturing Company and others, also nonresidents, to enforce specific perform since of a contract to convey real estate. Heard on motion to dlfinlas the bill for want of jurisdiction.

<p>1. Partnership — Construction of Articles.</p> <p>W. & M. executed the folio-wing agreement: “St. Joseph, Missouri, February 1st, 1881. The undersigned have this day formed a partnerslfip for the transaction of a general hook and stationery business, * * ** M. to be guarantied $2,000 per annum, same to he and to come out of his half of the profits; but, should the one-half profits not amount to $2,000 in the year, he shall not he held for any deficiency in the salary account. In consideration of the guaranty of $2,000 per annum to M., he shall give his entire time, during reasonable business hours, to the business of the firm, and W. shall not be held to give the same any more time than he may chance. * * * This agreement to run one year from this date.” Helé, that it was a copartnersliip agreement, and that the supposition of M. that the contract guarantied him a salary of $2,000 a year, and half the profits above that sum, but that he should not be liable as partner for any losses in business, was a mistake of law, for wlficb he was not entitled to relief.</p> <p>2. Parol Evidence — Contract.</p> <p>In a suit by W. against M. growing out of a former partnership between them, an order of dismissal was entered, pursuant to the following writing addressed to plaintiff's solicitor: “You will please enter an order In this cause discontinuing the same upon the payment by the defendant of the costs therein. Yours, etc., W. Agreed to. M.” Helé that, as this writing was informal, and contained no promise by either party to the other, and defendant’s signature was presumably merely for the protection of the clerk, the writing did not constitute such a contract or memorandum thereof that defendant would he prevented in a subsequent suit from showing by other evidence that the order wras entered pursuant to an agreement releasing him from all liability in consideration of the payment of the costs and certain services which he was to render to plaintiff.</p>

In Equity. Suit by William Briekill and others against the mayor, etc., of the city of Hew York. On a question as to payment of master’s fees and other costs.

<p>- In Equity. Suit by William Brickill and others against the mayor, etc., of the city of Hew York. On a question as to master’s fees, and other costs.</p>

<p>in Equiiy. Salt by ilio United States of America against the Couthem Pacific Railroad Company and others to declare invalid the company’s claim to certain lands under the grant by congress, and to mural such patents as have been issued to the company for such lands, and such contracts and deeds therefor as have been mr.de by the company i® individual defendants. Complainant moves for a preliminary injunction to restrain the defendants from cutting down and carrying away any wood, trees, or timber from ihe lands in controversy.</p>

<p>In Equity. Bill filed in the circuit court of Wayne county, Mich., by tbe city of Detroit against tbe Detroit City Railway Company, tbe Detroit Citizens’ Street Railway Company, Sidney D. Miller, and William K. Muir, trustees, and tbe Washington Trust Company of tbe City of New York. Tbe Washington Trust Company of tbe City of New York removed tbe cause to tbe federal circuit court, and a motion to remand was denied. 54 Fed. Rep. 1. Tbe complainant now moves to postpone tbe bearing on bill and answer, or, in tbe alternative, to dismiss tbe complaint.</p>

<p>1. Confusion of Goods — Limits of Doctrine.</p> <p>The doctrine of confusion of goods is not in any case to be carried further than necessity requires, and is only applied in cases where chattels, such as com or wheat, not capable of being identified, and owned by different persons, have been fraudulently intermingled by the wrongdoer. It has no application if the goods can be separated, even though the act of mixing was fraudulent.</p> <p>2, Replevin — Wrongful Seizure — Evidence—Confusion of Goods.</p> <p>Two lots of dry goods were taken in replevin by the sheriff. In the selection of the first lot the goods were identified as described in the invoices made out by the plaintiffs, and in the hands of their agent, who was present at the execution of the writ, goods not identified as those described in the invoices being returned to stock. In taking the second lot goods were taken indiscriminately from the stock which was in the possession of the defendants. Held that, as the evidence showed that it was possible to distinguish the goods, not only by their appearance, but by marks, the doctrine of confusion of goods could not apply, and the plaintiff could not justify the taking of the second lot on the ground that his goods had been fraudulently intermingled by the wrongdoer.</p>

<p>1. Sale — Delivery—Attachment.</p> <p>K. sold to S. a stock of goods in a store at certain percentages of discount, in some classes of goods, on the cost price, and in Others on the selling price, the quantities of goods in each case to be ascertained by a count to be made by clerks under supervision of the parties; S. to take possession of the goods as soon as the count was completed. S. gave his check for $40,000 to bind the bargain, to be increased or curtailed according to the result of the count. Held., as against an attaching creditor of K. who levied on the goods before the count was finished, that, but for a subsequent secret agreement as to the price made before there had been a payment, tlie property in the goods would have been in law that of S. from the time possession was taken under the contract, and was not dependent upon the subsequent count.</p> <p>2. Same — Subsequent Aouejoiekt.</p> <p>After the levy of the attachment, S.’s check was by secret agreement, between K. and S. placed in the hands of a third person in trust to indemnify S. against loss by the attachment. Held, that the legal effect of this arrangement was to subordinate the question of who should receive the consideration to the question as to the validity of the sale, and that it qualified the sale to the same extent as if it had been a part of the original agreement; and hence that the sale was invalid as against the attaching creditor.</p>

<p>t. Action for Price of Goods — Ocean Freight — Remission of Stevedore Charges.</p> <p>The owner of foreign ore sold a portion thereof to defendants under an agreement which contained this clause: “Freight rate. The above prices [for the ore] are based on an ocean freight rate of 12 shillings per ton. All freight over 12 shillings to be added to the invoice as part of the price of the ore, and all freight under 12 shillings to be deducted from the invoice.” Held, in an action to recover the price of part of the ores, that defendants were not entitled to the benefit of a rebate on unloading which plaintiff received from the stevedores as a commission for procuring them the job, the same not being a reduction of ocean freight. 48 Fed.. Rep. 589, affirmed.</p> <p>2. Same — False Representations — Measure of Damages.</p> <p>Defendants were induced to enter into the contract for the ores by plaintiff’s false statements, hut accepted the ores after discovering the falsity of the statements. Held, that the true measure of damages for the deceit was the difference between the contract price of the ore and its value in the market at the time, unaffected by the false representation, and not such sum as the jury might find from all the evidence was the value of tho ores to defendants. Peek v. Deny, 37 Oh. Div. 541, and Smith v. Bolles, 10 Sup. Gt. Rep. 39, 132 U. S. 125, distinguished.</p>

<p>1. Preferential Assignments — Mortgage—Evidence.</p> <p>B., au insolvent merchant, conveyed a stock of goods of the value of $63,000 to a trustee, requiring him to sell the same, and out of the proceeds pay certain scheduled creditors, making preferences between several classes of the creditors; the balance, if any, either of money, or goods unsold, to be paid over or delivered to the grantor. B. then owed about $210,000, and had assets, exclusive of the stock of goods conveyed to the trustee, amounting to about $51,280. He did not intend to redeem the stock, but intended the trust solely as a fund to pay the creditors. Held), that the transaction amounted to a mortgage to secure creditors, and was not a partial assignment preferring creditors, forbidden by the laws of Texas.</p> <p>8. Same — Fraudulent Conveyances — Provision por Attorneys’ Fees.</p> <p>The fact that the conveyance secured a fee of §2,500 to the attorneys preparing the conveyance and rendering legal services in and about the trust to the grantor, did not render it fraudulent and invalid as to unsecured creditors.</p> <p>8. Same — Withdrawal op Attorneys’ Claim.</p> <p>An agreement entered into between the grantor, the attorneys, and one of the secured creditors, by which the attorneys withdrew their claim in so far as it affected the claim of the creditor mentioned, could not affect the validity of the conveyance with respect to the other creditors thereby secured.</p>

At Law. Action In the superior court of the comity of Hampden, Hass., by the Holyoke & South Hadley Falls Ice Gompajay, against Hollin Ambden. Defendant removed the cause to this court, and it is now heard by the court on a plea in abatement, and plaintiff’s traverse and demurrer to the same. Cited Larned v. Griffin, 12 Fed. Rep. 590; People v. Judge, etc., 40 Mich. 729; Blight’s Ex’r v. Fisher, 1 Pet. C. C. 41; Parker v. Hotchkiss, 1 Wall.

<p>In Error to the United States Court in the Indian Territory.</p> <p>Action by David D. Parker aginst the Atchison, Topeka & Santa Pe Railroad Company to recover. damages for personal injuries. Verdict and judgment for plaintiff. Defendant brings error.</p>

Boyd, Sutton & Co. protested against an assessment by the collector of the port of New York, and the board of general appraisers sustained the protest, the collector appealed to the circuit court, which reversed their decision, (49 Eed. Rep. 781,) and the protestante appeal.

<p>Ab Law. Ejectment by the ^Northern Pacific Bailroad Company against John McCormick.</p>

<p>At Law. Suit by Henry J. Kester against the Western Union Telegraph Company for damages for negligence in transmitting a telegram to plaintiff. Defendant demurs.</p>

At Law. Indictment in 18 counts against John H. Patterson and others for violating the act of July 2, 1890, entitled "An act to protect trade and commerce against unlawful restraints and monopolies,” (26 St. p. 209, c. 647.) Heard on demurrer to the indictment. Judgment overruling the demurrer as to counts 4, 9, 14, and 18, and sustaining it as to the others. The sections of the statute immediately in question here are the following: ' “Section 1.

<p>1. Customs Duties — Classification — Collection of Antiquities — Taiom Act Oct. 1, 1890.</p> <p>Where a known and acknowledged collection of antiquities was purchased abroad, and sent to tbis country, the fact that a single vase of such collection chanced to be sent with a separate invoice, and without its companions, does not disturb its character as a “collection of antiquities,” admissible free of duty under Tariff Act Oct. 1, 1890, par. 524, (26 Stat 604, c. 1244.) J</p> <p>2. Same.</p> <p>Four tapestries, of different sizes, each belonging to a period prior to 1700, and purchased for the purpose of being added to a collection of curiosities and bric-a-brac, constitute a “collection of antiquities,” within Tariff Act Oct 1, 1890, par. 524.</p> <p>8. Same.</p> <p>A single bronze statuette, imported for the purpose of being added to, and becombig a part of, a pre-existing collection, is not a “collection of antiquities,” within Tariff Act Oct. 1, 1890, par. 524, but is dutiable at 15 per cent, ad valorem, as statuary wrought by band, under paragraph 465.</p>

At Law. Action by Mudgett & Mudgett against Thomas & Bous and the Thomas Manufacturing Company for royalties under an exclusive license to manufacture under letters patent. Motion to strike out certain defenses.

<p>In Equity. Bill by the Dayton Loop & Crupper Company against Ruhl Bros, to enjoin the infringement of letters patent No. 238,446, issued March 1, 1881, to Joseph Shafer, and for damages.</p>

<p>.Patents for Inventions — Novelty—Oil-Meal Cooking.</p> <p>Letters patent No. 308,112 were granted November 18, 1884, to John. H. Vaile for the process and apparatus for cooking oil meal. In tins device two steam-jacketed cooking tanks were arranged over a storage tank, from which the cooked meal was drawn to send to the press, and into which the contents of the cooking tanks were alternately discharged, so that the storage tank was kept constantly supplied without any loss of time or hastening or retarding of the cooking process, as might be necessary if the meal was cooked in a single tank. It was shown that long before the patent was granted two cooking tanks had been used, the one above and discharging into the other, and each having separate steam connections; and, as against the patentee’s claim that cooking in two successive tanks failed to produce the best results, it was shown that a single cooking tank had been used long before his device was patented. Held, that the patent was void for want of novelty.</p>

<p>In Equity. Bill by John F. Kingsley against the Union Bridge Company for an alleged infringement of a patent.</p>

<p>1. Patents for Inventions — Anticipation.</p> <p>Letters patent No. 353,790, issued December 7, 1886, to David B. Kerr, were for a “woven fabric,” the object of'which is the production “in a woven fabric of a variety of shades of color in the pattern or figure, by a new way of interweaving the warp and weft threads, avoiding the expense of extra colors in the warp and weft threads,” hy “the combination of two warps of the same color with two or more colored weft threads; the warp threads being so arranged in loom harness as to work in pairs, with a binder warp thread between the two figuring warp threads of each pair.” Held not to have been anticipated by certain fabrics made some years before the date of the patent.</p> <p>2. 'Same — Validity—Result of Accident.</p> <p>The patent is not invalid as covering merely the result of an accident, but is sustainable as showing patentable invention.</p>

<p>Patents fob Inventions — Validity—Sealing Gaskets.</p> <p>The claims of letters patent No. 408,177, issued July 30, 1889, to Daniel W. Johnson, for sealing disks for jars, covered “a sealing gasket for jars, having a base of waterproof material hacked with, and secured to a felted material,” and also “a sealing gasket consisting of a body of felted material having waterproof material secured to Its opposite faces.” Long prior to the application for this patent there were in use sealing gaskets composed of a disk of parchment and a disk of felt, arranged the one on the other, but not secured together. Held, that pasting together the faces of the old disks, which is all that is contemplated by the patent, does not involve invention, and the patent is void.</p>

<p>In Equity. On final hearing. Suit by John S. Detwiler against Joseph Bosler for the infringement of a patent.</p>

<p>In Admiralty. Libel on a policy of insurance by the Steamship Samana Company, Limited, against Albert B. Hall.</p>

<p>Appeal from the Circuit Court of the United States for the '.Northern District of Ohio.</p> <p>In Admiralty. Libels by the Pittsburgh & Lake Angdine Iron Company against the propeller Oregon and others and against the, schooner Palms. There were decrees in the district court for libel-ant, which were affirmed on appeal by the circuit court. From' the latter decrees respondents appeal.</p>

<p>1. Shipping — Charter Party — Absolute Contract.</p> <p>A charter party provided that the vessel should cany eight cargoes of iron ore from Escariaba, Mich., to Lake Erie ports, during a certain season; the vessel to be constantly towed by a specified propeller, and the eight trips to be distributed through the season of navigation as equally as possible. The vessel, however, only made six trips, and the shipper sued to recover advanced freight, which ho was compelled to pay for the transportation of the other two cargoes by other vessels. Held that, as defendants’ undertaking was an absolute one, they were liable, notwithstanding that the propeller named was not under their control, and had been previously engaged to make a triangular trip to Chicago in connection with each trip from Lake Erie ports to Lake Superior, and that this fact was known to the agent of the shippers when he made the contract for them. 50 Fed. Rep. 118, affirmed.</p> <p>2. Same — Defenses.</p> <p>The shipowners were not relieved of liability by the fact that, in August they tendered other tonnage to make up an anticipated default of the chartered vessel, it appearing that navigation did not open for that season until the 1st of May, and that in August the chartered vessel was only a few days behind in her trips, according to the equal distribution of the eight cargoes during the season, as provided for in the charter; and that her defaults occurred later in the season, at which time her owners made no tender of additional tonnage. 50 Fed. Rep. 118, affirmed.</p> <p>8. Same--Measure of Damages.</p> <p>Under these circumstances, the measure of damages was the difference between the freight as fixed in the charter party and the freight actually paid for the transportation of the cargoes which the chartered vessel failed to carry. 50 Fed. Rep. 118, affirmed.</p>

<p>Appeal from (lie Circuit Court of the United States for the North? ern District of OMo.</p> <p>In Admiralty. Libel in personam by the Lumberman’s Mining Company against J. C. Gilchrist to recover damages for breach of a charter party. The district court entered a decree for libelant in the sum of $477.70, which, on appeal to the circuit court, was reduced to $407.40, and affirmed as thus modified. See 50 Fed. Rep. 124. Respondents appeal.</p>

<p>In Admiralty. These were two libels in rem for collision, — one brought in behalf of the schooner Percy Birdsall against the ship Invertrossacks and the tug James McCaulley; and the other, in behalf of the owners of the Invertrossacks against the James Mc-Caulley. Decree in the former for libelants against both the ship and the tug; and in the latter, in favor of the ship, for half damages.</p>

This vas a libel in admiraliy by ¡'Inlander J. Oarleton and others, owners o£ the schooner Joe Oarleton, against the schooner Charles L„ Jeffrey, Frank Uarangteit, claimant, for the loss of the former vessel" by collision. The libel was dismissed, and libelants appeal

<p>Removal of Cause — Time to Plisad ob Demur — 'Tennessee Practice.</p> <p>tinder Mill. & Y. Code Tenn. §§ 5010, 5011, which require the plaintiff to filo Ms declara (ion within the first three days of the term to which the writ is returnable, and the defendant to appear and plead or demur within the first two days thereafter, the plea or demurrer is due, in the absence of a rule of the court, on or before the fifth day of the term, and applications to remove after that day, in tbe absence of an order or rule of "court extending the time, are too late.</p>

<p>1. Res Judicata — Application—Different Cause of Action.</p> <p>Although a second suit between the same parties is upon a different claim or demand, the prior judgment constitutes an estoppel as to matters actually put in issue, or points controverted, upon the determination of which the finding or verdict was rendered. Cromwell v. Sac Co., 94 U. S. 351, followed.</p> <p>3. Same — Extent of Estoppel — Findings of Fact and Law.</p> <p>The estoppel arising from a finding in a previous suit between the same parties is not confined to matters purely of fact, or of mixed fact and law, but extends to a decision of the legal rights of the jiarties on a state of facts common to both suits, although the causes of action are different.</p> <p>8. Same — Matters Decided — How Sustained.</p> <p>On a plea of res judicata, where the former judgment was rendered pursuant to the findings and conclusions of a referee, the court may examine the entire report of such referee, as well as the pleadings, for the purpose of ascertaining what issues were in fact raised and decided, and upon what theory the former judgment proceeded.</p> <p>4. Same — Suit to Recover Lands — Sufficiency of Description.</p> <p>In a suit in a state court by one land-grant railroad company against another to recover lands lying within overlapping grants, the bill designated the lands sued for as the odd-numbered sections lying within 20 miles of its route within specified ranges and townships, and there was annexed to the bill a diagram alleged to be a correct map of complainant’s road through such townships and ranges. There was nothing to show that during the progress of the suit any question had ever been raised as to the sufficiency of the description.' Held, that in a subsequent suit in a federal court to recover the lands the plea of res judicata could not be avoided on the ground that the record in the prior suit did not show that the same lands were then sued for.</p> <p>ó. Same — Matters Which might have been Pleaded.</p> <p>The second suit being based upon the ground that as the lands lay within the defendant’s indemnity limits, and within complainant’s grant limits, the full equitable title passed to complainant as of the date of its grant, the plea of res judicata could not be avoided on the theory that the former suit was based entirely on an alleged fraud by defendant in constructing its road through the overlapping region on a route somewhat different from that indicated in its original map of definite location; for as the suit was between the same parties, and to recover the same lands, the estoppel applied to all grounds of action which might have been pleaded in the former suit. Cromwell v. Sac Co., 94 U. S. 351, followed.</p> <p>8. Same — Matters Actually Litigated.</p> <p>In the prior suit the referee found as a fact that all the odd-numbered sections within defendant’s indemnity limits throughout the overlapping region were withdrawn from sale prior to the date of plaintiff’s grant; and, as a conclusion of law thereon, held that such withdrawal operated to exclude such lands from plaintiff’s grant. In the second suit there were claimed, in addition to the lands before demanded, certain other lands lying within defendant’s indemnity limits. Held, that as to these additional lands the prior judgment also constituted an estoppel, the matters found having been actually litigated in the prior suit.</p> <p>7. IiAOIIKS -IVHAT CONSTITUTES.</p> <p>Defendant, a land-grant railroad company, having finished its road, laid claim to certain lands lying within its indemnity limits to make up for deficiencies arising from prior reservations within its grant limits. This claim was conceded by the United States and by the state through which the grant was made, ah hough the lands lay within a subsequent overlapping grant to complainant railroad company. The lands were accordingly certified to the state, which between 1867 and 1876 patented the same to defendant. Plaintiff took no steps to claim the land until 3880, when it brought suit in a state court, which suit was dismissed in 1888. Nothing further w'as done till 1887, when the present suit was begun to recover the same lands. Held, that the claim was barred by laches. Railroad Go. v. Sage, 49 Fed. Rep. 815, 1 C. O. A. 256, 4 U. S. App. 160, followed.</p>

<p>In Equity. Creditors'' bill, brought by tbe Brooks-Waterfield Company against, Robert C. Brookover and others. On exceptions to master’s report.</p>

In Equity. Bill by the Baltimore & Ohio Railway Company against the Pittsburgh, Cincinnati & St. Louis Railway Company for an accounting, under a contract, as to certain freight business carried on over a piece oí railroad owned by them jointly. Heard on respondent’s exceptions to the special master’s supplemental report.

<p>In Equity. Petition by D. H. Chamberlain, as receiver of the property of the South Carolina Kailway Company, asking the protection of the court as to certain property, which was distrained by a sheriff to enforce payment of taxes.</p>

Rule against M. V. Tyler and others, sheriffs and treasurer, to show cause why they should not be attached for contempt in violating an injunction.

<p>1. Public Lands — Grants bob Wagon Roads — Performance of Condition.</p> <p>The company to which the state of Oregon transferred the grant made to it in aid of a certain wagon road by the act of July 5,1866, (14 St. p. 89, c. 174,) constructed a road which was regularly used as such, though the grades were heavy and the -bridges few. It crossed the S. river by fords which were dangerous when the snows were melting in the spring, but at such times the snow itself in the mountains prevented through travel on the road. Held, that in view of the nature of the country, the needs of the time, the modes of travel then in use, and the value of the grant, the road was such as to satisfy the requirements of the granting act.</p> <p>a Same ■ Governor’s Certificate — -Personal Inspection.</p> <p>The provision of the act that the lands might he disposed of from time to time upon the certificate of the governor of Oregon that 10 continuous miles of the road were completed, did not require or contemplate that he should make a personal inspection of the road to determine the fact.</p> <p>3. Sams — Fraudulent Procurement — Evidence.</p> <p>It. was shown that the persons appointed by the governor to inspect the road were paid by the road company, and there was testimony that one of the inspectors was under the influence of liquor furnished by the company. This he denied. It was shown, on the other hand, that there was no provision for their payment by the state; that the company, when it requested the inspection, was notified that it would have to compensate the inspectors; and that they were not appointed by its procurement or suggestion. Held, that these facts would not support a charge that the certificates were procured by the fraud of the company.</p> <p>4. Same — Defects in Form.</p> <p>One of the certificates was to 'the effect that a plat of one section of the road had been filed in the governor’s office, and showed that “that portion of the road commencing and ending as designated on the map has been completed as required by the act of congress.” Held, that this was not fatally defective where the evidence showed that the governor’s agent had caused an inspection to be made of that part of the road, and that the certificate was made in pursuance of his report.</p> <p>5. Same.</p> <p>A second certificate, to the effect that the governor had “examined and accepted” a certain section of the road, is sufficient, as it is equivalent to certifying that the road has been examined, approved, and accepted, because found to be constructed according to law.</p> <p>6. Same — Grant in Prassenti — Bona Fide Purchasers.</p> <p>The act of July 5, 1S66, (14 St. p. 89, c. 174,) which grants a portion of the public lands to the state of Oregon in aid of the construction of a wagon road, is a present grant of the fee simple upon condition subsequent; and bona fide purchasers of the land will not be denied protection as such on the ground that no patents had been issued for the land when they purchased.</p> <p>7. Same — Condition Subsequent.</p> <p>Forfeitures for breach of the condition that the road should be completed in a specified time could only be enforced by legislative enactment or judicial proceedings of the United States, in the absence of which the road might be completed, and forfeiture thereby prevented, even after the time limited had expired.</p>

<p>Action oh Guaranty — Authority of Agent — Evidence.</p> <p>T, & Co., desiring to attach the property of their debtor, J., in another state, telegraphed to a bank there: “Please provide bondsmen, T. & Co. v. J. See N.,” (T. & Co.’s attorney,) — and afterwards, “We guaranty you against loss on bond of $2,000, T. & Co. v. J.” T. & Co.’s attorney having levied an attachment on the debtor’s goods, M., president of the bank, at the request of the attorney, and relying on T. & Co.’s guaranty, executed an indemnity bond required by the sheriff, the goods being claimed by a chattel mortgagee. Held, in an action on such guaranty by M., that it was no defense that defendants had not authorized their attorney to procure the execution of any other than the attachment bond.</p>

<p>Action on Bond — Declaration—Extent of Surety’s Liability.</p> <p>Plaintiff entered into an agreement to consign goods to an agent for sale, and defendant executed a bond conditioned that the agent should duly pay for all goods consigned “under said agreement, or otherwise.” Held, in an action on. said bond, that a declaration which did not state whether the goods for which the agent failed to pay were consigned before or after the date of the agreement was demurrable, since defendant was not liable on the bond for goods consigned before the agreement waa made.</p>

<p>1. Adverse Possession — Possession of Owner after Foreclosure — Tenancy by Sufferance.</p> <p>If lands are sold under a decree of foreclosure, the grantee of the mortgagor being made a party to the foreclosure suit, the sale extinguishes the title of such grantee; and if he remains in possession after the sale his possession is that of a tenant by sufferance, in subordination to the title of the purchaser at the sale, and does not become adverse until the relation of tenant by sufferance is disavowed, and the purchaser has knowledge or notice of the disavowal.</p> <p>2. Same — Ejectment—Instructions—Notice of Disavowal of Tenancy by Sufferance.</p> <p>Where the possession of a defendant in ejectment was originally in subordination to the title of the plaintiff, an instruction that if the defendant's possession was so notorious and open and visible as to be known to the people generally in that vicinity, and if it was of such a character as to be hostile to, and inconsistent with, the plaintiff’s title, the jury may find that the plaintiff had notice of its adverse character, although there may be no proof of actual notice or knowledge, ignores the distinction between the essential elements of adverse possession on the part of a person who entered in subordination to the plaintiff’s title, and adverse possession on the part of a person who originally made a. hostile entry, and is erroneous.</p> <p>8. Res Judicata — Foreclosure of Mortgage of Equitable Title — Estoppel of Owner of Legal Title.</p> <p>.Where the owner of the legal title to lauds contracted to convey them, and the owner of the equitable title under the contract thereafter mortgaged his interest in the lands, and sold and assigned it, and his assignee took title to the lands by warranty deed from the holder of the legal title, a decree of foreclosure of the mortgage of the equitable title, in a suit to which the assignee of the mortgagor and grantee of the legal title is made a party, is a final adjudication that such assignee’s interest is subject to the mortgage, and he is estopped from asserting against the purchaser at the foreclosure sale that the legal title which he acquired from the original owner was paramount to the mortgage when the foreclosure suit was begun.</p>

<p>At Law. Actions of ejectment by J. Hairston. Sea well and others against. Haney Crawford and others. On motions to set aside default judgments in favor of plaintiffs.</p>

At Law. Bulls in ejectment by J. Hairston Beawell and others against Metíale Berry and others. General verdicts for defendants, and special findings relatiug to a partition. (Plaintiffs move to set aside the general verdicts and special findings, and for judgment.

At Law. Action by L. Ploisehner and others, copartners of the firm of Meisclmer, Mayer & Co., against the Pacific Postal Telegraph Gable Company, for damages for delay in transmitting a telegraphic message.

At Law. Adion. Toy William Hazelline, for the use of another, against tlie Mississippi Valley Pire Insurance Company on a foreign judgment obtained by plaintiff against defendant. Verdict for plaintiff set aside, and judgment entered for defendant

<p>Action against Nonresident Insurance Company — Jurisdiction os' Court.</p> <p>Application for insurance was made to an insurance broker in Memphis, Term., who applied by mail and telegram to one N., another insurance broker at Cincinnati, Ohio, lor the same insurance. N. procured policies from companies having no office nor agents in the state of Tennessee, forwarded tlio policies to the broker at Memphis, and shared with him the commissions on the premiums. N. was agent of one of these companies at Cincinnati, but he neither had authority to appoint, nor did it appear that he had appointed, subagents at Memphis. No other transactions hy defendant companies in Tennessee were shown, field, that defendant companies were not “doing business” in Tennessee, or “found” or resident there, so as to render them liable to substituted service, or to service upon the Memphis 'brokers.</p>

<p>1. New Trial — When Granted — Contradictory Evidence.</p> <p>Plaintiff brought an action against defendant company, alleging that he, os defendant’s manager, bad paid to it Hie sum of §30,000, to be refunded i£ his accounts should be found correct, and seeking to recover such money. Defendant claimed that the money was paid absolutely as restitution for plaintiff’s wrongful act in letting a contract for the delivery of wood to defendant by which plaintiff was benefited, such restitution being at the rate of one dollar per cord. The evidence on this point was conflicting, but it appeared that there was extended public notice of the proposals for the contract with invitations to bid; that defendant was notified of the terms of the contract before it was consummated; and that, at the time the payment was made, only a small portion of the wood had been delivered. Held that, plaintiff having recovered judgment for the fall amount, defendant’s motion for a new trial should be denied.</p> <p>8. Same — Irrelevant Testimony.</p> <p>The court properly excluded evidence offered to show the large amount realized from the contract by one who took an assignment thereof from the original contractor after it had been partly executed, also evidence showing at what price' a subsequent contract for delivery of wood to defendant was taken by such assignee, since it did not appear but that the contract was completed by the assignee under exceptionally favorable circumstances, nor that plaintiff could have let the contract to a person as efficient as the assignee.</p>

<p>1. Appeal — Review—Record—Foreclosure.</p> <p>In a railroad foreclosure suit a decree was entered January 31st, declaring that certain classes of claims therein specified were entitled to a lien prior to that of the bondholders, and directing the receiver to first pay the same out of the proceeds of the sale. A sale having been made, a judgment creditor intervened, asking .that his judgment might be paid out of the proceeds of the sale before any payments on the bonds, and the court decreed that his judgment came within the classes of claims enumerated in the decree of January 31st, and directed payment' accordingly. From this decree an appeal was taken, but the decree of January 31st was not incorporated in the record. Held, that in view of this omission the appellate court could not review the finding that the claim in question was entitled to priority as belonging to the classes enumerated in the decree of January 31st. •</p> <p>2. Mortgages — Foreclosure—Estoppel of Purchaser.</p> <p>Where a railroad foreclosure decree provides that certain specified classes of claims constitute a lien prior to that of the mortgage bonds, and directs that the sale shall be made subject to such lien, one who purchases at the foreclosure sale is estopped from objecting to the payment of a claim which belongs to one of the classes specified.</p>

<p>In Equity. Bill by Hie Pacific Cable Kailway Company against •cite Butte City Btree¡.-Kaliway Company for infringement of a patena</p>

<p>In Admiralty. Libel by John J. Sullivan, master of the barge or lighter Ellen Heron, against the steamboat Columbia and Frank G. Edwards, master, for injuries from swells.</p>

<p>1. Consolidation of O.-arons — Girts foe Appointment of Receivers — -Dependent Corporations.</p> <p>The C. Trust Go. filed a bill in tlio circuit court alleging the insolvency oí Hie V. Iron Co., as evidenced by a judgment by confession on which, execution lmd been returned milla bona. By consent, a receiver was appointed. On the- same day two other Mils were filed, — one by the O. Trust Co. against the S. A. Railroad Go.: and the other by the V.- Iron Go. against the B. Land Co., — alleging the insolvency of the defendant companies, as evidenced by judgments, by confession and executions returned nulla bona. 3y consent, receivers were appointed. Afterwards a petition by stockholders of the Iron Co. and one B., who claimed to be the “valid receiver” of tlio three corporations under an order of a state court, was filed, asking that they be made parties to tlie suits in the federal courts, and that the several causes be consolidated, and heard together. The petition alleged that, the Iron Go. was the main corporation: that the G. A. Railroad Co. and the Land Go. were branches created by a diversion oí the property of the Iron Co.; that practically they were all one corporation; that the judgments were confessed without authority, and wore fraudulent and. collusive; that the appointment of receivers by the federal courts was obtained by misrepresentation, fraud, and collusion. The allegations of the petition wore denied under oath, by ilia Trust Co., the insolvent corporations, and the receivers. Belli. ih..t the causes could not properly be consolidated, the interests Involved In the several suits having reference to distinct corporations, so far as aplica red on the face of the record.</p> <p>2. Jurisdiction — Diversity of On-rzuxsiui* — Residence of Corporation.</p> <p>A bill was filed in the circuit court for the western district of Virginia, alleging that complainant was a corporation created by the laws of New York, and that the defendant was a corporation created by the laws of New Jersey, and a citizen and resident of that state, having a principal place of business at Bristol, Va., in said district. Be!//, that the court had not jurisdiction of the suit by reason of the diversity of citizenship of the parties, neither of them being a resident of the district, as required by the-acts of congress of March 3, 3887, and August 13, 1888.</p> <p>3. Same -Oonsent--Waivmr of Objection.</p> <p>The requirement that ouo of the parties shall be a. citizen of the state In which the suit is brought (Acts March 3, 1887, and August 13.1888) cannot be waived by consent, or by appearing and pleading to the merits, although the parties are corporations organized under the laws of different states, and one of them has its principal place of business in the state and district where suit is brought.</p>

In Equity. Bill by James IN. Gilmer against Josiah Monis and others to redeem certain shares of stock pledged as collateral security. Morris having died pending the suit, his executors, F. M. Billings, B. J. Baldwin, and Hewlett Baldwin, were substituted as defendants. An opinion was heretofore rendered on a plea setting up a prior adjudication in an Alabama court. 46 Fed. liep. 338.

_ In Equity. Bill by P. A. Raynolds, a judgment creditor of Cassius B. Hanna, against said Hanna and others, to subject to tbe payment of bis judgment tbe interest of said defendant in tbe estate bis father, Robert Hanna, deceased.

<p>Appeals from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>In Equity. Bill by Nellie P. B. Comstock, a citizen of Indiana, and a beneficiary and residuary legatee under tbe will of Margaret R. Poor, deceased, against John W. Herron and William H. Fisber, citizens of Ohio, as trustees and executors under the will, to enforce tbe execution of tbe trusts in her favor. David McKnigbt Barr and Adele W. Lee, also beneficiaries and legatees, were made parties defendant; and subsequently Margaret E. Merrill, a citizen of Kentucky, William B.. Finley, .a citizen of Missouri, Ada D. Huston, a citizen of Kansas, and William A. Barr, a citizen of New York, also beneficiaries and residuary legatees, voluntarily entered their appearance, and were made parties. David McKnigbt Barr and Adele W. Lee filed crossbills, but by various stipulations and adjustments tbe case was finally tried on certain questions raised by tbe bill, with its amendments, tbe supplemental bill, tbe answer of the trustees and executors, replication thereto, and tbe cross bill of David McKnigbt Barr. For an opinion rendered on exceptions to tbe answer, see 45 Fed. Rep. 660. Tbe decree of tbe court below denied tbe relief asked, and remitted complainants to tbe probate court of Hamilton county, Ohio, to obtain a proper accounting. From this decree, Nellie P. B. Comstock and David McKnigbt Barr appeal.</p>

At Law. Action by the Pearson Cordage Company against The National Cordage Company for 'alleged breach of contract. Verdict and judgment for plaintiff. Defendant bring» error.

Proceeding to appraise imports. The circuit court affirmed the decision of the board of general appraisers. The importers appeal

<p>1. Patents foe Inventionh — Assj-gnment—Evidence—.Agency.</p> <p>In a suit for the infringement of a patent the defense was that th© alleged infringer, the A. Company, was the equitable owner of the patent in suit. In support of this it showed an agreement between it and the son of the patentee, who claimed to be the patentee’s agent, that he should disclose and transfer to the A. Company all the secrets and patent or other rights relating to the manufacture in question which were owned or controlled by him. There was nothing but the son’s own declarations to show that he was such agent, and lie was shown to be utterly untrustworthy; and the agreement made no express reference to either the patent in suit or the patentee. Held, that the A. Company acquired no title to the patent by virtue of this transaction.</p> <p>8. Same — Bona Fide PcmcriASiwu,......Estoppel.</p> <p>After this agreement, the son, by assignment, became owner of a half interest in the patent, and the A. Company claimed that under and by virtue of the prior agreement it became the equitable owner of this interest. Complainant had by regular and duly-recorded assignments acquired title to the whole patent Relé, that the A. Company, having failed to notify complainant of the interest claimed by it, though it knew that he was negotiating for the patent, and had some communication with him in regard thereto, is estopped to set up such interest, more especially in view of the fact that during the time when, as it claims, it held such interest, it was contesting the very patent in interference proceedings in the patent office.</p> <p>8. Same — License.</p> <p>The A. Company also claimed in defense an irrevocable license to manufacture the patented article by virtue of an alleged sale to it by the patentee of a machine invented by him for that purpose. But it was not shown that the articles alleged to be an infringement were made on such machine, and it did appear that the machine got broken, and could not now be found. Held, that on these facts no question of license could arise.</p>

<p>1. Patents for Investigas — Ixttktkckm ret — Dkmurrmr.</p> <p>While the objection of want of patentable novelty may be raised by demurrer to a bill for infringement of a patent, the question must be determined in favor of the patent, unless the court can see from an examination of the patent itself, and the consideration of those facts alone of which it will take judicial notice, that it does not involve invention.</p> <p>2. Same — Validity—TI va .«d Caps.</p> <p>The claim of letters patent No. 313,905, issued to John 0. Goebel, July 20, 188(1, for improvements in hats or caps, was for, “in a hat or cap having a flexible tip, the body or skeleton of the side crown, formed of wire cloth, the ends of which are connected by angular seams.” It is also stated that the essential feature of the device “is not only the use of wire cloth,” hair cloth having been theretofore used for the purpose,, “but also the peculiar cutting of the wire cloth to have its wires in a diagonal line to the edges of the cloth, as else the desired elastic expansion and contraction of the side crown for stretching the tip will not be obtained, and that otherwise the shape of such wire-cloth body cannot be made conical.” Held, that the patent cannot be held void on demurrer to a bill for its infringement</p> <p>8. Same — -Infringement—Pleading—Demurrer. .</p> <p>The omission, from a bill for infringing a patent, of the averment that the invention had not been patented or described in any printed publication before the date of said invention, is a defect in form which is demurrable.</p> <p>4. Same — Prater for Process.</p> <p>The omission from the prayer for process of subpoena of the names of some of the defendants named in the introductory part of the bill is-a violation of equity rule 23, and is a fatal defect</p>

<p>Patents for Intentions — Infringement—Preliminary Injunction.</p> <p>Letters patent No. 345,965, Issued to Jolm C. Goebel July 20, 1886, for an improvement in bats or caps, claimed “in a bat or cap having a flexible tip, the body or" skeleton of the side crown, formed of wire cloth, the ends of which are connected by an angular seam.” In a suit for infringing this patent defendants' produced affidavits that this mode of making hats and caps had been known and used during several years before the date of the patent; and a British patent, granted in 1864, showed metal threads or wires cut obliquely into strips similar to those claimed in the patent Held, that a preliminary injunction would not be granted.</p>

In Admiralty. Libel by Lawrence Murray, master of the steamship Yiola, against the United States, for salvage. The court below held that the service rendered was not a salvage service, but gave libelant a decree for $2,500 as for towage. 52 Fed. Bep. 172. Libelant appeals.

<p>In Equity. Suit Tt>y Julia A. Austin, against James F. Riley, Katlierme 1L Riley, and Benjamin. Winchester. Heard on motion to set aside default and vacate ike decree.</p>

In Equity. Bill by Homer H. Brundage and others against David Deardorf and others to determine adverse claims to church property, and for an injunction. Heard on demurrer to the bill.

<p>In Equity. Suit by the Eourtb-Street National Bank of the city of Philadelphia against Robert M. Yardley, receiver of the Keystone National Bank, to charge him as trustee of a fund.</p>

At Law. Action by the Dueber Watch Case Manufacturing Company against the E. Howard Watch & Clock Company and others to recover damages alleged to result from an illegal conspiracy to destroy plaintiff’s trade. Defendants demur to the complaint.

At Law. Proceeding by the Paine Lumber Company, Limited, against the United States to ascertain the damage caused to the plaintiff’s premises by the raising of a dam at Menasha for the purpose of improving the navigation of the Pox and Wisconsin rivers.

<p>Deed — Power or Attorney.</p> <p>An irrevocable power of attorney to sell and convoy land, coupled with a release to the attorney of the grantor’s claim to the proceeds of any sales made by the attorney, does not vest in the attorney the title to the land.</p>

This was an application by William G-ribbon to review a decision of the board of general appraisers affirming the action of the collector of the port of Few York in the classification for duty of certain imported handkerchiefs. The court below reversed the decision of the board, (53 Fed. Rep. 78,) and the collector appeals.

<p>Patents for Inventions — Infringement—Overflows for Baths.</p> <p>Reissued patent No. 6,739, granted November 16, 1875, to James Foley, for an improvement in wash valves and overflows for basins and batbs, which consists in bringing up the standpipe, or outer pipe of the overflow, through the casing or slab contiguous to the basin or bathtub, and securely attaching it to a removable cap resting upon the outside of the casing or slab, is not infringed by the device made under letters patent No. 170,709, t.o William S. Carr, in which the standpipe is secured by a screw’ flange resting on the top of the slab, but has no cap covering its upper end, as has the prior patent. 46 Fed. Rep. 77, aflirmed.</p>

<p>Patents eob Invention!;- — Inpbtnghmicnt—Rolmno Mills.</p> <p>In letters patent No. 247,0(55, issued September 27, 1881, to Christopher Lewis for an improvement in continuous rolling mills, the fourth claim, which covers a combination of “Literally adjustable” carriages having a tilting arrangement for the purpose of turning over the rail or girder before it is passed back through the adjoining set of rolls, is strictly limited to a combination ot which a laterally adjustable carriage is ono of the elements, and there is no infringement in the use of a combination in which the carriage is vertically adjustable, and adapted for use In “three high” rolls.</p>

<p>1 Demurrage — Delivery of Cargo — Customary Dispatch — Wharf Facilities.</p> <p>A charterer who is bound to furnish facilities for discharging “with customary dispatch” is not liable for demurrage when the delay is caused by want of space on the dock, caused solely by the ship’s attempting, without orders from the charterer, to keep separate tile bales belonging to different consignees. 55 Fed. Rep. 324, affirmed.</p> <p>2. Shipping — Discharging Cargo — Expense of Piling — Usage of Port-Charter Party.</p> <p>The custom of the port of New York, requiring a vessel discharging hemp to pile the bales on the dock for one-half its width and the length of the vessel, is not inconsistent with a clause of a charter party providing that “cargo shall be received and delivered alongside of the vessel * * * within reach of her tackles,” and the charterer is not liable to the’ vessel for the expense of such piling. 55 Fed. Rep. 324, affirmed.</p>

<p>At Law. Action by E. K. Brigham and others against the C. 0. Thompson Lumber Company. Heard on plaintiff’s motion, to remand to state court.</p>

<p>1. Insolvency Laws — Public Pot,icy — Prei-erenckk.</p> <p>The insolvent laws of Colorado are of a purely voluntary character, and the requirement that all assignments made shall be for the benefit of all creditors, alike, does not compel creditors to participate in the benefits of an assignment, or to relinquish any of the ordinary remedies for the collection of their debts when a debtor is insolvent or in failing circumstances. Hence there is nothing in the policy of the law to prevent a nonresident creditor of a failing- Colorado corporation from attaching lands thereof which are situated in the state of his residence.</p> <p>3. Receivers — Power on Court — Land Situates in Another Jurisdiction —Injunction.</p> <p>A court of equity which has appointed a receiver of lands situated in another state cr jurisdiction has no power to enjoin a citizen of such jurisdiction from levying an attachment on such lands, unless he is a party, cither in person or by representation, to (he litigation in which tho receiver was appointed.</p> <p>8. Same — Pr,rapiño—Estoprbl.</p> <p>The fact that plaintiff in such attachment suit was erroneously described by his pleadings therein as a citizen of the state in which the receiver was appointed (his citizenship being neither jurisdictional, nor otherwise material) will not estop him or his successors in interest from showing his true citizenship, in a proceeding brought by the receiver to enjoin him.</p> <p>4 Same — Parties—Purchase op Liens.</p> <p>A lien having been established by the attachment suit, which neither the receiver nor tho corporation's other creditors could divest, there was nothing to prevent a party to the receivership litigation, and a citizen of that jurisdiction, from taking an assignment of the judgment and lien, with all the rights of enforcement belonging to the original owner.</p> <p>5. Same — Bight to Acquire Liens isy Attachment.</p> <p>But where a party who had joined in the receivership litigation, and had been active in extending the receivership to the lands in question, aftenvards caused suit to be brought in the jurisdiction whore the latter were situated, to collect a debt, and thereby obtained a lien on the lands, the court had authority to éujoin him from enforcing the lien, or in any way interfering with the receiver’s possession or disposition of the property.</p>

<p>In Equity. Bill by James F. Failey, receiver of the Supreme Sitting of the Order of the Iron Hall, against Henry 0. Talbee and others, to gain possession of certain funds of the order. On demurrer to the bill.</p>

the Circuit Gourt of the United States for the District of Massachusetts. In Equity. Bill by the National Exchange Bank of Dallas against Thomas P. Beal, receiver of the Maverick National Bank of Boston, to recover the amount of a certain draft collected through the latter bank. A demurrer to the bill was overruled. 50 Fed. Bep. 355.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In Equity. Bill by Michael Knoedler and others against Eugene W. Glaenzer, impleaded with other defendants. The hill was dismissed below, (47 Fed. Rep. 4G5,) and complainants appeal.</p>

<p>BaetaivEss — Appointment of with Refeiucnge to Pbociskdtngs m State CoUST.</p> <p>A receiver was appointed toy the United States circuit court, for the Oregon Development Company, upon the representation that the appointment was concurred in by the officers of that corporation, and all par lies in interest. It afterwards appeared that the development company was auxiliary to the operation of the road of the Oregon Pacific Company, and was indirectly involved in a controversy going on in a state conít over the latter company; that two factions were contending for the control of the Pacific Company, one of which had succeeded in ousting the other, and proposed to apply to the slate court for the appointment of a receiver for the development company, the defendant company herein, The dispossessed faction secured the resignation of the trustee of the bondholders of the development company, who was a citizen of the state, and the substitution of another, who was not, so as to give ilv; federal court jurisdiction, and thereupon secured the appointment of a receiver before the state couce could act. Held, that a receiver would not bo appointed with a view to controversy with a receiver in the state court, or with reference to proceedings in such court; that the receiver appointed would toe removed, and another appointed, who would stand indifferent ho tween the contending factions.</p>

<p>Bbc;bxvebs- — Liabilities—Attorneys’ Feus.</p> <p>A trust company, which, has been compelled to como into court in order to collect from the receiver of a railroad company certain rentals justly due, cannot claim compensation for the services of its solicitors in procuring the order for payment, when such services were entirely for 11s own benefit, and not for the purpose of saving or adding to the fund which is to be distributed to the creditors in general Investment Co. of Philadelphia v. Ohio & N. W. R. Co., 43 Fed. Rep. 696, and Easton v. Rad-road Oc., 40 Fed. Rep. 188, distinguished.</p>

<p>t Rmsotiabie Instruments — Bona Fide Hobdeks — Evidence.</p> <p>In an action by the receiver of a national bank on a note made by defendants to tlieir own order, and indorsed by them, the note clerk of the bank testified to entries on the discount book indicating that the note was discounted on a certain day, and that the account of the proceeds was handed to the president, who put his signature upon it, thus making it an order on the teller for the amount therein stated; that this order was returned to the clerk, together with the president’s own check for an amount sufficient to make up die face of the note; and that this amount was used to pay a former note of defendants. As to the former note, he testified to entries on the discount book indicating that it had been discounted, and that the proceeds were deposited to the credit of the president. The bank shortly became insolvent. Held, that this did not sufficiently show the bank was a bona fide holder for value, as against the defense that the notes were procured from defendants by the president, who was also the sole managing officer of the bank, by fraud and without consideration. Butler, J., dissenting.</p> <p>8. Same — Fraud in Procurement.</p> <p>Defendants offered to show that the note in suit, and former notes which were renewed by it, were given at the solicitation of the president, who in the actual conduct of the business of the bank was its sole managing officer, and upon his execution of a receipt, also offered in evidence, reciting that the note was for the use of the bank and was to be paid by it at maturity; and that he stated that he proposed to use it in the clearing house, as it would look better for the credit of the bank than numerous small notes which it held, and which it would retain to protect this note of defendants. The court refused to admit tlie evidence offered. Held, that this was error, as the facts, if shown, would make a valid defense to the action. Butler, J., dissenting.</p> <p>8. Same — Authority of Bank President.</p> <p>It was also error to refuse defendants’ offer to show that the president was the sole managing officer of the hank, in the actual conduct of its business, and that the cashier occupied more the position of a clerk than that of actual cashier; for, if the president exercised the functions of cashier, and was the sole managing officer of the bank, he had authority to borrow money for the use of tho bank in tbe regular course of its business. Butler, J., dissenting.</p>

<p>Attachment — Priority of Liens — Claim of Provisional Syndic.</p> <p>Where, after the levy of an attachment in a federal court, defendants are adjudicated insolvents, and a provisional syndic is appointed, but the attachment suit goes to trial on the answer of defendants, without any intervention by the syndic until after judgment is rendered sustaining the attachment, and for the debt on which it was founded, the right of the attaching creditors to the fund realized from the sale cannot be defeated by the syndic, although the same would have been paid to him if he had intervened at the proper time.</p>

At Law. These were actions of ejectment The first-entitled case arose in tbe eastern, division, and the second in the western division, of this district, They are now heal’d together on motion® to dismiss.

At Law. Action by John B. dough against the United States to recover fees for services rendered as clerk of the circuit and district courts, and as commissioner of the circuit court.

<p>1. Jury — Challenges to Array.</p> <p>In a federal court it constitutes no ground of challenge to the array of jurors that three of the persons named in the venire had died after their names were placed in the wheel, and before the time of the drawing.</p> <p>2. Expert Evidence — Dangerous Machinery.</p> <p>In an action to recover damages for a death caused by being caught in a small, rapidly revolving shaft while deceased was working near it, there being no evidence that he saw it, there was no error in admitting evidence of experts that revolving shafting is dangerous machinery, the danger being latent.</p> <p>8. Witness — Examination.</p> <p>In an action for damages for a death caused by unguarded machinery, where a witness for plaintiff is asked, on cross-examination, if it occurred to him at the time that there was danger about the work, to which he answers in the affirmative, there is no error in permitting him, on redirect examination, to be asked wherein the danger consisted.</p> <p>4. Master and Servant' — Dangerous Machinery — Fellow Servants.</p> <p>Where a workman is killed by being caught in an unprotected revolving shaft, of whose dangers he is ignorant, the liability of the employer is not dependent upon whether he moved against it involuntarily, or was pushed against it by the shoving forward of a timber, which he and other workmen were lifting into place.</p> <p>6. Same — Instructions.</p> <p>In such case it is within the sound discretion of a federal court to say in its charge to the jury that if is beyond reasonable doubt that, if the shaft had been boxed over, guarded with boards, or stopped while deceased was working there, the accident would not have happened.</p> <p>6. Same — Duty op Master.</p> <p>In such case it is not error to charge that “a servant knowing the fact of machinery being in motion close by the place where he Is working may be entirely ignorant of the risk he would incur by falling against or coming in contact with it. In such case it is the duty of the master not only to exercise due care, but good faith, towards the servant, and to inform him of the risks he undertakes.”</p> <p>?. Same.</p> <p>Where the proximate cause of a servant’s death was unprotected machinery, of whose dangers he was ignorant, it was not error to refuse a charge that, if death resulted from the negligence of a certain fellow servant, with whom he was working, there could he no recovery, and to charge instead that it was the special and untransferable duty of the master to take reasonable precautions in jiroteeting its servants from dangerous machinery,</p> <p>b. Trial — Instructions—Federal Courts.</p> <p>It is a settled rule in the federal courts that it is not error for the judge to express his opinion, on Ihe facts when the matters of fact are ultimately submitted to the jury, and the rales of law are properly stated.</p>

<p>Railroad Companies — Accidents at Crossings — Evidence.</p> <p>Plaintiffs, riding in a wagon immediately in the rear of another wagon driven by a boy of 15, were approaching a railroad crossing, with whose surroundings they were unfamiliar, on a dark rnght. The wagons were stopped at a pomt wMch was some 85 feet from the track, with whose exact location they were unacquainted. From tliis point there was a view of less than 500 feet of the track, owing- to a deep cut near the crossing. Here they looked and listened, but, perceiving no train, started on again. At this moment their attention was attracted to a light some 40 rods in front and a little to the left of them, wliich they took to be on the railroad, and which they watched until the second wagon was on the track, when for the first time they discovered a train to their right, some 10 or 15 rods distant, and approaching at the rate of 30 miles an hour. Iksfore they could avoid the danger the engine struck the wagon, killing the horses and injuring plaintiffs. HM, that it could not be said as matter of law that, they were guilty of contributory negligence, and the case was one for the jury.</p>

<p>1. Xnjtjby to Minor Employe — Wabning of Danger.</p> <p>It is the duty of a master to notify a minor servant of the ordinary risks and dangers of Ms employment, which the former knows, or which a master of ordinary prudence and intelligence would, under like circumstances, know, the minor does not understand or appreciate and to instruct him how to avoid them.</p> <p>8, Same — Ordinary Bisks.</p> <p>No duty rests upon the master to notify the minor servant of the ordinary risks and dangers of his occupation which the latter actually knows and appreciates, or which are so open and apparent that one of his a.ge, experience, and capacity would, under like circumstances, by the exercise of ordinary care, know and appreciate. These dangers the minor assumes.</p> <p>8. Same — Latent Dangers.</p> <p>It is tlie duty of the master, however, to notify the minor servant of any latent dangers connected with a hazardous employment which are known to him, and of which the servant is not aware.</p> <p>4. Same — Latent Dangers — Instruction.</p> <p>A boy of .15, at work at a relishing machine in defendant’s woodworking factory, had his hand cut by the knives of the machine; and all the circumstances of the accident as shown by the evidence were such that he must have been held to have assumed the risks, and defendant exonerated from any negligence in the premises, because the danger incurred was well known to the boy, unless the jury found that the revolving knives created a suction that tended to draw into or against the knives any body which, like the boy’s hand, was placed close to them, and that this was known to defendant, but was not known to the boy. EM, that it was error to refuse an instruction to this effect, requested by defendant, and to give a general charge in which the issue as to this 'alleged suction was not mentioned.</p>

<p>1. Negligence--Action fob Injury.</p> <p>An injury that is the natural and probable consequence of an act of negligence is actionable.</p> <p>8. Same — Remote Cause.</p> <p>An injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable.</p> <p>8. Same — Natural Consequence of Act.</p> <p>An injury that is not the natural consequence of an act of negligence, and that would not have resulted from it but for the interposition of a new and independent cause, is not actionable.</p> <p>A Same.</p> <p>-An injury that is the result of many fortuitous circumstances, no one of which can be fairly said to have been its proximate cause, is an accident, and is not actionable.</p> <p>S. Same.</p> <p>If the plaintiff fails to show that the negligence with which he charges the defendant was the proximate cause of the injury ho cannot recover.</p> <p>®. Same — Proximate Cause.</p> <p>Plaintiff was in charge of certain stock shipped by rail, and was riding in the caboose. Before reaching a certain station, where he knew it was usual to change cabooses, he asked the conductor if a change would be made there, and was answered- in the negative, and told that the train would only stop a few moments, and be would have no time to examine bis stock. On reaching tbe station, however, be got off, walked forward, and examined several ears of tbe stock, and then turned back, but, tbe train having already started, bo feared bo would be unable to board tho caboose, and therefore climbed upon a stock car, and walked backward along tbe top of the train. Before be reached tbe caboose tbe train had stopped, and was backing for the purpose of changing tbe caboose, and it was kicked off from tbe train ;just as be was stepping upon it, causing him to fall to tbe track, whore bis foot was crushed by a wheel. Held, that tbe statement of the conductor that the caboose would not be changed wás not tbe proximate cause of tbe injury, and it was error to allow evidence thereof to go to tbe jury.</p>

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

<p>1. Eight-Hour Law — Who Amenable.</p> <p>To render one amenable to the “eight-hour law” (Act Cong. Aug. 1, 1892) ho must be an officer or agent oí the United States, or a contractor or subcontractor whose duty it is to employ, direct, or control laborers or mechanics upon some of the public works of the United States, and he must have intentionally required or permitted such laborers or mechanics to work more than eight hours in any calendar day.</p> <p>3. Same: — Building Barge to Sell to United States.</p> <p>The “eight-hour law” does not apply to the case of a man who, entirely at his own risk and cost, although under government inspection, builds barges which United States engineers agreed to purchase on completion for government use if found to conform to certain prescribed specifications.</p>

<p>BANMUTTU’CW- — LjJUTATIOV OH’ AcTiOI,:;.</p> <p>Rev. St. § 5057, which bars suits between an assignee in bankruptcy and any person claiming an adverse interest in property transferable to or vested in the assignee, does not apply to a proceeding by the assignee against the bankrupt himself, to secure a fund withheld by him, and omitted from Ms schedules, in fraud of the assignee’s rights. 45 Fed. Rep. 784, affirmed.</p>

<p>1. Evidence — Judicial Notice —Facts of Natural History — Customs Duties.</p> <p>In customs duties cases the court will take judicial notice of the general facts of natural history, including the fact that the unimproved native sheep of all countries produce fleeces whose value is depreciated more or less by the undue quantity of hair growing on the belly, flanks, and parts of the thighs and arms of the animals. (</p> <p>2. Customs Duties — Classification—Evidence—Appeal.</p> <p>Certain bales of merchandise purporting to be the fleeces of the unimproved North China sheep were imported from Shanghai, the papers being regular, and free from all question of fraud. The goods consisted of very low grade wool, containing a large mixture of coarse, short hair, and cost three cents a pound in Shanghai, and were worth but nine cents in Baltimore. The importer testified that he had lived in China, and had dealt in the fleeces of the China sheep, and that the importation consisted of such fleeces. A customhouse expert, however, testified that the hair in the fleeces was goat’s hair, and on this evidence the collector and board of appraisers placed the importation in class 2, par. 377, Act Oct. 1, 1890, and assessed a duty of 12 cents a pound, and this conclusion was sustained by the circuit court. Held, that an appellate court, taking judicial notice of the fact that a large proportion Qf hair grows on the bodies of unimproved slieep, would find that the whole importation consisted of the fleece of the sheep, and therefore belonged to class 3, (paragraph 378,) and was dutiable at 32 per cent, ad valorem.</p>

<p>In Error to tlie Circuit Court of the United States for the Southern District of New York.</p> <p>At Law. Action by William Ballin and others against Joel Erhardt, as collector of the port of New York, to recover duties paid under protest. There was judgment for plaintiffs, and defendant brought error.</p>

<p>1. Patents for Inventions — Infringement— Fruit Parers.</p> <p>In letters patent No. 232,371, granted September 21, 1880, to Robert P. Scott, for an Improvement in fruit parera, the first claim was for “the rotating dish-shaped knife, H, having a continuous catting edge, in combination with mechanism for operating the same.” Held, that “a continuous cutting edge” herein means an edge continuous in action, or which continuously cuts; and hence a device, otherwise an infringement, is not saved from infringement by the fact that its cutting edge has in it a nick or notch.</p> <p>3, Same — Yaridity—Prtoe, State of Art.</p> <p>This patent, which covers a device wherein the plane of the cutting edge of the knife is perpendicular to the spherical surface of the fruit to be pared, and which in consequence completely and satisfactorily pares the fruit in all parts, and of whatever shape, is not anticipated by patent No. 114,867, issued May 16, 1871, to the same party, for a device in which the knife was a disk, with the plane of Its cutting edge tangent to the surface of the fruit, wliieh was imperfect in its operation, and the result accomplished.</p>

<p>L Patents for Inventions — Validity—Combination—Eyeglass Holders.</p> <p>The claim of letters patent No. 175,821, granted April 11, 1876, to I. N. Clawson, for improvements in eyeglass holders, was as follows: “The inwardly closing hook, B, bottom bend, C, and bar, E, with the contact point closing the upper space of the bend, in combination with the single laterally extending open eye, D, and with the coil, P, and pin, <3, all constructed and arranged to form an improvement in eyeglass holders.” Held, that this is merely an aggregation of old elements, and not a combination, within the moaning of the patent laws.</p> <p>2. Same — Anticipation.</p> <p>This patent is anticipated by British letters patent No. 1,7S8, granted to Montleart & Tent in 1863, for an improved hook, ordinarily used to attach fabrics to a support; for this device, when inverted, is identical with that of Clawson’s patent, save that the hook of the latter is bent toward, while the former bends outward.</p> <p>B. Same — Infringement—Estoppel.</p> <p>Where an applicant for a patent has acquiesced to the decision of the patent office that a certain feature of his invention is anticipated by a patent referred to, he is estopped to claim an infringement of that feature of his patent thereafter.</p>

In Equity. Suits by tbe Sawyer Spindle Company, John E. Atwood, and Eugene Atwood against Arthur G. Turner, and by the two last-named complainants against the same defendant, for the infringement of certain patents.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In Equity, Bill by Lewis E. Waterman against Asa L. Shipman (who died before final hearing, and whose executor has been, substituted) and James D. Shipman and Edward L. Shipman, his sons, co-partners by the firm name of Asa 1. Shipman’s Bous, alleging the iiiii-ingeinent of certain letters patent. The circuit court dismissed ike bill. Complainant appeals.</p>

<p>In Equity. Suit by tbe Delaware Metal Befinery against Wood-fall Bros, for infringement of a patent.</p>

<p>In Equity. Suit by the Griswold Manufacturing Company against John IS. Harker & Oo. for the infringement of a patent.</p>

<p>Sjid'piiíg — Emigrant Passengers — Contiguous Tkrrttory.</p> <p>Under the act of congress of August 2, 1882, prohibiting the carrying of “emigrant passengers” from any port or place in a foreign country, except ports and places “in foreign territory contiguous to the United States,” unless the spaces and accommodations therein mentioned be provided, Vancouver's island, B. O., is territory contiguous to the United States, and the transportation of passengers therefrom to Astoria, Or., is within the exception.</p>

<p>Appeal from tbe District Court of the United States for the Southern District of New York.</p> <p>In Admiralty. This was a libel by Wilfred Hiñe and another against James D. Perkins and another, which was dismissed, in part, by the lower court, and a decree entered in favor of the libelants as to the residue. Libelants appeal.</p>

<p>Pilotage — Negligence—Pleading.</p> <p>. In a libel for negligent pilotage, it is a sufficient allegation of negligence to aver that the vessel was grounded by the “negligence of the said pilot in the business and calling of the pilotage” of the harbor in question, for, from the nature of the case, the particulars of the negligence cannot usually be known to the libelant, and he must judge only from the result.</p>

<p>1. Charter Party — Vessel Outside Charter Limits — Master, Charterers’ Agent — Health Laws — Charterers’ Duty to Procure Clean Bill of Health.</p> <p>The charterer of a vessel running under a time charter from the river Platte to the United States or the United kingdom or Europe made a subcharter, which provided that the ship should go outside her charter limits, and take a cargo from Progresso, Mexico. The charter provided that the master, though appointed by the owner, should be under the orders of the charterer. The ship went from Buenos Ayres, an infected port, to Progresso, where the health officer refused her admittance. The ship then went to Key West, where the master telegraphed the charterer that he could not return to Progresso without a clean bill of health from some .other place. The vessel on the same day was put in quarantine at Key West for 30 days. After some further telegrams, the charterer ordered the ship to return to Progresso immediately. After the vessel was ready for sea, with steam up, and anchor chain short, the charterer telegraphed to have the papers viseed by the Spanish consul, to which the master replied, “Too late,” and went to Progresso, where he was again refused admittance, and, after much consequent delay, the charter was terminated. The charterers declined to pay the charter hire, averring that they had suffered damage by reason of the master’s failure to obtain the vise, and, on being sued for the charter money, brought a cross suit to recover such damages. Heidi, that the owners were under no obligation to obtain clean health papers for Progresso, since they never authorized the ship to go there; that the master was the charterers’ agent in respect thereto; and that the master’s defaults, if any, did not become the faults of the owners. 49 Fed. Rep. 379, affirmed.</p> <p>2. Same.</p> <p>It appearing also that the final refusal to permit the ship to enter at Progresso was not due to the lack of the vise, but because she came from an infected port, and without a clean bill of health, for which the owners were not responsible, the charterers’ claim of damages must be dismissed, and the ship recover her charter money. 49' Fed. Rep. 379, affirmed.</p>

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

<p>Shipping — Damage to Cauco — Bri.i, op Lading — Stipulations — Notice of Damage.</p> <p>Where a case of feathers showed signs of damage on being landed from respondent's steamer, and the bill of lading provided that “the shipowner is not. liable for any claim of which notice is not given before removal of the goods,” but libelant gave no notice until four or five days after the case had been removed from the warehouse, it was held that the provision in the hill of lading was reasonable, and undér it libelant could not recover.</p>

<p>1. Towage — Negligence—Anchorages—Custom and Usage.</p> <p>A tug with two barges in tow left Philadelphia on a voyage to Boston, but when near the ocean the indications of bad weather were such that she deemed it unwise to proceed to sea, and anchored her tow near Brown shoal, in Delaware bay. She left them there on Thursday evening, and, engaging in other towage services, did not return until Saturday. At this time the signs of bad weather had increased, so that the tug left the barges for other towage services, and never returned to them, for the wind increased to an unusually violent gale, and on Tuesday they sank. Meld, that though the tug followed an established custom in anchoring her tow to await a change of weather, and engaging in other towing, it was her duty to provide a safe anchorage, and to keep such watch over the tow as to enable her to render whatever assistance it might need.</p> <p>2. Same — Negligence—Evidence. '</p> <p>Several experienced mariners testified that Brown shoal, owing to its exposure to the ocean swell, was not a proper place for a vessel to ride out a gale at anehor, and that it was never resorted to for that purpose. It was shown that there were several safe anchorages further up the bay, where vessels had ridden out the gale in question; and there was evidence that the tug might have moved the barges thither before they were lost, had she not been otherwise engaged. Melé, that she was guilty of negligence that rendered her liable for the loss of the barges.</p>

<p>1. Tugs and Tows — Rival Tugs — Negligence—Liability.</p> <p>A schooner, coming into harhor, signaled for a tug. Rival tugs, the H. and the C., started on a race to secure the job. There was some wind, and ' the sea was rough, but navigation was not perilous or difficult. The services of the H. were accepted, and she made three unsuccessful attempts to throw her heaving line to the schooner, occupying 20 minutes, during which the schooner was drifting on a lee shore. To prevent grounding, the schooner’s captain ordered the H. off, and called on the O. The O. responded, but the H. backed up in her way, obliging her to stop and reverse to avoid collision. The 0. again tried to approach, when the H. a second time backed into her course. At the third attempt the O. got the towing line aboard, the schooner secured it to her bow, and attempted to back out. Meantime the schooner had grounded. The tow line was about 100 feet in length, too short for the O. to turn about with. In backing, the C., on reaching the end of the tow line, was brought up suddenly, and was thrown to port and grounded by the motion of her screw. Both the schooner and the O. sustained damage. Held, that the O. was not at fault, and that the libel of the schooner against heir must be dismissed.</p> <p>2. Same — Towline—Negligence—Degree or Care in Presence or Peril.</p> <p>The schooner had two towlines. The longer one was used only in stormy weather, when the strain was severe, and at ether times was stowed below. The shorter line was the one usually used in taking her into harbor. It also appeared that, if ihe H. had not obstructed the C., the latter would have swung around, quartering to the schooner’s bow, and thence out into safe water, thus presenting her stem for the towline, which would then have been long enough. On a libel by the owner of the O. against the schooner, it was claimed that the damage to the O. was caused by the use of the short line. Hell, that the libel must be dismissed, the master of the schooner having no reason to suppose that the long line would be required, and parties in peril not being held to so strict a rule of conduct as when in a situation for calculation and forethought.</p> <p>R. Same — Wantonly Obstructing Rival Tug — Liability.</p> <p>The 0. was justified iu continuing her attempts to reach the schooner, notwithstanding the obstruction of ihe H., and the proximate cause of the damage to the O. was tbe wanton conduct of the H., and not voluntarily going into a perilous situation. The H. was therefore hable for the damage sustained by the O.</p>

<p>In Admiralty. Various suits by the owners of 17 tugs to recover salvage against the Helen If. Bobbins. The suits were consolidated on motion.</p>

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

<p>Oollisiox — Steam and Sail Meeting™-Change op Sailing Vessel’s Course.</p> <p>A collision occurred in Dong Island sound, by night, between Hi© steamer Portia, bound west, and the schooner Fair Wind, sailing east. On the evidence the court rejected the story oí the schooner, that the steamsliip was first seen to windward, afterwards passed to leeward, and then ■ suddenly changed again, throwing herself across the bows of the schooner, which had always hold her course; but the court found, on the evidence, that the steamer, having seen the light of the schooner in season, was properly maneuvered to avoid her, when her efforts were thwarted, aud the collision occasioned, by a luff on the part of schooner. Held, that the latter was in fault for the collision, in failing to hold her course.</p>

<p>1. Collision — Foa—Schooner at Anchor — Evidence.</p> <p>A scliooner, while lying at. anchor in a dense fog in President Roads, Boston harbor, in a proper place, out of the ordinary tracJi of steamers, was struck by a steamer which was moving slowly, and sounding her whistle at proper intervals. The witnesses for the steamer testified that, although they were on the alert for signals, they heard no fog bell on the schooner until a moment before the collision. The schooner's watchman, however, testified that he rang the bell at proper intervals, and her captain swore that after, he first, heard the bell he went on deck, but shortly returned to the Cabin, where ho heard the bell sounded every minute or two until the collision. HM, that there was no such preponderance of testimony or of probability against the schooner as would warrant reversing a finding in her favor by the district court.</p> <p>2. Same — Inevitable Accident.</p> <p>Under the circumstances the court could not find that the collision was due to inevitable accident, as the .schooner was out of the ordinary track of steamers, in a safe place, and was regularly ringing her hell, the sound of which was capable of being heard.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In Admiralty. This was a libel by Charles A. McCaffrey and others against the steam tug Clara and the steam lighter Beliance for damages resulting from a collision. Both vessels were condemned in the lower court, (49 Fed. Bep. 765,) and the claimant of each appeals.</p>