Volume 56 — Federal Reporter

<p>1. Contracts — Construction—Mortgages— Equity Jurisdtction.</p> <p>A written contract provided that, if complainant would buy a certain lot of a third person for $7,000, defendants would, at the end of a year, buy it of complainant for $7,700, if the latter elected to sell. Complainant purchased the lot accordingly, and at the end of a year tendered a deed to defendants, and afterwards brought a hill alleging that the transaction was well understood to be in the nature of a loan, with a reservation that complainant might retain the land if he should so elect. The bill prayed that a decree be; made for $7,000, with interest; that a lien on the land be declared, and, if the sum were not paid, that the lien be foreclosed; and for general relief. Held, on a demurrer to the bill, that the allegations as to the nature of the transaction must be taken as true, and the contract held to be a mortgage, which a court of equity had jurisdiction to foreclose; and that complainant would not, therefore, be remitted to an action at law.</p> <p>2. Same — Specific Performance.</p> <p>If the allegation as to Hie nature of the contract were disregarded, then the contract on its face was an option to sell supported by a sufficient consideration, and was specifically enforceable in equity.</p> <p>3. Specific Performance — Mutuality of Right.</p> <p>The rule that want of mutuality in the light to specific performance will prevent enforcement hy one party has no application to a contract which is an option to sell real estate at a specified price.</p>

In Equity. Suit by the Central Trust Company of New York against the United States Rolling-Stock Company, a manufacturing corporation, and others, to foreclose a mortgage. A decree of foreclosure ivas entered, and a motion is now made to set the same aside. Decree modified.,

<p>Creditors’ Bile — Assignment—Intervention—Finad Degree.</p> <p>Certain insolvent debtors executed, an assignment for llie equal benefit of all their creditors to one who accepted (he trust and took possession of the property, but afterwards repudiated the trust, and converted part of the property. A number of creditors then filed a bill, and prosecuted ihe suit to a decree which established the validity of the assignment, directed the assignee to account for all property converted, and ordered its distribution among Hie plaintiff creditors. This decree was affirmed on appeal, and, after the mandate was tiled in the lower court, a judgment creditor who had not joined in the creditors’ suit filed his petition of intervention therein. Held, that he was entitled to intervene and share in the assigned fund, for the only equity acquired by the suing creditors over ohe who did not join with them is one to require him to pay his proportionate part of the costs and disbursements.</p>

<p>Appeal from the United States Court in the Indian Territory.</p> <p>In Equity. Petition of intervention by Tennant, Walker & Co. in a creditors’ suit brought by Rainwater, Boogher & Co. and others against Smith & French, Johnson Thompson, and Mrs. J. A. French. The interveners’ petition was dismissed on demurrer, and they appeal.</p>

<p>In Error to the United States Court in the Indian Territory. Action of forcible entry and .detainer by Joshua H. Ice against James G. Mehlin and others. There was judgment for plaintiff, and defendants bring error.</p> <p>Statement by CALDWELL, Circuit Judge:</p> <p>On tlie 10th day oí May, 1892, Joshua IT. Ice, the plaintiff below, and the defendant in error in this court, brought an action of forcible entry and detainer in the United States court for the Indian Territory, against James G. Meldm, John Ketchem, and Terry Totter, to recover the possession of 330 acres of land in the Cherokee Nation, and damages for the unlawful detention of the same. The defendants, among other defenses, pleaded in justification that they ousted the plaintiff from the premises in obedience to the order of Hie clerk of the district court of Cooweescoowee district of the Cherokee nation, and the command of the writ of possession duly issued.by said clerk and placed in the hands of Edward Adair, sheriff of said Coowee-scoowee district, for execution, and duly executed hy him. The justification was pleaded with technical accuracy. The answer, and exhibits made iv’-rt thereof, show that the defendant in error was occupying the promises in dispute at the time of the death of Lemuel P. Ketchem, a Cherokee Indian, and the owner thereof; that the plaintiff in error, James G. Mehlin, a citizen and member of the Cherokee Nation, was duly appointed administrator of the estate of Lemuel T. Ketchem, deceased, by the proper probate court of the Cherokee Nation, and duly qualified as such, and tha/r, as such administrator, he was, under the laws of the Cherokee Nation, entitled to the possession of the premises; and that on The 22d day of December, 1890, the said administrator commenced an action in due form in the district court of said Coo-weescoowee district of the Olierokee Nation, against the said Joshua H. Ice, to recover the possession of the premises. Upon filing the complaint, the clerk issued the following summons:</p> <p>“Cherokee Nation, Cooweescoowee District.</p> <p>“To any Lawful Officer, Greeting: Yon are hereby commanded to notify J. H. Ice to be and appear before the undersigned, clerk of the Oooweescoo-wee district, on the 20th day of January, 1891, and show cause, if any, why a writ of ejectment should not issue against him in favor of James Mehlin, as administrator, complainant, for a certain improvement, located two miles south of Alluwe, I. T., adjoining a place owned by J. E. Campbell, Coowee-scoowce district, in the Cherokee Nation. Herein fail not to execute within the time, and return with the date of services thereon as the law requires. Given under my hand and seal of office this 22d 'day of December, 1890.</p> <p>[Seal.] [Signed] “H. H. Trott.”</p> <p>“Clerk of the Cooweescoowee District.”</p> <p>This summons was duly served on the defendant, Ice, and on the return day he appeared by Ms attorney, and filed the following motion:</p> <p>“Before Hon. H. H. Trott, Clerk of Cooweescoowee District, C. N.</p> <p>“.James G. Mehlin vs. J. H. lee.</p> <p>“Comes now J. H. Akin, as attorney for defendant in the above case, and moves the court for a continuance in said case, and for cause says that said defendant, Ice, is sick in bed, and cannot possibly be present at this time; also on account of the absence of Henry Armstrong, by whom he expects to prove that the place in question belongs to said Armstrong, and that said defendant rented said place from him; that said Armstrong is detained for some reason unknown to affiant.</p> <p>[Signed] “J. H. Akin,</p> <p>“Attorney for Defendant and Henry Armstrong'.”</p> <p>The defendant, lee, also filed a lease from Armstrong, who was a Cherokee Indian, to himself, for the premises in dispute for the term of one year from January 19, 1891. The record of the proceedings before the clerk is as follows;</p> <p>“Complaint for Writ of Ejectment.</p> <p>“Proceedings in tlie case of James Mehlin vs. J. H. Ice.</p> <p>' “Before H. H. Trott, Clerk of Cooweescoowee District, Cherokee Nation, Ind. Ter. Court convened on January 20th, 1891, at 9 o’clock A. M. At first call defendant fails to answer, and case continued until 3 o’clock P. M. Second call, 3 o’clock P. M,, defendant fails to answer. Court adjourned for one hour. Pour o’clock P. M., convened according to adjournment. Motion filed by defendant for a continuance as shown in Doc. marked ‘A,’ Motion accepted by plaintiff with the understanding that Henry Armstrong be made a defendant in this suit. Case continued to Monday, January 26th, 1891. January 20th, 1891, 9 o’clock A. M., ease called, and continued to 10 o’clock A. M. Ten o'clock A. M., both parties answer ready. Defendants enter a general denial to the 1st, 2d, and 3d allegations, and admit that Mr. Ice is a citizen of the United States. Court proceeded to hear testimony. Court adjourned to 2' o’clock P. M. Two o’clock P. M., convened according to adjournment. Evidence proceeded wdth. Pive o’clock P. M., court adjourned to 9 o’clock A. M., January 27th, 1891. January 27th, 9 o’clock A. M., court convened according to adjournment. Evidence proceeded wdth. Twelve o’clock M., adjourned to 2 o’clock P. M. Two o’clock P. M., convened according to adjournment. Testimony closed at 3:35 P. M., and it was agreed by the attorneys to submit their argument in writing, and coiut agreed to answer on‘Friday, January 30th, 1891, at 9 o’clock A. M. January 30th, 1891, the clerk being unable to attend court,.the decision was deferred until Pebruary 5th, 1891, 9 o’clock A.'M. February 5th, 1891, case taken under consideration. After the arguments had been read, the court ruled in favor of plaintiff.</p> <p>[Signed] “H. H. Trott, Clerk of Court.”</p> <p>The testimony before the clerk was taken dowui in waiting, and constitutes a part of the record sent up from that court. After finding and adjudging that the plaintiff was entitled to the possession of the premises, the clerk thereupon issued a writ, of which the following is a copy:</p> <p>“Writ of Ejectment.</p> <p>“Cherokee Nation, CoowreescoowTee District.</p> <p>“To any Lawful Officer, Greeting: You are hereby commanded to proceed witliout 'delay; apd eject one J. H. Ice,' together with his effects, from the possession of a.certain improvement located two miles, south of Alluwe, in Cóoweescóoweé" district;. Cherokee Nation, and place James H. Mehlin in possession of samé,'which will be in accordance with a preliminary investigation had by me, 'on the 26th day of January, 1891, in accordance with the pro; visions of an ‘Act of the national council amending section 154, page 139, Compiled Laws, and approved. December 7th, 189-. Herein fail not to execute ánd retard. Given Under my hand and seal of office this, the 5th day Of February,- 1S91. , • . II. H. Trott, . -</p> <p>, [Seal.J ■ “Clerk of Cooweescoowme District.’.’...</p> <p>This writ .was executed by Edward Adair, sheriff of the district, -assisted by the defendants, by removing Ice from the promises, and placing the defendant, James G. Mehlin, as administrator' of the estate .of Lemuel P. Ketchem, in possession thereof. Thereupon Ice brought tills action, and upon.:-the trial helow recovered judgment for the possession of the premises, .and $500 damages and costs, and- the defendant sued out this .writ of error.-:.</p> <p>The followfing is a copy of the statutes of the Cherokee Nation prescribing the mode of proceeding in such cases: •</p> <p>“Any person wfho may take or be- in possession of any improvement without consent of the claimant or owner, such improvement not being abandoned, and a part -of tlie public-domain, and any person wdio shall come into possession of or now> be possessed of any farm,- residence, or improvement of any kind, to bold .the same for a limited time by virtue, of an agreement made With the .-owner .or prior legal possessor- thereof, and who shall -fail or refuse to-vacate the. prefpisés, wifh.his effects, whenever the owner or person with whom such agreement shall have been made shall demand possession thereof according to the terms of such agreement, such owner or party to said agreement shall have the right to go before the clerk of the district, and make oath to the facts that he is the lawful owner of such improvement, that such improvement is held by an occupant against such owner’s will and consent, and, either without any agreement with such owner in the first place, or with his consent to the occupancy thereof for a limited specified time, but which timo has expired, and such occupant continues in unlawful possession, though possession has been demanded of him by the owner; whereupon the clerk shall issue a writ commanding the sheriff of the district to summarily eject such unlawful occupant from the premises in question, and to place the person making said affidavit in possession, which writ the sheriff shall execute and return without delay. This act shall be held to apply to all persons, lawful residents or not, of this nation, who may be or come into possession of any farm, residence, or improvement in this nation, either without contract with a citizen, or by and through a contract made to hold the same for a limited time. (Act approved December 4, 1877.)”</p> <p>Amended as follows:</p> <p>“Be it enacted by the national council, that section 154, art. 39, c. 3, be, and the same is hereby, amended so that before any writ of ejectment shall issue the district clerk shall he required, when application is made for a writ of ejectment, to notify the person of whom complaint is made, and give him at least ten days to sho.w cause, if any, why the writ should not issue; and the district clerk is hereby authorized to determine and be competent to decide whether a writ shall issue, with justice to both parties, and in compliance with the laws of the Olierokee Nation. Be it further enacted, that all laws and parts of laws conflicting with this act are hereby repealed. Approved December 7th, 1889.</p> <p>“J. I?. Mayes, Principal Chief.”</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Statement by CALDWELL, Circuit Judge:</p> <p>This was an action at law, brought by P. P. Conger, the defendant in error, against the Northern Pacific Railroad Company, plaintiff in error, in the circuit court of the United States for the fifth division of the district of Minnesota, to recover $25,000 damages, for a personal injury» which the plaintiff alleged he sustained through the negligence of the defendant. There was a jury trial, and a verdict for the plaintiff for $12,000, for which judgment was rendered. On a motion for a new trial the court passed an order that unless the plaintiff remitted $3,000 from the judgment a new trial would he granted. The plaintiff entered a remittitur for that amount, and thereupon the motion for a new trial was overruled, and the defendant sued out this writ of error.</p>

<p>1. Conspiracy — Violation op Interstate Commerce Act — Indictment.</p> <p>Where an indictment, under Iiev, St. § 5440, for a conspiracy to commit an offense against the United States, namely, the offense created by section 10 of the interstate commerce law, as amended by the act of. March 2, 3889, (25 Stat. 858,) charges a conspiracy between certain lumber merchants and their servants and an employe of a railroad company to procure less than the established rates by false weighing of the lumber shipped, such weighing being done by the railroad employe, the jury, in order to convict, must find an agreement or combination between two or more of the defendants for the purpose named, and also, as an OA'ert act, the actual false weighing of lumber by such employe.</p> <p>2. Same — Overt Acts — Single Offense.</p> <p>Where the evidence shows one continuous agreement or intention to. secure such underrate, proof of a single overt act in furtherance or'it is sufficient to make out the offense; and proof of separate overt acts will not show more than one offense where the agreement or combination is one and continuous.</p> <p>3. Same — Evidence—Variance.</p> <p>The indictment charged that the shipment was made from East Atch-ison, Mo., where the underweighing was accomplished, to points in Nebraska and Colorado. The evidence showed that the lumber was shipped from Atchison, Kan., and it was also shown that the rates from Atchison and East Atchison were the same. Held, that this variance was immaterial, if the overt act charged — the underweighing — was accomplished at East Atchison, within the jurisdiction of the distinct court trying the indictment.</p> <p>4 Same — Establishment of Rate — Posting Schedules.</p> <p>The posting of schedules required by the interstate commerce act is solely for the information of the public, and is not necessary to the establishment of the rate; and hence, where a rate is known to the persons operating the railroad as a fixed'rate, having a uniform character, and undertaking to treat all shippers alike in proportion to the distances shipped, then such rate is established, within the meaning of the section . under which the indictment was found.</p> <p>5. Same — Evidence.</p> <p>As evidence of the establishment of the rate, the jury may consider the testimony of those employes of the carrier having charge of that branch of its business, and also the fact that it posted a notice stating that schedules of rates could be inspected upon application to its agent.</p> <p>0. Same — Indictment—Material Allegations.</p> <p>• The allegation in the indictment that the railroad employe therein named was employed by the railroad to weigh the lumber shipped is material, so far as concerns the overt acts of underweighing therein charged, but it is immaterial whether he was generally employed for the purpose.</p> <p>7. Same — Unlawful Acts of Agents.</p> <p>The shippers of the lumber may be convicted under this indictment upon a showing that their servants procured the unlawful discrimination ,'in rates as therein charged, provided they knew of such unlawful acts, permitted them to continue, and received, directly or indirectly, the benefit of them; for it was their duty to see that the law was not violated ■ by- their subordinates by reason of their own negligence.</p> <p>8/ Same — Evidence—Residence of Parties.</p> <p>In order to the conviction of parties charged with conspiracy it is not essential that they should have resided within the jurisdiction of the court trying the indictment a.t the time the conspiracy was formed, if the conspiracy was entered into, and had its headquarters, in that jurisdiction.</p> <p>9. Same — Circumstantial Evidence.</p> <p>The formation and existence of the agreement or combination charged :jnay.-be.shown by circumstantial evidence,,and the overt act proved.may be considered as one of the circumstances tending to show it.</p> <p>10. Same — Accomplices.</p> <p>It is not necessary that the testimony of an accomplice in the conspiracy charged bé corroborated in every part of the act which-goes to make .up the offense, but it is sufficient that he be corroborated in some material fact.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>In Equity. Suit "by the .Johnson Company to enjoin the Tidewater Steel Works from infringing letters patent ‘No. 360,036, granted March 29, 1887, to Arthur J. Moxhain for a method of, and rolls for, rolling side-hearing girder rails. In the court below the bill was dismissed by Acheson, circuit judge. For a full statement of the case, see 50 Fed. Rep. 90, for his opinion, which is here adopted by the circuit court of appeals.</p>

<p>1. Marike Insurance — Cargo—When Policy Attaches.</p> <p>A marine policy on a cargo of wheat “at and from New York and hound for Lisbon” attaches while the wheat is in harbor at New York, immediately upon loading.</p> <p>2. Same — Particular Average Clause.</p> <p>Under a marine policy against all sea peril, loss and damage to cargo, except as provided in the clause, “Free of particular average unless the vessel be stranded, sunk, burned, or in collision,” the exception ceases to operate as soon as the vessel had been stranded or in collision, whether the subsequent loss is caused thereby, or by some other cause.</p> <p>3. Same — Collision in Harbor.</p> <p>There is a “collision,” within the meaning of such a policy, when the vessel, being fully loaded, has once cast off her moorings, hut has returned to her dock because of a difficulty with her engines, and is there struck by a scow, which makes a sight break in her bulwarks.</p>

<p>Municipal Corporations — Funding of Indebtedness- — Jdjxjments.</p> <p>An owner of a judgment recovered against tlie hoard of directors of the city schools of New Orleans for teachers’ salaries accruing between 1872 and 1880 is not entitled to have bonds issued therefor by the board of liquidation of the city, for by Act La. 1881, No. 67, § 2, and the constitutional amendment of 1890. the only judgments which the latter board is authorized to fund are judgments against the municipality of New Orleans.</p>

<p>J. Construction of Contract — Corporation Promoters.</p> <p>It. agreed to convey certain property to H., or to a corporation to be formed by H., and HT. agreed to pay It. 83,000, to issue to him half of the capital stock of the corporation, and to deposit with the corporation's treasurer 825,000 to be used in developing said property. Helé, that the $25,000 paid to 1lio corporation should not be credited to it. on the books of the company.</p> <p>2. Corporations — Directors—Appointment of Receiver- -Erai'd.</p> <p>The directors of a corporation levied an assessment on its stock, and, on failure to pay same, advertised for sale only the stock of one who held nearly one-third of the entire stock, although other stockholders were also delinquent; it appearing, however, that the other stockholders had promised 1o pay. At a meeting of the directors at which only the president, secretary, and treasurer were present, they voted themselves salaries, which, however, they never collected. Held, that the action of the directors regarding their salaries was void, and that tlio irregularities are not. sufficient to justify appointing a receiver for the corporation, it being shown that no actual fraud was intended.</p>

<p>In Equity. On demurrer to the bill in a suit by Brown University against the Rhode Island College of Agriculture and Mechanic Arts and others.</p> <p>This action is against the corporation respondent and certain persons who are in fact state officers, but is not, in substance, against the state or the property of the state. Liggett v. Ladd, 17 Or. 89, 21 Pac. Rep. 133; In re Agricultural Funds, 17 It. I. 815, 21 All. Rep. 916; Osborn v. Bank, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; Pennoyer v. McOonnaughy, 140 U. S. I, 11 Sup. Ct. Rep. 699; State of New Hampshire v. State of Louisiana, 108 U. S. 76, 2 Sup. Ct. Rep. 176; U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. Rep. 1083; Christian v. Railroad Co., 133 U. S. 233, 10 Sup. Ct. Rep. 260; Louisiana v. Steele, 134 U. S. 230, 10 Sup. Ct. Rep. 511; North Carolina v. Temple, 134 U. S. 22, 10 Sup. Ct. Rep. 509; Stanley v. Schwalby, 147 TJ. S. 508, 13 Sup. Ct. Rep. 418; Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. Rep. 91; Litchfield v. Webster Co., 101 TJ. S. 773; Board v. McComb, 92 Ü. S. 532; Tomlinson v. Branch, 15 Wail. 460; and eases cited by the respondents under tlie first point, as stated below.</p> <p>This bill is, in substance, against the sovereign state of Rhode Island, and therefore cannot be maintained. Briggs v. Lightboats, 11 Allen, 162; Troy, etc., R. Co. v. Com., 127 Mass. 43; Murdock Parlor Grate Co. v. Com., 152 Mass. 28, 24 N. E. Rep. 854; Governor, etc., v. Madrazo, 1 Pet. 110; Louisiana v. lumel, 107 TJ. S. 711, 2 Sup. Ot. Rep. 12S; Cunningham v. Railroad Co., 109 TJ. S. 446, 3 Sup. Ct. Rep. 292, 609; Hagoort v. Southern, 117 U. S. 02, 0 Sup. Ct. Rep. 608; In re Ayers, 123 TJ. S. 443, S Sup. Ct. Rep. 104; Hans v. Louisiana, 134 TJ. S. 1, 10 Sup. Ct. Rep. 504; Virginia Coupon Cases, 114 TJ. S. 270-338, 0 Sup. Ct. Rep. 903, 923-925, 928, 931, 932, 962, .1020. This court has jurisdiction to hear and determine this demurrer. Dunton v. Huth, 45 Fed. Rep. 390; Mayor, etc., y. Cooper, 6 Wall. 247; Tennessee v. Davis, 100 TJ. S. 257; New Orleans, etc., R. Co. v. Mississippi, 102 TJ. 135; Steamship Co. v. Tugman, 106 TJ. S. 118, 1 Sup. Ct. Rep. 58; Railroad Co. v. White, 111 TJ. S. 134, 4 Sup. Ot. Rep. 353; Ames v. State of Kansas, 111 TJ. S. 449, 4 Sup. Ct. Rep. 437; Railroad Co. v. Myers, 115 TJ. S. 1, 5 Sup. Ct. Rep. 1113; Starin v. City of New York, 115 TJ. S. 248, 0 Sup. Ct. Rep. 28; Mitchell v. Smale, 140 TJ. S. 406, 11 Sup. Ct. Rep. 819, 840.</p>

<p>In Equity. Suit by Elizabeth. Hartupee, administratrix of the estate of T. A. O’Connor, against Samuel T. Crawford.</p>

<p>1. Mortgages — Foreclosure—Evidence.</p> <p>In a suit against a corporation to foreclose a mortgage on certain lands conveyed to it i>y tiro mortgagor, defendant claimed that the deed to it was in fact executed aud delivered before the execution of the mortgage, although it was datad and acknowledged five days later, and defendant’s president testified that such was the fact. The mortgagor, however, testified that the mortgage was executed before the deed, and it further appeared that, about a month .after the execution of the mortgage, the mortgagor and defendant’s president, who at that time owned all its stock, and was its only officer, executed a paper relating to their business affairs, in which it was recited that before the conveyance of the land to defendant the mortgagor had placed the mortgage upon it. He7d, on this evidence, that the mortgage was first executed, and that it constituted a valid lien on the land.</p> <p>2. Same — Provision for Attorneys’ Fees.</p> <p>In a mortgage of lands situated in Nebraska, a provision for the allowance of attorneys’ foes in case of foreclosure is invalid. Gray v. Have-meyer, 53 Fed. Rep. 174, followed.</p>

<p>1. Puur/rc Lands — Pbe-emptton—Cancellation op Cektiitcates.</p> <p>Tho certificate of payment issued to a pre-emptor of public lands may be canceled by tlie proper officers of the land office -when it is found that, his entry was made for tho benefit of a third person, and was hence fraudulent and void, under Rev. St. § 2262. Smith v. Ewing, 2B Fed. Rep. 711, and Wilson v. Fine, 10 Fed. Rep. 52, disapproved. U. S. v. Steener-son, 30 Fed. Rep. 504, followed.</p> <p>2. Same — Bona Fide Purchasers.</p> <p>The interest vested in a pre-emptor who has made his payment and received the certificate is merely au equitable one, and a purchaser from him before a patent issues cannot claim to be prometed as a bona fide purchaser from cancellation, of flic certificate, oil the ground that it is fraudulent and void under Rev. St. § 2262. U. S. v. California & O. Land Co., !3 Sup. 01. Rep. 458. distinguished.</p>

At Law. Action by the Windsor National Bank against John 8. Walker, Jr., John 8. Walker, 8r., and Harriet II. Walker upon a bond given lor the faithful performance by said John S. Walker, Jr., of his duties as cashier of the plaintiff bank. At the close of the plaintiff’s evidence, defendants asked the court to direct a verdict; for them, which the court declined to do, and thereupon defendants excepted.

Proceedings for the deportation of Ny Look, a Chinese laborer who failed to procure the certificate of residence required by the "Geary Act,” (Act Cong;. May 5, 1892.) Section 6 of such act is as follows: “Sec. 6.

At Law. Indictments against Asa P. Potter, president, and Thomas Dana and Jonas H. French, directors, of the Maverick National Bank of Boston, for violating tlie national banking laws. Heard on demurrers to the indictments. Indictment No. 1,211 was against Asa P. Potter.

<p>At Law. Indictment against Asa P. Potter for violating tbe national banking laws.</p>

<p>In Error to tbe Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>The statement is contained in the opinion.</p>

In Equity. On motion for preliminary injunction in a suit by the Sawyer Spindle Company and others against Taylor and others for infringement of a patent.

In Admiralty. Petition by Charles H. Pew, John J. Pew, and John K. Dustin, Jr., copartners under the firm name of John Pew & Son, owners' of the schooner Essex, for a limitation of liability in respect to an injury incurred on board the schooner by John Quinlan. There was a decree for petitioners in the court below, and said Quinlan appeals.

<p>1. Tugs and Tows — Tow Gotng Adrift — Insecttre Bitt of Tow.</p> <p>Two mud scows belonging to libelant bad dumped their loads at sea, when, on starting up, the bitt of the former scow, to which the second scow was attached, pulled out. There was a heavy sea at the time. It appeared that the scow whose bitt gave way was an old boat, and that such pulling out of a bitt was unprecedented. The evidence showed that the tug was managed with reasonable care. Meld, that she was not liable.</p> <p>S. Same — Attempt to Rescue Drifting Scow — Proper Maneuvers.</p> <p>After the accident the tug maneuvered to pick up the drifting scow, but, the trailing hawser rendering the attempt dangerous, she first put into harbor with the remaining scow, and afterwards went out to the one adrift, but found her at anchor in shoal water. The tug then returned and reported, and other aid was obtained, but meantime the scow had gone ashore. Melé, that the tug was not negligent.</p>

<p>1. Collision — Steam and Sail — Channel—Article 21.</p> <p>A schooner bound eastward from South Amboy at nrst designed to go up through the Narrows, but afterwards changed her course to go out by way of Sandy Hook. The steamship Energia was going down the port side of the Cut channel, and, near buoy C 4, collided with the schooner. She claimed that the schooner’s change to go out by way of the Hook was a violation of her duty to hold her course. The evidence indicated that the schooner changed her heading when a mile and a half or two miles distant from the steamer. Melé, that the steamer was in fault for failing to take the proper maneuvers to avoid the schooner, and also for going needlessly down the port side of the Cut channel, contrary to article 21 of the rules of navigation.</p> <p>2. Bill op Lading — Negligence—Stipulation to Adopt Poueign Law Void.</p> <p>A stipulation in a bill of lading provided that “the liability of the carrier shall be governed by the law of England, with reference to which this contract was made.” Meld, that such stipulation, so far as it related to the invalid stipulation for exemption from liability for negligence, was also invalid.</p>

In Admiralty. Libel of Hie Home Insurance Company against tiie Mayor, Aldermen, and Commonalty of tbe City of Hew York, and also against (lie Pennsvlvania Railroad Company, to recover for a, collision. Decree for libelant.

<p>In Equity. Petition by Erancis O. Singer, in the suit of Sarah 0. Wade against Thomas Sewell, Jr., and - Richard Sewell, Jr., praying that certain real estate, the legal title of which was- held by Richard Sewell, should be decreed not to he subject to the lien of a decree heretofore rendered against the defendants.</p>

<p>At Law. On motion to compel plaintiffs, the Rico-Aspen Consolidated Mining Company and others, to amend Huir complaint in an action of trespass against the Enterprise Mining Company.</p>

<p>At Law. Action in the nature of ejectment brought by Peter Campbell and others against the Iron Silver Mining Company. Heard on defendant’s motion for a new trial as of right under the Colorado statute.</p>

At Law. Action by Jacob Hirsb, a shareholder in a national bank, against W. Goodrich Jones and others, officers oí said bank, for damages for willful waste of the assets of the bank, by which his stock became liable to assessment, and decreased in value. On demurrer to the petition.

<p>lu Error to the Circuit Court of the United States for the District of Nebraska.</p>

<p>State Statutes as Rt;i,es of Decision — Action isy Married Woman.</p> <p>The provision of Code Civil Proc. N. Y. § 450, that the husband shall not be a necessary or proper party to an action for damages to the person, estate, or character of his wife, being, under Rev. St. § 721, a rule of decision in trials at common law in the United States courts held in the stale of New Yorlc. applies to an action brought in such a court by an alien married woman against a corporation of the state for libel, and she need not join her husband, nor sue by proehein ami.</p>

<p>In Bankruptcy. Sur petition of the executors of Isaac S. Waterman, deceased, for review of the decree of the district court made in this matter May 5, 1891.</p>

Appeals from tlie Circuit Court of the United States for the District of Vermont. .In Equity. These were two suits by the Vermont Farm Machine Company against Hugh G. Gibson for infringement of two patents. In one of the cases an injunction was heretofore granted. See 46 Fed. Rep. 488. There were final decrees for complainant, (50 Fed. Rep. 423,) and defendant appeals.

In Equity. Bill by the American Cable Railway Company against the mayor, aldermen, and commonalty of the city of New York and the city of Brooklyn for infringement of a patent. On final hearing. Decree for complainant.

In Equity. On motion for preliminary injunction in a suit by tlie JSej Manufacturing Company against the Superior Drill Company and others for the alleged infringement of complainant’s patent.

<p>In Equity. Rill by Bernard Coll and Philip C. Sanderson against Stephen J. Seneca for infringement of letters patent No. 207,058, granted August 13, 1878, to Miller & Coll, for an “improvement in sheet-metal cans.”</p>

In Admiralty. Libel by Lowell and others against the steam tug Joseph Stickney to recover for a collision resulting in damage to the schooner Harry White. The court below dismissed the libel. See 50 Fed. Bep. 624, where a full statement of the facts will be found in the opinion of Judge Brown. Libelants appeal.

<p>Bailment — Stopping—Vessel in Shipyard— Rights ok Owkbe.</p> <p>libelant purchased at trustee’s sale a damaged yacht, at that time lying in respondent’s shipyard. It was agreed between libelant and respondent. tliar the yacht should remain as she wits, in storage, during the winter season, hut that she would be launched when wanted at a certain time in the spring. On libel filed to recover possession of the yacht, the court found that, owing to dispute's between the parties, respondent had intentionally obstructed libelant in his endeavors to obtain timely possession of his yacht, and held that the right of the owner to hart' his vessel launched at a proper time by respondent, the bailee, was a right incident to the ownership of the yacht, and a right which passed io her owner In payment of the price agreed on, or a reasonable compensation. lleU, therefore, that libelant was entitled to the possession of his yacht, to be launched by respondent, and to reasonable damages till launched and delivered for her withholding.</p>

<p>í. Admiualty — Jurisdiction—Action to Hnvorm Instrument.</p> <p>Ail admiralty court lias no jurisdiction of, an action to reform a policy of marine insurance.</p> <p>2. Same -Suit on Written Instrument — False Representations Anterior to Making Instrument.</p> <p>A suit brought upon a policy of marine insurance, where the loss occurred outside of the express limits of the policy, and the complaint is based upon alleged false and fraudulent negotiations leading up to the milking of the policy, is not within the jurisdiction of a, court of admiralty.</p>

<p>In Equity. Suit by Alfred A. Howlett against the Central Carolina Land & Improvement Company, Frank Williams, and Sidney Turley.</p>

<p>In Equity. Bill by William D. Wheelwright against Jules Le-more and others to redeem certain lands from a tax sale. It, appearing that defendant had conveyed the property to Jaspard Onsachs, the latter was brought in by a supplemental bill. Decree for complainant.</p>

<p>In Equity. Bill by William 3). Wheelwright against the St. Louis, New Orleans & Ocean Oanal Transportation Company to foreclose a mortgage given to secure an issue of bonds. A demurrer for want of jurisdiction, and a plea to the jurisdiction, were heretofore overruled. 50 Fed. Rep. 700. Decree for complainant.</p>

<p>1. Banks and Banking — Loans—Fraud ok Officeu — Estopped.</p> <p>The vice president o the Fidelity National Bank wrote a letter to the Chemical National Bank, signed by himself as vice president, requesting a loan upon a certain certificate of deposit, and certain hills receivable, as collateral. The Chemical Bank made the loan, crediting the Fidelity Bank with the amount, and so notified the cashier. The amount was thereupon placed to the vice president’s credit by Ms order, and was used by Min so that the bank received no benefit therefrom. The certificate of deposit was false, and the notes deposited as collateral were obtained by Mm for the purpose of raising money for Ms personal use. Held 'that, as the Chemical Bank dealt with liim solely in Ms official capacity, the Fidelity Bank is estopped to deny that the loan was made to it, and for its benefit, and it is liable for its repayment.</p> <p>2. Same — Collaterals— Substitution.</p> <p>Shortly after the loan was made the vice president, as such, and ostensibly on behalf of his hank, asked the return of part of the collateral, and the substitution of certain other notes lor it, and this was conceded. Among the notes so substituted were some made to the order of H. & Co., and indorsed by them. H. & Co. received no consideration for the transfer of these notes, and the Fidelity Bank had nothing to do with them. The vice, president of the bank was also the managing partner of H. & Co., and in this capacity he dealt with the notes. Held that, as against the Chemical Bank, the firm of II. & Co. was estopped to deny that these notes wore properly pledged as security for the loan to th'o Fidelity Bank.</p> <p>3. Same.</p> <p>Tko estoppel upon the Fidelity Bank exists, however, in favor of the Chemical Bank, and no further; and hence II. & Co. have no remedy against, the Fidelity Bank on account of any liability that may be enforced against them by the Chemical Bank on account of the notes so pledged, which were indorsed by them.</p> <p>4. Same — Insolvency—Proof of Surety.</p> <p>Furthermore, where the Fidelity Bank has become insolvent, and the Chemical Bank has proved its whole debt against it, H. & Co., who quoad hoc occupy the position of sureties for the Fidelity Bank, are not entitled to prove any claim against the insolvent by reason of the enforcement of their liability as sureties.</p>

<p>In Equity. Suit by John R. Reed, trustee, etc., against Zatto 0. Dingess.</p>

<p>In Equity. Bill by Henry Salzer against Francis Irseh and others. Decree for complainant.</p>

<p>1. Carriebs — Injuries to Passengers — Cohtriuutory Negligence.</p> <p>In an action against a railroad company lor injuries to a passenger it appeared tliat plaintiff boarded the train while it was in motion, and that when she had gotten safely on the step the brakeman pushed her so violently as to throw her down on the platform, and seriously injure her. Held that, however negligent plaintiff may have been in. undertaking to board a moving train, such negligence in no wise contributed to the injury, which was due to the brakeman’s violence, and does not affect her right to recover.</p> <p>2. Same — Damages—Continuing Injury.</p> <p>In such action the opinion of medical experts as to the permanence and probable future effect of the injuries is competent, and damages may be allowed for such effect. Cunningham v. Railroad Co., 49 Fed. Rep. 439, followed.</p>

At Law. Action by Abraham C. Davenport and Antoinette P. Davenport against David Prince. There was a verdict for plaintiffs, and defendant moves for a new trial.

Action by Lavius EL Hyde against the New York & New England Railroad Company to recover damages for personal injuries received while in its employ. There was a verdict for plaintiff, and from the judgment thereon defendant brings error.

At Law. Action by Theodore E. Hodge and others against the Lehigh Valley Railroad Company for flooding plaintiffs’ land by the maintenance of an improperly constructed bridge. There was a verdict for plaintiffs, which, defendant moves to set aside.

. This ivas an action by the Ashuelot National Bank of Keene, H. H., against school district No. 7, Valley county, Heb. There was judgment for defendant in the court below, (41 Fed. Rep. 514,) and plaintiff brings error.

<p>Master and Servant — Contributory Negligence — Evidence.</p> <p>In an action against a railroad company for injuries to an employe it appeared that plaintiff and several other section hands were riding- in the caboose of a work train; that, as the train reached the station to which they were going, it slowed up, and that all hut plaintiff jumped off safely Plaintiff testified that he was standing on the platform of the caboose, waiting for the train to stop, when the conductor ordered him to get off; that he did so, and was injured. Defendant’s evidence tended to show that plaintiff jumped without any order from the conductor. The train at the time was moving about 4 miles an hour, and the platform on which plaintiff alighted was only 12 or 16 inches lower than the step on which he stood. Helé, that the question of contributory negligence was one for the jury.</p>

This was an action by Jerman S. Keator and Benjamin C. Keator against. John Glaspie, in which plaintiffs had judgment, and defendant brings error.0 Statement by THAYER, District Judge: The defendants in error (hereafter spoken of as Keator & Son) sued the plaintiff in error for fraud and deceit practiced in the sale of three tracts of pine lands situated on the St. Croix river, in the state of Minnesota, aggregating about 4,640 acres.

<p>1. Contracts — Construction—Usage.</p> <p>A coke manufacturing company agreed by written contract to furnish to defendant at his furnaces 15 cars of coke per day for 6 months at an agreed price per ton. The coke company, however, were “not to be held in damages for the railroad company’s failure to supply transportation.” Held, that this contract was to be read in the light of the surrounding circumstances, and was, therefore, subject to a custom prevailing among coke producers of that region, and known to both parties, to distribute, in case of shortage of cars, all the cars received proportionally among the orders on hand; and defendant had no ground of complaint if he received his proper proportion of ears during the period of the shortage.</p> <p>2. Same.</p> <p>Shortly after the making of the contract the coke company sold its plant to plaintiff, a larger coke company, and the contract was assumed by plaintiff, and defendant, being notified thereof, made no objection, but accepted coke from plaintiff. Reid,, that plaintiff was bound to fulfill the contract, but that it was bound to apportion the cars to defendant, not according to all the orders which plaintiff had on hand, but according to the orders which the original contractor had on hand, unless both apportion-ments would produce the same result.</p>

<p>1. National Banks — Officers—Embezzlement—Indictment.</p> <p>An indictment against the president of a national hanlc for misapplication of its funds ¿illeged that he “unlawfully and willfully, and with intent to injure and defraud the said association for the use, benefit, and advantage of himself, did misapply certain of the money and funds of said association, which he * * * then and there, with the intent aforesaid, paid and caused to he paid” to certain persons named. Held', that the indictment was bad for failure to allege the facts that made such payment unlawful or criminal.</p> <p>3. Same.</p> <p>It is not essential that such indictment should allege that the acts charged were done vdthout the knowledge and assent of the directors of the association, for such knowledge and assent would not relieve the president from liability for an unlawful or criminal misappropriation of the bank’s funds.</p>

<p>At Law. Action by Thomas A. Green against Samuel H. Elbert, William E. Beck, Joseph C. Helm, M. A. Rogers, L. P. Marsh, and J. Jay Joslin to recover damages for a conspiracy to disbar him from practicing law in the state courts. Heard on demurrer to the petition.</p>

<p>Petition by the John Russell Cutlery Company for a review of the decision of the board of general appraisers affirming the action of the collector in classifying certain merchandise for duty.</p>

<p>Customs Duties — Classification—Tapioca Flour.</p> <p>Tapioca flour, which is commercially known as “tapioca,” and is used mainly by calico printers and carpet manufacturers for thickening colors, and which, though chemically a starch, is not adapted to commercial use as starch, belongs in tho free list, as “tapioca,” under paragraph 730 of the act of October 1, 1830, and is not dutiable at two cents a pound, as a “preparation * * * fit for use as starch,” under paragraph 323.</p>

<p>1. Patents fob Inventions — Limitation of Claims — Paper-Bag Machines.</p> <p>Letters patent No. 337,965, issued March 16, 1886, to Lorenz & Honiss, for an improvement in machines for making bags from a tucked paper uibe, and relating more particularly to the mechanism for opening the bottom of the bag into the “diamond fold,” do not cover a pioneer invention, and the novel feature of the patent is embraced in the fingers which enter the inside of the bottom of the tube beneath the upper ply, and, turning over in an are of 180 degrees, open the mouth, and form the diagonal fold.</p> <p>3. Same — Infringement.</p> <p>The first claim of the patent, which covers these fingers and their operation in the combination, is not infringed by the nse of a machine made according to the Slilwell patent of December 17, 1889, in which the fingers have no rotary motion in common with the fingers of the Lorenz & Honiss patent, and have nothing to do with the formation of the rear fold of the diamond, which is accomplished by other instrumentalities after the fingers have raised the corners of the upper ply to a level with its center. 48 Fed. Rep. 502, affirmed.</p> <p>3. Same.</p> <p>The second claim of the patent, which covers the combination of a reciprocating carriage, presser plate, side grippers, and front grippers, is not infringed by the Stilwell machine, for the lower feed roll of the latter is not the equivalent of the reciprocating carriage, and does not perform the function thereof.</p>

<p>Patents fob Inventions — Assignment—Evidence.</p> <p>Id a suit for the infringement of a patent the defense was that complainant had no title, and defendant introduced an assignment thereof by him, duly recorded in the parent office. Complainant alleged that this was a forgery, and (lie surviving witness to the Instrument testifle.d that he had no recollection of signing it. Complainant admitted, however, that he had placed the sale of the patent in the hands of the alleged as-signee; that, after a certain difficulty between them, such assignee had said to him that the signature to the assignment; was genuine, as he could slwnv by expert witnesses: and that one of the witnesses thereto said to him that he had seen him execute the assignment. Other witnesses («¡titled that complainant had told him he had soul the patent. Held, that the evidence was not sufficient to show (he assignment invalid, and (lie bill should be dismissed.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>Suit by George C. Paine against Henry D. Trasfic for infringement of a patent. The bill was dismissed, (56 Fed. íiep. 231,) and complainant appeals.</p>

<p>In Admiralty. Libel by William Young against the steamboat City of Florence. Heard on application of the libelant for a rehearing and modification of the decree in respect to the costs, which-were adjudged against him on the dismissal, of the libel for want of jurisdiction.</p>

<p>1. Admiralty — Puíadino and Proof — Variance.</p> <p>A stevedore’s libel for services performed in loading a vessel alleged that the services were rendered on Hie master's request, and that by reason thereof there became due the sum demanded. There was no allegation that tlie services were reasonably worth that sum. Held, that this language did not necessarily import an implied contract and a claim on.quantum meruit, and there was no variance when the proof showed an express contract.</p> <p>2. Shipiung — Stevedore's Ciiarok — Reasonableness.</p> <p>A stevedore’s charge of 45 cents per hale for loading cotton at Charleston, S. 0., is a reasonable charge, it appearing that this is the uniform charge at that port, and the price contemplated and provided for in the charter party.</p> <p>3. Same — Stevedore's Lien — Defenses.</p> <p>The charge of 45 cents per bale being reasonable and customary, tho vessel may be held for that amouut, notwithstanding that the stevedores were under a general contract to load all vessels comiug to the consignees of this vessel, in consideration of paying them 10 cents per bale on each bale loaded.</p> <p>4. Same — Maritime Liens — Necessity for Services — Burden of Proof.</p> <p>When it appears that services rendered to a vessel were necessary, and that (he contract therefor was made with the master in a foreign port, the presumption is that; they were furnished on the credit of the vessel. And this presumption is not overthrown by simply showing that the owners had made arrange,men1s to furnish other credit, or to supply funds. The proof must further show that these arrangements were effective in producing the result.</p>

<p>1. Snrpxu'XG — Negi.igk'noe—Defective Apparatus — Injury to Stevedore.</p> <p>A ship is liable in damages to a stevedore’s employe who is injured through, ihe in mificiency of the iadclc; provided by the ship for hoisting cargo.</p> <p>2. Same — Damages.</p> <p>Through tlio insufficiency of tackle provided by a ship, a stevedore’s employe sustained a fracture of the skull and collar hone, rendering necessary two trepanning operations. His health and ability to earn a livelihood were permanently impaired, and at the lime of the trial paralysis was impending. He was about 30 years old. and lmd been accustomed to earn 818 a week. Held, that the court would award him 85,000.</p>

<p>Shipping — Damage to Cabgo — Bctídmn or Proof — Evidence.</p> <p>Certain boxes of macaroni were skipped from Palermo In goon condition, and arrived at New Orleans in bad condition. It appeared that the boxes were stowed on top of casks, in the same hatch witli a lot of green fruit. Meld, that tile burden was on the ship to show that the damage was caused by perils of the sea, and this burden was not sustained by evidence that heavy seas -were encountered, and much water taken over all, and perhaps through the seams, but none down the hatches, and that there wero but 38 inches of water in the hold.</p>

<p>I. Shipping — Passengers — Damage to Baggage — Floating Wreckage — Broken Port — Liability oe Carrier.</p> <p>Where a passenger's baggage was damaged, while in transit on a steamship, by sea water taken in through a broken porthole, and it was claimed in behalf of the vessel that the port was broken while passing through floating wreckage, and that this was a peril of the sea, held, that if the port was sound, but was unable to withstand a blow from floating wreckage while passing through it at full speed, then reasonable precaution required the ship to steam away from the wreckage, or slow down on passing through it, and it was for the ship, not the passenger, to take the risk of such damage.</p> <p>3. Same — Stipulations Exempting from Liability — Notice on Passage Ticket — Passenger Contract.</p> <p>A notice printed on the back of a passenger’s ticket, exempting the carrier from liability under certain circumstances, never seen or read by the passenger, whose attention is not called to it by any reference in the body of the contract is outside of the contract, and not operative on the passenger.</p>

In Admiralty. Libel in personam by Thomas Oheatbam, tutor, against the Red River Line and another. Decree for libelant, as against the first-named respondent.

<p>In Admiralty. Libel by John Leonard against the steamboat Belle of the Coast to recover wages. Decree for libelant.</p>

<p>Tn Admiralty. Libels for salvage. Decrees for libelants.</p>

<p>1. Mortgages — Foreclosure—Questions Determinable — Parties.</p> <p>In a foreclosure suit only the rights and interests raider the mortgage and subsequent to it can he determined, and a third person who claims a paramount and independent title is not a proper party to the suit.</p> <p>2. Same — Removal of Causes — Remanía</p> <p>In a foreclosure suit brought in a state corat a third person was made a party as claiming some interest unknown to complainant. The third person, being a nonresident, voluntarily appeared, and removed the cause to a federal court on the ground of a separable controversy, setting up a claim which was independent of and paramount to the mortgage. Held), that such a claim could not be litigated in the foreclosure suit, and, as the first step of the federal court, if it retained the cause, would lie to dismiss the removing party, leaving the ease to proceed between parties who had not invoked the federal jurisdiction, the cause would be remanded without any action whatever.</p>

<p>Appeal — Review—Matters not Apparent on Record.</p> <p>The circuit court, in a suit for the foreclosure of a railroad mortgage, allowed an intervening claim based on a judgment recovered in a state court, and directed its payment out of the proceeds of sale. The decree recited that it was one of those claims theretofore adjudged to be of a preferential character. This latter adjudication was not appealed from, and, on appeal from the decree allowing such intervening claim, the nature of the demand on which the judgment was recovered was not disclosed hy the record. Held, that it must he presumed that the finding of the lower court as to its character was correct, and its decree will be affirmed. Railway Go. v. Stark, 53 Fed. Rep. 758, followed.</p>

At Law. Action lit tlie City Bank- of Hartford against tlie Press Company, Limited. Plaintiff took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense. Rule absolute.

<p>Limitation op Actions — Running- op Statute — Death by Whongfub Act.</p> <p>Tiic statute of limitations begins to inn against the statutory right of action for an injury resulting- in death only at the time the death occurs, although that event takes place long afler the time of receiving the injury.</p>

In Equity. Suit by the S. S. White Dental Manufacturing Company against Johnson and others for the infringement of complainant’s patent. Complainants move for a preliminary injunction.

<p>In Equity. Suit by the New York Belting '& Packing Company against the Gutta Percha & Rubber Manufacturing Company for infringement of design patent No. 11,208, issued May 27, 1879, to George Woffenden. The patent was sustained by Judge Coxe in New York Belting & Packing Co. v. New Jersey Car Spring & Rubber Co., 48 Fed. Rep. 556.</p>

<p>In Equity. On motion for preliminary injunction in a suit by Williams & Webster against McISfeely & Co. for alleged infringement of a patent.</p>

<p>In Admiralty. . Libel for negligence of tug in losing part of ber tow.</p>

<p>In Admiralty. Libel in personam by Lewis E. Montgomery against Christopher Furness to. recover damages for loss of cattle while in transit to Europe.</p>

<p>In Admiralty. Libels by John Hodson, master of the schooner Marion, against the steam tug Harry Lynn, and by the Tacoma & Roche Harbor Lime Company, owner of the Harry Lynn, against the schooner Marion, for damages caused by a collision between said vessels, findings that both vessels were in fault, and damages divided.</p>

<p>In Equity. Bill to foreclose 'a mortgage, and for the appointment of a receiver.</p>

In Equity. This was a suit by the American Mortgage Company of Scotland, Limited, against Erven O’H arm and others. There was a decree for defendants, and complainant appeals.

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

<p>1, Practice- — Intukvtíintion—Rulr—Recbtveks.</p> <p>A United States marshal levied an attachment on property which was in the possession of a receiver appointed by a state court, whereupon the receiver took a rule in the federal court to set the writs aside. Held, that although, as a general rule, any person not a party to a suit must, in order to have relief, proceed by intervention, yet, where no harm could be done by allowing Uie receiver to proceed by rule, and the result would be the same, this method would be allowed.</p> <p>3. Federal and State Courts — Comity—Receivers.</p> <p>Where a person claiming to be a receiver appointed by a state court, and who was In actual possession of the property upon which the attachment was attempted to he levied, on applying to a federal court for relief in respect to attachments issued out of the latter court, produces a duly authenticated order of appointment in a state court of competent jurisdiction, the rule of comity forbids the federal court from inquiring into any mere irregularities in 1ho matter of his appointment.</p>

In Error' 1o ihe Circuit Court of the United States for the Dis triet of Montana. This was an action by John T. Reese against the Union Pacific Railway Company for injuries to plaintiff while a passenger on one of defendant’s trains. There were verdict and judgment for plaintiff, and defendant brings error.

<p>1. Patents for Inventions — Infringement—Injunction—Expiration of Patent.</p> <p>A bill for an injunction to restrain the infringement of a patent, filed only four days before the patent expires, is demurrable where no preliminary injunction is asked, siuee it would be impossible to obtain a final decree before expiration of the patent. American Cable Ry. Co. v. Chicago City Ry. Co., 41 Fed. Rep. 522, followed.</p> <p>2. Same — Demurrer—Public Policy.</p> <p>The objection that public policy forbids the issuance of an injunction cannot be raised by demurrer to the bill, since that is a question addressed to the discretion of the court, especially where the bill alleges that complainant has reason to fear that defendant will continue his infringements.</p> <p>8. Same — Laches.</p> <p>The mere fact that eight years elapse between the rendition of a judgment declaring a patent valid and the filing of a bill to restrain its infringement does not render the bill demurrable on the ground of laches.</p>

<p>PATENTS FOR INVENTIONS — INVENTION—SATCHEL FRAMES.</p> <p>Claims 6 and 7 of letters patent No. 378,203, issued February 21, 1888, to William Koemor, for an improvement in bag or satchel frames, are void, as covering the results of mere mechanical skill.</p>

<p>In Equity. Suits by Henry L. Naramore against the Caboone Bar-net Manufacturing Company and others for infringement of a patent.</p>

In Equity. Suit by the Stokes Bros. Manufacturing Company against Heller Bros, and others for the alleged infringement of the following patents: No. 376,400, granted to James and George Stokes January 10, 1888, for a rasp-cutting machine; No. 383,999, granted to Philip S. Stokes June 5, 1888, for rasps; No. 397,254, granted to Philip S. Stokes February 5, 1889, for a rasp-cutting machine; No. 408,936, granted to Philip S. Stokes August 13, 1889, for a method of forming teeth…

<p>At Law. Action by Benjamin J. Falk against Thomas II. Heff-ron and others to recover a penalty for the violation of a copyright belonging to the plaintiff. There was a verdict for plaintiff, and he moves for a new trial.</p>

Appeals from the District Court of the United States for the Southern District of New York. Motions by appellees for payment to them of money paid into court by appellants. Libels in personam by Andrea Mignano and another against Robert Mc-Andrews and another, and by Gaspare Calif ano and another against the same, to recover balances claimed to be due on charters of vessels of libelants, respectively.

<p>1. Marine Insurance — Conditions oe Policy — Construction.</p> <p>The policy of insurance on lihelant’s goods contained the following provision: “It is understood and agreed that in case any agreement toe made toy the assured with any carrier, toy which such carrier stipulates to have, in case of any loss for which he may toe liable, the benefit of this insurance, then, in that event, the insurers shall be discharged of any liability for such loss hereunder.” The through bill of lading under which libelant’s goods were transported contained ttois stipulation: “And any carrier toy water, liable on account of loss of, or damage to, any of said property, shall have the full benefit of any insurance that may have been effected' upon, or on account of, said property.” Held, that the application of the clause in the policy must be confined to those cases, only, when the carrier was liable for Hie loss, and that the policy remained in full force as respects losses by sea perils, for which the carrier was not legally responsible.</p> <p>S. Sam® — Damage to Lighter — Unknown Obstruction.</p> <p>Where a lighter toelongiug to one carrier, a railroad company, loaded with libelant’s goods, was directed by the employes of a second carrier, a steamship line, to move in a slip, and in so moving she grounded on a shoal in the slip, and was then pierced by a log, the existence of which was up to that time unknown, it was held that the damage was not caused by negligence of either of the carriers, and that (he insurance company which had insured the cargo was liable.</p>

<p>In Admiralty, Libel for balance of price of repairs and supplies. Cross libel to recover damages for breach, of the contract under which the repairs were made. A stay of proceedings under the original libel until security was given for the damages claimed under the cross libel was heretofore allowed. 48 Fed. Eep. 689.</p>

<p>Seamen’s Wages — Services not Rendered in Navigating Vessel.</p> <p>To entitle one to a lien for wages against a vessel it is not necessary that the services be rendered in navigation alone. Hence, when engineers were employed* on a submarine torpedo boat, partly in moving her about, but .mainly in operating her machinery for throwing projectiles, which was her sole business, it was held that they had a lien for balance of wages, though the government was at the time experimenting with the boat, and was allowing the men a daily compensation.</p>

In Admiralty. Libel by James W. Morse and Frank Van Burén against the steam tug Charles Runyon to recover damages for the loss of a tow. There was a decree for libelants in tbe court below, (46 Fed. Rep. 813,) and tbe claimants appeal.

In Admiralty. Libel by John Wishing against the steam tug Transfer ZESTo. 2, and Oar Float No. 12, for a collision. ■ Cited The John Tucker, 5 Ben. 36G, 369, 370, and cases cited in the opinion; The Louisiana, 3 Wall. 164; The Barges Energy and M. F. Winch, 10 Ben. 158; The Schooner Christopher Columbus, 8 Ben. 239, 241; The Lotty, Olcott, 332, 333; The Johannes, 10 Blatchf. 478; The Wier v. Padre, 29 Fed. Bep 335; The Bark Lilian M. Yigus, 22 Fed. Rep. 747.

In Admiralty. Libel in rem by Stephen H. Lyons, executor of tie estate of Daniel Lyons, George Goble, J. H. Jacobs, and Josiua Reynolds, against tie steamer Ciarles Hebard, ier engines, etc., tie claimants filed a cross libel against tie American Eagle, tie Monticello, and tie Westside. There was a decree for libelant in tie court below, (46 Fed. Rep. 137,) and tie claimants appealed.

<p>At Law. Action by the Wachusett National Bank against the Sioux City Stove Works on certain promissory notes. Heard on demurrer to the petition.</p>

<p>1. JunisorcTtoN — Action by Indorsee or Promissory Norn — Pi,hading-—DE-MURRER.</p> <p>If ilie citizenship of the original payee of a promissory note is material to jurisdiction of ail action by an indorsee against tiie maker, the plaintiff must affirmatively plead it; and, it Ihe record contain no allegation thereof, the court will, for the purpose of disposing of a demurrer to the complaint on the ground that the assignor could not hare maintained suit, assume that ihe original panics to the note were, ac the time of bringing the aciion, citizens of the same state.</p> <p>2. Same — Right op Receiver op Rational Bank to Sue — Assignee by Operation op Law.</p> <p>By the judiciary act oí Marcli 3, 1887, as corrected by the act of August 13, 1888, it is provided that no federal court shall have cognizance of any suit on a promissory note by an assignee thereof unless such suit might have been prosecuted in such court if no assignment or transfer had been made. Action was begun in the circuit court in North Carolina, by a citizen of New York against a citizen of North Carolina, on a promissory note made to the cashier of a national bank, which was also a citizen of the latter state. The note had been indorsed to the plaintiff, and after indorsement the bank became insolvent, and a receiver was appointed. Plaintiff contended that suit could have been brought on the note by the receiver had no assignment been made, and that the court therefore had jurisdiction. Held, that the receiver would himself have been an assignee of the note, although the assignment would have been effected by operation of law, and that, as the bank could not have brought suit on the note in the circuit court, the court had no jurisdiction.</p> <p>3. Same — Construction op Statute.</p> <p>Under the above statute no suit can be maintained on a promissory note by an assignee unless such suit could have been maintained by the original payee thereof.</p>

<p>■ 1. Circuit Courts of Appeals — Jurisdiction—Final Judgments.</p> <p>An order of tlie United. States court for tlie Indian Territory, overruling a demurrer to an interplea, whereby a third person, claims certain goods seized in attachment, is not a final judgment, and the circuit court of appeals has' no jurisdiction to review the same on a writ of error.</p> <p>2. Same.</p> <p>The appellate jurisdiction of the circuit courts of appeals is restricted to the review of final judgments and decrees, with the single exception of interlocutory orders granting or continuing injunctions, as to which a right of .appeal is given by section 7 of the act creating the court, (29 Stat. ■ p. 826, c. 517.)</p>

<p>Removal or Causes — Divbkse Citizenship — Remand.</p> <p>A cause removed to a federal court on the ground of diverse citizenship will be remanded when there is grave doubt as to whether the defendant is in fact a citizen of a different state from plaintiff.</p>

In Equity. Motion for injunction to stay proceedings in the state district court for Hardeman county in the suit of the state of Texas against the Houston & Texas Central Railway, George E. Downs, and Charles Dillingham, predecessor of Alfred Abeel, receiver.

<p>1. Removal or (Kirsns — Federal Question — Interstate Commerce.</p> <p>The state of South Carolina tiled a hill in one of its own courts, alleging that the corporation made defendant therein was chartered hy the state to build, maintain, and operate a railroad to facilitate communication between the interior and the seaboard; that since it was built the Central Company, a Georgia corporation, and a competitor of defendant, had purchased enough of the stock and bonds of defendant to give it voting control of the corporation, which power it had used to divert the business of defendant, injure its property, and crush competition; that the Central Company had no power under its charter and the laws of Georgia to purchase and hold stock in defendant corporation, and that the latter was disabled to fulfill the purposes for which it was chartered; and it prayed that such holding by the Central Company be declared ultra vires and void, and that defendant's charter be forfeited. The petition for removal alleged that the Central Company was an instrument of interstate commerce», and that for ihe purposes of such commerce, and under the interstate commerce clause of the constitution and the laws passed in pursuance thereof, it had power to purchase aud hold defendant’s stock, and control its operation. TIcM, that the determination of the controversy thus developed Involves the construction of the constitution and laws of the United States, and so presents a federal question.</p> <p>2. Same — Parties—Corporation.</p> <p>It cannot be objected to -the right of removal thus arising that the Central Company is not a party to the suit, and that its right cannot be affected by its decision, for the defendant corporation represents every stockholder in it. and, if the suit be successful, every share of stock, including that held by the Central Company, becomes valueless and nonexistent.</p> <p>3. Same — Impairment ob- Contracts.</p> <p>Tho bill alleged that such holding of stock by the Central Company was ultra vires and void because a certain provision of the Georgia constitution forbade the legislature to grant such power to any corporation where its effect might be t.o lessen or destroy competition. The petition for removal claimed that this Impaired the obligation of the contract embodied in the Central's charter, which was granted before this provision of tlie constitution took effect. -Held, that this also presented a federal-question, although, the siipreme court of Georgia had theretofore decided that the charter did not confer the right claimed.</p>

<p>1. Water Com canths — Rates- -Contracts with Town.</p> <p>Act Cal. March 30, 3SOU, S 32, incorporating the town of S., conferred on the trustees of the <own power to provide for the prevention and ex-tinguishment of tires, and to supply it with fresh water. Section 14 provides that they should have tio power to contract debts in excess of $400, unless an amount” of money sufficient to meet them was actually in the treasury, unappropriated to other purposes. Helé, that the trustees might make such contract as they deemed expedient with individuals who would undertake to furnish a supply of water; and a provision in such contract that such individuals should have the unrestrained right to fix the rates to ho charged for water furnished, so long as the same wort; general, is valid.</p> <p>2. Same — Assignment—Corporations.</p> <p>This right to fix raies was conferred on the individuals in question as “parties of the first part” to. the contract. They ai'terwárds assigned all their rights and privileges under the contract to a water conmpany duly organized under tlio gentwtT law, and litis assignment was ratified by an ordinance of the town. Tlte new company completed the work, and fulfilled all, ihe obligations of: the first parly to ihe eon 1 raet. Helé, that the right to fix rates passed io the company, as a right growing out of a valid contract, and it, is not affected by, or subject to, the power reserved to the legislature to ¡tiler or repeal any provisions of the edmpany’s charier, which also provided a mode for fixing rates.</p> <p>8. Same — CoNSTmTroNAi, L vw -Obligation of Contracts.</p> <p>Const. Cal. 1879, art 14. § 1, which provides that thereafter the rates for water shall bo fixed annually by the governing board of the city or town in which it is furnished, and the legisla lion enacted for the purpose of carrying’ it inlo effect, uro uneonsi Hut total and void as to a contract made before the adoption of the const ¡tul ion, which confers on tlte witter company the sole light to fix rates, for I hey impair the obligation of the contrae;'. New Orleans (his Co. v. Louisiana Light,, etc., Co., G Sip). Ct. Rep. 252, 315 XI. S. <550, followed.</p> <p>4. EHmk — Act of Incorrokvtion.</p> <p>Act Cal. May 3, 1852, which provides that any coniraet made between a city and a water company organized under that act, for a supply of water, “shall be valid and binding in law, but shall not take from" ths» city the right to regulate tho rates Cor water,” has no application 1o a contract made for the same purpose with individuals not organized under this aer.</p> <p>5, Same — Ooitrot» vrroxs — Speci vr, Acts — Assignment of 'Franchise.'</p> <p>Const. Old. 1849, art. 4, 8 31, which declares that “corporations may be formed under general laws, but shall net be created by special act,” does not prohibit tin: assignment of a franchise to a legally-organized corporation by persons having the lawful right to exercise and transfer tho same. People v. Stanford, 38 I'ac. Itep. 85, 19 1’ac. Rep. 893, and 77 Cal. 371, followed.</p>

<p>1. Constitutional Law — Due Process op Law — Pences.</p> <p>Complainant owned a. tract of land which was valuable solely for grazing purposes, and from which he derived an income by letting it to pasture. At the time he acquired it the law of South Carolina required ail owners of cattle and stock to ‘keep thorn fenced in, and gave the owners of lands upon which they might trespass the right to distrain and impound them. Thereafter the legislature passed an act exempting this land, with other tracts, from the provisions of the law, the effect of which was to require complainant either to fence his whole tract against cattle, or to submit to have it trespassed upon, without redress, by any cattle whose owners chose to let them run at large. Helé, that this act is not within the police power of the state, and violates the federal constitution, inasmuch as it deprives complainant of his property without due process of law.</p> <p>2. Courts — Jurisdiction—Federal Question.</p> <p>Complainant filed his bill for an injunction against certain owners of trespassing cattle, alleging that defendants committed the injury complained of under the latter act. Defendants denied that they did anything under-color of the act, but it was shown that they had applied to the legislature for its enactment, that before it was passed they had paid complainant for pasturage, and that since its passage they had refused to pay. Held, that a federal question was involved, and the United States circuit court has jurisdiction of the bill.</p> <p>8. Same — Jurisdictional Amount.</p> <p>As the hill alleges that the land in question is valuable for pasturage, and for no other purpose, and that by force of such act complainant is entirely deprived of liis riglits and property therein, the amount in chn-troversy, for the purpose of jurisdiction, is the value of the land.</p> <p>4. Same — Injunction—Multiplicity op Suits.</p> <p>A court of equity has jurisdiction to entertain such suit for an injunction, for to leave complainant to his remedies at law would involve him in a multiplicity of suits.</p>

<p>In Equity. Rill by tbe Central Railroad & Banking Company of G-eorgia against the Farmers’ Loan & Trust Company of Hew York and others. John 1L Averil, receiver of the Port Royal & Augusta Railway Company, hied a petition in the suit praying that a receiver of plaintiff company, having control of the Port Royal & Augusta Railway Company as a part of plaintiff company’s system, be compelled to surrender such road to petitioner.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>In Equity. This was a suit by the James T. Hair Company against Joseph Huckins to restrain the alleged violation of a contract. The court below sustained a demurrer to the bill, and complainant appeals.</p> <p>Statement by CALDWELL, Circuit Judge:</p> <p>The appellant, the Jamos T. Hair Company, and the appellee, Joseph Huck-ins, entered into a contract, of which the following is a copy:</p> <p>“Texarkana, May 11th, 1S88.</p> <p>“To whom it may concern: In consideration of the reduced rates (as given elsewhere on this leaf) at which our registers are to be supplied to us, and in further consideration of our hotels being advertised as other hotels are in the ‘American I iotel Muido,’ free of further charge to us, we have severally contracted with James T. Hair Company to use their supplies of advertising hotel register books upon our respective hotel counters. These books are to be of good material, and well made, and we agree to use them, and no other registers, exclusively, as register books upon our public hotel counters from the time we receive them until they are filled with guests’ names (in their own autographs, when possible) in the usual course of business. We also agree that wo will refer our guests seeking purchases or professional services to the cards of those firms that shall be represented on tlie leaves of our register books from time to time, as opportunity is afforded us. We further agree to give said company notice at their Chicago office at least forty days prior to our needing- additional registers under this agreement from time to time. This contract to be in force, from and after dale, or from the expiration of any present contract, if any now in existence, and is made for the term of five years, or while we, or either of ns, are in the hotel business, if less than that time. Joseph Huckins.”</p> <p>Huckins ordered and paid for hotel registers under the contract from the date thereof up. to June, 1889, when he ceased to order registers from the appellant, and procured Them elsewhere. Thereupon the appellant filed this bill in equity, setting out the foregoing facts, and alleging that, if the ap-pellee continued to refuse to use its registers for the time the contract had to run, it would be damaged $5,000.</p> <p>The bill prayed “that the defendant, Joseph Huckins', his agents and servants, and each and every one of them, be restrained and enjoined pending the final hearing of this cause from further violation of his contract aforesaid, and particularly from using or causing to be used in his said hotel any register supplies other than those of your orator; that upon the final hearing of tliis causo said injunction bo continued until the expiration of'said contract by its terras; that the defendant be decreed to pay to your orator all damages occasioned your orator by his failure to keep and perform iiis agreements;" and for general relief. A demurrer to the bill was sustained, and the Xilaintilf appealed.</p>

<p>1. Equity Jurisdiction — Krarew at Law — Rescission of Contkacts.</p> <p>A bill which seeks io set aside a contract alleged to have been, procured by fraud, and also prays an injunction to prevent defendant from deriving beneiit from (lie contract pending the deiermination of the question of fraud, cannot be dismissed on the ground that plaintiff has an adequate remedy at law.</p> <p>3. Rescission of Contracts — Ekaubucrnt Rkuhksentations — Pleading.</p> <p>Plaintiff and defendant made a contract of partnership in the royalties to be derived from a patent owned by plaintiff and patents and processes claimed io be owned by defendant, the theory being tint the inventions owned by both would substantially control the whole art to which they related. 1’hUntifE subsequently sued to annul the contract on the ground that: the following representations inducing the contract were false, namely, that defendant “was in possession and control of a large number of patents” controlling processes in the art specified, and was receiving large sums in royalties, llehl, that the bill could not be held indefinite in that it: did not: designate the patents which defendant falsely claimed to own, for it does not appear That defendant, in his representations, specified any particular patents.</p> <p>3. Equity Pleading — Multifakiousness.</p> <p>The hill was not multifarious in that it sought to annul the contract for fraud, and also to collect: royalties alleged to have been received by defendant before the date of the contract under a verbal understanding then existing.</p>

<p>Carriers — Bills of Ladino — Txnockxt Purchasers.</p> <p>.V linn of merchants ill A. were ¡liso engaged in (he milling business at 3L, on the line of defendant’s railway. For their convenience, defendant established a station at M., and appointed one member of the iirm its agent there. It was shown that the business of the station was practically transacted in tlie firm’s office at A., and freight charges were, settled from time to time with defendant's officials. Goods shipped by tlie firm at A., consigned to themselves at 31.. were delivered without presentation of the bill of lading, and it appeared doubtful whether, in tlie case of such shipments, Hiero was ever any actual delivery of any bill of lading from hand 1o hand. .Some of these bills of lading, after the goods were delivered to the consignees, were transferred by the Arm, as collateral, to persons who had no knowledge of any irregularity. JÍM. that the defendant was liable on These bills of lading in the hands of innocent purchasers, since it was by reason of its own negligence that they came into tlieir hands. Friedhmder v. Railway Co., 9 Sup. C-t. Hep. .170, 130 r. 8. 110, distinguished.</p>

In Equity. These were 14 suits to enjoin John Glenn from prosecuting actions of law against the several complainants to recover stock" assessments. The complainants in the respective suits are Francis P. Furnald, Charles Í 1. Todd, Lloyd Aspinwall, Francisco BianeM, Grinnell Burt, Hannah Burt, Samuel Eddy, Samuel Engle, Gardiner G. Howland, William L. Pomeroy, William M. Randall, Charles F. Thorbnrn, William S. Williams, and Alexander J. Mayer.

<p>Municipal Corporations — Drainage—Construction of Laws.</p> <p>By Act No. 30, Acts La. 1871, p. 75, tlie whole matter of drainage in New Orleans was transferred from the drainage commissioners appointed under prior acts to the city itself; and section 9 thereof required the commissioners to transfer all moneys, real estate, and other property under their control to the city hoard of administrators. The section then provides that “all property not money, so received, shall he held in trust for the payment of said Mississippi and Mexican Gulf Canal Company, [a creditor of the drainage fund,] and ultimately for the benefit of Non-Orleans, should the same not he required for the work of drainage.” Meld, that the intent of the act was that so long as any property, other than money, was required for 'drainage purposes, it should he held and used for that purpose hy the city.</p>

'Appeal from tbe Circuit Court of the United States for the District of Montana. In Equity. This was a suit by the Hartford Fire Insurance Company and others against the Bonner Mercantile Company to set aside an award of arbitrators. A demurrer to the bill was overruled, and an injunction granted. 44 Fed. Eep. 151.

<p>Bill by Clarinda Green (now Clarinda Smith) and Hugh R. Smith, her husband; Anna B. Green (now Anna B. Barnett) and William H. Barnett, her husband; Philinda Green; Mary F. Green, (mother;) and Mary O. Green, a minor, by 'her next friend, her mother, — against James Terwilliger, T. M. Richardson, Frank Richardson, a minor, and Harry Richardson, a minor, (heirs of Julia V. Richardson, deceased since the commencement of this suit,) to cancel a deed and will.</p>

In Equity. This was a suit Tby John A. McKinnon against David II. McKinnon, Isabella McDonald, and John McDonald. The court below dismissed Ihe bill. 46 Fed. Rep. 71:>.

Iii Equity. Bill by Forest L. Putnam against Louis Rucb and •others fpr the appointment of a receiver for the Orescent City LiveStock Landing & Slaughter-House Company, and for other relief. For former opinion, on motion for injunction pendente lite, see 54 Fed. Rep. 216. On demurrer to tlie bill and supplemental and amended bill.

In Equity. These were bills filed by the Western Union Telegraph Company and the Postal Telegraph Cable Company against the city council of Charles ton and others fox* an injunction against the collection of taxes.

<p>At Law. On demurrer to complaint. Auction by the United States against Margaret Keiver, as administrator of the estate of Joseph TT. Keiver, deceased.</p>

<p>At Law. Action by the United States against, Philip Lipkis and Herman Lapidus on an immigrant’s bond. Judgment for plaintiff.</p>

<p>Coepobations — Ultra Vibes Acts.</p> <p>A California corporation was organized, as stated in tlie articles of incorporation, for the purpose of acquiring a certain piece of land, laying it out as a town, and reselling’ in lots, blocks, etc., and also of acquiring-“street railroad or oilier rights and franchises, telegraph, telephone, or other similar franchises, and gas and electric light franchises, oyer the said property, or any part thereof.” Held, that the corporation had no authority to subscribe for shares of stock in a manufacturing' corporation, and suclt a subscription teas ultra yin's and void.</p>

<p>At Law. Action by Frederick 1ST. Pauly, receiver of tbe California National Bank of San Diego, against tbe State Loan & Trust Company, a corporation, to recover an assessment on certain shares of tbe bank. Judgment for defendant.</p>

<p>At Law. Action by William H. Foster and others against lire the Cleveland, Cincinnati, Chicago & St. Louis Railway Company t.o recover damages for breach of contract. Verdict and judgment for plaintiffs.</p>

At Law. Action by the Blake Manufacturing Company against Zeb Ward to recover a balance due on the contract price of certain machinery sold to him. There was a verdict for plaintiff, and judgment thereon, and defendant brings error.

<p>1. Conflict of Laws — Cheek Nation — Common Law — Husband and Wife.</p> <p>In a controversy which involves the right of a husband to the personalty of his deceased wife, both of them being citizens of the Creek nation, where there is no showing as to what was the law or custom of that nation applicable to the matter, it is error to presume that the common law was in force therein, and to decide the controversy according to its rules.</p> <p>2. Same — Lbx Four.</p> <p>Where such controversy is an action in the United States court for the Indian Territory, the rule of decision, in the absence of evidence as to what the Creek law is, is the law of the forum, which is to he found in Mansfield’s Digest of the laws of Arkansas, put in force in the Indian Territory by Act Cong. May 2, 3890.</p> <p>3. Same — Right to Gkowing Chops.</p> <p>Where the common law as to the right of the husband to the wife’s property has never been adopted, or lias been abrogated, the crops produced on the wife's land are the wife's property, although the husband contributed his labor to their production.</p> <p>4. Evidence — Judicial Notice.</p> <p>The court, in making- up its opinion of the law of the case, Is not limited in its researches to legal literature. It may consult works on collateral sciences or arts or history touching the topic on trial, and may appeal to the public archives.</p>

<p>In Error to tlie Circuit Court of tlie United States for the Dis-rict of Nebraska.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Iowa.</p> <p>This was an action by O. C. Carpen ter against the Chicago, Milwaukee & St. Paul .Railway Company, in which there was judgment for plaintiff, and defendant brings emir.</p> <p>Statement by THAYER, District Judge:</p> <p>This case was submitted to the jury on testimony which tended to establish, and practically di<l establish, the following state of facts: Carpenter, the defendant in error, is a fanner and stock dealer. On December 8, lssi), ho started from Marion. Iowa, for Chicago, Ill., in charge of two car loads of live stock, over the railroad of the plaintiff in error. He was accompanied by another stock dealer and acquaintance of his, named Paul, who also had two car loads of live stock. The four cars of stock in question wore placed at the forward end of die train, next to the engine. The train contained 28 cars, including’ (he caboose. At a station calk'd Klwood the intin stopped to take coal and water, at, about 8 o’clock P. M., and, as is customary with persons in charge of stock, Carpenter went forward from the caboose, where lie had been riding, to examine the stock. Before lie had completed the examination of the four cars, the engine gave the signal for starting, and pulled out on a, slight, down grade. Finding Hint it, would be impossible to go back by the side of the train and to board the caboose, owing- to the speed it would, attain, lie climbed upon one of the forward’cars, intending to walk back 1o tlie caboose along’ the running’ board on the roof of the cars, as bmkemen are in the liahit of doing. On reaching- the top of the car on which he liad climbed, lie stopped for a few moments to rest," and then started back. He bad walked some distance from tbe engine on the running board, when he was struck by an overhead bridge, was rendered, unconscious, and was severely injured. Thp bridge was 2% miles east of Elwood station, and the train, after it pulled opt, moved at the rate of 17 or IS miles per hour, and would cover the intervening space in 8 or 9 minutes. To one standing on the roof of a car and looking in that direction, the bridge was visible from the west for three-quarters of a mile. At the time of the accident Carpenter was an active man, 87 yéars old, and was well accustomed to walking on the tops of cars while they were .in motion. He was 5 feet 8 or 9 inches in height. The car on which he was .walking when struck was 12 feet and 9 inches high. The lowest portion of the overhead bridge, over the center of the track, was 17 feet and 10 inches above the tops of the rails. It was admitted hy 1lie defendant in error that-after he started to walk hack to the caboose, he did not turn to look in the direction that the train ivas moving, hut he denied having any knowledge of the bridge, or of its dangerous character. There was also considerable testimony in the case, that ivas admitted over ihe objection of the plaintiff in error, which tended to show that it is customary among stockmen when traveling on freight trains in charge of stock to go forward and examine their stock when the train halts at stations, and to go hack to the caboose- over the tops of the cars, if, in consequence of the sudden starting of the train or other cause, they are unable to board the caboose in any other manner; and that railway companies are in the habit of permitting such practice on the part of persons on their trains -who have charge of live stock. There was a verdict against the plaintiff in error in the sum of $4,250, whereupon it sued out a writ of error.</p>

<p>At Law. Assumpsit by the Edison General Electric Company against the Johnstown Electric Light Company to recover for supplies furnished. Heard on plaintiff’s motion for judgment for want of a sufficient affidavit of defense.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>At Law. Action by Kate Smith against the Missouri Pacific Railway Company to recover damages for the alleged wrongful death of her husband. A demurrer to the second count of the amended petition was sustained, (50 Fed. Rep. 760,) and, plaintiff declining to plead further, judgment was entered for defendant. Plaintiff brings error.</p> <p>Statement by THAYER, District Judge:</p> <p>The plaintiff in error brought an action against the defendant in error on the 24th day of May, 1882, in the United States circuit court for the western district of Missouri, to recover damages for the death of her husband, who was killed on the 30th day of November, 1881, in the yards of the defendant in error at Kansas City, Mo., by being run over by a locomotive engine. The petition that was originally filed in the case was framed under the Missouri damage act, (Rev. St. Mo. 1889, § 4425,) and alleged, in substance, that the defendant company, on November 30, 1881, had in its emxiloy a locomotive engineer by the name of Murray, who was not a competent, skillful, experienced, and careful engineer, as said company had reason to know, and did know, when it employed him, and that it was guilty of negligence in selecting and appointing such engineer; that said engineer, Murray, on the 30th of November, 1881, by reason of his want of skill, experience, and care, ran a switch engine, of which he was then in charge, through the defendant company’s yards, at Kansas City, at a dangerous rate of speed, and by so doing ran over and killed the plaintiff’s husband, who was a watchman in said yards, and was at tlié time engaged in the careful discharge of his duties. The petition fur-flier averred that at the time of the accident the engine in question was running backward, that tlie canvas cloth at the rear of the engine was let down, and that the lamps on the engine were not lighted.</p> <p>The case appeal’s to have been pending' on the original petition from May, 1SS2, until December 11, J8S9, when an amended petition, containing 1wo counts, was tiled, by leave of court. Tlie first count of the amended petition did not differ materially from the count contained in the original complaint, the substance of which has been stated. But the second count of the amended petition averred, in substance, that the plaintiff’s husband was a watchman, and had nothing to do with ihe' running of trains; that the defendant had in its employ one Murray, who was then and there engaged in running and managing a switch engine; that Murray and plaintiff’s husband were not fellow serva ids; tbat on tlie morning of November 90, 1881, before daylight, by reason of tlie recklessness and negligence of said Murray in managing said switch engine, he ran the same over plaintiff’s husband, while the latter was engaged in the careful discharge of hip duties; that lie ran said engine backwards, at a dangerous rate of speed, in the nighttime, without having tlie lamps on ihe engine lighted, with the canvas let down at the rear end of the cab, and without giving any signal of the approach of ihe engine, and by so doing came in contact with tlie deceased.</p> <p>To the amended petition a demurrer was interposed as to both counts. 'I'he circuit court overruled the demurrer to tlie first count, hut sustained it as to tlie second count, on tlie ground that the second count wap not properly an amendment of the cause of action stated in the original petition, but that it was, in legal effect, a statement of a new and independent causb of, action, against which the Missouri stature of limitations had run before the amended petition was filed. Vide Rev. St. Mo. 1889, § 4129. Thereupon tlie plaintiff voluntarily dismissed the first count of the amended petition, and, declining to plead further, a judgment was entered in favor of the defendant company on the second count, and tlie plaintiff sued out a writ ol error.</p>

<p>In Error to tin» Circuit Court of the United States for the District of Kansas.</p> <p>This was an intervening petition by John E. Hornsby filed against George A. Eddy and Harrison 0. Cross, as receivers of the Missouri, Kansas & Texas Railway, for damages for personal injury. The trial court sustained a demurrer to the petition, and petitioner brings error.</p>

<p>At Law. Indictment of Ed. Dwyer for violation of tlie election laws. Defendant moved to quash tlie indictment</p>

<p>At Law.</p> <p>Appeal by the collector of customs of the port of Now York from a decision of tlie board of Vnited States general appraisers reversing the decision of the collector and sustaining the protest of tlie importer, the Kursheedt Mami-la during company, respecting tlie classification for duty of certain black-dyed cotton goods known as "JUvno Cloth,” imported in pieces of about 40 yards in length and 42 inches in breadth, the greater part of the material in width being a plain fabric;, and the other part consisting of certain openwork patterns or effects produced by separating and grouping the threads in the process of weaving, one of the edges being turned over and sewed down by sewing machine, making a plain hem of about 3 inches in width. The collector classified 1lio nierdiainliso for duty tinder paragraph 34Í) of the tariff act, of October 1, 1890. which, so far as applicable', is as follows:</p> <p>•■349. Clothing, ready made, and articles of wearing apparel of every description. handkerchiefs, and neckties or neckwear, composed of cotton or other vegetable fiber, or of which cotton or other vegetable fiber is the component- material of chief value, made up or manufactured, wholly or in part, by the tailor, seamstress, or manufacturer, — all of the foregoing not specially provided for in this act act. fifty per centum ad valorem.”</p> <p>The importers protested, claiming that their merchandise was dutiable at 45 per cent, ad valorem as colored cottons, valued at over 15 cents per square yard, under paragraph 348 of tlie same tariff act, which, omitting immaterial parts, is as follows:</p> <p>”348. Cotton cloth, * * ” exceeding two hundred threads to the square inch, counting the warp and filling, * * *: provided, that on all such cotton cloths, * * * dyed, colored, stained, painted, or printed, valued ¡it over fifteen cents per square yard, there shall be levied, collected, and paid a duty of forty-five per centum ad valorem.”</p> <p>The board of United Stab's general appraisers decided that tlie leno (doth in question was not in the form of a garment, and was not known as wearing apparel, but was a “countable cotton cloth.” The protest of the importers was accordingly sustained and tlie decision of the collector reversed. The collector appealed to the^ circuit court, where the testimony of several witnesses was taken in behalf of the government, tending to show that the merchandise in question was used almost exclusively to be made up into women's aprons, skirts, and dresses, requiring from a yard and a half to live yards for each garment, and that the broad hem which was on the goods was a part of the garments when finished. The evidence of an examiner in the appraiser’s department of the custom house was also taken, who had made ii count of the threads to the square inch in different parts of the fabric constituting the warp and filling, and who found in one part where the threads Aver© crowded together, 228 threads to the square inch; in another part of the open work, 185 threads; and in the plain portion of the fabric, 169 threads to the square inch; the coum in each case being made by cutting out a square inch, and unraveling the threads therefrom.</p>

At Law. Appeal iu behalf of ibe United States to the United States circuit court of appeals for the second circuit from a judgment of the United States circuit court for the southern district of New York affirming a decision of the hoard of United States general appraisers. The firm of 11.

<p>1. Customs Duties — Classification—‘‘Bolting- Cloth.”</p> <p>Bolting cloth, which is to he used for decorative purposes, and for that reason is manufactured in narrower widths than that generally required for milling purposes, (48 inches,) was free of fluty, under Hie tariff act of March 3, 1883, as "bolting cloth,” notwithstanding the fact that this use and method of manufacture arose after the passage of that act; and it was error to assess a duly thereon of 50 per cent, ad valorem, under Schedule L, as a manufacture of silk, not specially provided for.</p> <p>3. Saiib — Review op Board op Appraisers’ Decision — Recokd—Evidence:</p> <p>When the decision of the hoard of general appraisers is made the subject of review in Hie circuit court pursuant to section 15 of the customs administrative law, (Act dune .10, 1890,) the return made by the board must embody all the evidence which was considered by them in reaching their decision, and it would seem that, as they act judicially, Uiey cannot themselves act as witnesses.</p> <p>3. Same — Decision.</p> <p>In the circuit court the return of the board- is to be considered substantially in the same manner as the report; of a master in an equity suit is considered in that court, or as the record, including, the opinion of the court, in au equity or admiralty suit, is considered in an appellate court. The circuit court therefore should not; disturb the findings of Ute board upon doubtful questions of fact, especially questions which turn on the intelligence and credibility of witnesses; but when a finding of fact is wholly without evidence to support it, or when it is clearly contrary to the weight of evidence, it is the duly of the court to disregard 'it.</p>

This was a petition for a review of a decision of the board of general appraisers sustaining the action of the collector in the classification for duty of certain goods imported by H. Hemnau, Sternbach & Co. The court below reversed the decision, (52 Fed. Eep. 941,) and the government appeals.

<p>1. Customs Duties — Classification—Piíiíí’abatioxs op Coal Tah.</p> <p>Tile provision of tiie tariff act of March 3, 1883, (22 Stat. 493; Tariff Ind. New, par. 83,) imposing- a duty of 20 per cent, on “all preparations of coal tar, not colors or dye,” not specially provided for, applies to a product the determining characteristic of which is something which it has received from coal tar, notwithstanding some of the constituents of coal tar hayo "been eliminated, and other substances added. 49 Fed. Rep. 272, affirmed.</p> <p>■i. Same — Chemical Salts.</p> <p>Under this rule, napthionate of soda is dutiable as a preparation of coal tar, and not as a chemical salt, under the subsequent provision of the act, (22 Stat. 494; Tariff Ind. New, par. 92,) imposing a duty of 25 per cent, on “all chemical compounds and salts” not specially provided for. 49 Fed. Rep. 272, affirmed.</p>

Proceeding by W. J. Matheson & Co., Limited, to review a decision of the board of general appraisers. The circuit court reversed the decision of the hoard of appraisers. 49 Fed. Rep. 272. The United States appeal.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In Equity. Suit by Augustin Daly against George P. Webster and William A. Brady, impleaded with Henry C. Miner, for infringement of copyright ■ Tie circuit court dismissed tie bill. Complainant appeals.</p> <p>The bill alleged that complainant was the author and owner of the copyright of the play entitled “Under the Gaslight,” copyrighted August 1, 1867, under the act of February 3, 1S31, (4 Stat. 436;) that the play had been very successful and popular; that the cause of its success was the originality and novel nature of its principal scenes and incidents, — particularly the scene and incident in the end of the third scene of the fourth act, commonly called the “railroad scene,” in which one of the characters was represented as secured by another of the characters, and laid helpless on a railroad track, in such a manner, and with the presumed intent, that the railroad train, momentarily expected, would run Mm down and kill him, and, just at the moment when such fate seems inevitable, another of the characters contrives to reach the intended victim, and drag'him from the trade, as the train rushed in and passed over the spot; that this incident and scene were entirely novel, and unlike any dramatic incident known to have been theretofore represented on any stage, or invented by any author; that said railroad scene, was, as soon as produced and represented, and ever since, regarded, whenever witnessed, as one of the most novel, startling, and attractive incidents ever represented on the public stage; that the play was repeatedly produced ¡md represented in many cities and towns, to the great profit of complainant; and that the chief value of said play, and its popularity, depended upon said railroad scene, contained in it.</p> <p>The infringement complained of consisted in performing a scene in the play entitled “After Dark,” written by Dion Boucicault, also known as the “railroad scene.” As to this, the bill alleged that defendants, in producing said scene, were using and producing several of the scenes and incidents of complainant’s play, varying them slightly, representing a railroad running undergrotmd in the city of London, substituting for the victim to be killed on the railroad a man tied by a rope, and suspended from an aperture in the top of the tunnel, and hanging over the rail, -where he would be struck by the engine, instead of a man tied and laid upon the track, as in complainant’s play, and, for the rescuer of the victim to be killed on the railroad, a man shut up in a wino cellar, and breaking his way through a window or wall into the tunnel, instead of breaking a way out of a switch tender’s house, as in complainant’s play; that said scene in the play, “After Dark,” as produced by defendants, was a palpable imitation of complainant’s railroad scene, and was plagiarized therefrom, and put into the play of “After Dark,” by defendants, for the purpose of obtaining the pecuniary benefit which might otherwise result to complainant from the representation of Ms play.</p> <p>The bill asked for an injunction to restrain defendants from performing said railroad scene in the play of “After Dark,” and for an accounting from defendants of tbelr profits from the production of said seen© in mat play. On tlie filing of the bill a motion was made for a temporary injunction, which was denied by the circuit onu-t on the ground that complainant had not a valid copyright in his play, because of a material variance between the copy of the title deposited by Mm to obtain copyright, and the title of the published play. 39 E’ed. Rep. 265.</p> <p>An answer to the bill, and a replication, were filed. On final hearing- in the circuit court on the pleadings and proofs, the bill was dismissed; the court following the previous decision, as res judicata. 47 Fed. Rep. 903. Complainant appeals.</p>

In Equity. Suit by Grosveuor P. Lowry against tlie Cowles Electric Smelting & Aluminum Company and Alanson Osborn to set aside an assignment of a patent. Statement by TAFT, Circuit Judge: This cause came on for hearing on the second amended plea to the bill.

In Equity. Bill by the Edison Electric Light Company and others against the Columbia Incandescent Lamp Company and others for infringement of a patent. On motion for a preliminary injunction.

<p>At, Law. Action by Belli ÍT. Smith against David S. Walton and George West to recover pernaltie*s under section 4901 for stamping the word “Pateuiied,” without authority, on 2,200 crates of woodeui dishes.</p>

<p>Patent;! for Inventions — IxFRrNmcM'HNT— Ovens.</p> <p>Letters patent No. 353,068, issued January 4, 3887, to Alvin T. Simpkins, tor an improvement in bakers’ ov< ns, was for an oven having chambers above awl below, divided into flues, through which the products of combustion pass backwards and forwards until they reach the chimney, in front, with upright flues in the front comers connecting the upper and low'd chambers. The same device was already in use, but resulted in the overheating oí the rear part of the oven, to obviate which th<-patentee used, and claimed as his invention, a wail in the lower chamber situated a “suitable distance;” in front, of tin; back wall. The patent con tained nothing further as to the exact, location of this wall. Respondents use ovens 14 feet long, without this additional wall, but with a ledge ex tending from Hie rear wall (i inches under the oven, to support the floor. Hchl, that this ledge 1ms no important function towards equalizing the hear in an oven of this length, and hence it does not infringe complainant's patent.</p>

<p>In Equity. These were three suits brought by the complainants against the Manhattan Railway Company, the Metropolitan Elevated Railway Company, and the New York Elevated Railroad Company, respectively, for infringement of a patent.</p>

In Admiralty. Libels against the steamship Itata and her cargo for alleged violations of the neutrality laws. The court below dismissed the libels, (49 Fed. Hep. 646,) and the United States appeal.

In Admiralty. Libel by Thomas II. Bowring and Nicholas S. Stabb against Edward V. Thebaud, Paul L. Thebaud, Dolphin E. Thebaud, and Frank E. Thebaud to recover an assessment on a general average bond. In the district court a decree was entered for respondents, (42 Fed. Pep. 795,) which was affirmed on appeal to the circuit court. Libelants appeal.

<p>Demurrage — Consignee's Failure to Furnish Berth-Bill or Lading.</p> <p>The Mil of lading under which a vessel carried a cargo of paving stones provided “that forty-eight hours after arrival at the port named in the bill of lading, and notice thereof to the consignees named, there shall be allowed for receiving' such cargo one day for every seventy-five tons thereof, after which the cargo shall pay demurrage,” etc. The vessel duly reported on .Tnly 24th, but the consignees did not give her a berth until August 7th. On suit brought to recover demurrage for that period, respondent claimed that there was no obligation on it to find the vessel á berth. Held that, while it is the ship’s business to find a berth 'in the absence of any custom or evidence to the contrary, the circumstance's of this case, and the construction evidently given to the bill of lading by both parlies, showed that consignees were expected to furnish the berth. Libelant was therefore held entitled to recover.</p>

In Admiralty. This was a lihel by James N. Smith against the New York & Maine Granite Paving Block Company for de-murrage. There was a decree for libelant, (5(5 Fed. Rep. 525,) and respondent appeals.

This was an action by Mary E. Belanger against Robert H. Oras-well for breach of marriage, promise. There were verdict and judgment for plaintiff in the court below, and the defendant brings error.

<p>I Fedkbau Coukts — FoLuovnsro State Practice.</p> <p>The federal courts will conform the practice, pleadings, and forms and modes of proceeding iu civil causes in the circuit court:-;, as near as may be, to the statutes of the stall's in which they are held, and to the practice of the courts in those states; hut it is their right and duty to reject, any subordinate provision of the state statutes, and auy rule of practice of the state courts, which, in their judgment, will “unwisely incumber the administration of the law, or tend to defeat the ends of justice, in their tribunals.”</p> <p>% Baub — J inusDiCTicwAL Amount — Btatr Dncisroys.</p> <p>Plaintiff sued out <m attachment under Code Civil Proc. ICau. § 101, for a debt due, and another, against the same defendant, under section 230, for a debt not due. Both claims grew out of the same running account, and together exceeded §2,000. He brought suit in the United Slates circuit court for the whole amount. Defendant, having demurred, cited section 83 of the Code, allowing a defendant, to demur where causes of action were improperly joined, and section 92, requiring separate petitions for each cause of action where the demurrer was sustained, and a. decision of the supreme court of Kansas construing these provisions, and holding that it was a misjoinder to include in one petition a claim due, and one not due; and he asked judgment on his demurrer in this case because neither claim alone was within the jurisdiction of the court. .IIcW, that Rev. St. U. S. § 914, which provides that the “practice, pleadings, and forms and modes of proceeding in other than equity and admiralty causes” in the federal courts “shall conform, as near as may be” to those existing in the courts of the states in which they are held, does not require those courts to follow state decisions' in matters which affect their jurisdiction, and as the amount in controversy in this case is within the jurisdiction of the court the demurrer will be overruled.</p>

<p>Writ or Error — Motions in Trial Court — Jurisdiction—Dismissal.</p> <p>The removal of a case into the circuit court of appeals by writ of error puts an end to the jurisdiction of the lower court; and as the latter court, therefore, cannot entertain a motion to vacate its judgment in such case after the writ is granted, a second writ of error will not lie to review its denial of such motion.</p>

<p>L Railroad Companies — Receivers—Judgment—Lien.</p> <p>Detitioner furnished materials that were used in the roadbed of a. railroad that was leased to the it. & D. Co., and operated as part oí its system. This lease was afterwards annulled. Petitioner recovered a judgment against the E. & D. Co., and pending his action receivers were appointed for the whole system. Meld, that the judgment could not operate as a judgment against the receivers, nor bind the realty in their hands, for it was not in existence when they were appointed.</p> <p>2. Same — Ihtebvektion—Jurisdiction—District.</p> <p>The receivers were appointed by the circuit court of the eastern district of Virginia, of which the E. & D. Co. was a citizón. Their authority was extended and confirmed in ancillary proceedings in the circuit court for the district of South Carolina, in which part of the system, including said leased road, was situated. Petitioner proceeded in the latter court, praying that his claim be paid out of income, in preference to any mortgage lien, as being for materials that had assisted in keeping the system a going concern. Meld, that the court which originally appointed the receivers is the forum wherein he should seek relief.</p> <p>3. Same — Dismissal.</p> <p>As the claim is a meritorious one, the petition in the South Carolina court will not be dismissed, but will be retained, in order, if possible, to assist petitioner in enforcing' its payment.</p>

This was an action of ejectment hy Edward T). Carter against Charles Ruddy and others, in which defendants had judgment, and plaintiff brings error.

In Equity. This was a suit by Barbee T. Blackburn and Sadie M. Blackburn, his wife, against Charles T. Wooding, to procure' the cancellation of a deed from plaintiffs to defendant. The court below dismissed the bill, (49 Fed. Rep. 902,) and plaintiffs appeal

In Equity. This was a suit by Lyman T. Hicklin against Henry Marco and others, praying the cancellation of a mortgage, or that complainant be allowed to redeem therefrom. There was a decree for complainant, (46 Fed. Rep. 424,) and defendants appeal.

<p>1. Alters — Expatetatiox of Citizens of T'niteji States.</p> <p>Tlie act of July 27, 180S, (15 Stat. 223,) entitled “An act concerning the rights of American citizens in foreign states,’’ recites in its preamble that “the right of expatriation is a natural and Inherent right of all people;” but the provisions of the act apply only to persons expatriated from a foreign country by immigration into the United States and naturalization therein, and declares them entitled to the same protection abroad as is accorded to native-born citizens of the Union. Held that, even if the preamble be held to imply a recognition of the right of a citizen of the United States to expatriate himself therefrom, actual removal from the country, and the acquisition of a domicile elsewhere, are conditions precedent to such expatriation.</p> <p>9. Same — Husband and Wife — -Citizenship by Mabbiage.</p> <p>Act Feb. 10, 1855, (10 Stat 604; Ttev. St. § 1994,) which provides that an alien woman, by marriage with a citizen, shall become a citizen, does not authorize any inference that congress intended to declare the converse, that a citizen woman, by marriage with an alien, should become an alien; nor will the principle that the domicile of the wife is controlled by that of the husband, obviate the necessity of an actual removal from i he country of a citizen woman, married to an alien, in order to effect her expatriation, that statute not being a declaration of the general consequences of marriage, but being in furtherance of the uniform policy of the government of the United States to increase immigration by encouraging the naturalization of citizens.</p> <p>8. Same — Expatbiation--How Pkbmtssibum.</p> <p>Expatriation can be effected only in accordance with law. Under our government, congress must be the source of that law.</p> <p>4. Same — Conditions of Expatkiation— If Poksibi/b at Aim.</p> <p>If expatriation could under our constitution ever be implied, it must be in some maimer assented to by congress, and the purpose to effect it must be manifested by some unequivocal act on the part of the citizen seeking expatriation. Both these conditions are wanting in this case.</p> <p>5. Same — What Constitutes Atjenagts.</p> <p>Plaintiff, a native citizen of .Louisiana, married a native-born subject of Italy, who, prior thereto, had come to Louisiana, and engaged in business, without intending ever to return to Italy, though he was not naturalized. After her marriage, she and her husband, until his death, lived together in Louisiana, without any intention on the part of either to depart therefrom or ever to reside elsewhere, and she, after his death, continued to live there. Held, that she was not an alien, and hence the federal courts could have no jurisdiction on the ground of diverse citizenship of a suit by her against a citizen of Louisiana.</p>

<p>1. Territories — Acts of Legislature — 'Vaudits’—Submission to Congress.</p> <p>Iic.r. St. § 1850, requires that all laws passed by territorial legislatures, except certain territories named, ‘‘shall he submitted to congress, and, if disapproved, shall he nuil and of no effect.” Held that, in order to impeach any law under this section, it must be shown that the same was submitted to congress, and disapproved.</p> <p>‘ 2. Constitutional Law — Obligation of Contracts — Tax Deeds and Certificates.</p> <p>The statute of Washington Territory, (Laws 1886, p. 92,) requiring the holders of tax certificates to give notice to the owner or occupant of land before they can obtain tax deeds, did not, in its application to a tax certificate issued before its passage, impair the obligation of the contract evidenced by the certificate, and the holder thereof was bound to give such notice.</p> <p>3. Tax Deeds — Validity—Notice to Owner.</p> <p>In case the land was unoccupied, and the owner could not be found, the act required the notice to be published three times in a newspaper printed in the county, the first publication to be not more than five months and the last not less than sixty days before the expiration of the time for redemption. Helé, that one whose certificate entitled him to a deed on May 7, 1S86, had a reasonable and sufficient time after the passage of the act (Feb. 3, 1886) to comply with its provisions; and it was immaterial that, owing to delay in publishing the law, he did not in fact have knowledge of it in time.</p> <p>4 Same — Limitation op Actions.</p> <p>A deed made by the sheriff in such case without a compliance with the statute, and without reciting such a compliance, is a deed void upon its face for want of authority to execute it, and is insufficient to set the statute of limitations running in favor of the grantee.</p>

<p>1. Appeal — Record—Waiver of Jury — Stipulation.</p> <p>The record of a, case in the trial court contained an entry that the parties appeared by counsel, “and made and filed their agreement in writing with the clerk that this cause might be tried by the court without a jury, which agreement is in words and figures following.” The agreement was then set out in full, and attached thereto were the signatures of counsel, preceded by the letters “O. K.” Held, that this showed a sufficient compliance with Rev. St. § 649, requiring waiver of a jury to he stipulated in writing, and filed with the; clerk.</p> <p>2. Same — Review—Harmless Error — Misnomer.</p> <p>It is no ground for reversing a judgment against a firm that in some of the later papers in the cause one of the members, whose name is “Han- - non,” was called “Harmon.”</p> <p>3. Garnishment — Civil Suit — State Practice.</p> <p>Gen. St. Kan. 1889, par. 4290, provides that, where plaintiff desires to take issue on the answer of a garnishee, he shall give notice thereof, “in which case the issue shall stand for trial as a civil action,” etc. Held that, though it is beguu hy attachment, the proceeding is a “civil cause,” within the meaning of Rev. St U. S. § 914, requiring the practice and pleading in the federal courts in civil causes to conform to those in the state courts in similar causes, any rule of court to the contrary notwithstanding.</p> <p>•t. Attachment — Federal Courts — State Practice — Rules.</p> <p>Rev. St. § 915, which provides that the fedéral courts may, “by general rule, adopt such state laws as may be in force in the states in winch they are held in relation to attachments,” docs not require the rule of court, adopting such laws to be promulgated in writing; and it will be presumed on appeal that such a rule has been adopted by the trial court, when it is necessary to sustain its judgment, and there is no affirmative showing to the contrary.</p> <p>5. Appeal — Review—Finding of Facts — Sufficiency.</p> <p>Tiie judgment of the court in a case tried hy it without a jury was based solely on the legal effect of a certain agreement between the parties. This agreement was not set out in the findings of fact, nor its substance stated therein, though it was apparent that the court intended that it should constitute a part of the findings. Held, that the judgment should he reversed, as not being sustained by the facts found.</p>

<p>1. Aliens — Who are — Effect op State Laws.</p> <p>A foreign-born resident of the United States, who has merely declared his intention to become a citizen, but has never complied with any other provision of the naturalization laws, is none the less an alien because of the fact that the constitution and laws of Minnesota, wherein he resides, have conferred the elective franchise and other privileges of citizenship on foreign subjects who have declared their intention to be naturalized, and that he has actually voted for member of congress and state and county officers.</p> <p>2. Same — Naturalization Laws.</p> <p>Nor is his status altered by reason of the fact that, when he so declared his intention, he was entitled, by reason of length of residence, to be naturalized, under Rev. St. § 21G7, for that section merely dispenses with the two-year delay between the declaration of intention and the actual admission to citizenship which is prescribed by section 2165.</p>

<p>Patents eor Inventions — Validity—Novelty—Evidence.</p> <p>Claims 4 and 5 of letters patent No. 263,412, issued August 29, 1882, to Peter H. Jackson, were as follows: “The improvement in illuminating tiles, consisting of metallic sections with horizontal shoulders, upon which the edges of the adjacent tiles are supported, where said shoulders extend the full length of the liles, so as to rest upon the hearing surfaces;” and “the improvement in basement extensions, consisting of the supporting beams and wall having depressions at intervals, in combination with the horizontal tile<-supporting shoulders, resting in the depressions, and forming the bottoms of the joints between the meeting edges of the adjacent tiles.” Held, that the device covered by the latter claim is merely an equivalent lor the store coping formerly used for the purpose; and in view of un-contradicted expert evidence that bearers, supporting shoulders, etc., equivalent to those described in the patent, had long been in use, these claims are invalid for want of patentable novelty.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of California.</p> <p>At Law. This wms an action by Daniel C. Wilgus against the Harper & Reynolds Company for damages for the infringement of a patent. There was a verdict and judgment for plaintiff, and defendant brings error.</p>

In Equity. Suit by the Jonathan Mills Manufacturing Company against M. C. Whitehurst and others for infringement of letters patent No. 267.098, issued November 7, 1882, to Jonathan Mills, for an improvement in machines for bolting flour. Decree for complainant.

In Equity. Suit by Benjamin F. Curtis against tbe Atlanta Street-Railroad Company for the infilngement of letters patent No. 312,259, issued February 17, 1885, to Benjamin F. Curtis, for a “street-railroad chair.” The alleged infringing chair wás made under letters patent No. 316,995, issued May 5, 1885, to A. J. Moxham, for a “rolled or forged metal chair for railroads.” Decree for defendant.

<p>In Equity. Suit by William Hanlon against George H. Primrose and William IT. West for infringement of a patent. On demurrer to the bill.</p>

<p>Shipping — Bill of Lading— Stipulation as to Negligence — Law of the Flag.</p> <p>Stipulations neld void because against the public policy of the United States are not made valid by the stipulation of the parties; hence, where libelant’s goods were damaged by negligent stowage in a vessel, the carrier was held liable, although the ship was English, the bill of lading contained the stipulation, valid in England, exempting the carrier from the consequences of his negligence, and also provided that, in accepting it, the shipper expressly agreed that the contract should be governed by the ' law of the flag.</p>

<p>Appeal from the Circut Court of the United States for the Northern Division of the District of Washington.</p> <p>In Admiralty. Libel by the Portland Skipping Company against the ship Alexander Gibson (Edward O’Brien, claimant) to recover damages for the breach of a charter party. The district court dismissed the bill, (44 Fed. Rep. 371,) but oil an appeal to the circuit court this decree was reversed, and a decree entered for libelant . The claimant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In Admiralty. Libel by Starin’s City, River & Harbor Transportation Company against the canal boat Daniel Burns, Michael E. Kiley. claimant, to recover for an alleged shortage of cargo. In the district court the libel was dismissed. See 52 Fed. Rep. 159, where the facts are more fully slated in the opinion of the Honorable Judge Brown. Libelant appeals.</p>

<p>Charter Party — Dispatch Money — Contract op Sale — Interpretation.</p> <p>A contract provided that the plaintiff should soil, and the defendants buy, iron ore, at named prices, and stipulated that these prices “were based on an ocean freight rato oí 12 shillings a ton,” all freight over that sum to he added to, and all freight less than that sum to be deducted from, the invoice price. Plaintiff chartered a vessel at that rate, agreeing w'ith it in the charter party for £15 dispatch money and £30 demurrage for each day to be saved from or exceeding tbe number of days allowed for loading or unloading. Dispatch money was deducted from the amount paid for freight, which defendants claimed should be deducted fi’om the invoice charge. Held, in the absence of any unusual expenditure by plaintiff to secure dispatch, the dispatch money vas merely a deduction from the freight, and must be allowed on the invoice price. 48 Fed. Itep. 589, affirmed.</p>

<p>In Admiralty. Libel by the Morgan Iron Works against tbe steamship Allianca for wharfage.</p>

<p>1. Maritime Liers — Supplies—Chartered Vessel — Lack of Authority to ' Bird Ship — Knowledge—Eoreigr Vessel.</p> <p>Where a material mau, in furnishing coal to a vessel, lias no dealings with any one who lias any real or even apparent or implied authority to hind the ship lor coal, hut with the charterer only, whom lie knows in effect io have no such authority, and there has never heen any common agreement or understanding that he should have a lien, no lien arises under .the maritime law, even, upon a foreign ship.</p> <p>2. Liers order State Statute — Chartered Vessel —Charterer kot Au- . THORTZED TO BlRD SlIIP — KROWLEDGE OF LACK OF AUTHORITY.</p> <p>The New York state statute (Laws 1SG2, c. 482) giving a lien on a vessel for á debt contracted hy the master, owner, charterer, etc., does nor ■apply to. a case where one furnishing supplies voluntarily dealt with the . charterer alone, a domestic corporation, knowing, or being legally chargeable with knowledge, that such charterer had no authority to bind the • ship for the supplies.</p> <p>3. Same — Corstitutioral Law.</p> <p>, Semble, the state authority cannot impose such a lien contrary to known charter stipulations, as they would be an unreasonable burden upon and interference with commerce.</p>

<p>Tugs and Tows — When Heiu'er Necessary — Anchorage Ground — New York Harbor — Improper Anchoring.</p> <p>A lug, starting up tlie North, river with a long tow, perceived, half a mile ahead of lier, the lights of a vessel, which was anchored nearer the channel than permitted by the regulations of the secretary of the treasury. Other vessels preventing the tug from drawing across ■ the river, libelants’ boat, in the last tier of the tow, struck the anchored vessel, and was sunk. Jichi, Hint the vessel at anchor was in fault for lying outside of the prescribed anchorage ground, but so also was the tug in charge of the tow, for not sending her helper back to push the tow out of the way of the anchored vessel, whose unlawful position, and the difficulty of taking so long a tow past her, were seasonably recognized.</p>

In Admiralty. Libel by Timothy Wallace against the steamship Alijandro, Joaquin Rede, claimant, to recover damages for personal injuries received by him while engaged as a stevedore in loading the ship with coal. The district court rendered a decree for the libelant in the sum of $4,400, which was affirmed by the circuit court, and the claimant appeals to this court.

<p>At Law. Action by William L. Chase and others, copartners, against the Sheldon Roller-Mills Company. On motion to dismiss for want of jurisdiction.</p>

<p>At Law. Action by L. Laskey and A. R. Conklin . against the Newtown Mining Company. A demurrer to the complaint was sustained. 50 Fed. Rep. 634. The hearing is now on demurrer to the amended complaint.</p>

In Equity! On motion for preliminary injunction. Suit by the United States against the World’s Columbian Exposition, an Eli-nois corporation, and others, to restrain the defendants from opening on Sundays the World’s Fair held at Jackson Park in the'.'city', of Chicago.

<p>1. Appeal — Jurisdiction—Circuit Court op Appeals.</p> <p>Where, in a suit for injunction, the power of the circuit court to determine the case is. not denied, hut it is contended by the defendant that the complainant has not made out a case properly cognizable in a court of equity, the jurisdiction of the circuit court is not in issue, within the meaning of the statute defining the jurisdiction of the United States circuit courts of appeals. ■</p> <p>2. Same — 'Constitutionality op Statute.</p> <p>Where the ground of the decision of the circuit court has no reference to the construction or application of the constitution or to the validity of any acts of congress, the jurisdiction of the circuit court of appeals to review such decision on appeal is not defeated by the fact that the constitutionality of certain acts of congress might have been challenged by the defeated party.</p> <p>3. Injunction — Remedy at Law — World’s Columbian Exposition.</p> <p>In a bill by the United States against the World’s Columbian Exposition to restrain the latter, an Illinois corporation, from opening the exposition on Sundays, it was shown that congress had appropriated $2,500,-000 for the exposition on condition that the exposition should be closed on Sundays; that a large part of the appropriation had been paid, and that the corporation had opened the gates on Sundays; but it was not shown that the corporation was insolvent, or that the part of the appropriation paid might not be recovered by action at law. Beld, that an injunction should not be granted, since there was no showing of irreparable injury or of inadequate remedy at law. 56 Eed. Rep. 630, reversed.</p> <p>4. World’s Columbian Exposition — Charitable Trust.</p> <p>Said appropriation, being made for the benefit- of the local corporation, •did not constitute a charitable trust, although in aiding the corporation a great public enterprise was aided. 56 Fed. Rep. 630, reversed.</p> <p>5..Same — Construction op Statute — Possession—Agency—Corporations,</p> <p>Under the act of April 25, 180(1 which gave governmental sanction to the exposition, but which declared that the United States should not in any manner or under any circumstances be liable for any acts of the local corporation, and left the exposition to be managed, the expenses borne, and the income received by the local corporation, the possession of the exposition grounds by the local corporation is not the possession of the United States, since the corporation is not the agent of the government.</p>

<p>In Equity. Suit by Carl Ítin;; against Hie Louisiana Tanning Company and others for an injunction.</p>

<p>1. Railroad Companies, — Supply Liens — Rolling Stock.</p> <p>Code Va. § 2462, provides tliat a conditional sale of rolling stock to a railroad company, where legal title is reserved to the vendor until the purchase money is paid, shall he void as to creditors and bona fide purchasers of the vendee unless the contract is recorded as therein required, and “each locomotive and car * * * be .plainly and permanently marked with the name of the vendor on both sides thereof, followed by The word ‘owner.’ ” Held, that a lien for the purehase money of rolling stock reserved by contract under this section is in no wise inconsistent with the existence of ;l lien under section 2485, which gives to all who furnish supplies necessary to tin; operation of a railway “a prior lien on the franchise, gross earnings, and all the real and personal property” of ■die road, upon condition that the claim be recorded as required by section 248(1.</p> <p>2. Same — Car Contracts.</p> <p>The contract under which cars were furnished to a railroad company styled itself a “lease,” and provided for payment of the purchase money in monthly installments, with the right in the vendor, on default, to take possession of tho cars, and sell, returning any surplus after payment of the outstanding notes to tho vendee. The vendor imt his name on the cars as owner, and recorded Hie contract as required in the case of conditional sales. .Held, that the cars were “furnished,” within the meaning of Code Va. § 2485, declaring a supply lien in such cases, and nothing-done by tho vendor herein amounted to a waiver of such lien.</p> <p>3. Same — Mortgage Creditors — Priorities.</p> <p>As to creditors secured by a mortgage on all the properly of the road before the cars wore furnished, the sellers of the cars are entitled to a prior lien ihereon, whether their contracts of claims of liens were properly recorded or not, for the mortgage only attaches (o the oars as after-acquired properly, and is therefore subject to all existing equities, whether there is notice to the mortgagees or not.</p> <p>4. Same — Supply Liens — Claim—Time of Piling.</p> <p>Code Va. § 248(S, provides that no person shall be entitled to the railroad supply lien given by tho preceding section “unless he shall within six months after his claim has fallen due” lile in a specified office a, prescribed memorandum of his claim, to he recorded. Held, that the lime of furnishing the supplies is immaterial, so far as concerns the claim, and where they art' to be paid for in installments the claim must be tiled and recorded within six months after the last installment falls due.</p> <p>5. Same — Invalid Act — Revival.</p> <p>Prior to the furnishing of some of the cars an act had heen passed giving a. supply lien, but it was held unconstitutional because ils title did not cover Its object. The laws of Virginia were then codified, including ihis law, and the act adopting the Code was passed before the cars wore furnished, but it did not go into effect until thereafter. Held, that there can he -no lien as to those cars, since there was no valid act in existence, creating such a lien, when they were furnished.</p> <p>6. Same — Time of Filing Claims — Suspension.</p> <p>Where a creditor's bill is filed against a railroad, and the court refers tho case to a commissioner to determine the claims, and their priorities, this suspends the running of the six months within which the claim of lien for supplies is required to be filed by Code Va. § 248(5. Seventh Nat. Bank v. Shenandoah Iron Co., 35 Fed. Rep. 430, followed.</p> <p>7. Same — Supply Lien — Medical Attendance.</p> <p>Medical services rendered and board furnished by a hospital to an employe of a railroad company injured and disabled in its service are not “supplies necessary for the operation of a railroad,” within Code Va. § 2485, .giving a lien for supplies.</p>

<p>1. Mixes and Mining — Boundary on Claim — Patent Conclusive.</p> <p>The assignee of a mining claim procured a patent therefor, the survey being made under the supervision of the original locator. Held that, in the absence of evidence of bad faith on the part of the locator, the patent was conclusive as to the limits of the claim as against the patentee.</p> <p>S. Same — Use on Ground nor Buildings and Tunnel.</p> <p>The use of an unclaimed piece of ground by a mining company for buildings and for the construction of a tunnel thereunder to aid in the working of the company’s claim, does not initiate any right to the ground as an independent mining claim.</p> <p>8. Same — Location on Claim — Failure to Discover Lode — Bight to Patent.</p> <p>The fact that three ions of silver-bearing rock, yielding $(¡00, have been extracted from a mining claim, does not entitle the locator to enter the claim for a patent when no vein or lode has been discovered within the limits of the claim, the location having been made merely in the hope of finding such at some future time.</p>

In Equity. -Suit by J. J. Robinson, trustee, against the Alabama & Georgia; Manufacturing Company, the Huguley Manufacturing Company,.and William T. Huguley, to foreclose a trust deed given by the first-mentioned company. A demurrer to. the bill was overruled, (-.3 Fed. Rep. 12.) and a decree of foreclosure was entered. Subsequently, tlie case was beard on demurrer to a petition for attorneys’ fees, and (lie demurrm- was sustained. 51 Fed. Rep. 268.

In Equity. Bill by Henry B. Tompkins against D. M. Drennen and Joseph Smith to enjoin tbe sale of plaintiff’s property under execution. From a dismissal of tbe bill on demurrer, complainant appeals. Statement by TOULMIN, District Judge: The bill in this case was filed to enjoin the sale of appellant’s property, levied on under an execution issued on a judgment obtained against him in the state circuit court of Jefferson county, Ala.

<p>1. COMBINATIONS IN RESTRAINT ON TltADE — EQUITY .JURISDICTION.</p> <p>The jurisdiction of the circuit court to entertain a suit to enjoin a eom-bination of persons from interfering With and preventing shipowners from shipping a crew may be maintained on the ground of preventing a multiplicity of suits at law, and for the reason that damages at law for interrupting tho business and intercepting the profits of ponding enterprises and voyages must, in their nature, be conjectural, and not susceptible of proof. 64 Fed. Rep. 40, affirmed.</p> <p>2. Same — Injunction Pendente Lite — Evidenois.</p> <p>Evidence that, by reason of the action of a combination of persons, the crew left complainants’ ship as she was about to sail, and that another crew could not be procured for nine days, and then only with the assistance of the police authorities and the protection of a restraining order, while other vessels in tho vicinity had no difficulty in getting crews, is sufficient to authorize the court to enjoin interference with the business of the complainants by such combination pendente lite. 54 Fed. Rep. 40, affirmed.</p>

In Equity. Bill by the Pennsylvania Railroad Company against the National Docks & New Jersey Junction Connecting Railway Company for an injunction to restrain the condemnation hy defendant of a right of crossing for its railroad through the yard of the complainant company in Jersey City.

<p>At Law. Ejectment by Leslie A. Belding against John A. Willard and George F. Piper. Judgment for defendants.</p>

<p>1. Pinnae Lands — Railroad Comuaniks — Rkuit or Way.</p> <p>Act Cong. March 3, 1875, § 1, grants to certain railways therein specified a right of way, of given width, Through the public lands, “also ground adjacent to such right of way for station buildings,” etc. Section 4 provides that any railroad company desiring- to avail itself of the provisions of the act shall, within a stated lime, “file with tlie register of tlie land office for the district -where such land is located a profile of its road,” and that, after such location is approved hy The secretary of the interior, all lands over which the right of way passes shall be disposed of subject to such right. Held, that no right to grounds for station purposes attaches until the railroad company has acquired tlie right of way hy compliance with the provisions of the act.</p> <p>2. Same — Station (Juounds — ITuon Skttlkmknt.</p> <p>Defendant railroad company filed a, map of the land it desired to acquire for station grounds before it had acquired the right of way by-filing the required profile of the road. This profile was afterwards filed and approved; hut, before either was done, plaintiff settled on the land, and filed his declaratory statement. Tie afterwards completed the purchase, and a patent vas issued to him. Held, that he took the land free from any claim on the part of the railroad company, for the filing of the profile was a condition precedent to the initiation of any right in its favor, and his soil lenient, to which the patent related hack, antedated that.</p>

<p>In Error to the Circuit Court of 1he United States for the East- ■ ern District of Louisiana.</p> <p>At Law. Action by the Pullman Southern Car Company against the Chicago, St. Louis & New Orleans Railroad Company to recover damages on account of the destruction by fire of two sleeping cars, the “Louisiana” and fhe “G-reat Northern,” while on the premise's of the defendant. There Avas a verdict and judgment for plaintiff. Defendant sued out a writ of error to the supreme court, which, on March 2, 1891, reversed the judgment, and remanded the case for a new trial. 11 Sup. Ct. Rep. 490, 139 TJ. S. 79. The plaintiff then discontinued the case as to the car “Great Northern,” and afterwards obtained a verdict and judgment for the value of the “Louisiana.” Erom this judgment defendant now brings error.</p> <p>The action was based upon a written contract between the two corporations, dated April 5,1879, and showing that the plaintiff was engaged in the business of operating sleeping- and drau-mg-room cars, which it hired under written contracts for a term of years to be used and employed on the lines of railroad. companies, receiving therefor income and revenue by the sale to passengers of seats, berths, and accommodations therein. The contract then set out various stipulations by which these purposes were to be carried out, and under which the cars now in question came into possession of the defendant. Among these stipulations were the following: Each of the plaintiff's cars was to be manned, at its own cosí, by one or more of its employes, as might be needful for the collection of fares and the comfort of passengers; such employes to be subject to the rules and regulations established by the defendant for its OAvn employes. “In consideration of the use of the aforesaid cars,” the defendant was to haul them on passenger trains on its own lines of railroad, and on passenger trains on tvhich it might, by virtue of contracts or running arrangements with other roads, have the right to use them, “in such manner as will best accommodate passengers during tlie use of said cars.” By article 6 of the agreement, all necessary lubricating- material, ice, fuel, and material for lights were to be supplied, and the washing- anil cleansing of fhe cars furnished under the contract to be done, by the defendant at its expense, which should also renew and replace, as often as necessary, links, pins, bell cord, and couplings for air-brake hose, without charge to the plaintiff. The plaintiff was to keep the ears furnished under the contract in good order and repair; renew and improve them, when necessary, at its own expense; keep them up to the average standard of the best and most approved sleeping cars on any road using an equal number of cars, “excepting repairs and renewals provided for in article sixth of this agreement, and such as are made necessary by accident or casualty, it being understood that the railway company shall repair all damages to said cars of every kind occasioned by accident or casualty during the continuance of this contract, except that tbe Pullman Company assumes all responsibility for any loss or damage occurring to said cars arising from defective heating apparatus or lights furnished by it.” As proper compensation for the maintenance of the running gear and bodies of the cars the defendant was to pay plaintiff “three cents per car per mile for every mile run by said cars upon the road of the railway company, or upon the roads of other companies, by direction of the officers of the railway company, while in service under this contract.”</p>

On Rehearing. Action of trespass to try title by the Texas Lumber Manufacturing Company against Wharton Branch, T. M. McVeigh, C. L. Sisson, Stephen Hines, F. Scroggins, G-. J. Collins, and others. J. B. Abington, E. C. Douglass, and others intervened. On writs of error sued out by defendants and interveners, the judgment was affirmed because of defects in the transcript of record. 53 Fed. Rep. 849.

<p>In Equity. Bill by the Bate Refrigerating Company against Frederick Bnlzberger and others for infringement of a patent. Judgment for defendants on their pleas.</p>

<p>in- Equity. Bill for infringement of a patent. Decree for complainant.</p>

<p>' Appeal from the Circuit Court of tiie United States for the Northern District of Illinois.</p>

Iu Admiralty. Libel by John Davidson against tbe steamboat City of St.- Louis for personal injuries received by libelant while in tbe steamboat's employ, Decree for libelant.

In Admiralty. These were two libels, filed by the Davis Coast Wrecking Company, one in rem against the steamship Alert and her cargo, and the other in personam against Berg and others, owners, etc. Decree against the vessel in the former, and for dismissal of the libel in the latter.

<p>1. Collision — Conflicting Evidence — Probabilities—Decision.</p> <p>In a collision case, where there is a sharp conflict in the testimony given by the respective crews, the court will dispose of the matter rather hy a consideration of the conceded facts and the probabilities of the situation than hy an attempt to reconcile, or determine the preponderance of, the testimony.</p> <p>2. Same — Sudden Shkeb — Suction of Passing Vessels.</p> <p>The suction of two vessels passing each other in opposite directions is not very powerful, especially if there is no groat difference in size, and is too brief in its operation to account for a sudden sheer hy one which brings her into collision with the tow of the other.</p>

In Admiralty. Libel by the Export Coal Company against the steam tug W. J. Keyser and against W. S. Keyser and M. J. Fauria,, claimants. Decree for claimants. Libelant appeals.

<p>In Admiralty. Libel by L. S. Bullí van and others against the Lake Superior Elevator Company for injuries to a vessel. Decree for half damages.</p>

<p>Removal of Causes — Suits against Corporations — -Execution against STOCKHOLDERS.</p> <p>Rev. St. Mo. 18S9, § 2517, provides tliat after the return nulla bona of an execution against a corporation the judgment creditor may, on motion, ahd after notice in writing to the person to be charged, have an execution against any stockholder therein for the amount of his unpaid stock. Held, that this proceeding to charge the stockholder is not merely auxiliary to and dependent upon the suit against the corporation, but is itself a “suit,” within the meaning of the removal of causes acts, and may be removed by the stockholder to a federal court when the requisite diversity of citizenship exists. Webber v. Humphreys, 5 Dill. 223, overruled.</p>

At Law. Action in ejectment by Frank M. Spencer and others against the Kansas City Stock-Yards Company. On motion to quash the service and dismiss the action.

<p>In Equity. Bill by tbe Citizens’ Street-Railroad Company against tbe City Railway Company. Heard on motion to dismiss.</p>

<p>In Equity. Bill by the Texas & Pacific Railway Company against the Society for the Relief of Destitute Orphan Boys, and others. Decree for complainant.</p>

<p>Appeal from tbe Circuit Court of tbe United States for tbe Northern District of Illinois. Northern Division.</p> <p>In Equity. Bill by tbe Chicago, Milwaukee & St. Paul Railway Company against tbe Pullman Palace-Car Company to surcharge an account,- and to restrain tbe prosecution of an action at law. Complainant obtained an injunction. See 49 Fed. Rep. 409. Defendant appeals.</p>

In Equity. Bill by ihe Central Railroad & Banking Company against Ihe John McÑab Bank and John W. Tullis for a receiver of the bank. The Anheuser-Busch, Brewing Association intervened, and claimed the amount of a draft collected by the bank on intervener’s account, and asked that the same he paid to it by Henry D. Clayton, receiver of the bank. The matter was referred to a master, who reported that, the intervener was a general creditor.

<p>Res Judicata — Bill of Review — Judgment oh Appeal.</p> <p>4 bill of review will not lie to set aside for alleged error of law a judgment which has been affirmed by the supreme court, even though such af-firmance was the result of an even division between the judges of the supreme court. I</p>

<p>In Equity. Bills by James T. Black, Francis Black, Adam W. Black, and Alexander B. McGlaslien, partners as Adam & Charles Black, of Edinburgh, Scotland, against the Henry Gr. Allen Company, (two suits,) and by the same complainants against Isaac K. Funk and Adam W. Wagnalls, for infringement of copyrights. Heard on the merits. Injunction in each case.</p> <p>Francis Black, one of the complainants, testified that the complainants Blacks were partners in the publishing business, sharing the profits in common, acting under a partnership agreement in writing, but refused to produce such agreement.</p> <p>There was evidence at the trial that the printed copies of the copyrighted articles or books in question were sent April 5, 1888, by Oliarles Scribner's Sons, acting for complainants, by express, from New York city, addressed to the librarian of congress, at Washington, D. 0., to complete the copyright of such articles or books, and that they were stamped by the librarian’s assistant as deposited April 7th, and were recorded from such stamps. The express company’s delivery book in Washington, as well as the librarian’s express receipt book, showed that a package of books wasi received from Charles Scribner’s Sons by the librarian on April 6th, while there was no entry of any receipt on April 7th. There was also evidence that the librarian’s office was greatly crowded with work, and that his force of clerks was insufficient, and that sometimes books received for copyright purposes were not stamped until the day after their receipt.</p> <p>The material portion of the letter written by Charles Scribner’s Sons to A. & 0. Black, of Edinburgh, referred to in the opinion, was as foEows: “By request of Professor Johnston, we have forwarded, per steamer Alaska, sailing this morning, his MS. of article ‘United States,’ which we wish safely to hand. A copy has been retained here, as he will have advised you, to await your decision as to copyrighting this and Professor Whitney’s section of the same article, together with the maps designed to accompany it.”</p>

In Equity. On demurrer to bill. Suit by tlie Missouri, Kansas & Texas Railway Company against John S. Elliott. Statement by PHILIPS, District Judge: The respondent brought suit at law in the state court against the complainant, based on contract. The respondent had a contract with the complainant by which he was to buy and put up on complainant’s line of railroad certain stone crushers, for the purpose of crushing stone to be used by the railroad as ballast on its track.

<p>In Error to the United States Court in the Indian Territory.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>Action by Henry Colclough against Frances A. Walsh for rent. Plaintiff obtained judgment. Defendant brings error.</p> <p>Statement by BAKER, District Judge:</p> <p>This is an action a,t law, brought by the defendant in error against the plaintiff in error to recover rent upon certain lands, and the building erected thereon, situated in the city of Milwaukee, Wis. The pleadings consist of the complaint, answer, and reply. The complaint alleges that on the 7th day of May, 1889, the parties entered into a written contract, a copy of which is made a part of the complaint. This contract is a lease of a parcel of ground, 100 feet front by 19(5 feet deep, for a term of 10 years, at an annual rental of 9 per cent, upon the value of the land at $100 per front foot. There were no buildings on the ground, find the defendant in error .agreed to erect a building thereon for the use of flic plaintiff in error, who promised io pay a rental upon the cost of the building and grounds at the rate of 9 per cent, per annum. The portions of the agreement material to this appeal are as follows:</p> <p>"And as part of the consideration of this agreement iho party of the first part does hereby promise, undertake, and agree to at once commence the erection ol‘ a factory building upon said promises, and to complete the same with all possible dispatch, according to the plans and specifications being prepared by James Douglas, an architect of the city of Milwaukee, for the use of the said party of the second part in his business. * * * The building to be erected by the party of the first part shall not exceed in cost the sum of twenty-five thousand dollars, ($25,000.) not including plumbing, gas. and steam heat, and finishing off of offices. * * * The value of said buildings upon which said 9 per cent, is to be paid is to be fixed at the actual cost thereof, and when so determined, a supplemental writing' is to he entered into between the parties hereto, stating such value as agreed upon. - * And the party of the second part may at any time require of the party of the first part to construct additions or additional buildings upon either of said one hundred feet, or said additional ground that may be taken as aforesaid, said addition or building to be erected in a substantial manner, as required by the party of the second part. The rent therefor shall be al 9 per cent, upon 1he cost of such additional structures, and payable at the time when the other rein, is provided for.”</p> <p>The complaint, so far as material to the questions in controversy, alleges that “at the time of making and entering into said agreement, and in con temptation thereof, plans and specifications were being i>repare<l by one James Douglas, an architect of Milwaukee, Wisconsin, for the erection <>f a throe-story and basement factory building, which are the same plans and specifications mentioned in said agreement; that in such plans and specifications provision was made for an ell upon the north end of said building, but. at ilie time said agreement was made and entered into it was not determined by the parties whether such <>11 should be presently constructed, or whether the construction thereof should be deferred until some time in the future: that according to such original plans and specifications prepared by said Douglas, and mentioned in such agreement, the cost of said factory building would not exceed $20,000. and the cost of said ell would not have exceeded $5,000; that upon the execution of such agreement, and pursuant to the provisions thereof, and at the special instance and request of said defendant, the plaintiff at. once commenced to erect upon the land described in the contract a throe-story and basement building, and let contracts, and prepared to construct and complete such building in accordance with such ifians and specifications; that thereafter the defendant applied to the plaintiff, and requested and insisted that the ell should he presently erected, and that tin' same should be built adjoining on the south end instead of the north end thereof, as originally contemplated; that the plaintiff objected to such change of plan for the reason that the character of the soil on the south end was such that no proper foundation for such <11 could be prepared without a large additional expenditure of money beyond what it would cost to erect said ell on the north end, and because any change would necessitate the destruction of a poriion of the wall of the main building already constructed; that plaintiff notified defendant, that such change would very substantially increase the cost of such building, and would, therefore, under flic contract, impose upon him a much heavier rental: that defendant insisted upon the construction of said ell, and agreed to pay the increased rent til necessitated thereby; that thereupon plaintiff consented to construct, such ell on the south end of the building, and did so construct the same prior to the 1st day of October, 1889; that llie defendant further requested the plaintiff to vary, add to, and change ihe itlans and specifications in numy other respects.” The complaint specifies in detail the additions and changes request, ed by the defendant: that the plaintiff objected on account of Hie increased cost, but tln> defendant insisted on the additions and changes, and agreed to pay 1be increased rental occasioned thereby; tlmt the plaintiff erected said building according to the plans and specifications, with the additions, changes, and modifications agreed upon; that the total cost of the building was $40/755.53, including plumbing, gas. and steam heat, and that the defendant entered into possession of the building on December 1, 1880, and used and occupied the same under the contract of lease, well knowing' the cost of said building; that there is now due and owing from the defendant to xfiaintiif the sum of $8,892.72, being the rent of such building' and land from December 1, 1889, to Hay 1, 1891.</p> <p>The bill of exceptions does not set out the evidence. So much of the bill as is material to the questions here involved is ns follows: “The plaintiff gave proof tending to show that after said contract was executed, and while the said plans were being prepared, divers changes and additions were made fit the request of the defendant in and to said building over and above what was agreed upon by the parties in the following particulars: The addition of a fourth story to the building; the construction of living rooms and stable instead of an engine house,” etc. "That after the contract was executed, and plans and specifications prepared, further changes were made at the request of the defendant in the construction of said building- from that provided in the plans by the changing of the ell upon the south side, as provided in the plans, into a four-story building, as shown upon the additional plans produced in evidence, which were nude to show such changes.”</p> <p>The defendant objected to the reception of the evidence tending to show the change between the execution of the contract and the completion of the plans. The objection was overruled, and the defendant excelled.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Action by Bessie M. Sturges against John V. Farwell. Plaintiff obtained judgment. Defendant brings error.</p>

.Appeal from' tlie Circuit Court of the United States for tlie Southern District of Illinois. Action by Elizabeth ¡Skinner against ilie county of Franklin upon the interest coupons on certain county bonds. Defendant obtained judgment. Plaintiff appeals.

<p>1. Trial — Instructions—Best and Secondary Evidence.</p> <p>In an action for the price of machines sold with a warranty, and erected by plaintiff upon defendant’s premises, the evidence showed that the machines had been tes ted three times by plaintiff, and had since then remained in the possession of the purchaser without being' used. The defense was that the machines did not fulfill the warranty, and the purchaser introduced evidence showing the result of such tests. Melds reversible error to instruct the jury to the effect that it had been in the power of the purchaser to put the machines to actual test, to see whether they would wort; that actual test is better proof than theory; that a' party should produce better evidence, if he has it in his power; and that how far he should be discredited by reason of not producing such evidence is a matter for the jury, — since the distinction between best and secondary evidence has no application to such a case.</p> <p>2. Same — Buyer and Seller.</p> <p>The rule of best and secondary evidence had no application to the case, for the purchaser supplied the only evidence in his possession, and he owed the seller no duty to make further test, but was entitled to reject the machines when tendered, and stand or fall upon the state of affairs then existing.</p>

Action by the Third National Bank of Chattanooga against E. C. Gordon and others. Judgment for plaintiff was affirmed in the supreme court of the United States on writ of error, (12 Sup. Ct. Eep. 657, 144 U. S. 97;) and, upon filing the mandate in the circuit court, plaintiff moved for summary judgment against defendant and Milton Humes and C. C. Harris, sureties on the super-sedeas bond. This motion wars granted, (53 Fed.

At Law. Action by Robert Allison, A. S. Cousland, and Robert Hamilton, late copartners under the style of Allison, Cousland & Hamilton, subjects of the queen of Great Britain, against W. L. Wittich, a citizen of Florida. Judgment for plaintiffs, and defendant brings error.

At Law. Action by C. R. Bryant against the Texas & Pacific Railroad Company for negligence causing the injury of plaintiff. Judgment for plaintiff. Defendant brings error.

<p>In Error to the Circuit Court of the United States for the Southern District of Illinois.</p> <p>Action on the case brought by Millard F. Brown against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company for personal injuries. Plaintiff obtained judgment. Defendant brings error.</p>

Action on the ease by James H. Stewart against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Plaintiff obtained judgment. Defendant brings error.

<p>Tn Error to the Circuit Court of the United States for the Southern District of Iowa.</p> <p>■ At Law. Action by Charles A. Johnson against the What Cheer Coal Company for negligence resulting in plaintiff’s injury. Judgment was given for plaintiff. Defendant brings error.</p>

<p>Customs Duties — Classification—'“Astrakiian Trimmings. ”</p> <p>Certain fabrics, known in trade as “Astrakhan trimmings,” being a woven material consisting of a cotton foundation and a raised, curled pile, composed of goat’s hair, — the latter being (lie component material of chief value — cut into narrow strips, and the edges roughly basted down by hand, classified for customs duties by the collector of the port of New York as “trimmings” dutiable at 60 cents per pound, and, in addition thereto, 60 per cent, ad valorem, under paragraph 398, Schedule K, of the tariff act of October 1, 1890, held properly dutiable at 49(4 cents per pound, and, in addition thereto, 60 per cent, ad valorem, as “pile fabrics,” under paragraph 896 of the same schedule and act, as claimed by the importers in their protest.</p>

<p>Customs Duties — (T.assificatjon—Manufactures from Rattans and Reeds.</p> <p>Partly-manufactured whipstocks, fishing poles, and canes, being made from rattans and malaecn, having the outer rind or enamel removed, and being tapered, turned, sandpapered, and varnished, are properly dutiable as “manufactures of wood,” at 35 per cent, ad valorem, under paragraph 230, Schedule D, of the tariff act of October 1, 1890, and section 5 (the similitude clause) of that act, and not as “reeds manufactured from rattans or reeds,” under paragraph 229 of said schedule and act, at 10 per emit, ad valorem, as claimed by the importers.</p>

<p>Customs Duties — Classification—Jet Trimmings.</p> <p>Certain so-called “jet trimmings,” being ornamental articles manufactured from black glass and iron, glass being the material of chief value, are properly dutiable as “manufactures of glass,” at CO per cent, ad valo-rem, under paragraph 108 of the tariff act of October 1, 1890, as classified by the collector of the port of New York, and not as “manufactures of jet,” or of which jet is the component material of chief value, at 25 per cent, ad valorem, under paragraph 459 of the same tariff act, as claimed by the importers. • Held, that the tariff act defined the meaning of “jet” as covering only-the mineral substance of that name; especially with reference to Schedule N, Tariff Ind., (paragraph 458 of the tariff act of March 3, 1883,) which provided for “jet, manufactures and imitations of,”, the provision for imitations of jet being omitted in the act of 1890; and that congress used the word “jet” with the same meaning in the act of 1890 that it had in the act of 1883, referring only to the mineral jet and manufactures thereof.</p>

<p>Customs Duties — Classification—Citrat,—Oil of Lf.moh.</p> <p>Oil ral, being a highly concentrated form of oil of lemon, from which nearly all the terpeue elements had been extracted, imported in glass bottles, and sold by the importers under the name of “citral,” the preparation being chemically a highly concentrated and refined oil of lemon, M<7, that it was properly free of duty as lemon oil, or oil of lemon, under paragraph 661 of the free list of the tariff act of October 1, 1890, and that it was not dutiable, as an essential oil, at 25 per cent, ad valorem, under paragraph 76 of Schedule A of same tariff act.</p>

<p>At Law.</p> <p>Appeal by the importers and the United States from a decision of the hoard of United States general appraisers.</p> <p>Merchandise: Cotton hemstitched lawns. Classified by the collector as “partly-made cotton wearing apparel, 50 per cent, art valorem,” under paragraph 349, Tariff Act Oct. 1, 1890.</p> <p>Importers' protest: “Manufactures of cotton not specially provided for, 10 per cent, ad val.,” under paragraph 355 of same act; or as “cotton cloths, under paragraphs of Schedule 1, according to number of threads and value.”</p> <p>The board of general appraisers found as conclusion of law that the merchandise was dutiable as countable cotton cloths, under Schedule I, par. 347, and sustained the protest on that head. Evidence was taken by both sides in tlie circuit court. It appeared that the goods came in piecds of from 28 to 30 yards in length, by about 45 inches wide, with a broad hem on one side; that their chief use was to be made up into women's and girls’ dresses, skirts, and aprons, though the material was also sold for sash curtains. A government examiner testified that the count of threads in the fabric to the square inch was not uniform, as threads had been drawn out of certain parts to produce the open-work patterns.</p>

<p>Customs Duties — Classification—Herrings in Cans — Bloater Paste.</p> <p>Various kinds of herring, packed in hermetically sealed tin cans, and known by the names of “Digby chicks,” “preserved bloaters,” “divided herring,” “kippered herring,” “fresh herring,” “deviled herring,” and “herring in tomato sauce,” are dutiable under Schedule G, par. 295, of the tariff act of October 1, 1890, as “fish in cans or packages made of tin,” at 30 per cent, ad valorem, and not as “fish, smoked, dried, salted, pickled, frozen, packed in ice, or otherwise prepared for preservation,” at three-fourths of one cent per liound, under paragraph 293 of said schedule and tariff act, or as “herrings, pickled or salted,” at one-half of one cent per pound, or as “herrings, fresh,” at one-fourth of one cent per pound, under paragraph 291 of the same schedule and act. “Bloater paste,” being a kind of herring ground into paste, and mixed with condiments and spices for use as a sauce, and also packed in small tin cans, is dutiable, under said paragraph 295, as “fish in cans or packages made of tin,” at 30 per cent, ad valorem, and not as a “sauce,” under paragraph 287 of said schedule and act, at 45 per cent, ad valorem.</p>

<p>At Law. Appeal by importers from a decision of the board of United States general appraisers.</p> <p>The firm of Rosenstein Bros., imported by the “Conemaugh,” March 11, 1891, by the “Veendam,” April 9, 1891, by the “Amsterdam,” May 4,1891, and by the “Spaarndam,” May 7, 1891, from a foreign country, into the United States, at the port of New York, certain merchandise invoiced as “chicory,” and styled on the wrappers containing the same “Seelig’s Kaffee” and “See-lig’s Coffee.” This merchandise was classified for duty at the rate of 2 cents per pound, under the provision for “chicory root, burnt or roasted, ground or granulated, or in rolls, or otherwise prepared, and not specially provided for in this act,” contained in paragraph 317 of the tariff act of October 1, 1890, (26 Stat. 58S;) and duty at that rate was exacted thereon by the collector of customs at that port. Against this classification and this exaction the importers duly protested, claiming that this merchandise was not chicory root, burnt or roasted, ground or granulated, or in rolls, or otherwise prepared, hut was an article used as coffee, or as a substitute for coffee, and was therefore dutiable at 1y2 cents per pound, under the provision for “dandelion root and acorns prepared, and other articles used as coffee, or as substitutes for coffee, .not specially provided for in this act,” contained in paragraph 321 of the same ^tariff act.</p> <p>Upon the receipt of the importers’ protests, the collector, pursuant to section 14 of the customs administrative act of June 10, 1890, (26 Stat: 137,) transmitted tlie invoices of tills merchandise, and all the papers and exhibits connected therewith, to a hoard of three United States general appraisers, on duty at this port. The hoard of general appraisers, having- examined the case tiras submitted, overruled the importers’ protests, and affirmed tlie classification and the exaction of the collector. The importers, being dissatisfied with the decision of the board of general appraisers, applied, pursuant to section 15 of the customs administrative act, to the United States circuit court for the southern district of Xow York for a review of the questions of law and fact involved therein. In compliance with an order granted upon such application, the board of general appraisers, made, their return to tlie circuit court, and thereafter further evidence was taken in that court.</p> <p>From tlie evidence in the ease it appeared that tlie merchandise in suit was composed of 1,250 kilograms of chicory root, 500 kilograms of beet root, 28 kilograms olive oil, and 50 kilograms of sirup, or more than 68 per cent, in weight of chicory root; that the percentage in value of the chicory root in. this merchandise was 43.85 per cent, of its total value, but that the percentage in value of any single one of the other ingredients of this merchandise was unknown; that the predominating flavor of this merchandise was than of chicory root; that this merchandise was produced in Germany hy grinding together into a paste-like substance, with a very little moisture in it, these different ingredients in the respective weights above mentioned, but that, as imported, it was in the form of rolls or cylindrical shaped sticks, each of which was inclosed in a paper wrapper, with, among other things printed thereon, directions for preparing it for use; that these directions were, in substance, to add one part of it to two or three parts of coffee, to pour boiling water over the mixture, and to let this mixture then draw for five minutes, and afterwards to strain off the decoction thus obtained; that according to one of the above-named importers, who testified that his firm was the sole importers and agents for tlie sale of (his merchandise in the United States and Canada, its use was to put into coffee to give it a better flavor; that, according to the information of other witnesses who testified in this case, it was used by the poorer classes of German, Polish, and Hebrew people as a substitute for coffee: that this merchandise was much cheaper than coffee, and was worth only about six cents per pound; that chicory root was used as a substitute for coffee; that chicory root, burnt or roasted, ground or granulated, was imported, among other packages, in square, cubic, and oblong shaped packages, and in rolls or cylindrical shaped packages; and that, with the exception of chicory 'root in the conditions mentioned, there was no other kind of chicory root that was imported in rolls or cylindrical shaped packages than the merchandise in suit and like articles.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Charles D. Stone & Oo. appealed to the circuit court from a decision of the board of appraisers classifying certain articles imported by them. The circuit court affirmed the board’s decision, and the importers again appeal.</p>

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

In Equity. Bill by Peter Herman Von Mumm, doing business as G-. H. Mumm & Co., and others, against Christian C. Erash and Caroline E. í- i-a-'-h. composing tlie firm of Fresh & Co., to enjoin the infringement of a, trade-mark, etc. Decree for complainants.

<p>Patents for Inventions — Infringement—Gates.</p> <p>Letters patent No. 213,119, issued March 11, 1879, to Maddox & Hum-phries, for an improvement in gates, covers a gate consisting of a series of upright pivots, a series of cross and connecting braces pivoted to the pickets at two or more central points, and having upper and lower points of connection, arranged to slide vertically within or upon the pickets, whereby the latter are adapted to slide upon a base support across the gate opening without changing their parallelism or their positions vertically. Held, that the patent is not infringed by a gate of lattice work pivoted at the intersection like lazy tongs, and supported by an upright bar, from which it is extended, with a parallel bar in the middle, and another at the outer end, sliding on a base support.</p>

<p>Appeal from tbe Circuit Court of tbe United States for tbe Eastern District of Wisconsin.</p> <p>In Equity. Bill by Deere & Co., a corporation, against the J. I. Case Plow Works, for alleged infringement of a patent. Decree for defendant.</p> <p>Statement by WOODS. Circuit Judge:</p> <p>The appellant, a corporation of Illinois, claiming title under the patentees, sued the appellee, a corporation of Wisconsin, for infringement of the first and second claims of letters patent No. 367,630, issued August 2, 1887, to King & Morgan. In the specification it is said: “Our invention is an improved cultivator for cultivating listed com, and it consists in certain novel and peculiar features of construct ion, hereinafter fully described and claimed.” The claims are of tbe following tenor: “(1) A cultivator, comprising the smoothing planks, the protectors secured thereto and extending backward therefrom, and the diverging arms, provided with shovels or scrapers, secured to the smoothing planks on opposite sides of the protectors, substantially as set forth. (2) The combination of the smoothing planks, the protectors, the arches connecting the inner ends of the smoothing plants and the rear ends of the protectors, respectively, and the diverging arms, provided with shovels or scrapers, having their front ends adjustably secured to the smoothing plants, and their rear ends adjustably secured to the projecting ends of the rear arch, substantially as specified/’ The respondent answered, showing the prior art, and denying both invention, and infringement.</p> <p>„ The complainant's expert witness gives the following explanation of the construction and operation of the cultivators described in the patent: “The King & Morgan patent shows and describes a cultivator of that class or type which is especially adapted for cultivating com which has been planted by a lister plow planter, in which the hills of corn are in rows, in trenches, or furrows in the ground from four inches to a foot or more in depth, and each trench, as a matter of course, between two ridges of soil. This patent show's and describes a cultivator of that class in which two planks or smoothing boards form the forward part of the cultivator, and to which are secured runners which extend rearwardly from the smoothing boards. Arms are also fixed to the smoothing boards, and extend rearwardly therefrom, which are provided with curved scrapers or cutters on their rear ends, between which scrapers or cutters are located fenders that are fixed to and extend rearwardly from the runners. The organization of this cultivator, as shown and described in this patent, is such that the smoothing planks or boards ran or operate on the tops of the adjacent ridges of soil, so that while smoothing and leveling them they also crush the clods and pieces of sod and to that extent cultivate the upper portion of the ridges; and, as a matter of course, in so cultivating and crushing down the tops of the ridges, many clods will fall down or roll down the sides of the ridges in rear of the smoothing boards. These clods will be prevented from striking the hills of com or the corn plants by the runners, or protectors as they are also called in the patent, which pass along one at each side of the row of plants, and, while so acting as protectors for the plants, also serve to guide and hold the machine in line ■with the row of plants, as their lower surfaces are adapted' to ran upon the ground. As shown and described, the bars, two of which are on the outer side of each runner, have no function, apparently, except to carry the curved cutters, scrapers, or shovels at their rear ends, which scrapers or shovels, as shown and described, act upon the confronting sides of the ridges to tear out the weeds, pulverize and loosen the soil, and work the soil gradually downward towards the plants, which the soil is prevented from damaging by the fenders winch are carried on the rear ends of the runners, one between each set of cultivating shovels and the row of plants. These parts — the smoothing boards, the runners or protectors, the fenders at the rear end, and the arms or guides to the rear ends of which the shovels or scrapers are fixed, as shown and described in the patent — are connected at or near the forward ends of the runners, and also at a short distance forward of their rear ends, by arches which render the whole device substantially rigid, and which are high enough in their arched portions to pass over plants three or four feet in height, and which also furnish means for adjusting the distance of the smoothing boards apart, as also the distance between the runners and the scraper-carrying arms, and also provide means for the adjustment of the runners and the scraper-carrying arms, or either of them, laterally, at one end, without adjustment at its other end, whereby the angle of either the runners or the shovel-carrying arms may be adjusted laterally to the line of advance of the machine.”</p> <p>The defendant’s expert, after referring to the first claim, makes this statement of the prior art:</p> <p>“I have examined this claim and the prior art to ascertain if the combination of these things were known before, — these things being the smoothing plank, the protectors, and the scrapers. These I find, both singly and combined, In several earlier patents. For instance, the patent to Clark (No. 293,227) is a cultivator for listed corn. It has the protector runners and scrapers substantially the same as in King & Morgan’s patent. The patent to Holmes (No. 308,671) has protectors to prevent the clod from falling on or against the plants. The patent to Nelson (No. 319,009) has smoothers and cultivator teeth. Tlio patent to Black (Xo. 329,530) has smoothing planks, protecting limners, and scrapers. The patent to MeOandless & King (No. 330,143) has smoothing planks, runners, and diverging scrapers attached to said smoothing planks. The patent to Moffitt (No-. 338,180) has smoothers, tenders, and diverging arms and scrapers. The patent to Suavely (No. 349,065) has smoothing planks, runners, fenders, and scrapers. The patent to Kessler (No. 350,684.) has smoothing planks, laterally adjustable runners, fenders, and scrapers. The patent to Hcantlin (No. 351,343) has smoothing planks, laterally adjustable runners, diverging arms, and scrapers. The patent to MeOandless & 'King (No. 352,703) has a smoothing' plank, laterally adjustable runners, and scrapers. In the patent to Worden (No. 356,674) there is a smoothing plank, and also runners which are protectors, and diverging arms attached to the smoothing pianlt. The patent to ITatz (No. 361,715) has smoothers, runners, and scrapers. The patent to Murphy (No. 362,053) has smoothers, laterally adjustable runners, and scrapers. * * * The second claim of the King & Morgan patent, referred to introduces the arches and the lateral adjustment of the arms. In other particulars tlio second claim does not differ from the first. An arch is shown in Clark patent, (No. 293,227,) in Nelson, (No. 319,609.) and in Murpliy, (No. 362,053,) and laterally adjustable parts are shown in Murpliy, and in MeOandless & King, (No. 352,703.)”</p> <p>"From this view of the prior art it will be siten,” say counsel for complainant, ‘‘flint there is not a single patent introduced in evidence by appellee which has the diverging arms, or any equivalent therefor; and therefore the iirst claim is not met by either of them, or by all of them put together. No such tiling as the diverging arms of the patent in suit can bo abstracted or taken from any one of these patents. The prior art does not show any diverging arms which are adjustable at the front en i and adjustable at the rear end, or each separately adjustable at either end; so that no one of them, rsor all of them together, contains an approach, even, to the second claim of the patent in suit. The only adjustment claimed for those old patents is radially-swinging and pivoted side bars, and a space adjustment; between the runners. The patent in suit shows a space adjustment between the runners, iii addition to the adjustments called for in the second claim.”</p> <p>The case was hoard below by Judge Jenkins, anil the record contains tlio following memorandum of his decision:</p> <p>“In view of the prior art, I am of opinion that tlio claims of the complainant's patent which are here involved must be strictly construed, ami limited to the simeiuro described. In the complainant's device, the diverging arms have their front; «ids adjustably secured to the smoolhing planks by means of bolts. The inner ends of the smoothing planks are connected by ait arch, the ends of which are slotted, and adjustably secured to Hie smoothing planks by bolts passed through the slots into the smoothing planks. In this combination one essential function of Uto smoothing plank, in addition to its old and well-known function, is to support by means of the arches the diverging arms, 'fake it away, and the forward part of the diverging arms would have no support. In the defendant's machine the diverging arms are snxtporiod by means of arches directly connected therewith. The smoothing boat’d furnishes no support to the diverging arms, but is supported by brackets fixed ro the forward ends of the runners. It is connected, near its center, with the extended arm of the forward arch attached to the diverging arms, thereby obtaining support, not yielding support. Its function in the defendant's machine is its old and well-known odien, to which the complainant has no claim of exclusive right. It is not. secured io the diverging arms in the sense in which that term is used in the claims of the complainant’s patent. The purpose of thus adjusting the smoothing boards in defendant's device is to enable them to be adjusted vertically, independently of the runners and of the diverging arms. This purpose would fail if they were secured to the arms as in complainant’s patent.”</p>

<p>Appeal from, the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Bill by Edward 8. T. Kennedy against the Chicago City Railway Company and others to restrain the alleged infringement of certain patents. Decree for defendants. Complainant appeals.</p>

<p>In Admiralty. Libel to recover damages for alleged negligence causing death. Decree for libelant.</p>

In Equity. Suit by the National Typewriter Company, a corporation organized under tlie laws of Maine, against the Pope Manufacturing Company, a corporation organized under the laws of Connecticut, for infringement of letters patent No. 238,387, issued March 1,1883, to Thomas Hall, for an improvement in typewriters. Heard on demurrer to the bill for want of jurisdiction.

In Equity. Bill by the Thonison-Houston Electric Company against the Capitol Electric Company and others to enforce a sale of respondent’s property under a mortgage. Heard on tlie intervening petition of Mrs. Martha Read, as owner of certain bonds of respondent, for a recovery and participation in the security.

In Equity. Bill for an injunction by Frank 0. Ross, against .Edwin Eells, Indian agent, and Maj. French., Oapt. Carpenter, and Lieut. Goodwin, officers of the United States army, to prevent interference by defendants with the building of a railroad across land within the Puyallup Indian reservation, which has been allotted to individual Indians in severalty.

<p>In Equity. Bill by Joseph 1\. Friedman and Gustavus F. Swift, copartners under the name of Friedman & Swift, against Charles Harrington, to restrain respondent from instituting any proceeding against complainants under Act Mass. March 10, 1891, c. 58. Heard on demurrer to the bill.</p>

In Equity. Bill by Reuben T. Pollard and others against Lev-erett Saltonstall and another to foreclose a chattel mortgage, and for an injunction. Decree for complainants.

<p>Costs — United States as a Party — Supreme Court Rui.es.</p> <p>The provision of supreme court rule 24, suhd. 4, that no costs “shall be allowed in this court for or against the United States,” does not prohibit the allowance of costs of the lower courts in favor of the UDited States; and where a mandate from the supreme conrt directs a decree in favor of the United States, without specifying' costs, the circuit court may properly include therein its own costs.</p>

<p>1. Municipal Corporations — Powers.</p> <p>Municipal corporations can exercise only such powers as are clearly comprehended in the legislative grant, or derived therefrom hy necessary implication, regard being had to tlie objects of tlie grant Any doubt arising out of the terms of the grant should be resolved in favor of the public. Minturn v. Larue, 23 How. 435, followed.</p> <p>3. Same — Law or Michigan — Limitation on Power op Legislature.</p> <p>This rule prevails in Michigan, and the provisions of the state constitution (article 15, § 13) that the legislature shall provide for the incorporation of cities and villages, and. shall restrict tlieir powers of taxation, borrowing', etc., and (article 4, § 38) that the legislature shah confer upon local governments such local administrative and legislative power “as they may deem proper,” and (article 4, § 23) that the legislature shall not vacate or alter any highway laid out by the local authorities, do not. create any power in , municipal corporations, but merely restrict the manner in which the legislature shall confer such power, when it sees fit to do so. Taylor y. Railway Co., 45 N. W. Rep. 335, 80 Mich. 77, followed.</p> <p>3. Same — Control of Streets — Street Railways.</p> <p>The general power given to the city council of Detroit (by Laws Mich. 1869, p. 1692, § 22, pars. 11, 13, which was a continuation of similar grants in 1S27 and 1857) to establish, alter, and abolish streets; to grade, pave, repair, and prohibit the incumbering thereof; and to regulate the manner in which they shall be used and enjoyed, — is merely legislative, and’does not include the power to grant a vested right, for 30 years, to build and operate a street railway in tlie streets, although such use of the streets may he permitted by license revocable at will. Brown v. Duplessis, 14 La. Ann. 842; State v. Corrigan Consolidated St. Ry. Co., 85 Mo. 274; and Atchison St. Ry. Co. v. Missouri Pae. Ry. Co., 3 Pac. Hop. 284, 31 Kan, 661, — distinguished.</p> <p>4. Same — Limitation of Street-Railway Franchise.</p> <p>Laws Midi. 1861, pp. 11, 12, §§ 33, 34, authorized tlie formation of companies, with a corporate life limited to 30 years, to build and operate street railways, subject to the consent of the municipal authorities, and “under such regulations * * as said authorities may from time to time prescribe.” T.aws 1867, p. 257, added the proviso that, after such consent had been given and accepted, said authorities should make no regulations “whereby the rights or franchises so granted shall be destroyed or unreasonably impaired, or such company deprived of the right of constructing * * * and operating such railway.” The general street-railway act of 1867 provided that companies organized thereunder for the term of 30 years might own and operate a street railway, or extend the same, with (he consent of any city, by ordinance, and under regulations prescribed hy such ordinance. It is Hie policy of Michigan (Const, art. 15, § 10) to cheek the growth of corporate wealth and power, by limiting to the term of 30 years the lives of corporations, except municipal, commercial, railway, planlc-road, and canal corporations. ■ Held, that a city had no power to grant a vested interest in the streets, to own and operate a street railway therein for a time longer than the life of the grantee corporation. Swan, District Judge, dissenting. State v. Laclede Gaslight Co., 14 S. W. Rep. 974, 15 S. W. Rep. 383, and 102 Mo. 472; People v. O’Brien, 18 N. E. Rep. 692, 111 X. Y. 1; and New Orleans City & L. It. Co. v. New Orleans, 12 Sup. Ct. Rep. 406, 143 U. S. 192, — distinguished.</p> <p>6.Same — Assignment of Franchise.</p> <p>A grant by a city under tbe said acts was assigned to a corporation wliose life was limited to a shorter time than that of the grantee corporation. It was thereafter assigned to a new corporation, whose life was limited to a longer time than that of the grantee. Held, that the grant was good in the hands of this new corporation, as against the city, until such time as the life of the grantee corporation was limited to.</p> <p>6. Nuisance — Kail way Tracks in Street — Expiration of Franchise — Injunction.</p> <p>The city of Detroit passed an invalid ordinance to extend the right of a corporation to own and operate a. street railway beyond the time to which the life of the corporation was by law limited. The grantee assigned all its property and franchises to a second corporation. Thereafter, an ordinance was passed, fixing the time beyond which the tracks should not remain in the streets at the day on which the life of the grantee corporation would expire. Held, that the continuance of the tracks in the streets after that day was a public nuisance, which a court of equity would abate by injunction. Swan, District Judge, dissenting.</p> <p>7. Same — Injunction—Parties in Pari Delicto — Municipal Corporations.</p> <p>The rule that both parties to an ultra vires contract are in pari delicto, and therefore a court of equity will not interpose to restore to one of them rights which, it has thus parted with, is inapplicable to a municipal corporation whose trustees attempt to make an invalid grant, and in such case the right of the public to equitable relief is not prejudiced. Swan. District Judge, dissenting.</p> <p>8. Judgment — Effect—Ees Judicata — Invalid Ordinance.</p> <p>A city, by ordinance, extended the right of a corporation to own and operate a street railway beyond the time to which the life of the corporation was by law limited, which extension was void by the law of the state. Thereafter, the city brought suit to compel the corporation, whose life had not then expired, to pay more taxes than the amount fixed in the ordinance, and the judgment was that the city had power to stipulate the amount of such taxes, and bind itself as by a contract. Eeld, that the question of the validity of the contract for its entire term was not res judicata in a suit by the city to compel the corporation to abandon the streets when its life expired by law.</p> <p>9. Municipal Corporations — Invalid Grant — Estoppel.</p> <p>The fact that such extension ordinance was accepted, and quietly quiesced in, hy both parties, for 10 years, during the term of the origin grant, and that the corporation expended large sums of money on the faith thereof, does not estop the city from denying the validity of the extension after the expi ration of the original grant, as against the grantee corporation, though it might be estopped as against an assignee thereof by its dealings directly with such assignee, if such assignee was a corporation whose life extended beyond the period of the extended grant. Swan, District Judge, dissenting.</p>

<p>Federal Courts — Circuit Court of Appeals — Assignment op Errors — Time op Piling. '</p> <p>In pursuance of rule 11 of the circuit court of appeals for the eighth circuit, requiring an assignment of errors to he filed with the petition for the writ of error or appeal, and declaring that errors not assigned, according to this rule will he disregarded, that court will not review a judgment when the assignment of errors has not heen filed until after tlio writ of error was allowed, nor until more than six months after the judgment was rendered. U. S. v. Goodrich, 54 Ped. Eep. 21, followed.</p>

In Equity. Rill by Thomas Ea,rle and Angus Mackintosh, stockholders of the Seattle, Lake Shore & Eastern Railway Company, against said corporation, its trustees, and the Northern Pacific Railroad Company, to enjoin the further operation of the first-named corporation’s railways hy the latter under a traffic contract; for the appointment of a mud ver, and an accounting as to the dealings of said corporations with each other.

la Equity. Rill by {he Northern Pacific: Railroad Company to restrain the city of Spokane and others from destroying a depot which is alleged to be an obstruid ion to a street, crossing, and also from preven! ing the erection of a new depot. The temporary restraining order was heretofore dissolved in so far as it forbade the hindering or obstruction of the railroad company in the erection of a new depot. 52 Pod. Rep. 428. The cause is now on final hearing.

<p>1. Patents for Inventions — Infringement Suit — 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. Littlefield v. Perry, 21 Wall. 205, cited.</p> <p>2. Contract — Construction—Ambiguity.</p> <p>It is only a latent ambiguity that may be 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>3. Patents for Inventions — License for Sale in Foreign Countries.</p> <p>In addition to the grant of an exclusive license to manufacture and sell in certain parts of the United States, a license contained the following clause: “And, so far as we can control the same, the exclusive right to build harvesters and binders 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 manufacture 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>In this case the court: finds that complainant is entitled to a preliminary injunction to restrain infringement of 1C patents issued to James R. Severance for improvements in harvesters and binders. 55 Fed. Rep. 288, affirmed.</p>

<p>Equity — 'Laches—Cxacthorizt-U) Assiíinmejcp of Military Latid WaukatvT.</p> <p>A soldier's widow received, from the United States a land warrant, as provided by Act Dob. LL 18-17, j> 9, (!) Slat. 125,) and was thereafter dup. appointed guardian of Iter minor children, except one daughter, who wa t a married woman: and in that capacity and for herself, she attempted to assign such land warrant, being Joined therein by Hie said married daughter, but she did not obtain any order of court, authorizing such as» signnteut as was by taw required. The consideration of die assignment was $100. to which sum she ivas entitled, by the terms of the act, instead of the warrant. Tin* assignee located the warrant, duly obtained a patent, ami the warrant ivas duly filed in Washington. The land increased in value 10 $1.000.000, and improvements were placed thereon to the value of ¡52.00o.000. and more than 40 years elapsed from the date of rlio assignment. Jl>iti, that a court of equity would not entertain a suit by the assignor and her descendants to set aside the assignment as invalid, and to recover possession of the property, but should quiet respondents’ title against such descendants. Felix v. Patrick, 12 Sap. Ct flop. 802,''143 U. S. 317. followed.</p>

<p>1. Federar Courts — -Practice — Proceeding to Enforce Order of Interstate Commerce Commission — Evidence.</p> <p>A suit brought hy the interstate commerce commission in the United States circuit court to enforce an order of the commission is an original and independent proceeding. The court is not confined to a mere reexamination of the case as heard and reported by the commission, but the court ileal's and determines the cause de novo upon proper pleadings and proof. The commission’s report is prima facie evidence of the matters of fact therein reported, but the court will hear all such other and further testimony as either party may introduce bearing upon the matters in controversy, and will permit such pleadings as will bring before the court clearly and in legal form such matters as may be pertinent and proper in view of the issues raised. Cases cited: Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. Rep. 5G7; Interstate Commerce Commission v. Lehigh Yal. R. Co., 49 Fed. Rep. 177; Interstate Commerce Commission v. Atchison, T. & S. F. R. Co., 50 Fed. Rep. 295.</p> <p>2. Carriers — Interstate Commerce Act — Continuous Garríase.</p> <p>The first section of the act to regulate commerce (Feb. 4, 18S7, 24 Stat. 379) provides that it “shall apply to any common carrier or carriers engaged in the transporta.tion of passengers or property wholly by railroad, or partly by railroad and partly by water where both are used under a common control, management, or arrangement, for a continuous carriage or shipment,” etc. The Georgia Railroad extends from Atlanta to Augusta. The Georgia Railroad Company requested its connections that in issuing bills of lading to its local stations no rates be inserted east of Atlanta. There is no agreement on the part of said company for any such joint tariff, as implies a reduced rate from Cincinnati, Ohio, to its local stations. On the contrary,, that company collects and retains its entire local rates on all freight shipped from Cincinnati to its local stations. Held, that there is no such “arrangement for a continuous carriage or shipment” existing between said company and its connections as to bring the rates which are charged to said local stations within; the first section of the act to regulate commerce. Case cited: Railway Co. v. Osborne, 52 Fed. Rep. 912, 3 C. O. A. 347.</p> <p>8. Same — Through Rates — Connecting Lines.</p> <p>When goods are shipped through from Cincinnati, Ohio, to local stations on the Georgia Railroad, the initial carrier at Cincinnati issues through bills of lading, and quotes through rates. Said rates, however, are arrived at by adding to the rates from Cincinnati to Atlanta the full local rates of the Georgia Railroad from Atlanta to said local stations. The Georgia Railroad Company receives the goods at Atlanta, and transports them continuously to its local stations, but it demands and collects its full local rates from Atlanta to said local stations. Held, that the mere reception, and continuous transportation, by the Georgia Railroad Company, of freight which comes to it over other lines of railroads, destined to its local stations, for which the initial carrier has issued through bills of lading and quoted through rates, does not constitute such an “arrangement” as is contemplated by the first section of the act to regulate commerce, where the through rates so quoted allow to that company its full local rates.</p> <p>4. Same — Short-Haul Clause — “Line.”</p> <p>The fourth section of the act to regulate commerce (Feb. 4, 18S7, 24 Stat. 380) provides that it “shall be unlawful for any common carrier, subject to the provisions of this act, to charge or receive any greater compensation, in the aggregate, for the transportation of passengers, or of like kind of property, under substantially similar circumstances and conditions, for a 'shorter than for a longer distance, over the same line, in the same direction, the shorter being included within the longer distance ” There is a clear distinction between the term “railroad,” as used in the other parts of the act, and the term “line,” as used in the fourth section. The use of the word “line” is significant. Two carriers may use the same “road,” but each has Its separate “line.” One railroad company may lease trackage rights to another, but the joint use of the same track does-not create the same “line” so as to compel either company to graduate its tariff by that of the other. Case cited: Railway Co. t. Osborne. 52 Fed. Rep. 912, 3 C. C. A. 347.</p> <p>8. Same — Connecting Roars.</p> <p>There must he a •‘common arrangement” between connecting companies —such as the making of a joint tariff — before a “‘new line” can be formed: and the “line” so formed under the joint tariff of connecting companies is one which is separate and independent from that of either of (he connecting companies. Case cited: Railway Co. v. Osborne, 52 Bed. Sep. 912, 3 C. O. A. 347.</p> <p>6. Same — Connecting JUoad-i CanncJt iib Compelled to Make Through-Rath Aura ngk m ext.</p> <p>“No power exists at common law, and none is given by the act to regulate eommerce, to compel connecting railroad companies to unite in a joint tariff, or to enter Into a through-rale arrangement for transportation, unless they desire to do so. Tney cannot be compelled to abandon the full control of their Hiparaie roads, and neither of them is bound to adjust its own local tariff to suit the other.” Case quoted: Railway Go. v. Osborne, 52 Fed. Rep. 912, 3 0. 0. A. 347. See, also, Kentucky & Í. Bridge Go. v. Louisville & N. U. Go., 37 Red. Rep. (>30; Little Rock & AI. It. Go. v. St. Louis, I. M. & S. R. Go., 41 Bed. Rep. 503.</p> <p>7. Same--Georgia Railroad Company.</p> <p>There is no “common arrangement” or “joint tariff” between the Georgia Railroad Company and 3:s connections as to traffic to its local stations. On the contrary, there is an express refusal by that company to make any “common arrangement” whatever in regard to that traffic. The Georgia Railroad Company demands and collects its full local rates on ail shipments to its local stations. Whether shipments come from points west of Atlanta, or originate at Atlanta, the rate is precisely the same, and as to the Georgia. Railroad the carriage is the same.</p> <p>8. Same — • Ahisangement as to Tin:oi;oü Rates Does not Aeekot Local Rates.</p> <p>The Cincinnati, New Orleans & Texas Pacific Railway Company, the Western & Atlantic Railroad Company, and the Georgia, Railroad Company have formed “a new and independent line,” by the adoption of a joint through tariff from Cincinnati to Augusta; but such “new line” is distinct and separate from that of either of the railroads named. Case cited: Railway Go. v. Osborne, 52 Bed. Rep. 912, 3 O. O. A. 347.</p> <p>9. Same — Combination Local ani> Through Rath.</p> <p>Social Circle is a. local station on the Georgia Railroad, 52 miles east oí Allanta, and 119 miles west of Augusta, 'the Georgia Railroad Company refuses to adopt, a joint through tariff from Gim irnaíí to Social Circle, and charges Ms full ¡ocal rate from Atlanta, to Sot ini Circle. The rale from Cincinnati to Social Circle is a combination rate, and it is arrived at by adding to the rate from Cincinnati to Atlanta the fail local rate of the Georgia Railroad from Atlanta to Social Circle. The rate thus made' from Cincinnati to Social Circle is greater than the joint through tariff rate from Cincinnati io Augusta; lint, that fact constituios no violation of the "long and short haul” clause of die act to regúlale commerce, because the two rates are noi made "over the same line.” The rale to Aiigii:-,i:t is made -by the “line”, formed by a “common arrangement” between slid three companies', for a joint tariff between those points. The rate to Social Circle in made greater limn ibo rate to Angosta by the Georgia, Railroad Company demanding its full ¡ocal rate on its own road, which road is separate» and independent, from the “line” made by said three companies. Careo cited: Railway Oo. v. Osborne, 52 Bed. Rep. 912, 3 C. 0. A. 347; U. S. v. Mellon, 53 Fed. Rep. 229.</p> <p>10. Same — ScBSTAXTrAi/LY Similar Cijicumstvncks — Competition.</p> <p>"ffreighi earned to or from a competitive point is always carried under substantially dissimilar circumstances and conditions from Unit carried to or from noncompetilive points. In the latter case, the railway makes its own rates, and Ibero is no good reason why it should be allowed to charge Joss for a long haul than a short one. When each haul is made to or from a noncompetitive point, the effect; of such discrimination is to build up one place at the omense of die other. Such action is willfully unjust, and lias no justification or excuse in the exigencies or conditions of the business of the corporation. In the former case, the circumstances are altogether different. The power of a corporation to make a rate is limited by the necessities of the situation. Competition controls the charge. It must take what it can get, or abandon the field, and let its road go to rust.” “Competition may not bo the only circumstance that makes the condition under which a long and short haul are performed substantially dissimilar, but certainly it is the most obvious and effective one, and must have been in contemplation of congress in the passage of the act to regulate commerce.” Case quoted: Ex parte Koehler, 31 Fed. Rep. 315, 319.</p> <p>11. Same.</p> <p>“That competition, the life of trade, cuts an important figure in the condition and circumstances attendant upon transportation of passengers and property, cannot be well overlooked nor denied. Nor can it be well denied that, as between the short and long haul, competition may exist to that extent that what would otherwise be similar circumstances and conditions will be dissimilar circumstances and conditions.” Case quoted: Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 31 Fed. Rep. 862.</p> <p>12. Same.</p> <p>“A common carrier cannot be required to ignore or overcome existing differences in the transportation facilities of different localities, created not by its own arbitrary action, but by nature, or by enterprise beyond its control. * * * Wherever and whenever actual competition exists, the question the carrier has to deal with is not so much What is a fail-rate for the service, or what the trafile will bear, but what , rate can be got for the service, as against the rate offered by the competitor.” Case quoted: Interstate Commerce Commission v. Atchison, T. & S. F. R. Co., 50 Fed. Rep. 306.</p> <p>18. Same — Dissimilar Circumstances — Carrier Need’rot Apply to Commissioner for Relief.</p> <p>“It is not necessary for a carrier to apply to the interstate commerce commission for relief from “the long and short haul” clause of the act to regulate commerce, when the circumstances and conditions are substantially dissimilar, since the carrier, in acting upon them, would commit no breach of the law, though it would be responsible in case it were found that the circumstances and conditions were misconceived or misjudged.” Case quoted: In re Douisville & N. R. Co , 1 Inter St. Commerce Com. R. 53.</p> <p>14. Same — Competition with Foreion and Domestic Carriers.</p> <p>The interstate commerce commission holds that where railroads which are subject to the act to regulate commerce compete with Canadian or other railroads, which are not subject to the act, such competition constitutes dissimilar circumstances and conditions; but that competition between two railroads, both of which are subject to the act, docs not constitute dissimilar circumstances and conditions. The commission, however, also holds that it has no authority to raise railroad rates. If a railroad, which is subject to the act, is met with competition from other railroads, which are also subject to the act, and the commission has no authority to require such other railroads to increase their rates, even when the competition is ruinous, there is no practical difference between such a case and the case of competition with railroads not subject to the act. If the general conclusion is correct that competition will constitute dissimilar circumstances and conditions, in the sense in which that term is used in the act, there is no good reason for drawing the line where it has been drawn by the commission. On the contrary, competition of carrier with carrier, both subject to the act, is as much within the terms of section 4 as competition with a carrier not subject to the act.</p> <p>15. Same — Competition between Markets.</p> <p>Competition of market with market may not be so direct in its effect as competition of carrier with carrier; but when it does exist it is influential, and perhaps as effective and controlling, with carriers, as to their rates, as other competition. It niny therefore constitute a part of the circumstances and conditions which a carrier can consider in fixing rates for the transportation of goods.</p> <p>16. Sauk.</p> <p>The fact that Uie rate from Cincinnati to Social Circle is greater than the joint tariff rate from Cincinnati to Augusta, constitutes no "undue or unreasonable prejudice or disadvantage” against Social Circle, and no "undue or unreasonable preference or advantage” in favor of Augusta. Hallway companies are only hound to give the same terms, to all persons alike, under the same conditions and circumstances; and any fact which produces an inequality of condition, and a change of circumstances, jus-tillos an inequality of charge. Augusta and Social Circle are not “under the same conditions and circumstances.” Case cited: Interstate Commerce Commission v. Baltimore & O. K. Co., 12 Sup. Ot. Hep. 84-1, 145 TJ. S. 263.</p> <p>17. Same — Rates itiom Cincinnati to Augusta.</p> <p>Several lines of railway compote for the business between Cincinnati and Augusta, and there is active and influential competition by Baltimore and other eastern cities against Cincinnati for the trade of Augusta.</p> <p>18. Same — Kates—Southern Railway & Steamship Association.</p> <p>Nearly all of the railroads south of the Ohio river and east of the Mississippi, including the three railroad defendants in this case, are members •of an association known as the Southern Railway & Steamship Association. Said association, in making rates, is governed by competition. The same influences control in the association, in making rates, as would control without it; and, while the influences may not go to the same extent, and there may be produced l>y the association more harmonious relations between its members, competition influences, and, to a large extent, controls, the rates agreed upon by the association.</p> <p>19. Same — Unreasonable Kate — Evidence.</p> <p>It appears that the rate charged on first-class goods in less than car-load lots from Cincinnati to Atlanta, in 1879, was $1.39 per 1.00 lbs.; that after-wards it was $1.10; and subsequently $1.07; except for a short time, when it was $1.01. The only testimony offered to or heard by the commission as to the reasonableness of the rate was that of the vice president of the Cincinnati, New Orleans & Texas Pacific Railway Company, that he considered a rate of $1.01 reasonable. Upon that testimony, and upon the fact that the rate from Cincinnati to Birmingham is 89 cents, as compared with $1.07 to Atlanta, the distances being substantially the same, the commission ordered that the defendants should not charge more than $1 from Cincinnati to Atlanta. In this court, a number of railroad exporte testified lliat the present rate of $1.07 is reasonable. As to the rate to Birmingham, there was evidence before this court which was not before'tile commission, viz. that the rate from Cincinnati to Birmingham, which was previously $1.08, was forced down to 89 cents by the building of a new road known as the Kansas City, Memphis & Birmingham Railroad. Held, that the existence of a lower rafe from Cincinnati to Birmingham furnished no sufficient reason to determine that the rate from Cincinnati to Atlanta is unreasonable when such lower rate is caused by conditions at Birmingham which do not exist at Atlanta. Held, further, that the evidence offered in this court is sufficient to overcome the prima facie case made by file findings of the commission. On the whole testimony, as now before this court, it is not 'believed that the commission would have found the rate in question to be unreasonable. Certainly this court cannot so determine.</p>

<p>1. Federal COURTS — Jurisdiction —- Divers® Citizenship — Corporations— Pleading.</p> <p>In a suit by a citizen of Texas, an averment that defendant is a corporation operating a railway in Arkansas, and having an agent in the latter state, is not sufficient to give a federal court jurisdiction.</p> <p>2, Same — Argumentative Pleading.</p> <p>Where there is an averment that defendant operates a railway and has an agent in a certain state, it cannot be inferred from the state laws prohibiting or regulating foreign corporations that the corporation Is organized under the laws of that state, so as to give a federal court jurisdiction on the ground of diverse citizenship. The fact of incorporation cannot be argumentatively averred.</p> <p>3. Same — Reversal jor Want op Jurisdiction.</p> <p>In a suit wherein federal jurisdiction depends wholly on diversity of citizenship, and the record shows that such diversity has been insufficiently alleged, the judgment should be reversed in the appellate court for want of jurisdiction,, although éxeeption to the jurisdiction was not taken in the trial court.</p> <p>4. Same — Amendment in Appellate Court.</p> <p>In such a case no amendment should be permitted in the appellate court.</p>

Petitions by Walter S. Harsha to recover from the United States certain sums alleged to be due to him as clerk of a circuit court. The petitioner was adjudged entitled to recover. The United States bring error. Statement by SEVERENS, District Judge: These are three cases under the same title. They have been submitted together, and the questions involved are identical in all of them.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>At Law. Action of ejectment in the district court of Lake county, Colo., by the Iron Silver Mining Company against the Mike & Starr Gold & Silver Mining Company. The cause was removed to the United States circuit court for the district of Colorado, and judgment there given for plaintiff. This was affirmed by the supreme court. 12 Sup. Ct. Rep. 543, 143 U. S. 394, 430. Plaintiff thereafter moved for a new trial as of right, under the Colorado statute, which motion the circuit court overruled. Plaintiff brings error.</p> <p>Statement by THAYER, District Judge:</p> <p>The plaintiff in error brought an action of ejectment against the defendant in error in the district court for Lake county, Colo., on the 20th of February, 1885. Subsequently the action was removed to the United States circuit court for the district of Colorado, and was tried before a jury in that court, the trial resulting in a verdict for the defendant A motion for a new trial fo" errors alleged was filed and overruled in the circuit court, and a judgment was rendered in favor of the defendant on November 21,1885. To reverse such judgment the plaintiff below prosecuted a writ of error to the supreme court of the United States, but the record does not show when such writ of error was sued out. It does disclose, however, that a mandate from the supreme court, affirming the judgment of the circuit court, was filed in the circuit court on November 29, 1892. 12 Sup. Ct. Rep. 543. Section 272 of chapter 23 of the Code of Procedure of Colorado, which chapter is entitled, “Of Actions for Possession and Damages,” is as follows:</p> <p>“Whenever judgment shall be rendered against either j>arly under the provisions of this chapter, it shall be lawful for the parly against whom such judgment is rendered, Ms heirs or assigns, at any time before the first day of the next succeeding term, to pay all costs recovered thereby, and upon application of the party against whom the same was rendered, his heirs or assigns, the court shall vacate such judgment and grant a new trial in such case, and neither party shall have but one new trial in any case, as of right without showing cause. And after such judgment is vacated, the cause shall stand for trial, the same as though it had never been tried. * * * ”</p> <p>Acting under this provision of the Colorado Code, the plaintiff in error, on December 22, 1892, filed a motion in the circuit court to vacate the judgment theretofore rendered in the cause, and to grant a new trial. - The motion averred (and the fact is conceded) that the judgment of affirmance was rendered by the supreme court of the United States on February 29, 1892, and that thereafter and prior to the first day of the next succeeding term of the circuit court for the district of Colorado the plaintiff paid all the costs recovered in the action, as the statute requires.</p> <p>The circuit court overruled said motion, whereupon the plaintiff duly excepted to such action, and sued out the present writ of error.</p>

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

<p>National Banks — Oasiiieu—Promise to Pay Dbaft.</p> <p>Roy. St. § 5136, empowers a national bank to “exercise, by its board of directors or duly-authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, * * * ami other evidences of debt; ° * by loaning money on personal security,’’ ere. Held, that ttie cashier of a national bank lias no power to bind it to pay the draft of a third person on one of its customers, to be drawn at a future day, when it expects to have a deposit from him sufficient to coyer it, and no action lies against the bank for its refusal to pay such a draft.</p>

<p>Banks and Banking — Certificates of Deposit — Fhatjd of Officers.</p> <p>Certain persons, who were directors both of a savings bank and of a national bank, procured money from the former on two notes made by a third person to them, and given for the payment of stock of the national bank, issued in the mamo of such third person for their benefit They represented that the savings bank would have to carry the notes but a short time, and tha c the national hank would take care of them. These persons were beliind in their accounts with the national bank, and the savings hank allowed them to overdraw their accounts with it to a large amount, which was used in settling their accounts with the national bank. Thereafter the savings bank delivered the notes and the check to the national hank, which issued to it a certificate of deposit for an amount-covering the whole amount represented by them. UeM, that this certificate of deposit: was without consideration and void, and any loss accruing to the savings bank by virtue of the transactions was due to the fraud or incompoteney of its own officers.</p>

At La w. Action by Robert M. Yardley, receiver of the Keystone National Bank, against George S. Wilgus, to enforce defendant’s liability as a stockholder. Verdict was given for plaintiff, subject to the opinion of the court on a question reserved. Judgment for defendant.

' At Law, Action by the First Rational Bank of Evansville, Ind., against the Fourth Rational Bunk of Louisville, Ky., for negligence in failing to make a certain collection for plaintiff. Verdict and judgment for nominal damages were given for plaintiff, who now brings error.

In Error-to the Circuit Court of the United States for the Western District of Arkansas. At Law. Action by Harrie Harley against Francis I. Gowen and E. D. Chadick, receivers of the Choctaw Coal & Railway Company, for personal injuries received by plaintiff while in defendant’s. service, judgment was given for plaintiff. Defendant -Gowen brings error.

<p>1. Master and Servant — Bisks of Employment — Increased Risk Caused by Master’s Negligence.</p> <p>Plaintiff, an employe of defendant, engaged in loading dump cars with earth, was ordered by his foreman to go under an overhanging bank for that purpose, and thereupon called attention to the bank, ’asking if it was safe to work there. The foreman replied that it was; that the bank was' supported by interlaced roots; and thereafter, going upon the top of the bank, he again said it was safe, and repeated his order. While obeying this order, plaintiff was injured. The bank had been in that condition since the previous day, and the foreman had endeavored to throw it down with a crowbar. Held, that there was not sufficient evidence of due care on the part of defendant to warrant the trial court to direct a verdict for him on the ground that the risk of the bank's falling had been assumed by plaintiff.</p> <p>3. Same — Contributory Negligence — Evidence.</p> <p>There was not sufficient evidence to warrant the trial court to direct a verdict for defendant on the ground of plaintiff’s contributory negligence.</p>

At Law. Action by James Callaghan against the Union Pacific Railway Company for personal injuries. Judgment was given for plaintiff. Defendant brings error.

<p>1. Costs — Suit in Forma Pauperis —Arkansas Statute in Force in Indian Territory — Nonresident Plaintiff.</p> <p>Under Act May 2, 1890, § 31, (2(5 Stat. 94,) putting in force in tlie Indian Territory tlie statutes of Arkansas, and Mansf. Dig. Ark. §§ 1053-1001, providing that every poor person, not being able to sne, may be permitted to bring his action without liability for costs or fees, the privilege of suing in forma pauperis under order of court is granted to every poor person in the Jurisdiction of the United States, and not merely to x>oor por'sons resident in the Indian Territory.</p> <p>2. Same — Practice—Motion to Dismiss — Time of Making.</p> <p>Under -the statutes of Arkansas, extended to the Indian Territory by Act May 2, 1S90, § 31, (26 Stat. 94,) allowing poor persons to sue in forma pauperis, under order of court, (Mansf. Dig. Ark. §§ 1053-1061,) and requiring a nonresident plaintiff to file a bond to secure costs, (section 1036,) under penalty of having his action dismissed, (section 1037,) a motion to set aside an order allowing a nonresident to sue in forma pauperis should not he granted, when made on the eve of trial, more than four months after such order was made, and after more than 20 depositions have boon taken in the cause.</p> <p>3. Evidence — Expert Testimony — Latent Defect.</p> <p>In an. action for personal injuries caused by a defect in the welding of a brake staff on a freight car, where the broken staff is not produced in court, and Uierc is no testimony as to its appearance before the accident, but plaintiff introduces evidence as to the appearance of the fracture, tending to prove that the defect would have been discovered by a proper inspection, tho opinion of ail expert machinist, who examined the fractured parts at the time of the break, as to the possibility of discovering the defect by inspection before the fracture, together with his reasons therefor, is admissible in evidence.</p> <p>4. Damages — Personal Injuries— Proximate Cause — Abscess Ome Year after A FALL.</p> <p>In an action for personal injuries suffered by plaintiff in falling from a freight car, the injuries alleged in the complaint were the crushing of iho left leg, necessitating amputation, and bruises on his right hip. Plaintiff testified that his health was good before the accident, and that he recovered and was in good health until nine, months after it, when he began to feel a soreness in his right hip, which after three months developed Into an abscess. Held, that this testimony, on request of defendant, should have been withdrawn from the jury, since there was no evidence or presumption that the abscess was caused by the fall.</p> <p>5. Same — Measure oe Damages- — Probable Earnings and Expectation on Life.</p> <p>In an action for personal injuries, plaintiff’s attorney, in his argument to the jury, said Unit the life tables proved that plaintiff would probably live 40 years, and that the jury should take plaintiff’s yearly earnings. and multiply by 40 to get the correct amount of damages; thar, considering the past and future sufferings, this method could work no injustice. Held, that the overruling of objections to this argument, as an unfair and misleading one, uvas reversible error, although tho judge charged the jury that if they found for plaintiff they should allow such a sum as would compensate him for past and future loss by reason of his injuries, but that they must consider his power to earn money in new employments.</p>

At Law. Action by Granville J. James against the Union Pacific Railway Company for personal injuries. Verdict and judgment were given for plaintiff. Defendant brings error.

<p>In Error to tbe Circuit Court of the United States for the District of Minnesota.</p> <p>At Law. Action by William Walton against the Chicago, St. Paul, Minneapolis & Omaha Railway Company for personal injuries received by plaintiff while in the sendee of defendant. Verdict was given fer plaintiff. On defendant’s motion to vacate the verdict and grant a new trial, judgment was given for defendant. Plaintiff brings error.</p>

At Law'. Action by H. W. Moseley against the Little Rock & Memphis Railroad Company for personal injuries suffered by plaintiff while in defendant’s service. Judgment was given for plaintiff. Defendant brings error.

<p>In Error to tlie Circuit Court of the United States for the District of Minnesota.</p> <p>At Law. Action by Malcolm Campbell against Gustavos Herman, Christian Becklinger, and Julius F. Herman, copartners as Herman, Becklinger & Herman, for personal injuries suffered by plaintiff while in the service of defendants. Verdict and judgment were given for plaintiff. Defendants bring error.</p>

<p>In Error to the Circuit Court of Llie United States for the District of Massachusetts.</p> <p>At Law. Action by James Corcoran against the Concord & Montreal Railroad Company to recover damages for personal injuries caused by being thrown from the top of a freight train while in motion. The action was originally brought in the superior court of Middlesex county, and was removed to this court by defendant. At the close of plain! ill’s evidence on the question of defendant’s liability, the court directed a verdict for defendant, and judgment was entered accordingly. Plaintiff brings error.</p> <p>Plaintiff’s evidence showed that he was riding on top of a freight car without having paid any fare, and that he was ordered to get off by a person canwing a lantern, whom he assumed to be a brakeman; that plaintiff said he would get off if the train were stopped; and that thereupon the alleged brakeman seized him, and threw him off while the train was in rapid motion, thus causing the injuries complained of. No evidence was offered as to the scope of the alleged brakeman’s authority.</p>

<p>At Law. Appeal by Rosenthal and others, importers, from the decision of the board of United states general appraisers.</p> <p>The firm of ,T. Rosenthal & Go. imported on November 21, 1890, by the Fulda, from a foreign country, into the United States, at the port of New York, certain articles, invoiced as ‘‘pearl collar studs.” These articles were classified for duty as “pearl buttons,” under the provision for “pearl and shell buttons, two and one-half cents per line button measure of one-fortieth of one inch per gross, and in addition thereto twenty-five per centum ad valorem,” contained in paragraph 429 of the tariff act of October 1, 1890, (26 Stat. 599,) and duty at the rates specified in this provision was exacted thereon by the collector of customs at that port. Against this classification and this exaction the importers duly protested, claiming that these articles were “studs,” and not “buttons,” and, as they were not otherwise provided for, wore therefore dutiable at the rate of 40 per cent, ad valorem, as “manufactures of mother-of-pearl or as manufactures of shell,” under the provision for “manufactures of ivory, vegetable ivory, mother-of-pearl, and shell, or of which these substances or either of them is the component material of chief value, not specially provided for in this act,” contained in paragraph 462 of the same tariff act, (26 Stat. 602.)</p> <p>Upon the receipt of this protest the collector, pursuant to section 14 of the customs administrative act of June 10, 1890, (26 Stat. 137,) transmitted the invoice of these articles, and all the papers and exhibits connected therewith, to a board of three United States general appraisers on duty at that port, to examine and decide the case thus submitted. The board of United States general appraisers took evidence, from which it appeared, among other things, that these articles were made of mother-of-pearl; that they were used to fasten collars to shirts by means of button holes; and that at and prior to the date of the passage of the aforesaid tariff act they were bought and sold in trade and commerce of this country under the specific name of "pearl collar buttons,” the word “collar,” thereof, indicating the use to which they were put; that at those times there were other articles made of mother-of-pearl, and known to such trade and commerce under the specific names of “pearl coat buttons,” “pearl shirt buttons,” “pearl shoe buttons,” etc., the word “coat,” “shirt,” “shoe,” etc., thereof, indicating the uses to which they were respectively put; and that all the above-mentioned articles were then, in such trade and commerce, bought and sold at stipulated prices per line button measure. Tbe board of United States general appraisers, citing the case of Dieekerhoff v. Robertson, 44 Fed. Rep. 160, overruled tbe protest of the importers, and decided that the aforesaid classification and exaction of the collector were correct. The importers being dissatisfied with the decision of the board of United States general appraisers, applied, irarsuant to section 15 of tbe customs administrative act, to the United States circuit court for this district for a review of the questions of law and fact involved therein.</p>

In Equity. Bill by Armand Levy and others against Henry Waifct and others to restrain respondents from infringement of complainants’ trade-mark.

<p>In Equity. Bill by Morris P. Bra.y and others against Edwin J. Denning and others for infringement of a patent. Decree for complainants.</p>

In Admiralty. Libel by Jep Jepson against the dredge America, her tackle, etc., for wages. Libelant was a watchman on said dredge while she was in port. There was a decree pro confesso, and order of sale. The claimant moved to open the decree pro con-fesso, and let him into a defense, on the ground that watchman’s wages were not the subject of a maritime lien.

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

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Proceeding by the Stover Bicycle Company to review a decision of the board of general appraisers in the classification for duty of certain rims for bicycle wheels. The circuit court affirmed the decision of the board, and the importer appeals.</p>