Volume 57 — Federal Reporter

At Law. Suit in the circuit court of Bracken county, Ky., by H. B. Frisbie against the Chesapeake & Ohio Railway Company. Defendant removed the cause to this court. Plaintiff demurred to defendant's answer, and now moves to remand.

<p>1. Courts — Concurrent State and Federal Jurisdiction — Possession of Subject-Matter.</p> <p>Where a state and a federal court have concurrent jurisdiction of a Controversy, the court which first takes control of the subject-matter and of the parties cannot be ousted of its jurisdiction by subsequent proceedings instituted in the other court. Riggs v. Johnson Co., 6 Wall. ICO, followed.</p> <p>2. Same — Appointment of Receiver.</p> <p>When a state court has lawfully appointed a receiver of a corporation, and such receivership still exists, a federal court should not take jurisdiction of a suit by other complainants for the appointment of a receiver.</p> <p>3. Receivers — Appointment bt State Court — Federal Court will not Thereafter Appoint.</p> <p>A Virginia circuit judge appointed a receiver of a certain corporation, who took peaceable possession of the property, and conducted the business until the evening of the same day, when he was dispossesséd by an armed mob led by deposed officials and employes of the corporation. Thereafter, at- the suit of the same complainants, a court of appeals judge appointed a receiver, but this decree was appealed from, partly on the ground that one receiver had already been appointed, and was reversed. jHeld, that the receivership under the state circuit judge’s appointment was unaffected by the subsequent proceedings, and that a federal court should not take jurisdiction of a suit by other complainants against the same respondent, praying the appointment of a receiver.</p>

At Law. Action by. Pope W. Keith against Joseph M. Hinds, United States marshal, and Charles C. Sheats, William B. Creen, Leroy M. Peevy, and Pérry L. Harrison, sureties on his official bond, for damages for an alleged illegal seizure of a stock of goods. The defendant Harrison having died pending the action, the suit abated as to him. From a judgment for plaintiff, defendants appealed.

<p>1. Removal of Causes — Practice — Refusal of Party to Recognize Juris- '' -diction.</p> <p>In a cause removed to a federal circuit court from a state court which had refused to order the removal, plaintiff, after refusing to recognize the jurisdiction of the federal court, although he had due notice of its order docketing the cause, will not he heard in the federal court in opposition to a motion to dismiss the cause because it has been pending three stated terms without prosecution.</p> <p>3. Same — .Waive» by Deeknbakt.</p> <p>Where a slate court persists in holding a cause for trial after it has been duly removed to a federal court, the defendant does not, by participating in such trial, waive his rights in the federal court. Insurance Co. v. Dunn, 19 Wall. 214.</p>

Iu Equity. Bill by the city of Carlsbad and others against W. T. Thackeray & Co. to restrain respondent from infringing complainants’ trade-marks.

In Equity. Bill by Henry B. Tompkins against the First National Bank of Sheffield, Ala., and Charles D. Woodson to enforce and foreclose a vendor’s lien. Defendant Woodson having died pending the suit, Bichard W. Austin, administrator, was substituted in his stead. Decree for complainant. . Defendants appeal.

Id Equity. Petition of intervention filed by tbe Anniston Loan & Trust Company in tbe foreclosure suit brought by tbe Central Trust Company of New York against tbe Sheffield & Birmingham Coal, Iron & Railway Company. ' Tbe intervener sought to enforce the lien of certain receiver’s certificates, as against tbe purchasers at the foreclosure sale.

<p>1. Copyright — Proceedings to Obtain — Photographs — Deposit of Copies. In obtaining a copyright for a photograph, it is not necessary that the two copies required to be deposited with the librarian of congress should be mailed after publication.</p> <p>2. Same — Subject of Copyright. A photographist, who, by posing, and by the arrangement of lights, shades, and various accessories, produces an artistic photograph of an actress, representing his ideal of a character which she is accustomed to impersonate on the stage, is entitled to the protection of the copyright • law.</p> <p>3. Same — Infringement. A lithograph, which, to the eye of the ordinary observer, reproduces the material parts of a copyrighted photograph, is an infringement, although it is not an exact copy, and lacks the artistic excellence of the photograph.</p>

<p>1. Trade Names — Infringement—Pleading.</p> <p>lu a suit to enjoin (Tie use of the word “Vichy” by defendant in connection witix mineral waters, where complainant alleges the various transfers by which it acquired title to certain springs in France, from which it has long obtained mineral waters for sale under tliat name, it Is not necessary to make proferí of the instruments of title, for the question of title is not in issue, and the gist of the suit is a tortious act.</p> <p>2. Same — Right to Use Geographical Name — Mineral Waters.</p> <p>A right may be acquired to use a geographical name as a trade name in c'onneetion witix mineral waters derived from springs in that locality by persons who own all of such springs, and the use of such name by others who obtain their waters elsewhere will be enjoined.</p> <p>8. Same — What Constitutes — Industrial Property Treaty with France.</p> <p>The word “Vichy,” used in connection with mineral waters, and derived from the locality' in France where the waters are obtained, is a trade name, or “nom commercial,” within the meaning of the industrial properly treaty with France of 1883. art. 6, (25 Suit. 1376,) and as such is entitled to protection in the United States, though it has not been deposited as required by the treaty in the ease of trade-marks.</p> <p>4. Treaties — Implied Repeal.</p> <p>The treaty between the United States and France of April 16, 1869, was impliedly repealed by the industrial property treaty of 1883, (25 Sta.t. 1372,) since the latter treaty covered the whole subject-matter of the former one.</p>

In Equity.' Suit by the Louisville, New Albany & Chicago Bail-way Company against the Ohio Valley Improvement & Contract Company and others to obtain the cancellation of complainant’s guaranty upon certain bonds issued by the Bichmond, Nicholasville, Ervine & Beattyville Bailway Company. Heard on demurrers to the supplemental bill.

In Equity. Bill by J. Kennedy Tod, Hugh Oliver Horthcot, and William Stewart Tod, tbe Central Trust Company of New York, and tbe Columbia Finance & Trust Company against the Kentucky Union Land Company and others for the appointment of a receiver, declaring an assignment under the law of Kentucky, on account of the debtor having made preferences, and sale of respondents’ property. Decree was rendered for complainants, and a reference ordered.

. Appeal from the Circuit Court of the United States for the Northern District of Florida. In Equity. Bill by the American Construction Company, on behalf of itself and snch other stockholders as might come in, against the Jacksonville, Tampa & Key West Railway Company, for an account, a receiver, and an injunction.

In Equity. Bill by Louis H. Bristol and others, stockholders of the Scranton Steel Company, against William Walker Scranton, Walter Scranton, directors of the Scranton Steel Company, and the said company, for an accounting by defendants Scranton.

In Equity. Bill by the Fidelity Trust & Safety Vault Conqiany, a corporation organized under the laws of Kentucky, against the Mobile Street-Railway Company, to foreclose a mortgage. A petition in the nature of a cross hill was filed by F. J. Gasquet and others, bondholders under the mortgage, alleging misconduct on the part of the trust company in the execution of the trust.

In Equity. Suit by the United States against the Workingmen’s Amalgamated Council of Kew Orleans, La., and others, to restrain the defendant^ from interfering with interstate and foreign commerce. An order was made in the court below granting a temporary injunction, (54 Fed. Rep. 994,) and defendants appeal therefrom.

In Equity. This is a stockholder’s bill, filed hy Samuel F. Barr, a citizen of the state of Maine, against the Pittsburgh Plate-Glass Company, a corporation of Pennsylvania; Edward Ford, Artemus… Held: and a vote taken, and the property conveyed, with full notice of the pendency of this bill. A replication having been filed, testimony was taken before an examiner.

<p>1. Public Lands — Southern Pacific Grant — Indemnity Lands — Homestead Entry,</p> <p>Under Act July 27, 1866, (14 Stat. 292,) granting lands to the ¡Southern Pacific Railway Company, public .land without the primary limits, but within the indemnity limits of the grant, was not open for homestead entry after an order was issued from the general land office directing the withdrawal of such lands from entry. Buttz v. Railroad Co., 7 Sup. Ct. Rep. .100, 119 U. S. 72, followed. Railroad Co. v. Tilley, 41 Eed. Rep. 729, overruled.</p> <p>2. Same — Remedy against Homesteader.</p> <p>A homesteader who has made such an entry and received a patent therefor against the opposition of the Southern Pacific Railway Company'is subject to have his title decreed to be held in trust for said company, when it appears that the lands within the indemnity limits will not mate up to the company the loss of lands within the primary limits.</p>

In Equity. Bill by James B. McMullen and George W. McMullen against Samuel J. Ritchie, Stevenson Burke, Henry B. Payne, and the executors of the Cornell estate, to subject certain collateral securities deposited by respondent Ritchie with his corespondents, after the payment of their claims, to the payment of a judgment in favor of complainants.

In Equity. Suit by Patrick H. McCormick and others against the Falls City Bank of Louisville and others for an injunction and a decree declaring a certain judgment satisfied. On demurrer to the bill.

i In Equity. Suit by the De la Yergne Refrigerating Machine Company against the Montgomery Brewing Company and others to foreclose a mechanic’s lien. A demurrer to the bill was overruled. 46 Fed: Rep. 832. The bill was subsequently amended, was again demurred to, and the demurrers sustained. Thereafter the bill was dismissed. Complainant appeals.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>In Equity. Foreclosure proceedings against the Missouri, Kansas & Texas Railway Company. The hearing was on an intervening petition by Annie Letcher against George A. Eddy and H. O. Gross, receivers, to recover damages for the death of Harvey Letcher by the wrongful neglect of respondents. A decree was rendered for the petitioner. The receivers appeal.</p> <p>Statement by SHIRAS, District Judge:</p> <p>The appellants in this proceeding, Messrs. Eddy and Cross, are the receivers of the Missouri, Kansas & Texas Railway. The St Louis & Hannibal Railway Company, by a written contract between that company and the appellants as receivers, had secured the right to run its train oyer the tracks of tile Missouri, Kansas & Texas Railway into the city of Hannibal, Mo., from the point where the roads of the two companies intersected at a junction about three miles southwest of Hannibal.</p> <p>On the 2d of August, 1890, the St. Louis & Hannibal Railway Company ran a special excursion train from Gilmore to Hannibal, arriving at the latter place about 10:40 A. M. When this train had nearly reached the Union Depot in Hannibal, and was upon the track of the Missouri, Kansas & Texas Railway, a collision occurred with a switch engine belonging to the latter company, and operated by the appellants as receivers thereof; and one Harvey Letcher, a passenger on the excursion train, was killed. Annie Letcher, the widow of Harvey Letcher, thereupon filed an intervening petition in the foreclosure proceedings wherein the appellants have been appointed receivers, claiming damages against the receivers,' upon the ground that the collision and consequent death of her husband was due to negligence on part of the employes of the receivers in charge of the yard and switch engine of the Missouri, Kansas & Texas Company at Hannibal. The questions arising out of the issues thus created were sent to a master for hearing and report, before whom a large amount of testimony was taken.</p> <p>The master, among other findings of fact, reported the following as estab-' lished by the evidence: “That early in the day of the fatal collision the train master of the Short Line Company notified the yard master of the M., K. & T. Company, as it was his duty to do, that an extra passenger train would he run into Hannibal by the Short Line Company on that day, and that it would reach the Union Depot at about 10 o’clock A. M. Thereupon the yard master of the M., K. & T. Company notified the foreman of each of the'several switch engines in the M., K. & T. yards, including the foreman of switch engine No. 91, of the existence of this extra train for that day, and of the time at which it was expected to arrive and pass through the yards. This information, however, the foreman of the crew in charge of said switch engine No. 91 failed to communicate to his engineer, the latter in fact having no knowledge whatever of the existence of the excursion train until the moment of the collision. During the time his train, which consisted of ten freight cars, was passing down the yard towards the Union Depot, immediately before the collision, the engineer in charge of this switch engine was leaning partly out of his cab -window, looking back for signals from others of his crew. He did not see the Short Line engine ahead of him until notified by - Ms fireman, when he turned, and saw that the two engines were then not more than twenty-five or thirty feet apart. His station being on the inside of the curve as the train moved forward, he could have seen the ■Short Line engine as it moved from behind the M., K. & T. passenger train towards him at a time earlier than the position of his fireman on the other side of the engine enabled the latter to discover it, but was still looking back at the time his fireman discovered the danger. Gn being notified by the fireman he immediately applied the brakes, reversed his engine, and took hold of the throttle to give her steam; but just at that moment the two engines struck.”</p> <p>The conclusion of the master in favor of the right of recovery on part of the intervener was affirmed by the court upon the ground that the proximate cause of the accident was the failure to give the engineer of the switch engine notice of the expected arrival of the excursion train.</p> <p>From the judgment rendered in favor of the intervener, the receivers have appealed to this court.</p>

<p>Public Lands — Railroad Grants — Indemnity Selections — When Title Passes.</p> <p>Under Act Cong. May 17, 1856, (11 Stat. 15,) granting certain lands to the state of Florida in aid of railway construction, and providing that if,, when the routes of the railroad were definitely fixed, the United States-had sold any of the granted sections, or the right of pre-emption had attached thereto, an agent or agents appointed hy the governor might select other land in lieu thereof within prescribed limits, subject to the approval of the secretary.of the interior, the state acquired no title to lands: so selected by the agent until the approval of such selection, hy the secretary of the interior. Wisconsin Cent. R. Co. v. Price Co., 10 Sup. Ct. Rep. 341, 133 U. S. 496, followed.</p>

<p>At Law. Action by William Ahlhauser against William Allen Butler and others for negligence while acting as plaintiff’s attorneys. The case was tried by the court. Judgment for defendants.</p>

<p>In Error to the Circuit Court of the United States for the Southern Division of the Eastern District of Tennessee.</p> <p>At Law. Action by F. A. Clark, administrator, against the Cincinnati, New Orleans & Texas Pacific Railroad Company, to recover damages for the death of W. R. Clark. Verdict and judgment were given for plaintiff. Defendant brings error.</p> <p>Statement by BARR, District Judge:</p> <p>This is a suit to recover damages for the death of plaintiff’s intestate, W. R. Clark, who was killed in a tail-end collision of two trains on the 23d of May, 1891, near Melville station, Term.</p> <p>The defendant, the Cincinnati, New Orleans & Texas Pacific Railroad Company, ran and operated trains on a single track railroad between the cities of Cincinnati and Chattanooga, and had on the night of the 23d of May, 1891, two trains running south to Chattanooga. No. 1 was the fast passenger express train, which stopped only at a few of the stations, and the other, No. 7, was the mail passenger train, which was slower than No. 1, and stopped at the principal stations and all others when signaled.</p> <p>The schedule time made these trains 30 minutes apart at Evansville station, and this decreased as they ran south, until by the schedule they were to arrive at'Chattanooga 15 minutos apart, — No. 7 at 9 P. M., and No. 1 at 9:15 P. M.</p> <p>Both trains were on the day of the accident behind their schedule time, and from Dayton, a station 20 9-10 miles north of Melville, (the place of the collision,) No. 7 was running on the time of No. 1. Train No. 1 caught and ran into train No. 7 at Melville station, just as that train had gotten some 200 feet beyond the station. That train had the proper signal lights out at the end, and slowed up to let a passenger get off at Melville. The track as these trains ran fo Melville station was straight for some distance, say 1,950 feet, and down g .de.</p> <p>W. R. Clark, who was the fireman, and Mr. Chapin, who was the engineer, on No. 1, seeing a collision inevitable, jumped from their engine, and-were killed, — Chapin instantly, and Clark hurt so badly that ho died in a few days.</p> <p>This suit was brought in state court, and removed to this court. After removal, plaintiff filed a declaration containing nine counts, alleging negligence by the defendant, so as to cover every view which the testimony might possibly present. There was a trial and a verdict against defendant for $10,000.</p>

At Law. Action by Eudora V. Smith, against the New York Life Insurance Company to recover on a policy of insurance. Jury waived, and trial to the court. Judgment for plaintiff.

<p>In Error to the Circuit Court: of the United States for the District of Kansas.</p> <p>At Law. Action on county bonds by William Edward Coffin, Walter Stanton, and Charles Fawcett Street, partners as Coffin & Stanton, against the board of county commissioners of the county of Kearney, Kan. The circuit court overruled a demurrer to defendant’s plea, and on plaintiff’s refusal to plead further gave judgment for defendant. Plaintiffs bring error.</p> <p>Statement by THAYER, District Judge:</p> <p>This was a suit ou county bonds which were issued by Kearney county, Kan., on August 1, 1888, for the purpose of refunding its outstanding indebtedness. Each bond contained the following recital:</p> <p>“This bond is one of a series of like tenor, date, and amount, issued to refund outstanding indebtedness of said county of Kearney, duly surrendered and canceled, in conformity to and in full compliance with the provisions of chapter 50, Laws of 1879, approved March 8th, A. D. 1879, entitled ‘An act to enable counties, municipal corporations, the boards of education of any city, and school districts, to refund their indebtedness.’</p> <p>“It is hereby certified and recited that all acts, conditions, and things required to be done precedent to and in the issuing of this bond have been properly done, happened, and performed, in regular and due form as required by law; and that the total indebtedness of said county, inclusive, is within the statutory limits.”</p> <p>Kearney county is one of the newly-organized counties of the state of Kansas. Its territorial limits were defined by an act of the legislature of the state of Kansas, which took effect March 28, 1889, (1 Gen. St. Kan. 1889, p. 522;) but it was organized under and pursuant to the provisions of a law of that state relating to the organization of new counties, which will be found in 1 Gen. St. Kan. pp. 535, 536, the material parts of which are as follows:</p> <p>“See. 120. That when there shall be presented to the governor a memorial signed by four .hundred householders who are legal electors of the state of Kansas, of any unorganized county, showing that there are two thousand five hundred bona fide inhabitants in such county, and that four hundred of said two thousand five hundred are householders and reside in said county, and praying for the organization of the same, accompanied by an affidavit attached thereto of at least five freeholders of such county, allowing that the signatures to such memorial are genuine signatures of householders and bona fide residents within said unorganized county, residing therein for thirty ■days prior to the taking of such census, that affiants do believe that there are two thousand five hundred bona fide inhabitants in such county, — it shall be the duty of the governor to appoint some competent, disinterested person who is a citizen of the state and a nonresident of the county, to take the census and / ascertain the number of actual bona fide inhabitants, as herein provided, of such unorganized county, who shall also act as assessor, and ascertain as nearly as possible the amomit of taxable property that will be within the bounds of said unorganized county in case of its organization. The said census taker shall take and subscribe on oath that he is not interested directly or indirectly in said unorganized county, and that he will not become interested either directly or indirectly in any manner therein during his official term as said' census taker, and that he will impartially and faithfully discharge the duties of his office, and that he will truly and correctly make return of the enumerated" inhabitants and of the amount of property found by him within the bounds of the said unorganized county. After having qualified as aforesaid, he shall proceed to take the census of such unorganized county on duplicate schedules, by enrolling the names, ages, places of nativity, and actual place of residence, * * * of each of the bona fide inhabitants and the numbers of actual householders as herein provided residing in such unorganized county, and the number of acres of land cultivated by each. ■V * * The census taker shall register upon said duplicate schedules opposite the name of each legal voter his election for temporary location of county seat, which shall be taken by the governor as the definite expression of said voter, unless there shall be evidence before him that said list has been tampered with and changed. He shall also assess all property, both personal and real, at its true value, in the manner provided by law for taking the assessment in organized counties, and make due return thereof to the governor, upon appropriate schedules in duplicate, with his affidavit sworn to before the clerk of the supreme court of the state, attached thereto, that the census enumeration and assessment contained in said returns are impartial and true. If it appear by such returns that there are in such unorganized county at least two thousand five hundred actual bona fidefinhabitants, as herein provirtod, and tliat four hundred of them are householders,, and that there is at least one hundred and fifty thousand dollars’ worth of property in excess of legal exemption, exclusive of railroad property, of which not less than seventy-five thousand dollars’ worth is real estate, the governor shall appoint’ three persons, citizens of said unorganized county, to act as commissioners, and one to act as county clerk, to whom he shall cause to be delivered the duplicate returns aforesaid, one to act as sheriff, and when the election precincts shall have been established, at least one justice of the peace in each election precinct, and shall designate and declare the place chosen by the greatest number of legal voters to be the temporary county seat; and from and after the qualification of the county officers appointed under this act the said county shad be deemed to be duly organized: provided, that no bonds except for the erection and furnishing of schooihovses shall be voted for and issued by any county or township within one yean after the organization of such new county, -under the -provisions of this act. ”</p> <p>The proviso contained in' the foregoing statute which we have italicised first appeared in an act relative to the organization of new counties, which was passed on March 15, 1876. As first enacted the proviso was as follows: “And provided further, that no bonds of any kind shall be issued by any county, towiisliip, or school district within one year after the organization of such new county, under the provisions of this act.” Taws Kan. 1876, c. 63, § 1.</p> <p>On March 11, 1887, the act relative to the organization of new counties was amended in some respects, and in the amended act — being the one in force when the bonds in suit were issued — the proviso was made to read as first above Quoted.</p> <p>It is conceded that Kearney county did not become duly organized as a county, within the meaning of the foregoing law, until April 3, 1888; but the bonds in suit, were issued on August 1, 1888, — that is to say, within four months succeeding the due organization of the county.</p> <p>The act referred to in the bonds, and under and by virtue, of which they purport to have been issued, is an act which was passed by the legislature of Kansas long prior to the organization of Kearney county, to wit, on March 10, 1879. Vide 1 Gen. St. Kan. 1889, pp. 167, 168. The material portions thereof are as follows: “Every county, every city of the first, second, or third class, the board of education of any city, every township and school district, is hereby authorized and empowered to compromise and refund its matured and maturing indebtedness of every kind and description whatsoever, upon such terms as can be agreed upon, and to issue new bonds, with semiannual interest coupons attached, in payment for any sums so compromised; which bonds shall be issued at not less than par, shall not be for a longer period' than thirty years, shall not exceed in amount the actual amount of outstanding- indebtedness, and shall not draw a greater interest than six per cent, perannum.”</p> <p>As a defense to the present action the defendant in error pleaded that the bonds sued upon were issued within one year after the temporary organization of Kearney county, and wore for that reason issued without authority of law. To such plea, the plaintiffs in error filed a demurrer, which was overruled by the circuit court. Thereupon the plaintiffs in error declined to plead further, and a final judgment was entered in favor of the county.</p>

At Law. Action by T. J. Harley against the Louisville & Nashville Bailroad Company to recover damages for personal injuries sustained while in its employment. There was a verdict for plaintiff, and the case is now heard on motion for a new trial.

In Livor to the Circuit Court of the United State’s for the District of Kansas. At Law. Action by Cornell University against the board of commissioners of the comity cf Kingman, Kan., to recover upon certain railroad aid bonds of said county. Judgment was given for plaintiff. Defendants bring error. Statement by Thayer, District Judge: Tliis is a suit on railroad aid bonds, which were issued on August 2, 18S0, by Kingman county, Kan., to the amount of $125,000.

<p>Constitutional Law — Interstate Commerce — Municipal License.</p> <p>A municipal ordinance wliicli imposes a license tax on every merchandise broker who maintains a warehouse or office within the city limits is void , as to a broker whose sole business is making contracts by sample for the sale and delivery to citizens of the state of merchandise which, at the time of making the contract, is the property of citizens of other states, and is situated therein; for as to him it is a regulation of interstate commerce, and contravenes the provision of the federal constitution vesting power to regulate such commerce exclusively in congress. Eicklen v. Taxing Dist, 12 Sup. Ct. Rep. 810, 145 U. S. 1, distinguished.</p>

<p>In Error to the Circuit Court of the United States for the District of Kentucky.</p> <p>At Law. Action of ejectment by John Loree against William Abner and others. Judgment was given for defendants. Plaintiff brings error.</p> <p>Statement by BARR, District Judge:</p> <p>This is an action of ejectment, in which plaintiff, Loree, sued for the recovery of a tract of land patented to Samuel Young by the commonwealth of Virginia on the 4th day of January, 1786, containing over 30,000 acres, lying in what are now the counties of Lee, Wolfe, and Powell, in the state of I-Centucky.</p> <p>The defendants answered, and put in issue plaintiff’s title, and claim adverse possession, and pleaded the statute of limitation. Some of them deny that the deed from Young to Gitt, through whom plaintiff claims title, is valid, and allege that it was never executed by the patentee, Young, and the alleged deed to Gitt is fraudulent and void. On the trial, plaintiff read a copy of the patent to Samuel Young from the commonwealth of Virginia, dated' January 4, 1786, and a copy of a deed from. Samuel Young to W. W. Gitt, dated Slay 23, 1843, and then a deed from Gitt to plaintiff. This was Xilaintiff's chain of title, and, after he introduced testimony tending to ’prove that the defendants were in the possession of portions of the land sued for, he rested his case.</p> <p>The defendants then read, with the permission of the court, and over the objections of the plaintiff, a certified copy of a deed from Samuel Young to Charles Vancouver, dated March 9, 1786, which conveyed the same land patented to Young by the commonwealth of Virginia, January 4, 1786. This certified copy is in words as follows, viz.:</p> <p>“This indenture, made the ninth day of March, in the year of our Lord one thousand seven hundred and eighty-six, between Samuel Young, of the city of Philadelphia, a merchant, of the one part, and Charles Vancouver, of the same city, gentleman, of the other part. Whereas, Patrick Henry, Esquire, by patent, under his hand and the lesser seal of the commonwealth of Virginia, bearing date the 4th day of January last past, did grant unto the said Samuel Young, his heirs and assigns, forever, a certain tract or parcel of land, containing thirty thousand nine hundred and seventy-three and one-third acres by survey, bearing date the 7th day of May, 1784, lying and being in the county of Payette, in Kentucky; beginning at the letter ‘A’ in the plat, a black oak, standing at the end of four hundred and forty poles north, nine degrees west, line drawn from, the mouth of the north fork of the three forks of the Kentucky river, and running thence north, «fine degrees west, thirty-eight hundred and fifty poles, to- letter ‘B,’ a hickory; thence north, eighty-one degrees east, thirteen hundred and seventy-five poles, to letter ‘0,’ a black oak; thence south, nine degrees east, three thousand poles, to letter ‘D,’ on Kentucky river, at a sugar tree, near the mouth of a large branch; thence running down, and binding with the meanders of the river, to letter ‘E,’ a buckeye, at the end of six hundred and forty poles when reduced to a straight line, where it intersects with an entry made by Adams’ and Crow; thence bounding by said entry, north, eighty-seven degrees west, two hundred and forty poles; thence south, four degrees east, seventy poles; thence south, eighty-six degrees west, one hundred and eighty poles; thence south, seventy-seven degrees west, four hundred poles; thence south, forty degrees west, one hundred and eighty poles, to the beginning, as by the said patent and recorded at Kdchmond fully appears: Now this indenture witnesseth that said Samuel Young, for and in consideration of the sum of one thousand three hundred and fifty pounds lawful money of Pennsylvania, to him in hand paid at the time of the execution thereof, the receipt whereof is hereby duly acknowledged, hath, and by these presents doth, grant, bargain, sell, alien, enfeoff, release, and confirm unto the said Charles Vancouver, iiis heirs and assigns, all that the above-described tract of land, together with all and singular the rights, privileges, immunities, hereditaments, and appurtenances whatsoever to the same belonging, and the reversions, remainders, rents, issues, and profits thereof, and all the estate, right, title, and interest whatsoever of the Said Samuel Young of, unto, and out of the same. To have and to hold all and singular the hereby-granted premises, with the apipurtenances, unto the said Charles Vancouver, his heirs and assigns, to his and their own proper use and benefit, forever, and the said Samuel Young, and his heirs, all and singular, the hereby-granted premises, with all the appurtenances, unto the said Charles Vancouver, his heirs and assigns, against himself and his heirs, and against all persons whatsoever lawfully claiming or to claim by, through, from, or under him or them, shall and will warrant and forever defend by these presents. In witness whereof, the said parties have hereunto set their hands and seals, interchangeably, the day and year first above written.</p> <p>“Samuel Young. [L. S.]</p> <p>“Sealed and delivered in presence of us:</p> <p>“Miers Fisher.</p> <p>“John Hallowell.”</p> <p>“I do hereby acknowledge to have received the full consideration money above mentioned. Samuel Young.</p> <p>“Witnesses:</p> <p>“Miers Fisher.</p> <p>“John Hallowell.”</p> <p>“Philadelphia county — ss.: Before us, the subscribers, two of the justices of the court of common pleas for the county of Philadelphia, personally came Samuel Young, in the above indenture named, and in due form of law acknowledged Un; same as his act and deed. In witness whereof wi have hereto set our hands and seals, the ninth day of March, in the year of our Lord one thousand seven hundred and eighty-six.</p> <p>“Pluuket Floeson. [L. S.]</p> <p>“Edward Shippen. [L. S.j”</p> <p>“(L. C. S.) Philadelphia county — ss.: I, Jonatlian Bayard Smith, Esquire, "prothonotary of the court of common pleas of Philadelphia, do hereby certify that Plunket Floeson and Edward Shippen, Esquires, the persons taking the foregoing acknowledgment, are, and at the time of taking and subscribing same were, justices of the court of common pleas for the said county, as by their commissions remaining of record in my office fully appear, and that, to all acts and deeds by them subscribed, full credit is and ought to he given. In witness whereof, I have hereunto affixed the common seal of the said court, and set my hand, the tenth day of March, in the year of our Lord one thousand seven hundred and eighty-six.</p> <p>“J. B. Smith.”</p> <p>“Philadelphia, in.Pennsylvania/ — ss.: Before us, the subscribers, two of the justices of the court of common pleas for the county of Philadelphia, personally appeared Samuel Young, in the within written indenture named, and acknowledged that on the third day of May, in this present year, he had again sealed and delivered the within indenture as his act: and deed, and now' desires that the same may he recorded as such. Witness our hands and seals, the third dav of May, one thousand seven hundred and eighty-eight.</p> <p>“John Gill.</p> <p>“William Pollard.”</p> <p>“I, Jonathan Bayard Smith, Esquire, prothonotary of the court of common pleas for the county of Philadelphia, do hereby certify that John Gill and William Pollard, Esquires, the persons taking the foregoing acknowledgment, are, and at the time of taking the same were, justices of the court of common pleas and of the peace for the sattie county, and that, to all acts by them done as such, full credit is and ought to he given. Witness my hand and seal, the sixth day of May, in the year of our Lord one thousand seven hundred and eighty-eight J. B. Smith, Prot’y. [L. O. S.]”</p> <p>“Uncorded in the office for recording deeds, etc., for the city and county of Philadelphia, in Peed Book No. 10, pages 1.75, etc. Witness hand and seal of office, the 30th of March, A. L>. 1780.</p> <p>“Mathw. Irwin, Rec’r. [L. C. S.j”</p> <p>“1'he time for recording the within written indenture, according to the laws of Virginia, being expired, the same was again sealed and delivered by the said Samuel Young as and for his act and deed, this present third day of May, in the year of our Lord one thousand seven hundred and eighty-eight, in the presence of us, to the end that the same may he yet recorded there. Miers Fisher.</p> <p>“John Hallowell.”</p> <p>“At a court held for Bourbon county, at the courthouse, on Tuesday, the 18th day of November, one thousand seven hundred and eighty-eight, the above indenture of bargain and sale, from Samuel Young to Charles Vancouver, acknowledged before Plunk. Floeson and Edward Shippen, Esquires, justices of the peace,for Philadelphia county, in the state of Pennsylvania, and certified by Jonathan Bayard Smith, prothonotary of the said county, with the said county seal affixed thereto, was admitted and ordered to he recorded.</p> <p>“Test: John Edwards, O. O. B. C."</p> <p>“State of Kentucky, Bourbon county — Set.: I, Wm. Myall, clerk of the Bourbon county court, Kentucky, certify that the foregoing is a true and complete copy of a deed from Samuel Young to Charles Vancouver, together with the certificates to same, as same appears of record in my office. Given under my hand, November 21th, 1891. Wm. Myall, O. B. O. 0.”</p> <p>This deed being read, the court instructed the jury they must find for defendants. This was done, and judgment entered thereon, and the plaintiff lias sued out a writ of error.</p>

At Law. Action brought i-n the circuit court of Giles county, Tenn., by Henry Arrowsmitb, administrator of David S. Martin, against the Nashville & Decatur Railroad Company and the Louisville & Nashville Railroad Company, for negligence causing the death of plaintiff’s intestate. The Louisville & Nashville Railroad Company removed the cause to this court. Heard on motion to remand.

<p>PRINCIPAD AND SURETY — DISCHARGE OF SURETY — ADVANCE PAYMENTS TO CONTRACTOR.</p> <p>A contract provided for a payment of 85 per cent, of the total cost of the completed work when it was, in the opinion of the party of the first part, half completed; such percentage to be carefully estimated by the engineer of said party, but such payment not to exceed $7,480. The party of the first part, relying on the fraudulent representations of the party of the second part that the work was half completed, made a payment of $10,046.68. Held, that this discharged the sureties on the bond of the party of the second part.</p>

<p>At Law. Petition by John Bonner for a writ of habeas corpus.</p>

<p>1. Pleading — 'Verification.</p> <p>Under tile South Carolina practice, requiring a pleading to show what facts are stated on personal knowledge, and what on information and' belief, .and also requiring the verification thereto to- state that the facts-set out in the pleading are true, except as to such facts as are stated on information and belief, and that as to these the party believes them to be true, the complaint and verification must be taken together; and if a complaint shows distinctly what Allegations are on information and belief, and what from personal knowledge, a verification stating that the complaint is true, of plaintiff’s own knowledge, except as to those matters stated on information and belief, and as to these he believes it to- be-true, is sufficient.</p> <p>2. Same.</p> <p>A certificate to the verification of a complaint, stating: “Sworn to- and subscribed before me. * * * A. J. R., Clerk of the Circuit Court of the-United States. * * * By W. H. S., Deputy Clerk,” — and having the seal of the court attached, is insufficient, in that it purports to be the act of the-deputy clerk, rather than that of the clerk, irrespective of the question as to whether or not the clerk has power to administer an oath in a matter disconnected with the court, or the business thereof.</p>

At Law. Action by John P. Becker, administrator, against the Baltimore & Ohio Railroad Company, to recover damages for the alleged wrongful death of his intestate while in its employment. On demurrer to the complaint.

<p>Customs Administrative Act of June 10, 1890 — United States Circuit Court of Appeals — Remission of Duties — New Trial.</p> <p>In a case arising under the customs administrative act of June 10, 1890, (26 Stat. 131,) it is not within the province of a United States circuit court of appeals to grant to or withhold from an importer leave to apply to an officer of customs for a remission of duties levied upon merchandise imported by him, and made the subject of such case; or, if a judgment rendered in such case by a United States circuit court be affirmed by such circuit court of appeals, to direct or suggest the action of such circuit court in regard to a new trial upon newly-discovered evidence or newly-ascertained facts.</p>

<p>At Law.</p> <p>Appeal by the collector of the port of New York from a decision of the board of United States general appraisers, concerning the classification for customs duties of certain so-called “absolute alcohol,” which was classified for duty by the said collector as “alcohol, 198 degrees, $4.95,” at $2.50 per proof gallon, under the provisions of paragraphs 329 and 333 of Schedule H of the tariff act of October 1, 1890, which provisions are as follows: “329. Brandy and other spirits manufactured or distilled from grain or other materials, and not Specially provided for in this act, two dollars and fifty cents per proof gallon.” “333. No lower rate or amount of duty shall be levied, collected, and paid on brandy, spirits, and other spirituous beverages than that fixed by law for the description of first proof; but it shall be increased in proportion for any greater strength than the strength of first proof, and all imitations of brandy or spirits or wines imported by any names whatever shall be subject to the highest rate of duty provided for the genuine articles respectively intended to be represented, and in no case less than one dollar and fifty cents per gallon.” Against this classification the importers protested, claiming that the article was a scientific preparation for college use, and duty free, under paragraph 677 of the free list of said tariff act, which is as follows: “677. Philosophical and scientific apparatus, instruments, and preparations; statuary, casts of marble, bronze, -alabaster, or plaster of Paris; paintings, drawings, and etchings, specially imported in good faith for the nse of any society or institution incorporated or established for religious, philosophical, educational, scientific, or literary purposes, or for encouragement of the fine arts, and not intended for sale.” The importers, procured the mailer to be certified to tlie hoard of United States general appraisers pursuant to section 14 of the so-called “Customs Administrative Act,” of Juno 10, 1890, and that board proceeded to take certain testimony in relation thereto, from which it appeared that this “absolute alcohol” was made by chemical action by adding lime, and then distilling the liquid over again, by means of which the high percentage of 90.5 of alcohol was obtained; and that it was from two to three times higher in price than the regular alcohol of commerce, miming only to 95 por cent. Proof was also offered that this absolute alcohol was imported on the orders and for the use of certain co leges in the United Stales," and that the importers did not keep tlie article in stock, nor any oilier chemicals, and that it was solely to he used for scientific purpose's.</p> <p>The hoard of general appraisers thereupon rendered a decision, the opinion written by Somerville, general appraiser, in which it was held, referring to the absolute alcohol in question, and citing- from the United States dispensatory: “ Til this state it cannot be obtained by ordinary distillation alone, the purest alcohol thus procured still containing I I per cent, of water. To separate this, it is customary to have recourse to substances having a very-strong affinity for water, sufficient not only to abstract it from the alcohol, but to retain it at a temperature at which alcohol will distill over.’ The mode of preparing the, article is an elaborate chemical process, which is given in the work above' cited, and also by expert witnesses examined before the board in the hearing. * * * We make the following findings of fact: (1) The merchandise is ‘absolute alcohol,’ which is an article of commerce entirely distinct, in nomenclature, chemical composition, and uses from alcohol proper, and was imported since October (5, 1890. (2) It contains from 98 to 09 por cent, of pure alcohol, and is used chiefly in the laboratory, either for analytical purpose's or for illustrating or teaching scientific principles. It is worth twice as much as common alcohol, and is novel’, therefore, used for mere industrial puiposes. (3) It is a preparation of alcohol, made by removing, by an ('labórate chemical process, 7 or 8 per cent,, of water, and can he preserved pure-only by keeping it in vessels hermetically sealed. (4) Tlie merchandise was imported by the protestants specially, in good faith, for the use of colleges established for educational, scientific, or literary purposes, and for no other purpose, the importers being paid for their services by making an extra charge over prime cost for the merchandise. The importation in case * * * 1GG54A, for Cornell University, in New York, Wesleyan University, at Middle-Town, Conn., and Maine State' College, in the state of Maine. It follows from file last finding that the goods are ‘not intended for sale,’ within the moaning of said paragraph 677, by which we understand not intended to he disposed of by sale to any other person than the corporation or society for whose special use the importation is permitted to he made. ’The protests are susrained, and tlie deeisipn in each case reversed, with instructions to reliquidate tlie entries accordingly.”</p> <p>General Appraiser Tiehenor dissented, from the conclusion reached by tlie majority of the' board for the following- reasons: “(1) Alcohol, whether known as ‘absolute alcohol’ or otherwise, being specially provided for as distilled spirits at a fixed rate of duty per proof gallon in Schedule H of the present tariff act, cannot, in my opinion, be held to be exempt from duly under a general and indefinite provision elsewhere in said. act. (2) Alcohol absolute, or pure alcohol, is not, according to my understanding, a philosophical or ‘scientific preparation,’ within the intent and meaning of paragraph 677 of tlie existing tariff, lmt is, in fact, an industrial product of variable character and value, as is shown by the wide difference in the invoice price of the-several Importations subject of these protests, some of which are at marks 2.30 per kilo, and others at marks 1.85 per kilo. (3) As appears from the papers and testimony in these eases, the alcohol in question was imported by firms engaged in tlie importation and sale of merchandise of this class; and, while this was imported by them on the order of the several institutions mentioned, it was sold by them to said institutions at an advance over cost, or at a profit of about 20 per cent I am therefore of the opinion that the merchandise is dutiable as assessed by the collector.” The collector thereupon appealed the case to the United States circuit court, under section 15 of the above-cited customs administrative act of June 10, 1890, and further evidence was taken in the circuit court, from which it appeared that absolute alcohol, running as high in percentage of anhydrous alcohol as the imported article in question, was manufactured to a considerable extent in this country from the ordinary alcohol, of commerce by a process of treatment with chloride of calcium, which, having a great affinity for water, absorbed the water from the alcohol, which was slowly distilled over by repeated distillations until the alcohol reached the desired strength; that the absolute alcohol was a regular article of commerce in the markets of this country, and was used considerably for “cutting oils” to make essences, by confectioners and manufacturers; that it was also sold to some extent to wholesale druggists and pharmaceutical chemists. It appeared also to have been used 1 at one time in combination with camphene in xiroducing an illuminating fluid. There was testimony, however, that absolute alcohol of. the kind imported, being of a very superior character, was used chiefly, if not entirely, for chemical and laboratory purposes, and by the large universities in the country, and always sold in bottles, to prevent deterioration or absorption of moisture from the atmosphere. Evidence was also produced showing that the proper oaths taken by officers of the colleges for which the importation was made were duly presented to the collector of the port on the entry of the merchandise, which was entered free, and the duty subsequently assessed thereon by the collector. It was admitted that the importers’ profit in furnishing the article to the colleges in question was about 20 per cent.</p>

<p>At Law. Appeal by the collector of customs from a decision of the hoard of United States general appraisers.</p> <p>The linn of Albert Haager & Go. imported by the Gascogne, January 5, 1891, by the Bretagne, January 27, 1891, bv the Champagne, Maxell 31, 1891, and by the 'VYerkendam, August 0, 1891, from a foreign country into the United States, at the port of New York, certain merchandise, consisting of cloths composed of cotton, bleached, ornamented with dots, spots, sprigs, or other figures of cotton, and commonly known as “Dotted Hwisses” aud “Figured Swisses,” or as “Swiss Spots” and “Swiss Sprigs.” This merchandise was classified for duty at the rate; of 00 per cent, ad valorem, as embroideries or articles embroidered by machinery, under the provision for “laces * 15 * embroideries * * * and articles embroidered by hand or machinery, * * * all of the above-named articles, composed of * * * cotton or other vegetable fibre, or of which these substanc.es or either of them or a mixture of any of them is the component material of chief value, not specially provided for in this act,” contained in paragraph 373 (Schedule J) of the tariff act of October 1, 1890, (26 Stat. 594,) and duty at that rate was exacted thereon by (ho collector of customs at that port.</p> <p>Against this classification and this exaction the importers duly protested, claiming that this merchandise was not in fact embroidered, and was not known "commercially as embroideries; that it was dutiable at the rate of 4b por cent, ad valorem, as manufactures of cotton, -under the provision for “all manufactures of cotton not especially provided for in this act,” contained in paragraph 355 (Schedule I) of the same tariff act, (26 Stat. 593;) that, if not so dutiable, then that it was dutiable as cotton cloths bleached, colored, etc., according to ihe number of “threads to the square inch, counting the warp and filling,” and the value per square yard, at the respective rates of duty provided for such cloths in paragraphs 34A-348, inclusive, (Schedule I,) of the same 1,a,riff act, (26 Stat.. 591, 592.) Upon the receipt of the importers' protests the collector, pursuant to section 34 of the customs administrative act of June 10, 3890, (26 Stat. 337,) transmitted the invoices of this merchandise, and all the papers and exhibits connected therewith, to a board of three United States general appraisers on duty at that port. The hoard of general appraisers, having examined the ease thus submitted, found, among other things, (1) that this merchandise was not embroideries, or articles embroidered; that its plain or unornamented portions contained exceeding 100, and not exceeding 150, threads to the square inch, counting the warp raid tlio filling, but that this merchandise, not being homogeneous, in that the number of threads in the part of this merchandise containing the dots, spots, sprigs, or other figures was greater than the number of threads in its plain or unornamented portions, was not, under the decision in the case of Robertson v. Hodden, 40 Fed. Rep. 322, countable cotton cloths, within the intent of the aforesaid paragraphs 344-348, inclusive; and the board of general appraisers decided that this merchandise was dutiable at the rate of 40 per cent, ad valorem, as manufactures of cotton not specially provided Cor under the provisions for such manufactures contained in the aforesaid paragraph 355. as first claimed in the importers’ protests.</p> <p>The collector, being dissatisfied with this decision, applied, pursuant to section 15 of the customs administrative act, to the United States circuit court for the southern district, of New York for a review of the questions of law and fact Involved therein. In compliance with an order granted upon this application, the board of general appraisers made their return to the said circuit court, and thereafter a large mass of evidence was taken in behalf of the collector and in behalf of the importers.</p> <p>From the return and the evidence in the case, in addition to the facts already set forth, it appeared Hint there was a resemblance to embroidery in the dots, spots, sprigs, or otoer figures on this merchandise; that, according to the testimony of the great majority of the witnesses in this case, embroidery, as generally known to trade and commerce, was an ornamentation added by means of a needle or needles directed by hand or machinery to a cloth or fabric after the completion of the cloth or fabric, and articles embroidered, as so known to trade and commerce, were articles that had been ornamented by means of a needle or needles so directed; that as far hack as February 1, 1857, the treasury department, in its General Regulation issued at that date, (page 565,) under the head of “Embroidery,” promulgated the following definition: “The term tamboured or embroidered * .* * can only be properly and safely applied to those fabrics * * * figured or ornamented by the employment of the needle whether directed by the band or by machinery in the loom or frame; and consequently manufactures * * * figured in the loom or machine which weaves the fabric, as the texture is formed, without the employment of the needle either by hand or mechanical agency are not to be considered as * * * liable to duty * * * as tamboured or embroidered;” that this merchandise was a woven fabric completed in the loom as it appeared in the market, — that is to say, the dots, spots, sprigs, or such other figures that it contained, were made in the cloth, in the loom, simultaneously with the manufacture of the cloth, by means of bobbins which operated at such times, while the shuttle was weaving the cloth, as the design or pattern of the merchandise required the production of such figures, and were not made with a needle or needles directed by hand or machinery; and that, according to the testimony of the great majority of the witnesses in the ease, this merchandise was not known to trade and commerce as embroideries, or as articles embroidered.</p> <p>The evidence further showed that the warp of this merchandise and of other cotton cloths was the threads thereof running continuously from end to end, and the filling, the threads thereof running continuously from side to side, or from selvidge to selvidge; that the threads of the dots, spots, sprigs, or other figures on this merchandise, were not part of either the warp or filling, but were additional to the filling; and that this merchandise contained exceeding 100 threads, and not exceeding T50 threads, to the square inch, counting the warp and filling, and was valued at over 10 cents per square yard. Paragraph 346 (Schedule I) of the aforesaid tariff act (26 Stat. 591) levies a duty of 40 per cent, ad valorem on “all cotton cloth, exceeding one hundred and not exceeding one hundred and fifty threads to the square inch, counting the warp and filling, * * * bleached, valued at over ten cents per square yard.”</p> <p>Contended that this merchandise was dutiable as embroideries, or as articles embroidered, under said paragraph 373, but, if not so dutiable, then that it was dutiable as countable cotton cloths, under said paragraph 346.</p>

<p>At Law. Motion to dismiss, for want of jurisdiction, an a,ppeal talcen by the collector of customs from a decision of a board of United States general appraisers.</p> <p>One A. Klingenherg imported from Austria-Ilmigary into the United States, a,t the port oí New York, certain merchandise, hy the Bohemia, and hy the llugia. The merchandise imported hy the Bohemia was shipped from various places in Bohemia. The invoice covering this merchandise was consulated at Prague, Bohemia, July 6, 1892. Tlie shipment of this merchandise hy vessel to tlio United States was made from Hamburg, Germany, July 7, 1892, and this merchandise was entered for consumption at the port of New York July 23, 1892. The merchandise imported hy the llugia was also shipped from various places in Bohemia. The invoice covering this merchandise was consulated at Prague, Bohemia, July 9, 1892. The shipment of this merchandise hy vessel to the United States was made from Hamburg, Germany, July 10, 3892, and this merchandise was entered for consumption at the port of New York July 26, 1892. The invoices of the merchandise of both these importations set out its value in paper florins of Austria-Hungary, hut were not accompanied with consular certificates stating- depreciation in value, per paper florin, from that of the gold florin, which (the gold florin) the secretary of the treasury, in his instructions to officers of the customs, issued August 3,, 3892, (¡6 33,091,) declared was the only actual standard of value of that country. The secretary, in these instnictions, directed that, in the absence of such certificates of depreciation, these officers should, in determining the value of all imported foreign merchandise, take the value of a paper florin at 80.482, which sum of 80.482, under the provisions of section 52 of the tariff act of October 3, 1890, (26 Stat. 624,) had been estimated hy the director of the mint, and on July 1, 1892, (S 13,003,) proclaimed hy him (the secretary) to he the value of the gold florin. The collector of customs at that port, the local appraiser having returned the invoice (and entered) amounts of these paper florins as the value in such florins of this merchandise, thereafter converted these amounts of paper florins info United States money of account, at tlie rate of 80.482 per paper florin, and on the amount of such money of account, so obtained, as the dutiable values of this merchandise, exacted duties of the importer according to the classifications, and at the rates, provided hy law. Against the exaction of duties on any amount of such money of account in excess of the amount thereof to he obtained hy converting into such money the aforesaid amounts of these paper florins at the rate of 80.32, the importer duly protested, claiming- that in estimating the value of the Austrian florin, tlie currency in which the invoices of this merchandise were made out, the collector should have adopted the value of the standard currency of Austria, viz. the silver florin, as hist — July 1, 1892 — (S 13,003) proclaimed hy the secretary of the treasury, (80.32,) or the actual value of the Austrian paper florin, and that the collector had no right to adopt the (then) proclaimed value of the gold florin (80 482) in estimating duties, because this merchandise was not purchased in gold florins, the invoices thereof were not expressed in gold florins, and gold was not the standard currency in Austria-Hungary.</p> <p>Upon the receipt of this protest the collector, pursuant to section 14 of the customs administrative act of June 10, 1800, (26 Stat. 137,) transmitted the invoices of this merchandise, and all the papers and exhibits connected therewith, to a board of three United States general appraisers on duty at that port. The board of general appraisers, upon the case thus submitted, and upon evidence taken by it, found, among other facts: (1) That the invoice value of this merchandise was. given in paper florins of Austria-Hungary. (2) That the director of the mint estimated, and the secretary of the treasury proclaimed, on the 1st of July, 1892, (S 13,003,) the value of the standard coin of Austria-Hungary, the silver florin, expressed in the money of account of the United States, to be 32 cents, and that the secretary’s proclamation of that date contained the additional information that the value of the gold florin (not the standard coin) was $0,482; that silver was the nominal standard; and that páper was the actual standard, the depreciation of which was measured by the gold standard. (3) That the value of the paper florin was equal to, or greater than, the value of the silver florin, the standard coin of Austria-Hungary, and that this merchandise was not purchased in a depreciated currency. (4) That section 52 of the aforesaid tariff act provides that the value of the standard coins in circulation of the various nations of the world shall be estimated quarterly, etc., and that the standard coin of Austria-Hungary, as proclaimed by the director of the mint and by the secretary of the treasury, July 1, 1892, (S 13,003,) was the silver florin in respect to which the paper florin was not a depreciated currency.</p> <p>Upon the foregoing facts the board of general appraisers sustained the protest of the importers, and authorized the reliquidation of the entries of this merchandise in accordance with the claim made therein, — that the value of the paper florins in which the merchandise was invoiced should have been taken to be $0.32 per florin. Under such reliquidaüon, both the classification of this merchandise would be the same as that made, and the rate of fluty leviable thereon would be the same as that levied, by the collector. The collector, being dissatisfied with the decision of the board of general appraisers, applied by petition, and without notice to the importer, to the United States circuit court for the southern district of New York for a review of the questions of law and fact involved therein, under that part of section 15 of the customs administrative act which provides “that if the owner, importer, consignee, or agent of any imported merchandise, or the collector, or the secretary of the treasury, shall be dissatisfied with the decision of the board of general appraisers, as provided for in section fourteenth of this act, ns to the construction ol' the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, they or either of them, may, within thirty days next after such decision, and not afterwards, apply to the circuit court of the United States within the district in which the matter arises, for a review of the questions of law and fact involved in such decision.”</p> <p>In compliance with an order granted upon such application, the board of general- appraisers made their return to the said circuit court. Thereafter, upon the aforesaid petition, order, and return, the importer moved the circuit court for a final judgment or decree dismissing the appeal of the collector from the decision of the board of general appraisers, on the ground that, under section 15 of the aforesaid customs administrative act, the circuit court had no jurisdiction to entertain or decide such appeal; there being involved' in the decision of the board of general appraisers no question respecting the classification of this merchandise, or the rate of duty leviable thereon, but only a question respecting the value of the florin in which the same was invoiced.</p>

<p>At Law. Appeal by importer from a decision of the board of United States general appraisers.</p> <p>One John D. Duncan, doing business under the. name of John Duncan's Hons, imported on April 16, 1891, by the Majestic, from a foreign country into the United States, at the port of New York, certain so-called “sugar wafers.” These wafers were classified for duly as nonenumerated manufactured articles under the provision for such articles contained in section 4 of the tariff act of October 1, 1890. (26 Stat. 613,) and duty at the rate of 20 per cent, ad valorem, the rate specified for such articles by ilmt section, was exacted thereon by the collector of customs of that port. Against this classification and this exaction the importer duly protested, claiming that these wafers were free of duty, as “wafers unmedicaied,” under the provision for such wafers contained in paragraph 750 (free list) of ilie same tariff act, (26 Stat. 610.) Upon the receipt of this protest the collector, pursuant to section 14 of the customs administrative act of June 10, 1890, (20 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 this port.</p> <p>The board of general appraisers, having taken evidence, overruled the protest of the importer, and affirmed the classification and the exaction made by the collector. The importer being dissatisfied with the decision of the hoard of general appraisers, applied, pursuant to section 15 of the customs administrative act, to the United States circuit court for the southern district of New 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 its return to the circuit court, and thereafter further evidence was taken in that court.</p> <p>Prom the evidence accompanying this return, and from the further evidence taken in the circuit court, it appeared that these articles in suit were made of flour, sugar, milk, and eggs, and -wore flavored with vanilla extract. That they were used exclusively as articles of table food, being of a delicate and luxurious kind; were made only by biscuit makers, and were classed in the line of biscuits. That they were known in the trade as “sugar wafers,” or, inore specifically, as “vanilla sugar wafers,” the word “vanilla” indicating that (hoy were flavored with vanilla extract; and that, while they contained no element of medicinal material, being in fact unmodicated, they were never known in trade and commerce as “wafers unmedicatod” or “unmedicatod wafers.” That there were articles known among druggists and physicians as “medicinal wafers,” which consisted of a thin wafer of wheat flour, were brittle when dry, but became flexible and plastic when dipped in water, and which were used to envelop nauseous medicines when administered to persons. That there were articles made from the same inaferiáis, and similar in shape, known as wafers, which were used for sacramental purposes. That there were other articles made from the same materials, and in thin sheets, known to confectioners and bakers. as wafers, and used by confectioners to prevent sticky candies from adhering to each other, or to anything with which they might come in contract, and by bakers as a foundation on which cakes and macaroons were placed and baked; and that there were still other articles known as wafers, and used in sealing letters and other documents. That these medicinal wafers, these sacramental wafers, these confectioners’ and bakers’ wafers, and these sealing wafers were all in fact unmedicated, though neither variety of these wafers was known to trade and commerce as “wafers unmedicated” or “unmedicated wafers.” That the term “wafers unmedicated” or “unmedicated wafers” was not a trade or commercial term; and that there were articles containing medicines or supposed medicines, and used for medicinal purposes, that were known to druggists as “medicated wafers,” such as cough wafers, bronchial wafers, worm wafers, and other wafers.</p>

At Law. Action by Robert Vom Cleff and others against Daniel Magone, collector of the port of New York, to recover duties paid under protest. Verdict was given for defendant.

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

<p>Application by Sidney S. Pridgeon for a writ of habeas corpus,</p>

<p>At Law. Indictment against Prioleau Williams for breaking into a building used in part as a post office, with intent to commit larceny therein. On demurrer to tbe indictment.</p>

<p>Chinese — Appeal fbom Commissionek’s Decision.</p> <p>The right of appeal to a district court, given by Act Sept. 13, 1888, § 13, (23 Stat. 470,) to a Chinese person adjudged by a United States commissioner to lie unlawfully in tbe United States, is not taken away by tbe “Geary Act” of May 5, 1892, § 3, (27 Stat 23.)</p>

Proceeding by the United States against Wong Dep Ken, a Chinese person alleged to he unlawfully in the United States. The commissioner sentenced defendant to imprisonment at hard labor and deportation. Defendant appealed to this court. A motion to dismiss the appeal was denied. 57 Fed. Rep. 203. The appeal is now on final hearing. Decree sentencing defendant to deportation only.

<p>In Equity. Suit by Hi chard W. Bainbridge and others against the Kitchell Embossing Company for infringement of a patent.</p>

<p>At Law. Action by William A. Brickill and others against the city of Hartford and others for infringement of a patent. A demurrer to the complaint was heretofore overruled. 19 Fed. Rep. 372. The case is now heard on motions to strike out certain pleas, and on demurrer to other pleas.</p>

In Equity. Suit by the Monitor Manufacturing Company against the Zimmerman Manufacturing Company, John W. Baxter, Franklin T. Zimmerman, and Elias Zimmerman, to restrain the alleged infringement of three letters patent. Defendants obtained a decree. Complainant appeals. The opinion of the circuit court, filed September 28, 1891, was as follows: Suit for infringement of three patents: The first one in order is No. 25S,-352, dated May 23, 1882.

In Equity. Bill by Frank L. Palmer and others against Crefehl Mills and others for infringement of patents. On motion for preliminary injunction. Order allowing injunction unless bond be given.

<p>1. Patents for Inventions — Infringement—Prior Adjudications.</p> <p>In a suit for infringement of a patent, wliere it appears that tlie courts of other circuits have already sustained the validity of the patent as against all the defenses now made save that, of anticipation by reason of certain patents not before in evidence, and have also found that defendants infringed, the court will accept those decisions, and examine only the anticipation alleged.</p> <p>2. Same — Validity—Anticipation—Paper Boxes.</p> <p>Letters patent No. 171,860, issued January 4, 1876, to Reuben Ritter for an improvement in paper boxes, -were not anticipated by prior inventions, and. are valid.</p>

In Admiralty. Libel by Frederick S. Washington against the steamship Kong Frode (the Norwegian Steamship Company of the South, claimant) to recover for services rendered as a stevedore.

In Admiralty. Libel by Samuel P. Wilson, master of tlie schooner Kate Y. Aitken, against the Charleston Pilots’ Association and others, for negligence resulting in the loss of the schooner while in the charge of one of respondents’ agents. Exceptions to the libel were overruled. 55 Fed. Bep. 1000.

<p>In Admiralty. Libels by S. B. Butler, John F. Riley, William Johnson & Co., John Conroy & Co., the Steinmyer Lumber Company, Frederick Drews, and others against the steamer Julia for seamen’s wages, and for materials. The vessel was sold, and seamen’s wages and costs paid. Heard on exceptions by Butler and Riley to the master’s report.</p>

In Admiralty. Libel by John D. Milburn, owner of the steamship Tiverton, against 35,000 boxes of oranges and lemons, Tlveips Bros. & Co., claimants, for demurrage. The district court rendered a decree for libelant, but disallowed a claim for interest. Both, parties appeal.

<p>In Admiralty. In the matter of the petition of the Myers Excursion & Navigation Company for limitation of liability as owners of the barge Republic.</p>

<p>L Limitation of Liability — Giving of Bond — Stipulation for Interest.</p> <p>In a proceeding for limitation of liability, where a bond is taken for the appraised value of the vessel, pursuant to admiralty rule 54, it is proper for the court to require that such bond shall include a stipulation for interest from the date thereof.</p> <p>2. Same — Costs.</p> <p>Where, in a proceeding for limitation of liability, the, owners of the vessel unsuccessfully litigate the question of any liability on her part, they are chargeable wth the costs of such litigation. The Wanata, 95 U. S. 600, followed.</p> <p>,3. Estoppel — Payment of Insurance Policy — Subrogation — Exception in Policy — Effect of.</p> <p>An insurance compauy having paid a loss caused by the stranding of a lighter in charge of a tug, through the negligence of the latter, took an assignment of the claim of the insured, and libeled the tug for the loss. Held, that the insurance company was not estopped from alleging negligence on the part of the tug because of an exemption in its policy against liability for all loss arising from want of ordinary caro and skill in navigating the insured vessel.</p> <p>4. Same.</p> <p>Nor was the company estopped because of a statement in a receipt given by the assured that, at the time of loss, the lighter was in charge of the tug, nor because of a protest by the master of the tug. among the proofs of loss, stating that the stranding was due solely to the extraordinary and irresistible force of title flood tide, and ought not to bo attributed to any default in navigation.</p>

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

<p>1. Admirai/ty — Practice—Assignment to Proctor Out of Proceeds — Lien.</p> <p>An assignment by the libelant in an admiralty case, who has reasonable assurance that he is entitled to recover a certain amount, of a definite sum to liis counsel for professional services, to he paid out of any recovery that might be had, is sufficiently certain, and on sufficient consideration, to support a lien on the proceeds. Kendall v. U. S., 7 Wail. 113, distinguished.</p> <p>2. Same — Priority.</p> <p>Tlie lien of such an assignment has priority over the claim of a judgment, creditor in a state court, who subsequently files Ms intervening petition in admiralty, after the court has decided that libelant is entitled to recover some amount on his libel.</p>

<p>Dout.isiox — Stkaji and Said — Conflicting Evidence.</p> <p>The steamer C., on a course S. by E. on the opeu sea, sighted the schooner M., sailing on a course N. by W. Vz W. On behalf of the steamer, her second officer testified that the schooner was sighted at 4:20 A. M., two miles distant, without lights; that no change of course hy the steamer seemed necessary; that when next noticed, 10 minutes later, about two steamer lengths from the C., the schooner suddenly altered her ' course to N. E., across the steamer’s hows, whereupon the O. put her helm hard a-port, turning about 20 degrees, and reversed her engines at full speed. Testimony on behalf of the schooner was very full, to the effect that both her lights were in good order and burning; that the steamer’s white light was first seen about half a point on the starboard bow; that both colored lights were seen at a distance” of two miles; that the schooner’s course was then changed to N. N. W., so as to show only the starboard light; that the steamer from this time was sheering about, showing each colored light alternately; that the schooner's mate, becoming alarmed,. summoned the captain on deck, and at the distance' of one-quarter of a mile fired a shotgun, whereupon the steamer suddenly changed her course to port, and the vessels collided. The port bow of the steamer struck the port quarter of the schooner at an angle of five points. Relé, that the preponderance of evidence showed the steamer alone was in fault.</p>

<p>In Admiralty. Libel to enforce lien for breach of contract. Decree for libelants.</p>

<p>In Admiralty. Libel by Pell W. Foster against the O. E. Conrad and the Rhoda and Charlie to enforce lien for breach of contract.</p>

<p>1. Attorney and Client — Fees—Lien on Judgment.</p> <p>Where the amount due on a judgment recovered for the purchase price of property sold by plaintiff to defendant is paid into a court of equity for distribution, plaintiff’s attorneys are entitled to receive therefrom the money dne them for meritorious services rendered to plaintiff in other ' suits growing out of such purchase, where such services were rendered with the expectation that they would he paid for out of the proceeds of such judgment. 51 Fed. Rep. 693, affirmed.</p> <p>8. Partnership — What Constitutes — Evidence.</p> <p>Proof that two men owned a ranch and herd of cattle jointly, that they managed the ranch together, rendered accounts in their joint names, and referred to themselves as a company, is sufficient to show that they were copartners, although they had no articles or agreement of copartnership. 51 Fed. Rep. 693, affirmed.</p> <p>B. Same — Settlement between Partners — Rights op Creditors.</p> <p>A settlement between copartners which determines their respective interests in a certain partnership fund is conclusive as to the rights of their individual creditors to that fund. 51 Fed. Rep. 693, affirmed.</p> <p>i. Same — V acating Settlement —</p> <p>Evidence.</p> <p>A settlement between copartners, who are both capable men, of • a business amounting to hundreds of thousands of dollars, and involving many items of account depending upon the memories of the co-partners, should not be opened at the instigation of their creditors, after the death of one of the copartners, even though there is a strong prima facie showing of mistake in the settlement. 51 Fed. Rep. 693, affirmed.</p> <p>5. Same — Right op Partner to Pledge Firm Property.</p> <p>One of two copartners cannot pledge the partnership property to secure his private debt, except to the extent of his interest therein. 51 Fed, Rep. 693, affirmed.</p> <p>5. Equity Pleading — Amendment.</p> <p>After the announcement of the final decision of the chancellor upon the merits of a case, it is proper to refuse to permit the pleadings to be amended, so as to meet objections which were raised at the hearing, two months before the decision was rendered, especially where such amendment would not affect the grounds on which the decision is based. 51 Fed. Rep. 693, affirmed.</p>

<p>1. Equity — Jurisdiction—Absolute Conveyance — Trust Arising upon Contemporaneous Agreement.</p> <p>Respondent, by a written agreement, in consideration of convesmnces to him of certain “mining locations,” promised to pay to complainants certain stock in a “mining pool.” Oral agreements between flic parties provided that respondent was to form the pool, but the conveyances were absolute on their face. Reid, that the facts created a 'trust, and equity had jurisdiction of a bill to enforce the delivery of the stock.</p> <p>2. Same — Sale op Trust Property — Proceeds Charged with the Trust.</p> <p>Equity jurisdiction was not defeated by the fact that respondent had disposed of the stock for cash. The equitable remedy would extend to</p> <p>' the liquidated and certain sum so received, although, in the state where the suit was brought, an action for money had and received lies for what is due in equity and good conscience.</p> <p>3. Same — Oral Agreement — Consideration.</p> <p>• Equity jurisdiction is not defeated in such a case by the fact that the '' trust agreement was oral, and without consideration, since the conveyances to respondent executed the verbal agreement in part, and were a sufficient consideration therefor.</p> <p>4. Same — Contemporaneous Oral and Written Agreements'. ■</p> <p>The fact that complainant alleges two contracts — one written, and absolute on its face, the other oral, and purporting to create a trust — will not defeat the jurisdiction of a court of equity io enforce the trust, when it appears that the two contracts were parts of the same transaction.</p> <p>5. Same — Laches—Express Trust.</p> <p>Lapse of time, unless exceptionally great, is no defense to a suit to enforce an express trust, when the acts charged against respondent amount to a complete breach of trust, and have been industriously and fraudulently concealed. Speidel v. Henrici, 7 Sup. Ct. Rep. 610, 120 U. S. 377, distinguished.</p>

<p>In Equity. Bill by William McG-eorge and others against the Big Stone Dap Improvement Company, praying an injunction and the appointment of receivers. A temporary injunction was granted, and provisional receivers appointed. The cause is now beard on bill and answer.</p>

<p>1. Public Lands — Grants in Aid of Bailways — Acts of Congress and Minnesota Legislature — Excessive Conveyance Voidable.</p> <p>Under the acts of congress granting lands to Minnesota to aid in the building of railways, and the acts of the territorial and state legislatures - granting such lauds to railway companies, the lands so granted were required to be selected from a territory coterminous with the railroad, and tiie governor of Minnesota had authority to make deeds of laud as fast as the roads were constructed. Held, .that such deeds conveying lands in advance of the point to which the road was actually constructed were not void, but only voidable.</p> <p>2. Same — Bevocation of Grant by Minnesota — Constitutional Law.</p> <p>The lands were held by Minnesota in trust only for the purpose of aiding in the construction of railways; and where the governor of the state erroneously conveyed to a railroad company certain lands lying beyond the point to which the road had been constructed, and several years thereafter elapsed without the construction of such road, it was the right and duty of the state legislature to declare such lands forfeited without merger or extinguishment, and to grant them anew for the same purpose, as was done by the act of .March 1, 1S77.</p> <p>3. Same — Second Grantee — Bight of Action — When Accrued — Act Minn. ,.>Maroh 1, 1877.</p> <p>Under Act Minn. March 1, 1877, declaring, forfeited to the state certain lands theretofore convejmd to railway companies, and granting such lands to another company, the second grantee, upon compliance with the conditions of the grant, was enabled to maintain an action to recover such lands or to quiet title thereto; but such right of action accrued only so , fast as the company constructed its road, and limitation and laches would run against it only from that date.</p> <p>4. Same — Inclusion of Forfeited Lands in Prior Mortgage.</p> <p>Under the acts of congress granting to Minnesota lands in aid of railways and tile acts of the legislature of Minnesota granting such lands to ■ railway companies, mortgages of the property of the grantee companies with “the lands appertaining to the roads” do not include lands erroneously conveyed to such grantees in excess of the amount warranted by said acts.</p>

In Equity. Bill by the Minneapolis, St. Paul & Sanlt Ste. Marie Railway Company against Samuel (t. Milner and others, constituting the Michigan state board of health, to restrain respondents from enforcing tbe state quarantine regulations. On motion for preliminary injunction.

<p>At Law. Action by the Bank of North America against Frederick K. Rindge to enforce the latter’s liability as stockholder of the Haddam State Bank. Heard on demurrer to the’ complaint.</p>

<p>Master an» Servant — Who ir a Vice Principa» — Raii.roa» Conductor.</p> <p>Rules of a railroad company imposing upon its conductors the care and management of switches used by them, and charging them with the responsibility of their proper handling and position while in such use, are such a delegation by the company of the duty which it owes to its employes as will render a conductor, in that1 connection, a vice principal; so as to charge the company with liability for the death of an engineer killed by reason of his engine running into an occupied side track, through a switch negligently left open and unguarded by the conductor of another train.</p>

At Law. Action by Winters and others against the Hub Mining Comp any and others to recover a balance due on a debt after foreclosure of a mortgage given as security therefor.

Recently, during the vacation of the senate, the president removed Levi E. Parsons, Jr., and A. R. Nininger, respectively district attorney and marshal for the northern district of Alabama, and issued commissions to Emmett O’Neal and J. Y. Musgrove as their successors.

<p>1. Insurance against Explosions — Construction of Policy.</p> <p>A steam boiler insurance company that had no power to insure against fire issued a policy insuring “against explosion and accident and against loss or damage resulting therefrom.” On the back of the policy was a, covenant that no claim should be made under the policy “for any loss or damage by fire resulting from any cause Whatever.” Edit, that the company was not liable for loss caused by fire.</p> <p>2. Same — Loss by Fire.</p> <p>A small fire broke out in the insured building, and continued for three days, though apparently extinguished each day. On the third day efforts to put out the fire resulted in bringing it in contact with a cloud of starch dust, which ignited and exploded, demolishing the «.building, which then burned up. Edil, that the insurance company was not liable, gince the explosion was merely an incident of the fire. 48 Fed. Rep. 198, reversed.</p>

<p>In. Admiralty. Libel by the Dalbeattie Steamship Company, limited, against H. St. Julian Card, doing business under name and style of Henry Card & Son, for breach of charter party. Decree for libelant.</p>

<p>In Admiralty. Libel by Japbet T. Booye, master of tbe schooner Ida C. Schoolcraft, against John O. L’Engle, owner of the tug B. L. Maybe, to recover for negligent towage. Decree for libelant.</p>

<p>1. Negligence — .Evidence — Leaving Hr.wily-Laden Lighter without ■Watchman.</p> <p>Libelants «ore owners of a lighter which ivas being loaded with sulphur alongside claimant’s ship, under order from tlie consignees to lake 300 tons. Jn answer to an inquiry the master of tlie lighter was informed that there was to be no night work that night, and about G f\ 31. the lightermen made the lighter fast alongside for tlie night, aud went homo, with the understanding that there was to lie no night work. In their absence the ship’s crew loaded the lighter to her full capacity, and at half past 9 they made her fast to the ship, and left her, without a watchman, exposed to tlie swells of passing boats, where she was found overturned the next morning. It was usual to have a night watchman on board ibis lighter, when heavily laden. By the bill of lading the sulphur was to be discharged into lighters furnished by the consignees, and was lo be taken day aud night as delivered by the ship. Held, that the ship was negligent in leaving the heavily-loaded lighter without a watchman during the night,</p> <p>2. Negligence— Proximate Cause.</p> <p>A heavily-laden lighter was left for the night, by a ship’s crew, securely fastened to tlie ship, but without a watchman, and was found'the,next morning, overturned, with all the lines fastening her to tlie ship broken. Held, that the very strong probability of the accident being caused by the absence of a watchman was sufficient to justify a decree against the ship.</p>

<p>Shipping — Cattle—Failure to Take Sufficient Fodder.</p> <p>A steamship carrying cattle sailed without taking on board all of the fodder furnished alongside for use of the cattle on the voyage. It apXieared that after the ship had left her dock, to take advantage of the tide, she remained in the stream seven hours, — long enough to have taken aboard the fodder left behind; also that the representative of the owner of the cattle made repeated demands on the agents of the simp before she sailed that the remaining bales be taken aboard, which were neglected. The bill of lading required the ship to supply “conveyance for necessary fodder.” The master maintained that ho relied on the representations of the drover in charge that there was fodder enough, which representations the drover denied. The drover had no authority to determine the amount to be taken, or to leave behind any that was supplied by the owners of the cattle. The cattle were without food for nearly 4S hours before arrival at Havre,, when a very slight amount was furnished them: and when they arrived at Paris, one or two days later, they had sustained a serious loss in weight and condition, for which damage this libel was filed. Held, that the ship was liable for the damage arising from insufficiency of food during the voyage and up to the landing of the cattle at Havre, but not for the loss through lack of food thereafter.</p>

<p>In Admiralty. Libel for damage to cargo.</p>

At Law. Action for personal injuries in the superior court of Floyd county, Ha., hy Robert L. Haire against the Rome Railroad Company, the Chattanooga, Rome & Columbus Railroad Company, and the Rome & Carrollton Construction Company. The last-named defendant removed the canse to this court. Heard on motion to remand.

In Equity. Bill by Emanuel Lehman and Meyer Lehman against the Provisional Municipality of Pensacola to enforce the conveyance of certain real property to complainants. Decree for complainants. Respondent ai>peals.

Statement by PARDEE, Circuit Judge: On the 14th of December, 1889, Mrs. Wilhelmina Hoffman, widow of Joseph Bourdette, filed her petition in the civil district court for the parish of Orleans, alleging “that she is the owner, and in possession, of a certain square of ground in the sixth district of this city, designated by the number 27, comprised within State, Bond, Ferdinand streets and the division line of Burtheville;" and further showing that the defendants (plaintiffs…

Statement by PARDEE,'Circuit Judge: This bill was brought by Holmes Ivory, complainant, appellant here, and A. S. Caldwell, Bolton Smith, and J. M. Judah, nominal complainants, in the circuit court of the United States for the eastern district of Texas, at Galveston, against Walter Kennedy, for himself, and as surviving partner of the ' firm of Walker & Kennedy, and as independent executor of the last will and testament of John F. Walker,'deceased, and against Sarah M.…

Statement by LOCKE, District Judge: This was a suit brought in the circuit court by Eugenia Kalinski, as beneficiary of Achille Kalinski, against the Supreme Lodge Knights of Pythias, upon a certificate of membership of the Endowment Rank of the Order of Knights of Pythias, certifying that he had received the rank of the order, and in consideration of certain payments, and the performance of certain conditions, his wife, the beneficiary, would be paid, upon his death, $3,000.

At Law. Action by J. Cuyas against Hudmon Bros. & Co. for breach of contract in failing to deliver cotton of a specified quality. Demurrers to certain pleas were sustained, and judgment given for plaintiff upon a verdict returned in his favor. Defendants bring error.

<p>1. Master and Servant — Personal Injuries — Defective Machinery — Instructions.</p> <p>In an action to recover damages for the death of a locomotive engineer, which was caused by the burning of a bridge alleged to have been set on fire by a locomotive of defective design, the court refused to charge that, if a person of ordinary care would not have foreseen that the use of engines of this type could reasonably have been expected to result in injury to deceased, then there could be no recovery. HeW, that there was no error in the refusal, for the instruction was too' narrow, in confining the reasonable expectation of injury to the deceased, alone, of all the company’s employes.</p> <p>2. Same — Assumption of Bisks — Instructions.</p> <p>It appearing that deceased had himself been driving an engine of the alleged defective design, it was error, in the absence of anything on the subject in the general charge, to refuse an instruction that, when deceased took employment as an engineer, he assumed to understand an engine, and knew the dangers attending its use, and was presumed to have taken the risk of being injured by reason of any peculiarity in the construction of the engines in use by defendant.</p> <p>3. Same.</p> <p>It appearing that the company had no watchman or track walker at this bridge at night, and there being evidence tending to show that deceased was aware of the fact, it was error to refuse a charge that if he knew this he assumed the risk of being injured by reason thereof.</p> <p>4. Trial — Instructions—Refusal of Bequests.</p> <p>There is no error in refusing a requested charge, when the court has al- ' ' ready given instructions which are, in substance, the same as that requested.</p>

<p>1. Deceit — Sale of Business Enterprise — Concealment of Profits.</p> <p>Concealment by the owner of a business enterprise of a decline in its profits between the dato of bis agreement to sell and the signing of the contract of sale is actionable, when the purchaser has no opportunity of discovering the declino, and has agreed to buy on the faith of representations as to the prior rate of profit, having told the seller that he would not buy if there had been a decline.</p> <p>3. Same — Pleading.</p> <p>In an action of deceit, an objection that plaintiff should have alleged a fraudulent concealment, instead of a fraudulent representation, will not be hoard for the first time on writ of error.</p> <p>3. Same — Damages—Pleading.</p> <p>In an action for false representations made to the purchaser of a business enterprise, the charges of accountants employed by him to examine the hooks, and the fees of solicitors employed to organize a corporation to take over the business, must he specially alleged.</p> <p>4. Same.</p> <p>. „ , The profits which the purchaser of a business enterprise would ha.ve made out of the transfer thereof to a corporation to be organized for the purpose of taking it are too uncertain to be recoverable by the purchaser in an action for fraudulent representations, inducing the purchase, although a syndicate had promised to underwrite the capital of the corporation, thereby, in effect, promising to subscribe all the capital not contributed by others, but had not entered Into any definite or obligatory contract with the purchaser. r</p> <p>5. Excessive Damages — Kicmittituk.</p> <p>Where plaintiff, upon the findings of the jury, is entitled to recover a specific sum, but evidence of damage in a larger sum has erroneously been admitted, and judgment given for such largor sum, the plaintiff may, by filing a remittitur as to the excess, obtain an affirmance of the judgment.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Yew York.</p> <p>At Law. Action by Willard F. Bobison against William Y. McCracken and others for breach of a railway construction contract. Judgment was given for plaintiff. Defendants bring error.</p>

At Law. Action by Thomas GL Rogers against the Texas & Pacific Railway Company to recover damages for personal injuries sustained while in its employment. There was a verdict for plaintiff, and, from the judgment entered thereon, defendant brings error.

<p>At Law.. On demurrer to the indictment, which was drawn under Rev. St. U. S. 5209, providing as follows:</p> <p>“Every president, director, cashier, toller, clerk, or agent of any association, who makes any false entry in any hook, report, or statement of the association, with intent to injure or defraud the association, or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association, and every person who. with like intent, aids or abets any officer, clerk, or agent in any violation of this section, shall he deemed guilty of a misdemeanor, and shall he imprisoned not less than five years nor more than ten.”</p>

<p>At Law. Indictment of Joseph W. Work for violating tho national banking laws.</p>

<p>Elections — Offenses against United States Laws — Indictment—Scienter, An indictment for obstructing United States officers in the discharge of their duties, hy ejecting them from the polls where an election for a member of congress is being held, is fatally defective, when it does not charge a scienter.</p>

<p>Customs Duties — -Tariff Act of March 3, 1883 — Paper Screens — Classification</p> <p>Screens imported during the year 1888, which were composed of paper, as their component material of chief value, and of wood and metal, which were used on the floors of dwelling houses, or other places, to intercept heat, light, or moving air, or to conceal portions of rooms or objects, and which were then known in trade and commerce of this country as “paper screens,” were not dutiable at the rate of 40 per cent, ad valorem, as screens, under the provision for "all other mats not exclusively of vegetable material, screens, hassocks, and rugs,” contained in (paragraph 378, Tariff Ind., New) Schedule K (entitled “Wools and Woolens”) of the tariff act of March 3, 1883, (22 Stat. 510,) but were dutiable at the rate of 15 per cent, ad valorem, under the provision for “Paper, manufactures of, or of which paper is a component material, not specially enumerated or provided for in this act,” contained in (paragraph 388, Tariff Ind., New) Schedule M (entitled “Books, Papers, etc.,”) of the same tariff act, (22 Stat. 510.)</p>

<p>Patents for Inventions — Anticipation—Bed Springs.</p> <p>Claim 2 of letters patent No. 405,821, issued June 25, 1889, to Bonnell ¡ •&. Lambing, covers “a spring bed bottom formed in sections, and baying tlie top whirls of springs at the adjacent ends of the sections united by a spiral wire wound loosely around them, so as to allow the sections to '■ fold, and yet afford a yielding connection.” Held, that the claim was anticipated by the prior constructions known as “Lace-Web Spring” and the “Maier Bed.”</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. ,J</p> <p>In Admiralty. Libel by John P. Hawkins against the yacht Lnrline, (Wiiliam B. Wetmore, claimant.) There was a decree for libelant, and the claimant appeals. Heard on motion of the claimant to strike from the files certain depositions taken by libelant on appeal.</p> <p>An application subsequently made to the supreme court for a writ of mandamus to' compel the judges of this court to receive and consider these depositions was denied. See 13 Sup. Ct. Bep. 512.</p>

<p>Admiralty — Tender—Costs.</p> <p>A libel for salvage having been filed by the owners of a steam tug in their behalf only, claimants paid into court the full amount claimed by libelants, with accrued costs. Held, that libelants, thereafter failing to establish a right to more than the amount so paid, were properly charged with costs accruing subsequent to such payment. 47 Fed. Rep. 664, affirmed.</p>

In Admiralty. Libel by Williams against the steamship Exe for damage to cargo. The district court rendered a decree for libelant. ' 52 Fed. Rep. 155. Respondent appeals.

<p>1. Shipping — Loss ob Cargo — Cattle Ship — Jettison—Necessity.</p> <p>One hundred and twenty-nine cattle, out o£ a shipment of 165, on board the stoamsdiip Hugo, were thrown or driven overboard by the officers of the ship, in bad weather, during- a voyage from New York to Liverpool. The officers of Uie ship claimed that the weather was so violent that the sacrifice was necessary to save the ship. This was denied by the cattlemen on board. On all the evidence the court found that the necessity for clearing the decks of the cattle was exaggerated hy the officers of tlxe •ship, and accordingly held that file vessel was liable for the loss of all sound cattle, or such as were not, fatally wounded or maimed at Lie time they were cast overboard, or were negligently or designedly suffered to go overboard through the open gangways of the ship.</p> <p>2. Bill os Lading — Stipulations — Exemption prom Negligence — English Law.</p> <p>A clause in the bill of lading- providing that the cattle “were to be at owner’s risk; steamer not to be held accountable for accident to, or mortality of the animals, from whatever cause arising, * * * or negligence of the shipowner,” — was held invalid to protect the ship in this case, as was also the further stipulation which would substitute the British law for our own.</p>

In Admiralty. Libels by Jose Bregaro and by tbe American Sugar Refining Company against tbe Steamship Centurion and tbe New York & Porto Bico Steamship Company to recover for damage to cargo. Decrees for libelants.

<p>Removal op Causes — Local Phejudioe — Citizenship.</p> <p>Under the corrected .judiciary act of March 3, 1887, (24 Slat. 552,) a suit cannot be removed from a state to a federal court on the ground of local prejudice, when plaintiffs are not all citizens of the state in which the snit is brought, and are yet jointly interested in the canse of action against the nonresident defendant who applies for removal. Young v. Parker, 10 Sup. Ot. Hep. 75, 132 U. S. 267, followed.</p>

<p>1. Federal Courts — Circuit Court of Appeals — Affirmance by Divided Court.</p> <p>Where one judge of the circuit court of appeals is disqualified, and the other two are divided in opinion, the decision below must he affirmed.</p> <p>2. Same — Practice— Bbargument.</p> <p>In such case, where the cause is one in which the judgment of the circuit court of appeals is not “final,” it is not necessary for that court to order a reargument before a full bench, nor propeb, to certify questions to the supreme court for instructions. '</p>

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

In Equity. Bill by the United States against the Oregon & California Railroad Company and the Oregon Central Railroad Company to enforce a forfeiture of certain lands. Respondents filed a cross bill praying that their title he quieted. Decree for complainants.

In Equity. Suit by the Puget Sound National Bank of Seattle for an injunction to prevent threatened proceedings to enforce - payment by said bank of state and county taxes for the year 1891 npon its capital stock. Cited, as sustaining the validity of the tax, the following decisions of the United States supreme court: Hepburn v. School Directors, 23 Wall. 480: Mercantile Bank v. City of New York, 7 Sup. Ct. Rep. 826, 121 U. S. 138; Talbott v. Silver Bow Co., 11 Sup. Ct.

In Equity. Bill by Emily A. Corliss and others against the E. W. Walker Company and others to restrain respondents from publishing a biography and selling a picture of George H. Corliss.

In Equity. Petition by Frederick W. Huidekoper and Reuben Foster, receivers of tbe Richmond & Danville Railroad Company, appointed in tbe suit of William P. Clyde and others against said company and others, for relief against tbe action of D’Arcy P. Duncan, Henry R. Thomas, and Jefferson A. Sligh, railroad commissioners for the state of South Carolina, in changing freight transportation rales, and establishing new rates.

In Equity. Petitions by Hanes & Porch and by A. R. Colburn, interveners, against John McHulta, receiver of the Wabash, St. Louis & Pacific Railway Company, appointed in an action by the Central Trust Company of New York against said railway company, claiming damages for injuries sustained by a flood caused bv an alleged insufficient culvert.

In Emir to ilie Circuit Court of the United States for the Eastern Division of the District of Washington. At Law. Action by Paul A. English and Arthur F. English, copartners, against the Spokane Commission Company, for payments alleged to he due upon a contract of sale. Defendant alleged a breach, of warranty, and set up a counterclaim. Judgment was given for plaintiffs, but a motion for a new trial was granted, (48 Fed.

Suit by Charles Shapera against Travis F. Jones and W. H. Jones upon a promissory note. Judgment for plaintiff. Defendants bring error.

<p>At Law. Action by Marcus IT. Darrow and others against the H. R. Horne Produce Company upon a contract for a sale of butter.</p>

At Law. Action by Adam T. Sutherland, assignee óf Van Winkle & Co., against David Round and Louis Round, to recover damages for breach of warranty in the sale of a chain. Judgment for defendants. Plaintiff brings error. Statement by TAFT, Circuit Judge: This was a writ of error to reverse a judgment for defendant in the circuit court of the United States for the northern district of Ohio, eastern division.

<p>1. Telegraph Companies — Failure to Deliver Message — Rights of Sendee.</p> <p>A person to whom a telegraphic message is directed cannot recover against the company for failure to deliver the same, when he is no party to the contract under which it is sent, and when the company is not informed, either by the terms of the message or otherwise, that the contract is for iiis benefit.</p> <p>2. Same — Damages--Mental Buffering.</p> <p>Damages cannot be recovered from a telegraph company for mental suffering- resulting from simple negligence in the prompt delivery of a message announcing the dangerous illness of a relative, as such damages are too uncertain, remote, and speculative.</p> <p>3. Federal Courts — Evehot of State Decisions.</p> <p>The question of the liability of a telegraph company for a failure to promptly deliver a message is one of general law, as to which, in the absence of statutory provisions, the decisions of the state courts are not controlling upon the federal courts. Railroad Co. v. Baugh, 13 Sup. Ct. Rep. 914, applied.</p>

<p>1. Carriers -Railroads — Duty op Passengers.</p> <p>It. is the duty of a person about to take passage on a railroad train to inform himself when, whore, and liow he can stop, under the regulations of the railroad company; ¡mil if he makes a mistake, not. induced by the company, against which ordinary care in this respect would have protected him, he has no remedy against the company for the consequences. Beauchamp v. Railway C-o., 56 Tex. 239, followed.</p> <p>2. Same — Duty op Conductor.</p> <p>Where a train not scheduled to stop at a certain station is hoarded by a person holding a ticket for such station, without informing himself as to whether he can stop there or not, the mere failure of the conductor to inform him, at the first opportunity, that the train cannot stop there, so that he can exercise the right to leave at any station he chooses, before reaching his destination, is not a breach of the company’s obligation, so as to render it liable for damages caused to the passenger by being put off'at the last preceding station, where he is subjected to great inconvenience and exposure. Locke, District Judge, dissenting.</p> <p>3. Same — Failure to Stop at Station.</p> <p>A person who hoards a train, with a ticket to a given station, is entitled to he put oil at that station, if the train usually stops there to receive or discharge passengers.</p> <p>4. Same — Right op Company to Stop Trains Only at Certain Stations.</p> <p>In the absence of statutory regulations, a railroad company may adopt regulations that certain passenger trains, running regularly on its road, shall stop only at designated places, and it is the duty of an intending passenger to inform himself of such regulations.</p>

<p>Petition by 1). H. Chamberlain, receiver of the South Carolina Railway Company, appointed in the suit of Frederick W. Bound against said company and others, and rule thereon to show cause why C. B. Swan, a constable, should not be attached for contempt, in taking a package of liquor from the custody of the petitioner. Upon demurrer to the petition, supported by answer, the rule was made absolute, and the respondent adjudged guilty of contempt, .</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>In Equity. Bill by Gilman Waite against Charles H. Robinson and others for infringement of letters patent No. 329,805, for an improvement in chairs, issued November 5, 1885, to William Bóscawen, and by him assigned to Daniel L. Thompson, Charles A. Perley, and Gilman Waite, for an improvement in chairs. From a decree dismissing the bill, (52 Fed. Rep. 295,) complainant appeals.</p>

Suit by the United States against Jens Moller and B. Adoue for violation of the act prohibiting the importation of laborers under contract. Judgment was given for plaintiff, as against defendant Moller, who now brings error. Statement by PARDEE, Circuit Judge: Tins suit was instiluted in the court below by filing petition as follows: “Your petitioner, tlie United States of America, hereinafter styled plaintiff, by and through Robert 10.

At Law. Petition by R J. Flinn for á writ of habeas corpus. Pending final hearing, the petitioner was discharged from custody, and, that fact being shown to the court, the petition was dismissed.

<p>1. Patents for Inventions — Typesetting Machine — Infringement.</p> <p>Letters patent Nos. 313,224 and 317,828, issued, respectively, March 3, 1885, and May 12, 1885, to Ottman Mergenthaler, for “improvements in machines for producing printing bars,” consisting in part of a combination of a series of independent matrices representing characters, holders or magazines for said matrices, finger keys representing the respective characters, intermediate mechanism to assemble the matrices, and a easting machine to co-operate with the assembled matrices, are for inventions of unusual merit, and, in view of the prior art, entitled to liberal construction, and are infringed by the Rogers machine, which, while in some respects an improvement, operates on the same principle, contains the same general features, and produces substantially the same results.</p> <p>2. Same — Fault in Original Machine.</p> <p>The fact that the machine, when first produced, failed to justify perfectly, which fault was remedied, and perfect justification produced by improved machines subsequently made, is no reason for denying relief to the original patentee.</p>

<p>In Admiralty. Libel by tbe United States against the steamer Haytian Republic for breach of the revenue laws. Heard on claim- , ant’s exceptions to the libel.</p>

<p>Towage — Negligence of Tug — Failure to Avoid Known Obstruction.</p> <p>A tug is guilty of negligence in running its tow upon an obstruction which competent and experienced pilots would have avoided. 48 Fed. Rep. ,917, affirmed.</p>

<p>Circuit Courts — Jurisdiction—Suit by Foreign Trustee.</p> <p>Where, pursuant to 1 Rev. St. Ohio, § 0344, a conveyance in fraud of creditors has been declared void by an Ohio court, and a trustee appointed, to “proceed by duo course of law to recover” the property, and administer it for the benefit of creditors, such trustee is vested with the right of property, and may maintain a suit to recover the same in a federal court for another state.</p>

<p>lu Equity. Bill by tbe Dubuque National Bank against Alfred Weed & Co., Edwin Ellis, and Tliomas Bardon to set aside a deed.</p>

In Equity. Bill by Charles Lewis, alleging equitable ownership of 128 acres of land, situated in Pierce county, state of Washington, for a decree establishing his title to said land, and to have the defendant John O. Shaw, to whom a patent, has been issued by the United States, declared a trustee of said title.

<p>1. Contracts — Employment—Eight to Employe’s Invention-Specific Performance.</p> <p>By a contract to set up and operate cigarette machines, one of the defendants agreed that any improvement made by him in the machines should he for complainant’s benefit, and, subsequently reporting an improvement, he was furnished with facilities for experimenting, and assured by complainant that it would pay him liberally if the improvement was practicable. Thereafter defendant assigned a half interest to the other defendant, a coemploye, when both denied plaintiff’s interest, and asserted their intention of selling to others. UeW, that such improvement was the property of plaintiff, and that defendants should be directed to convey to it their interest therein.</p> <p>2. Same — Compensation for Work Outside the Contract — Reference. '</p> <p>The defendant was entitled to compensation for perfecting such improvement after leaving plaintiff’s employ, and, in the absence of proof as to what would be an adequate amount, there should be a reference to a master to ascertain.</p>

<p>1. Sale — Patented Article — Notice op Restriction.</p> <p>’ A .firm in Germany, having the right, under European and American patents, to sell a patented coloring matter in Europe and the United States, was accustomed to sell with restrictions against exportation to the United States. A London film, which knew of this restriction, sent an order to the London agents of the German firm for a quantity of the goods “strong for export.” Held, that there was no notice of an intention to export to the United States. 50 Fed. Rep. 73, affirmed.</p> <p>2. Principal and Agent — Notice to Agent.</p> <p>On receiving notice of the arrival of the goods in London, the purchasers made out a check for the price, and gave it to their clerk, who, in the' usual course of business, exchanged it for the invoice sent by a messenger of the seller’s London agent. This invoice contained a notice of the prohibition against exporting to the United States, but the attention of the firm was not called thereto until a day or two later. Held, that notice to the clerk was notice to the firm, and, having accepted the goods with notice, the firm was bound by the restriction. 50 Fed. Rep. 73, affirmed.</p> <p>3. Patents for Inventions — Sale with Restrictions — Infringement.</p> <p>The owner of patents granted in Europe and the United States, who sells the patented article in -Europe with a prohibition against importation into the United States, may treat as an infringer one who sells that article in this country. 50 Fed. Rep. 73, affirmed.</p> <p>4. Practice — Stipulated Evidence.</p> <p>The parties stipulated that, to save the delay and expense of a commission, the cause should be tried as- though certain facts therein set out had been given. On the same day a joint letter by respective counsel was sent, requesting the persons addressed to procure the affidavit of one of the purchasing firm as to the prohibition in the invoice. Held, that an affidavit of one of the addressed parties as to statements made by the member of said firm in the presence of the persons so addressed was mere hearsay, and not the equivalent of the affidavit requested.</p> <p>5. Same — Contingency.</p> <p>In the absence of anything in the stipulation, joint letter, or the surrounding circumstances to indicate that the use of the stipulated facts was contingent on obtaining the requested affidavit, such facts were properly admitted in evidence.</p>

In Equity. Bill by the Bicycle Stepladder Company against John E. Cordon to enjoin infringement of letters patent granted to complainant for improvements in store service ladders. Defendant moves to dismiss the hill.

<p>Appeal from, the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Bill hy George Edmanson against John L. Best to restrain the collection of a judgment. Decree for defendant. Complainant appeals.</p>

<p>1. Receiver — Insolvent Corporation — Property Attached under Process of State Court.</p> <p>II the property of an insolvent foreign corporation has been seized by the sheriff under a warrant of attachment issued by a state court in an action which has afterwards heen prosecuted to judgment, and execution issued and levy made upon the property seized, a receiver appointed subsequent to the attachment by the United States circuit court of the district in which such property is situated takes the properly of the corporation in the jurisdiction subject to such rights over the same as had been acquired by the prior proceedings in the state court.</p> <p>2. Same — Assignment ry Insolvent Corporation.</p> <p>On Juno 19, 1893, a receiver of the properly of a foreign corporation was appointed in an action brought in the circuit court for l.he western disii'icr. of Pennsylvania. Pursuant to the terms of the order, the corporal ion on-the same day executed and delivered to (lie receiver an assignment- of its property in New York city, including the property in controversy, and tlio properly was taken possession of by an agent of the receiver. On June 29, 1893, the sheriff of New York county seized the property in controversy under a warrant ol' attachment issued by a state court in an action biought against ¡ho foreign c-o;poiaüon. In an action brought against the corporation in the circuit court for flit' southern district of New York, that court appointed the Pennsylvania receiver the receiver of the property of the defendant within its jurisdlc ion. As receiver appointed hy the New York circuit court;, he applied to that court for a summary order to the sheriff to surrender the seized property. Jichi, that the assignment executed pursuant to the decree of the Pennsylvania circuit court passed tlie title to the property to the receiver ¡is an officer of that court, and not as an officer of the New York circuit court', and that in his capacity of receiver, appointed by the New York court, ho was not entitled to possession of the property, and the order asked should not bo granted.</p>

Action by Mollie Lafferty, administratrix of the estate of James Lafferty, deceased, against the Southern Pacific Company, for the death of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

<p>At Law. Action by Oliver H. K. Eisley against the village of Howell, Mich., on certain bonds and coupons. Judgment for defendants.</p> <p>Statement by SWAN, District Judge:</p> <p>This is an action of assumpsit for the recovery of the amount of bonds NoS. 5, 6, 7, 8, of the village of Howell, Mich., and 10 Interest coupons, each for $30, belonging to said bonds, and also of 87 interest coupons for $30 each, formerly attached to other bonds of the same issue. The total amount claimed, with interest to the day of trial, is $5,726.70. These bonds bear date August 12, 1885, and form a part of-an issue of 20 bonds of $1,000 each, and were in the following form, viz.:</p> <p>' “No. -. $1,000.00.</p> <p>“The United States of America.</p> <p>[Michigan Ooat of Arms.]</p> <p>“State of Michigan, Village of Howell. Improvement Bond.</p> <p>“Know all men hy these presents that the village of Howell, in the .state of Michigan, acknowledges to owe and promises to pay to J. M. Ashley, Jr., or bearer, one thousand dollars, lawful money of the United States of America, on the first day of - — , in the year of our Lord one thousand eight hundred and--, at the Fourth National Bank in the city of New York, with interest at the rate of six per cent, per annum, payable semiannually ou the first days of December and June In each year on the surrender of the annexed coupons as they severally become due. This bond is issued under and hy authority of the special act of the state of Michigan entitled ‘An act to authorize .the village of Howell to raise money to make public improvements in the village of Howell, being No. 248 of the Local Acts of 1885 of the legislature of the state of Michigan,’ approved February 25, 1885, and also under the ordinance of the village of Howell passed August 12, 1885.</p> <p>“In testimony whereof the said village of Howell has caused these presents to he signed by the president and recorder of said village, and to be sealed with the seal of said village, this twelfth day of August, A. D. 1885.</p> <p>[Seal.] [Sgd.] “Jay Corson, President.</p> <p>LSgdJ “Geo. II. Chapel, Recorder.”</p> <p>The act of the legislature referred to in the bonds authorized the common council of the village of Howell “to borrow money on the faith and credit of said village, and issue bonds therefor to an amount not exceeding $20,000, which shall he expended in malting public improvements in said village of Howell: provided, that a majority of the electors of said village voting at an election to be called in compliance with the provisions of this act shall vote in favor of such loan hi the manner specified in this act and not otherwise.” Section 2 of the act provided how the question of raising the said sum hy loan should be submitted to the electors of the village, and empowered the common council to order a special election if it should deem it necessary. “Sec. 3. If such loan shall he authorized by a majority of such electors, said bonds may he issued in such sums, not exceeding the amount hereinbefore limited, and payable at such times, with such rates of interest, not exceeding six per centum per annum, as the said common council shall direct, and shall he signed hy the president of said village, and countersigned by the recorder of said village, and negotiated by or under the direction of said common council; arid the money arising therefrom shall he appropriated in such manner as said common council shall determine for the purpose aforesaid; and the said common council shall have power, and it shall be their duty, to raise by tax upon the taxable property of said village such sum or sums as shall ho sufficient to pay the amount of said bonds and the interest, thereon as fast as the same shall become due.” This act was approved February 25, 1885. Local Acts 1885, p. 16. Pursuant to the authority conferred hy section 2, the common council, on March 5, 1885, voted to call a special election to submit to the electors of the village “the question of raising money on the faith and credit of said village to the amount of $20,000, with interest not exceeding six per cent, per annum, to he secured by the bonds of said village, and signed by the president and countersigned hy the recorder of said village, payable, principal and Interest, at such time or times as the common council may direct, for the purpose of making public improvements in said village of Howell.” This was the only question submitted to the ('lectors. The election was ordered to be had March 23, 1885, and 10 days’ notice thereof was directed to he given. Such notice was given in the manner required hy law and the vote of the common council. Neither the sufficiency of the notice nor the regularity of the registration or election is questioned. The registration books show that the number of the registered electors of the village was 554. The total vote cast was 433, of which 427 were “for the loan” rand 6 “against the loan.”</p> <p>On the 12th day of August, 1885, a special meeting of the common council of, the. village was held, at which the proceedings were had which constitute the ordinance of August 12, 1885, referred to in the bonds as in part the authority for their issue. That ordinance reads as follows: “Whereas, by virtue of the special, act of the legislature of the state of Michigan the yillagé of Howell is authorized to issue bonds in the sum- of not more than $20,000,'and to bear interest at not more than six per cent., in aid of public improvements in the village of Howell; and whereas, on the 23d day of March, A. D. 1885, the majority of the electors voted in favor of said loan. Now, therefore, resolved, by the common council of the village of Howell, that by virtue of said act and said vote thereon, that the said village borrow and loan the said sum of $20,000.00 at six per cent, per annum, payable semiannually on the first day of .Tune and December of each year until paid, the sum of $20,000 for making public improvements in said village of Howell. And resolved, that the Toledo, Ann Arbor & North Michigan Railroad Company is ,a public improvement in the village of Howell. And resolved, that the bonds of the village of Howell be issued to the amount of $20,000.00, with interest at six per cent, per annum, payable on the first day of June and December until paid; payable $2,000 on the first day of January, A. D. 1888, $2,000 on the first day of June, A. D. 1889, $2,000 on the first day of December, A. D. 1890, $2,000 on the first day of June, A. D. 1891, $2,000 on the first day of December, A. D. 1892, $2,000 on the first day of June, A. D. 1893, $2,000 on the first day of December, A. D. 1894, $2,000 on the first day of June, A. D. 1895, $2,000 on the first day of December, A. D. 1896, $2,000 on the first day of June, A. D. 1897, in aid of said Toledo, Ann Arbor & North Michigan Railroad Company, payable to James M. Ashley, Jr., agent of said railroad company, or bearer, but not to be delivered to said James M. Ashley, Jr., or the company, except in accordance with the contract this day made between said James M. Ashley, Jr., and said railroad company and the said common council of the village of Howell. And the president of the said village.is hereby authorized and directed to sign said bonds, and the recorder of said village is hereby authorized and directed to countersign said bonds, and to sign the coupons attached thereto.” ,</p> <p>This ordinance was duly signed and filed, and appears of record in the proceedings of the common council. The bonds were signed by the president and countersigned by the recorder of the village, and by the direction of the council were sent by express to the Fourth National Bank of New York, to be filed in escrow until the railroad commissioner of Michigan should certify that the Toledo, Ann Arbor & North Michigan Railroad had been completed to Howell in the manner stipulated between the council and J. M. Ashley, Jr., the representative of the railroad company, and" the payee of the bonds. The railroad was completed to Howell, and Ashley performed the contract with the common council which was made the condition of his right to the bonds, and they were delivered on his order. The whole issue was negotiated by him to different persons, through some of whom plaintiff bought for value and before maturity, and without actual notice of any infirmity in them.</p>

<p>At Law. Action by Frederick N. Pauly, as receiver of the California National Bank of San Diego, against Warren Wilson, on a promissory note. Judgment for defendant.</p>

<p>1. Rathboad Companies — Accidents at Crossing — Contributory Negm--GENCE — INSTRUCT! ONS.</p> <p>In an action for injuries received at a railroad crossing, plaintiff oliera! testimony that he stopped and listened; and defendant, that, the whisile was blown and the bell rung; and the court instructed the jury to decide the issue of fact from the testimony, field, that the failure of tlie court to charge that contributory negligence of plaintiff is a matt,or of defense, which defendant must show by a preponderance of evidence, was not reversible error.</p> <p>3. Same-Construction oe Statute.</p> <p>(Jon. St. S. O. § 1529, relating to cases of personal injury by collision with an engine or cars at a, railroad crossing, is in derogation, of the common law, and, being strictly construed, does not apply where horses are frightened by a train at a crossing, and the person injured is thrown from the vehicle, but not so as to come in collision with the train.</p> <p>3. Jury — Province—Co nemotino Testimony.</p> <p>Where the testimony is conflicting, the determination of the fact is exclusively within the province of the jury.</p>

,. At Law. Action by the Hercules Iron Works against Caleb , Dodswbrth and others to recover the contract price of an ice machine. There was a verdict for plaintiff, and defendants now move : for a new trial.

<p>1. Insurance — Proof of Loss.</p> <p>Failure to furnish proof of loss within 30 days after a fire, in accordance with the provision of an insurance policy providing that persons sustaining loss or damage by fire shall forthwith give notice of such loss, and within 30 days thereafter render a particular and specific account thereof, does not work a forfeiture of the policy, but merely delays the date when the loss will become payable.</p> <p>2. Same — Arbitration—Premature Action on Policy.</p> <p>The policy also provided that, in case of disagreement as to the amount of loss, arbitration should be had, and that no action should be brought by the assured upon the policy until after an award fixing the amount of the claim, and further provided that such an award should be a condition precedent to an action. Held, that such provision was legal and enforceable, and the bringing of an action on the policy before arbitration and award was premature. Hamilton v. Liverpool, L. & G. Ins. Co., 10 Sup. Ct. Rep. 945, 136 U. S. 242, and Same v. Home Ins. Co., 11 Sup. Ct. Rep. 133, 137 U. S. 370, 385, foEowed. Yangindertaelen v. Insurance Co., 51 N. W. Rep. 1122, 82 Wis. 112, distinguished.</p> <p>3. Same — Defense to Action on Policy.</p> <p>The insurer was not required, in the event of failure to agree as to the amount of loss, to demand arbitration, and could avail itself of the provision as a defense notwithstanding its denial of Lability.</p>

<p>Carriers — Injuries to- Passenger- -Contributory Negligence.</p> <p>An adult male passenger, waiting for a railroad train to come to a full stop before attempting to alight, who, when directed and required by the conductor, jumps from the moving train, when it is obvious that he cannot do so with safety, and thereby sustains injuries, cannot recover damages for such injuries.</p>

<p>Libel — Excessive Verdict — Motion to Set Aside.</p> <p>The damages which a jury may award in an action for libel being not only compensatory, but, where malice or. its equivalent- (gross negligence) is found, also punitive or exemplary, the court will not set aside a verdict of $2,500 in favor of the plaintiff, a girl of 16, for a libel published in a newspaper charging her with having eloped with a married man.</p>

<p>At Law.</p> <p>Action by Raul L. Thebaud and another against the National Cordage Company, a foreign corporation. The action was begun in the New York supreme court by attachment, and was removed by the defendant to the circuit court for the southern district of New York. Property in Storage warehouses, which the plaintiffs claimed belonged to the defendant, was levied on by the sheriff. Thereupon, replevin suits were begun against the sheriff by various parties claimant. The sheriff demanded from the plaintiffs in the attachment suit an indemnity bond for $150,000. The plaintiffs obtained a bond for that amount from the Lawyers’ Surety Company, as surety, depositing with that company $50,000 as cash to secure it against liability. The plaintiffs and the surety company were substituted as defendants in the replevin suits in place of tile sheriff, pursuant to the provisions of the New York statute. The replevin suits were discontinued by consent, the plaintiffs in these suits consenting to a discharge of the bond of indemnity. Thereafter, the attachment was vacated. The plaintiffs moved upon affidavits setting up those facts, and also that the Lawyers’ Surety Company refused to repay to them the $50,000 deposited with it as collateral until the bond was canceled, and moved for an order of the court to cancel the bond. The sheriff replied by affidavits setting up that he was still in possession of a part of the property levied on, and that keepers’ fees and the poundage of the sheriff'had not been paid. He also set up the fact that he liad not received a general release from the attorneys, or any of the claimants, releasing him from damage and responsibility by reason of the levy of the attachment.</p>

<p>Customs Duties — Excessive Valuation — Statutory Remedy Exclusive.</p> <p>Under the customs administrative act of June 10, 1890, § 13, which provides for an appeal to the board of general appraisers if the importer is aggrieved by valuation of the import, and section 25, which declares that no action shall be against the collector in any case in which the importer is entitled to appeal under the provisions of the act, the remedy by appeal from an appraisement is exclusive, and an action cannot be maintained against the collector to recover an alleged excess of duties paid on a valuation advanced by an appraiser over the invoice value of imported merchandise.</p>

<p>Application by D. M. Langford for discharge from custody on return of writ of babeas corpus.</p>

<p>On Application by Tbomas A. Welch for a Writ of Habeas Corpus.</p>

<p>Petition by Leon M. Carrier for a writ of habeas corpus.</p>

<p>Indictment of William Olsen for violation of Act July 5, 1884, § 11. Plaintiff demurs to defendant’s plea in bar.</p>

<p>Application by William F. Lintner for a warrant for the arrest of Ah Wong, a Chinese person.</p>

<p>Proceeding for the deportation of Chum Shang Yuen for violation of the sixth section of the Geary act.</p>

<p>Chinese — Deportation—Who ark Laborers — 'Treaty ok 1880 — Construction.</p> <p>The words “Chinese laborers,” as used in section 6 of the Geary act, (27 Stat. 23.) have the same meaning as in the treaty with China of 1880, (22 Stat. 826,) in which they are broad enough in their true meaning and inrent to include Chinese' gamblers and highbinders, since section 2 of the treaty by exclusion provides ihat no Chinese should ho entitled to the benefit of tho general provisions of the Burlingame treaty (10 Stat. 739) but those who come to Ihe United States for purposes of teaching, study, mercantile transactions, travel, or curiosity.</p>

<p>At Law. Action of trespass on the case by Leman P. Rider against S. Jarvis Adams & Co. for infringement of letters patent. A jury trial was waived, and the case tried by the court.</p>

<p>In Equity. Bill by the Stonemetz Printers’ Machinery Company against the Brown Folding Machine Company and others for infringement of letters patent, and for relief on the ground of interference. A demurrer to the hill was overruled. 46 Fed. Bep. 72. A crossbill was filed, and thereafter stricken from the record. Id. 851. Decree for complainant as to infringement, but for defendant as to the interference.</p>

<p>In Equity. Bill for infringement of a patent. On rehearing. Decree dissolving injunction.</p> <p>The first claim of the patent granted to Camille A. Faure, January 3, 1882, as limited by a disclaimer to an electrode of a secondary battery to which the active layer is applied in the form of a paint, paste or cement, insoluble in the electrolytic liquid, was sustained by this court March 18, 18S9. 38 Fed. Rep. 117. It was again sustained on rehearing. 39 Fed. Rep. 490. On the 19th of October, 1891, an order was made permitting the defendants to amend their answer by setting up the grant and expiration of a Spanish patent issued- to Faure, June 27, 1881, for the term of 10 years. 47 Fed. Rep. 892. Proofs were taken on this new issue, and the cause now comes on for rehearing upon this issue alone.</p>

<p>In Equity. Bill for the infringement of a patent. On motion for a preliminary injunction.</p>

<p>1. Patents rob Inventions — Invention—Bam, Machines.</p> <p>Claim i of letters patent No. 216,305, issued June 10, 1879, to Samuel Brown, for a machine for making- balls out of leather scraps or other similar material, and which consists of two dies, between which the material is compressed, each die having a cavity somewhat less than a hemisphere, so that the expansion of the material after compression will form a true sphere, is void as being the product of mere mechanical skill.</p> <p>2. Same.</p> <p>Olaims 2 and 3, which cover, respectively, an airhole in the dies, and a bell-mouthed cylinder, in which the dies work, are likewise void for want of ■ invention.</p>

<p>1. Patents for Intentions — Dry Closets — Novelty.</p> <p>Patent No. 314,884, granted March 31, 1885, to Isaac D. Sinead, for a dry closet in which warm air drawn by ventilating pipes from the rooms of a building is used to desiccate fecal matter by passing the air through a vault made in the form of a tube, and so arranged as to receive deposits distributed along its surface in comparatively small quantities at any given place, is not without novelty, in view of patent No. 264,586, granted September 19, 1882, to William S. Ross, for a vault which is placed between a furnace and a smoke flue, and in which fecal deposits are received on a shelf, over and around which products of combustion are made to pass.</p> <p>2. Same — Enlarging Claim.</p> <p>As Smead did not originate the idea of utilizing the warm air which was drawn from a room, or the means by which the air was introduced to the vault, but took the ventilating ducts, the gathering chamber, and the vent shaft of the Ruttan system, and simply improved the vault, he canno't omit the ventilating ducts, and claim that his patent includes any openings or apertures which perform the office of ventilating pipes, and introduce air into the vault.</p> <p>8. Same — Infringement.</p> <p>Where a flue is constructed from a urinal to a vault room, in which there is a grate, and the foul air from the urinal is drawn through the flue into the vault, and then out of doors through a chimney, the flue infringes the Smead patent, as it conveys a portion of warm air into the vault, and tends to produce desiccation.</p>

In Equity. Bill by Alfred Featherstone against the George R. •Bidwell Cycle Company for infringement of letters patent. The circuit court rendered a decree for complainant. 53 Fed. Rep. 113. Respondent appeals.

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

In Equity. Bills by the Edison Electric Light Company and the Edison Illuminating Company of New York against the Mt. Morris Electric Light Company and others and the United Electric Light & Power Company to enjoin the defendants from infringing letters patent No. 223,898, issued to Thomas A. Edison, for incandescent electric lamps. On motion for a preliminary injunction.

<p>In Equity. Action by tbe Heaton Button-Fastener Company against John A. Macdonald, Albert W. Ham, and Arthur M. Wright to. recover profits derived from tbe sale of button-attaching machines alleged to infringe letters patent Ho. 810,984, granted to Joseph E. C. Dick January 20, 1885, and from the sale of fasteners to" be used therein. There was a decree for plaintiff, and the cause ■was referred to a master to take and state the account of damages and profits. Both parties excepted to the master’s report, allowing damages for the sale of the machines, but disallowing them as to the fasteners.</p> <p>Statement by COXE, District Judge:</p> <p>:0.n. the .■12th of March, 1890, the complainant obtained a decree declaring .letters patent No. 310,934, granted to Joseph F. O. Dick January 20, 1885, for improvements in button-attaching machines, valid, and adjudging that the defendants had infringed the fifth claim thereof. The fifth claim is as follows: “(5) The combination of the stationary head mounted upon a standard- and containing a stationary button-holding jaw which is provided with a plot, and button-lifting springs on each side of said slot, the race way attached to said head and having a slot communicating with the slot in the ‘holding jaw, the button stop in said race way, the vibrating feeding finger 'for carrying the buttons one by one from the button stop to the button-lifting ¡springs, -the pivoted clinching jaw and the treadle for imparting motion to said clinching jaw and feeding finger substantially as described.” On the 25th of August, 1891, the cause was referred to a master to take and state the account of damages and profits. On the 25th of February, 1893, the master filed his report in which he finds that the value of the infringing machine is attributable to the combination described in the fifth claim, and that the complainant is entitled, for that reason, to the entire profits derived by the defendants from the sale and leasing of the 2,500 machines put out by them, amounting in the aggregate to $294.18. He also found that the complainant was not entitled to recover any part of the profits made by the defendants upon staples sold by them to the users of the infringing machines. All claims for damages were waived by the complainant.</p> <p>The complainant excepts to that part of the report which refuses to allow the profits derived from the sale of staples, and the defendants except to that part of the report which allows the entire profits on the infringing machine.</p>

<p>1. Patents for Inventions — Brackets for Electric Conductors.</p> <p>The fourth claim of letters patent No. 418,701, issued January 7, 1880, to John A. Duggan, for improvements in brackets for electric conductors, for “'an adjunta hie collar, provided with means to support guard wire,’" possesses no element of patentable invention.</p> <p>2. Same — Overcoming Presumption of Novelty.</p> <p>"While a patent is prima facie evidence of novelty and utility, and also of patentable invention, yet this presumption may be overcome by the court’s applies (ion of the ordinary knowledge and experience required to set do issues of fact.</p>

In Equity. Suit by the Sawyer Spindle Company against the W. G-. & A. R. Morrison Company for infringement of a patent. A motion for a preliminary injunction was heretofore granted in part. 54 Fed. Rep. 693. The case is now on final hearing.

<p>In Equity. Bill by the International Postal Supply Company against William Groth and others to enjoin the defendants from infringing letters patent Hos. 341,880 and 388,366.</p>

<p>Patents for Inventions — Infringement—Commission to Examine Experts.</p> <p>In a suit for infringing a patent, a commission to examine witnesses abroad will, in a proper case, be granted for the purpose of obtaining expert testimony; and such commission should be granted in the case of a patent involving the chemistry of coloring compounds, when it is. asserted by the moving party, and denied by the opposing party, that the art is so little practiced here that the best expert testimony can only be obtained by a commission.</p>

<p>In Equity. Suit for infringement of letters patent. On motion for preliminary injunction.</p>

<p>In Admiralty. Libel by tbe Atlantic Coast Steamboat Company against tbe steamer Golden Gate for salvage service. Decree for libelant.</p>

In Admiralty. Libel by the S. H. Harmon Lumber Co. against Lighters Nos. 27 and 28 (John E. Whitney, claimant) for materials furnished to the lighters. The district court dismissed the libel. Libelant appeals.

In Admiralty. Buit iu rem by J. H. Lane against the steamer A. R. Robinson to recover the value of part of a raft of piles lost while being towed by said steamer.

<p>1. Seamen’s Wages — Termination op Voyage — Port op Refuge.</p> <p>In order to effect the termination of a voyage at a port of refuge, there must be some other act than the discharge of the crew.</p> <p>2. Same — Pinal Port op Discharge — What is.</p> <p>Seamen shipped for an outward voyage, “and back to a final port of discharge in the United States.” The vessel was returning in ballast, bound for New York, when she became disabled in a gale, and bore away for Key West. There she discharged her crew, made temporary repairs, shipped another crew, and proceeded to New York. No cargo was loaded or ballast unloaded at Key West. Held, that New York, and not Key West, was her final port of discharge, and the original crew were entitled to recover against the vessel the cost of their passage from Key West to New York.</p>

<p>In Admiralty. Libel for damages alleged to have been caused by steamer’s swells.</p>

In Equity. Bill by the Oregon Short Line & Utah Northern Railway Company against the Ilwaco Railway & Navigation Company for violation of the interstate commerce act. A decree was rendered for complainant. 51 Fed. Rep. 611. Respondent appeals.

Statement by BAKER, District Judge: The appellee James. L. Evans commenced an action in attachment in the circuit court of Hamilton county, Ind., against the appellant, Emil S. Levi, making the American Strawboard Company and Crawford Fairbanks garnishee ’ defendants therein. The complaint was in a single paragraph for money had and received, as the proceeds of the sale of certain shares of stock.

<p>Appeal- from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>In Equity. Creditors’ bill by the Morrow Shoe -Manufacturing Company against the New England Shoe Company and others. The hill was taken pro confesso against the New England Shoe Company and another, but on final hearing- was dismissed as to-the other defendants. Complainant appeals.</p> <p>Statement by BAKER, District Judge:</p> <p>This, suit was brought in the court below by the Morrow Shoe Manufacturing Company, appellant, on its own behalf and for the benefit of all other creditors, against the New England Shoe Company, an insolvent corporation, which was impleaded with George P. Gore, I-I. H. Hoimerdinger, Merrick E. Prouty, and Hiram B. Peabody, appellees herein, and certain others not parties to this appeal. The New England Shoe Company, an Illinois corporation, pm-ported to be organized with an authorized capital of $50,000, divided into 500 shares of $100 each, of which 498 shares were owned by Charles C_ Davis, who was its president and treasurer, one share was owned by bis son, Charles A. Davis, who was its secretary, and one share was owned by Henry W. Sawyer. These three composed its hoard of directors. The hiil was taken pro confesso against the New England Shoe Company and Charles C. Davis, and on final hearing it was dismissed as to the other defendants. The cause was heard and decided'on its merits on the fads presented in the record, and the decree dismissing the hill was placed on ihe ground that notice or knowledge of the fraudulent acts and intent of the New England Shoe Company and of Charles C. Pavis had not been sufficiently proven to justify a decree against any of tbe appellees.</p> <p>The New England Shoe Company was organized August 29, 1887, with a nominal capital of $50,000. During its business existence, which was a little more than two years, there were only three meetings of the directors, the first for organization, August 29, 1887, and the other two, on March 28 and December 9, 1889, to adopt certain resolutions which C. C. Davis- wished to have adopted. The other.two directors paid no attention to the business affairs-of the company, and acted simply to carry out the purposes of C. C. Davis. The company did a small retail business, under the sole management of C. C. Davis, in a basement on the northwest corner of State and Madison streets, in Chicago. The only other business done by it or them was to make the alleged fraudulent sales and pledge hereinafter mentioned. For about two years its purchases were made mostly, if not wholly, from or through the auction and commission house of George P. Gore & Co., in Chicago. During tliis time other purchases than those made from George P. Gore & Oo. were made through this firm, which advanced tlie money to pay for them, and it deducted from the amount paid over to the manufacturer the same commission as on goods consigned to it. For abour 12 years, and up to the latter part of 1888, Davis had been in the employ of Gore & Oo. as a salesman and solicitor of consignments. In tlie latter part of 1888 lie appeared to have dropped his connection with Gore & Co., and he began to make extensive purchases from manufacturers for the New England Shoe CVmp-'ny, independently of Gore & Co. In order to obtain credit he pretended that $80,000 of the company’s capital stock had been paid in in cash, and was then in the business; that its business amounted to over 870,000 a year, and was highly profitable; that its stock on hand amounted to $25,000, and his and the company's debts to $500, all told, and that he was worth indwidually $38,000. By means of 1 líese representa!ions, which were fa1 so and fr-mdu’ent, made to manufacturers and their agents, either directly or through the reports of commercial agencies, he was enabled to obtain large quantities of goods for the shoe company on credit from numerous manufacturers. Forty-three of them identified goods that they had shipped to it, and which were unpaid for, among those of which the receiver took possession in the Sibley warehouse. Those goods, with some others similarly identified, and found in a. loft which had been rented by the shoe company, brought at the receiver’s sale $20,912.97. These goods had been recently bought, and, with the exception of perhaps $3,000 worth, were wholly unpaid for. The complainant and other intervening creditors have proved unpaid bills to the amount of between $15,000 and $16,000. About the time that the goods so ordered began to arrive, Davis began to dispose of them otherwise than by sales in the basement store. He made these sales with a studied purpose to keep the parties from whom the goods were purchased in ignorance of what he was doing. How many channels ho employed for this purpose is not known. Three are clearly shown. Beginning with December 14, 1888, and ending with December 11, 1889, he sold through the auction house of George P. Gore & Go. goods, which, at tlieir auction prices, netted $14,555.48. Prior to June 22, 1889, these sales amounted only to $1,650.94, and were made-for account of Charles C. Davis individually. After that date the sales were made for account of the New England Shoo Company, and the hulk of them, amounting to $11,235.75, were made between October 1 and December 11, 1 cv*‘ A compaiison of the checks drawn by George P. Gore & Co. in settlement of these sales with the credit entries in O., G. Davis’ b<i"k account shows that he deposited to liis individual account in the First National Bank in Chicago $9,610.75 of the proceeds of these sales, and that thé payments of $1,200 and $125 in settlement of the last two sales were not deposited there. Besides the proceeds of these sales through Gore Co., he made other largo deposits on his individual account, viz.: October 9th, $1,783.85; November 2d, $2,033.04; November 26th, 82,500; November 291h, $1,978.21; a total of $8.-294.60. All of these deposits, except that of November 2d, correspond with payments made to Davis by ITeimerdinger, through George P. Gore & Col These goods were sold almost entirely at auction, along with other and larger consignments, some of which were on account of manufacturers. The price's obtained were fair auction prices, not jobber’s nor manufacturer’s prices, running sometimes as much as 20 per cent, below the prices at which jobbers ordinarily sold to retailers. The sales were quick, and somewhat forced, and prices corresponded. They were largely below the prices at which retailers could purchase from wholesale dealers.</p> <p>The firm of Gore & Co. consists of George P. Gore alone, but Prouty and Heimerdinger respectively conducted, at Gore’s store, business at his expense for storeroom, clerk hire, and capital, and at his r;sk for credit, every transaction including somewhere in its course a sale by Gore & Co. on commission. Prouty had the general management of Gore & Co.’s business, giving special attention to boots and shoes, and personally directed most of these sales. He drew a fixed salary as manager, and at the end of each year had .an accounting with Gore & Co., as the result of which frequently an additional allowance was made to him on a basis which he was unwilling or unable to explain.</p> <p>Besides the $14,555.48 of sales made through Gore & Co.’s auction house, Davis, in the name of the New England Shoe Company, sold directly to Prouty, in Prouty’s branch of the business, within two weeks of the failure, goods for which he received in advance $4,692.95. One purchase, consisting of 171 cases of shoes, was made by Prouty November 26th or 27th, for which he gave $3,858.48, after some bickering, in which an auctioneer of Gore <fc Co. was employed to make the final bargain; and the last purchase, of December 5th, within a week of the collapse, consisted of 258 cases of rubbers, for which Davis received $1,103.47. Both sales were made at low prices, and were paid for December 7, 1889. Heimerdinger, in his branch of the business carried on at the auction house of Gore & Co., made five purchases through Davis of the New England Shoe Company’s goods, beginning September 17 and ending November 30, 1889, paying in all $7,310.38. Heimerdinger intimates that these purchases belonged to that class of his business which consisted in buying “bankrupt lots, and lots that go at sacrifice prices.” Heimerdinger and Prouty were well acquainted with Davis, and knew the place and nature of his business. In. October, November, and the first few days of December, 18S9, Davis thus sold at low prices to or through Heimerdinger, Prouty, and Gore goods of the New England Shoe Company which netted him $23,509.08, and for which the company evidently was indebted in a much larger sum. To the books of account, which appear to have been of the most meager and imperfect character, no one had access except Davis himself, and they disappeared,when he did. Once during the latter part of October, and again in November, 1889, for several days on each occasion, he employed Edward Stephenson, an accountant, to write up the books. On the occasion of his first service, Stephenson entered between 10 and 15 invoices of goods bought on credit, and again in November he entered 20 or more additional invoices for larger amounts than those which he had entered in October, and about two-thirds from parties who did not appear to have dealt with the company before. He estimates that these invoices amounted to between $50,000 and $60,000. All the purchases which Stephensori found there were on credit, while all the sales made by Davis were for cash. The reason assigned by Davis for making such large purchases of goods was that he intended and was endeavoring to rent a storeroom on the grade of the street, and failing to accomplish this, it became necessary to make sale of the goods.</p> <p>Prom the Morrow Shoe Manufacturing Company, complainant, Davis bought on behalf of the New England Shoe Campany, in November, 1889, $2,418 worth of goods, which were shipped to it on the 12th and 18th of November; and they have never been paid for. Intervening petitioner^ have proved claims to the amount of over $13,000 for goods, the greater part of which were shipped in October and November, and. are all unpaid for. These evidently constitute only a small part of the goods so ordered and received. Some of Davis’ purchases were made from salesmen who came to his store, and he frequently requested them not to let other people know that ho was buying of them. He made several visits to the east. Near the end of July he was in Philadelphia, where he placed an order of about $1,700, and gave a flattering, but untruthful, account of the condition and prospects of the basement store, with no allusion to any contemplated grade store. He asked Mr. Hill, to whom he gave the order, to put no marks to indicate the manufacturers, either on the goods or the boxes inclosing them. Early in -November he visited the office of the Morrow Shoe Manufacturing Company in New York, and ordered goods which he said he needed for the holiday trade. He there represented that the New England Shoe Company had a paid-up capital exceeding all its liabilities, and that he personally was worth $38,000 over all his debts. A few days later he was in Boston, where he placed a number of orders, and represented that his business was prosperous.</p> <p>On the 30th of October, 1889, at the New England Shoe Company’s store and in the Palmer House, Chicago, in order to gain credit and to procure the Hocker-Manus Shoe Company of Cincinnati, Ohio, to manufacture and deliver certain goods which had been previously ordered, Davis represented to an agent of the Cincinnati house that the statement he had made to a salesman was correct; that he was worth §30,000; that he owed little or nothing on his stock; that he had fully §30,000 worth of stock; that he had §2,000 worth of Chicago street-railway bonds, and §2,500 in the bank.</p> <p>During the two or three months preceding the failure, Davis was rapidly filling ux) with shoes bought on credit a loft in the rear of 113 State street, some distance from the basement store. No business was done at this loft, to which nobody, except Davis, ever had access, except on rare occasions. He began to occupy it about May or June, but the most of the goods stored there came in within a month or two prior to December 11, 1889. Prouty was there in August, and again in October, to examine some of the goods stored there, which were offered for sale by Davis. He saw that there were more goods there in October than in August; “that'the room was pretty well filled; that the rubbers were piled high, and also some of the shoes.” The room was 60 feet long by about 30 feet wide and something more than 16 feet high. The cases of goods were mostly brought there on railroad trucks. About December 1st, after the large quantities taken therefrom to the auction house of Gore & Co., “the room was pretty full, boxes piled nearly to the ceiling.” About the same time the stock in the basement store was gradually running down, receiving small additions, which Davis himself brought over from time to time from the loft.</p> <p>In November, 18S9, a traveling salesman happened to see in a retail store In Indianapolis some goods which his employer, the Heywood Boot & Shoe Company, had sold to the New England Shoe Company. The Indianapolis merchant told him that he had bought them from George P. Gore & Co. a.t a less price than that for which the Heywood Company had sold them to the New England Company. Upon the salesman reporting this to his employer, an attorney for some of the eastern creditors was sent to Chicago to inquire into the matter, and Davis was invited to a conference on December 4, 1889. After indulging in some abuse and vituperation, Davis stated that a little while after receiving the Heywood Company’s goods he had at Heimerdinger’s request, and as a matter of favor to him, let him have a small quantity of goods, including some of the Heywood manufacture, which Heimerdinger needed to fill an order from a western customer of his; that a few weeks afterwards Heimerdinger came to him, saying his western customer had refused the goods, and asking him to take them back, which he refused to do, and that Heimerdinger thereupon peddled them out for whatever he could get,_ and in this way some of them had probably come to the hands of the Indianapolis dealer. He referred the inquirers to Heimerdinger for corroboration. The next day, another customer, who had learned of the discovery and of Davis’ explanation, called on Heimerdinger, who corroborated the story, adding that it was a trifling matter of a few pairs of shoes, only a single case, and that was the whole basis for whatever rumors might be afloat of Davis’ forcing his goods off through Góre & Co.’s auction sales; and as a friend he further assured Mr. Morrow, who represented appellant, that Davis was sound and trustworthy, and that there was nothing in any rumors unfavorable to him. This story -was wholly unfounded. Heimerdinger has testified to all of his transactions with Davis and the New England Shoe Company, and there is none of this kind among them. Heimerdinger, while testifying, fails to give any explanation or excuse for his repeating the next day the same fabricated story previously told by Davis. Both, on different occasions, and when apart, repeat the same story, each knowing it to be false.</p> <p>Mr. Barrett, a shoemaker who worked for the New England Shoe Company, testified that somewhere along in November and December, shortly before the failure, Davis used to give him a note sometimes, and tell him to go up on Fifth avenue, and watch for Mr. Prouty coming down from Wells street depot, and to give the note to Mr. Prouty; that Davis told him not to go to Gore’s, hut to meet Mr. Prouty on Fifth avenue, between Madison and Wells_ street depot; that he did this two or three times in pursuance of instructions from Davis; that Mr. Prouty took these letters from him, and said nothing. Mr. Frouty made no denial of these occurrences while on the witness stand, and offered no explanation.</p> <p>The stock of goods in the basement store was seized by the sheriff on D& cember 10, 1889, by virtue of two executions issued upon judgments confessed by the .Now England Shoe Company on the s.ame day; one in favor oí V¿iu \V(,is(-nfiuh for $5,530.33, and the other in favor of Cudworth for $5,000 and costs. Van Weisenfluh, in his testimony, describes himself as a speculator in real estate and horses, and had been employed by Feabody in his stock exchange, commonly known as a “bucket shop.” Cudworth, who says his business is speculating, was, like Peabody, a creditor to a large amount of the unfortunate jewelry house of Clapp & Davies, whose affairs are under consideration by the Illinois supreme court, and was employed by Peabody to close out its stock. He declined, by advice of counsel, to answer questions touching his connection with the Clapp & Davies suit. He had known Peabody for 10 years, and he says “some might call it intimately.” All three had been at one time or another in the shoe trade, and had become familiar with the Gore establishment, and also with Davis. As no appeal has been taken from so much of the decree as dismisses the hill against Cudworth and Van Weisenfluh, it is not necessary to go into the facts relating to their claim against the New England Shoe Company, or their relations with Davis. It is sufficient to say that their dealings with Peabody, Davis, and the New England Shoe Company are calculated to arouse suspicion.</p> <p>On the 5th, 6th, 7th, and 9th of December, 1889, Davis’ son and another young man were employed in the State street loft scraping off the names and marks from the boxes there stored, and as fast as they were thus prepared they were carried to the Hiram Sibley warehouse, on the north side, only about eight cases being left in the loft. All of the 686 packages removed from the loft to the warehouse had been sold and shipped to the New England Shoe Company. Davis took warehouse receipts in his individual name for 512 cases, and in the name of the New England Shoe Company for 174 cases only. These receipts show that the last delivery to the warehouse was _ made on Monday, December 9, 1889, the same day on which the attorney ’of Cudworth and Van Weisenfluh received from Davis, for them, the judgment notes upon which, the next day, judgments were entered, and executions were issued and levies were made on all the goods in the basement store. On Tuesday,- December 10, 1889, the appellee Peabody arrived in Chicago. Pie had been in New York for about a week preceding. For nearly a year prior thereto he had been absent on a European tour. He reached his office about noon, and found Davis waiting for him there, with the nine receipts issued by the -Sibley warehouse, and which Davis claimed covered goods worth from $35,000 to $40,000, on which he asked a loan of $20,000. After a little conversation, Peabody asked his bookkeeper if they had that amount to spare, and being- informed that they had he took the receipts, and with his bookkeeper went to the warehouse, and there inspected tne cases, just enough, he says, to ascertain that there were probably about as many cases as the- receipts called for, and then returned to his office. He does not say whether he noticed that the names and marks were all recently scraped off the cases or not, although the evidene'e shows that such scrap’ng was plainly apparent. In about five minutes after his return to his office, Davis came in again, and the loan was at once agreed upon. The bookkeeper wrote out a check for $20,000, payable to the order of the New England Shoe Company. Davis took the check, and gave the New England Shoe Company’s note for 90 days at 7 per cent., pledging the receipts as security, and indorsing the note as guarantor. The note authorized its holder to sell the receipts before matiit-ity if in his opinion the securities had depreciated, and to apply the proceeds to the payment of the note and expenses. Davis then went away. Peabody left his office soon after, and went to the hank, and was at the paying teller’s window while Davis was receiving $-20,000 in currency for the check: His presence was noted' on the check by the paying teller. Peabody claims that his presence was a mere coincidence, He says that on his way to-his hotel he-had stopped at the-hank to call upon some of the officers Of the bank, who wore Ms friends, and that, seeing Davis Hiere, from a mero impulse of sociability he stepped up near to him. He claims that he did not know whether Davis was getting the cash on his check or not, nor did he make any inquiry. He admits that if he had known it was his check, he would liave thought it a little irregular to draw out Hie currency instead of depositing the check; and if he had known that Davis kept his own account there he would have had a decided suspicion of something wrong. Peabody says that when Davis first applied for tlie loan he told him he wanted it in order to avail himself of a largo discount which some of his creditors had offered him if he would cash their claims. He said tliat some of his creditors had offered him as high as 10 per cent., some as high as 13 per cent., for cash. He says that it would he an irregular way of doing to get all the currency into his hands, instead of depositing the ¡520,000 check, and then drawing his own checks in favor of his creditors. The form of the note was notice to Peabody that the goods which it pledged belonged to the New England Shoe Company, and not to Davis, its president. He also admits that he was so informed by Davis. The receipts for 512 cases of the goods pledged to Peabody were issued to Davis individually. Peabody did not ask nor.obtain any explanation of this. He made no inquiry whether the directors of the New England Shoe Company had authorized Davis to pledge its stock in trade. As a matter of fact tli» pledge was never authorized by the directors. Peabody says that Davis told him that the goods pledged were not all paid for. The receipts issued to Davis individually were indorsed by him in liis individual name only. Peabody admits that he was told by Davis, before tlxe receipts were pledged to him, tliat all the goods covered by them belonged to the New England Shoe Company. He told the receiver that when applying for the loan Davis told him tlia.t some of his creditors were pressing lain. He afterwards wished to retract this statement, and it was crossed out of the written memorandum which the receiver took down. He denied in his interview with the receiver that he had ever before loaned Davis any money, but when testifying in his own behalf he claimed that he had made him a previous loan of .«5,000. Peabody admits tliat he had been in the basement store operated by Davis for the New England Shoe Company. Before making the loan, lie made no inquiries about; the business of the shoe company. He says: “I asked Davis how he happened to put his goods in the warehouse; why he hadn’t put them in the store. He said that he had engaged a store on State street, a large store, and had got disappointed in it, and so put them in the warehouse.”</p>

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>At Law. Action by Thomas McGill, and by Bichard Lambert McGill, and Jessie Margaret McGill, by tlieir next friend, Thomas McGill, against the Western Union Telegraph Company, to recover for the death of Bebecca G. McGill, resulting from the wrongful act of defendant. Judgment was given for plaintiffs. Defendant brings error.</p> <p>Statement by SAjSBQKN, Circuit Judge:</p> <p>The Western Union Telegraph Company, the plaintiff in error, brings this wilt to reverse a judgment against it in favor of Idiomas McGill, Richard Lambert McGill, and Jessie Margaret McGill, the defendants in error, who wore the plaintiffs below, fbr causing the de.ath of Rebecca G. McGill by neglecting to deliver a telegram. Rebecca, G. McGill was the wife of Thomas McGill, and the mother of the other defendants in error.</p> <p>In ihe year 1808 ihe legislature of ihe state of Kansas enacted the following statute: “When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an aoüon therefor against the latter, if the former might have maintained an action had he lived, for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” Gen. St. Kan. 1889, par. 4518.</p> <p>In the year 1889 that legislature enacted the following statute: “That in all eases where (he residence of the party whose death hits been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 18(58, (now paragraph 4538, supra,) is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or lias been appointed, the action provided in said section 422 may be brought by the widow, or whore there is no widow, by (he next of kin of such deceased.” Gen. St. Kan. 3889, par. 4539.</p> <p>The plaintiffs base their action upon those two statutes. Evidence of the pecuniary loss to the widower, Thomas McGill, by the death of his wife, was received in evidence over the defendant's objection. The court i «fused a request of the defendant to instruct the jury “that Thomas McGill, being the luisband of tbe deceased, is not tbe widow or next of bin, and is not, under tbe law, authorized to maintain this action against tbe defendant.” These rulings of tbe court, with others, are assigned as error.</p>

<p>1. Treaties — Compact of March 28. 1785, between Maryland and Virginia —Construction—Fisheries in Pocomoke River.</p> <p>Section 7 of the compact between Maryland and Virginia, entered into March 28, 1785, provided that “the citizens of each state, respectively, shall have full property in the shores of the Potomac livt-r adjoining their lands, with all advantages tin reunto belonging, and the privilege of carrying out wharves and other improvements so as not to obstruct or injure the navigation of the river; but the right of fishing' in the river shall be common to the citizens of both states; p'ovided ti at such common right be not exercised by the citizens of one state to the disturbance of the fisheries on the shores of the other state; and that the citizens of neither state shall have a right to fish with nets on the shores of the other;” and section 8 of the compact provides that “all laws which may be necessary for the preservation of fish, or for the performance of quarantine in the river Potomac or for preserving and helping open the channel and navigation thereof, or of the river Pocomoke, within the limits of Virginia, by preventing the throwing out of ballast, or giving any other obstruction thereto, shall be made with the mutual cons nt and approbation of both states.” Held, that re'ther d’r. ctly, nor by implication or construction, did sections 7 and 8 grant a common right of fishery, including the catching and taking of oysters, in Pocomoke river, to the citizens of Maryland, or a right to joint legislation for the protection of fish in such river to the state of Maryland. Hendricks v. Com., 75 Va. 934, disapproved.</p> <p>2. Same — Fisheries in Pocomoke Sound.</p> <p>Even if a common right of fisheries in Pocomoke river had been granted by the compact, such right would not have extended to Pocomoke sound, as a part of such river, since the river and sound have always been considered distinct bodies of water, and are so designated in the report of Commissioners Scarborough and Calvert, made in 1608; in the map of Augustin Herrman, published in 1673; in the first and all subsequent editions of the United States Coast Sumy; and in the Black-Jenkins award of January 16, 1877, which established the boundary line between Maryland and Virginia, and was accepted by the two states, and ratified by Act March 3, 1879, (20 Stat. 481.)</p> <p>3. Same — Doubtful Boundary — Effect of Subsequent Establishment.</p> <p>Section 10 of the compact of 1785, which stipulates that offenses committed hy citizens of Maryland within the limits of Virginia, on that part of Chesapeake bay where the line of division between Smith’s point and Watkins’ point may be doubtful, shall he trh d in a court of Maryland, lost its force and effect by the Black-Jcnklns award, which established with precision and certainty the line of division between such points, so that a Virginia court is now competent to try such offenses.</p>

In Equity. Suit by the Stilwell & Bierce Manufacturing Company against S. N. Brown & Co. for infringement of a patent. There was a decree for complainant in the court below, (49 Fed. Rep. 738,) and defendant appeals.

<p>Patents for Inventions — Invention—Combination—Oil-Well Tools.</p> <p>Letters patent No. 422,879, issued March 4, 1890, to W. Porgie, for a wrench for oil-well tools, consisting- in the adaptation of a lifting jack to produce a circular horizontal pressure against the arm of a wrench, for the purpose of screwing and unscrewing the tools, are void for want of invention, as this was ohly an. adaptation of the jack to an analogous use, and as neither it nor the wrench perform any new function.</p>

<p>In Equity. Bill for infringement of patents. Decree for complainant.</p>

<p>1. Circuit Courts — Jurisdiction—Citjzenshjr—Railroad Receivers — Ancillary Bill.</p> <p>Where a suit is pending in a federal court for the appointment of a receiver and the foreclosure of a railroad mortgage, the court will take jurisdiction, without regard to the citizenship of the parties, of another bill filed by lien claimants, since their right to enforce their liens in the state court will he cut off when the federal court takes possession of the property; and their suit may be regarded as in substance an ancillary hill.</p> <p>2. Railroad Companies — Contractors’ Liens.</p> <p>Under the Tennessee statute of March 29, 1883,' relating to railroad contractors’ liens, the contractor must deal directly with the company in order to secure a lien for his work and material; or, if a subcontractor, he can have no lien unless he serves notice on the railroad company of the principal contractor’s failure to pay him, and unless, at the time of such notice, the company shall owe money to the principal on the contract which the subcontractor has helped to perform; and the lien is limited to the amount so due the principal contractor.</p> <p>8. Same — Construction of Contracts — Subcontractors.</p> <p>The fact that one who makes a construction contract with a railroad company is its principal stockholder, and dominates and controls its action, does not render him an agent of the company, so as to make his individual subcontracts in law the contracts of the company, when neither he nor the company hold out to the subcontractors the existence of any such agency, or, as between themselves, had any intention of establishing such agency.</p> <p>4 Same.</p> <p>While construction contracts made by a dominating stockholder with a railroad company for his own benefit are looked upon with suspicion, and frequently condemned by the courts when drawn in question by other stockholders, bondholders, or by the corporation itself, yet their legal existence cannot he questioned by third persons who are not injured thereby, as in the case of subcontractors who dealt with the contractor in his individual character.</p> <p>5. Same — Vendor’s Lien — Conveyance of Right of Way.</p> <p>Persons who convey a right of way in Tennessee directly to a railroad “company are entitled to a lien for the purchase price prior to that of the mortgage bonds of the company.</p> <p>6. Same — Construction Contract — Fraudulent Judgment.</p> <p>The dominant stockholder in á railroad company, having made a construction contract with the company in his Individual character, failed ta pay his subcontractors. Thereafter, in order to give to the subcontractors and material men a lien on the road under the Tennessee statute of March 29, 1883, their representatives, acting with the principal contractor, and by means of his control over the board of directors, obtained an acknowledgment on the minutes of the company of an amount still due him, vastly more than was really due him, and more than sufficient to cover all the claims. The contractor sued for this amount in a state court, and the company’s attorney consented to a judgment therefor. Held, that this judgment was fraudulent as against persons injured thereby, and was of no evidential force when the claim was contested by holders of prior mortgage bonds of the company in a foreclosure suit in a federal court.</p> <p>7. Same — Railroad Mortgages — Validity.</p> <p>Two railroads, owned by companies A. and B., were constructed to form one line, and as a common enterprise, the controlling interest in the stock of each being held by the same parties. Company B. agreed with the contractor who built its road to pay him in mortgage bonds at a fixed rate per mile. The bonds actually delivered to and sold by him wore, however, issued by company A., but company B. gave a mortgage on its road to secure them. Held, that the persons acquiring these bonds had an equitable mortgage on the road, such as would entitle them to contest a fraudulent judgment which gave to subcontractors fictitious hens on the road.</p> <p>8. Same — Rights oe Subcontractors — Fraudulent Conveyances.</p> <p>The subcontractors could not object to the mortgage on the ground that it was given by the railroad when insolvent, and was therefore void under the Tennessee law; for, if they had any claim at all against the company, their claim was a lien prior to the mortgage, and, if they had no claim against the company, but only against the principal contractor, then they had no interest in any disposition the company might make of its property.</p> <p>9. Same — Rights oe General Creditors.</p> <p>A general creditor, whose claim came into existence subsequent to the execution of the mortgage, could not object thereto on the ground of an unlawful preference.</p> <p>10. Same — Railroad Mortgages — Labor and Material Claims.</p> <p>The Tennessee statute of 1877, (chapter 72, p. 92,) providing that no railroad company shall have power to execute any mortgage or other lien which shall be valid as against judgments for work and labor done or timbers furnished, etc., applies only when the labor and materials arc furnished in such manner that the railroad company would be liable to pay the contractor or material man for them, and not when they are furnished to a principal contractor in his individual capacity, without establishing a lien in the manner prescribed by the Tennessee statute of March 29,1883; and if, in the latter case, judgments are nevertheless fraudulently obtained against the company, the statute will not prevent a court of equity from disregarding them.</p> <p>11. Same.</p> <p>The fact that the money obtained on a draft given by a railroad company to its principal contractor for construction of its road was used by him to pay for labor and material will not create a labor or material man’s lien on the railroad in favor of the holder of the draft, it having never been paid.</p>

In Equity. ¡Suit by the Land & River Improvement Company against Lavinia II. Holladay and others to quiet title to certain lands. Decree for complainant. Defendants appeal. Held: etc., and that the same is for and on account of this said joint land business.

<p>In Equity. Motion by tlie Yew York, Pennsylvania & Ohio Railroad Company, as petitioner, to instruct receivers of the defendant as to tbe making of certain payments to petitioner. Tbe • motion was made upon petition presented August 8, 1893, and adjourned from time to time until September 20th, -when it was heard upon an amended petition, reply, and affidavits.</p>

<p>1. Circuit Courts — Jurisdiction — Action against Agent of the United States.</p> <p>The circuit court has jurisdiction of an ejectment suit by a landowner against an agent of the United States in charge of a public improvement which is alleged to be built on plaintiff’s land, and where defendant sets up and relies upon the government’s light and title the court may inquire and determine whether it is the superior title; but its judgment will not conclude or estop the United States, since the latter is not a party, and cannot be made a party without its own consent. Carr v. United States, 98 U. S. 433, followed. Stanley v. Schwalby, 13 Sup. Ct. Rep. 418, 147 U. S. 508, and Hill v. U. S., 13 Sup. Ct. Rep. 1011, distinguished.</p> <p>2. Circuit Court1 of Appeals — Jurisdiction.</p> <p>Under the judiciary act of March 3, 1891, § 6, (26 Stat. 826, c. 517,) the circuit court of appeals has jurisdiction to review on writ of error the judgment of a circuit court in an action of ejectment by a landowner against the agent of the United States in charge of the St. Mary’s ship canal, the piers of which are built upon the submerged land lying in front of plain tiff’s lot; such suit involving questions as to the government’s ownership and control of Such submerged lands on the borders of the St. Mary’s river.</p> <p>3. Navigable Waters — 1Title to Submerged Lands.</p> <p>The title to lands lying under a navigable river entirely within the boundaries of a state is not in the United States, but in the state; and the test of navigability is not the flow of the tides, hut navigability in fact.</p> <p>4. Same — United States Land Patents.</p> <p>A patent of the United Stales, conveying land lying upon the borders of a navigable river within the boundaries of a state, conveys no title to any land lying under the stream, since the United States had no title thereto.</p> <p>5. Same — Effect of State Laws.</p> <p>, Where, however, the law of the state, as an Incident to the ownership of. riparian- lands, attaches thereto the legal title to the submerged lands, extending to the thfead of the stream,, as in Michigan, such title will accrue to one who receives- from the United States a patent to the riparian lands.</p> <p>6. Same — Regulation of Commerce.</p> <p>■The title which a state has to lands lying beneath its public navigable rivers is held subject to a high public tru$t, to forever preserve them as public highways, and is subject to the power of congress to regulate commerce among the states; and, if this title is passed by the local laws to riparian proprietors, they take it subject to the same trust and to the same power.</p> <p>7. Same — Extent of Power — Right to Take Submerged Lands.</p> <p>The right of congress to regulate commerce involves the right to regulate navigation, and this, in turn, involves the use of submerged lands, in so far as such use is essential to the maintenance of the public highway; and hence the title of the riparian owner is subject to the right of congress to occupy the submerged land, without compensation, for the erection of structures in aid of commerce between the states, and it is immaterial that such structures are placed in shallow water, near the shore, so as to interfere with the owner’s access to deep water.</p>

At Law. Suit by Frank W. Greaves, assignee of James T. Harrison, against William H. Neal and others, to recover the value of ^property alleged to have been acquired by defendants by an unlawful preference. Defendants demur .to the declaration.

<p>1 National Banks — Insolvency—'Transfer of Deposit.</p> <p>Rev. St. $ 5242, which declares all deposits, all transfers of deposits, and all payments of money made by a national bank after an act of insolvency, or in contemplation thereof, to be null and void, does not render illegal the retention of a balance standing to the credit of an Insolvent national bank with a correspondent on the day of its failure, which has’ been pledged for the purpose of securing loans made by the correspondent, to the insolvent hank.</p> <p>2. Same — Insolvency—Pledge of Deposit with Correspondent.</p> <p>Where a deposit with a correspondent has, long prior to the commission of the act of insolvency by a national bank, been pledged as collateral to secure the payment of loans made to the Insolvent by its correspondent, neither the subsequent insolvency of the bank, nor the appointment of ihe receiver, destroys the lien of the correspondent, or its right to dispose of Uie pledge to satisfy the debt secured.</p> <p>3. Same — Powers of President.</p> <p>Authority of the president of a national bank to contract with a correspondent that a deposit with the correspondent to the credit of the bank shall stand as collateral for loans made by the correspondent to the bank may be established, by proof of the course of business, and by the usage and practice which the directors have permitted to grow up in tlio business of the bank, and by Ihe knowledge which the board of directors must bo presumed to have had of the acts of its subordinates in tlio affairs of the bank.</p> <p>4. Same — Evidence.</p> <p>In an action by the receiver of an insolvent national bank against a correspondent to recover the amount of a deposit by the insolvent bank with its correspondent, the evidence showed that the, board left it to the president, as the agent of the bank, to negotiate loans, and to make such contracts as to repayment and security as were lawful and usual. JhlfK that the evidence was sufficient to establish the authority of the president ‘to pledge the deposit with the correspondent as security for loans by it to the insolvent bank.</p>

Action by diaries A. Euss against tbe Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company for personal injuries. Plaintiff obtained judgment. Defendant brings error. Statement by WOODS. Circuit Judge: The defendant in error was the plaintiff below.

<p>In Error to the District Court of the United States for the District of Idaho.</p> <p>At Law. Action in the district court of the first judicial district of the territory of Idaho against Joseph Alexander and others, as sureties npon the bond of one Hibbs, a defaulting postmaster. Judgment was given for plaintiff, and, pending a motion for a new trial, the cause was transferred, on the admission of the territory into the Union as a state, to the district court of the United States for the district of Idaho, by which the motion was denied. Defendants bring error.</p>

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

<p>In Equity. Suits for the infringement of letters patent No. 186,787, issued January 30, 1877, to Alexander Graham Bell, for a telephone. Motion for preliminary injunction.</p>

In Admiralty. Libel by Charles Haritwen against the steam schooner Louis Olsen (William Olsen, claimant) to recover wages due libelant as master of the vessel. A decree was rendered for libelant. 52 Fed. Rep. 652. Claimant appeals.

Libel by the Cedros Island Mining & Milling Company against the-British Steamer Sirius, her cargo, J. Lowe and others, interveners. From a decree for libelant, (53 Fed. Rep. 611,) John Meek and H. M. Gregory, claimants, appeal.

<p>In Admiralty. Libel by Lewis H. Higgins and others against . tbe Gypsum Prince for collision. Decree for half damages.</p>

<p>1. Minks and Mining — Conveyances—Contracts for Royalties.</p> <p>After 1.67 acres of tlie territory within the exterior lines of location of the Silver King lode mining claim bad been awarded to the Sauquoit claim by a judgment of the state court, the owners of the Sauquoit claim purchased the Silver King claim, and in the contract to purchase, the deed, and an agreement to pay royally for ores extracted, the parlies described the Silver King claim as survey No. 4,716, and referred to the exterior lines of the location, and to such lines extended vertically downward, as being tlie subject-matter of the contract. TIdd, that the deed and contracts included the 1.67 acres as part of the Silver King lode mining claim.</p> <p>2. Written Instruments — Parol Evidence to Vary — Conflicting Testimony.</p> <p>Whore parol testimony, if competent to vary the legal effect or eonstruct ion of a deed and written contracts, is conflicting, an evenly-balanced cause must be determined from inspection and construction of the instruments.</p>

In Equity. Bill by the Washington National Bank of Tacoma for an injunction to restrain Jamos II. Eckels, the comptroller of the currency, and a bank examiner appointed by him as agent, from proceeding after the bank had, pursuant to a vote of more than two-thirds of its stockholders, gone into voluntary liquidation, ro rake possession of the assets of the bank for the purpose of putting the same in charge of a receiver.

In Equity. Bill by Oeceil J. Mills and Warrena Mills, by her next friend, against Fred H. Mills, for a reconveyance of realty and for an accounting. William M. Rider, as administrator of the estates of Warren H. Mills and Warren F. Mills, intervenes. Decree for complainants.

<p>In Equity. Bills by the Southern Pacific Railroad Company against Goodrich and others to quiet title to land. Respondents demur.</p>

In Equity. Application by Thomas R. Brown, receiver of the Seattle, Lake Shore & Eastern Railway Company, for a rule on Jacob Davidson, to show cause why he should not surrender to the receiver, possession of certain real property alleged to belong to said company.

<p>National Banks — Receiver—Action on Note — Equitable Defenses.</p> <p>In an action at law by the receiver of a national.bank on a note, the maker may plead as set-off any debt of the bank to him existing at the time of its failure, as the receiver takes the ehoses in action belonging to the bank subject to all claims and defenses which might have been interposed as against the bank before the liens of the United States and general creditors attached. Yardley v. Clothier, 49 Eed. Rep. 337, followed.</p>

In Equity. Suit by the. United States against the Oregon & California Railroad Company, John A. Hurlburt, and Thomas L. Evans to cancel patents, and restore land to the public domain. Defendants demur.

At Law. Action by the Consolidated Ice-Machine Company against the Trenton Hygeian Ice Company to recover the price of an ice-machine plant. There was a verdict for plaintiff, and defendant now moves for a new trial.

<p>1. Pleading — -General Demurrer to Several Pleas.</p> <p>A general demurrer which is died to several pleas must he overruled if any one of the pleas is good.</p> <p>2. Nuisance — Pleading—Limitation of Actions.</p> <p>In an action at law in a federal court in New Jersey for the maintenance of a nuisance, a plea of the slate statute limiting actions for nuisance to a period of six years Is good, it being necessary to plead the statute in order to limit tlie recovery to that time.</p> <p>8. Same — When Action Lies.</p> <p>An action at law for a private nuisance may be maintained against a person who actively maintains a nuisance originally erected by another, even though defendant lias never been notified to abate the same.</p>

At Law. Action by Abraham Smith against the Philadelphia & Beading Bailroad Company to recover damages alleged to have been caused to plaintiffs land. There was a verdict for plaintiff, and defendant moves for a new trial.

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>At Law. Action by Frank' Lemen against the city of Kansas City, Mo., for wrongfully closing an exhibition held by plaintiff in said city. Verdict and judgment for plaintiff. Defendant brings error.</p>

At Law. Action on a supersedeas bond, brought by Algernon S. Patrick against Erwin Davis, principal, and J. N. H. Patrick and James M. Woolworth, sureties. Judgment for plaintiff. Defendants bring error.

<p>At Law. Action for damages for wrongful death, brought in a state court and removed to this court by defendant. Heard on motion to remand.</p>

At Law. Action by Karl J. Danielson against the Northwestern Fuel Company for personal injuries. Judgment was given for plaintiff. Thereafter a premature execution was quashed, 55 Fed. Bep. 49. Defendant now brings error to reverse the judgment. Statement by SANBOBN, Circuit Judge: This is a writ of error to reverse a judgment against the Northwestern Fuel Company, the plaintiff in error, in favor of Karl J. Danielson, the defendant in error, for a personal injury.

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>At Law. Actions by Toliver Moseley against th.e Missouri Pacific Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Tn Equity. Suit by Edwin .Norton and others against M. A. Wheaton for infringement of letters patent NTo. 267,014, issued November 7. 1882, to Edwin Norton for a “machine for putting on the ends of fruit cans.” Decree for plaintiffs.

<p>In Equity. Bill by Edward Norton and Oliver W. Norton against tbe' Eagle Automatic Can Company for infringement of a patent. On motion for a preliminary injunction.</p>

<p>In Equity.</p> <p>Suit by Smith, Myers, and Sclmier, oí Cincinnati, assignees of Samuel K. Smith, for infringement by the Vulcan Iron Works of San Francisco, upon patent No. 412,(i 15, granted, to Samuel 11. Smith on December 16, 1890, for “improvement in band-saw mills.” The invention consisted in an outside support for the front, hearings of the band-wheel shafts, and also in a sensitive automatic straining- device, whereby any slack of the saw is taken up, and the saw kepi, at the proper tension. The outside support consisted of a single hollow casting, described in the specification as inflows: "The front support of the band-wheel shafts is a single hollow casting, consisting of the horizontal portion, D, which has outwardly projecting flanges, d, which are</p> <p> </p> <p>planed off to joint against the planed seat upon tile column, C, to which it is securely held by bolts, and the vertical aims, I)1, D\ which receive and support the boxes or front bearings of the band-wheel shafts.”</p> <p>The. claims charged to have been infringed read as follows: “(1) In a band-saw mill, the combination, with the hand wheels and main supporting-frame or column, of an integral standard carrying the front hearings of the upper and lower hand-wheel shafts, said standard being attached to the front side of said main frame or column, between said band wheels, substantially as hereinbefore set forth. (2) The combination, substantially as specified, of the hollow supporting column, 0, and the hollow casting, D, D1, D3, centrally secured to said column, to furnish rigid supports for the front bearings of the upper and lower band-wheel shafts. (3) A support for the front bearings of the band-wheel shafts, having the flanged horizontal portion, D, to be secured to the supporting frame, a.nd the vertical arms, D1, D2, cast in one piece with said central portion, the said part, D, being bored to receive the adjustable bearing of the upper band-wheel shaft. (4) The combination of the base plate, A, cast in a single piece, the column, C, having a flanged base to be secured to said base, A, the front support for the band-wheel shafts consisting of the casting, D, D1, D2, and shield, D3, together forming a supporting frame for band-saw mills, substantially as hereinbefore</p> <p> </p> <p>set forth. (5) In a band-saw mill, the combination of the supporting frame, the vertically adjustable bearings for the upper band-wheel shaft, mounted in said' frame, the transverse shaft, 6, mounted on knife-edge bearings in said frame, and having arms, g, g1, secured upon said shaft to support the bearings of said upper band-wheel shaft, and the weighted lever, K, secured upon said shaft between the knife-edge bearings to counterpoise the bearings of the upper band-wheel shaft, and provide a sensitive automatic adjustment for the same, whereby the saw is kept at the proper tension, substantially as hereinbefore set forth. (6) The combination, substantially as hereinbefore set forth, of the supporting frame, the transverse shafr, G, having knife-edge bearings, g5, secured in it, the supporting plates, g*, resting oh brackets in said frame, the arms, g, g1, having steps at their outer ends, the hardened steel adjustment screws, g2, passing through said steps, the vertically adjustable bearings for the upper band-wheel shaft resting upon said screws, the lever, K, secured upon said shaft, and projecting through the frame, the rod, k, upon the outer end of said lever, K, the cap nut, k1, upon said rod, and the removable weights, k2, for the purpose specified.” “(10) In a band-saw mill, the combination of the column, O, brackets projecting from said column, a rock shaft having knife-edge bearings resting upon said brackets, a weighted lever, and two arms, g, g1, secured upon said rock shaft, with the band-wheel shaft and its boxes, and rods supporting the boxes, said rods resting upon the arms, g, g1, substantially as shown and described.” The defendant made and sold band mills constructed under the patent No. 468,303, granted to it as assignee of the inventor, Charles ,T. Koefoed, on February 2, 1892, in which was shown an outside support for the front hearings of the band-wheel shafts, differing from that of Smith only in being cast in two pieces, and then bolted together. In the straining device of complainants’ patent, the rock shaft was mounted on knife-edge hearings by inserting the knife edges into the under side of the shaft at each end, and allowing them to vibrate in a small grooved plate resting on a bracket attached to the frame. In the defendant’s straining device, this arrangement. was reversed, the knife edges being inserted into the brackets and the grooved plates in the rock shaft.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>in Equity. Suit for infringement of a trade-mark. The bill was dismissed by the circuit court, (53 Fed. Rep. 493,) and complainant appeals.</p>

In Equity. Bill by the Lake Erie & Western Railroad Company againsi Ike board of commissioners of Seneca county, Ohio, William H. Schlosser, auditor, and William Collins, to enjoin them from constructing a ditch on complainant’s right of way. On motion to dissolve a temporary injunction.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In Equity. Applicaiion by the interstate commerce commission to enforce an order made by it against the Texas & Pacific Railway Company forbidding discrimination in freight rates. The petition was granted by the circuit; court, (52 Fed. Rep. 187,) (and the respondent appeals.</p>

<p>Public Lands — Soldiers’ Additional Homestead Rights — Assignability. The right to enter a soldier’s additional homestead under Rev. St. § 2306, is an absolute right, not subject to the restrictions of the homestead act, and is assignable before entry maxie. Anderson v. Carkins, 10 Sup. Ct. Rep. 905, 135 U. S. 483, distinguished.</p>

In Equity. Suit by Josephine Hatch, an Indian woman, against E. O. Ferguson, Henry Hewitt, Jr., and the Everett Land Company, to determine adverse claims to land upon which the city of Everett is in part located, and to annul a deed conveying her title to said land, executed by said Ferguson as her attorney in fact.

In Equity. Suit by Dexter Hatch, Arthur Hatch, Cyrus Hatch, and Ezra Hatch, minors, by their next friend, Josephine Hatch, against E. C. Ferguson, Henry Hewitt, Jr., the Everett Land Company, Judson La Moure, and Minnie E. La Moure, to determine adverse claims to land upon which the city of Everett is in part located, and to annul a judicial sale of their title to said land. Decree for complainants.

In Equity. Suit by Hester Hatch against E. O. Ferguson, Henry Hewitt, Jr., and the Everett Land Company to determine adverse claims to the title to land upon which the city of Everett is in part located, and to annul a deed conveying her title to said land, for alleged fraud.

At Law. Action by George W. Russ against Joseph Telfener for breach of a contract for the purchase of certain rights acquired by plaintiff in state lands. Judgment was given for plaintiff, but on writ of error this was reversed by the supreme court. 12 Hup. Ot. Rep. 930, 145 TJ. S. 522. The cause is now up for a second trial.

<p>Tu Equity. Buii for infringement of a copyright. On demurrer to the bill.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>In Equity. Bill by the Eagle Manufacturing Company against Hie David Bradley Manufacturing Company to enjoin infringement of a patent. Complainant obtained a decree. 50 Fed. Bep. 193. Defendant appeals.</p> <p>Statement by JE IS KINS, District Judge:</p> <p>The appellee, on the 11th day of June, 1888, filed its bill in the court below to restrain the alleged infringement by the present appellant of letters patent of the United States No. 242,407, dated the 7th day of June, 1881, issued to Edgar A. Wright for improvements in cultivators. The bill, besides the usual averments in such suits, charged that on December, 1887, the complainant (the present appellee) “commenced suit by bill in chancery against David Bradley & Go. in the circuit court of the United States for the southern district of Iowa to restrain the said David Bradley & Go. from infringing the aforesaid letters patent; that the said David Bradley & Go. is and was a branch house of the David Bradley Manufacturing Company, the defendant herein, and wits engaged iu selling the identical cultivators manufactured by the defendant herein; that the defendant herein undertook and managed the defense of said suit against its branch house, employing counsel for that purpose, and conducting the defense, but it conduct,ed the defense in the name of the said branch house, tito defendant named of record; that the defendant herein, answering said bill iu the name of the said branch house, denied the validity of said letters patent, and any infringement thereof, to which answer a replication was filed by your orator, and thereupon your orator and the defendant proceeded to take and took their respective proofs, and, the same having been taken, the said cause was heard on final hearing at the May term of said court at Des Moines, A. D. 1888. And the said court, having considered the proofs and the arguments of counsel, did adjudge and decree that the said David Bradley & Co. had infringed the said letters patent, and did enjoin the aforesaid David Bradley & Co. from further infringement thereof, which said decree remains in full force and unreversed; all of which proceedings and things will more fully appear by a certified copy of the records of said court, which your orator is ready at any time to produce in court, as may be directed; and your orator attaches hereto a certified copy of said decree, marked 'Exhibit O.' And your orator further shows that the cultivators sold by the said David Bradley & Go. were made by the defendant herein under letters patent of the United States No. 243,123, to C. A'. Hague, dated June 21, 1881, and No. 270,629, to B. C. Bradley, January 16, 1883, which said patents were issued to the Furst & Bradley Manufacturing Company as assignee of said Hague and ¡Bradley, and passed to the defendant herein, the successor of the said Furst & Bradley Manufacturing Company. The said cultivators as made by the defendant are correctly shown by the drawings in the said letters patent to said B. C. Bradley.”</p> <p>. The decree referred to in the hill as “Exhibit C” is as follows: “This cause came on to be finally heard upon the pleadings and proofs, and was argued by counsel for the respective parties, and, the pleadings and proofs having been duly considered, it is hereby, tliis 23d day of May, 1888, ordered, adjudged, and decreed as follows, viz.: The letters patent referred to in complainant’s bill, being letters patent of the United States, granted unto Edgar A. Wright, for improvements in cultivators, No. 242,497, and dated June 7, 1881, is a good and valid patent; and that the said Edgar A. Wright was the first and original inventor of the improvements therein described and claimed; and that the said complainant had at the commencement of this cause a good and legal title to said letters patent No. 242,497, as averred in complainant’s bill; and that the said defendant has infringed the said patent, and upon the exclusive rights of the complainant under the same, as claimed in the first four claims of said patent. And it is further ordered, adjudged, and decreed that the defendant above named, its servants, agents, operatives, and workmen, each and every one of them, be, and they are, perpetually enjoined and restrained from either directly or indirectly making, using, or selling to others to be used, cultivators constructed" and operated in the manner and upon the principle described in said letters patent of the United States No. 242,497. And it is further ordered, adjudged, and decreed that the complainant recover of the defendant the profits which it has received or made or which have accrued to it by the use or sale of the improvements described and secured by said letters patent at any and all times since June 7, 1881, and also the damages which the complainant has sustained thereby. And as it does not appear to the court what said profits and damages are, it is further ordered, adjudged, and decreed that this canse be referred to George F. Henry, Esq., a master of this court, to take and report to the court an account of the profits which the defendant has received, or which have arisen or accrued to it from the use or sale of said improvements, and to ascertain and report the damages which the complainant has sustained thereby since June 7,1881, from the papers and evidence in the cause, and from any evidence which "either party may produce before him of the same; and when he shall have taken an account of said profits and assessed said damages he shall return the same to this court for further action in the premises. And it is further ordered, adjudged, and decreed that the complainant on such accounting has the right to cause an examination of the officers, agents, and employes of the defendant ore tenus or otherwise, and also the production before said master at such time as said master may order of the books, vouchers, and documents of the defendant, and that the officers of said defendant attend before said master from time to time within this district as said master shall direct And it is further ordered that the question of increase of damages, and all other questions, be reserved until the coming in of the master’s report. And it is ordered that the parties and master may apply on the foot of this decree for such other and further order of instruction as may be necessary. And it is further ordered, adjudged, and decreed that the complainant recover of the defendant the costs of this suit to be taxed.”</p> <p>The answer of the defendant (the present appellant) contains the following admissions respecting such charges: “Fourth. This defendant, further answering, admits that a suit was commenced by the Eagle Manufacturing Company, the complainant herein, against David Bradley & Co. in the circuit court of the United States for the southern district of Iowa, substantially as in' said bill alleged. They admit that said David Bradley & Co. was and is a separate corporation, and in part a branch house or agency of this defendant, and was engaged" in selling, with other machinery, cultivators manufactured by this-defendant. They admit that said suit was to a certain extent defended by this defendant: They admit that pleadings were filed, and proofs taken, as set forth in said bill. Fifth. This defendant, further answering, admits that said last-named suit was heard at the time and place alleged in said hill, and time a decree was rendered adjudging that said David Bradley & Oo. had infringed the said letters patent No. 243,497, and that the said David Bradley & Oo. was enjoined from further infringement thereof; but; this defendant avers that in said cause the finding of the court was against the defendant, largely, if not wholly, by raison of the said court not understanding the operation of the machine shown in one of the patents set up as anticipating the supposed invention of complainant’s patent, to wit, the Dalton patent of 1869; and this defendant has reason to believe, and does believe, that if the court had fully understood the machine of said patent, the finding and decree would have been different. Sixth. This defendant, further answering, admits that the cultivators sold by the said David Bradley & Oo. were made bv ihis defendant under and in accordance with letters patent of the United States No. 243,123, dated June 21, 1881, to C. A. Hague, and No. 270,629, da i eft January 16, 1888, to B. O. Bradley.”</p> <p>Hiere was given in evidencie in this suit the following admission by the defendant: “in the suit ponding in the circuit court of the United States for the southern district of Iowa, wherein the Eagle Manufacturing Company is complainant, and David Bradley & Oo. defendant, and which suit was brought to restrain ¡he infringement of the letters patent in suit herein, the defendant in this cause, the David Bradley Manufacturing Company, employed counsel, took charge of and conducted the defense of said suit in the name of the said Bradley & Co., ami paid the expenses thereof. This was done by the defendant herein, the same as it would be done by it for any agent, branch house, or customer engaged in selling implements purchased of the defendants, if sued for infringement of a patent on account of soiling such goods.”</p> <p>Jt also appeared in evidence that in the suit in the circuit court of the United Stales for the southern distiict of Iowa against David Bradley & Co., the master, ro whom the cause was referred to ascertain and report the complainant's damages, on or before October 15, 1889, reported to the court as follows: “That the complainant has already brought suit against the manufacturer of the cultivators which were sold by the defendant, electing.to recover in full of said manufacturer all profits and damages arising from the sales by (ho defendant herein as well as other profits and damages, and for that reason will offer no proof of profits and damages in the cause. Accordingly the master reports that the complainant is entitled to recover the sum of one cent nominal damages and costs.”</p> <p>This report was made pursuant to the following stipulation of the parties: “It is hereby mutually agreed by and between the Eagle Manufacturing Company and the David Bradley Manufacturing Company, on this 250) day of September, 1889, as follows, to wit: That said Eagle Manufacturing Co. may cause the master in (lie case of Eagle Manufacturing Co. v. David Bradley & Company, pending at Dos Moines, Iowa, in the United States circuit court for the southern district of Iowa, to return to the court the annexed report; and the action of the court thereon shall not be claimed by said David Bradley Manufacturing Co. to be a bar to the recovery by the Eagle Manufacturing Company of the said David Bradley Manufacturing Company of all damages and profits, if any, arising from the sale of the cultivators by the said David Bradley & Co. in violation of the letters patent 242,407, to E. A. Wright, and by him assigned to the Engle Manufacturing Co.”</p> <p>On the 23d day of October, 1889, the following written, stipulation was signed and filed in the «rase: “The following proofs were offered in evidence in said cause this 23d day of October, 1889: The complainant appeared by Nathaniel French, its solicitor, and the defendant, though not appearing, consented in writing to the introduction of said proofs, in so far as the same are material; and thereupon the complainant offered in evidence the fin,'ll decree of the circuit court of the United States for the southern district of Iowa in the ease of Eagle Mfg. Oo. v. David Bradley & Co., which same is marked ‘Complainant’s Exhibit Bradley Final Decree;’ and thereupon the complainant offered in evidence a stipulation entered into by defendant in regard to the testimony of E. A. Wright, A. K. Itaff, G. W. French and E. P. Dyneh, taken in the case of Eagle Mfg. Co. v. Miller, pending in the circuit court of the United States for the southern district of Iowa, together with a copy of said depositions and the exhibits therein referred to. The complainant also offered in evidence ¡the admission of the defendant that it conducted the defense in the said suit of Eagle Mfg. Co. v. David Bradley & Co., and also a copy of letters patent No. 226,833, to B. C. Bradley, dated April 2T, 1880; and therupon the complainant announced that its case was closed. The defendant herein hereby consents to the foregoing proceedings.”</p> <p>Under such stipulation the complainant offered and read in evidence the final decree of the circuit court of the United States for the southern district of Iowa in the case referred to, as follows: “This case coming on for hearing on October 15, 1889, being the first day of the May term of said court, on the report of the master, and thereupon, in addition to the matters adjudged and decreed in the decree hereinbefore rendered on May 23,1888, it is now ordered, adjudged, and decreed that the report of the master be confirmed, and that the complainant have and recover of the defendant the sum of one cent nominal damages, and the costs of the reference to the master to be taxed.”</p> <p>The answer in this cause asserts that the defendant, appellant here, is now constructing, selling, and using cultivators which are exactly the same as those sold by David Bradley & Co.; that such cultivators are manufactured under and in accordance with letters patent of the United States No. 243,123, dated June 21, 1881, granted to Charles A. Hague, and No. 270,629, dated January 16, 1883, granted to Byron C. Bradley. It also asserts the invalidity of the appellee’s patent for want of novelty, and that the invention was anticipated by certain letters patent specifically stated. These defenses were pleaded to the suit of this appellee against David Bradley & Co. See Manufacturing Co. v. Bradley, 35 Fed. Rep. 295. The defenses here and there are substantially the same, except that here, in addition to the assertion of the patent to Dalton, common to the defenses in both suits, prior knowledge and use by Dalton is asserted independently of his patent It is not claimed, however, that such use and knowledge goes further than the patent to him, pleaded, and considered by the court in the Iowa suit. There is this further exception: that by an amendment to the answer here the appellant alleged prior use by “Charles A. Hague, at Chicago, in the shops of the Furst & Bradley Manufacturing Company, now the David Bradley Manufacturing Company,” in addition to the prior use asserted theretofore in the answers, both in the case here and in the suit in the southern district of Iowa, The Hague patent was, however, asserted in the answer in the Iowa suit as one of the patents' under which the appellant’s cultivators were manufactured.</p> <p>The court below entered an interlocutory decree for the complainant, containing the usual' direction for an injunction, upon the ground that the decree in the Iowa case was binding upon the defendant, and precluded it from further contesting the validity of the complainant’s patent. Eagle Manuf’g Co. v. David Bradley Manuf’g Co., 50 Fed. Rep. 193. The present appeal involves the correctness of that ruling.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>In Equity. Bill by the Eagle Manufacturing Company against the Moline Plow Company to restrain the infringement of a patent Complainant obtained a decree. Defendant appeals.</p>

<p>In Equity. Bill by Charles R. Lynde against the Columbus, Chicago & Indiana Central Railway Company, Archibald Parkhurst, and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, to foreclose a mortgage. Heard on a plea in bar.</p>

<p>1. Corporations — Powers—Accommodation Paper.</p> <p>A business corporation has no power to accept accommodation paper, and the officers who cause it to make such acceptance are personally re-; sponsible to it for payments made or liabilities incurred in consequence thereof.</p> <p>2. Same — Assignments—Preferential Mortgages.</p> <p>Where the controlling directors of two corporations are the same persons, a preferential mortgage given by one to the other as security for payments and liabilities resulting from an acceptance of drafts by the latter for accommodation of the former is invalid, because it operates to protect the officers of the accepting company against personal liability for their maladministration in Accepting paper for accommodation.</p>

In Equity. Suit by the Indianapolis Water Company against '■the American Strawboard Company to enjoin the pollution of a stream. A demurrer to the original and supplemental bills was heretofore overruled. 53 Fed. Rep. 970.

In Equity. Petition by the Interstate Commerce Commission for the enforcement of an order made against the Detroit, Grand Haven & Milwaukee Railway Company.

<p>In Equity. Bill lor the specific performance of a contract. Decree for complainant.</p> <p>The contract in question in this case was executed January 28, 1888, and is as follows: “This agreement, made and entered into by and between the American Box Machine Company, of Amsterdam, New York, party of the first part, and George A. Grosman, John C. Metcalf, and John B. Rollins, all of Lynn, Massachusetts, and George W. Glazier, of Salem, Massachusetts, parties of the second part, and the Lynn Box Machine Company, of Lynn, Massachusetts, party of tho third part, witnesseth: Whereas, party of the first part is the owner of certain letters patent of the United States for box-covering machinery, among them letters patent dated July 26, 1881, granted to Gordon Monro, numbered 2-14,919, and letters patent dated May 27, 1884, granted to Horace Inman, numbered 299,225; and whereas, the parties of the second part heretofore made or sold or used box-covering machines which party of Hie first part claimed to he infringements upon the said letters patent; and whereas, party of the first part, on or about-brought suit; against Orosman and Metcalf, and also another suit against said Rollins and Glazier, for alleged infringement upon said patent No. 244,019, and also, on or about the ---- day of ----, another suit against said parties of the second part conjointly, for alleged infringement of said patent No. 299,225; and whereas, Hie parties of the second part, in June last, organized themselves into a corporation under the laws of the state of New Hampshire, entitled tho 'Lynn Box Machine Company,’ which has succeeded to their business as manufacturers of paper-box machinery; and whereas, said party of the third part, by assignment, is the owner and holder of certain letters patent of the United States granted to said George W. Glazier, both dated April 5, 1887, and numbered, respectively, 360,582 and 360,583; and whereas, the parties -“hereto are desirous of settling all questions of difference between them: Now, therefore, the parties hereto covenant — agree—each with the other as follows: First. Decrees shall be entered in each of said suits according to the prayer of the bill therein. The counsel for the defendants therein shall consent thereto, either orally in open court, or in writing, as party.of the first part may elect. Second. All costs and accounting in each of said suits is hereby waived. Third. In the event of breach of this agreement by party of the first part in such manner as to materially -affect the rights of parties of tho second and third parts, or of the trustees herein provided for, then said decrees in each of said cases are to be vacated at the election of the defendants in said cases, and the same shall proceed for judicial determination. Fourth. A trust shall be forthwith created, and a trustee, who shall be approved by party of the first part, shall acquire title to said patents of party of the third part; and said trustee shall forthwith, upon his assuming said trust, give and grant to the party of the first part an exclusive license to make, use, and sell throughout the United States, and until the 27th day of May, 1901, to which date this agreement shall remain in force, the inventions described and claimed in said letters patent as assigned to him; and the party of the first part shall have the right to institute or defend suits or proceedings, as it may elect, in the name of tho said trustee, the expense thereof to be borne by party of the first pax-t. Upon the creation of said trust, and the acceptance thereof by said trustee, the pax-ties of tho second and the third parts shall forthwith coaso to carry on the business of making, using, ox-selling box-making machinery covered by said patents, or other patents now owned by the pax-ty of the first pax-t, except as hereinafter provided. Fifth. The said trustee shall be constituted, by pax-ty of the first part, its agent irrevocable, during the continuance of this agreement, to sell all machinery made or controlled by party of the first part in any wise applicable to the manufacture of paper boxes, with a commission for selling of fifteen percent. on the gross selling price. The selling power of said trustee may be delegated by him to other persons, to be approved by pax-ty of the first pax-t, or, if not, tlioix such trustee to be responsible personally for the unauthorized acts of said agents. All machines sold shall be billed in tho name of pax-ty of the first pax-t, axxd all business shall be transacted by said trustee and by his salesman in the name of party of tho first part, and upon the same terms as pax-ty of the first part gives to its customers. Sixth. Said tx-ustee shall have the exclusive right to make, or cause to be made, the single-strip machines for ‘topping’ and ‘covering’ that embody the inventions, or substantial parts thereof, described in the said patents owned by party of the third part, and shall receive therefor, from party of the first part, the sum of forty ($40) dollars for each of said machines, which shall be constructed in good and substantial manner, as ax-e made by party of the third part, and' may embody in said machines, at the same cost of manufacture, any of the improvements described in letters patent owned or controlled by party of the first part, provided said added parts do not constitute a ‘double-strip’ machiixe. The said sum — fox-ty dollax-s — shall be paid to said trustee for the machines of the size and style theretofore sold by party of the third part for one hundred dollars, and for the machines of the size and style theretofore sold by it for one hundred and twenty-five dollars an additional cost price shall be allowed, equal to the additional expense incurred in makixxg the same, and the selling price of said last-named machines may, if desired by pax-ty of the first pax-t, be advanced at least sufficiently to cover such additional cost; and, if, at any time thex-eafter, the said trustee or persons associated with him make further sxxpposcd improvemexxts, they shall be submitted to the party of the first part, and, if approved by it, then an allowance shall be made, and added to the cost price of said machine, equal to the excess of costs, if any, x-equired to make the machines with such improvements. If the said improvements are not approved by party of tho first pax-t, then the said trustee shall have the right to embody said supposed improve-meats in said machines at the original price, to wit, forty dollars, ($40,) and sell the same in the, market as and for the price that, the original machines are sold. If, at any subsequent time, the party of the first part shall decide to approve and adopt, the said improvements, then it shall allow actual cost of making said improvements in addition to the forty dollars, ($40,) above stated. There shall also be allowed to the said trastee the sum of twenty-five dollars on each machine, of whatever kind, which shall embody any of the inventions licensed as aforesaid by said trustee to party of the first part, or any material and substantial part thereof, whether said machines shall have been sold by parly of the first part or by said trustee; and, if said machine shall have been leased by party of the first part, then twenty-five per cent, of the rental thereof shall be paid, when received, to. said trustee, until the sum ol' twenty-five dollars per machine shall have been so paid. Said trustee shall be paid the further sum of fifteen dollars ($15) on each topping or covering machine made and sold by him, said fifteen dollars to ho in lieu of all oilier selling commissions whatsoever. Seventh. The selling price of the single-strip covering machines of the size and style heretofore sold by party of the third part for one hundred dollars, hereafter to be made by said trustee, and also Ihe single-strip machines made by party of the first part, shall he one hundred and fifty dollars ($150) each; and the price at which the topping machines made by said trustee shall be sold shall he one hundred and fifty dollars, ($150.) The said prices shall he cash prices; without variation. division, or allowance, or commissions to purchasers or others, except such variation as to terms of payment as may he from time to time agreed upon by the party of the first part and by said trustee, in writing, which terms shall be the same as given by the party of the first part to his customers for machines for a similar purpose. The lopping machines made by the party of the first part shall not be sold for a, sum less than one hundred and fifty dollars, ($150,) upon terms of payment the same as above stated. Eighth. If the parly of the first part shall reduce the price of its double-strip machines, which are now sold at three hundred dollars, ($1400,) then the price of the single-si rip machine made by said trustee shall be reduced one-, half ihe amount of such reduction, the manufacturing cost, royalty, and; commissions to remain unchanged. Ninth. All orders from purchasers fur-' nislied by said trustee shall be filled by the party of ilie first part, unless there is reasonable ground to question the ability Of the purchaser to pay for the same, and then ihe order shall he tilled, provided good and sufficient sureties, are furnished for said payments. Tenth. The party of the first part agrees to advertise, in its catalogue and otherwise, ihe said machines made by said trustee, and put the same upon the market, in substantially the same manner, and with the same advantage, as it does the machines of a similar character made by it. Eleventh. Regarding the machines, both covering and topping, heretofore sold by parties of the second or third parts, it is agreed as follows: (a) Vo interference shall be made by the party of till' first: part with the free use, of the machines which are now in the shop lately owned by said Grossman, in Lynn. Massachusetts, and by him sold to one Theodore Tinkhain, and no claim for damages or royalty made therefor, (b) A full list of all machines >old by said parties of the second and third parts for covering or topping boxes shall be forthwith furnished to- party of the first part, which shall state those not already delivered, (c) No claim shall be made by party of the first part against any purchaser of machines which have been delivered, but not paid for. (d) No claim shall be made against any purchaser of such delivered machines against whom no bill has been filed, (e) Tarty of the first ¡>art will hold the parties of ilie second part harmless for all liabilities to purchasers by reason of sales of said machines made prior to the formation of the party of the third part, (f) The said trustee shall forthwith notify all purchasers, stated in subdivisions c and d of the clause, that the machines bought, by them have ticen licensed by the party of the first part. Twelfth. Sra i ements shall he exchanged, and settlements made for the preceding statement. on the first days of January, April, July, and October of each year, or wi chin seven days thereafter, for all machines sold and paid for, and each of said parties shall keep hooks of account of all the transactions embraced in this agreement, which shall at all reasonable times be open to the inspection of either of said parties or their duly-authorized agents. Thirteenth. Upon the termination of this agreement, party of the first part shall reassign to said trustee, or his successor, all rights conveyed to it under the license from said trustee hereinbefore provided. Fourteenth. The said trustee shall have the right to collect for all sales of machinery made by him or his salesmen under this agreement. And whereas, the parties of the second part believe that the single-strip machine made by them can be perfected and modified so as to constitute a double-strip machine superior to the double-strip machines now made by party of the first part, it is therefore agreed that said trustee may experiment and construct machines embodying such improvements to the end stated, and may place them, not exceeding three at any one time, in such box shops as he may choose for practical test, notifying party of the first part in writing where same have been so placed, all of which, however, shall be done by the said trustee in the name of the party of the first part; and party of the first part shall have the right to adopt or reject said improvements upon reasonable trial, and, if rejected by party of the first part, the expense of such improvements shall be sustained by said trustee, and he shall forthwith close the manufacture of all such rejected parts, and shall retake the said machines into his custody. If, however, the party of the first part shall adopt such improvements, then the questions of costs of manufacture, royalty, commissions, and selling price shall be determined by' subsequent agreement.”</p> <p>After setting out the contract, the bill avers that, in and by the said agreement, the defendants Grosman, Metcalf, Rollins, and Glazier, and the Lynn Box Machine Company “agree that Upon the creation of the trust provided for in- the fourth clause, and the acceptance thereof by the said trustee, they should forthwith cease to carry on the business of making, using, or selling box-making machines covered by said patents, or other patents” owned by complainant “except as thereinafter provided;” that the defendant Kilham was in February, 1888, appointed trustee; that he accepted the trust, and entered upon the performance thereof, and that in violation of said agreement the defendants have jointly and severally, the first four as directors of the Lynn Box Machine Company, with the consent of Kilham, carried on the business of making, using, and selling box-making machines of the same kind and character, in principle and mode of operation, as the machines made and sold by the defendants Crosman, Metcalf, Rollins, and Glazier before the commencement of the suits above mentioned, and the making, using, and selling of which were decreed in said suits to be infringements of the patents involved therein, and which they were enjoined from malting, using, or selling; and the defendant Kilham, in violation of the agreement and his obligation as trustee, has not only consented to make, use, and sell, but has actively promoted and encouraged the same. The answer admits the foregoing allegation contained in the nineteenth clause of the complaint, except that part in which it is alleged that the defendants have jointly or severally violated their agreement with, or duty to, the complainant. In other words, the defendants admit the facts alleged in the bill, but deny that they constitute a violation of the agreement.</p> <p>The bill further alleges that the defendants Crosman, Metcalf, Glazier, and Rollins and the Lynn Company have continued to carry on the business of malting and selling box-making machinery covered by the Monro single-strip patent and the Inman topping-machine patent in defiance of complainant’s rights under the contract, and are aided in doing so by the defendant Kilham. The bill further shows that the defendants have infringed the Monro double-strip patent by making, using, and selling box-covering machines, employing therein the invention patented by that patent, and threaten to continue such infringement; that the defendants falsely pretend to the public that they are licensed by the complainant to make and sell machines embodying the invention patented by the double-strip patent, and that the public have been deceived thereby, and have bought machines from the defendants, the making, use, and sale of which was not authorized by the complainant, and was in violation of its rights, and that the complainant has been greatly damaged thereby; that the inventions patented in complainant’s said patents are capable of conjoint as well as separate use in the same machine, and they have been. so used by tlie defendants; that the defendants’ acts have caused great damage io ihe complainant; that The defendants’ continued violation of said agreement will cause tlie public io disregard the complainant's rights, and especsially the complainant’s rights to tlie invention patented by the double-strip patent.</p> <p>Tlie circular letter of May 25th, referred to in the opinion as being found in the catalogue of the Byim Box ‘Machine Company, was as follows:</p> <p>“Amsterdam, N. Y., May 25, 1888.</p> <p>“To Paper Box Manufacturers: You are hereby Informed that ail litigation by the American Box Machine Company, of Amsterdam, N. Y., (Horace In-man, vice president and manager,) against the Bynn Box Machine Company of Byim, Mass., and purchasers of the so-called ‘Bynn Box-Covering and Topping Machines,' has been settled by the Bynn Box Machine Company paying to the American Box Machine Company an agreed cash consideration. Hereafter the Bynn topping and covering machines will be sold by the American Box Machine Courpany in connection with its machinery, and by IX A. Killiam, trustee, or his agent, of Bynn, Mass., who represents the interests of the American Box Machine Company, and who will sell the Bynn machines, and" in connection therewith the machines of the American Box Machine Company. In all case's (lie machines will be billed to purchasers in the name of, and licensed by, the American Box Machine Company. For machines sold by said Killiam, trustee, or his agent, payment will'be made to him at Bynn, Mass. American Box Machine Co.</p> <p>“H. Inman. Manager.</p> <p>“John B. Hollins, President.</p> <p>' “D. A. Killiam, Trustee.</p> <p>“Attest: B. Finlayson, Sec. Bynn Box Machine Co.”</p>

<p>In Equity. Bill for specific performance of a contract. Appeal from the clerk’s taxation of costs.</p>

In. Error to the Circuit Court of the United States for the Eastern District of Arkansas. At Law. Action t>y William H. Thompson against Searcy county, Ark., to recover upon certain county warrants. Held: and in accordance with that view it entered a judgment against the county in the sum of $8,000. Both parties to the suit have excepted to the action of the lower court, and have respectively sued out a writ of error.

At Law. Action by Henry Holding against the Northern Pacific Railroad Company for damages for personal injury. Verdict and judgment for plaintiff. Defendant brings error.

<p>Patents fob Inventions — Construction of Claims — Straw Stacker.</p> <p>Letters patent No. 4(37,47(3, issued January 19, 1892, for the combination with a threshing machine of a pneumatic straw elevator and stacker, consisting of a fan, a trunk through which the straw is discharged, a.nd various devices by which these parts are adapted to perform their work’, cover a useful and valuable invention, and are entitled to a liberal construction.</p>