Volume 58 — Federal Reporter

<p>At Law. These are two actions on the case, brought by J. M. Baumgardner against the Bono Eertílizer Company and others in the circuit court of Wythe county, Va., and thence removed by de-ieiulsmt. Heard on motion to remand.</p> <p>Statement by PAUL, District Judge:</p> <p>These cases were removed into this court from the circuit court of Wythe county, Ya., by an order of that court entered at its February term, 1893. The actions were brought on the 18th day of April, 1891, and the declarations filed at first July rules, 1891. On the 18th day of April, 1891, what purported to be an order of publication was made in one of the eases, which was the only process or notice issued against the defendants, or any of them, all of whom were nonresidents of the state of Virginia. At the September term, 3891, of the circuit court of Wythe county, there being no appearance on the part of the defendants, or any of them, juries were impaneled, verdicts rendered, and judgments entered for 85,000 in each case. At the September term, 1892, of the circuit court of Wythe county the defendants filed a petition therein, praying that these cases be reopened, and the judgments expunged from the record, on the following grounds: ‘‘First. Because more than "one month had elapsed after the return day of the process executed without the declaration being filed, when it was the duty of the clerk to enter the suits dismissed, ipso facto, and therefore the eases were improperly on the docket at the September term, 1892. The declarations were not filed until the first July rules, 1891, when by the order of publication they ought to have been filed within four weeks from the 18th of April, 1891. Second. Because your petitioners being nonresidents of the commonwealth of Virginia, and not being served with process in the state, or in Wythe county, or anywhere, the so-called ‘judgments’ against them were nullities, and are void.” Thereupon the court entered an order setting aside the judgments entered at the September term, 1891, but refused to dismiss the suits, holding that there had been a valid execution of the orders of publication in the cases; that the declarations had been properly filed therein, and that, after the institution of the suits, and since the rendition of the judgments therein, the plaintiff had filed proper affidavits, and sued out attachments, in each .of the suits; that said attachments had been duly executed on one It. W. Price, in Wythe county, a debtor of the defendants, and that said Price had that day appeared and answered the attachments, acknowledging himself indebted to one of the defendants, to wit, the Bono Fertilizer Company, in the sum of 1107, with interest thereon from May 1, 1891. It further appears from the papers in these cases that after the rendition of the judgments at the September term, 1891, of the circuit court of Wythe county, what purported to be attachments were issued and levied on certain real estate in the city of Bristol as the property of J. Marshall Smith, one of the defendants. The order of the court also gave leave to the petitioners to plead to both of said actions if they desired to do so, and the order then proceeds as follows: “And thereupon, this day, again came the defendants, by their attorney, and moved the court to dismiss the said actions on the ground that the petitioners, and each of them, are nonresidents of the commonwealth of Virginia, and that no service of process had been had on either of said petitioners in the commonwealth of Virginia or in Wythe county; said counsel in open court stating that he only appeared for the purpose of raising the question of jurisdiction. On consideration whereof the court overruled said motion to dismiss, to which action of the court the petitioners excepted, and tendered their bill of exceptions.” And the cases were continued until the February term, 1893, of the court, whereupon the circuit court of Wythe county, Va., ordered the removal of the cases into this court.</p>

<p>Appeal — Reviewable Orders — Final Decree.</p> <p>A decree of a federal court is final, for the* purposes of an appeal, when it ends the litigation on the merits so that, if affirmed, nothing would be left to the trial court but to execute it. A decree setting aside an assignment, and ordering a reference to ascertain the amounts and priorities of creditors’ claims, is not final, within the rule.</p>

<p>1. Appeal — Parties—Who must Joist.</p> <p>After confirmation of a foreclosure sale of a railroad, a decree was made, declaring certificates issued by a receiver in a former suit a prior lien on the proceeds of the sale, which were less than one-half the mortgage indebtedness. There was no liability for a deficiency on the part of the stockholders,- or otherwise. Meld that, the railroad corporation having become practically defunct by the decree of foreclosure, the sale, and the subsequent decree of confirmation, and having no interest in the proceeds, it need not be joined as an appellant from the decree, but that the appeal might be prosecuted by the complainant alone. Hardee v. Wilson, 13 Sup. Ct. Rep. 39, 146' U. S. 179, distinguished.</p> <p>2. Same — Severance.</p> <p>After confirmation of the sale, stipulations as to- evidence were entered into between the holder of the certificates, who had ■ intervened in the suit, and the complainant, and thereafter the court proceeded as if the railway company had no interest in the proceeds. Meld a substantial severance of the interests of complainant and the defendant -railroad corporation.</p> <p>8. Railroad Companies — Mortgages — Foreclosure — Vesting Title Free . from Liens — Receiver’s Certificates.</p> <p>A final decree in a foreclosure suit against a railroad company,- whereby the purchasers at the foreclosure sale are vested with a title free from all liens for receiver’s debts, operates to set aside so much of a previous -order authorizing the issue of receiver’s certificates as made them a paramount lien on the road, and transfers the lien of the certificates, if any, to the proceeds of the sale.</p> <p>4. Same — Duty of Holder of Receiver’s Certificates.</p> <p>The holder of receiver’s certificates is put upon inquiry as to all that has been done in the litigation in which the certificates were authorized, and is charged with notice of all subsequent proceedings therein, and that by final action of the court the validity or security of the certificates may be prejudicially affected; the holder’s duty being to advise the court of his claim at an early day.</p> <p>5. Same — Laches—Res Judicata.</p> <p>An order authorizing a receiver in a foreclosiu-e suit against a railroad company to issue certificates was made ex parte, the issue was without notice to the court or to the parties to the suit, and the proceeds were not used for the purpose specified in the order, or for any other purpose of the receiver, or for the benefit of the property or the parties to the cause. The holder made no demand for three years, until after the foreclosure sale had been confirmed and the debts of the receiver judicially ascertained, the certificates in question not being included, and a final decree of confirmation and distribution had been made. Meld, that the holder of the certificates was guilty of gross laches, and - was estopped by the decree from seeking payment of his claim against the purchasers or distributees. Vilas v> Page, 13 N. IQ. Rep. 743, 106 N. Y. 439, dis'tinguished.</p>

In Equity. On exceptions to master’s report. Suit by John, Greenbank against John S. Ferguson, Eachel Ferguson, D. B. Ran-! som, William Kelsey Reed, Henry C. Reed, James W. Converse, and the Illinois Land & Loan Company to set aside certain deeds as clouds on complainant’s title. Bill of revivor against representative of Rachel Ferguson. There was a reference to a master, who reported in favor of the complainant. Defendants except. The master’s report was as follows: 1.

, In Equity. Suit by the Sioux National Bank of Sioux City 'against the Cudahy Packing Company. On demurrer to the bill, 'on the ground that it fails to show a case for equitable relief.

<p>1. Equity Jurisdiction — Remedy at Law — Contract Lien.</p> <p>An agreement made with a prospective creditor of a mercantile firm by one who has loaned bonds to it that such bonds, “or the value thereof,” shall not be returned to him until any money owing to such creditor shall be paid, and that the bonds, “or the value thereof,” shall remain at the risk of the firm's business so far as any claim of such creditor is concerned, does not create a lien on the bonds themselves, for the owner has a right to take them back at any time by paying their value into the firm; and hence the taking of them back without leaving their value is a mere broach of contract, for which the proper remedy is damages at law, and a bill in equity will not lie to subject the bonds or their proceeds to the creditor’s debt.</p> <p>2. Bill of Discovery — When Sustainable.</p> <p>A bill brought against an administrator to enforce an alleged lien upon certain bonds or their proceeds belonging to the estate, there being in fact no lien, cannot be sustained as a bill for discovery, merely, because of a prayer for disclosure as to the whereabouts of said bonds, and whether they or their proceeds now constitute part of the estate, and for an accounting touching the assets of the estate and the administrator’s dealing therewith, especially when the answer fully shows the whereabouts of the bonds.'</p> <p>3. Same — Trusts—Administrator and Creditor of Estate.</p> <p>A creditor of an estate is not such a cestui que trust of the administrator as will entitle him to maintain a bill in equity in the federal courts for the purpose of securing accounting by the administrator and payment, merely on the ground of the trust relation, unaided by averments of fraud, maladministration, or nonadministration.</p>

In Equity. On motion for an injunction. Statement by BROWN, District Judge. This was a bill' to foreclose a mortgage made on the 1st day of October, 1855, by the Atlantic & Great Western itailroad Company, to Flagg and Sted-man, to secure the issue of $4,000,000 of bonds, payable 21 years from date, i. e. on the 1st day of October, 1870. About $2,500,000 of such bonds were alleged to be outstanding.

In Equity. In the matter of the application of Mr. A. G-. Otis, a debenture bond holder, for the delivery of the mortgages securing his bonds by the receiver to a trastee for his benefit.

<p>In Equity. Suit brought by Joseph M. Street against the Maryland Central Railway Company, the Baltimore & Lehigh Railroad Company, the Baltimore Forwarding & Railroad Company, the Mercantile Trust Company of Baltimore, trustee, and John H. Miller, Moses H. Houseman, and William Gilmor. Heard on motion to remove a receiver.</p>

<p>In Equity. Bill by the Southern Pacific Railroad Company against the city of Oakland and others. Heard on motion for a preliminary injunction.</p>

<p>In Equity. Bill by Porter Skinner against the Fort Wayne, Terre Haute & Southwestern Railroad Company to compel a transfer of corporate stock. Decree for complainant.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>Statement by SANBORN, Circuit Judge:</p> <p>This is an appeal from a decree of the circuit court dismissing a bill brought by the United States against the Trans-Missouri Freight Association and 18 railroad companies, under the provisions of the act of congress of July 2, 1890, entitled “An act to protect trade and commerce against unlawful restraints and monopolies,” commonly known as the “Sherman Anti-Trust Act,” (26 Stat. 209, c. 647; Rev. St. Supp. 762,) to dissolve the association, and enjoin the railroad companies from fulfilling an agreement with each other to have and maintain joint rules, • regulations, and rates for carrying freight between competing points upon their several roads. The ease was heard on the bill and the answers of the several defendants.</p> <p>The bill alleges that the defendant railroad companies were corporations and common carriers, and that they owned independent and competing lines of railroad in that part of the United States west of the Mississippi and Missouri rivers; that they were engaged in transporting freight among the states and to and from foreign nations, and that they had been encouraged to construct and maintain these competing lines of railroad independent of each other by subsidies and grants of lands from the United States and the people of the states and territories west of these great rivers. The bill then alleges that, not being content with the rates of freight they were receiving, intending oppressively to augment those rates, to counteract the eifect of free competition upon them, to establish and maintain arbitrary rates, and to procure large sums of money from the people of those states and territories engaged in interstate commerce, they entered into an agreement on March 15, 1889, which, as subsequently modified, reads thus:</p> <p>“Memorandum of agreement, made and entered into this fifteenth day of March, 1889, by and between the following railroad companies, viz.: Atchi-son, Topeka & Santa Fe Railroad, Chicago, Rock Island & Pacific Railway, Chicago, St. Paul, Minneapolis & Omaha Railway, Burlington & Missouri River Railroad in Nebraska, Denver & Rio Grande Railroad, Denver & Rio Grande Western Railway, Fremont, Elkhorn & Missouri Valley Railroad, Kansas City, Ft. Scott & Memphis Railroad, Kansas City, St. Joseph & Council Bluffs Railroad, Missouri Pacific Railway, Sioux City & Pacific Railroad, St. Joseph & Grand Island Railroad, St. Louis & San Francisco Railway, Union Pacific Railway, Utah Central Railway, and such other companies as may hereafter become parties hereto. Witnesseth, for the purpose of mutual protection, by establishing and maintaining reasonable rates, rules, and regulations on all freight traffic, both through and local, the subscribers do hereby form an association, to be known as the Trans-Missouri Freight Association, and agree to be governed by the following provisions:</p> <p>“Article I.</p> <p>“The traffic to be included in the Trans-Missouri Freight Association shall be as follows:</p> <p>“1. All traffic competitive between any two or more members hereof passing between points in the following described territory, commencing at the Gulf of Mexico, on the 95th meridian; thence north to the Red river; thence via that river to the eastern boundary line of the Indian territory; thence north by said boundary line and the eastern line of the state of Kansas to the Missouri river, at Kansas City; thence via the said Missouri river to the point of intersection of that river with the eastern boundary, of Montana; thence via the said eastern boundary line to the international line, — the foregoing to be known as the ‘Missouri River line;’ thence via said international’ line to the Pacific coast; thence via the Pacific coast to the international line between the United States and Mexico; thence via said international line to the Gulf of Mexico, and thence via said Gulf to the point of beginning, including business between points on the boundary line as described.</p> <p>“2. All freight traffic originating within the territory as defined in the first section when destined to points east of the aforesaid Missouri river line.</p> <p>“Exceptions.</p> <p>“(a) The I). & R. G. and the 1). & B. G. W., except their business to and from points in Colorado west of the I). & R. G. line between Denver and Trinidad; also business via their lines between points in Colorado and points in Utah.</p> <p>“All local business between Denver and Trinidad and intermediate points; all local business of the A., T. & S. F. between Pueblo ami Canon Oily. Colo.; all stone traffic having both origin and destination within the state of Colorado.</p> <p>“The jurisdiction of this association, in so far as the business of the Denver & Bio Grande and the Denver and Rio Grande Western Railway Companies is concerned, covers the following traffic, namely:</p> <p>“All freight traffic to, from, or through all common or junction points in the states of Nebraska and Kansas and the Indian Territory, originating at or destined to Denver, Colorado Springs, Pueblo, or Trinidad.</p> <p>“All freight traffic between Ogden, Spanish Fork, and intermediate points on the one hand, and to, from, or through points in Kansas or Nebraska upon or east of the 103d meridian, on the other hand.</p> <p>“Traffic which may be excluded under the application of the above is only such as may he delivered to or received from the Denver & Rio Grande Railroad and Denver and Rio Grande Western Railway.</p> <p>“(b) Traffic included in the Trans-Continental and International Association.</p> <p>“(c) Traffic passing between points in Kansas or Nebraska and Mississippi, river points, Garondelet and south; also traffic passing between points in Kansas or Nebraska and points in the southern states east of the Mississippi river and south of the south line of Kentucky and Virginia, regardless of the route by which the business crosses the Mississippi or Ohio rivers.</p> <p>“(d) Traffic passing between Missouri river points and points in the territory east of said river.</p> <p>“(e) All traffic to points on the Northern Pacific and Manitoba Railways.</p> <p>“(f) Traffic to points in Arkansas.</p> <p>“(g) Coal, stone, and gravel from Colorado, Wyoming, and Dakota, to points in Kansas and Nebraska, and to Sioux City, Council Bluffs, or Pacific Junction, Iowa, St Joseph, Kansas City, or Boswell, Mo.</p> <p>“(h) The interchange of traffic with the Colorado Midland and South Park Companies, to or from Aspen, Colorado, Glenwood Springs, Colorado, and intermediate points, including coal branches therefrom, and Buena Vista, Colorado, and Leadville, Colorado.</p> <p>“(i) Business to and from Florence, Colorado, by all lines.</p> <p>“Article II.</p> <p>“Section i. The association shall, by unanimous vote, elect a chairman of the organization. The chairman may be removed by a two-thirds vote, of the members.</p> <p>“Sec. 2. There shall bo regular meetings of the association at Kansas City, unless notice shall he given by the chairman that the business to be transacted does not warrant calling the members together, which notice shall be given not less than four days before the day set for the meeting. ■When a meeting, regular or special, is convened, it shall be incumbent upon each party hereto to bo represented by some officer authorized to act definitely upon any and all questions to he considered. Each road shall designate to the chairman one person who shall be hold personally responsible for rates on that road. Such person shall be present at all regular meetings when possible, and shall represent his road, unless a superior officer Is present. If unable to attend, he shall send a substitute, with written authority to act upon all questions which may arise, and the vote of such substitute shall he binding upon the company he represents.</p> <p>“Sec. 3. A committee shall be appointed to establish rates, rules, and regulations on tiie traffic subject to tills association, and to consider changes therein, and make rules for meeting the competition of outside lines. Their conclusions, when unanimous, shall be made effective when they so order; hut if they differ the question at issue shall be referred to the managers of the lines parties hereto, and if they disagree it shall be arbitrated in tne manner provided in article 7.</p> <p>“Sec. 4. At least five days’ written notice prior to each monthly meeting shaE he given the chairman of any proposed reduction in rates, or change in any rule or regulation governing freight traffic; eight days in so far as applicable to the traffic of Colorado or Utah.</p> <p>“Sec. 5. At peach monthly meeting the association shall consider and vote, upon all changes proposed of which due notice has been given, and all parties shall be bound by the decision of the association so expressed, unless then and there the parties shall give the association definite written notice that in ten days thereafter they shall make such modification, notwithstanding the vote of the association; provided, that, if the member giving notice of the change shall fail to be represented at the meeting, no action shall bo taken oh its notice, and the same shall be considered withdrawn. . Should any member insist upon a reduction of rate against the views of the majority, or if the majority favor the same, and if, in the judgment of said majority, the rate so made affects seriously the rates upon other traffic, then the association may, by a majority vote upon such other traffic, put into effect corresponding rates, to take effect upon the same day. By unanimous consent any rate, ride, or regulation relating to freight traffic may be modified at any meeting of the association without imevious notice.</p> <p>“Sec. 6. Notwithstanding' anything in this article contained, each member may, at its peril, make at any time, without previous notice, such rate, rule, or regulation as may be necessary to meet the competition of lines not members of the association, giving at the same time notice to tlie chairman of its action in the premises. If the chairman upon investigation snail decide that such rate is not necessary to meet the direct competition of lines not members of the association, and shall so notify the road making the rate, it. shall immediately withdraw such rate. At the next meeting of the association held after the making of such rate it shall be reported to the association, and, if the association shall decide by a two-tliirds vote that such rate was not made in good faith to meet such competition, the member offending shall be1 subject to the penalty provided in section-8 of this article. If the association shall decide by a two-thirds vote that such rate was made in good faith to meet such competition, it shall be considered as authority for the rate so made.</p> <p>“Sec. 7. All arrangements with connecting lines for the division of through rates relating to traffic covered by this agreement shaE be made by authority of the association: provided, however, that when one road has a proprietary interest in another the divisions between such roads shall be what they may elect, and shall not be the property of the association: provided, further, that, as regards traffic contracts at this date actually existing between lines not having common proprietary interests, the same shall be reported, so far as divisions are concerned, to the association, to the end that divisions with competing lines may, if thought advisable by them, be made on equally favorable terms.</p> <p>“Sec. 8. It shall be the duty of the chairman to investigate aH apparent violations of the agreement, and to report his findings to the managers, who shall determine by a majority vote (the member against whom complaint is made to have no vote) what, if any, penalty shaE be assessed, the amount of each fine, not to exceed one hundred dollars, to be paid to the association. If any line party hereto agrees with a shipper, or any one else, to secure a reduction or change in rates, or change in the rules or regulations, and it is shown upon investigation by the chairman that such an arrangement was effected, and traffic thereby secured, such action shall be reported to the managers, who shall determine, as above provided, what, if any, penalty shall be assessed.</p> <p>“Sec. 9. When a penalty shall have been declared against any member of this association, the chairman shaE notify the managing officer of said com-I>any that such ñne has heen assessed, and that within ten days thereafter he will draw for the amount of the line; and the draft, when presented, shall he honored hy the company thus assessed.</p> <p>‘‘Sec. 10. All fines collected to he used to defray the expenses of the association, the offending party not to he benefited by the amounts it may pay as linos.</p> <p>“See. 11. Any member not present or fully represented at roll call of general or special meetings of the freight association, of which due and proper notice has heen given, shall he fined one dollar, to he assessed against his company, unless he shall have previously filed with the chairman notice of inability to he present or represented.</p> <p>“Article III.</p> <p>“The duties and powers of the chairman shall he as follows:</p> <p>“Section 1. He shall preside at all meetings of the association, and make and keep a record thereof, and promulgate such of said proceedings as may he necessary to inform the parties hereto of the action taken by the .association.</p> <p>“Sec. 2. He shall at all times keep and publish for the use of the members a full record of the rates, rules, and regulations prevailing on all lines parties hereto on business covered hy this agreement, and each of the parties hereto agrees to furnish such number of copies of the rates, rules, and regulations issued hy it as the chairman may require.</p> <p>“Sec. 3. He shall construe this agreement and all resolutions adopted thereunder, his construction to he binding until changed by a majority vote of the association.</p> <p>“Sec. 4. He shall publish in joint form all rates, rales, or regulations which aro general in their character and apply throughout the territory of tins association, and shall also publish in the manner above such rates, rules, or regulations applying on traffic common to two or more lines as may be agreed upon by the lines in interest.</p> <p>“Sec. 5. He shall he furnished with copies of all waybills for freight carried under this agreement when called for, and shall furnish such statistics as may be necessary to give members general information as to the traffic moved, subject to the provisions of The Interstate Commerce Railway Association agreement as to lines members thereof.</p> <p>"Sec. <>. He shall render to each member of the association monthly statements of the expenses of the association, showing the proportions due from each, and shall make drafts on members for the different amounts thus shown to bo due.</p> <p>“>See. 7. He shall hear and determine all charges of violations of this agreement, and assess, collect, and dispose' of the fines for such violations as provided for herein.</p> <p>“Hoc. 8. The chairman shall be empowered to authorize lines in the association to meet the rates of another line or other lines in the association when in his judgment such action is justified by the circumstances; this, however, not to act in any way as an indorsement of an unauthorized rate made by any member.</p> <p>“Sec. 9. Only parties interested shall vote upon questions arising under the agreement, and in case of doubt the chairman shall decido as to whether any party is so interested or not, subject to appeal, as provided by section 3 of article 3 of the agreement.</p> <p>“Article IV.</p> <p>“Any willful under-billing in weights or hilling of freight at wrong classification shall ho considered a violation of this agreement, and the rules and regulations of any weighing association or inspection bureau as established by it, or as enforced by its officers and agents, shall he considered binding under the provisions of this agreement, and any willful violation of them shall be subject to the penalties provided herein.</p> <p>“Article V.</p> <p>“The expenses of the association shall l>e borne by the several parties in such proportion as may bo fixed by the chairman. Any member not satisfied with the allotment so made niay appeal to the association, which shall, at its first regular meeting thereafter, determine the matter, which may be done by a two-thirds vote of the members.</p> <p>“Article VI.</p> <p>“There shall be an executive committee of three members, to be elected by unanimous vote. The committee shall approve the appointment and salaries of necessary employes, except that of the chairman, and authorize all disbursements. All action of this committee shall be unanimous.</p> <p>“Article VII.</p> <p>“In case the managers of the lines parties hereto fail to agree upon any question arising under this agreement that shall be brought before the association, it shall be referred to an arbitration board, which shall consist of three members of the executive board of the Interstate Commerce Railway Association: provided, however, that, in case of arbitration in which the members of this association only are interested, they may, by unanimous vote, substitute a special board.</p> <p>“Article VIII.</p> <p>“This agreement shall take effect April 1, 1889, subject thereafter to thirty days’ notice of a desire on the part of any line to withdraw from or amend the same.”</p> <p>The bill further alleges that this agreement tools, effect April 15, 1889; that under it rules, regulations, and rates for carrying freight over the railroads of the defendant companies were fixed by the association, and have since been maintained by them," that since that date these railroad companies have declined and refused at all times to fix or give rates for the carriage of freight based upon the cost of constructing and maintaining their several lines of railroad and the cost of carrying freights over the same, and such other elements as should be considered in establishing tariff rates upon each particular road; and that the people engaged in interstate commerce have been compelled to pay the arbitrary rates of freight, and to submit to the arbitrary rules and regulations established and maintained by the association formed under the agreement, and have been and are deprived of the benefits that might be expected to flow from free competition between the several lines of railroad of the defendant companies, and that in this way the defendant companies have combined in restraint of trade and commerce among the states, and have attempted to monopolize', and have monopolized, a part of this commerce.</p> <p>Three of the railroad companies were not members of the association, and will not be further noticed. The answers of the 15 companies who were members of the association are substantially the same. The first defense in these answers is that the interstate commerce law of February 4, 1887, entitled “An act to regulate commerce,” (24 Stat. 379, c. 104; Itev. St. Supp. 529,) and the acts amendatory thereof, constitute a complete code of laws regulating that part of commerce among the states and with foreign nations which relates to transportation, and that the act of July 2, 1890, is not applicable to, and does not govern, them or their actions.</p> <p>Goming to the merits of the suit, these defendants admit that they are common carriers; that, with some exceptions not important here, they owned independent and competing lines of railroad in that part of the United States west of the Missouri and Mississippi rivers, and that they were engaged in the transportation of freight among the states and territories, and to and from foreign nations,.in that region, but they deny that they owned the only through lines of railroad engaged in that business there; and allege that there were several others, to wit, the Northern Pacific Railroad Company, the Great Northern Railway Company, the Southern Pacific Railroad Company, and the Texas Pacific Railroad Company. They admit that some of them were assisted and encouraged to' construct and maintain through competing lines of railroad, independent of each other, by subsidies, land grants, and donations from the United States, and from the people of the various states and territories west of the great rivers. They admit that they entered into the agreement March 15, 1889, and that rules, regulations, and rates of freight have since been fixed and changed by the association thus formed,, and that they have complied with and maintained them. They deny, however, that at the time they entered into the agreement they were dissatisfied with the rates of freight they were receiving. They deny that they intended, in connection with the formation of the association or otherwise, to unjustly or oppressively augment such rates, or to counteract the effect of free competition on prices or facilities of transportation, or to establish or to maintain arbitrary rates, or to prevent any one of the defendants from reducing ratas, or to procure unreasonably great sums of money from the people of the states and territories west of the great rivers engaged in interstate commerce. They deny that the formation and operations of the association have had any such effects, but aver that they have tended to decrease rates, and to benefit the people and the roads. They deny that they had any intention by the formation of the association to monopolize or attempt to monopolize the freight traffic of the region affected by it, and deny that it has had any such effect. They allege that they were subject to the provisions of the act of congress of February 4, 1887, entitled, “An act to regulate commerce,” and the acts amendatory thereof. They aver that under that act they were required to make all charges reasonable and just; that they were prohibited from making any unjust discriminations, or any undue or unreasonable preferences, or from giving any undue advantages, and that they were required to establish a classification of freight and rates of freight, and to publish and file with the interstate commerce commission schedules showing this classification and these rates, and then to abide by and maintain them; that, in order to comply with this law, consultation between and concerted action of the railroad companies conducting the transportation business west of the great rivers was essential; and that they made this agreement and formed this association in order that they might more effectually comply with the provisions of this law than they could do acting independently. They allege that tlie rates they have established and maintained have been reasonable and just; that since the organization of the association more than 200 reductions of rates have been made through its action; that their agreement forming the association was filed with the interstate commerce commission under the act, and that the rules, regulations, and rates they have established and maintained have been in strict conformity to the provisions thereof. They deny that the people have been deprived of the benefits which might be expected to flow from free competition in the business of ten ¡spoliation, and allege that the utmost freedom compatible with obedience to the interstate commerce act and with the preservation of the existing agencies of competition prevails, and they insist that their association and action under this contract constitute no combination or conspiracy in restraint of interstate or international commerce.</p> <p>The opinion filed by the court below when the bill was dismissed is reported' in 53 Fed. Hep. 440.</p>

<p>Appeal from the Circuit Court of the United States for the Easl ern .District of Missouri.</p> <p>In Equity. Bill by Robert F. Burt and Charles Scudder, public administrator in charge of the (’state of Robert IF. Gardner, against Thomas H. Warren, Frank G. Flanagan, Benjamin F. Hammett, Charles Hewitt, and Benjamin F. Webster, for an accounting oi profits realized by the trade of a farm formerly belonging to Burt and Gardner, and to cancel a, contract between Uieni and defendant Warren. The bill was dismissed as to the defendants other than Warren, and he appeals from a decree against him in favor of plaintiffs.</p> <p>■Statement by SAISTBORN, Circuit Judge:</p> <p>This is an appeal from a decree against Thomas H. Warren, a real-estate* agent, directing him to pay back to his principals certain profits ho derived from the purchase of properly of theirs he was selling as their agent, and canceling a, certain contract he took from them in xuiyment of Ms commission, Robert E. Burt, one of the appellees, brought the bill for this relief against Warren, and Drank a. Flanagan, Benjamin K. Hammett, diaries Hewitt, and Benjamin F. Webster, who were alleged to be associates oí Warren in the purchase, and he joined as a defendant dueles Scudder, the public administrator of the estate of Robert II. Gardner, the other principal, who had died. The suit arose from these facts:</p> <p>On October 13,1882, Burt and Gardner owned a farm of 285 acres situated in Madison county, ill., a few miles from 1he city of St. Louis, Mo. They resided in Columbus, Ohio, and had employed the appellant, Warren, who resided in St. Louis, Mo., to negotiate a sale or exchange of their farm, and had agreed to pay him a commission of 5 per cent, on the price at which such sale or exchange should be effected. A few days before October 13, 1S82, they came to St Louis. Warren took them to see-a tract of land 32 acres in extent, situated in the city of St. Louis, which was then owned by- Mrs. Fanny Deayer, told them that it was worth at least $32,000, and persuaded and assisted them to negotiate and make a contract writh one William J. Haynes, a straw man who was furnished by the defendant Flanagan, and who had no title or interest in the land, whereby they agreed to conyey to him their farm, which they estimated in the trade at the value of $18,000, and to pay him $3,500 in cash for the Deaver tract, subject to a trust deed for $5,000; that is to say, he persuaded them to agree to give their farm and $8,500 for the Deaver tract. Before this ‘contract was made, the defendant Flanagan, accompanied by the defendant Hewitt, had obtained an option from the agent of Mrs. Deaver to purchase this land for $9,500 dollars, and, immediately after it was made, Flanagan bought it for that sum, and then conveyed it to Burt and Gardner in pretended fulfillment of the Haynes contract, and received from them a conveyance of their farm to himself. In August, 1883, the defendant Warren traded off this farm for Flanagan and his associates on' such terms that they made a profit of about $8,000 on their trades in it. When the latter trade was consummated, Warren received $1,050, which was found by the court to be his share of the profits, and was alleged by him to be his commission on the latter sale. The contract of Burt and Gardner with Haynes was made October 13, 1882. On the same day, to facilitate the negotiations, Warren waived his right to his commission of 5 per cent, in cash, and took from Burt and Gardner, in lieu thereof, a written contract whereby they agreed that he should have one-half of the remaining proceeds arising from the sale of the Deaver tract after the expenses of selling it should be paid, and they should have received $28,500, and interest at 0 per cent, from the date of the contract. He placed this contract on record, and at the commencement of this suit claimed an interest in this land under it. The complainant brought his bill for a cancellation of this contract, and an accounting of the profits which Warren and his associates made out of their trades in the Madison county farm, on the ground that, while Warren was pretending to act as agent of the complainant and Gardner, he was in fact a partner with the defendants Flanagan, Hammett, Hewitt, and Webster in the purchase of the Deaver tract for $9,500 and its transfer to Burt and Gardner for their farm, and that he assisted to make and shared in the profits of the disposition of the farm made by Flanagan and his associates in August, 1883. The defendant Warren denied any knowledge of, or participation in, the purchase of the 32 acres, denied that he ever had any interest in the farm or the profits of the trades in it, and insisted that he had discharged his duty to his clients faithfully. The court below found that after Warren had learned on what terms his clients would exchange their farm for the Deaver tract he had entered into an arrangement with the defendants Hammett, Flanagan, Webster, and Hewitt to the effect that Flanagan should buy the 32 acres at the lowest possible price, that it should then be exchanged for the farm on the terms Burt and Gardner had assented 'to, and that whatever profits were made should be so divided that Flanagan, Webster, and Hewitt should have one-half, to be divided among them as they chose, and Hammett and Warren should have the other half, to be divided between them as they might agree, and that this arrangement was carried out. The case was then referred to a master to take an account of the profits Warren had received. He reported the amount to be $1,050, the report was confirmed, and a final decree rendered, canceling the contract of October 13, 18S2, between Warren and Burt and Gardner, and adjudging that the complainant Burt and the administrator of the estate of Gardner recover of the defendant Warren the $1,050 profits he received, with interest and costs. From this decree, Warren appeals. The bill was dismissed against the other defendants because it was not alleged and proved that they were the agents of, or occupied any fiduciary relation to, Burt and Gardner.</p>

In Equity. Bill by W. H. Book and W. H. Blowey against the -Justice Mining Company to quiet title to .certain mining locations. D.ecree for defendant. The following is a plat of the locations in question:

In Equity. Suit by the St. Louis Mining & Milling Company of Montana against the Montana Mining Company, Limited, Ilawlinson T. Bayliss, Alexander Burrell, Joseph Harvey, Isaac Warren, Mell-ólas Francis, John Jewell, and Thomas Hawkins, to enjoin the extraction of ores from ground claimed by complainant.

<p>In Equity. Bill by Walter M. Saunders against the Bluefteld Waterworks & Improvement Company and others to enjoin the diversion or appropriation of the waters of a natural stream. Preliminary injunction made perpetual.</p> <p>Statement hy PATIL, District Judge:</p> <p>On the 1st day of .Tune, 1892, the complainant presented his hill to the judge of the circuit court of Tazewell county, Va., and a preliminary in,¡ unction against the defendants was awarded, in accordance with the prayer of the bill; and on the iTth day of August, following, the suit was removed into-this court by the defendants. The complainant states in his bill that he is a. citizen of the state of Virginia, and of the; western district of Virginia, and that the defendant company is a corporation chartered under the laws of the state of West Virginia, and a citizen of that state; that he is the owner of a boundary of land containing- about 3,000 acres, on which he re sides, in the county of Tazewell, Ya.; that: most of this land is fertile, adapted to the growing of grain and other products common to that section, hut, that, its chief value is for grazing, a large area of it being in meadow; that most of t lie arable land lies on a rather elevated pin lean, but very little of it is watered by the main Blnestone river, and that his main dependence for water for his land is smaller streams, and that, in fact, his main dependence is one small stream known- as “Beaver Pond Creek;” that the source of this stream is a hold-flowing spring of pure water, situate near the southeastern portion of his land; that a short distance from its source this stream enters upon his land, and Slows for a mile, or more, through the most fertile and productivo portion of it; that last year he purchased from one John Bailey 93 acres of land near said spring, and through which said creek runs, almost solely for the water it affords; that said creek runs through much of his meadow land, for draining which he has constructed more than 20 blind ditches which empty info it; that there are a, few oilier small mountain streams on the large expanse of his land, but they cannot he depended upon, and frequently are dry for several months in the year. Complainant then alleges that the defendant: company has purchased the right to divert the water of the aforesaid spring, together with some land about it; that it intends to convey the water to the city of Blueiield, in the state of West Virginia, by forcing it through 10-inch cast pipes with powerful engines to bo stationed at the spring; that the water to he so taken from the spring is not intended i.o he returned to the channel of the stream, and cannot be; that, if the defendant company succeed in reaching the water witli the pipes and machinery it intends to use, it will take the whole stream, or so deplete it that a running stream will not be left to flow through his land; and that, in consequence, there will be no estimating the damages that will be done to his land and to his business. He further alleges that the defendant company has its employes at work in Tazewell county, in the state of Virginia, and in the western district of Virginia, in putting down a pipe line preparatory to the removal of the water.</p> <p>The defendants, W. T.. Louder, Alexander Tackett, Henry Tackett, and T. J. Crouch, in their answers, aver that at the time these suits were instituted they were employes of their codefendant, the Bluefield Water Works & Improvement Company, for daily wages, and working under the direction of said company, and that they have not, and never have had, any interest in the subject-matter of these suits.</p> <p>The defendant company, in its answer, states that it is a corporation, a joint-stock internal improvement company, chartered and organized under 'the laws of West Virginia, and now, and ever since it was organized, doing business exclusively within the state of West Virginia. It admits that it 'lias purchased of one Carmack Bailey ánd wife one acre of land, on which there is a large spring known as “Beaver Pond Spring,” and asserts that in the conveyance of said land to it by Carmack Bailey and wife it is expressly stipulated that it shall have the right to remove the water from the spring to the city of Bluefield, where it proposes to use it for the purpose of furnishing it to residents of that city 'for drinking and all other domestic and other purposes, and to supply the Norfolk & Western Railroad Company with it for its trains and shops. It states that, for the purpose of transporting and using the water for the purposes aforesaid, it has at great expense laid a pipe line from its reservoir in the city of Bluefield to the spring, a distance of about three miles; that it has built an engine house near the spring on its land, and has purchased an engine and other valuable machinery, and placed the same in the engine house. It claims that its tract ,of land, with the spring thereon, lies wholly in Mercer county, in the state of West Virginia; and cites certain acts of the legislature of Virginia, and the report and plat of a survey made in pursuance of said acts, in support ,of its contention. It claims that under the laws of the state of West Virginia it is an internal improvement company, and that under the laws of that state it has the right to acquire real estate and water for its purposes, either by purchase, if it could agree upon terms with the owner thereof,' or, if it could not agree upon terms with the owner, then that it has the right to acquire such private property by instituting condemnation proceedings in accordance with the laws of said state providing for the taking of. private property for public purposes;, and that, in acquiring private property for its purposes in either of the modes prescribed by the laws of the said state, it was, in so doing, the representative of the state,— standing, as it were, in the shoes of the state, — and protected in its possession of, and title to, the property thus acquired by and through the exercise of the right of eminent domain. It claims that it has thus acquired the said one acre of land and the right to divert the water of the spring; and that the purpose for which it proposes to divert the water is a public use, indispensable to the public welfare; and that the acquisition of this water is necessary for the use to which it proposes to apply it. In its answer the defendant company also admits that it does intend to take, if it lawfully can, about four-fifths of the water from the spring, and convey it to the city of Bluefield, but denies that this diversion of the water will in any way injure the plaintiff or lessen the value of his lands.</p> <p>At the October, term, 1892, of this court, a motion was made to dismiss this suit, by the defendant company, which motion was overruled. A demurrer to the bill was then filed, the grounds of demurrer being as follows: Virst, that the court has no jurisdiction of the parties nor of the subject-matter of the suit; second, for want of proper parties to the bill; and, third, that the 'complainant's remedy is at law, and not in equity. The demurrer was overz-uled. At the same term of the court an order of survey was made, and a surveyor appointed to ascertain and report to the court the true boundary line between the county of Mercer, in the state of West Virginia, and the county of Tazewell, in the state of Virginia, and to show the location of the spring with reference to said boundary line. The surveyor executed the order, and filed his report on the 9th day of January, 1893; but ■ exceptions have been filed to his report, and the same have been considered by the court.</p>

<p>In Error to the Circuit Court of the United States for the northern Division of the Northern District of Illinois.</p> <p>‘ At Law. Ejectment by Gertrude EL Hardin against Conrad N. Jordan. On May 28, 1SS3, the case was tried for the first time, resulting in a judgment for plaintiff. This judgment was set aside, and a new trial ordered on stipulation of the parties. On January 18, 188G, the case was tried for the second time, and judgment rendered, for plaintiff for part only of the land in controversy. On writ of error to the supreme court this judgment was reversed, and the cause remanded, with directions to enter judgment in favor of plaintiff for all the land. Judgment was entered in obedience to this mandate, June 10, 1891. Defendant thereupon paid costs and moved for a new trial. The motion was denied, and he brings error.</p> <p>Rev. St. Ill. c. 45, § 35, declares that: “At any time within one year after a judgment either upon default or verdict in the action of ejectment, the party against whom it is rendered, his heirs or assigns, upon the payment of all costs recovered therein, shall be entitled to have the judgment vacated, and á new trial granted in the cause, * * * but no more than two new .trials shall be granted to the same party under this section.”</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>At Law. Action by the Exchange National Bank of Spokane, Wash., against the Bank of Little Bock, Ark., to recover the amount of a draft raised after its issue by defendant. Judgment foi* defendant. Plaintiff brings error.</p> <p>Statement by SANBORN, Circuit Judge:</p> <p>The Exchange National Bank of Spokane, Wash., plaintiff in error, brings this writ of error to reverse a judgment of dismissal of an action brought by it against the Bank of Little Hock, Ark., the defendant in error, to recover the amount of a draft for $2,500 which had been raised from $25 after the defendant issued it, and before the plaintiff bought it. One D. C. Jordan, an employe of the defendant, whose business it was to prepare the exchange for the cashier to sign, drew a draft of the defendant on a New York bank, payable to his own order, for $25, for the cashier to sign, under the pretense that he wished to make a remittance to his brother. He so wrote the words “twenty-five” that there was room in the blank just after it to insert the word “hundred.” He so punched the figures “$25” that there was room just after them to insert with the punch two ciphers and a star in the usual manner, and he so wrote the figures “$25” that there was room immediately after them to insert two ciphers. In this condition he presented the draft to the cashier, who examined it, saw the way in which it was written and punched, and then signed it, and delivered it to Jordan. The latter then made the insertions of the words and figures he had left room for, and the paper became a fair draft for $2,500, without any erasure, interlineation, or other mark to excite suspicion of the alteration. This is a copy of the altered draft:</p> <p> </p> <p>After making the alterations, he indorsed this draft to a fictitious person, indorsed the name of the fictitious person upon it, and delivered it to a third person, who was identified at the bank of the plaintiff, and at whose request the plaintiff discounted the draft in good faith, for value, and without notice or suspicion of any alteration in it: The court below held that the draft was a forgery, and imposed no liability on the defendant, and this is the supposed error complained of.</p>

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

<p>1. Ratrroad Combantes — Kit.uing Stock — Contributory Negligence.</p> <p>Owners of stock in the Indian Territory have a right to let them run at large, and it is not contributory negligence to turn horses loose to graze in the vicinity of a railroad track, upon which they stray and are killed.</p> <p>2. Same— Negligence ok Engineer — Bi,owing Whistle.</p> <p>The failure of a locomotive engineer to blow the whistle on discovering stock upon the track, about 80 yards ahead, is sufficient to warrant a, jury in finding negligence, although it appears that the air brakes were immediately applied,</p> <p>3. Triad — Instructions—Directing Verdict.</p> <p>A request for an instruction to return a general verdict for defendant is properly refused, if the evidence justifies a verdict for plaintiff in respect to any part of his claim.</p>

<p>In Error to the Circuit Court of the United States for the District of Wyoming.</p> <p>At Law. Action by Schultz Yolger against the Hazard Powder Company for damages resulting from the explosion of defendant’s powder magazine. Judgment for plaintiff. Defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the District of Wyoming.</p> <p>At Law. Action by Caroline Volger against the Hazard Powder Company for damages for personal injuries. Judgment entered on verdict directed for plaintiff. Defendant brings error.</p>

<p>1. Jury Trial — Waiver by Written Stipulation — Record on Appeal.</p> <p>The recital in a record, “both parties in open court having waived s jury, and agreed to trial.before the court,” does not show that a stipulation in writing waiving a jury was filed, as required by Rev. St. | 649.</p> <p>S. Appeal — Review — Findings or Fact by Court Below — Sufficiency of Pleading.</p> <p>Where a jury has not been waived, as required by Rev. St. § 649, the appellate court cannot notice findings of facts by the lower court for any purpose, but the case stands as though the judgment of the lower court had been rendered on the general verdict of a jury; and the appellate court can only consider the sufficiency of the declaration to support the judgment.</p> <p>3. Same — Presumptions</p> <p>In such a case, tried In the circuit court for the district of Kansas, where the petition set out a contract for the sale of corporate stock, alleged its breach, and prayed judgment for the full amount of damages recovered, defendant claimed that the petition was insufficient to support the judgment, in that the proper measure of damages was the difference between the market value of the stock and the contract price, and that the petition failed to allege either what the difference was, or that the stock was of no value. Held, that as it was competent for plaintiff to prove, under the petition, that the stock was of no value, it would be presumed that such proof was made.</p> <p>4. FedeRal Courts — Following State Practice.</p> <p>In actions at law in the federal courts the sufficiency of the pleadings to support the judgment must be determined by the laws regulating the practice and pleadings in the state courts, as determined by the stole decisions. ¡</p> <p>5. Pleading — Waiver oe Deekcts.</p> <p>After answer filed, an objection to a petition that it does not state facts sufficient to constitute a cause of action is good only when -there is a total failure to allege that which is essential to the relief sought.</p>

<p>Assignment roit Benefit or Creditors — Title or Assignee — Rights of Attaching Creditors.</p> <p>A firm executed a bill of sale of their goods, notes, accounts, and other a-ssets, in order that the transferee should use the property in the payment of firm debts, for some of which he was liable, because the business had been conducted in his name, and should return the surplus. The transferee subsequently made an assignment of his own and the firm property for the benefit of his creditors. Held that, whether the bill of sale was or was not valid as an assignment for benefit of creditors, the transferee’s assignee could not claim title to the firm property as against attaching creditors of the firm.</p>

<p>!</p> <p>In Error to the Circuit Court of the United States for the West-* ern District of Virginia. :</p> <p>At Law. Action by the Franklin Brass Company of Buchanan,' Va., against the Phoenix Assurance Company of London on a policy of fire insurance. Verdict and judgment for plaintiff. Defendant brings error.</p>

<p>1. Appeal — Iíbvtew—'Instructions—Bilí, op Exceptions.</p> <p>Under rules 10, 11, and 24 of tlie circuit court of appeals for the fourth circuit, (47 Fed. Rep. vi., xi.,) that, court will not consider a hill of exceptions to instructions giyen or refused, unless it contains the evidence on, which the1 question of law raised by the instructions arose. It is not enough that the testimony be found in another part of the record.</p> <p>2. Same — Hktimwable Ohours — Denial op Motion por New Trial.</p> <p>According to tlie practice of the federal courts, the ruling of a trial court on a motion for a new trial is not reviewablo in the appellate court.</p>

<p>Appeal — Review--Motion eoh New Trial.</p> <p>Action on a motion for a new trial Is not reviewable on writ of error in the circuit courts of appeals.</p>

<p>Error from the Circuit Court of the United States for the Southern District of Few York.</p> <p>At Law. Action by the City Rational Bank, of Birmingham, Ala., against Robert G-. Dun, Erastus Wiman, Arthur J. King, and Robert Dun Douglass. Verdict and judgment for plaintiff, and new trial denied. See 51 Fed. Rep. 160. Defendants bring error.</p>

<p>In Equity. Suit by Carl Wesley against James B. Clow and others to restrain alleged infringement of a patent. Decree for defendants.</p>

" Bill by Fred E. Lee and William G. Howard against tbe Northwestern Stove Repair Company and others to restrain alleged'infringement of a patent. Decree for complainants. 50 Fed. Rep. 202. Defendants appeal. Statement by WOODS, Circuit Judge: The appellees, as executors of the will of Philo D. Beckwith, sued the 'ap, pellants for infringement of letters patent No. 289,S02, dated December 11, 18S3, and for an accounting.

<p>Appeal from fbe Circuit Court of tbe United States for the Northern District of Illinois.</p> <p>Bill by the Western Electric Company against the Sperry Electric Company and others to enjoin infringement of a patent. Defendants obi ained a. decree. Complainant appeals.</p> <p>Statement by WOODS, Circuit Judge:</p> <p>The appellant, as assignee of the inventor, Charles H. Scribner, to whom had been granted letters patent No. 420,109, brought tills suit to enjoin infringement and to obtain an accounting. The respondents, not admitting that the patent, was issued in due form of,law, nor that the complainant was the sole and exclusive owner thereof, answered Unit the invention described was not new nor useful when the application for the patent was made; and that, the inventor, Scribner, and the complainant “actually abandoned the said alleged invention.'’ in respect to infringement the respondents allege "that 1hey have not since January 28, 1890,” (as charged in the bill,) “or at any other lime, * * * made, used, or sold any electric lamps embodying the invention described and claimed; * * * that since the 28th of January, 1890, they llave made certain electric arc lamps in accordance with and under and by virtue of the patent to Elmer A. Sperry, dated the 18th day of June, 1889, No. 405,440, and the invention therein described and claimed.” Tlie court below found and held that the application for the patent had been abandoned, before the letters were granted, by reason of the failure of the applicant to prosecute the shine within two years after action thereon, as required by section 4894 of the Eevised Statutes, and dismissed the bill for want of equity. Counsel for the appellee insists that the record shows abandonment of the invention as well as of the application.</p> <p>Tiie facts pertinent to the question of abandonment are as follows: Scribner’s application for the patent in suit was filed January 2, 1883. On the 25th of the same month the patent examiner wrote him, to the, effect that, the claims were rejected on references cited; and nothing further was done until the 26th of December, 1884, when Scribner’s attorney wrote to the commissioner of patents, “Idease reconsider last official action,” etc., to which, on January 9, 1885, an examiner replied: “Further action will be taken in this case when the requirements oí office rule 67 have been complied with. No invention has been pointed out in tills case over the references of record, and none is believed to exist. The last official action is repeated.” The next movement was made July 25, 1885, when the applicant proposed amended claims, and from that time there were communications, dated, respectively, August 13, 1885, .Inly 6, 9, and 16, October 13, 1886, August 10, 1887, and September 15, 1887; the last being to the effect that claims 2 and 3 as they then stood, were indefinito in form, and did not clearly distinguish the construction sought to he covered. To this the applicant made no response nor took other step in the matter until August 30, 1889, when lie wrote to the commissioner in support of Ms claims, and in conclusion said: “Applicant’s attorney, being in doubt whether the action of September 15th, 1887, would be considered a final or second rejection, files this request, for reconsideratii>n, and asks that action he had thereon immediately, in order that the appeal may be perfected. If the office holds, however, that the action of September 15th, 1887, was a second action, this paper may be returned to applicant’s . attorney, and the appeal-filed.” The necessary papers and money for the taking of an appeal accompanied the letter. On September 9, 18S9, the examiner responded to the effect that the action of September 15, 1887, was of a purely formal character, the repetition of which would not warrant an appeal to the examiners in chief, and concluded by saying: “As the action of September 15th, 1887, appears, on reconsideration, to have been well taken, it is now repeated, but the appeal filed cannot be entertained for the reasons above explained. Applicant’s remedy is by a petition to the commissioner, as indicated.” On October 1, 1889, the same examiner declared the application abandoned, because there had not been proper action by the applicant within two years after September 15, 1887. The action of the office on that date having been upon the form of the case, by the last paragraph of rule 171, the applicant was required, as the examiner held, to treat the formal matter within two years; but instead of doing that he had requested a reconsideration, and at the same time filed an appeal to the examiners in chief, the rule of practice being that action upon the merits cannot be had until all formal objections have been disposed of. On October 29th ensuing this decision was overruled by a new examiner, meanwhile come into office,who, “in view of the fact that a reconsideration of claims 2 and 3 was requested within the two-year limit after the action of Sept. 15, ’87, (by which objection to their form was made,) and in view of the fact that such reconsideration was accorded, (as shown by the letter of Sept. 9 th, ’89, in which the examiner refuses to act upon the merits of the case and file the appeal, and repeats the formal objection,)” held that the ruling that the application had been abandoned was not justified, was made through oversight, and was therefore withdrawn. On December 12, 1889, the applicant presented ■an amended specification, and on January 28, 1890, the patent was issued to the appellant as the assignee of Scribner.</p> <p>: The drawing which accompanied the original application has not been changed, and the specification remains substantially the same as at first, except that by the amendment of December 12, 1889, the part in brackets was added. The specifications, claims and drawings of the patent are as follows:</p> <p>. “My invention herein set forth relates to electric are lamps, in which a regulating magnet is attached rigidly to the frame of the lamp, and a suspending lifting magnet is employed, as hereinafter described and claimed. In lamps now in common use, including those in which the lifting magnet is wound differentially, one winding being a portion of the main circuit and the other a portion of a shunt around the are, and also including those lamps like the Yon Hefner Alteneck, (United States patent No. 243,341, .Tune 21, 1881,) in which the lifting solenoid in the main circuit and the solenoid in the shunt of the are act upon the same carbon rod, the current of the main circuit acts in opposition to the current of the shunt of the are. In all these lamps the armature of the lifting magnet, in order to compensate or feed, moves away from the poles of said lifting magnet. This movement of the lifting armature away from the poles of its magnet, which produces the feed, is caused chiefly by the variations in the strength of the current of the shunt of the arc. As the strength of the current in the shunt of the arc increases, the armature of the lifting magnet moves away and causes the feed. The compensation for the inequalities of the current is caused chiefly by the variations of the strength of the current of the magnet in the main circuit. In my lamp, however, as herein described, the electro-magnet in the shunt of the are doe's not act in opposition to the electro-magnet in the main circuit. The strength of the lifting magnet is not changed, nor is the position of the armature of the lifting magnet changed relatively to the poles of said lifting magnet, by variation in the strength of the electro-magnet in the shunt of the arc.</p> <p>“The accompanying drawing, which is illustrative of my invention, shows a front elevation of an electric are lamp.</p> <p> </p> <p>"The circuit may be traced from hook, a, by wire, b, through the suspended lifting magnet, c, and thence to the carbon rod, d, and thence through the arc, c, and by wire, f, to hook, g. The regulating magnet, h, is included in the shunt of the arc, and attached rigidly to the frame, i, of the lamp, and .controls the regulating mechanism of the lamp. The three pieces k, 1, and m, pivoted as shown, form a kind of pivoted armature lover supporting the lifting magnet, c, the poles of which extend toward the lifting armature, n, that carries the usual friction clutch, o. The lifting armature, n, with its suitable movable supporting parts, is carried up and down with the lifting magnet. It should therefore not extend either above or below the poles of the lifting magnet. The two ends of the lifting armature come, preferably, opposite the centers, respectively, of the two poles, as shown. The armature, p, of the regulating magnet is mounted upon the pivoted armature lever. The frame is held suspended by means of the adjustable retractile spring, q. Armature, n, pf the main-circuit magnet is mounted upon armature levers, n1, pivoted to ,the frame of the lamp. The clutch, o, is susxiended directly upon the lower one of these two pivoted levers upon which the armature, n, is mounted.</p> <p>“The operation of my lamp, as thus described, is as follows: As soon as the circuit is closed, the armature, n, is raised by the lifting magnet, and the clinch, o, lifts the rod, thus separating the carbons, and establishing the arc, as shown. The action of the magnet, h, will at the same time draw upon its armature against the tension of spring, q. The spring, q, must therefore be adjusted to sustain its armature lever and the parts it supports after the lifting magnet has raised the rod. The armature, n, will move as the magnet, c, moves. It has also a compensating motion up and down, as the strength of the magnet, c, increases and diminishes. As the resistance of the arc increases, the regulating magnet becomes more strongly magnetized, and the armature, p, is drawn downward, and also piece, i, which carried the lifting magnet, e. The lifting armature, n, it is evident, will descend at the same time, thus compensating and feeding as the current varies or the carbons burn away. It will thus be seen that the current in the shunt of the arc acts to change the position of the lifting magnet and itg armature. This action is in no way opposed to the action of the current which is passing through the coils of the lifting magnet. Increase of the current in the shunt lowers the armature, p, and the lifting magnet, c, just the same, without reference to the magnetic force of the lifting magnet; [that is to say, armature, n, is attracted by the main-circuit magnet, and assumes a definite'position with relation thereto, which position it holds, no matter what changes may take place in the strength of the shunt magnet. Armature, n, through the attraction of the main-circuit magnet, is connected through magnetic action with armature lover, k, 1, m, and the movements of this armature lever in responding to the changes taking place in the electromagnet in the shunt of the arc are communicated to armature, n, its lever, and to clutch, o. Thus it will be seen that clutch, o, is carried and controlled by the pivoted armature lever, k, 1, m, and the pivoted armature lever upon which said clutch is supported.] The compensation and feeding of my lamp is thus more -delicate than in lamps heretofore known or used.</p> <p>“I claim as my invention: (1) In an electric arc lamp, the combination, with an electro-magnet in the shunt of the arc and its armature of an electro-magnet in the main circuit and its armature, said electro-magnet in the main circuit being carried upon a movable support, said support being controlled by the armature of the electro-magnet in the shunt of the arc, whereby the position of the main-circuit electro-magnet and its armature is caused to vary in response to the variations in the strength of the current l)assing through the electro-magnet in the shunt of the arc. (2) In an electric arc lamp, the combination, with a clutch suspended upon suitable movable supporting parts, an armature forming part of said movable supporting parts, an electro-magnet in the main circuit with its poles presented to said armature, a regulating mechanism pivoted to the lamp frame, and carrying the main magnet, and an electro-magnet in the shunt of the are with its poles presented to an armature carried by said regulating mechanism, whereby the position of the carbon-feeding mechanism is varied as the strength of the magnet in the shunt varies independently of the action or electrical condition of the magnet in the main circuit. (3) In an electric arc lamp, an eleetromiagnot in the shunt of the arc, a pivoted armature lever responding to the changes in the strength of said shunt magnet, in combination with a magnet in the main circuit, and a pivoted armature lever responding to the changes in strength of said main-circuit magnet, a carbon rod, and clutch for the same, said clutch being carried and controlled by the said armature levers, whereby the movements of either armature lever may be communicated to the clutch to feed and regulate the lamp.”</p> <p>In iiis specification for patent No. 415,571, Scribner made the following statement concerning the application for the patent in suit:</p> <p>“In my application, Serial No. 80,752, filed Jan. 2, 1883, I have described a lamp, in which the position of the lifting armature relative to the poles of the lifting magnet remains unchanged by any action of the shunt magnet, a change in the relative positions of said lifting armature being only effected by a change in the strength of the main circuit. In this case, however, the lifting magnet is made movable, and moves with its armature by the action of the shunt magnet.”</p> <p>The specification of the Sperry patent No. 405,440, after giving a lengthy and minute statement of the construction and operation of the device, concludes with the following comprehensive description:</p> <p>“The entire device, consisting of the parallel moving frame, supported on elastic bars, and containing the main-circuit electro-magnet or solenoid and carbon-rod clamp, is described as a carbon-separating device, since its office is to seize and separate the carbons in the first instance. The entire frame is then bodily moved by means of the derived-circuit electro-magnet or solenoid for the purpose of feeding the carbons.”</p> <p>Of the 18 claims of this patent, some of which are distinguishable from others only by very slight differences, the first is as follows:</p> <p>“(1) In an arc lamp, the combination of a main-circuit electro-magnet or solenoid with a moving frame, on which it is supported, a carbon-rod clamping device moved by said electro-magnet or solenoid, and a shunt magnet or solenoid, adapted to move said frame.”</p>

Bill by the Goss Pump & Rubber Bucket Manufacturing Company against the Temple Pump Company and others. Complainant obtained a decree. Defendant pump company appeals.

<p>1. Design Patents — Anticipation-—Evidence Based on Recollection.</p> <p>Anticipation of a design patent is not made out by the evidence of workmen testifying after several years to the appearance of a few designs made by them, when it is shown that their recollection is at fault as to the only one of these designs which is produced, and when they are contradicted by other witnesses, having equal facilities for knowledge.</p> <p>2. Same — Oral Testimony as to Dates.</p> <p>Anticipation of a patent is not made out by indefinite and contradictory testimony, entirely from recollection and after several years, as to the date at which a like device was produced.</p> <p>3. Same — Invention — Transfer and Adaptation of Old Designs — Watcii Casus.</p> <p>While the mere transfer of an old form existing upon something else to a watch case is not patentable invention, yet a patent for a watch-case design is not- invalidated by the pre-existence upon something else of all the elements of the design, but arranged and combined in a different manner, resulting in a materially different appearance.</p> <p>4. Same — Validity of Patent.</p> <p>Letters patent No. 15,121, issued July 1, 1884, to Henry Untermeyer, for a design for watch cases, are valid.</p> <p>5. Same — Ineringement—Penalties—Equity Jurisdiction — Constitutional. Law.</p> <p>The act of February 4, 1887, relating to design patents, is not unconstitutional in that it imposes a penalty for infringement, and authorizes the enforcement thereof by a court of equity in an injunction suit.</p> <p>6.' Same — Measure of Damages.</p> <p>The act of February 4, 1887, enlarged the remedy for the infringement of a design patent by giving as damages the entire net profits made on' the article to which the infringing design is applied, instead of requiring an apportionment of the profits attributable merely to the design. 50 Fed. Rep. 77, affirmed.</p> <p>7. Same — Act Feb. 4, 1887 — Pending Suits.</p> <p>The measure of damages thus prescribed was applicable to pending suits, as to infringements occurring after the statute went into effect. 50 ■ Fed. Rep. 77, affirmed.</p>

<p>Appeal from tlu* Circuit Court of the United States for the Northern District of New York.</p> <p>Iu Equity. Bill by the Bagley & Sewall Company against the Empire Wood-l’ulp Company for infringement of letters patent for an improved paper machine. From a decree dismissing the bill, complainant appeals.</p>

In Equity. Three suits brought by the Bocker Spring Company against the-William D. Gibson Company to restrain, the alleged infringement of certain patents., Complainant moved for a preliminary injunction.

In Equity. Bill by the Heaton-Peninsular Button-Fastener Coin pany against the Elliott Button-Fastener Company for infringement of letters patent. Decree for complainant. Statement by BROWN, Circuit Justice: This was a hill in equity for the infringement of letters patent No. 293,234, issued February 12, 1884, to Charles II. Eggleston, for a setting instrument for atta tiling buttons to lea titer and other fabrics.

<p>Appealable Decrees — Interlocutory Injunction.</p> <p>On appeal, under section 7 of the judiciary act of March 3, 1891, from an interlocutory decree granting an injunction, made on a hearing upon the merits of the whole case, the circuit court of appeals has jurisdiction to review the merits.1</p>

In Equity. Suit by the Peoria Target Company against the Cleveland Target Company and others for infringement of a patent. There was a decree in the court below for complainant, (43 Fed. Eep. 922,) but on a rehearing the bill was dismissed, (47 Fed. Eep. 728,) and complainant appeals from the latter decree. Statement by TAFT, Circuit Judge: This is an appeal from a decree of the circuit court of the United States for the northern district of Ohio.

In Equity. Suit fur the infringement of letters patent No. 432,538, issued July 22, 1890, to Edmund Converse, as assignee of William A. Turner, for a stove knob. Decree for complainant. The article in controversy is a stove knob, which is a hollow sheet-metal knob or handle, particularly adapted to be attached to the door of a cooking stove, or range, to be grasped when opening and closing the door.

In Equity. On rebearing. Suit by Jobn S. Detwiler against Joseph Bosler for infringement of letters patent No. 188,783, issued March 27, 1877, to complainant, for an improvement in grinding mills. On May 9, 1893, a decree was ordered for complainant, but a rehearing was subsequently granted.

<p>1. Admiralty Appeals — Supreme Court— Circuit Court of Appeals.</p> <p>An expression of opinion on tlie merits by the supreme court in reversing and remanding an admiralty cause, which was again tried in the circuit court after ¡he passage of the judiciary act of March 3, 1891, is not binding on the circuit court of appeals when, according to its practice, the case is brought before it on all the evidence, which shows an additional material fact not in the record before the supreme court, and the absence of which that court expressly recognized.</p> <p>3. Colusión — Damage to Tow.</p> <p>A vessel guilty of fault contributing to a collision with a tow, which is free of fault, is liable therefor, although the tug in charge of the tow was also in fault, and is not a party to the suit.</p> <p>3. Same — Inspection Rules — New York Harbor.</p> <p>A tug rounding the Battery in New York harbor from the North river into the East river with a tow is subject to rale 2 of the supervising inspectors, providing that, when vessels approach each other obliquely, the one having the other on her starboard hand and being herself on the other’s port hand shall put her helm to port, and pass under the other’s stem; and she is not excused from obedience thereto by the fact that, as the other vessel Is aijproaehing obliquely across the East river, the maneuver will throw her out into1 the ebb tide, and cause her great inconvenience and delay. 49 Fed. Rep. 92, affirmed.</p> <p>4. Same — Custom.</p> <p>The mere fact that vessels in rounding the Battery often agree with each other to depart from the inspectors’ rule, so as to allow the vessel going against tlie (ido to keep next the piers, is not sufficient to excuse a vessel for disregarding the rule without any agreement.</p>

<p>In Equity. Bill by P. B. Winston, the Farmers’ Loan & Trust Company, and others, against the Northern Pacific Railroad Company, for the appointment of receivers, etc. Heard on the intervening petition of ihe Wisconsin Central Company and the Wisconsin Central Railroad Company for payment of rental during the receivership and other relief.</p>

In Equity. Bill by the New York, Pennsylvania & Ohio Railroad Company against the Yew York, Lake Erie & Western Railroad Company and John… Held: controlled, and operated, under a lease for 99 years, the entire line of railroad owned by tbe complainant company, a corporation of the state of Ohio, extending from Salamanca, in tbe state of New York, to Marion and Dayton, in tbe state of Ohio, together with certain other lines in tbe state of Ohio, leased by tbe corporations…

In Equity. Suit by Edward P. Bicker against Annie T. Wicker-sham and the Guarantee Trust & Safe-Deposit Company, adminis-tratera, for specific performance of a contract. There was a decree for complainant, and defendants appeal.

In Equity. Bill by Willard S. Brown and others against the Grand Bapids Parlor Furniture Company and others to set aside certain chattel mort gages. Decree dismissing the bill. Complainants appeal. Statement by TAFT, Circuit Judge; This was an appeal from a decree of ¡he circuit court,for the western district of Michigan, southern division.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>At Law. Action of ejectment brought by Alfred Oscamp against the Crystal River Mining Company. Verdict and judgment for defendant. Plaintiff brings error.</p>

<p>Appeal from tbe Circuit Court of tlie United States for the District of Minnesota.</p> <p>Statement by THAYER, District Judge:</p> <p>This was a suit brought by the Hastings & Dakota Railway Company, hereafter termed the “Hastings Company,” against the Winona & St. Peter Railroad Company, hereafter termed the “Winona Company,” and the Winona & St. Peter Dand Company, to settle the title to- a large quantity of land situated in the state of Minnesota, which was claimed by the railway companies, respectively, under different overlapping land grants. Before the suit was brought to a final hearing, Russell Sage, the appellant, became vested with all of the rights of the Hastings Company, and was thereupon substituted as complainant.</p> <p>The bill of complaint contained the following allegations, in substance: That by an act of congress approved on July 4, 1800, (14 Stat. 87, 88,) there was granted to the state of Minnesota, for the purpose of aiding in the construction of a railroad from Hastings, in the state of Minnesota, through the counties of Dakota, Scott, Carver, and McLeod, in said state, to such point on the western boundary of the state as its legislature might determine, every alternate section of land designated by odd numbers to the amount of five full sections per mile on each side of said road; that by an act of the legislature of the state of Minnesota, of date March 7, 1887, the aforesaid grant was accepted by the state, and all of the lands, interests, rights, powers, and privileges granted thereby to the state were conferred upon the Hastings Company, and the western terminus of its road was fixed by the terms of said legislative act at any point on the western boundary of the state of Minnesota between the Big Stone lake and the third standard parallel; that the Hastings Company thereupon surveyed a line of railroad on the route above indicated,»and caused "a map of definite location to be filed in the general land office of the United States on June 20, 1887, and subsequently constructed and completed said line of road in full accordance with-said act of congress, and thereby became entitled to all of the odd numbered sections of land lying within 10 miles of its located line, to which no homestead or pre-emption claims had attached prior to June 26, 1867, when its map of definite location was filed. The bill further showed that under and by virtue of certain acts passed by the legislature of the territory of Minnesota, and by the legislature of the state of Minnesota, the Winona Company was duly incorporated, and became entitled to such lands as were granted to the territory of Minnesota by an act of congress approved March 3, 1857, (11 Stat. 195, 197,) in aid of building a line of railroad from Winona, Minn., via St. Peter, to a point on the Big Sioux river south of the forty-fil'th parallel,, and also to such additional lands as were granted to the state of Minnesota in aid of building the same line of road by a subsequent act of congress, approved March 3, 1865, (13 Stat. 526, § 1;) that the Winona Company thus became entitled to all of the odd-numbered sections of land lying within 10 miles of its road, to which no homestead or pre-emption claims had attached at the date of its definite location, with the right to make up for any deficiency that might be occasioned by locations under the homestead and preemption laws, by selecting other odd-numbered sections lying within 20 miles of its road. It was further alleged that, to make up for losses within the granted limits of the Winona Company, there was selected in its behalf cer■tain odd-numbered sections of land (the same being the sections now in controversy) which lay within 10 miles of the located line of the Hastings Com'pany, and were thus within its granted limits; that the said lands” so selected for the Winona Company were each and all selected subsequent to June 26, 1867, after the road, of the Hastings Company was definitely located; and that said lands of right belonged to the Hastings Company. It was further shown by the bill that the lands now in controversy, which were selected for the Winona Company to make up for losses within its granted limits, all lay within 20 miles of the road of the Winona Company; that they .were certified to the state of Minnesota by the secretary of the interior for .the benefit of the Winona Company as lands properly belonging to it; and that the state had duly conveyed them to the Winona Company. In view of the premises, tlio hill chnrgcfl ihat the Winona Company, and all persons to whom it might have conveyed any portion ot said lands, hold the title thereto in trust for the Hastings Company, and it accordingly prayed Unit the Winona Company, and its codefendant, the Winona & St. Peter hand Company, lo which, as the hill showed, some of the lands had been conveyed might he decreed to hold idle title of said lands in trust for the Hastings Company, and that they might he compelled to account for the proceeds of all of said lands which they had severally sold.</p> <p>The answer of the Winona Company (so far as it is deemed material to state its contents) averred, in substance, that all of the lands in controversy in this suit were withdrawn from ihe market by the secretary of the interior, and were reserved for the Wino-na Company in aid of building its road, as early as February 12, 1867, some months before the Hastings Company filed its alleged map of definite location, and that the latter company acquired no right to any of said lands by filing said alleged map on June 26,</p> <p>1867. The Winona Company further alleged that a large portion of the lands in controversy were certified to the state of Minnesota by the secretary of the interior for the benefit of the Winona Company, as early as March 11,</p> <p>1868, and were conveyed by the state to the Winona Company on September 2, 1808; that the residue of the lands were thus certified to the state for the Winona Company on April 3, 1871, and were conveyed by the state to the railway company on February 26, 1872. In view of the latter facts the defendant companies pleaded laches a,nd the staiuie of limitations as a bar to the action.</p> <p>The circuit court on the final hearing dismissed the bill, and the complainant lias appealed from such decree.</p>

In Equity. Bill by Flora W. Evans, administratrix, against Charles Scribner’s Sons and others. Motion to set aside service and order of service made under Rev. St. § 738.

In Equity. Suit by George P. Wescott and Samuel Hanson against Joab Mulvane for specific performance of a contract. The court below dismissed the bill, and complainants appeal.

Opinion Granting' Rehearing. In Equity. This was a "’suit by the Winchester Repeating Arms Oompany against the American Buckle & Cartridge Company. It was tried together with two other cases between the same parties, (Nos. 676 and 678,) and a decree was entered awarding an injunction.

<p>Bankruptcy — Equity Suit — Sake ok Real Property — Reference on Prior ' Liens — Deposit in Registry.</p> <p>In an equity suit in the district court to recover assets belonging to a bankrupt’s creditors, the court, in a decree appointing a receiver, may direct the sale of real property free from incumbrances, and thereafter order a reference to ascertain summarily the amount due in case of dispute upon a mortgage which is a prior lien, and direct sufficient proceeds of the sale to be deposited meantime in the registry, as security for the mortgage, and that the premises be conveyed free from the mortgage.</p>

Id Equity. Suit by Martha J. Barnard and others against Frank F. Adams and others to recover a trust fund, or to enforce its application to the purposes of the trust.

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>At Law. Action’ by the Pottsville Iron & Steel Company against Edward Ascherson and others for recovery of money. A verdict was directed for defendants, and from the judgment entered thereon plaintiff brings error.</p>

At Law. Action by the City Bank of Hartford against the Press Company, Limited, upon three promissory notes. Judgment was entered below in favor of plaintiff, for want of a sufficient affidavit of defense. 56 Fed. Rep. 260. Defendant brings error.

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>At Law. Action by the Jersey City Gaslight Company against the United Gas Improvement Company to recover a sum-paid by plaintiff as taxes, and which it alleges defendant was obliged to pay under the terms of a lease made by plaintiff to defendant. There was judgment for defendant below, (46 Fed. Eep. 264,) and plaintiff brings error..</p>

At Law. Action by Ortha C. Bell, receiver of the First National Bank of Bed Cloud, Neb., against the Nebraska & Kansas Farm Loan Company, on a promissory note. Verdict and judgment for plaintiff. Defendant brings error.

<p>Suit for clerk’s fees. Judgment for plaintiff.</p>

. In Equity. Bill by tbe United States of America against tbe Germania Iron Company, Emil Hartmann, Richmond D. Mallet, and Tbomas Reed, to cancel a land patent. Reed, tbe patentee, made default. Tbe other defendants answered tbe bill, and appeal from a decree for complainant.

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>At Law. Action by John E. Savage against the New York Life Insurance Company for personal injuries. Verdict and judgment for plaintiff. Defendant brings error.</p>

At Law. Action by Andrew J. Snowden against the Pacific Mutual Life Insurance Company upon an accident insurance policy. Verdict and judgment for plaintiff. Defendant brings error.

In Equity. Bill by the Chattanooga Medicine Company against M. A. Tkedford and W. J. Satterfield to enjoin the use of a trade-name. Defendants filed a cross bill asking the same relief. A preliminary injunction was heretofore denied. 49 Fed. Rep. 949. The case is now on first hearing. Decree for defendants on the original hill, and decree dismissing the cross hill.

In Equity. These were two suits for the alleged infringement of letters patent Ho. 107,607, issued November 27, 1877, to Oope-land, Woodward & Brock for an improvement in lasting machines for boots and shoes.

In Equity. Suit for infringement of the last 9 of the 10 claims of letters patent Ho. 377,376, issued February 7, 1888, to Nelson B. Eassett, for a “machine for coupling, chain links.” The object of the invention is thus described by the inventor in the caveat filed by him in the patent office: “This invention relates to the production of a machine which, under conditions of form and structure, shall render it capable of accomplishing automatically the labor now performed by…

<p>In Equity. Action by tlie R., E. Dietz Company and others against the O. T. Ham Manufacturing Company for infringement of letters patent No. 287,932, issued November 6, 1883, to Charles J. Higgins, and No. 450,444, issued April 14, 189.1, to Lewis P. Betts, both for improvements in tubular lanterns. Decree for complainants as to the Higgins lantern, and for the defendant as to the Betts lantern.</p>

<p>1. Patents von Inventions — Whathub Strirs —Inertngeiíent.</p> <p>Ijetiers patent No. 381,16(5, issued April 17, 18S8, to Charles R. Vincent, for improvements in weather strips, whereby the joined edges of a tubular cushion are reinforced by a binding rib or cord, with a metallic 2>iato adapted to be bound over and upon the reinforced edges, are for mere combinations of constituents previously used In the art, productive of no distinctively new result, and, if sustainable at all, In view of the prior state of the art, are entitled to a narrow construction only, and are not infringed by a device made under letters patent No. 434,890, issued August 19, 1800, to Clifford Seville, for an improved weather strip in which a narrow reinforcing strip is inserted between the lapped edges of the rubber cushion, and (irmly secured thereto by coarse stitching, in combination with a metallic housing or backing.</p> <p>2. Same — Equivalents.</p> <p>As flic Seville patent does not use one of the specified elements — the cord — of the Vincent patent, and the invention for which the latter was granted is not of a primary character, the doctrine of equivalents has no application.</p>

In Equity. Bill by Richard F. M. Chase against Charles B..Filin-brown and others for infringement of letters patent No. 1(50,681, issued March 9, 1875, to Kent & Beeson, for an improvement in knit fabrics. Decree for complainant. The patentees thus describe their invention: “This invention relates to certain improvements in the manufacture of plush and knitted goods.

<p>At Law. Action by John H. Bussell, assignee of one Ager, (mentioned in the opinion,) to recover damages for the infringement of certain patents. On demurrer to the complaint.</p>

<p>1. Patents for Inventions — Assignment-—'Wuat Constitutes.</p> <p>Instruments executed by a patentee purporting to perfect and establish in another the sole and entire right to an invention in certain named states, excepting “two mill rights heretofore sold,” which “are excepted * * * in the above adjustment of territory,” constitute an assignment of the patent subject to the specified mill rights, and authorize the as-signee, or persons claiming through him, to institute suits for infringement.</p> <p>3. Sami; — Suit for INFRINGEMENT — Pleading.</p> <p>Where the inventions covered by several patents enter into and constitute one compact machine, it is necessary, in suing for infringement, to complain upon all of the patents, notwithstanding that some of them have expired; and any question as to the effect of the patents which have expired, and their treatment, upon an accounting with reference to the machine as a whole, must be left to the tinal hearing.</p>

<p>Patents fob Inventions — Limitation—Prior Atit — Infringement.</p> <p>Letters patent No. 216,510, issued June 17, 1879, to A. G. Cummings, for improvements in interlocking railroad switches and signals, which improvements arc comprised mainly in a “selector,” whereby a switch and two separate and distinct signals or branch lines may he operated by the use of only two levers, must, in view of the prior state of the artj and particularly of the Kelly English patent of 1874, be limited strictly to the construction shown, and are not infringed by a device which has marked difference in the method of operation.</p>

<p>Patents for Inventions— Infringement — Brusu Secondary Battery.</p> <p>The (/slier secondary battery, in which are combined a support plate, a porous medium, and an active material mechanically applied to the plate, contains all the features of and infringes the patent for the Brush secondary hattery, (No. 337,290,) though the form of the !>late and the lead foil wrappings about the active material in the Usher battery are new.</p>

<p>Appeal from the ‘Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>In Equity. Bill by James E. Kerr, administrator of the estate of David B. Kerr, deceased, against John Hoyle, Edwin Harrison, and Andrew Kaye, trading as Hoyle, Harrison & Kaye, for infringement of a patent. Decree for complainant. 55 Fed. Rep. 658. Defendants appeal.</p>

Appeals from the Circuit Court of tbe United States for the Western District of Pennsylvania. In Equity.

<p>Appeals from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>In Equity. Suits brought by William Anderson — one against W. T. Monroe, one against R. L. Riggs and Bert Hubbell, doing business as Iiiggs & Hubbell, and one against James E. Patterson — for infringement of design patent Dio. 19,877, issued June 3, 1890, to William Anderson, for a design for mantels. The bills were dismissed below, (55 Fed. Rep. 407,) and complainant appeals.</p>

<p>In Equity. Suit by the Parry Manufacturing Company against the Hitchcock Manufacturing Company and others for infringement of a patent.</p>

<p>In Equity. Suit by Nathan O. Ross against the city of Ft. Wayne for' infringement of a patent. On demurrer to the hill.</p>

<p>In Equity. Suit by the American Bell Telephone Company against; the Brown Telephone & Telegraph Company and others for infringement of a patent.</p>

- In Equity. Suit by the American Bell Telephone Company against the Western Telephone Construction Company and others for infringement of letters patent No. 186,787, issued January 80, 1877, to Alexander Graham Bell, for improvements in electric telegraphy.

<p>¡Patents for Inventions — Infringement—Improvement in Shoe Clasps.</p> <p>In view of the prior state of the art, the first claim in letters patent No. 301,8S4, granted July 15, 1881, to Hammond & King, for improvement in shoo clasps for arctic shoes, viz.: “In combination, the catch plate, the tongue pivoted directly to the tongue plate, and the tongue plate extending rearward of the pivot, and in contact with the catch plate when the parts are engaged,” can only he sustained by reading inlo it the limitations that the tongue should be pivoted directly to the tongue plate, below its face, and between its bifurcated ends, and that the tongue should have a broadened position to combine with the elastic arms of the bifurcated ends, and, as thus modified, the invention is described in claim 4 of the same patent; and the patent is not infringed by a shoo clasp which has no broadened tongue, the lock of the tongue being secured by the use of flattened, laterally projecting pivots.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In Equity. Suit by William Delemater and auother against Mareellus C. Heath for infringement of a patent. The court below dismissed the bill, and complainants appeal.</p> <p>Statement by LACOMBE,“Circuit Judge:</p> <p>This is an appeal from a decree of the circuit court in the southern district of New York, dismissing' a bill in equity brought for the infringement of reissued letters patent No. 9,414, granted to Hie assignees of the late John Ericsson on October 24, 1880, and assigned by mesne assignments to the complainants. The original patent was granted March 30, 1880, being numbered 220,052. The patent is for an improved hot-air engine, and contains four claims. Infringement of all these claims is charged in the bill and denied in the answer. The evidence, however, clearly shows that defendant’s engine's are covered by all the claims, and the fact of infringement is practically conceded. The principal defense is that the machine liad been in public use and on sale for more than two. years prior to the application, February 19, 1880. The circuit court sustained that defense, and it is assigned as error by the appellants that said court did not. hold (1) that the prior use or sale was for purposes of experiment only; (2) that the invention recited in claim 2 was patenlably distinguishable from the structures held to have been in public use: and (3) that the invent ion recited in claim 3 was similarly dis tinguishable.</p>

<p>1. Patents for Inventions — Equivalents—Cable Car Turntables.</p> <p>Two cable car turntables, having slots underneath the surface platform wide enough at the ends to permit the table to turn a quarter round without interfering with the cable, are equivalent structures, when each is composed of a surface platform comprising two semicircular parts, with a slot between for the passage of the griper shant, such parts resting upon supports, which, in the one case, are attached below to a secondary table supported by a vertical spindle stepped in a bearing at the bottom of the pit, and, in the other case, to end timbers running crosswise beneath the cable, and resting upon semicircular rails, which travel upon pulleys journaled into the bottom of the pit.</p> <p>2. Same — Method of Operation — Description</p> <p>A patent for turntables for transferring cable cars from one track to the other, in which the only method of operation described requires the use of duplicate tables operated simultaneously, does not cover the use of a single table for that purpose, although the claim may be sufficient, in itself, to include it, and the single table is an equivalent structure to each table of the patent.</p> <p>3. Same — Priority—Date of Applications — Evidence.</p> <p>A patentee, who, by evidence, carries back the date of his invention beyond the date of the application for a rival patent, which was first issued, will be adjudged the first inventor, when there is no evidence .to carry back the rival invention.</p> <p>4. Same — Particular Patents.</p> <p>Letters patent No. 181,817, issued September 5, 1876, to Joseph Britton, for cable railway turntables for transferring cars from one track to the other, is limited to the use of duplicate tables, and does not cover the use of a single table to accomplish the same function.</p>

<p>In Admiralty. Libel by Nicbolaus O. Johnson, master of tbe bark Barranca, against tbe Baugb & Sons Company to recover freight. Decree for complainant.</p>

<p>In Admiralty. Libels on domestic liens for repairs. Decrees for libelant.</p>

<p>1. Collision — Fog—Excessive Speed.</p> <p>A speed of over 10 knots an hour, in a dense fog, near the entrance to New York harbor, is excessive, and renders the steamer liable for a collision, unless it is affirmatively shown that such speed did not contribute to tlie collision. 43 Fed. Rep. 151, affirmed.</p> <p>Z. Same — Sueeicienoy op Chew.</p> <p>If the number of officers and crew of a vessel on dock when a collision is impending is sufficient to perform all the duties required of her, it is immaterial that more are not there.</p> <p>3. Samp; — Evidence—Findings—Appeal.</p> <p>The finding of the trial court, on the testimony of the officers and crew of a. vessel, that she was sounding her fog horn and showing lights at the time of an impending collision, will not be reversed on appeal merely because the officers of the other colliding vessel, however alert, failed to see or hear such signals through the dense fog.</p> <p>4. Same — Steam and Sail — Sail Holding Counsia.</p> <p>A sailing vessel is under no duty to disregard the rule requiring her to hold her course merely because, being in a dense fog, the bearing of an approaching steamer, as ascertained by her fog signals, does not perceptibly change.</p> <p>5. Same — Damages—Total Loss.</p> <p>Where a New York harbor pilot boat is sunk hy a collision which cute her half through on the port how, the utter refusal of one wrecking company to attempt raising her, and of another to do so except for .¶>3,()()0 contingent on success, without regard to value when raised, is sufficient to warrant a finding that she is a total loss.</p> <p>6. Same — Value—How Disteiimjlned.</p> <p>Where a vessel sunk in a collision is of a kind which is seldom bought and sold, so as to establish a market value, as in (lie case of harbor pilot boats, which are of little use for other purposes, its value may be established by evidence as to original cost, age, probable future life, and the like.</p> <p>7. Admiralty — Discretion op Court — Two Libels por Same Cause.</p> <p>It is within the discretion of an admiralty court to entertain two libels for the same cause of action, — one in personam, and the other in ■rem, — where it renders a decree in favor of libelants in the former, and' suspends the entry of a decree in the latter until it is ascertained whether it will be necessary to recur to the security given in the suit in rem.</p> <p>8. Collision — Pilot Boat — Stranger on Board.</p> <p>A vessel which, through its own sole fault, collides with a pilot boat, is liable for consequent loss of property belonging to a person on board the latter as a passenger fo!r his own pleasure, free of charge.</p>

<p>In Error to the Circuit Court of the United Htales for the Northern District of Iowa.</p>

In Equity. Bill by James G. Warner against M. C. George, administrator of the estate of James H. B. McFerran, deceased, to enjoin an action at law, and for an accounting. Heard on a plea in bar.

<p>1, Quieting Title — Who may Sue — Ejectment Suits.</p> <p>One or more owners of lots in severalty under a common source of title may maintain a hill for themselves and all others similarly situated wiio may become parties, to quiet title to real estate against tin adverse claim alleged to he superior to the title of their common grantor, but repeatedly adjudged invalid in ejectment suits.</p> <p>2. Same — Vacant Laud — State Statute — Federal Courts.</p> <p>A right given by state statutes to a claimant of vacant lands to sue» to quiet title may be enforced in the federal courts.</p> <p>3. Deeds — Rules of Construction.</p> <p>In construing a deed the court may put itself in the place of the grantor for the purpose of discovering his intention, and then, in view’of all the facts and circumstances surrounding him, consider how the terms of-the deed may affect the subject-matter.</p> <p>4. Same — Intention Controlling.</p> <p>When the intention is manifest it will control in the construction of a deed without regard to technical rules of construction.</p> <p>5. Same — Description—Indefinite Indian Selection.</p> <p>An Indian, entitled hy treaty to select a section of land, made a declaration in writing that he selected a tract “one mile square, the exact'boundary of which may be defined when the surveys are made, lying on the west shore of St. Louis hay, Minnesota territory, immediately above and adjoining Minnesota point;” Minnesota point being a well-known landmark. Held, that this selection was too indefinite to form the basis for a conveyance of any specific land. Prentice v. Railroad Co., 43 Fed.-' Rep. 274, followed.</p> <p>6. Same — Specific Description — Floating Right.</p> <p>A deed which refers to an indefinite Indian selection of a tract of land under a treaty as the basis of title, hut which describes specific land by definite boundaries, the same appearing from a contemporaneous contract" to be the exact land intended to' he conveyed, cannot he construed to transfer a floating right to any interest the Indian might acquire under the treaty, so as to cover other lands, not included in the specific description, which were subsequently set oft to the Indian in lieu of his so’ lection. 50 Fed. Rep. 878, affirmed.</p> <p>7. Same — Recording—Deeds Made in Other States. '</p> <p>A deed of lands in Minnesota territory, executed before a. magistrate of' another state, hut not certified by the clerk of the county court of such, state to be “executed and acknowledged according to the laws” thereof,-ns.required in such case by the Minnesota statute, (Rev. St. Minn. 1S5Í,: c. 46, § 9,) was not entitled to record in Minnesota, and hence, although' copied into the record hook, was not recorded according to law. 'Lowry1 v. Harris, 12 Minn. 255, (Gil. 166,) followed.</p> <p>8. Same — Invalid Record — Constructive Notice.</p> <p>The record of a deed is not constructive notice of its contents when it is not entitled to he recorded under the registry statutes. Parret v.’ Shaubhut, 5 Minn. 323, (Gil. 258,) followed.</p> <p>9. Same — Bona Fide Purchasers — Grantees by Quitclaim. '</p> <p>One who, prior to the statute of Minnesota of 1875, acquired tide to Minnesota lands hy a quitclaim deed purporting to convey the lands themselves, was entitled to the benefit of the rule in favor of innocent purchasers for value, although it was held hy the supreme court of Minnesota, up to that time, that a grantee under a quitclaim in common form could-not he considered an innocent purchaser without notice, the common, form being a release of all the grantor’s “right, title, and interest” in the lands.</p>

<p>At Law. Action of ejectment brought by Winthrop Pond against the Minnesota Iron Company. Judgment for defendant.</p>

<p>1. Resistry Statutes — Cohstruction—Innocent Purchasers.</p> <p>A registry statute (Mansf. Dig. Ark. § 671) invalidating, as against subsequent purchasers for value without notice, all unrecorded instruments conveying lands, or “affecting the title thereto in law or equity,” applies to assignments of swamp-land certificates, and deeds of the lands represented thereby, although the naked legal title is still in the state. Coleman v. Hill, 44 Ark. 452, distinguished.</p> <p>2. Same.</p> <p>The protection of such a statute is not limited to bona fide purchasers from the same person who made the unrecorded conveyances, but extends to innocent ptuckasers from any one who appears from the records to be the owner of the title and interest which such grantor had when he made the unrecorded deed. Ralls v. Graham, 4 T. B. Mon. 126; Hancock V. Beverly, 6 B. Mon. 531; and Hill v. Meeker, 24 Conn. 211, — disapproved.</p>

<p>1. RescjbsioN of Sam — Eeaud—Dtuigenck.</p> <p>A vendee entitled 1o rescind his contract for fraud must act promptly, especially in times of great speculative activity; and where, on discovering the fraud, ho merely notifies the vendor of an intention to claim damages, and does not elect to rescind until the lapse of three years, when the land has depreciated to a fraction of its former specidativft value, it is then too late to avail himself of this remedy.</p> <p>2. Same — Ratificamos-—AoQraEscicNCE.</p> <p>A victim of a fraudulent sale who has received notice sufficient to put him on his .guard cannot evade the duty of speedy and diligent inquiry by merely calling on the chief perpetrator, whose interest it is to conceal the facts, to reiterate or prove his false statements; and such reiteration does not prevent the vendee's delay from operating as a ratification of the contact, or interrupt the running ol' limitations, when a diligent inquiry at independent sources would have fully disclosed the fraud.</p> <p>8. Samk — Eederat, Courts — State Statutes of Limitation.</p> <p>A federal court, sitting in equity, will not rescind a fraudulent sale when the vendee has remained quiescent after discovering the fraud for a period longer than that fixed by the state statute of limitations.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>At Law. Action by Aaron Kohn and others, attorneys, and co-partners under the firm name of Kohn, Baird & Speckert, against Zeb Ward, for professional services. Judgment for plaintiffs. Defendant brings error.</p>

<p>Constitutional Law — Interstate Commerce — State Regulations.</p> <p>The Obio statute of March 7, 1890, prohibiting the manufacture or sale of oleomargarine unless it be manufactured and sold in separate and distinct form, and in such manner as will at once advise the consumer of its real character, — free from any coloring matter or other ingredient which would cause it to look like butter, — is invalid as a regulation of interstate commerce, in so far as it would prevent the sale of oleomargarine, colored to look like butter, in the original packages in which it is imported from other states. I.eisy v. Hardin, 10 Sup. Ct. Rep. 681, .135 IT. S. .100, followed.</p>

<p>Appeal from tbe Circuit Court of tbe United States for tbe District [ of South Carolina. .</p> <p>In Equity. Suit by James J. Eiffert, John Jacob Eiffert, and Henry A Eiffert against Samuel P. Craps and others to set aside a' deed, and recover lands. There was a decree dismissing tbe bill/ Complainants appeal.</p> <p>Statement by MOREJS, District Judge:</p> <p>The complainants, alleging themselves to be children and heirs of John H. Eiffert, oh April 9, 1890, filed their bill of complaint, in equity, to set aside' a deed charged to be fraudulent, and to recover possession of about 90 aures^ of land in Lexington district, in South Carolina. They allege that their-, father, John H. Eiffert, being in possession and seised in fee of the land, died prior to 1860, the complainants being then from 6 to 12 years old; that they were taken by their mother to the far west, and have ever since resided out1 of the state; that about 1850 one Mitchell administered on the estate off their father, and, by collusion and fraudulent contrivance with one Henry: Craps, pretended to procure an order of the court of ordinary of the district,for the sale of the land, and had the land sold by the sheriff, and by collu-' sion and fraud turned the land over to Henry Craps, who took possession, and continued in possession until his death, in 1878; that the fraud was-perpetrated by Henry Craps falsely representing to the court of ordinary that he was one of the heirs and distributees of their father, and petitioning th<* court to sell the, land for partition; that after Henry Craps’ death, in 1878,, the land-remained in possession of the devisees under his will, until, untLer a decree for partition, it was sold in 1883 to one of his daughters, who has! since sold it in parcels to the other defendants, who are now in possession? that all the devisees of Henry Craps, and their grantees, the defendants, have-had.full knowledge of the fraudulent character of Henry Craps’ title. They, allege that the deed from the sheriff to Mitchell in 1850 is void, and passed no title, because, if a sale was really ever decreed by the court of ordinary,' that court was’ without jurisdiction to order a sale, both because Craps was: not a.n heir of John IT. Eiffert, and because no- notice, by advertisement or otherwise, was served on the complainants. As the reason why complainants have been prevented from sooner asserting their rights, they allege that about 1856 the complainant John Henry Eiffert returned to South Carolina, and inquired of Mitchell about their father’s land, and was informed by him that it had been sold for debt by 1be sheriff of Lexington district; that the fraud has only quite recently come to their knowledge, having been fraudulently concealed from them; and that, since they have learned of the fraud, one of the complainants has visited South Carolina, and seen the old people who might have knowledge of the matters, and has examined the records in the clerk’s office. The bill prays that the deed from the sheriff to Mitchell may he set aside, and declared void; that the title he declared vested in the complainants; that an account of rents be taken, and a writ of possession granted.</p> <p>The defendants answered, denying the alleged frauds, and claiming to bo innocent purchasers for value. They pleaded the statute of limitations, and the ladies of the complainants in assorting their claim of title, and that the complainants hare an adequate remedy at law.</p> <p>The bill coming on to be heard, the court (Judge Simonton) held that it appeared from the allegations of the hill that the complainants had a plain, adequate, and complete remedy at law, and dismissed the bill. The courr, as appeal’s from its opinion, proceeded upon the ground that as it was alleged that ihe court of ordinary was without jurisdiction of the subject-matter, and its order of sale was unauthorized by law, and none of the heirs of Eiffert were parties 1,o the proceeding, or hound by the order, and therefore, as alleged, that the title to the land had never been divested out of them, the case was, in fact, an attempt to enforce a merely legal title by a bill in chancery, instead of by action or ejectment. The court cited ITipp v. Babin, 19 How. 277, as controlling authority that such a bill must be dismissed.</p>

Appeals from the Circuit Court of the United States for the District of0 South Carolina. In Equity. Bill by Frederick W. Bound, a holder of second consolidated mortgage bonds of the South Carolina Railway Company, against the company'and others, for the appointment of a receiver, ascertainment of lien claims, and for foreclosure. A receiver was appointed, the holders of the senior and junior mortgage bonds and other lien claimants came in, and the priorities were adjudicated.

<p>In Equity. On demurrer to the bill.</p>

Carolina. In Equity. Suit by the Nantahala Marble & Talc Company against W. S. Thomas and others to enjoin a trespass upon mining lands, and for an account and other relief. The court below granted an injunction, pending which it required defendants to bring an action at law to determine the title to the disputed lands. Defendant Thomas and another appeal.

<p>1. United States Court in Indian Territory — Enforcement of Equitable Lien.</p> <p>Equitable liens on personalty by .contract of tbe parties being enforceable only in equity, jurisdiction of a case arising in the Choctaw Nation, upon suit by nonresidents to enforce such a lien against an administrator, is in the United States court for the Indian Territory, and not in the probate court of the Choctaw Nation.</p> <p>2. Equitable Liens — Foreclosure—Seizure at Commencement op Suit.</p> <p>Foreclosure of an equitable mortgage upon personalty can be effected only by seizure and sale, and such seizure may be made at the com-" mencement of the suit if ¿the debtor is insolvent, or if for any reason the equity of the creditor can be preserved only by bringing the property under control of the court.</p> <p>3. Appeal — Effect of Erroneous Allowance.</p> <p>A trial court does not lose jurisdiction of a cause by erroneously allowing an appeal therein from an interlocutory order which is not appealable.</p> <p>4. Appeal — Appealable Orders — Discharge of Order for Seizure of Property.</p> <p>In a suit in a federal court to enforce an equitable mortgage upon personalty, an order discharging a previous order to the marshal to seize and hold the property is not a final decree, and is not appealable.</p> <p>5. Parol Evidence — Recital in Bill of Sale of Receipt of Purchase Money. ■</p> <p>In a suit to enforce an equitable mortgage of personalty parol evidence is admissible to vary or contradict the bill of sale of the property in so far as it is a receipt for the purchase money, just as if the receipt were separate from the bill of sale.</p> <p>6. Equitable Liens — Enforceable tn Foreign Jurisdictions.</p> <p>An equitable lien upon personalty created by a contract for sale thereof in Arkansas is enforceable in the Indian Territory after the purchaser has removed thither with the property.</p>

<p>In Equity. Suit by Orlando Curtis against George A. Newton and others to charge said Newton as a trustee holding the legal title to real estate for complainant, and for an accounting, etc.</p>

<p>In Equity. Bill by John Evans, a stockholder in the Union Pacific, Denver & G-ulf Railroad Company, against said company, the Union Pacific Railway Company, and others, for the appointment of a receiver, and other relief.</p>

<p>1. Ratt/road Foreclosure — Sale—Enforcement of Terms against Bidders.</p> <p>A reorganization committee, to whom a cash sale of the road is made and confirmed, and who fail to make good their bid; not for want of funds, but because they think the price too high, cannot be excused, on a resale of the property for a less price, from making good the difference, if the unsecured creditors will be benefited thereby. Camden v. Mayhew, 9 Sup. Ct. 210, 129 U. S. 73, followed.</p> <p>2. Same — Reorganization Agreement — Rights of Bondholders.</p> <p>When a reorganization agreement to which all the bondholders and stockholders of the mortgagor company are parties plainly shows an intention that the new securities to be issued after the purchase of the road at judicial sale shall extinguish the old bonds for which they are to be exchanged, the consummation of the plan operates as a payment of the old bonds, ami the former holders thereof hare no claim upon the proceeds of the sale, on the theory that they are to he regarded as unsecured creditors to the amount by which the sum realized falls below the amount of such bonds.</p> <p>3. Same.</p> <p>Judgment creditors wbo bad advanced money to the railroad company, and- who were included in the reorganization agreement on the same basis as the bondholders, were in a like position after the completion of the scheme by the delivery of the road to the new company, and their claims also must be considered as paid.</p> <p>4 Same — -Distrtrution of Proceeds — Payments ny New Company.</p> <p>Where a reorganized railroad company purchases and receives possession of the road, and thereafter pays certain taxes, and also indebtedness incurred by the receiver, without especial authority from the court, these payments cannot be regarded as loans to the receiver, to be reimbursed from tire proceeds of the sale.</p> <p>S. Same — Rights or Unsecured Orkdttors — Waiver.</p> <p>When, by the conditions of a railroad foreclosure sale, the court has required the payment: in cash of an amount which is sufficient to meet ail allowed claims and the expenses of the suit, (the rest being paid in bonds,) the subsequent application, by consent of all parties, of part of this money to liabilities not properly chargeable against it, is a -\yaiver by the owners of allowed claims of their rights to the extent that such appropriation reduces the ability of the fund to discharge their entire claims with interest, and. they cannot afterwards require the purchasers to substitute sufficient cash in lieu of bonds to pay their claims in full.</p> <p>#>. Receivers — Compensation.</p> <p>A railroad receiver, who resides at a distance from the property, and commits its active management to others, is not entitled to the full compensa lion usually paid to railroad presidents and receivers who are the active executive heads of going railroads.</p>

Dakota. At Law. Action of ejectment by Patrick R. Smith against the Northern Pacific Railroad Company. A verdict for defendant was directed by the court below, and judgment entered thereon. Plaintiff brings error.

At Law. Action of ejectment by the Little Josephine Mining-Company against William Fullerton, Edward F. Clinton, Job V. Kimber, Richard Mackey, Richard W. Moseley, and John I!. Ballard, to recover possession of a vein of ore. Verdict and judgment for defendants. Plaintiff brings error.

<p>1. MASTKR AND SERVANT — NEGLIGENCE—VlOIS PRINCIPALS — WlTO ARE.</p> <p>A'liere a city engineer, declared by the charter to be the general superintendent of all work done by the city In the streets, appoints a superintendent of sewer construction, to have charge of that department of the work, and the latter employs a foreman, who controls a gang of men, with power to hire and discharge, and direct when, where, and how to work, "such foreman is not a general vice principal of the city in relation to a workman under him who is injured by his negligent act. Eailroad Co. v. Baugh, 13 Sup. Ct. Rep. 914, and Coal Co. v. Johnson, 50 Fed. Rep. 810, followed.</p> <p>2. Same — Defective Premises — Fellow Servants.</p> <p>The duty of a city to use reasonable care to furnish a safe place for its employes to work in does not extend, In the construction of a sewer, to keeping the same safe at every place and every moment of time in the progress of the work; and if it becomes unsafe, through the omission of a foreman, who is not a vice principal, to inform a workman that a dynamite cartridge has failed to explode, the city is not liable for a resulting injury.</p>

<p>At Law. Action by the Exchange Bank against Samuel T. Hubbard and others to recover money. On demurrer to the complaint.</p>

Statement by CALDWELL, Circuit Judge: H. M. Henson, the defendant in error and plaintiff below, brought this suit in the circuit court of the United States for the eastern district of Arkansas against the St. Louis Southwestern Railway Company, the plaintiff in error, to recover damages for the alleged negligent killing of his wife by the railway company, while she was traveling in a boarding car attached to one of Us trains.

<p>In Error to tbe United States Court in the Indian Territory..</p> <p>Statement by CALDWELL, Circuit Judge:</p> <p>This suit was brought by Brutus E. Thompson, the plaintiff in error, against W. L. Gatlin and others, the defendants in error, in the United States court in the Indian Territory. The complaint alleged that the defendants wrongfully and maliciously instituted in the United States court in. the Indian Territory an action of forcible - entry and detainer against the plaintiff to recover the possession of 200 acres of land and the houses and other improvements thereon, and that in pursuance to the command of a writ of possession issued in the cause, the plaintiff was ejected from the premises, and the possession of the same delivered to the defendants in this¡ suit, who wantonly and maliciously cut and tore down and damaged the fences, houses, and other improvements on the land, and destroyed a crop of cotton and broom corn by turning stock in upon the same. It is further averred in the complaint that the plaintiff, to the knowledge of the defendants, was without means to procure another home or shelter for himself and family, and that by reason of the exposure and hardship brought about by his wrongful expulsion fiom the premises his wife was made sick and suffered a miscarriage. It is averred that the' defendants “unlawfully, wrongfully, and maliciously conspired together to deprive tliis plaintiff .of the-possession of his home and said two hundred acre tract of land and tho improvements and crops thereon,” and that the destruction of the improvements and crops on the land and the exposure of himself and family “was! the direct result and purpose of such conspiracy, and that plaintiff was actually damaged by the said destruction of said fences, houses, and other improvements and of said crops of cotton and broom corn to the amount of $2,089.25, a recovery for which said damages, however, is not asked in this suit; and that by reason of the plaintiff being deprived of the possession of said two hundred acre traet of land from the said-day of July, 1891, to the said-day of April, 1892, plaintiff suffered actual damages in the sum of four hundred and fifty dollars; and that by reason of his being; deprived of the right to maintain his residence in the house upon said two hundred acre tract of land, and of the consequent suffering of himself and family, he has sustained actual damages in the sum of ten thousand dollars.” The alleged wrongful and malicious acts of the defendants are again recapitulated and a claim made for “further damages in the sum of ten thousand dollars as exemplary damages,”' and the complaint concludes hy praying judgment for @20,450. All these claims are stated as one cause of action, and in a single paragraph. The complaint does not allege want of probable cause for bringing the action of forcible entry and detainer, or that that action was terminated in favor of this plaintiff. The court, on motion of the defendants, required the plaintiff to paragraph ids complaint. The plaintiff refused to comply with this order, whereupon the court dismissed" his action for that reason, and this ruling is assigned for error.</p>

<p>Appeal from the Circuit Court of the United States for the District, of Colorado. .</p> <p>In Equity. Bill by the liichmond Gold & Silver Mining Company against George W. Elder to remove a cloud from the title to parts of certain mining claims. Decree for complainant. Defendant appeals.</p>

<p>1. Conflict of Laws — Insurance Policy.</p> <p>A policy of life insurance which is delivered and the first premium on which is paid in the state in which the assured resides is governed by the laws of that state.</p> <p>2. Life Insurance— Waiver of Notice and Proofs of Loss — Evidence.</p> <p>Proof that, prior to a failure to pay a premium on a life insurance policy, the insurance company had declared its intcnlion to forfeit the policy if such premium was not paid, and that, soon after the default in payment, the company declared the policy forfeited, and entered it as a lapsed policy in the company’s hooks, is competent to establish a waiver of i he provisions of the policy requiring notice and proof of loss. _</p> <p>3. Same — Estofrbl—Assertion of Right — Unequal Knowlbdck of Parties.</p> <p>Such evidence is also admissible as tending to raise an estoppel against the company, when taken in connection with testimony hy the assured's administrator (hat he was led to believe that the policy was no longer in force, by finding a notice of llie intended forfeiture among the assured’s papers;' especially where the company knew, before it assumed to declare such forfeiture, that its power to do so was doubtful, and had been denied, and that the question was in litigation, while the administrator had no such information.</p>

<p>1. Contract — Action—Defenses.</p> <p>Where a contract of sale provides for monthly shipments of cargoes, and a special understanding exists as to certain vessels, it is a good defense to an action thereon that the vessels did not sail at the respective times agreed.</p> <p>3. Same — Shipments under — Delay in Arrival.</p> <p>Where shipments are made in due time as stipulated by the contract of sale, the shipper is not responsible for delay in the arrival.</p> <p>3. Same — Performance.</p> <p>Where by a contract for the sale of phosphate rock of a certain quality, to be delivered in Baltimore by vessels, the quantity to be paid for to be determined by the output there, the cargoes, both as to quantity and quality, are at the seller’s risk during tho voyage, and the question of compliance with the contract as to quality is to be determined upon tender of delivery, and not when the shipment is made.</p> <p>4. Same — Failure to Deliver Material — Measure of Damages.</p> <p>Where a contract for the delivery of phosphate rock is without special agreement as to damages fot its breach, and there are no special circumstances indicating the contemplation or mutual understanding of the parties, the amount of damages recoverable for failure to supply the rock as agreed is the difference between the contract price and the market price at the time and place of delivery, and not for loss of profits, or for expenses entailed by lessening of business.</p>

<p>In Equity. Suit to foreclose a mortgage. On motion to remand to the state court.</p>

<p>1. Chinese Immigrants — Certificate—Evidence.</p> <p>Where the passport certificate and papers of a Chinese immigrant are regular, and such as the statutes declare to he prima facie evidence of the facts therein stated, their effect is not to he overcome by the sworn statement of a special inspector that he was told by an interpreter that the immigrant had made to the latter certain statements inconsistent with the papers.</p> <p>2. Same — Declarations.</p> <p>If declarations of a Chinese immigrant on his examination at the port of entry are to be used to overcome the prima facie case made by his certificate and papers, they must be taken under oath, and reduced to writing in the usual way.</p>

<p>At I/aw. Trial of James Bromiley, treasurer and manager of the Eastialte Manufacturing Company, on the charge of violating the United States laws prohibiting the importation of contract labor from foreign countries. Yerdict directed for defendant.</p>

<p>1. Elections — Fraudulent Registration — Sueftotency of Indictment.</p> <p>Au indictment under Itev. St. § 5512, for fraudulent registration, must designate the acts done by the accused in and about his registration, which resulted in a fraudulent registration of him by the inspectors of election, and an indictment in which the only act charged against the defendant is that he “fraudulently registered” is fatally defective.</p> <p>*■ i5»w- -tVwno op Registration.</p> <p>Was in the state of New York, the requirements of the law as to the registration of voters are different in different parts of the district within tlio jurisdiction of the court, an indictment under Rev. St. § 5512, for fraudulent registration, must specify the election district in which the fraudulent registration was effected.</p>

<p>At Law. Indictment by the United States against Frederick W. Brown for unlawfully advising and procuring others to register. On demurrer to the indictments.</p>

<p>Imm run ation — Detention and Return of Uni.awfuu Passengers — Duty op Vessbu/s Officers.</p> <p>Under section 10 of the immigration act of 3891, (20 Stat. 1086,) the agent of a vessel, who is ordered to detain on board and return certain immigrants unlawfully brought to this country, is bound to so detain them at all hazards, and will only be relieved therefrom by vis major, or inevitable accident. The word “neglect” in the provision for a penalty in case of “neglect to detain” is used in the popular sense of “fail” or “omit.”</p>

<p>1. Patents for Inventions — Preliminary Injunction — Acquiescence.</p> <p>When validity is denied, and the state of the art shows that the Invention is at best a narrow one, proof of acquiescence on the part of purchasers alone, coupled with complainant’s affidavit showing that the only large competing manufacturer was notified when ho first brought out his goods that complainant claimed infringement, and that thereupon “negotiations were entered into which resulted in an arrangement satisfactory to complainant,” whereby said competitor “was permitted to continue the sale of its goods,” is not sufficient to show such acquiescence as will warrant a preliminary injunction, in the absence of any details of the alleged arrangement or any affidavit from the competitor in regard thereto; especially when complainant’s former superintendent denies that any such arrangement was made at the time stated, or for several years afterwards.</p> <p>2. Same — Acquiescence—Circumstances to be Considered.</p> <p>In determining the completeness of acquiescence, the fact that coin-plainant and one other are the only large manufacturers of the class of goods in question, and that it requires a very large investment to make the necessary line of patterns, are circumstances to be considered.</p> <p>8. Same — Validity—Estoppel—Preliminary Injunction.</p> <p>A patentee wbo has assigned bis patent should not be allowed, when sued for infriugement thereof, to prevent the operation of the estoppel applicable in such cases, merely upon his ex parte affidavit, presented on a motion for preliminary injunction; for the questions of consideration, good faiih, and the effect of his action on the action of complainant, can only be satisfactorily determined by a hearing on the merits.</p> <p>4. Same.</p> <p>The more fact that an inventor, who has assigned his patent, subsequently becomes an officer in a corporation which is alleged to be an in-fringer does not render applicable to such corporation the estoppel which operates against him personally.</p>

In Equity. This is a suit for infringement of reissued letters patent No. 10,083, granted April 11, 1882, to Mark L. Deering, for improvements in the manufacture of paper bags. The first claim of the patent in controversy was, at final hearing, held to be valid by this court, and a decree was entered in favor o'f the complainants for an injunction and an accounting. Subsequently the defendants obtained leave to file a bill of review based upon newly-discovered evidence.

<p>PATENTS FOR INVENTIONS— EXPIRATION — LAPSE OF FOREIGN PATENT.</p> <p>Tbe lapsing of an Austrian patent before its full term of 15 years, because of failure to pay the annual tax, does not cause a United States patent for the same invention to expire at that time. Pohl v. Brewing Co., 10 Sup. Ct. Rep. 577,13á U. S. 381, followed.</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. Rep. 72. A cross bill was tiled, and thereafter stricken from the record. Id. 851. There was a final decree for complainant as to infringement, hut for defendants as to the interference. See 57 Fed. Rep. 601.

<p>1. Patents for Inventions — Injunction—Laches.</p> <p>Persons wbo establish a plant for the use of infringing electric lamps pending a suit to test the validity of the patent, which is brought and pressed with reasonable diligence, have no equities to prevent an injunction because the patentee delayed suing them until the patent was sustained in the test suit. 57 Fed. Rep. 042, affirmed.</p> <p>2. Same — Equities—Infringing Users — Licensees.</p> <p>An equity to be supplied with electric lamps by the manufacturing patent owner, at reasonable rates, may arise in favor of one who, pending a suit to test the patent, and while foreign decisions thereon were conflicting, has purchased from an infringing manufacturer an expensive plant, requiring the lamp for its operation; but this equity does not apply as between an exclusive licensee for a given territory, who has expended large sums on the faith of the patent, and an infringer, who has invaded such territory pending the test suit. 57 Fed. Rep. 042, affirmed; Edison Electric Light Co. v. Sawyer-Man Electric Co., 3 C. C. A. 005, 53 Fed. Rep. 592, limited.</p> <p>8. Same — Pecuniary Loss.</p> <p>The fact that an infringing user of an electric lamp necessary to the operation of its plant has made great expenditures looking to future extensions of its business is no ground for refusing to enjoin it from going into new territory and buildings, or from continuing to light buildings which it first lighted after the patent was sustained by the circuit court in a test case; and the* great pecuniary loss which the infringer would suffer by an unqualified injunction only gives it an equity to be allowed to use the patented lamp, for a reasonable compensation, in the buildings it had lighted prior to the decision in the test suit. 57 Fed. Rep. 642, modified.</p>

<p>Patents éor Inventions — Injunction — Circulars to Users ow Inj'rin&ing Article.</p> <p>One wlio, without unreasonable delay, begins suit against a manufacturer for infringement, will not be enjoined, in the absence of any showing of Intention not to press the suit, from notifying such manufacturer's customers, in a temperate and courteous form, of his claim of infringement, and tliait he intends to enforce his rights against users as well as manufacturers.</p>

<p>Design Patents — Odd Fellows’ Design for Decorating Rugs.</p> <p>Design patent No. 18.703, granted October 23, 1888, to William T. Smith, for an Odd Fellows’ design for decorating rugs, consisting of the selection of certain Odd Fellows’ symbols, and the grouping thereof in an orderly and tasteful manner, so as to form what many would consider an attractive panel, large enough to cover the face of the rug within the border, involves novelty and invention, and is valid. 55 Fed. Rep. 481, affirmed.</p>

<p>In Equity. Suit by Frank A. Babcock and others against Joseph T. Clarkson and others for infringement of a patent.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>In Equity. Suit by the Standard Folding Bed Company against Charles E. Osgood and others for infringement of a patent. The court below dismissed the bill. 51 Fed. Rep. 675. Complainant appeals.</p>

In Equity. Suit by Otto A. Krauss and Krauss, Hart, Felbel & Co. against the Jos. R. Peebles’ Sons Company and Jos. S. Peebles to restrain infringement of trade-mark. On motion for a preliminary injunction. Statement by TAFT, Circuit Judge: This is a motion for a preliminary injunction.

In Equity. Libel by Charles E. Jackson, surety for J. H. Olney, owner and claimant of the steamer Susie, against William Munks, libelant of said steamer, to review a decree of the district court in favor of said Munks as libelant of the steamer. The libel of review was originally filed in the district court, but, the district judge being disqualified, it was certified to the circuit court.

<p>Appeal from the District Court of the United States for the District of Massachusetts.-</p> <p>In Admiralty. Libel by Joseph H. Church, and other's against the New York & Yew England Railroad Company to recover de-murrage claimed to be due under a bill of lading. There was a decree for* libelant in the district court. Respondent appeals.</p> <p>The bill of lading was taken by the Pennsylvania Bailroad Company, and covered a cargo of coal shipped on board the schooner Glen wood from Philadelphia io the respondent railroad company, at Boston. Across its face were stamped the words, “Subject to conditions National Association Bill of Lading.” At the hearing, libelants put in evidence what they claimed to be a National Association hill of lading. This contained a provision that the vessel should have precedence over “all vessels” arriving or giving notice after her arrival. Xtespondent, however, introduced a National Association hill of lading which merely gave the vessel precedence over all “steam” vessels subsequently arriving or giving notice.</p>

<p>Iii Admiralty, libel for freight under charter.</p>

<p>In Admiralty. Exceptions to commissioner’s report.</p>

<p>COTJ.ISION — FERRYBOAT — OBSTRUCTING SLITS — ClTT ORDINANCES — RUNNING into Danger.</p> <p>Under the ordinances of the city of New York forbidding obstruction to the free course of ferryboats in and out of their slips, a tugboat is in fault for unnecessarily allowing her tow to drift across and into a ferry slip while engaged in business at the wharf and slip above; but where the ferryboat, in approaching her slip under such circumstances, instead of wailing a very short lime to enable the boat to be hauled out, went on into the slip when there was not apparently reasonable space for her to enter without damaging libelant’s boat, and collision ensued, held, that both were in fault, and the damages were divided.</p>

<p>1. Removal — Nominal Parties.</p> <p>It is not necessary that merely nominal or formal defendants should join in the petition, where they have not appeared, and where there is no issue between them and the plaintiff upon which a verdict could have been rendered.</p> <p>2. Same —Foreign Corporation.</p> <p>A 'petition, which sliows that the defendant is a corporation chartered by the laivs of a foreign country, need not allege negatively that it is not a citizen or resident of the state in which suit is brought, although it may have an office and do business in such state.</p> <p>3. Samp, — Suit by Asskinfe — Citizenship of Assignor.</p> <p>If 1lie citizenship of plaintiff’s assignor is material, it need not be specifically alleged in the petition, when It sufficiently appears from other parts of the record.</p> <p>4. V-EH'MCT — CLERICAL EhI’ORS — APPEAL.</p> <p>"When merely formal defendants never appear, and the case proceeds against the only real defendant', the fact that the verdict is for “defendants,” without specifying which of ¡hem, if a defect at ad, is a mere clerical error, constituting no ground for reversal on writ of error.</p>

<p>Federal Courts — Citizenship.</p> <p>In a suit to set aside a deed of trust made for the benefit of creditors', if appeared that the plaintiff and the trustee were citizens of the same state, but that the beneficiaries under the deed, other than the plaintiff, were citizens of another state. Held, that the.trustee was an indispensable party to the suit, and that the federal court, therefore, had no jurisdiction.</p>

In Equity. Bill by the Equitable Mortgage Company against Clayton Craft.

<p>Fraudulent Conveyances — Creditors’ Bill — Homestead.</p> <p>A decree declaring a deed made by an insolvent debtor and bis wife void as against a judgment creditor, does not revest tide in tbe grantor, so as to enable bim or bis family to establish a homestead therein to tbe prejudice of tbe creditor’s claim.</p>

In Equity. Suit by Henry Sanford, Clarence A. Seward, and L. C. Weir, trustees of the Adams Express Company, to enjoin D. McM. Held: in an exhaustive opinion, that the statutes of the state did not have the effect of rendering such an association a corporation. Reported 5 N. Y. Supp. 394.

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>In Equity. Suit by John V. Farwell, Charles B. Farwell, John K. Haimon, John T. Chumasen), and John V. Farwell, Jr., doing business under the firm name of John V. Farwell & Co., against the Farmers’ & Merchants’ Bank of Clay Center, Kan., to recover pro-, ceeds of insurance policies, as assignees thereof. Decree for complainants. Respondent appeals.</p> <p>Statement by SANBORN, Circuit Judge:</p> <p>H. L. Frishman, a merchant in Olay Center, in the state of Kansas, sustained a loss by fire March 3, 18S8. He held nine policies of insurance against chis loss, issued by nine insurance companies. In the summer of 1888 he commenced actions against these companies upon these policies, and they remained pending until 3891. At the time of the fire he owed the appellant, the Farmers’ & Merchants’ Bank of Clay Center, Kan., $3,000,' but before November 23, 1888, he had reduced this indebtedness to $2,200. At the time of the fire he owed the appellees, John V. Farwell & Co., $4,000, and on November 23, 1888, he owed them $11,000. On that day he made a written assignment of his interest in the insurance policies, and in the moneys to be derived from them, to the appellees, to secure his indebtedness to them. This assignment was not filed in any court, but was delivered to one of the attorneys of Farwell & Co. Subsequent to this assignment, Frishman testified, in the trial pf the actions against the insurance companies, which were prosecuted in his name, that he was the owner of the policies, and that no one else was interested in them, and this fact was known to the officers of the bank. Frishman informed some of these officers after the assignment that he could pay his debt to the bank when he collected the money on these insurance policies, that this money would be deposited with their bank, and that they could then pay the bank out of it. In reliance upon these statements, they permitted Frishman to renew his notes to the bank repeatedly; allowed him on one occasion to take up an indorsed note with his own note, without indorsement, and loaned him some more money; so that he owed the bank $3,500 on March 19, 1891, all of which was past due. The bank officers knew that Frishman was indebted to Farwell & Co., but did noti know that he had assigned the policies to them. They had demanded an! assignment of the policies to the bank, but he had refused to make it. Far-' well & Co. did not know that Frishman was indebted to the bank, nor that he had testified that he alone was interested in the policies, nor that he had made the representations recited to the bank. The attorneys who prosecuted the actions against the insurance companies were employed by Frishman,' and were not advised of the assignment to the appellees. One of these attorneys, on March 19, 1891, settled certain of those actions, and. collected $3,480.19, which, without the authority or knowledge of Frishman, he deposited to the credit of Frishman in this bank. On the same day the bank charged the indebtedness of Frishman to it against this credit. Frishman and Farwell & Co. immediately notified the bank that the money so deposited was the property of the latter, under the assignment, and Farwell & Co. brought this suit in the court below, and obtained a decree for its recovery. This decree is challenged by this appeal.</p>

<p>In Equity. Bill by i;he Farmers’ Loan & Trust Company against the Oregon & Washington Territory Railroad Company to foreclose a mortgage. Chester A. Congdon intervenes.</p>

In Equity. Dill filed by J. Warren Brown and Porter P. Wheaton against the Republican Mountain Silver Mines, Limited, Edward F. Tremayne, Horace H. Atkins, A. P. Welch, John Welch, and Arthur E. Phillips, for the dissolution of the corporation defendant, the appointment of a receiver, and for other relief. Decree for complainants. 55 Fed. 7. Defendants appeal.

<p>Couponations — Dissolution—Powmt to Convey Lands to a Trustee. 1</p> <p>Under the Minnesota statute (Gen. St. 1878, c. 34, § 410) declaring that corporations whose charters expire or are annulled shall continue bodies corporate for threo years for ihe purpose of settling their concerns, disposing of and conveying their property, and dividing their capital stock, a railroad company, whose charter is annulled by judicial decree, has power within the three years to convey its lands to a trustee in trust to wind up its business.</p>

<p>Libel — What Constitutes — CbukiiTy by Fomomman.</p> <p>A publication charging a police officer with treating a prisoner, making a desperate attempt ro escape, in a merciless manner, by striking him a crushing blow on the neck, felling him to the ground, and shortly causing his death, is actionable.</p>

At Law. Action by Joseph A. Davidson against the Mexican National Railroad Company to recover money. Tried to the court without a jury. Findings and judgment for plaintiff.

<p>In Error to the Circuit Court of the United States for the Southern District of California.</p> <p>At Law. Action by Frederick N. Pauly, as receiver of the California National Bank of San Diego, against the State Loan & Trust Company, a corporation, to recover an assessment upon 200 shares of the stock of said bank held by defendant. Findings and judgment of the circuit court for defendant. 56 Fed. 430. Plaintiff brings error.</p>

At Law. Action by Ole Johnson against the H. C. Akeley Lumber Company to recover for personal injuries. After verdict, plaintiff died, and Peter Bauen was appointed special administrator. Judgment for plaintiff. Defendant brings error.

At Law. Action commenced by attachment by the W. B. Grimes Dry-Goods Company against John Malcolm. Paul Waples intervened, claiming the attached goods under a deed of trust. Judgment for the intervener. Plaintiff brings error.

<p>At Law. Action by Jacob Schroder, as assignee for tbe benefit of creditors, against G-eorge W. Tompkins and William Sherry, to recover possession of goods of the assignor held by defendants, as sheriffs, under certain writs of attachment. Judgment for plaintiff.</p>

At Law. Action on promissory notes, brought by Samuel L. Boggs against Judson A. Wann, administrator de bonis non of the estate of James C. Allen, deceased, and Mary E. Allen. Heard' on demurrers to the answers.

At Law. Action by the United States against Elisha S. Aid: rich and another, executors of James H. Coggeshall, to recover moneys paid to said Coggeshall, as United States marshal, for attendance on court, etc. The case was submitted on an agreed statement of facts. Judgment was rendered for the United States for $15.20, and it appeals therefrom.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Application by the China &’Japan Trading Company, Limited, for review of a decision of the board of general appraisers in relation to certain importations of wall decorations by said company. The circuit court reversed the decision of the board of general appraisers. The United States appeal.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey ‘ ■</p> <p>In Equity. Suit by the United States Electric Lighting Company against the Edison Lamp Company for infringement of patent. Bin dismissed. 51 Fed. 24. Complainant appeals.</p>

In Equity. Bill by the Rogers Typographic Company against the Mergenthaler Linotype Company for infringement of letters patent Xo. 474,306, issued May 3, 1892, to Jacob W. Schuckers for “improvements in mechanism for justifying composed lines of type.” Heard on motion for a preliminary injunction.

<p>In Error to the Circuit Court of the United States for the District of Oregon.</p> <p>At Law. Information against Peter Grant for violation of section 4601, Rev. St. U. S., by harboring and secreting five seamen be7 longing to the Invergarry, a British vessel. Trial in the circuit court without a jury. Findings and judgment against the plaintiff in error. 55 Fed. 414.</p>

<p>In Admiralty. Libel to enforce an alleged lien for entering vessels.</p>

<p>L Maritime Lien — Supplies—What Delivery Creates Lien.</p> <p>There can be no delivery to the ship, in the maritime sense, either of supplies or cargo, so as to bind her in rem, until the goods are either actually put on "board the ship, or else) brought within the immediate presence or control of her officers.</p> <p>ÜL Same — Home Port — Goods Delivered to Truckman in Foreign Port-Place of Supply.</p> <p>A steamship company was organized under the laws of New York, and its ships were docked in Brooklyn, the home port. Libelants, at Jersey City, delivered such supplies of oleomargarine as were ordered from time to time by the steamship company to trucks employed by libelants, which transported the supplies to the ships. The sale of oleomargarine is prohibited by the laws of New York. On the failure of the steamship company, libelants claimed that as the supplies had been delivered at Jersey City, to which port the ships were foreign, the title to the supplies passed there, and that a maritime lien was thereby created on the vessels. Helé, that the place where the ships lay was the test of the place of supply, and that the supply was not complete until the delivery to the ships where they lay, and, as this was in their home port, no maritime lien was created thereby.</p>

<p>Collision — Steam Vessels Meeting — Proper Side op Channel — Inattention to Signals.</p> <p>A' steamship and a tug with a tow met in the East river, the tow going up and the steamship coming down. When' the tug was below the East River bridge, she three times gave a signal of one whistle to the steamship, which signals were disregarded, and no whistles blown to the tug, until too late to be of any use. The steamship was on the left-hand side of the river, and improperly directing her course towards the Brooklyn shore. There were no obstacles to prevent her going on the New York side. The tug backed as soon as danger of collision became manifest. Held, that the steamship was solely liable for the collision.</p>

<p>Charter Party — General Agent op Company — Authority to Charter.</p> <p>When a steamship company, having no vessels of its own, had, by authority in writing, duly constituted one W. its general agent, and he^ chartered two steamers by the authority of the board of directors, as he testified, but which authority was denied, and it appeared that he had previously chartered other vessels by similar charters, and the letter heads of the company expressly stated that W. was its general agent, and libelant dealt with him as such, held, that in such a ease it was not necessary to produce record evidence of action by the board of directors, in order to bind the company; that W. had authority to make the charters; and that the company was liable to the shipowner for its refusal to accept the vessels under the charters.</p>

In Admiralty. Petition by the owners of the steam tug Battler for limitation of liability in respect to the loss of the barges Tona-wanda and Wallace. A libel against the tug was sustained, June 2, 1893.

<p>1. Appeal — Objections not Raised Below.</p> <p>The objection that the defense, to a suit for infringement of a patent, of prior public use, was not well pleaded, in that the answer failed to allege that such use was “in this country,” as the statute provides, (Rev. St. § 4920, cl. 6,) cannot be raised for the first time on appeal.</p> <p>2. Patents — Abandonment—Pkior Public lien.</p> <p>The advertising and sale by a manufacturer of an invention, to tost the market, and to seo how it would sell, is a trader’s and not an inventor’s experiment, and such use will not carve an exception out of tho statute making prior public use a defense to a suit for infringement, (Rev. St. § -1920, cl. 5.)</p> <p>3. Same.</p> <p>Where the only difference between an invention of a spring bed consisting of a bank of wire springs fastened together at top and bottom by a series of lateral and crosswise tie rods and hooks, as manufactured and sold by the inventor more than two years prior to his application for letters patent, and that as claimed in his specifications, was in “a more desirable moans of locking the tie loops,” to which means he did “not desire to be confined,” prior public use is a good defense to a suit for infringement. 52 Fed. 149, affirmed.</p>

In Equity. Bill by Tilomas Gilchrist, Charles Gilchrist, and W. B. Edgar, copartners as Gilchrist Bros. & Edgar, against the Helena, Hot Springs & Smelter Railroad Company, to enforce the lien of certain judgments recovered in the state courts. The cause was commenced in a state court, hut the Northwestern Guaranty Loan Company, having intervened and filed a cross bill, removed the case to this court.

<p>In Equity. Bill by Elizabeth H. Briggs against Eliza J. Stroud and Mary E. Burson. Heard on pleas to the jurisdiction.</p>

<p>On petition for rehearing.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Iowa.</p> <p>In Equity. Suit by the Mutual Benefit Life Insurance Company against Charles W. Robison to cancel insurance policies. Bill dismissed. 54 Fed. 580. Complainant appeals.</p>

<p>1. Mechanics’ Liens — Railroads.</p> <p>Under Rev. St. Ohio, § 3208, relating to liens against railroads, and Act April 10, 1884, declaratory of the meaning thereof, the right to a lien is restricted to claims for labor performed or materials furnished for the construction of the road, depot buildings, and water tanks, and cannot be extended to a claim for furnishing an electric lighting plant to hotel premises at the instance of a railroad company.</p> <p>3. SaiIe.</p> <p>The general lien law of Ohio (Rev. St. § 3184, as amended by act of April 15, 1889) gives no right to a lien upon a railroad for materials used in and for its construction.</p> <p>3. Same — Electric Lighting Plant.</p> <p>Materials furnished for the construction of an electric lighting apparatus, railway, and power house are not within the provision of the general lien law of Ohio, giving a right to a lien for machinery or materials furnished for “erecting, repairing or removing a house * * * or other structure.”</p> <p>4. Circuit Courts — Jurisdiction—Coi.lusive Suit — Continuing Injunction.</p> <p>A suit in a United States circuit court, against a railway company and otliers, to foreclose a mechanic's lien claimed under a state statute for materials alleged to have been used by the company in the construction of its railway and other works, was brought by procurement of one of the defendants, to enable him to file a cross bill against his codefendants, residents of the state, to obtain an injunction against them, and to evade the effect of proceedings in the state courts; and it appeared that, under the state statutes, complainant was entitled to a lien for part of its claim only, much less than @2,000. Held, that the. circuit court had no jurisdiction, and its order continuing the injunction granted on the cross bill must be reversed.</p>

<p>1. National Banks — Insolvency—Preferences—Clearing House Balances.</p> <p>By a special agreement; a national bank, instead of making the usual deposit of securities as collateral for the payment of its daily balances to the clearing house, each day left with the clearing house manager all the checks drawn upon it, received from other banks, to be held until its balance for the day was paid, and then surrendered. The bank was closed for insolvency while a package of checks was so held, and thereupon -the clearing house collected the whole amount thereof from the other banks, and, after applying the necessary sum to the liquidation of the bank’s balance for that day, used the surplus in paying indebtedness of the bank to other banks, and in canceling certain clearing house certificates. Held, that this disposition of the surplus was not warranted by the agreement, and therefore operated to give a preference, contrary to the provisions of the national banking law.</p> <p>2. Same.</p> <p>The clearing house association, having made an unauthorized disposition of the surplus, was directly liable therefor to the receiver of the bank, and he was not required to sue the banks to whom the money was distributed.</p> <p>B. Equity — Parties—Clearing House Association — How Sued.</p> <p>A clearing house association is properly sued in the names of the committee who have entire control of its business, funds, and securities.</p>

<p>At Law. These were proceedings by the city of Madison to condemn and appropriate the defendant's wharf property on the Ohio river in the city of Madison for the use of said city as a public wharf. Appealed from the city council, which sustained the condemnation proceedings, to the circuit; court of Jefferson county, Ind. Removed into’ this court by the defendant on the ground of diverse citizenship. The cause came on to be heard on objections filed by the defendant pursuant to the practice provided for in uthe act under which the proceedings were carried on.</p> <p>Oiled the following authorities: Allen v. Jones, 47 Ind. 438; Waterworks v. Burkhart, 41 Ind. 364; Dyekman v. Oily of New York, 5 N. Y. 434; Payne v. Railroad Go., 46 Fed. 559; City of Anderson v. Bain, .120 Ind. 254, 22 N. É. 323; Oooley, Const. Lim. (5th Ed.) p. -653; 2 Dill. Mun. Corp. (4th Ed.) §§ 603-605>!</p>

<p>1. Master and Servant — Injury to Servant — Negligence oe Master.</p> <p>In an action against a mining corporation, it appeared that plaintiff, a boy of 14, was directed by defendant’s superintendent to assist in a service outside his regular duties, of an extremely dangerous character for one of his age, and, while so assisting, stumbled over a piece of coal lying on a track, which he had previously seen there lying, and sustained the injuries complained of. Held, that the evidence was sufficient to justify the jury in finding defendant guilty of negligence.</p> <p>2. Same — Contributory Negligence of Servant.</p> <p>Notwithstanding plaintiff’s knowledge that the coal over which, he stumbled lay upon the track, the jury might properly consider and decide whether plaintiff had reached such maturity as to understand the danger to which he was exposed by its presence. Railway Co. v. Mealer, 1 O. O. A. 633, 50 Fed. 725, 6 U. S. App. 86, distinguished. Railroad Co. v. Fort, 17 Wall. 553, .followed.</p> <p>8. Same — Negligence of Vice Principal — Fellow Servants.</p> <p>The jury were justified in finding that plaintiff’s acts were in consequence of the superintendent’s instructions, notwithstanding that at the time of the injury plaintiff was under the immediate supervision of a follow servant; the superintendent, in that connection, being a represenla-tivo of the employer, and not a fellow servant, of plaintiff.</p>

At Law. Action by Mary J. Laird against the Atlantic & Pacific Railroad Company to recover damages for a personal injury caused by negligence in suffering a train upon which she was a passenger to be derailed. Judgment for plaintiff. Defendant brings error.

<p>1. Carriers of Passengers — Transportation' of Explosives — Dynamite.</p> <p>The prohibition in Itov. SI. § 5353, against transporting nitroglycerin upon vehicles engaged in interstate passenger traffic, extends also to dynamite, which is made by mixing nitroglycerin with some solid and inert absorbent substance, and contains no other explosive ingredient.</p> <p>2. Sauk — What are Passenger Trains. .</p> <p>A freight train may be regarded as a passenger train, within the meaning of this section, when passengers are conveyed thereby for compensation, in any kind of cars, by authority of the railway company.</p>

<p>At Law. Indictment of Charles Marthinson for obstructing a navigable stream. On motion to instruct the jury to find defendant not guilty.</p>

At Law. On writ of error to tbe district court. Trial of indictment against Frank Woodruff for embezzlement of postal-order funds.

At Law. Indictment of F. L. Wilson for mailing an obscene letter inclosed in a sealed envelope in violation of section 3893, Rev. St., as amended. Heard on demurrer and motion to quash.

Application by Hirzel, Feltman & Co. for review of a decision of the board of general appraisers concerning certain importations of crude cocaine by them. The circuit court affirmed the decision of the board of general appraisers. The importers appeal.

,, ¡ Ir Equity. These were suits for the infringement of reissued íetters patent Ho. 10,106, granted May 9, 1882, to W. R. Baker, for a “harvester hinder,” and original letters patent Ho. 159,506, issued February 9, 1875, to Marquis L. Gorham, for an “improvement in grain binders.” The material parts of the Baker specifications were as follows: ' '“The invention relates to that class of binders in which the gavel is automatically seized .and bound, and more particularly to…

<p>Appeal from the Circuit Court of the United States for the District of Connecticut.</p> <p>In Equity. Bill by the Overman Wheel Company and the Pope Manufacturing Company against Henry J. Curtis for infringement of a patent.' Plaintiffs move for a preliminary injunction. Granted. 58 Fed. 247. . Defendant appeals.</p>

<p>1. Patents — Invention—Anticipation—Box Straps.</p> <p>Tlie Cary patent, No. 403,178, for a box strap, composed of a metal band having a series of bosses of the same shape, raised in the band on each side, equidistant from each other, so that in splicing those on the under piece will fit into those on the upper piece, and strengthen the joint, shows invention, and was not anticipated.</p> <p>3.- Same — Preliminary Injunction.</p> <p>. A prior adjudication sustaining the patent is not an absolute prerequisite to granting a preliminary injunction; and while the right thereto should be clear, it may be made to appear otherwise than by a judgment or decree.</p>

<p>1. Patents — Limitation—Infringement—Ammoniacal Detergents.</p> <p>The fundamental idea of the Parsons patent, No. 267,455, for ammo-niacal detergent compounds, is a thorough drying of the ammoniacal salts and of all other ingredients before they are mixed, so that no chemical action can take place whereby the ammonia will be set free; and there is no infringement if the ingredients are mixed in their ordinary state.</p> <p>2. Same — Limitation—Disclaimer.</p> <p>The Parsons patent, No. 382,322, is limited by specific disclaimer to an ammoniacal detergent containing ammoniacal salts, saponaceous bodies, and alkali additional thereto, and is not infringed by a detergent which contains no additional alkali.</p> <p>3. Same — Invention.</p> <p>The discovery of a method of utilizing the detergent properties of ammonia in a successful commercial compound, — a result long vainly sought by practical and scientific men, — the same being accomplished by the isolation of the ammoniacal salts from the alkaline bodies by a coating of protecting material, which prevents .chemical action, constitutes invention.</p> <p>4. Same.</p> <p>Patent No. 332,823, issued May 8, 1888, to Charles C. Parsons, for an ammoniacal'- detergent compound, is valid as to the first and third claims.</p>

<p>Maritime Liens — Priority—Negligent Towage — Supplies.</p> <p>A lien for supplies, and a lien arising out of the neglect of some duty-assumed by a voluntary agreement between the parties, are equal in point of merit, and priority will be given to that one which first accrued. Loud v. The R. S. Carter, 40 Fed. 331, distinguished.</p>

<p>In Admiralty. Libel for collision. Decree for divided damages.</p>

<p>1. Shipping — Carriers—Bill of Lading — Exceptions—Negligence.</p> <p>A shipowner cannot by stipulation exempt himself from the consequences of his own negligence. Such stipulations are held void in this country, as contrary to public policy, and as not being evidence of any contract, so far as the shipper or consignee is concerned.</p> <p>3. Same — Contracts Contrary to Public Policy — Foreign Law.</p> <p>Contracts contrary to the public policy of this country cannot be enforced or upheld in our courts, wheresoever made.</p> <p>8. Same — Stipulation Exempting from Negligence — Evidence.</p> <p>The insertion of a stipulation against the consequences of negligence in a bill of lading, and the receipt of the goods under such bill, are not sufficient evidence of any such assent to the stipulation by a shipper or consignee as to make it a contract.</p> <p>4. Same — Damage to Cargo — Negligent Collision — Stipulations Exempting from Liability.</p> <p>Where cargo is damaged by reason of the shock of a collision caused by the negligence of the shipowner, such owner cannot rely on the exceptions of the bill of lading, exempting the ship from liability for damage caused by “insufficiency in strength of packages, breakage, * * * collisions, perils of the seas,” etc.</p> <p>6. Same — Damage by Collision — Reconditioning Cargo — Negligence.</p> <p>When a vessel, after collision, opened her forward hatches, and re~ conditioned the cargo there, under direction of her owners, bnt did not open her after hatches at all, being unsuspicious of any damage there, it was held that such failure to examine the condition of the after cargo was negligence in her owners, who were therefore liable for any damage caused thereby.</p> <p>6. Same — Intemperate Captain — Negligence of Owner.</p> <p>It is negligence in a shipowner to appoint as captain a man known to be intemperate, or whose intemperate habits might have been ascertained on reasonable inquiry.</p>

<p>1. General Average — State Statutes — When Controlling.</p> <p>An adjustment in general average, made in California, under contracts of insurance entered into in that state, is governed by üie California Civil Code, and Uierefore tlio freight must be valued at “one-half the amount due on delivery,” as prescribed by section 2153, without regard to Hie customs of merchants or underwriters.</p> <p>2. Same — Contract as to Valuation- — Construction.</p> <p>An agreement that an adjustment in general average shall be made on the “following basis,” followed by a statement of the amount to be contributed for the valuation of the ship after collision, and the valuation of the freight and the cargo, does not mean that the freight • shall be assessed on its gross valuation, but merely that such valuation shall be taken as the foundation upon which the adjustment shall bo made according to law; and if the law applicable prescribes that the freight shall be assessed at one-half its gross value, as in California, this will prevail.</p>

<p>In Admiralty. Libel for collision brought by the Hew York & Horthern Railroad Company against the steam tug Greenville and scow Ho. 40, the tug Devoe being subsequently brought in on petition of the original defendants. Decree against the Greenville alone.</p>

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

In Admiralty. Libel for collision, brought by Peter B. Reed and others against the steamer Concho and the tugs J. J. Driscoll and H. B. Rawson. Dismissed as to the Rawson, and decree against the Concho and Driscoll.

<p>1. Comisión — Rules or Navigation.</p> <p>A steam lighter, meeting a tug with a schooner in tow on a hawser 250 feet long, in Hell Gate, rounding Ilallett’s Point on a flood tide, has no right to presume, in the absence of a signal, that the tug will disobey the state statute which requires vessels to pass port to port, there being no controlling custom of navigation at that point in such cases authorizing a departure from the statute, and is in fault for attempting to pass starboard to starboard, without signals to that effect.</p> <p>S. Same — Failure or Tug to Stop ok Slow.</p> <p>• A tug towing a schooner through Hell Gate, with a flood tide, on a hawser 250 feet long, is not in fanlt in failing to stop or slow on meeting a steam lighter which fails to give any signal.</p> <p>3. Same — Negligence op Tug.</p> <p>A tug will not be held in fault for taking a single schooner through Hell Gate on a hawser 250 feet long, in the absence of any special regulation on the subject, where the testimony of experts on the subject is conflicting.</p>

<p>In Equity. Bill of discovery in aid of an action at law brought by Sylvester W. Fosdick, administrator, against the Lowell Machine Shop and others. Heard on exceptions to the answer.</p>

In Equity. Bill for relief in respect to a contract relating to certain patents for improvements in glove fasteners. There was a deeree for complainant in tlie court below. See 36 Fed. Rep. 309, 39 Fed. Rep. 790, and 53 Fed. Rep. 245. Respondent appeals.

<p>. In Equity. Suit by William Boole and W. H. Blowey against the Justice Mining Company to determine an adverse claim. On motion for a new trial.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of New-York.</p> <p>In Equity. Bill by Leonora A. Arnold and Thomas E. Arnold, her hu'sband, against Charles A. Chesebrough individually, and as trustee and executor under the last will and testament of Margaret Chesebrough, deceased, and Elizabeth Lounsbury, executrix under the last will and testament of Stephen R. Lounsbury, deceased, (the said Stephen R. Lounsbury having also been an executor and trustee under the will of Margaret Chesebrough,) to compel defendants to account to complainants for the portion of the estate of the said Margaret Chesebrough bequeathed and devised to Blasius M. Chese-brough, son of Margaret Chesebrough, and the father of complainant Leonora A. Arnold, and to his lawful issue. The circuit court dis: missed the bill. 46 Fed. Rep. 700. Complainants appeal.</p>

At Law. Action by George H. Stier against the Imperial Life Insurance Company of Detroit, Mich., to recover damages for breach of contract. By consent of parties the cause was referred to a referee, and is now heard on exceptions by both parties to his report. The other facts fully appear in the following statement by PHILIPS, District Judge: This is an action founded on contract of agency.

Iu Error to tbe Circuit Court of' tbe United States for tbe District of Montana. At Law. Action in tbe nature of ejectment by tbe Northern Pacific Railroad Company against Maria Amaclter. Judgment for plaintiff. 53 Fed. 48. Defendant brings error.

<p>MARSIIAI/s FKKS ANJ) I’OUKDAOK.</p> <p>Whore, in the southern district of New York, an execution irregularly-issued by plaintiff’s attorney, is stayed after levy, and subsequently vacated by order of court, the marshal is entitled to fees for levying, but not to poundage, for under Code Civil IToc. N. Y. § 3307, subd. 7, poundage depends upon tiro collection of the execution. The court may, however, in its discretion, under such section, allow the marshal compensation for his trouble and expenses in caring for the property levied upon.</p>

At Law. These were two actions brought against James R. Porter by the Denver, Utah & Pacific Railroad Company and the Denargo Land Company, respectively, to recover certain lands. The cases were consolidated for trial, and a verdict was rendered for plaintiffs. Defendant now moves for a new trial.

<p>1. Carriers of Goods — Unreasonable Charges — Interstate Commerce-Common Law.</p> <p>The common-law rule forbidding common carriers from exacting unreasonable charges does not apply to, interstate commerce, even when the contract of carriage is made in a state where that rule prevails, since such commerce is governed solely by the laws of the United States, and the United States have never adopted the common law.</p> <p>2. Removal of Causes — Jurisdiction—Interstate Commerce Act.</p> <p>Federal courts have no jurisdiction, in suits removed from state courts on the ground of diverse citizenship, to enforce the provisions of the interstate commerce act, since in removed cases the jurisdiction of the federal courts is no wider than that of the courts in which the cases were begun.</p>

<p>At Law. Indictment of A. I). Andrews for mailing an obscene letter. Heard on demurrer.</p>

<p>In Error to the District Court of the United States for the Northern District of California.</p> <p>At Law. Action by Charles R. Allen against the United States to recover a drawback on imported coal. Judgment for plaintiff. Defendant brings error. 52 Fed. 575.</p>

<p>In Equity. Suit by Samuel M. Heulings and Elwood Evans against Alban H. Reid for infringement of a patent.</p>

<p>Patents — Suit for Infringement — Demurrer.</p> <p>A demurrer to a bill for infringement must be overruled unless the patent is so void on its face as to require no defense.</p>

<p>Appeal from the Circuit Court of the United States for the Western Distinct of Pennsylvania.</p> <p>In Equity. Suit by William Forgie against the Oil-Well Supply Company, Limited, for infringement of a patent. Decree dismissing bill. 57 Fed. Rep. 742. Plaintiff appeals.</p>

<p>In Equity. Bill by tbe Edison Electric Light Company and others against tbe Davis Electrical Works for infringement of letters patent No. 223,898, granted January 27, 1880, to Thomas A. Edison for an electric lamp. Decree for complainants.</p>

<p>L Patents — Invention.</p> <p>Patentable invention is shown when the combination is new, and produces a machine which does more and better work than those which preceded it.</p> <p>2. Same — Box Machines — Ejectors.</p> <p>Invention is shown in substituting, for the old rubber ejectors in the blank or pattern cutting roll of a box machine, sectional ejector plates which are actuated by springs, have a central support and rocking motion, and are more easily adjustable, more durable, ana superior in operation to the old.</p> <p>8. Same — Infringement.</p> <p>A claim, in a box-machine patent, for “the scoring roll, S, and the pattern cutting roll, C, the former having a continuous series of scoring knives, and the latter a corresponding- series of pattern knives arranged upon their peripheries,” is infringed by a machine in which the scoring roll is but one-third the size of that of the patent, and has but one series of knives instead of three, but which is made to revolve three times as fast, thus equalizing the difference in dimensions.</p> <p>4 Same — Evidence—Witness.</p> <p>A court of equity should scrutinize with great care the statements of a patentee who, having taken the oath that he believed himself to be the first inventor, as required by Rev. St. § 4S92, gives testimony inevitably tending to prove that such oath was false.</p> <p>5. Same — Particular Patent.</p> <p>In the Titus patent, No. 272,354, for improvements in machines for cutting box patterns, the first claim held to be too broad, and a disclaimer required; the other three claims held valid, and infringed by defendant.</p>

<p>Trade-M auk — Pu aud — Ikjunctio n.</p> <p>Where complainant has established a trade in a cough mixture known as “Bull’s Cough Syrup” and “Dr. Bull’s Cough Syrup,” and defendant has placed on the market, with the fraudulent purpose of causing it to be mistaken for complainant’s article, a cough mixture inclosed in wrappers similar to those used by complainant, and designated as “Dr. B. L. Bull’s Celebrated Cough Syrup,” complainant is entitled to an injunction restraining defendant not only from using such name on such wrappers, but also from using such name on any kind of wrappers in a manner calculated to deceive the public.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In Equity. Suit by William H. Brower against William G-. Boul-ton and others for alleged infringement of a trade-mark. Bill dismissed. 53 Eed. 390. Complainant appeals.</p>

<p>Shipping — Bottomry—Hypothecation of Freight.</p> <p>A contract hypothecating “ship and freight”' for a “loan on freight,” assigning a proportionate part of the freight therefor, providing that “in case of total loss” the loan shall not be repaid, and expressly made subject to rules of the lender applying only to “loans on freight,” one of which rales provides that “if there be no payment of freight, either total or partial,” the loan shall not be repaid, is a bottomry of the freight only; and the words “total loss” refer to the loss mentioned in such rule, “if there be no payment of freight,” and not to a total loss of the vessel and freight.</p>

<p>In Admiralty. Libel in personam to recover damages for breach of charter parly. Decree for libelant.</p>

<p>In Admiralty. Libel by P. D. Van Hoesen and another against the steamship Seguranca to recover for watchmen’s services.</p>

<p>1. Shippirq — Bill of Lading — Inaccuracy of Marks Excepted.</p> <p>Upon a-bill of lading excepting liability for obliteration or inaccuracy of marks, tbe skip is not concluded by tbe marks stated in tbe bill of lading without further proof of the actual marks shipped, and is prima facie acquitted by tbe delivery of all the goods taken aboard:</p> <p>3. Same — Short Delivery of Coffee — Surplus Bags Rejected — Application of Proceeds to Charterer ^of Ship as Surety.</p> <p>Though a chartered ship is liable in rem for the nondelivery of cargo, she has a reciprocal lien on the cargo, or its proceeds, to enable her to perform her obligation to deliver the goods or pay their value; and a purchaser of rejected bags, knowing tbe facts, cannot apply the credit to prior claims against other vessels, to the exclusion of his claim for short delivery against tbe vessel carrying the same cargo. The proceeds are first applicable to a discharge of the claim against the carrying ship.</p>

<p>Shipping — Personal Injuries — Ship’s Ladder — Defect not Discoverable.</p> <p>A vessel is not liable to workmen for latent defects in its ladders, not discoverable by examination, where there is no evidence of lack of diligence and care in the equipment. Accordingly, where the rung of the ladder, which was suspended from a rope, broke while the libelant was descending it, and the ladder was apparently sound, and had been in common use, and was apparently fit for the purpose, and nd negligence in the ship or owners was proved or indicated, held, that the libelant could not recover.</p>

<p>In Admiralty. Libel to recover balance of insurance money. Decree for libelant.</p>

<p>In Admiralty. Libel by (he Providence Washington Insurance Company against Peter J. Ilrummelkamp for reformation of a policy of insurance, and to restrain the prosecution of an action at law 1 hereon. Decree for complainant.</p>

<p>In Admiralty. Libel by George Deas against the steam tug Berkeley for seaman’s wages. On motion to vacate a decree.</p>

In Admiralty. Libel in personam to recover damages for failure to ’carry and deliver freight in accordance with terms of hill of lading. Answer sets np mutual mistake in the terms of the bill of lading. Exceptions to answer.

<p>Seamen — Implied Warranty of Fitness — Disability—Wages.</p> <p>There is an implied, warranty that a seaman is bodily fit for the station for which he contracts, and if at the time of engaging he has a disease, though unknown to himself, progressive and fatal in character, which disables him for service during the whole voyage, he is not entitled to wages.</p>

<p>COIAISTON BETWEEN STEAMERS CROSSING COURSES.</p> <p>A steam 'barge in a fog beard the fog signals of a tug with tows on her starboard hand. Both vessels were proceeding slowly, and neither could be seen from the other at a greater distance than 400 feet. EM, that for the collision which ensued between the barge and one of the tows the tug was not in fault, she having reversed, in obedience to. rule 21, wlion she saw the steam barge kept coming towards her on a course Involving the risk of collision; but that tlie steam barge, on which rested the duty of avoidance, must be held in fault, on the finding of the trial court on conflicting evidence that she did not reverse promptly on discovering the tug.</p>

In Equity. Rill by the Pennsylvania Railroad Company against the National Docks & New Jersey Junction Connecting Railway Company for an injunction to restrain the condemnation by defendant. of it right of way for its road through the yard of the complainant company in Jersey City. Injunctions were denied in prior stages of the condemnation proceedings. 51 Fed. 858, and 56 Fed. 697.

In Equity. Suit by Lee S. Holden against Charles Scudder, administrator of the estate of Robert H. Gardner, and A. P. Selby, to recover a half interest in certain moneys deposited in court in satisfaction of a decree. Heard on motion for a preliminary restraining order.

At Law. Action by tbe Woonsocket Institution for Savings against tbe city of Cadillac to recover on certain municipal bonds. Judgment for plaintiff. Defendant brings error.

<p>Life Insurance — Application—Warranties.</p> <p>When the. statements in the application are made part of the policy, and declared to he warranties, it is a good defense to show that 1hey were untrue, without further showing that the applicant knew or believed them to be untrue. Moulor v. Insurance Co., 4 Sup. Ct. 4(10, 111 U. S. 335, distinguished.</p>

<p>1. Post Office — Nonmailable Matter — Lotteries.</p> <p>A scheme for increasing the circulation of a newspaper, whereby all paid-up subscribers receive numbered tickets corresponding to numbered coupons, which are drawn from a box by a blindfolded person, prizes to be given to the holders of certain tickets, is a lottery, (26 Stat. 465,) notwithstanding that every purchaser of a ticket is repaid its cost by receiving the paper.</p> <p>2. Lotteries — Definition.</p> <p>The word “lottery” embraces the elements of procuring through lot or chance, by the investment of money or something of value, some greater amount of money or thing of value.</p>

At Law. Action by Susan E. Dorgan against tbe Manufacturers’ Accident Indemnity Company on an accident insurance policy. Verdict and judgment for plaintiff. Defendant brings error.

<p>1. Appeal — Discretton op Trial Court.</p> <p>The refusal of the trial court to allow a defendant in an action on an acceptance, who has been examined by plaintiff to prove the fact of acceptance and the performance of a condition thereof, to give evidence on cross-examination to sustain his defense, is not reviewable.</p> <p>2. Negotiable Instruments — Dispenses—Claims op Third Persons.</p> <p>In an action on an acceptance payable out of tne proceeds of certain notes, evidence that such proceeds are claimed by third persons is irrelevant.</p> <p>3. Same — -Rona Fide Pitrciiasers — Fraud.</p> <p>Evidence of fraud in procuring an acceptance is inadmissible, in a.n action thereon against a holder in good faith for a valuable consideration.</p> <p>4. Same — Accounts between Drawer and Acceptor.</p> <p>As to the holder of a draft in good faith and for a valuable consideration, the acceptance of which is made payable out of the proceeds of certain notes, no inquiry can be made into the state of accounts between the drawer and acceptor as to such proceeds, after the same have been paid.</p> <p>5. Same — Consideration.</p> <p>To procure an acceptance, the drawer exhibited a telegram from the assignee of his interest in notes, out of tiie proceeds of which the acceptance was payable, which stated that a reassignment of such interest to the acceptor had been mailed, but which statement was in fact untrue. Held, that there was sufficient consideration for the acceptance, notwithstanding' the false statement, as the assurance that the assignment had been mailed was equivalent to its actual delivery, and transferred to the drawer the acceptor’s obligation to the assignee.</p>

<p>At Law. Petition by John A. Benson to be discharged on writ of habeas corpus from the custody of the United States marshal for the district of California, in which he is now held awaiting trial in the United States circuit court for said district upon an indictment</p>

<p>1. Patents — Inmungement—Formal Dieberences — Easel Albums.</p> <p>Differences in the length of the transverse rod to which an easel album Is hinged or pivoted, and consequent differences in the distance between the standards supporting such rod, and also the use of one instead of two eyes on the album, for engaging with the rod, are merely formal differences, and do not avoid infringement.</p> <p>2. Same.</p> <p>Nor is infringement avoided by the addition of a hinge at the foot of the standards for the purpose of transferring the strain from the back of the book, all the elements of the combination being retained.</p> <p>B. Same — VALiinTy—PAimauLAn Patents.</p> <p>The Jaeger patent, No. 432,411, for an easel album, is valid as to the particular device comprised in the combination claimed, and is infringed by defendant.</p>

<p>In Equity. Suit by William, J. Gilbert against the Reinhardt Numbering Machine Company and others for infringement of a patent. Decree for complainant.</p>

Petition of Horatio (x. Gilley for tlie removal of a probate appeal on the ground of local prejudice. Statement by ALDRICH, District Judge: This cause was before the circuit court at the May term, 1892, (COLT, Circuit Judge, and ALDRICH, District Judge, sitting) upon a rehearing of a. motion to remand to the state court, which had previously been denied.

At Law. Action of assumpsit brought by Robert B. Knight, to the nse of Burton Binns, assignee for the benefit of creditors of the Benevolent Order of Active Workers, against Benjamin F. Fisher, receiver of the Spring Harden ’National Bank. Judgment for plaintiff.

<p>Census — Refusal to Answer Questions — Couforatb Officers.</p> <p>The provision of the act of July 0. 1892, imposing a penalty for refusal to answer questions upon officers of corporations engaged in pro;, chietive industry, from which or from whom answers “are herein required,” is ineffective, "because there is no xn-ovision, in that or any other act, requiring such corporations or their officers to answer the,questions.</p>

<p>1. Office and Officer — Appointment—Deputy Collector.</p> <p>A deputy collector is authorized to act as such when his- commission has been signed and placed in the mail, and ho is notified thereof by telegram.</p> <p>3.Criminal Law — Misdemeanor.</p> <p>When a person commits a misdemeanor under the instructions of another, it is only necessary, in order to implicate the latter, that his instructions have been substantially complied with.</p> <p>3. Same — Distilled Spirits — Unlawful Removal — Aiding and Abetting.</p> <p>The fact that the statute malees the aiding and abetting of another in the removal of illicit spirits a distinct offense does not prevent a person so aiding and abetting from being convicted as a principal in the removal, under the rule mailing all participants in misdemeanors liable as principals.</p> <p>4. Same.</p> <p>One who, knowing that certain casks of whisky are without revenue stamps, obstructs an officer attempting to seize the same, in order that opportunity may be given for another to escape therewith, is guilty under the statute.</p> <p>5. Same — Evidence—Accomplices.</p> <p>The rule that a conviction should not be had on the uncorroborated testimony of an accomplice applies when witnesses introduced by defendant confess themselves to be confederates in the crime.</p> <p>6. Same — Presumptions—Burden of Proof.</p> <p>Proof that illegal sales of whisky frequently occur on a man’s premises and about his house raises a presumption of fact against him, and places the burden on him to show that the acts were without his knowledge or approval, or that he was powerless to prevent them.</p>

In. Equity. Suit by Joshua R Jones, trading as the Rational Publishing Company, against Frederick Berger and others, for infringement of a patent. On objections to sufficiency of the plea.