Volume 59 — Federal Reporter

In Equity. Bill by the American Association, Limited, against E. Hurst and J. C. Colson, to enjoin a sheriff’s sale. Bill dismissed. Complainant appeals. Statement by TAFT, Circuit Judge: This was an appeal from a decree of the United States circuit court for the district of Kentucky, dismissing the bill of the appellant, the American Association, Limited, on the ground that the court had no jurisdiction to grant the relief prayed for.

In Equity. Suit by the president and trustees of Bowdoin College and others against James P. Merritt, Frederick A. Merritt, and others, to remove cloud from title. A demurrer to the hill was heretofore overruled. 54 Féd. 55. The case is now heard on an application to file a supplemental hill making Harry P. Merritt a party defendant, and for injunction to restrain the prosecution of an action commenced by him in the superior court of Alameda county, Cal.

<p>Petition by Mitchell King against the United States to recover damages for a flowage of lands. Judgment for petitioner.</p>

<p>At Law. Action by Benjamin W. Blydenstein and others against the New York Security & Trust Company to recover money. On demurrer to a defense set up in the answer.</p>

In Equity. On motion for a receiver. Suit by Carl Hagenbeck against the Hagenbeck Zoological Arena Company and others for a receiver and an accounting. Complainant moves for a receiver.

<p>Equity Practice — Decree peo Cokfesso — Notice.</p> <p>A defendant who has appeared by solicitor is entitled to notice of an application for a decree, after entry of an order pro confesso, for the purpose of being heard niton the form and extent of the decree. Thomson y. Wooster, 5 Sup. Ct. 788, 114 U. S. 104, applied.</p>

<p>Appeal from the Circuit Oourt of the United States for the Eastern District of Wisconsin.</p> <p>In Equity. Bill by the National Foundry & Ripe Works, Limited, against the Oconto Water Company, to foreclose a mechanic’s lien. Complainant obtained a decree. 52 Fed. 43. Defendant appeals.</p>

<p>1. Principal and Agent — Powers of Agent — Patent Rights.</p> <p>A power of attorney which, in consideration of a prescribed royalty, appoints the donee sole agent in the United States “for the purpose of working and developing the business of said patents,” with power to “negotiate the sale of the said patents upon terms to he agreed upon,” creates a mere agency, not coupled with an interest, and gives tno agent no right to convey or assign the patents without the assent of his principal.</p> <p>3. Patents — Assignment.</p> <p>A contract which purports to convey, for a prescribed royalty, the sole and exclusive right and license to make, use, and sell in the United States the improvements covered by a patent for the full term thereof, is in substance an absolute assignment, and nothing remains in the assignor.</p> <p>3. Same — Powku of Attorney.</p> <p>An assignment of a patent by an attorney in fact docs not bind the principal unless executed in his name and under his seal, and is ineffective if it runs in the attorney’s name and seal. Machesney v. Brown, 29 Fed. 145, followed.</p>

<p>1. Railroad Companies — Receivers — Improvements — Receiver's Certificates.</p> <p>A receiver of a small, local narrow-gauge railroad, appointed on the petition of a comparatively small bolder of stock, will not be authorized to issue receiver’s certificates to provide for new equipment, additional sidings, and permanent structures, in order to test Its earning capacity if fully developed, when the measure is opposed by all other interests, and tho first mortgage bondholders are pressing for a foreclosure of their past-clue mortgage; it being apparent, furthermore, that the road could not in any reasonable time cancel the certificates, and resume payment of interest on its bonds, and that the first measure of any new owners would be to change the road to a standard gauge, thus rendering the proposed improvements useless.</p> <p>2. Same — Priorities—Labor and Material Claims.</p> <p>Where a railroad receiver is appointed on the petition, not of the bondholders, but of. á stockholder, and no earnings have been diverted to pay interest on the bonds, there is no lien or equity requiring the payment of past-due labor and material claims out of the corpus of the property by the issuance of receiver’s certificates. There is, however, an equity requiring payment of those whose labor actually kept the road a going concern out of any net earnings which the receiver may realize, but these earnings cannot be anticipated by raising money on receiver’s certificates, except by agreement of the parties.</p>

Petition by J. M. Douglass and the G-oodman Gold & Silver Mining Company to condemn a right of way for a tunnel through certain mining ground in which defendants claim an interest.

In Equity. Suit by the Puget Mill Company against Thomas H. Brown and others to determine conflicting claims to lands, and for other relief. Bill dismissed. 54 Fed. 987. Complainant appeals.

<p>In Equity. Two bills were filed by Edward L. Miles. In one it was alleged that he was doing business as a distiller in the name of E. L. Miles & Go., and in the other as the New Hope Distilling Company. The prayers were for mandatory injunctions against defendant, Johnson, collector of the fifth district of Kentucky, enjoining and restraining him from refusing to accept and approve complainant’s bonds for the exportation of the 200 barrels of whisky described in the bills, and from doing all other acts necessary to be done for the exportation of the whisky, and commanding defendant to permit the withdrawal of said whisky from the bonded warehouses for exportation.</p>

<p>1. Contract — Breach—Evidence—Motive.</p> <p>In an action for breach of contract to supply natural gas, evidence of large expenditures in constructing the necessary pipe line is inadmissible to rebut an imputation of bad faith, although the complaint directly alleges tlie same; for the motive of the breach is immaterial, and the allegation mere surplusage.</p> <p>2. Same — Evidence of Damages.</p> <p>lu an action by a gas-distributing company against a natural gas company for breach of contract to supply gas under an arrangement for a division of the receipts, contemporaneous contracts by defendant to supply consumers at specified rates, being referred to in the contract sued on as one of the sources of such receipts, are. admissible as a basis for computing damages.</p> <p>S. Same — Construction—Natural Gas Companies.</p> <p>A contract to supply natural gas, unless unable by “due energy and diligence” in maintaining existing wells and sinking new ones to obtain a, sufficient supply from present or future acquired territory, requires •easonable effort and expenditure to connect newly acquired territory in a contiguous county with the old pipe line.</p> <p>«. Review — Estoppel.</p> <p>A party cannot take advantage of error in instructions given at his request, and stating the law too favorably to him.</p>

<p>1. Master and Servant — Negligence—Instructions—Railroad Companies.</p> <p>The rule that a servant assumes, not only the ordinary risks known to him, but also those which could be known by the exercise of ordinary care and prudence, should be given to the jury in all cases where it is applicable; but the fact that the latter qualification is omitted in a general statement of the law is immaterial, when it is afterwards correctly given in its specific application to the facts of the ease.</p> <p>B. Same.</p> <p>An instruction that a railroad company is under obligation to its brakemen to provide and maintain reasonably and ordinarily safe coupling apparatus on the cars used by it is no ground for reversal, when immediately followed by further instructions clearly expressing the qualification that the duty is to use ordinary care in that regard.</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. Replevin by the Western Land & Oattle Company, Limited, against the Union Stock-Yards & Transit Company, Simeon F. Hall, Jefferson E. Greer, William Hall, and Daniel Hah. Yer-diet and judgment for plaintiff. Defendants bring error.</p> <p>Statement by JENKINS, Circuit Judge:</p> <p>The defendant in error brought suit in replevin to recover 300 head of Texas steers branded W. O. G. The declaration embraced three counts, one in the cepit, one in the detinet, and the third in trover. To the first and second counts, in addition to the usual pleas of non cepit and non detinet. there were pleas — -First, of property in Simeon F. Hall, William Hall, and Jefferson E. Greer; and, second, of property in Daniel Hall. These pleas were filed by all the defendants to the suit, except Daniel Hall, who made default. The replication alleged property in the plaintiff, denying property in the parties named. At the trial a verdict passed for the plaintiff.</p> <p>The bill of exceptions discloses that at the trial the pilaintiff introduced three contracts between the cattle company (defendant in error) and Daniel Hall, — one dated September 6, 1884, one dated October 1, 1884, and one dated October 16, 18S4. The first relates to 600 head of Texas steers, the second to 379 head, the third to 22 head, all branded W. O. O. The contracts are substantially alike in their terms. The following is a copy of the first: “This contract and agreement made and entered into this sixth day of September, 1S84, by and between Daniel Hall, of Grundy county, Missouri, and the Western Land and Cattle Company, Limited, a corporation organized and existing under the laws of Great Britain, witnossetli, that the said Hall hereby agrees, within four days from this date, to receive, of the property of this said company, a number not to exceed six hundred (600) Texas steers, beef cattle, each and all of said steers being marked and branded with the brand W. O. C., from tbe said land and cattle company, near Lexington Junction, in Bay county, Missouri, where said cattle are now located and pasturing, for the following purposes and upon the following express conditions, only, to wit: The said Hall is to transport said cattle from their present location to his farm in Grundy and adjacent counties at his (Hall’s) own charge and expense, and said Hall is there to properly feed, fatten, and care for said cattle for the purpose of their being profitably marketed by said company, and to that end said Hall agrees that said cattle shall not deteriorate in flesh or condition from their present state, and said Hall is to commence feeding said- cattle corn by September 25, 1884, and keei) it np while said cattle remain in his care; that said Hall shall bo and is liable and agrees to pay for all losses of said cattle, arising from death, disease, escape, theft, or any cause whatsoever, at the agreed valuation of thirty-six (36) dollars per head. And it is further agreed by the parties hereto that the period of said pasturage and care of said cattle by said Hall shall extend to December 15, 1884, and that during said period, from time to time, the said cattle may and shall be shipped for sale, or sold where they may then be, by said company, by J. A. Forbes, its manager. And the said Hall further agrees to-employ a competent herdsman, to be selected by said J. A. Forbes, whose sole duty shall be to attend to said cattle, and said Hall to pay said herdsman thirty dollars per- month wages, and furnish board and lodging suitable for said herdsman. And, in full consideration for the full and faithful performance of all the acts and promises to be done and performed by said Hall as aforesaid, tbe said Hall agrees to receive in full compensation therefor all moneys that may be realized by said company from the sale of said cattle over and above the sum of thirty-six 05-100 dollars per head, after deducting all costs and expenses incurred by said company in and about the sales or shipments of said cattle. And the said Hall hereby, for himself, his heirs and assigns, expressly waives any lien, either as agister or of any other kind-or character, or lien against said cattle which may arise during the performance of this contract, either by law or otherwise. And said Hall further agrees to keep and maintain said cattle while in his charge free from all claims, charges, liens, or liability whatever, from whatever, source arising, except from the acts of said company or said J, A. Forbes.” Delivery of 1,000 cattle under the several contracts was made. Of these cattle, 300 had been brought by Simeon F. Hall, William Hall, and Jefferson Greer, three of the plaintiffs in error, and composing the firm of Hall, Greer & Co., from the farm of Daniel Hall, in Grundy county, Mo., and placed in the stock yards of the Union Stock-Yards & Transit Company, at Chicago. They were so lakeu and claimed by Hall, Grow & Co. under a chattel mortgage from Daniel Hall to them, dated December 33, 1884, of Three hundred (300) head of Ooloraclo-Texan cattle, which are now being-fed on my farm in Marion township, Grundy county, Missouri; said cattle being a part of the thousand cattle purchased by me of the Western hand and Cattle Company in September and October last. And I hereby certify that there are no other incumbrances against tbe 300 head of cattle hereby transferred. Said cattle being branded W. O. O. on the right" side.” The mortgage purports to be given to secure the sum of $5,000, with interest, on the 13th day of January, 1885, and was on the day of its execution tiled for record in the office of the register of deeds of Gnmdv county, Mo.</p> <p>Hall, Greer & Co. also gave evidence that at the time of the giving and the recording of the chatted mortgage the 300 cattle described therein were on the farm of Daniel Hall in Grundy county, and in his possession; that they saw the cattle there in the possession of Daniel Hall, and that, at the time they so loaned and advanced the money to Daniel Hall, they caused an examination of the records in the office of the recorder of deeds of Grundy county, for the purpose of ascertaining whether there was of record any lien or incumbrance on the cattle by way of chattel mortgage, bill of sale, conditional sale, or otherwise, and whether there was anything on the records of that office to show that Daniel Hall was not the absolute and unconditional owner of the cattle, in Ills own right, free from all liens or incumbrances of any kind whatever; that upon such examination nothing was found of record, showing that Daniel Hall was not such owner, nor was there any record of any incumbrance or lien by -way of mortgage, bill of sale, conditional sale, or otherwise, except one chattel mortgage by Daniel Hall to Keenan & Hancock, of Chicago, 111., on .150 cattle of the 3,000 cattle, to secure the payment of $1,000, and also a mortgage by Daniel Hall to Hall Bros., of Kansas City, on other of said 1,000 cattle, to secure the payment of $1,287.85; that at the time they loaned the money, and took such chattel mortgage as security therefor, they believed that Daniel Hall was such owner, and had no notice, knowledge, information, or belief tint the plaintiff laid or claimed any right or title to the cattle, or any of them, but that they did believe, in good faith, that Daniel Hall was the absolute owner of ihe cattle; that,, at the time1 of limiting the chattel mortgage, Daniel Hall pointed out, to Hall, Greer & Co. 239 cattle that were separate and apart from all other cattle, in a lot by themselves, and designated them as a portion of the 300 cattle described in the mortgage, and also showed and pointed out to Hall, Greta- & Co. other cattle on liis farm, to a greater number than (il, as cattle from which the remainder of the 300 cattle described in the chattel mortgage were to be taken; that afterwards Daniel Hall, with Simeon 1\ Hall, separated from the cattle so pointed out (51 other cat He, to make tip the number of 300 cattle described in the chattel mortgage; that said 239 cattle and said (51 cattle were afterwards, and before the commencement of this suit, taken by Hall, Greer & Co. on their chattel mortgage from the farm of Daniel Hall, in Grundy comity, and were by them, with the consent of Daniel Hall, and with The knowledge of one Stevens, agent of the plaintiff, put on board of cars for shipment to Chicago, for sale on the market in Chicago, and were by them transported to Chicago, and placed in the possession of the Union Stock-Yards & Transit Company, where they were when they were taken on the writ of replevin-in this ease.</p> <p>The defendants also gave evidence to the effect that, of the said $5,000, there was appropriated enough to pay the debt owing by Daniel Hall to Keenan & Hancock; that Hiere was left at ihe bank in Trenton, Mo., $3,287.75, to pay the debt of Hall Bros., of Kansas City, upon their delivering to and. surrendering- to (.lie bank llieir note against Daniel Hall, and a release of the chattel mortgage to Hall Bros.; that Hall Bros, did not comply with ilie conditions on which the money was left at the bank, and did not obtain the money, and that on December 33, 1884, Hall, Greer & Co. withdrew such money from the bank; and that there remained unpaid, of the $5,000 secured by the chattel mortgage to Hall, Greer & Co., the sum of $3,753.92, with interest from December 13, 3884, at 10 per cent, per annum.</p> <p>At the trial Hall, Greer & Co. offered to prove certain facts. The court heard the evidence in the absence of the jury, the question of its materiality being reserved. • Such evidence was to the effect that Daniel Hall, prior to the Cth day of September, 1884, and prior to the execution and delivery of the contracts, had negotiations with certain brokers or agents of the plaintiff (defendant in error) in regard to the purchase of the cattle from the plaintiff at the price of $85 per head, for a term of credit, and interest on the purchase price at 12 per cent, per annum from that time until the time to be agreed upon between the parties for the payment of the purchase price for the cattle; that the cattle described in the contract of September 6, 1884, were none of them delivered to Hall until after the execution of the contract, and were delivered to Hall under and in pursuance of the contract, and that when the contract was prepared the sum of $30.05, named therein, was arrived at by casting interest on the sum of $35 at 12 per cent, for the time to elapse between the date of the contract and the time specified in the contract for shipping the cattle, and that the declared purpose of the contract, at the time it was so made and delivered, was that the cattle company should retain the title to the cattle, and should sell the same, giving Hall the benefit of any increase in the market value of the cattle, by reason of the feeding, above $35 per head, and 12 per cent, per annum interest; and that the same state of facts existed in relation to the cattle .described in the other two contracts, with the exception that the cattle described and mentioned in the two contracts dated October 1st and 16th, respectively, were actually delivered into the possession of Hall before the two contracts were signed. Thereupon the court decided that such evidence was not competent to be submitted to the jury; that the contracts must be held to be controlling and binding on the parties, as containing the whole transaction between them in relation to the cattle described therein, and refused to submit such evidence to the jury, or to permit the defendants to give evidence of any matters in relation to the negotiations between the parties in regard to the terms and conditions on which the cattle should be delivered to Hall, which were had before the contracts in writing were made; that the negotiations in regard to the proposed purchase of the cattle by Hall were between Hall and certain brokers of the plaintiff, who had no authority to malee a sale of the cattle upon credit; and that when the proposition of Hall was submitted to Mr. Forbes, the manager of the plaintiff, he refused to make a sale to Hall on credit, but proposed to let Hall take the cattle on the terms of the contracts, and Hall acceded to the term so insisted upon by Forbes. To this ruling the defendants excepted.</p> <p>The court directed a verdict for the plaintiff, to which ruling a proper exception was taken.</p>

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>At Law. Action by the Travelers’ Insurance Company against the township of Oswego, Labette county, Kan., on interest coupons of bonds issued by defendant. Demurrer to the complaint sustained. 55 Fed. 3(51. Plaintiff brings error.</p> <p>Statement hv SAXBORA, Circuit Judge:</p> <p>The Travelers’ Insurance Company, the plaintiff in error, brought an action in the court below to recover upon certain interest coupons that had been detached from certain bonds issued by the township of Oswego, the defendant in error, to refund its bonded indebtedness. The complaint alleged that these bonds and coupons were issued in 1885 under the authority of an act of the legislature of the state of Kansas, entitled “An act to enable the township of Oswego, in the county of Labette, state of Kansas, to refund its indebtedness,” approved March 3, 1881, (Sess. Laws Kan. 1881, c. 170,) and an amendatory act passed in 1883, (Sess. Laws Kan. 1883, c. 157;) that these bonds had been duly registered under these acts; that ihe plaintiff was an innocent purchaser for' value, before maturity, of these bonds and coupons, which were payable to bearer; and that the coupons were overdue. A demurrer to this complaint was sustained, and the action dismissed, on the ground that the acts of the legislature under which the bonds were issued were unconstitutional.</p> <p>The act of March 3, 1881, as amended, provided substantially as follows:</p> <p>Section 1. That the township of Oswego was authorized to issue funding, bonds to fund and cancel its existing bonded indebtedness.</p> <p>Sec. 2. That the bonds to be issued should bear 6 per cent, interest, and that the principal and interest should be payable at a certain place and at certain times, respectively.</p> <p>See. 3. That the county clerk of Labette county, Kan., should register the bonds, and that no bond should be of any validity unless registered.</p> <p>Sec. 4. That no bond should be signed by the commissioners until the bonds in payment of wliich it was to be issued had been delivered to the county clerk to be canceled, and that the clerk should cancel and destroy the latter.</p> <p>Sec. 5. That the bonds Issued under the act should be registered in the office of the auditor of state, and that he should certify to the board of county commissioners, the county treasurer, and the county clerk of Labette county the amount necessary to be levied in each year to pay the coupons, and to create a sinking- fund.</p> <p>Sec. 6. That “it shall be the duty of the board of county commissioners of Labette county, Kansas, annually and at the time it makes the general levy for state, county and other taxes to levy on all taxable property in Oswego township a sum sufficient as shown by the said certificate of the auditor of state to pay the interest on said bonds adding not to exceed 10 per cent, for delinquencies provided that such levy shall be made on all such property as would under existing laws be holden for the payment of the bonds or judgments thereon that may be funded, taken up, satisfied or paid under and by virtue of the provisions of this act;” that in the eleventh' year after the issuance of the bonds, and annually thereafter, the county commissioners shall levy a tax to create a sinking fund to pay the bonds; that the commissioners provided for in the act shall invest it; and that, if any of the county commissioners fail to vote for the levy of such a tax, they and their sureties shall be liable in a civil action to the owners of the coupons for the full amount that should have been, but was not, levied.</p> <p>Sec. 7. That if the county commissioners fail to levy this tax in any year the county clerk shall add the proper amount to that levied by the commissioners, and distribute it ratably on all the taxable property of Oswego township; and’, if he fails to do so, he and his sureties shall be liable in a civil action, to the owners of the coupons that should have been levied for, to the full amount thereof.</p> <p>Sec. 8. That if, when the tax roll of Oswego township comes to the county treasurer, the tax provided for in the act has not been levied, or placed on the tax roll, he shall place it there, and shall collect it; and, if he fails to do so, he and his sureties shall be liable in a civil action, to the owners of the coupons that should have been paid from such levy, to the full amount thereof.</p> <p>Sec. 9. “That for the purpose of compromising the bonded indebtedness and the judgments thereon of the said township of Oswego, and for the issuing of the bonds a*nd coupons provided for by this act O. M. Condon, J. B. Draper and Thomas Shrout of the county of Labette are made and declared the commissioners and the agents of said township of Oswego;” that bonds issued under the act shall be signed by their chairman and attested by their clerk, “and in the compromising and funding of the said indebtedness of said township the said commissioners shall have full power to do all tilings needful; provided that no portion of said indebtedness shall be compromised by said commissioners at a higher rate than thirty cents on the dollar;” and that, for any violation of the provisions of the act by either of the commissioners, he shall be deemed guilty of a felony.</p> <p>Sec. 10. That if any one of the commissioners fails to accept the position tendered him, or if, after accepting, he dies or resigns, the judge of the judicial district in which Labette county is situated shall fill the vacancy, and that the commissioners shall give bonds for the faithful discharge of their duties.</p> <p>When this act was passed there was a general law in force in the state of Kansas, authorizing every county and township in that state, after a favorable vote of its electors, to compromise and refund its indebtedness, and' to issue new bonds therefor, not exceeding its actual outstanding indebtedness in amount.</p>

<p>1. Federal Courts — Following State Decisions — Township Bonds.</p> <p>When the only question in a suit on coupons of township town AS is the existence of authority to issue them under the state statutes and constitution, a prior decision thereof by the state supreme court, in a suit by a taxpayer to recover taxes levied for interest on the bonds, is binding on the federal courts.</p> <p>2. Municipal Bonds — Validity.</p> <p>Legislative recognition of the validity of township bonds can give them no binding force when issued under an unconstitutional statute.</p>

<p>1. Following Practice in State Courts — Depositions.</p> <p>A state statute requiring every deposition intended to be read on the trial to be filed at least one day before the day of trial does not apply in the federal courts.</p> <p>2. Wrongful Attachment — Evidence—Replevin.</p> <p>A stock of goods purchased for $6,000 was attached as the property of the seller, but, after some of them had been disposed of, the remainder were replevied by the purchaser, who made affidavit that they were worth $6,000. Held, that in a subsequent action brought by him for wrongful attachment this affidavit was not admissible to show that he had lost nothing by the conversion of part of the goods.</p> <p>3. Appeal — Objections not Raised Below— Documentary Evidence.</p> <p>A party who offered a document in evidence for a purpose for which it was incompetent cannot on appeal insist that the court erred in not admitting it for a different purpose. Insurance Co. v. Frederick, 58 Fed. 144, followed.</p> <p>4. Same — Harmless Error — Instructions.</p> <p>In an action against a sheriff and his deputies, a statement in the charge that defendants admitted taking the goods and converting part of them to their own use is no ground for reversal, though one defendant denied having anything to do with the taking, when it appears that all were concerned therein, and that the case was tried on the theory that, if any of the defendants were liable, all were.</p> <p>5. Instructions — Mistake of Fact — Exceptions.</p> <p>Mistake in a statement of fact should be called to the court’s attention at the time, and, if not then corrected, exception should be taken di-; rectly to such statement, and not to the entire instruction in which it is; included.</p> <p>6. Same — Fraud.</p> <p>There is no error in charging that fraud is never presumed, and must he shown by “satisfactory proof, i. e. proof to the satisfaction of the jury.”</p>

<p>At Law. Action by Herman Oramer against the Singer Manufacturing Company and Willis D. Fry for infringement of a patent. Heard on separate demurrers to the complaint.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.</p> <p>At Law. Action by Byron O. Rambo against the Baltimore & Ohio Railroad Company for personal injuries. Verdict and judgment for plaintiff. Defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>At Law. Action hy Thomas O. Bullock and Lydia P. Bullock against the Foss-Schneider Brewing Company to recover for goods sold and delivered. Verdict for plaintiffs directed hy the court, and judgment for' plaintiffs thereon. Defendant brings error.</p> <p>Statement hy TAET, Circuit Judge:</p> <p>This' was an action begun in the circuit court for the southern district of Ohio November 12, 1891, to recover $2,215.67, as the balance claimed to be due to T. O. Bullock and Lydia P. Bullock, partners as Bullock & Co., of the city of New York, the defendants in error and the plaintiffs below, from the Eoss-Schneider' Brewing Company, a corporation of Ohio, for two car loads or 350 bags of broken rice, weighing in all 84,612 pounds, at $2.85 per hundred pounds, sold and delivered to the brewing company on the 21st day of November, 1885. A credit was given to the brewing company for $195.78, the freight on the rice, which was paid hjf the brewing company at the time the rice was received.</p> <p>The defendant, for answer, first pleaded that the cause of action stated did not accrue within six years before the filing of the petition. For a second defense the defendant denied that anjr contract of sale had ever been entered into for the purchase of the rice referred to in the petition, hut alleged that some time prior to November 1, 1885, the plaintiffs had consigned to the defendant,' at Cincinnati, two car loads of rice, without the consent or order of defendant; that at about the same time defendant had ordered two car loads of rice from other persons than the plaintiffs; that, when the defendant was notified bjr the railroad company that two car loads of rice had been received at the depot for it, it paid the freight upon the two- car loads of rice sent hy the plaintiffs, Iw mistake, supposing that it was paying the freight upon the rice which it had ordered; that, with -the same mistaken idea, defendant received the rice, and stored it in its brewery at Cincinnati; and that, immediately upon the discovery of the mistake, defendant notified plaintiffs of it, and that the rice thus delivered and received was held subject to the order of plaintiffs, and not otherwise. B3r way of cross petition, defendant asked judgment for $1,800 for the price of storing the rice for the plaintiffs since 1885.</p> <p>Tlie facts, as developed by the evidence, were as follows:</p> <p>Bullock & Co. were a firm dealing in rice at Nevv York city. The FossSchneider Brewing Company was a brewing corporation of Cincinnati using rice in its manufacture of beer. The brewing company gave to one Louis Burger, in November, 1884, an order for four car loads of rice, at the lowest price that he could get it for them. An agent of Bullock & Co. called upon the browing company shortly after this, and asked to sell them rice. They referred him to Burger, to whom they had given their order. He went to Burger, and made a contract evidenced as follows: “November 22, 1884. Four cars best broken rice for Foss-Schneider Brewing Company, $2.S5 delivered. Commission on this lot, $35, to Louis Burger. First car first week in December, others to follow when ordered, about two weeks apart. Send sample of all kinds.” On December 8th, Bullock & Co. sent the following- letter to Foss-Schneider Brewing Company. “We have shipped you, as per inclosed invoice and B. L., car best broken rice, November 29th, cash, $1,042.04. Your order for rice given to Mr. Louis Burger was turned over to ns for execution, and which we are pleased to fill for you. Please send ns expense bill, when paid, and oblige.” Two- cars, under this order, were delivered to the Foss-Schneider Brewing Company. On the 20th of December following, and before any others were delivered, Bullock & Co. made, another contract directly with the Foss-Schneider Brewing Company, evidenced by the following: “Cincinnati, December 20. 1884. Sold to the above browing company five (5) cars broken rice at 82.80, delivered Cincinnati, to be shipped as ordered, with the privilege up to ten (10) cars more at the same price, to be shipped during the year 1885. Bullock & Co. The Foss-Schneider Brewing Company, by Frank Overbeck, President.” This last sale was negotiated without the intervention of Burger. Burger felt very indignant at this course on the part of Bullock & Co., and by letter December 31, 1884, complained of their sale at a. less price than that at which he (Burger) had sold their rice to the brewing company in the first contract, and used the following language: “Consequently, said brewery does not want any more rice upon the contract entered with me, but has canceled the same, on your action taken in the matter. * * * You had no right to interfere with the contract existing, the details of which you knew, and I now look upon you for your remitting me commission on four cars at $85 each, --$110.” Answering this, Bullock & Co. by letter, January 23, 1885, said: “We have no desire to save the commission on the four cars, and will pay it to you, as agreed, after shipments are made, and acceptance of same. Please let us know at once when we shall ship the remaining two cars.” Burger, later, in letter January 7, 1885, again announces the cancellation of the lirst contract, to which, by letter of January 10, 1885. Bullock & Co. replied: “We did not induce, wish, or request that they (F. S. B. Co.) cancel the order they gave you, nor have we canceled it, nor do we see any reason why we should, and are ready to ship the remaining two cars when you instruct us to, which in. «tractions we await” On January (>, 1885, the Foss-Schneider Brewing Company, in response to a letter from Bullock & Co. offering to extend the payment for the two car loads of rice already sent, the brewing company declined to accept the favor, and denied the desire on their part for delay in the payment, and referred, presumably, to the shipment of the remaining two cars-/ on the Burger contract, as follows: -‘Furthermore, as Mr. Burger did not, and .said he could not, live up to the conditions upon which we agreed to take a certain number of cars of rice from him, we canceled and countermanded all our conditional orders for rice with Burger-.” In the letter of January 10, 1885, to the brewing company, Bullock & Co. make no response to this notice of cancellation, and simply use the expression: “Kindly inform us when we may ship you another car of rice.” it should be noted, also, that on 23d December, 1884, the brewing company notified Bullock & Co. that they had learned that Bullock & Go. were offering rice at $2.75. They close their letter with these words. “The contract, therefore, we made with you, we consider null and void, until we hear from you.” This referred t.o the second contract. Subsequently, however, the brewing company did receive the five cars of rice on the second contract, and paid for them. They were delivered March 7th, April 17th, May 28th. July (nil, and August 27th, in the year 1885.</p> <p>In June or July, 1885, Burger sued Bullock & Co. for the commission on the sale of the other two cars under the Burger contract, and garnished money of Bulloclc & Co. in the hands of Foss-Schneider Brewing Company, and recovered before a magistrate a judgment, which was deducted by the Foss-Schneider Brewing Company from their payment; to Bullock & Co.</p> <p>In September, Bullock & Co. asked the brewing company whether they needed any more rice. They replied that they did not. A similar rerpiest was made in October, to which a similar answer was given, and the same question and response occurred on November 7th. Upon November 10th Bullock & Co. sent a. telegram to Mr. Douglass, who had been their attorney in the garnishee suit, as follows: “Shall we ship Foss-Schneider Brewing Company, or Burger?” To which Douglass, after seeing Overbeck, telegraphed: “Ship Foss-Schneider Brewing Company.” Accordingly, on November 14th, Bullock & Co. shipped two car loads of rice to Foss-Schneider Brewing Company.</p> <p>On November 14, 1885, Bullock & Co. wrote as follows: “The Foss-Schneider Brewing Company: Wo take pleasiu-e in handing you in this invoice and bill of lading for two ear loads best broken rice, November 10th, cash, 82,411.44, less freight, as per order received through Mr. Ijouis Burger. Trusting this lot will give the usual satisfaction, we remain.” To which the brewing company responded by telegram of November 16th: “Bill lading two cars rice received. Will not accept same. Never ordered them through Burger.” Thereupon, Bullock & Co. telegraphed their attorney, on the same day, as follows: “Foss & Schneider telegraph us they won’t receive the two car loads shipped them. What shall we do?” To which their attorney responded, after seeing Mr. Overbeck: “Think can get Foss-Schneider to take rice, if they get four months’ time. I advise acceptance.” To the Foss-Sehneider Brewing Company, Bullock & Co. telegraphed as follows, November 16, 1885: “You deducted from your remittance commission on these very two car loads just shipped. Our attorney, Howard Douglass, Cincinnati, telegraphed us to ship, and think Burger’s attorney instructed shipment. Settle this matter with Burger, who ordered for you.” November 21st, Bullock & Co., after repeating the correspondence by telegram, say: “We have been so very busy getting what rice we could off, as freight advanced 40 per cent, on the 18th, and yesterday the new rate of duty took effect, — that is, 2% cents pound on the same size grain we shipped you,— an advance of 185 per 100 pounds; the same duty as whole rice. We wanted to protect ourselves, and have shipped over seven thousand bags this week. .We note that you say you never ordered this from Burger, and yet this is just what Burger brought his sham suit against us for, and you paid the .money into court on the very two cars. Since your telegram, we have an- ! other one from Howard Douglass, who says he thinks you will take, if we (give you four months’ time, to which we replied that we were always will-dug to accommodate you; and if you would give us your four-months’ note, Adding interest from receipt of goods, we would accept it, and, 'as Burger Vas to have a good commission out of this, that you make him pay the interest that you add to the note.” To which letter the brewing company responded on the 25th November: “Yom-s of the 21st received. Mr. Howard jDouglass nor anybody else had any right to think that we would accept the Irice if you gave us four months’ time. None ever approached us on this subject, and consequently we never intimated anything of the kind. * * * As already informed you, we will not accept the rice under any terms. Hop-" jing that this unpleasantness will soon cease, we are, etc.”</p> <p>. During this correspondence, the two car loads of rice shipped by Bullock '<& Oo. reached Cincinnati, and were weighed for the defendant, — one car upon November 21, 1885, and the other November 28, 1885, — and the freight was paid by the defendant upon the same days. The rice was hauled to the defendant’s brewery by the brewery wagons. The defendant’s agents supposed that this rice was rice ordered and shipped from Ivuntz & Oo., of New York. The Kuntz rice arrived on the 5th of December, at which time the mistake was discovered. The rice of Bullock & Co. was stored in the brewery warehouse until the 2d of January, 1886, when Bullock & Co. wrote the brewing company the following: “Our invoice November 10th, $2,411.44, is now past due. Will you, on receipt -of this, kindly send us exchange for the above amount, less freight? The freight bills, please send us. Should you want any extension of time, we would be very glad to accommodate you; you adding interest after thirty days, and sending us your note for such time as will suit, you.” To which the defendant replied, January 4, 1885: “Yours of the 2nd inst. received. We beg you to understand that we do not owe you anything. The rice you shipped here we will not accept, and, if Mr. Louis Burger ordered same, you must look to him.” To which Bullock & Co. replied, January 6th: “We have your favor of the 4th all noted. We are a little staggered at your remark that you do not owe us anything, and will not accept the rice we shipped you, when we know that you have accepted the rice, and had one car since November 21st, the other ear November 27th, and paid' the freight on both cars November 25th. You have had this rice now, one car 46 days, the other car 40 days, — an average of 43 days. This should now be settled, and must confirm our letter January 2nd, requesting exchange for amount due us, or, if you want some longer time, your note adding interest after 30 days. The interest, and any difference in price, you must look to Mr. Burger for.” To which the brewing company responded, January 9, 1886: “Yours of the 6th received. We again repeat. that we do not owe you anything. You also do not know that wo accepted the rice, for whoever informed you so knows nothing about it. The rice you shipped is stored, and we will not use one grain of it. When the proper time comes, we will prove how, in mistake, we paid freight on the rice you shipped after having notified the railroad company that we would not accept same, since, at the same timo_ there was a shipment of rice in the depot for us, which we had bought from some other house. Lot this end all unnecessary correspondence.” There was a long subsequent correspondence, which throws no light upon the case, except that it states the claims of the parties.</p> <p>Overbeck, the president of the brewing company, was ill, and not able to be present at the trial. By agreement, a statement of his was introduced as a deposition, in which he said: “On November 16, 1885, Bullock & Oo. shipped ns the two remaining cars rice countermanded with Burger Bros., whereupon, we telegraphed Bullock & Oo. that wo would not accept them, as we had never ordered them through Burger. On or about November 25th, two cars rice arrived in the depot here, at the same time together with two cars rice which w'e bought from Chas. Kuntz & Oo., New York; and by mistake our secretary at the time, Mr. Chas. Klein, paid the freight on the two ears from Bullock & Oo., instead of those from Ohas. Knntz & Oo., and in that way the two cars from Bullock & Oo. were taken into our house by mistake. But of all of this we notified Bullock & Oo. at once by letter, stating the rice was stored at their expense, and that we refused acceptance of same.”</p> <p>Mr. Bullock testified that the letter of January 9th, received on January 12tli, was the first letter written them by the brewing company, in which they had been notified that the rice had been received under mistake.</p> <p>The market price of rice in Cincinnati from November, 1884, to November, 1885, was affected by the varying freights from New York to Cincinnati. There was a decline in the spring of 1885 of about $70 a ear. There was an advance early in November back to the March and April rates of $60 or $70-a car, and a still further advance, later in the same month, of $50 or $60 a car.</p> <p>At the close of the evidence the court directed the jury to return a verdict for the plaintiffs, for the amount claimed in the petition, with interest. i</p>

<p>In Error to the Circuit Court of the United States for- the District of Kentucky.</p> <p>Statement by BURTON, Circuit Judge:</p> <p>The deceased, Marion Wilson, was killed at Maysville, Ky., by being run over by a street car operated by one of the servants of the appellant company. He was a citizen and resident of tlie state of Ohio, in which state the appellee, Marvin, was appointed administrator. The appellant company is a Kentucky corporation, exclusively engaged in operating a street-car line in tlie city of Maysville. Tlie Ohio administrator brought this suit in tlie United States circuit court for the district of Kentucky, at Covington. There was a demurrer lo The petition, on the ground that an Ohio administrator could not maintain a suit in the courts of Kentucky. This demurrer was overruled. Thereupon issue was joined, and a trial had by jury, resulting in a verdict and judgment against the railroad company.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Nort hern District of Ohio.</p> <p>At Law. Action by Charles C. Yonng against, the board of commissioners of Mahoning comity, Ohio, the city of Youngstown, Ohio, and others, to recover lands. Judgment for plaintiff. 51 Fed. 585. Defendants bring error,</p> <p>Statement by LI JETON, Circuit Judge:</p> <p>This is an action of ejectment. The plaintiff was Charles O. Young, a citizen of the state of New York. The defendant was the county of Mahoning, one of tile counties of the state of Ohio. The property involved Is lot No. 90 of John Young’s original plat of the village of Youngstown, upon which now stand the courthouse, jail, and county offices of Mahoning county. A jury was waived, and the cause submitted to the Honorable W. H. Taft, circuit judge, who rendered judgment for the plaintiff. Subsequently, a. jury was impaneled, under llie statute of Ohio, to ascertain the value of the improvements. Upon final judgment there was an appeal by the defendant to tills court.</p> <p>The facts necessary t.o be staled for the purpose of this opinion are these:</p> <p>John Young, the ancestor of the plaintiff below, anil the common source of title for plaintiff and defendants, signed and recorded, in 1802, a town plat of 100 lots in the township of Youngstown, then in the county of Trumbull, but now in that of Mahoning. This plat was defectively acknowledged under the Ohio statute regulating the acknowledgment and registration of town plats. The result was that the legal title to the streets, alleys, and other open public places was not vested in the village authorities, but remained in Young. Lots Nos. 95 and 96 on this plot were each marked with the words, “Burying ground.” From the date of this dedication, down to 1868, these lots were used as a burying ground. In I860 an adjoining lot owner fenced in a part of lot 95. Suit was brought against him in the name of the county commissioners, hut failed upon the ground that the title was not in them. Another suit was instituted in the name of certain citizens of Youngstown for the benefit of the public. One B. F. Hoffman was counsel in this second suit for the plaintiffs. To meet the supposed difficulty about the title, Hoffman l>roeured the passage by the legislature (April 3, 1867) of an act entitled “An act for the protection of certain graveyards and burial grounds.” The first section of this act is llie only one important to this contention. It was in these words:</p> <p>“That the title, right of possession and coni rol to and in and of all public graveyards and burial grounds located within incorporated cities and dedicated by the owners, aud dedicated as graveyards and lmrial grounds, but which have not been dedicated according to the forms and requirements of law, he and the same are hereby vested in the cities, towns and villages respectively, where any such graveyards and burial grounds may be located: and the council of such towns, cities and villages are hereby authorized and required to take possession, control a.nd charge of all such grounds within their respective limits and protect and preserve the same, and make such ordinances, sales and regulations as may be necessary and proper for said pm-poses and consistent with the healtii and welfare of the inhabitants; and they are also authorized and required, when necessary, to institute suits in the names of said municipal corporations to recover possession of said graveyards and' burial grounds, remove trespassers therefrom and recover damages for injuries thereto for any part thereof, or to any tomb or monument therein/’</p> <p>Pending that suit, and after the passage of this act, Hoffman procured from the plaintiff, Charles C. Young, who was then living in Whitestown, N. Y., and in whom was vested the legal title by descent from his father, John Young, and by deeds from his brothers and sisters, a quitclaim deed to both lots 95 and 96. This deed is in these words:</p> <p>“C. C. Young to Village of Youngstown.</p> <p>“Quitclaim Deed.</p> <p>“To all to whom these presents shall come, greeting: Know ye, that I, C. O. Young, of Geneva, in the state of New York, for divers good causes and considerations thereunto moving, especially for one dollar received to my full satisfaction of the incorporated village of Youngstown, in the county of Mahoning, in the state of Ohio, have given, granted, remised, released, and forever quitclaim, and do by these presents absolutely give, grant, remise, release, and forever quitclaim, unto the said incorporated village of Youngstown and its successors forever, to be under the authority and control of its proper council and municipal authority, in conformity with the act of the legislature of Ohio in that behalf, all such right and title as I, the said C. C. Young, as one of .the heirs, and as the assignee and grantee of the other heirs and devisees, of John Young, the original proprietor of said township and village lands, have or ought to have in and to the following described lands: Situate in the said village, and known and designated on the original plat of said village made by said John Young and recorded in Trumbull County Records of Deeds, Book A, p. 118, as burial grounds, and being inlots numbers ninety-five and ninety-six, and used as burial grounds by the citizens of said village and township since about the year 1799. Said inlot No. 95 lies on the west side of Market street, and extends westerly to inlot No. 94, and covers all the ground inclosed and used as a burial ground for over fifty years; and said inlot No. 96 lies on the east side of said Market street, and includes the grounds inclosed and used as a bm'ial ground for a like period. To have and to hold the premises aforesaid unto the said grantee, said incorporated village of Youngstown, and its successors, forever. In witness whereof I have set my hand and seal this 10th day of July, A. D. 1867.' O. C. Young. [L. S.]</p> <p>“Signed, sealed, and executed in the presence of</p> <p>“John W. Smith.</p> <p>“Samuel Louthrop.”</p> <p>The city council of Youngstown accepted this deed, and the suit against the trespasser was thereafter conducted in its name and in its behalf. The consideration for this deed was the sum of §15, paid to Hoffman on account of Charles Young, being a debt due from Young to Hoffman about other matters. Young required the city of Youngstown to assume this debt to Hoffman, and pay the same as a consideration for the conveyance.</p> <p>. In 1868 the council of Youngstown, which had then ceased to be a village and become a city, passed an ordinance by which all interments in the old' burying ground were thereafter forbidden, and the remains of those already interred there, which should not be removed by friends and relatives before April 1, 1869, were ordered removed at public expense. This ordinance was executed, and' all bodies removed. Prom that time until 1874 the lots lay open and unused. In 1874 the legislature provided that the county site of Mahoning county should be removed from Canfield to Youngstown, on condition that Youngstown should donate a lot, and erect thereon the county courthouse, jail, and offices at a cost of not less than §100,000, free of expense to the county. This condition was accepted, and by ordinance passed in 1875 it was directed that a deed in fee to said lots 95 and 96 be made to a committee of five citizens, who were constituted a building committee, charged with the duty of erecting the courthouse and other public buildings, and then making conveyance, when completed, to the county commissioners of Mahoning county. The buildings were duly erected, and in August, 1876, the lot on which they stood was conveyed to the county commissioners, and since that date have been occupied by the courts and county officers of Ma-honing county. Lot No. 95 was not used by the building committee, and the tillo remains in that committee. The present suit involves only lot No. 96, and was begun in December, 1891.</p>

<p>At Law. Indictment of W. P. Shaw for violation of section 11 of the act of January 16, 1883, forbidding the solicitation of con-, tributions for political purposes from government employes. Supp.i Rev. St. (2d. Ed.) p. 395. The defendant, having been tried and con-, victed, entered a motion for a new trial.</p>

<p>COXSTITUTIOXAL IiAW — IjiTEKSTATB COAIAtEKCK — iNTOXKJATING JLlQUOKS.</p> <p>There is no power in a state to forbid the importation of intoxicating liquors, either under the Wilson act of 1890, or independently thereof, and one who merely brings barrels of liquor into a port of South Carolina, and unloads them on the dock, cannot be punished under the state “dispensary” law. Leisy v. Hardin, 10 Sup. Ct. 681, 135 U. S. 100, and In ro Rahrer, 11 Sup. Ct. 865, 110 TJ. S. 564, followed.</p>

<p>Indictment for taking, from a letter depository box, a letter containing money. On motion for a new trial.</p>

In Equity. Suit by Joseph M. Merrow against John Shoemaker and others for infringement of a patent. Decree dismissing certain defendants, and for complainant as to others.

<p>1. Patents — Infringement—Rolling Mills.</p> <p>A patent for a turn-over device for use in rolling mills, consisting of a combination, witli a set of stationary abutments, of laterally adjustable carriages, having a tilting support arranged transversely to the same, and provided on their under sides with a bulge or projection, adapted to be struck by the abutments when the carriage is shifted, for the purpose of turning over the rail, being a mere improvement in the art, the claim of which is by its terms confined to the particular construction operating in the defined wa.y, is not infringed by a turn-over device, mounted on vertically moving tables, without tilting support, the rail being sustained: entirely by the table rolls, the grooves of which act as a stop to prevent lateral movement, and in which the turn-over finger is positively con-1 trolled and actuated at all times through an intermediary sway bar. 55s Fed. 877, affirmed.</p> <p>3. Same.</p> <p>The fourth claim of patent No. 247,665, for a turn-over device for continuous rolling mills, construed, and held not to be infringed.</p>

<p>1. Patents — Anticipation—Chemical Fire Extinguisher.</p> <p>A claim for tlie connection of a hollow journaled, reel with the generator of a chemical fire engine, so that the contents of the generator may be discharged through a hose wholly or partially wound on the reel, is anticipated by well-known prior devices for forcing water and other liquids through a hose, while wound upon a reel, by the use of a hollow journal. 52 Fed. 731, affirmed.</p> <p>2. Same — Novelty.</p> <p>As a hollow journaled reel is not wholly impracticable in machines for throwing water, where pressure is applied in the usual way, its mere application to the generator of a chemical fire engine does not involve invention, for the result attained in either case is merely one of degree. 52 Fed. 731, affirmed.</p> <p>3. Same — Validity.</p> <p>Patent No. 147,442, for a chemical fire extinguisher, is void for anticipation and want of invention. 52 Fed. 731, affirmed.</p>

In Equity. Proceeding to punisli defendant for contempt in violating an injunction issued in the suit of Edward Horton and Oliver W. Horton against the Eagle Automatic Can Company for infringement of letters patent Ho. 267,014, issued Hovember 7, 1882, to Edwin Horton, for a can-heading machine. Defendant adjudged guilty.

In Equity. Bill by the United States Credit System Company against the American Credit, Indemnity Company for infringement of patent. A demurrer to the bill was sustained. 53 Fed. 818. Complainant appeals. This is an appeal from a decree of the circuit court for the southern district of New York dismissing the hill of complaint.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In Equity. Suit by the Lalance & Grosjean Manufacturing Company against the Haberman Manufacturing Company for infringement of a patent. Bill dismissed. 54 Fed. 517. Complainant appeals.</p>

<p>3. Patents — ArmcrcATroN—Prior Laic.</p> <p>Daily use of a roll-paper cutting machine for more than two years in a store employing a considerable number of persons is sufficient public use to constitute anticipation. 51 Fed. 237, affirmed.</p> <p>2. Same — Prior Use— Evidence.</p> <p>Anticipation may be established by testimony entirely from recollection of 1iie existence and use of a prior machine, when the witnesses are numerous, disinterested, and unimpeaehcd. Washburn & Moen Manuf’g Co. v. Beat ’Em All Barbed-Wire Co., 12 Sup. Ct. 443, 143 U. S. 275, distinguished.</p> <p>3. Same — Invention—iioll-Paper Cutters.</p> <p>There is no invention in giving additional weight to tho knife bar of a roll-paper cutter, so as to obviate the necessity of pressing it down by hand when cutting the paper.</p> <p>4. Same — Particular Patent.</p> <p>The Hopking patent, No. 301,596, for a roll-paper holder and cutter is void for anlicipation.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>In Equity. Suit by George H. Benjamin, Alexander Siemens, Joseph Gordon Gordon, and John Wreford Budd, executors, etc., of Sir William Siemens, deceased, Frederick Siemens, and Alexander Siemens, trustees, and Frederick Siemens, against the Chambers & McKee Glass Company, for infringement of patent. Bill dismissed. 51 Fed. 902. Complainants appeal.</p>

<p>In Equity. Suit by the Fuller & Johnson Manufacturing ‘Company and Frank A. Bemis against Abram W. Stevens and Leroy W. Stevens for infringement of patents. Decree for complainants.</p>

Tn Admiralty. Libel by the Dalbeattie Steamship Company, Limited, against H..St. Julian Card, doing business as Henry Card, for breach of charter party. Decree for libelant. Hearing on master’s report as to damages. Beport recommitted.

<p>Appeal from the District Court of the United States for '¡he Eastern District of Wisconsin.</p> <p>In Admiralty. Libel by the Union Marine Insurance Company of Liverpool, England, the Insurance Company of North America, and the Atlantic Mutual Insurance Company of New York against-the steamer Koanoke, W. F. Botsford, C. D. Thompson, and James W. Martin, claimants for contribution in general average. Exceptions to tlie libel were overruled, (46 Fed. 297,) and a decree rendered for libelants, (53 Fed. 270.) Claimants appeal.</p> <p>Statement by SEAMAN, District Judge:</p> <p>Libel was filed against the steamer Roanoke, by the appellees, as underwriters upon her cargo, claiming general average contribution for sacrifice of cargo under the following circumstances: On the evening? of May 17. 1890, while tlie steamer Roanoke was lying at her dock at Buffalo, and taking on a cargo of merchandise, including a quantity of jute, hound for Toledo, fire was discovered in the midship hold, in some bales of jute. Tlie officers of the vessel gave alarm, which brought the fire department and fire tug to their assistance. The lines were cut, and the vessel removed from her dock, and water poured upon her and 'into the hold. The fire was apparently quenched about 10:30 P. M., the damage to the steamer being confined to tlie upper works and main deck; but water was necessarily poured into the hold throughout the night, because of smoldering fire in the Jute. On (he morning of May 19th, fire again appeared in the jute, and was extinguished by throwing in water for an hour. The steamer departed for Toledo at 3 P. M., ihe 19th. At intervals on tlie voyage, and after arrival, during the unloading, up to completion, May 22d, fire was breaking out-in the jute, and only kept down, and finally extinguished, by streams of water thrown in, through the steamer’s hose, at each outbreak. The damage 1o the cargo by the water.thus employed is undisputed. There was a general average statement, and the libelants paid thereupon, to the cargo owners, respectively, tlie amounts 'so adjusted for damages by water, in addition to fire damage. Decree was for libelants thereupon, for the damage by water, 82,505.62, and the owners of tlie steamer appeal.</p> <p>Tlie bills of lading for the shipments in question contain provisions as follows: That any carrier or vessel receiving- the goods shall not be liabie “for any loss or damage sustained by any person, or any loss or damage to all or any of said property,-arising from, caused by, or. connected with * * * any peril, danger, or accident of, or incident to, navigation or transportation, * * * any fire, * * * explosion, * * * wet, combustion, heating, * * * nor shall there be any liability * * * for any loss or damage herein mentioned, unless tiie same affirmatively, and without presumption, be proved to have been caused by the negligence of the person, party, or vessel sought to be made liable;” and, further: “Whenever any liability for loss of or damage to all or any of said property shall arise, that person, or party, or vessel then engaged in the actual carriage, or having custody, of the property, shall be deemed the carrier, and be solely liable for such loss or damage, and the person or party liable, or who might sustain loss in consequence of owning * * * such vessel, shall have any insurance, however eifected, on, as to, or covering the property lost or damaged, and all benefit and advantage to be derived therefrom.”</p>

<p>1. Account Stated — “E. & O. E. ” — Acceptance oe Note eor Balance.</p> <p>Tinder a charter party requiring payment in cash of the amount due the vessel, the charterer presented to the master, as he was about to sail, an account witli the ship, having on it “E. & O. E.,” and gave him a note for the balance appearing thereon. Held, That acceptance of the note by the master did not preclude correction of the account for mistake.</p> <p>2. Shipping — Chaster Party — Charterer’s Commissions.</p> <p>A charterer, who is agent for the ship at the port of loading, and obtains for her a full cargo, is entitled to commissions for loading stipulated in the charter party, although he was unable to make all the advances to the master agreed upon.</p> <p>3. Same — Expenses op Loading.</p> <p>A prolusion of a charter party that the vessel shall pay “for loading, compressing cotton, and insurance at iiressés,” includes compressing elsewhere than at the port of loading, of which the ship receives the whole' benefit, and for which the charterer has made allowance in the freights paid by shippers at rates less then that fixed by the charter party.</p>

<p>Appeal from the Circuit Court of the United States for tbe Eastern District of Michigan.</p> <p>In Admiralty. Libel by Emery J. Vance and others against tbe propeller S. S. Wilhelm for loss of a tow. Tbe district court dismissed tbe libel, (47 Fed. 89,) and, on appeal by libelants, its decree was affirmed by the circuit court. 52 Fed. 602. Libelants again appeal.</p>

<p>In Admiralty. Libel for freight collected and for breach of charter. Decree for libelant.</p>

<p>1. Admiralty Jurisdicttox — Salvauf,—Cobalvorb.</p> <p>Admiralty has jurisdiction of a suit by a salvor against his cosalvor to recover a share in the salvage money, the whole having been received hv the latter under a decree enforcing a salvage contract, and the libelant having failed to intervene in that suit, so that the value of his services and the compensation therefor remain undetermined.</p> <p>2. Salvaok Suits — Dklay rsr Prkskxtiko Claims.</p> <p>Promptness should he required in presenting salvage claims, and a delay of nearly a year in suing a cosalvor for a share in the salvage money received by him will be considered in determining the amount of the award.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>In Admiralty. Libel by Leo Baumgartner against the steamer W. B. Cole for supplies. ' F. J. O’Connell and C. M. Pate intervened as claimants under mortgages held by each, as to which the district court adjudged the lien of Pate’s mortgage superior to that of O’Connell, and this decree, on appeal by O’Connell, was affirmed by the circuit court. 4!) Fed. 587. O’Connell again appeals.</p> <p>Statement by TAFT, Circuit Judge:</p> <p>This case was begun by a libel filed by Boo Baumgartner against (he steamer W. B. Cole in admiralty in the district court lor the southern dis-1rJet of Ohio. Baumgartner was the owner of a supply claim against the steamer, and libeled her for its satisfaction. The steamer was ordered sold by the decree of the district court, and the fund brought into court for distribution between Baumgartner and other inteiwoniiig claimants. The question presented in this appeal was one of priority between two mortgage claimants, — Pate, the appellee, and O’Connell, the appellant. The fund remaining in the court after the payment of prior claims was not sufficient, to satisfy both mortgages. The facts were as follows: O. M. Pate and P. B. Bradley were, in the year 1889, joint and equal owners of the steamer W. B. Cole, engaged In navigation on the Ohio river, in May of that year, Pate sold his half interest in the boat to John Kshman, Jr., for $1,500, of which $500 was paid in cash, and the remainder in two notes of Estiman for $500 each, secured by a mortgage on the cmo-half interest in the boat sold. Bradley, the other owner of the boat, witnessed the mortgage, and went with Pate to the office of the collector of the port at Cincinnati, where Pate left the mortgage for record on the day of its execution. The clerk of the collector, who received the mortgage, did not indorse upon it the date of its receipt, and the mortgage was mislaid, and not recorded during the term of the then collector. The succeeding collector found the mortgage some time after 8<r>-tembor, 1889, but for reasons not appearing in the record, it was not recorded unfit March 6, 1890. In January, 1890, Pate made inquiry at the office of the collector, and was told that it. had not been recorded. The mortgage was not; indexed in accordance with die statute before March 30, 1890. Eshmau sold Ms half of the boat to Bradley, and Bradley paid Pate 8200 on the $1,000 duo under the Eshman mortgage. January 17, 1890, Bradley sold the entire interest in the boat to the Moscow & Cincinnati Towboat Company for $3,000, the sale being evidenced by a bill of sale properly executed and recorded upon the same day. The towboat company, by the bill of sale dated March 7, and recorded March 8, 1890, sold the boat to W. 11. Wright for $3,000. At the same time, Wriglit executed and delivered to Bradley a note for 30 days for $1.300, secured by mortgage on the boat. This mortgage was left for record March 8, 1890, and was duly recorded In the collector’s office. - On March 28. 1890, Bradley sold and assigned the note and mortgage for value to F. J. O'Connell, the appellant. O'Connell made no inquiry at the collector’s office to find out whether there was any prior recorded mortgage upon the boat.</p>

In Admiralty.. Libel by the Pennsylvania Railroad Company •against the Central Railroad Company of New Jersey to recover damages for collision of a scow with a bridge abutment. Decree for libelant.

In Admiralty. Libel by tbe Pennsylvania Railroad Company against the Central Railroad Company of Yew Jersey to recover damages for the collision of a scow with a bridge abutment. Decree for libelaut. Respondent appeals. 59 Fed. 190, affirmed.

In Admiralty. Libel by Elias Burr, master of the schooner Percy Birdsall, on behalf of her owners, against the ship Invertrossachs, for damage to the schooner by collision with the ship in tow of the steam tug James McCaulley. On petition of the claimant of the ship the tug was made a codefendant.

In Admiralty. On exceptions to commissioner’s report. A loaded schooner in tow was brought in collision with another tow, without any fault of her own, and, upon suit brought, both the tugs were held liable for the damage caused. On a reference to ascertain the amount of libelant’s damages, it appeared that the master of the schooner on the same day, Saturday, put his vessel en a dock to prevent injury to the cargo from the leaks.

<p>In Admiralty. Libel by Albert Poppe and others against Anson A. Bigelow to recover damages for a collision. Decree for libelants.</p>

<p>1. Maritime Liens — State Statutes — Authority of Master and Part Owners in Home Port.</p> <p>Whore a state statute gives a lien on a vessel for repairs and supplies furnished in her home port, the same presumptions in favor of the master’s authority to contract therefor on her credit ¡irise as exist under the maritime law where repairs and supplies are furnished in a foreign port; and the same rule obtains as to the authority of part owners.</p> <p>2. Same — Notice—Pendency of Possessory Suit.</p> <p>The right to a lien given by a state statute to persons furnishing supplies or labor for repairs to a vessel, under contracts with her master and part owner, is not affected by the filing of a bill by other part owners for possession, after the contracts were made.</p> <p>3. Same.</p> <p>The filing of a libel by part owners of a vessel for possession, or to restrain her leaving port until security is given for her return, which alleges her need of repairs, and a belief that, if she proceeds on her voy-i age, she may be condemned as unseaworthy, and excessive charges for repairs be imposed on libelants, is not notice that her master has no authority to contract on her credit for reasonable repairs and supplies in' her homo port, and does not prevent the acquirement of a lien therefor under a state statute. Code Civil Proc. Cal. § 813.</p> <p>4. Admiralty — Distribution of Proceeds of Vessel.</p> <p>Where there are funds in the registry from the sale of a vessel in a possessory suit, the court has power to pay therefrom claims for repairs anti supplies furnished to the vessel.</p>

In Equity. Suit commenced in a state court by P. Schwenk & Co. against A. L. Strang, A. L. Strang & Co., the Norfolk Waterworks Company, J. H. Millard, the Omaha National Bank, the Shickle, Harrison & Howard Iron Company, and O. Gr. Miller. The cause was removed to the United States circuit court on the ground of local prejudice, and the complaint was afterwards dismissed. Complainant appeals.

In Equity. Bill by John P. Fuller, James H. Fuller, and Simeon Fuller against Theodore G-. Montague and others to establish an interest in lands, and for partition. Held: in severalty, parcels of the various lands of which partition is sought. One of the defendants demurred to the bill for want of equity and on the ground of the laches of complainants. The other defendants united in a motion to dismiss the bill 6n the same and other grounds.

<p>Equity Jurisdiction — Remedy at Law.</p> <p>Where life insurance is transferred from one company to another by a contract which provides for the payment of a balance out of the income flom the quarterly dues, this charges the payment upon such income, and the enforcement of the charge is a matter of equity jurisdiction.</p>

<p>1. Equity Jueisdiction — Bank Deposits.</p> <p>Plaintiffs, being successful bidders for an issue of city bonds, deposited a sum of money in a bank, and took a certificate of deposit, payable to the city officials. The money was to be returned on the completion of the purchase, and to be forfeited in case plaintiffs failed to complete it. Plaintiffs, however, discovered that the bonds wore invalid, and sued the city and the bank to obtain a return of the certificate, and a decree entitling them to the money. Held, that the suit was cognizable in equity.</p> <p>2. Municipal Coefoeations — Powebs—Bonds.</p> <p>Power to issue bonds to replace in the treasury money already used in paying prior bonds is not conferred by a grant of authority to issue “refunding bonds” or original bonds to procure money for use in the “legitimate exercise of the corporate powers,” and for the payment of legitimate corporate debts.</p> <p>S. Same.</p> <p>Where a number of bonds, purporting to be “refunding bonds,” are issued as one series, but part of them are not in fact refunding bonds, and are illegal, their illegality attaches to the whole issue; and one who bids for them as refunding bonds cannot be compelled to take even the amount that might have been legally issued.</p> <p>4. Contract — Construction—Bid for “Refunding Bonds.”</p> <p>One who, pursuant to an advertisement of sale, malees a bid for municipal “refunding bonds,” cannot be required to take part of the amount in other bonds, though equally valuable.</p>

<p>In Equity. Suit by Philippe Chavent against Carl Schefer and others, trustees, to reach unpaid subscriptions to the stock of a corporation. Heard on a plea in bar.</p>

<p>Banks — Insolvency—Deposits Fbaudui.ently Receive».</p> <p>Where money and checks are unsuspectingly deposited in a bank, which is known by its managing officer to bo hopelessly insolvent, a few minutes before closing hour on the last day on which it does business, and the checks are subsequently collected by the bank’s clerk, the whole of the deposit is charged with a trust, and an equal amount may be recovered from the receiver, who retains the specific money among the general mass of the bank’s funds.</p>

<p>1. Railroad Companies — Accidents at Crossings — Contributory Negligence.</p> <p>It is a question for the jury whether it is contributory negligence for a person driving a gentle horse to follow other vehicles across a trade behind a standing train, which obstructs all but about 14 feet of the crossing, when invited to do so by the company’s flagman.</p> <p>2. Same — Assumption of Risk.</p> <p>The doctrine of voluntary assumption of risks does not apply to the case ol one who exorcises ordinary care in attempting to pass by the rear of a standing train, which wrongfully obstructs most of the street.</p> <p>3. Same — Street Crossings — Right to Obstruct.</p> <p>The mere grant of a license to lay a railroad track across a public street gives no authority to stand cars thereon, so as to obstruct the crossing, for such periods as may suit the company’s convenience; and whether it had a right to do so, in any particular instance, is a question for the jury, if the circumstances are such that reasonable persons might., entertain different views as to whether the blockade was justifiable.</p> <p>4. Negligence — Proximate Cause — Shying oe Horse.</p> <p>Where the shying of a horse brings a vehicle into collision with the rear end of a train which wrongfully obstructs most of the street crossing, such shying cannot be regarded as the sole, proximate cause, and the jury is justified in finding that the obstruction directly contributed to the accident.</p>

<p>In Equity. Suit for infringement of letters patent Ho. 364,996, issued June 14, 1887, to Edward B. Entwisle, for an improvement in railway chairs.</p>

At Law. Action of trespass to try title brought by Millie V. Blair and others against F. M. Adams and others. Heard on demurrer to an intervening petition.

At Law. Action by James Marshall and the Bullion & Exchange Bank against A. Otto and M. Healey for claim and delivery of personal property and for damages. Judgment for plaintiffs.

At Law. Action by the Bullion & Exchange Bank against A. Otto and M. Healey to recover. possession of real estate and the rents and profits thereof. Judgment for plaintiff.

<p>1. Insurance — Demand for Appraisal.</p> <p>A joint demand for a joint appraisal by twelve insurance companies is not within the terms of the policy of one of the companies, providing for an appraisal hy two persons, one to he selected by the company, and the other hy the insured, who, in case of disagreement, were to call in a; third. Such policy stipulates for a separate appraisal. “</p> <p>2. Same — Proofs of Loss — Waiver.</p> <p>. A policy of fire insurance provided that a loss should' he paid 60 days after notice and proofs; that the amount should he appraised in a certain! manner, and the appraisers’ report should he made part of the proofs ofi loss; and until such proofs should he produced and appraisals permitted the loss should not he payable. Proofs of loss were furnished hy the insured, to which the insurer objected because of the amount claimed. After negotiations between the parties concerning the manner of appraisal, the insurer promised to submit a form of appraisal, which it failed to do, hut retained the proofs for over 60 days. Held, that the insurer could not afterwards object to the sufficiency of the proofs. Severens, District Judge, dissenting. 46 Fed. 42, affirmed.'</p> <p>3. Same — Appraisal.</p> <p>When it is stipulated in a fire insurance policy that, in case the amount of loss shall not be agreed upon by the parties, it shall he determined by appraisers chosen by them, and that their appraisal shall form a part of the proofs of loss, until the production of which the loss shall not be payable, it is the duty of the insured, in case of disagreement, and the stipulation is not waived hy the insurer, to obtain such an appraisal, and no right of action arises until he has obtained it, or made reasonable effort to do so and failed. Per Severens, District Judge.</p> <p>4 Same — Sale Pending Appraisal.</p> <p>- If, in such a case as is last supposed, the policy gives the insurer the right within 60 days after the reception of such proofs of loss to take the damaged property at the appraisal value, the insured has no right, while negotiations for an appraisal are pending, and while only 33 days from the transmission of the original proofs of loss have elapsed, to sell in parcels and dispose of the damaged property; and if he does so he cannot maintain his action on the- policy. Per Severens, District Judge.</p>

<p>Post Oeptoe — Nomait.able Mattes, — Lotteries.</p> <p>Government bonds, issued under a scheme in which the time of redemption and certain premiums or prizes to be awarded to some of the holders are fixed by a drawing, are “lotteries,” and the mailing of circulars announcing the redemption of certain bonds, and the date of the next drawing, is prohibited by Rev. St. § 3i?94. Horner v. U. S., 13 Sup. Ct. 409, 147 U. S. 449, followed.</p>

At Law. Indictment of John H. Patterson and others for conspiracy to monopolize interstate commerce in cash registers, in violation of the act of July 2, 1890.

<p>Trade-Mark — Infringement.</p> <p>Tbe use of tbe word “Home” in connection with a make of sewing machine for over 25 years entitles tbe manufacturer to protection against one wbo puts tbe words “Home Delight" in a similar way on machines offered for sale by him.</p>

<p>In Equity. Suit by Harriot H. Wales against the Waterbury Manufacturing Company for infringement of patent. Decree for complainant.</p>

<p>In Equity. Suit by the Carl L. Jensen Company against John Clay for infringement of a patent.</p>

<p>In Equity. Suit by the Bundy Manufacturing Company against the Columbian Time-ltecorder Company for infringement of a patent.</p>

<p>Patents — Suits rob Infringement — Conflicting Patents.</p> <p>The owner of the junior of two conflicting patents is not obliged to obtain a cancellation of the senior patent by suit, under Rev. St. | 4918. before suing the senior patentee for infringement, since the question of infringement depends on priority of invention, and the remedy given by said section is merely cumulative. Roll-Paper Oo. v. Knopp, 44 Fed. 609, disapproved.</p>

<p>1. Maritime Liens — Person Acting as Master — Wages.</p> <p>One to whom the navigation, discipline, and control of a vessel is Intrusted must be considered as master, although another is registered as such; and if it does not appear that he contracted on the credit of the vessel, he Is not entitled to a lien for his wages.</p> <p>2. Same — Services in Home Port — Laying lt Vessel.</p> <p>One who brings a vessel into her home port, and lays her up there, — i. e. anchors her out of the channel, pumps her out, dries her sails, sees to hor fastenings, and renders other services usually performed by mariners, — is entitled to a lien for his compensation.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>In Admiralty. Libel by Amos Birdsall and others, owners of the schooner Emilie E. Birdsall, against the steamship Colorado, for collision. Libel dismissed. Libelants appeal.</p>

In Admiralty. Libel by Dominico Gavagnin, master of the bark Giovanni, against the city of Philadelphia, to recover for'a collision alleged to have heen caused by the negligence of the latter’s tug. Decree for libelant.

<p>1. Federal Courts — Local and Federal Questions — Judgments.</p> <p>The dismissal by the supreme court of an appeal from a state supreme court on the ground that a local question decided was broad enough to dispose of the case, independent of any federal question, is conclusive in a subsequent suit in a federal court involving the same facts and questions, and the alleged federal question will not be considered.</p> <p>2. Same — Jurisdiction—Feigned Citizenship.</p> <p>A suit will be dismissed when it appears that one of the parties, in order to enable; him to invoke federal jurisdiction, has merely rented a room in an adjoining state, and sleeps there nights, without changing the place of his business or of taking his meals.</p> <p>3. Deeds — Kecitals—Evidentiary Effect.</p> <p>The; recital in a deed that it. is made in consideration of a certain sum, “and pursuant to the conditions of a certain bond,” warrants the conclusion that the; bemel mentioned was a, title bond of the land.</p> <p>4. Adverse Possession.</p> <p>Occupation of a house and premises actually included in a tract, under color of title; to the; tract, is. in legal contemplation, possession of the tract, notwithstanding that a subsequent survey may throw the house outside its bemnelartes.</p> <p>5. Public Lands — Effect of Location — Execution Sale.</p> <p>An incipient legation of land under a New Madrid certificate, though It gave the; locator no title as against the government, yet gave him an equitable interest, which he could se;ll to another by a title bond, good as between themselves, and which cernid be sold on execution against the obligees- and, on the subsequent issminee of a patent to the original locator, it would inure to the benefit of the person claiming under the sheriff’s deed.</p>

<p>Garnishment — Persons Subject to — Courts.</p> <p>The defendants in a suit in which full jurisdiction has been .acquired are not amenable to garnishee process by which another court attempts to reach the subject, of the action, in a suit against the plaintiff.</p>

<p>Removal — Allegations as to Citizenship — Amendment.</p> <p>A record not showing whether the defendant, entitled by a company name, is a natural or artificial person, and a petition- stating that defendánt is a citizen of another state, without averring incorporation in that state, do not affirmatively show a right to removal because of such citizenship, and the defect cannot be supplied by amendment.</p>

In Equity. Suit by John Streight, as a creditor and stockholder of the Junk Bros. Lumber & Manufacturing Company, to enforce claims of the corporation against S. O. Junk, its managing officer, arising from his unauthorized acts. Demurrers to (lie hill were sustained below, and it was then dismissed. Complainant appeals.

<p>In Equity. Suit by the Press Publishing Company to restrain Benjamin J. Ealk and another from prosecuting an action at law for infringement of a copyright for a photograph, and other relief.</p>

In Equity. Petition by the city of Dayton, Ohio, intervening-in a suit by the Manhattan Trust Company against the Dayton Natural Gas Company. Heard on demurrer to the answers of complainant and the receiver of the gas company to the intervening-petition. The demurrers were sustained, and the receiver was enjoined from charging more for gas than the rates fixed by ordinance. 55 Fed. p. 381. The trust company and the receiver appeal.

<p>In Equity. Bill by the Michigan Central Railroad Company against Henry Iluehn, Thomas W. Kinser, and William J. Kinser. Heard on motion for preliminary injunction.</p>

At Law. Action by the Nevada Bank of San Francisco against the Portland National Bank and George W. Hazen to recover damages for false representations. On demurrers to the complaint.

<p>1. Banks — Receivers—Authority to Appoint — State Statutes.</p> <p>The California statute authorizing the attorney general, on the recommendation of the bank commissioners, to institute suit to enjoin any bank guilty of violating the banking laws from doing further business, and. if it is found insolvent, to cause its business to be wound up under the direction of such commissioners, (Stat. 1877-78, p. 740, as amended hy Slat. 1887, p. 90,) does not, authorize the court to appoint a receiver for the hank; and a receiver thus appointed without authority cannot maintain a suit to collect claims of the hank.</p> <p>2. Same.</p> <p>A statute providing that upon the “dissolution of any corporation” a receiver may be appointed on the application of creditors or stockholders, (Code Civil Proc. Cal. § 565,) does not apply to the case of an insolvent hank which the state is proceeding against for violating its charter.</p>

At Law. Action by Oliver T. Morton against the United States to recover fees as clerk of the circuit court of appeals for the seventh circuit. Heard on demurrer to the petition.

<p>This is an appeal from a decision of the circuit court for the southern district of New York, (54 Fed. 671,) reversing a decision of the board of generalappraisers which affirmed the collector’s classification for duty of certain fluid malt extract. The merchandise is Johann Hoff’s Malt Extract, imported in bottles.</p> <p>During the year 1891 the Eisner & Mendelsohn Company imported from a foreign country into the United States at the port of New York certain merchandise, consisting of a fluid, in colored, molded glass bottles, holding each not more than one pint, and not less than one quarter of a pint, andlabeled “Johann Hoff’s Malt Extract.” This merchandise was classified for duty at the rate of 40 cents per gallon, as “malt extract, fluid, in bottles,” under the provision for such malt extract contained in paragraph 338, Schedule II, of the tariff act of October 1, 1890, (26 Stat. 590,) and duty at the rate of 40 cents per gallon was exacted of the importer on the contents of the bottles by the collector of customs at that port; and on the bottles duty was also exacted by the collector of the importer at the rate of 1|- cents per pound, under the provisions of paragraph 103, Schedule B, of the same tariff act, (26 Stat. 571.) Against the aforesaid classification of this merchandise, and against the exaction on the contents of the bottles of a duty at the rate of 40 cents per gallon, and against the exaction of duty on the bottles at the rate of l-£ cents per pound, the importer protested, claiming that his merchandise was dutiable at the rate of 25 per centum ad valorem, in accordance with the rulings of the treasury department contained in section 2867, June 19, 1876, and section 4834, April 19, 1881, and the provision for “medicinal proprietary preparations” contained in paragraph 75, Schedule A, of the same tariff act, (26 Stat. 570.)</p> <p>The board of United States general appraisers, to whom the collector, in pursuance of section 14 of the customs administrative act of June 10, 1890, (26 Stat. 137,) transmitted the importer’s protests and all other things required by that section, affirmed the action of the collector. As to so much of the decision of the board of appraisers as affirmed the action of the collector as to the contents of the bottles, the importer, pursuant to section 15 of the said customs administrative act, applied to the circuit court of the United States for the southern district of New York for a review of the questions of law and fact involved therein. Upon the re (urn made by the said board of appraisers, and upon evidence subsequently taken in the said circuit court, and establishing other facts below referred to, the said circuit court reversed the decision of the said board of appraisers, and held that the contents of the bottles were dutiable at the rate of 25 per centum ad valorem, as a medicinal proprietary preparation, as claimed by the importer in Ms protest. 54 Fed. 671. From the judgment of the said circuit court the United States appeals to the United States circuit court of appeals for the second circuit.</p>

<p>Post Office — Obscene Sealed Letters.</p> <p>The mailing of an obscene private sealed letter is not within the prohibition of Rev. St. § 3893, even as amended September 26, 1888, by inserting the' word “letter;” for all the enumerating words are limited by the concluding words “or other publication.” U. S. v. Wilson, 58 Fed. 768, followed.</p>

<p>At Law. Indictment of George Jarvis for mailing letters of an indecent character in sealed envelopes, upon the outside of which scurrilous epithets were written, in violation of the act of September 26, 1888, (1 Rupp. Eev. St. [2d. Ed.] 621.)</p>

In Equity. Suit by the Edison Electric Light Company and the Edison General Electric Company against the Waring Electric Company and others for infringement of a patent. On motion for a preliminary injunction.

<p>In Equity. Suit by William C. Krick against Edward Jansen for infringement of a patent. A demurrer to tbe bill was heretofore overruled. 52 Fed. 823. Decree for plaintiff.</p>

In Admiralty. These were cross libels to recover damages caused by the breaking of a submarine cable by the screw of the steamship City of Richmond, and for fouling of the screw thereby. In the district court the libel of the telegraph company was dismissed, and that of the steamship company sustained. 43 Fed. 85.

<p>At Law. Action by H. D. Frisbie, administrator of William Falconer, against the Chesapeake & Ohio Railway Company to recover damages for personal injuries. Heard on motion to remand to the state court.</p>

At' Law. Action by Pboebe L. Chapman against the Alabama Great Southern Railroad Company, brought in the superior court of Dade county, Ga., and removed, therefrom by defendant. Heard on motion to remand.

In Equity. Bill by the Chemical National Bank of the city of New York against David Armstrong, receiver of the Fidelity National Bank of Cincinnati, Ohio, to establish a claim against that bank. Decree for complainant. 50 Fed. 798. Both parties Ef peal.

In Equity. Petition of intervention by the St. Louis Southwestern Railway Company in Texas in the consolidated foreclosure suits brought by the Central Trust Company of New York against, the St. Louis, Arkansas & Texas Railway Company in Texas. Decree for injunction.

In Equity. Suit by Charles H. Gross against the George W. Scott Manufacturing Company and the De Soto Land & Phosphate Company to rescind a sale of lands. A demurrer to the bill was heretofore overruled. 48 Fed. 35. The cause is now heard on the pleadings and evidence.

In Equity. Petition by James' E. Garst, intervening in a suit by William P. Clyde and others against the Richmond & Danville Railroad Company, and claiming damages for personal injuries against the receivers of said railroad appointed in said snit. Heard on exceptions to master’s report. Judgment for intervener.

These are six suits, of which two are brought against each of the three defendants; one being at law, and the other in equity. Heard on demurrers to the bills and complaints.

In Equity. Suit by Harlan P. Benton against Julius A. Ward and others for rescission of a contract for sale of certain shares of capita] stock in the Hawkeye Metal Company. A demurrer to the hill was heretofore overruled. 47 Fed. 253. The cause is now on final heating.

<p>In Equity. Bill to cancel and rescind a release. Heard on a plea in bar.</p>

<p>1. Parent and Child — Loss or Service — Parent’s Right or Action tor injuries.</p> <p>Tlie right of action of a father for an injury to his miuor child is based on the parental relation, not that of master and servant, and he is entitled to be indemnified for his expenses in the care and cure of the child, and for loss of services past and prospective.</p> <p>2. Same — Damage—Province oe Jury.</p> <p>Whether a girl who was injured at five years of age, and had not recovered at ihe time of the trial, — over a year later, — could render any service, past or prospective, of pecuniary value to her father is a question of fact which the jury may determine upon consideration of the injury, the continued disability, and the age and sex of the child, without other evidence as to ability to render services.</p>

<p>At Law. Action by J. S. Finley against tbe Richmond & Danville Railroad Company to recover damages for personal injuries.</p>

At La,w. Action to recover damages resulting to plaintiff from personal injuries caused to wife of plaintiff. Motion for new trial.

At "Law. Action by J. M. McSloop against the Eiclimond & Dan-ville Eailroad Company to recover damages for injuries sustained by the alleged negligence of the company.

<p>At Law. Action by Michael Gahan against the Western Union Telegraph Company to recover damages for failure to deliver a telegram. Verdict directed for defendant.</p> <p>Statement by WILLIAMS, District Judge:</p> <p>Plaintiff’s brother Thomas Gahan, on January 14, 1891, filed at Chicago, 111., for transmission to plaintiff, at South St. Paul, Minn., paying the tolls thereon, the following message:</p> <p>“Chicago, January 14, 1891.</p> <p>“To Michael Gahan, South St. Paul: Tour brother Wm. Gahau is dead. Come at once. Will he buried Friday.</p> <p>[Signed] “Thomas Gahan.”</p> <p>The message was transmitted to St. Paul, and there lost, in some way not explained, and not forwarded to its destination, and plaintiff was therefore not apprised of the death of his brother until some days after his burial. Plaintiff brings this action to recover damages for mental anguish suffered on account of the negligent failure to deliver the message. The action is éx contractu, the complaint alleging that Thomas Gahan, who sent the message and paid the tolls, — 40 cents, — did so as the agent of plaintiff. Defendant objected to the introduction of evidence as to mental anguish, and, at the close of the case, moved for an instruction to the jury to return a verdict for defendant.</p>

At Law. Action brought by John E. Brown against the Cranberry Iron & Coal Company, under the direction of the court of equity, to establish his title, as tenant in comomn, to the land of which he prayed for partition; the defendant, in its answer, having asserted “sole seisin.” 40 Fed. 849.

<p>At Law. Action by A. J. Van Duzee against the United States to recover for services rendered as clerk of court. Judgment for plaintiff.</p>

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

<p>Appeal from Board of General Appraisers’ Decision.</p>

<p>Customs Duties — Glassieicatioít—Pur Waste, Etc.</p> <p>Articles of merchandise imported in the years 1889 and 1890, and known to trade and commerce, respectively, as “fur Waste,” “hares’ combings,” “hares’ waste,” “hares’ dags,” and “coneys’ dags,” were no-t dutiable at the rate of 20 per cent, ad valorem, under the provision for “hatters' fur, not on the skin,” contained in paragraph 450 (Tariff Ind., New) of Schedule N of the tariff act of March 3, 1883, (22 Stat. 513,) but were dutiable at the rate of 10 per cent, ad valorem, under the provision for “waste, all not specially enumerated or provided for in this act,” contained in paragraph 493 (Tariff Ind., New) of the aforesaid Schedule N, (22 Stat. 514.)</p>

<p>Customs Duties — Classification—Gloria ‘Cloth.</p> <p>Gloria cloth is dutiable at 12 cents per square yard and 50 per ce'nt. ad valorem, as “women’s and children’s dress goods,” or “goods of similar description and character, composed wholly or in part of wool, worsted,” etc., under paragraph 395 of the tariff act of 1890, and not at 50 per cent, ad valorem, as a “manufacture of silk, or of which silk is the component material of chief value,” under paragraph 414. 54 Fed. 158, affirmed. Hartranft v. Meyer, 10 Sup. Ct. 751, 135 U. S. 237, distinguished.</p>

Application by Warren S. Shattuck and Gustav Binger for review of a decision of the board of general appraisers affirming the action of the collector of the port of New York in the classification of certain merchandise imported by them. The circuit court reversed the board’s decision. 54 Fed. 365. The United States appeal.

Application by the Standard Varnish Works for review of a decision of the board of general appraisers affirming the classification by the collector of the port of New York of certain merchandise imported by them. The circuit court affirmed the decision of the board of general appraisers. 53 Fed. 78G. The importers appeal.

<p>A t Law. Indictment against Paul Conrad and others ior violation of Bev. St. § 3894, as amended by the act of September 19, 1890. Heard on demurrer to indictment.</p>

<p>, In Equity. Suit by William Mack against Levy, Dreyfus & Co. for infringement of a patent. Decree for complainant.</p>

<p>Patents — Limitation of Claim — Mince-Pie Compounds.</p> <p>The Allen patent, No. 268,972, for a dry mince-pie compound, composed essentially of cooked meat, dried fruit, sugar, and spices, “compounded dry,” if not void for want of invention, is restricted to a compound in the preparation of which no free liquid is used,' and does not cover a compound in which 140 pounds of boiled cider has been added to each 1,000 or 1,200 pounds of the dry ingredients.</p>

<p>In Admiralty. Libel by Frank M. Hodgkins, master of the bark Ethel, against S. & J. Weish, to recover a balance of freight, which respondents assume to withhold because of shortage of cargo.</p>

<p>In Admiralty. Libel by Frank M. Hodgkins, master of the bark Ethel, against S. & J. Welsh, to recover a balance of freight. The libel was heretofore sustained, (59 Fed. 473,) and the cause is now heard on motion for allowance of costs.</p>

<p>1. Interest — Affirmance of Decree.</p> <p>When a decree for-libelant, which included Interest, is affirmed, he, when appellee, is entitled to interest on the whole decree, unless special circumstances induce the court to disallow it. Deems v. Canal Line, 14 Blatchf. 474, disapproved. The Blenheim, 18 Fed. 47, followed.</p> <p>4. Admiralty — Appeal—Costs.</p> <p>On a libel against one vessel for damages to the cargo of another by collision and a decree against her, if the decree is reversed on appeal by claimant on the ground that both vessels were in fault, appellant is entitled to costs.</p>

<p>Interest — Affirmance of Decree.</p> <p>. A party who appeals from a decree in ‘his favor in a collision case is not entitled to interest on the original recovery pending the appeal.</p>

In Admiralty. Libel of forfeiture against the steamship Haytian Republic (the Northwest Loan & Trust Company, claimant) for violation of the revenue laws. Exceptions to the libel were sustained. 57 Fed. 508. The United States appeal.

In Admiralty. Libel by William McDonald against the steamship France, (the National Steamship Company, Limited, claimant,) to recover damages for personal injuries. Decree for libelant. 5?, Fed. 843. Claimant appeals.

<p>In Admiralty. Libel for salvage.- Decree for libelant.</p>

In Admiralty. Libel by John A. Miller and others against the steamer Cayuga (the Lehigh Valley Transportation Company, claimants) for collision. Decree for libelants. Claimants appeal. Statement by SEVEREMS, District Judge: On the 28th day of April, 1890, the propeller D. M. Wilson, with her consort.

<p>1. Cow/rsroN- — Damages—Loss op Cargo.</p> <p>For a total loss ol' cargo, its value at the place of shipment, or its cost, including expenses, charges, insurance, and interest, should be allowed.</p> <p>3. Same — Damage to Cargo.</p> <p>If a cargo Is recovered from a sunken vessel, the difference between the market value of the goods if uninjured and their value in their damaged condition should be allowed. That the owners obtained a rebate of duty-on the goods because of their damaged condition is immaterial.</p> <p>3. Admiralty — Appeal—Costs.</p> <p>On a libel against one vessel for damages to the cargo of another by collision and a decree against her, if the decree is reversed on appeal by claimant therefrom, on the ground that both vessels were in fault, appellant is entitled to costs.</p> <p>4. Same.</p> <p>Libelants in such case are entitled to a decree against the owner of the vessel sunk, to the same extent as though they had appealed, hut without costs of the appellate court.</p>

In Admiralty. Libel by Enos C. Soule and others against the tsteamship Aller and the steam tug America for collision. Decree against tlie Aller, and dismissing tlie libel as to the America.

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>In Admiralty. Libel by John Donaldson and others against the steamer Kate Butteroni, Charles E. Norton and others, claimants, for collision. There was a decree below for divided damages. Claimants appeal.</p>

<p>1. Removal — 1Time of Filins Petition in Federal Court.</p> <p>It is sufficient excuse for not filing the petition in tlie federal court on the day regularly set for the beginning of the first term after the petition and bond were filed in the state court, being November 5th, that defendant’s attorney inquired of the clerk when the term would begin, and was told that the first day would be December 5th; it appearing that, owing to the absence of the judge, no court was held until that date.</p> <p>2. Same — Separable Controversy.</p> <p>Where a part of the relief asked is that certain promissory notes, not yet due, which are alleged to have been given by certain of the defendants in consideration of an alleged fraudulent conveyance, and transferred by the payee to the other defendants as collateral security for alleged indebtedness, be surrendered up by the latter, and returned to the makers, such makers have no separable controversy from the holders of the note's; nor has one holder a separable controversy from the other holders, all being jointly interested in the notes as collateral security.</p>

Motions by appellee for reargument, or for certification of certain-questions to the supreme court of the United States for instructions, and by appellant for reargument. Held: as matter of law, that the cause of the collision was the wrongful speed of the Umbria, and that the fact that the Iberia had not, previous to the Umbria’s coming in sight, stopped, was not contributory to a collision. Sixth.

<p>Appeal — Proceeding Below after Affirmance — Suspension of Injunction.</p> <p>The affirmance, in a circuit court of appeals, of a preliminary order or interlocutory decree granting an injunction, does not deprive the circuit court of its inherent power temporarily to suspend such injunction.</p>

<p>At Law. Action by Paul R. G. Horst and others against R. J. Merldey and others.</p>

<p>•I. Trusts — Agreement Absolute nsr Teems — Evidence.</p> <p>By a contract between parties in confidential relations, similar to, If not technically, those of attorney and client, one of them, interested In certain litigations, agreed, in consideration a£ services rendered therein by the other, to pay him a certain- sum, which was made a lien on the promisor’s interest in the litigation. His interest therein did not exceed the sum named, and the services mentioned were apparently compensated by previous payments and a monthly salary. That the promisor bad an interest in the contract was indicated by the subsequent relations of the parties and statements by the other party, who also admitted, after the promisor’s death, that he, if alive, would have testified to a trust In his own favor; and there was evidence that he believed in-the existence of such a trust. Sdd, that this established a trust as to the balance after payment of the value of the services rendered.</p> <p>& Same — Fraud as to Third Parties — Equity. ■</p> <p>In view of the relations between the parties, equitable relief should not be refused in such case because the contract was given to prevent third parties from reaching the fund by means of inequitable contracts previously given to them, for which inadequate consideration had been rendered.</p> <p>3. Res Judicata.</p> <p>A decree of a state court is not a bar to a suit in a federal court on a question which, although it might possibly have been litigated in the state court if properly pleaded, was In fact neither pleaded nor litigated.</p>

In Equity. Bill by Frederick W. Bound against the South Carolina Railway Company and others for a receiver, foreclosure, etc. See 43 Fed. 404 ; 46 Fed. 315; 47 Fed. 30; 50 Fed. 312 , 853 ; 51 Fed. 58; 55 Fed. 186; 58 Fed. 473. Heard on application for the payment of counsel fees.

In Equity. Railroad foreclosure suit. On petition of certain employes complaining of a reduction of wages by tbe receiver, and asking relief in respect thereto.

In Equity. Bill by the Central Trust Company of New York against the East Tennessee, Virginia & Georgia Railway Company. Heard on a rule for attachment for contempt in violating an injunction.

<p>Release and Discharge — Bar to Action at Law — Evidence on Mistake.</p> <p>In an action at law in a federal court evidence Is not admissible to sliow that a release, which, on its face, constitutes a complete bar to the action, was given under a mistake of fact, such as, in equity, would require its rescission or cancellation.</p>

At Law. Action by Theodore F. Hallam against the Post Publishing Company for libel. Verdict for plaintiff. Motion for new trial denied, (55 Fed. 456,) and judgment for plaintiff entered on verdict. Defendant brings error. Statement by TAFT, Circuit Judge; This was a writ of error to reverse the judgment of the circuit court in favor of Theodore F. Plallam against the Post Publishing Company for $2,-500 for libel.

<p>1. Deed — Description—Sufficiency.</p> <p>Under the rule that that is certain which can be made certain, a description bounding a grant by the northern line of a prior grant is sufficiently definite, if referred to under circumstances making it a controlling call, although said northern line lias never been marked upon the ground.</p> <p>2. Same — Construction and Effect.</p> <p>Where a line is described as running south to the “northwest corner of Burton; thence westerly along the northern line of AVaterville,” — both parties assuming that the. northeast corner of Waterville is at the northwest corner of Burton, — but it afterwards turns out that the Water-ville corner and north line are a substantial distance further south, the grant only goes to the Burton corner, and the southern boundary must be run westerly therefrom, and parallel with the north line of Waterville, thus excluding the intervening territory. Land Go. v. Saunders, 103 U. S. 310, distinguished.</p> <p>3. Same — Becord—Additions to.</p> <p>The addition, to the record or copy of a deed, of a map or plan which was not on the original, for the purpose of making the claim of the grantee more specific, but without any fraudulent intent, or purpose to make it appear as part of the original deed, does not render the grant inoperative.</p> <p>4. Same — Construction.</p> <p>' A quitclaim by the state to “the said A. and others claiming under T.” carries the entire title to A., when it does not appear that any “others’' were then claiming title to the lands, or afterwards accepted the grant.</p> <p>5. Writ of Entry — Defenses—Forfeiture.</p> <p>A forfeiture accruing to the state as against its grantee may be waived, and is not available to one not claiming intervening rights.</p> <p>6. Public Lands — -State Grants.</p> <p>If one of a number of grantees of the state reject the grant, but the others accept It, and pay the consideration for the whole tract, including his share, they take title to the whole. Gorbett v. Norcross, 35 N. H. 99.</p> <p>7. Same — Ejectment—Estoppel.</p> <p>The fact that the state’s grantees, in making their survey, by mistake; locate a lino so as to exclude part of the grant, does not prevent them from afterwards claiming- to the true line.</p> <p>8. Writ of Entry — Evidence—Deeds—Copies.</p> <p>Office copies of deeds not in the chain of title of either party, and offered by defendant for the purpose of showing title in a third party, are not admissible, without proof of search for the originals. Wells v. Iron Co., 48 N. H. 491, followed.</p> <p>9. Adverse Possession — Wild Lands.</p> <p>Adverse possession under color of title, sufficient to create possessorytitle, may be established in New Hampshire-, in the case of wild lands, by showing surveys, prosecutions for trespass, depositions in perpetuam, grants, and payment of taxes.</p>

At Law. Action by W. S. O’B. Bobinson, receiver of the First National Bank of Wilmington, N. O., against M. B. Turrentine and her husband, John R. Turrentine, to recover an assessment on certain shares of bank stock held by her. Judgment for plaintiff.

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

<p>At Law. Petition for habeas corpus in behalf of Ah Tow, a Chinese passenger detained by reason of the refusal of the collector of customs to permit him to land in the United States.</p>

<p>1. Public Lands — Unlawful Inclosures.</p> <p>Tlie inclosure of public lands by a private corporation is unlawful, under the act of February 25, 1885, without regard to the intent with which it is done.</p> <p>2. Same.</p> <p>An inclosure by one owning odd sections is unlawful, even though the fence is so constructed as, to be entirely on his own lands, if the result is to inclose therewith the even sections belonging to the government.</p>

<p>At Law. Indictment of George M. McDonald and others, officers of the Guarantee Investment Company, for violation of the lottery act of September 19, 1890, (26 Stat. 465.)</p>

<p>1. Obstructing and Influencing Justice — Indictment.</p> <p>It is not sufficient to charge an endeavor to influence and obstruct justice in a federal court, by means of a threatening letter, in tbe general language of Rev. St. § 5404.</p> <p>2. Same.</p> <p>An averment that defendant procured the arrest “within this district” •of his wife, who was living separate and apart from him, for the pulpóse of procuring from her “a dissolution of the bonds of matrimony existing between them, through such arrest,” is insufficient, in that it fails to show that the arrest was under process issued out of a federal court.</p>

<p>Customs Duties — Appraisers—^Valuation.</p> <p>Under the tariff act of 1883 the appraisers were limited to determining the “market value” at the place from which the importation was made, and could not add thereto any commissions, or consider the cost of the particular goods, except as a means of determining market .value.</p>

Appeál from the Circuit Court of the United States for the Eastern District of Pennsylvania. In Equity. Bill by the Kohler Manufacturing Company, of Baltimore city, against Ellsworth S. Beeshore, for infringement of a trademark. Bill dismissed. S3 Fed. 262. Complainant appeals.

<p>1. Trade-Marks — Intention to Adopt.</p> <p>Sales of medical preparations in this country by a foreign manufacturer, to a limited extent, upon special orders, to supply particular customers, do not amount to use in such circumstances as to publicity, and to such length of use, as show an intention to adopt a symbol placed upon sucli preparations as a trade-mark. Kohler Manuf’g Co. v. Besliore, 53 Fed. 262, followed. 52 Fed. 455, affirmed.</p> <p>2. Same — Registry as Evidence oe Intention.</p> <p>The registry of a trade-mark under the act of March 3, 1881, may be evidence in a suit to restrain infringement of a common-law trade-mark used for the same article in domestic commerce, to show what complainant really claimed. Kohler Manuf’g Co. v. Beshore, 58 Fed. 262, followed.</p> <p>8. Same.</p> <p>The registry of a trade-mark, the essential feature of which is described as the representation of a red anchor in an oval space, is not proof of intention to adopt a trade-mark consisting of the word “anchor” and the symbol of an anchor, irrespective of color and surroundings. 52 Fed. 455, affirmed.</p> <p>4. Treaty witii Germany — Construction.</p> <p>The treaty of 1871 between the United States and Germany, (article 17; 17 Stat. 981,) which provides that, with regard to the marks of labels of goods, or of tlieir packages, the citizens of Germany shall enjoy in the United State's the same protection as native citizens, does not give to a citizen of Germany who has acquired the right to a trade-mark in that country a similar right to the trade-mark in the United States.</p>

<p>1. Patents — Anticipation—Am Brakes.</p> <p>A patent for a device to be used in connection with a quick-acting automatic air brake is not anticipated by a prior patent for a somewhat similar device, used in combination with the old direct-action air brake, wbich patent contained no suggestion of how the device could be adapted to the automatic system; it appearing further that, if it were so reorganized and reconstructed as to be used in the automatic system, it would bo utterly inoperative for accomplishing its purpose.</p> <p>2. Same — Invention.</p> <p>Whore several patents cover a series of progressive inventions, all tending to the accomplishment of a given result, and it appeal’s (hat 1he la,st of the series contains the first successful embodiment of these inventions, and that (lie improvement thereby added was only devised after a series of practical experiments for the purpose of obviating previous defects, this shows that the conception of such improvement involved invention.</p> <p>8. Same — Limitation-—“Substantially as Described. ”</p> <p>A claim covering a combination “substantially as described” should not be limited to a. construction wbich does violence to the other wording thereof, and which is not specified either in the description or claim, especially when such construction docs not appear to be material, and only affects the apparatus when not In use.</p> <p>4. Same — Inerixckmknt.</p> <p>Infringement is not avoided by simply dividing one element, of the patent info two parts, so arranged that the action of one necessarily causes the action of the other in the same way as though they were one, and their combined operation performs the same function and produces the same results as the device of the patent.</p> <p>5. Same — Colorable Chances.</p> <p>The fací that defendants have made a different construction of one device, -which is concedcdly inferior to that of the patent, while retaining all the other elements thereof, suggests that the difference is only a colorable one, merely designed to avoid the claims of the patent.</p> <p>6. Same — Divisional Patents- Pnlaroemi nt oe Claims.</p> <p>Where a device covered by a divisional patent is described in the original application therefor as capable of being employed in connection with and supplementary to another device, which generally accomplishes the same purpose, but is not claimed in such connection, a, subsequent amendment, so as to claim it only in combination with such other device, is not an enlargement, and. does not render the claim invalid.</p> <p>7. Same — Combination—What Constitutes.</p> <p>When a supplementary device is only intended to operate in case the main device fails to work, but the two are so related that the very failure of the latter so directs a force that it causes the former to act, there exists the co-operation which constitutes a true combination.</p> <p>8. Same — Limitation.</p> <p>Claims for an air-brake emergency valve “controlled” by a “piston connected to said valve,” and for a "piston stem, a valve on the piston stem controlling the passage.” etc., call for a piston mechanically connected with the valve, and are not infringed hy a device in which the valve is unseated by a piston whose stem merely rests against it, but which cannot be reseated by the piston for want of actual connection therewith.</p> <p>9. Same — Infringement.</p> <p>A claim in an air-brake patent for a combination containing a port through the center of the piston, described as substituted for a side port, with which the patent dispenses, is not’ infringed by a device having no such center port, hut using a side port in combination with different elements which are admitted hy the patent to be part of the prior art.</p> <p>10. Same — Essential Similarity — Apparent Differences.</p> <p>If a device has all the vital elements of a combination essential to the operation of a patent and to the achievement of the result sought, -working in substantially the same way, infringement is not avoided by a method of construction which, owing to a different relative arrangement of the parts, the substitution of mechanical equivalents, and variations in matters not covered by the claims, is in appearance utterly unlike the patented device, and in some respects apparently superior thereto.</p> <p>11. Same — Particular Patents.</p> <p>The Westinghouse quick-acting automatic air brake, No. 376,837, was not anticipated or limited by the previous patents, Nos. 162,465, to Pord, Welsh & Westinghouse, and 360,070, to Westinghouse; and is valid as to the first, second, and third claims, hut void as to the sixth, for want of invention.</p> <p>12. Same.</p> <p>The Westinghouse divisional air-brake patent, No. 448,827, shows invention, and is valid.</p> <p>13. Same.</p> <p>The Westinghouse air-brake patent, No. 172,064, is limited to a combination having a port through the center of the piston.</p> <p>14. Same.</p> <p>The first and second claims of the Park patent, No. 393,784, are limited to an air-brake emergency valve mechanically connected with the piston which operates it.</p> <p>15. Same.</p> <p>The Westinghouse patent for an improvement in operating cocks for fluid-pressure brakes, No. 222.803, was not anticipated by the Westinghouse patent, No. 141,685, or hy the Pay & Oairns patent, No. 141,685.</p>

<p>In Equity. Suit by Benjamin Mjisseth against Johnston Bros. & Stanfield for infringement of a patent. Decree for complainant.</p>

<p>In Equity. Suit by Benjamin Masseth against Ferd. Reiber for infringement of a patent. Decree for complainant,</p>

<p>Salvage — Derelict— Stranding during Salvage Service One oe Salvor’s Risks.</p> <p>The sum of $8,336.23 represented the entire net proceeds of a schooner found derelict at sea, and brought safely Into Southport, N. 0., by libel-ant’s large and valuable passenger steamship, and afterwards towed, by agreement, to New York for sale. After deducting the necessary expenses of the last-named towage, there was left $3,130.77 of the proceeds of sale in New York as the 1ruo net proceeds. Of this, 70 per cent., or $3,815.54, was allowed as salvage. During the salvage, stranding of the schooner occurred, which cost the steamer $1,000. Held, that this item was not taxable as an expense, being a salvor’s risk, and, as such, to be taken into account incidentally only.</p>

<p>In Admiralty. Libels to recover damage to a tow and her cargo. Decree for libelants.</p>

<p>In Admiralty. Motion to revive suit denied.</p>

<p>1. Shipping — Damage to Cargo — Rats — Notice to Shipowner — Duty to Take Due Precautions.</p> <p>Considering the well-known liability of lead pipe to be gnawed by rats, when a vessel has already suffered from such cause, and it is found that the rats cannot be subdued, reasonable prudence requires that the pipes which run amidst cargo liable to suffer water damage, and not open 1<> inspection during the voyage, should be protected by a, bard metal covering, or be replaced entirely by iron pipes. Failing such precaution, the liability to such water damage is at the risk of the ship.</p> <p>2. Same — Notice of the Presence of Eats —Duty to Exterminate Them to Protect Lead Pipe.</p> <p>Cargo was damaged on the steamship I. by water which escaped through a hole in lead piping, gnawed by rats. Eats had twice before injured the lead piping of the ship. Prior to the departure of the vessel, the usual precautions against rats, by washing and fumigating with sulphur, were taken; but it was known that they were not subdued. Held that, in view of the previous damage done by rats, special efforts should have been made to exterminate them, in the absence of which efforts the ship would be liable.</p> <p>3. Same — Bill of Lading — Exceptions—“Vermin”—Timely Precautions to Prevent Damage.</p> <p>A bill of lading contained the usual exceptions, including “vermin.” Cargo shipped under such bill of lading sustained water damage caused by rats gnawing the lead pipes of the ship. Held, not deciding whether the word “vermin” in a bill of lading should be understood to include rats, that the exception did not absolve the vessel from the lack of reasonable diligence in its equipment before the commencement of the voyage, or in due precautions to prevent injury to cargo.</p>

<p>In Admiralty. Libel for salvage. Decree for libelant, without costs to either party.</p>

<p>I. Shipping — Ship-Owner--Interest of in Vessel — Damages for Tortious Destruction — Bottomry—When Covers Damages Recovered.</p> <p>Unlike insurance moneys, damages recovered from an offending vessel by the owner of a vessel lost in collision are a substitute for the ship, and any such recovery represente the interest of .the owner in his vessel. Hence a transfer, under a bottomry bond, of all the owner’s interest in the vessel, includes by necessary implication the fund recoverable for her tortious destruction.</p> <p>8. Same — Bottomry and Respondentia Bond — Total Loss of Vessel in Collision — Damages Recovered — Liability of Ship-Owner to Contribute to Payment of Bond — Construction.</p> <p>A ship was totally lost in collision, but a portion of her cargo, previously transshipped upon another vessel, was saved, and the cargo-owner, under a bottomry and respondentia bond previously given on ship and cargo, including the transshipped cargo, was compelled to pay the entire amount of the bond. The ship-owner afterwards recovered large damages from the colliding vessel for the loss of his 'ship. Held, that a bottomry bond conditioned to be void “upon the utter loss of said vessel” was not wholly avoided; that the damages recovered represented the ship lost; and that the ship-owner was liable to the Cfirgo-owner for his pro rata share of the amount paid on the bottomry bond by the cargo-owner, to be determined upon a proper general average adjustment.</p> <p>8. Bottomry — Lien—Attaches to Salvage or Proceeds.</p> <p>It is a rule of the general maritime law that, if there be any salvage or proceeds of any of the effects covered by a bottomry bond, the bondholder’s lien attaches thereto, although the ship be lost. This is virtually a part of the bond by implication, and it is not necessary that the right thereto be expressly reserved in the bond.</p>

<p>Pilotage — Laws of New York and New Jersey —Rev. St. §§ 4235, 4236— Right of New Jersey Pilot to Sue in New York.</p> <p>Section 4230 of the United States Revised Statutes, in conjunction with, section 4235, by necessary implication makes applicable, in favor of pilots, the laws of either New York or New Jersey; and hence a New Jersey pilot may, by virtue of such statutes, maintain his action in the United States courts of New York, against the consignee of a vessel, for pilotage services rendered in New York waters.</p>

<p>In Admiralty. Libel for personal injuries.</p>

<p>"Wharfage — Title of Wharfinger — Estoppel.</p> <p>Vessels which have made use of a wharf, whether under express or implied contract, are not entitled to refuse payment of wharfage on the ground that the wharfinger is not the legal owner of the property.</p>

<p>In Admiralty. Libel in rent for damages for failure to transport cattle. Decree for libelant.</p>

<p>L Collision — Sail Vessels — Bad Light — Bad Lookout — Mistake oe Bearing.</p> <p>The schooner M., bound east in Long Island sound, came in collision with the schooner V., bound west, about south of Stonington light, the wind being moderate from the northward. Upon conflict of testimony it was found that the M. was closehauled, and a little on the starboard bow of the V., which had the wind two or three points free. The night was clear and starlight. The V.’s lights were seen at a considerable distance, but neither of the M.’s lights were seen before collision, though looked for by both the master and mate, when the M. was first seen by them, only 200 yards away, when the Viola improperly put her helm hard a-port and ran into the M. Held, both liable, — the M. for not showing proper lights; the V. for not seeing the M., on such a night, in time to avoid mistake in the bearing of the V., and the consequent erroneous luff.</p> <p>9. Statutory Construction — Carriers’ Act oe February 13, 1893 — Applies Only to Cargo oe the Vessel in Fault — Repugnancy.</p> <p>The general words of a statute may be limited to the subject-matter to which the statute relates, as indicated by preceding or following words; Held, accordingly, that section 3 of the act of February 13, 1893, providing that under certain conditions, “neither the vessel nor her owner,” etc., “shall be held responsible for loss resulting from faults in navigation,” applies only to the claims for loss to cargo on board the. vessel in fault; the preceding and following words indicating that the statute is dealing only with the relations between carriers and the cargo on board. Held, also, that this clause of the act is not repugnant to the sixth clause, providing that it shall not modify section 4283 of the Revised Statutes; since the latter applies only to cases where a legal liability exists, and does not prescribe when any legal liability for a loss shall or shall not arise.</p>

<p>Collision — East River — Crowding—State Statute.</p> <p>The steamboat H. was going »up tbe East river, and was overtaking a ferryboat. On tbe H.’s port hand lay, practically stationary, a car-float, which a tug had hauled out of a, slip preparatory to taking it alongside. The H., in passing between the float and the ferryboat at a distance of some 50 feet from the ferryboat, and loss from the float, collided with the latter. Held, that the H. was in fault in needlessly attempting to go between the other vessels, in violation of the state statute which prohibits steamboats from passing each other nearer than 20 yards.</p>

<p>Collision — Tugs and Tows — Canal Boat Filled with Water — Liability of Tugs — -Duty to Raise Sunken Boat.</p> <p>One of a large flotilla of canal boats, while towing, began to take in water, until her decks were almost submerged. Although her condition was known to the tugs in charge of the tow, the towage continued, at the request of the master of the canal boat, until she broke in two, thereby injuring libelant’s canal boat, F., which was astern of the broken boat. It being found that the F. was leaking, she was beached, and afterwards removed by respondent to flats, where she remained until sold by her owner for a nominal sum. Hold, that it was improper to continue towing, in a flotilla, a boat filled with water, after her condition was known, and that such towing was at the risk of the tug owner, and not of the other boats of the .tow; that, after the canal boat was temporarily beached, her owner was bound to take charge of her within a reasonable time, and was liable for any damage which may have accrued after the lapse of such reasonable time; that the tug boat owner was liable for some of the damage to the canal boat's cargo; and that, unless the value of the canal boat, as an old boat, was small, libelant was negligent in making no attempt to raise or repair her.</p>

<p>1. Courts — Statu and Federal — CoNimieTiNa- Jurisdiction.</p> <p>The claim oí mortgage, bondholders of a corporation to an equitable lien on the proceed» of insurance policies on the corporate buildings, by virtue of a stipulation in the mortgage for insurance for their benefit, may lie determined in a federal court, notwithstanding the pendency in the state courts of suits wherein other bondholders seek the same relief.</p> <p>2. Same — Injunction.</p> <p>A federal court lias no jurisdiction to interfere, by injunction against either party, with a suit, previously brought in a state court by the liquidators of a corporation, upon insurance policies in their possession and covering the corporate buildings, although the complainants in the federal court claim an equitable lien on the proceeds thereof. lie?. St. § 720; Whitney v. Wilder, 4 C. O. A. 510, 54 Fed. 554.</p>

Id. Equity. Bill by W. S. O’B. Robinson, receiver of tbe First National Bank of Wilmington, ÜST. 0., against B. F. Hall, James Sprunt, I). G-. Worth, G-. Herbert Smith, and James H. Chadbourn, directors of said bank, to charge them with personal liability for certain losses alleged to have occurred through their negligence. Heard on demurrer to the bill.

In Equity. Suit originally brought in a state court by William A. Caldwell to enjoin Joseph Robinson, an Indian agent of the United States, from forcibly ejecting him from the possession of certain lands in the Yez Perce Indian reservation. On motion to dissolve an injunction granted by the slate court.

At Law. Action by the Quaker City National Bank against Nolan County, Tex., on coupons cut from certain county bonds. Tried by the court on an agreed statement of facts. Judgment for defendant.

<p>At Law. Action by Frank J. Johnson against D. R Bailey and John M. Bartlett to recover damages for personal injuries. On motion for a new trial.</p>

At Law. Indictment of Mrs. O. J. Adams for mailing nonmailable matter. Submitted to the court without a jury on an agreed statement of facts. Finding for defendant.

<p>At Law. Indictment of A. A. Cadwallader for violating the national hanking laws. Demurrer to certain counts for duplicity.</p>

<p>1. Conflict of Laws — Chinese Marriages — Validity.</p> <p>A marriage solemnized in China according- to the laws and customs thereof, but while the bridegroom is in America, is not valid in America.</p> <p>2. Chinese — Exclusion Acts.</p> <p>Where a woman, married according to Chinese laws to a Chinaman then in the United States, is brought to the United States by direction of her husband, both acting in good faith, she is entitled to land, there being no evidence that she is a prostitute.</p>

<p>At Law. Information of forfeiture, under Eev. St. § 3082, to secure the condemnation of certain jewelry, alleged to have been brought into the United States contrary to law. The court directed a verdict for the United States, and the cause is now heard on a motion for a new trial, and in arrest of judgment.</p> <p>The information, omitting the caption, was as follows; ‘</p> <p>“On the 20th day of June, in the year 1893, comes Jesse Johnson, as the attorney of the United States of America for the eastern district of New York, in a cause of seizure and forfeiture of the property, under the revenue and customs laws of the said United States, and informing the court: That on the 5th day of May, and the 10th and 16th days of June, in the year one thousand eight hundred and ninety-three, Francis Hendricks, collector of customs for the port and collection district of New York, seized, on land, in the Haiti eastern district of New York, certain goods, wares, and merchandise, and which said goods, wares, and merchandise, he, the said collector, has now. within the said eastern district oi New York, as forfeited to the said United Stales for the causes propounded in the following- articles. That heretofore, about February, March, or April, 1891!, the goods, wares, and merchandise were brought from a foreign port and place — from France, or some other foreign country — into the port and collection district of New York, by Alexander Vollkringer, or Madame Vollkringer, or Eugene Leroux, or .Tenny Leroux, alias .Tenny Dolli, or by one Flamant, or Madame Flamant, or Herbert Gailarden, or by some person or persons unknown, and wore found partly in the possession of Eugene Leronx, or Jenny Dolli, alias Jenny Leroux, and partly in the possession of certain other persons, with whom said Eugene Leroux, or Jenny Leroux, alias Jenny Dolli, or some person acting for them, had placed Ü10 same as security, for loans, or, as is commonly known, had pawned the same. The names of sucli other persons are A. H. Samuels, J. J. Froel, H. G. Lewis, F. Freel, M. Brockheimer, and Arthur J. Heaney, in the said' eastern district of New York. That said goods, wares, and merchandise, so found in the possession of the persons last above named, were subject to duty, and which were not, at the time of making entry for such goods, wares, and merchandise, by the person or persons having possession thereof, mentioned to the said collector of the port and collection district of New York, before whom such entry should have been made, and which said goods, wares, and merchandise were then and there subject to- duty, and should have been invoiced, but that no duty was paid thereon, contrary to the provisions of the statutes of the United' States in such case made and provided. That said Vollkringer, Madame Vollkringer, Leroux, Jenny Leronx, alias Jenny Dolli, Gailardon, Flamant, and Madame Flamant did fraudulently and knowingly import or bring into the United States the said goods, wares, and merchandise, or did assist in so doing, and did receive, conceal, bny, sell, and pawn, the same after importation, knowing the same to have been imported contrary to law. And the said attorney of the United States snitli that all and singular the premises are true, and that by reason thereof, and by power of the statutes in such case made and provided, the aforesaid goods, wares, and merchandise became and are forfeited to the use of the said United States, as in the statutes provided.”</p>

In Equity. Suit by tbe Edison Electric Light Company and the Edison General Electric Company against the Buckeye Electric Company and others for infringement of a patent. On motion to dissolve a preliminary injunction. Statement by KICKS, District Judge: This case is now before the court upon a motion to dissolve the preliminary injunction allowed herein on the 28th day of July, 1893.

<p>In Equity. Bill by the Ames & Frost Company against the Woven-Wire Machinery Company and others for infringement of a patent. Decree for complainant.</p>

At Law. Action by Benjamin P. Palle against tké Springer Lithographing Company for penalties for infringement of copyright. Verdict and judgment for plaintiff. Defendant brings error.

At Law! Action by Josiah O. Ward and Joseph. Ware against the China Mutual Insurance Company on a policy of marine insura nee. A verdici was directed for plaintiffs in ilie court below, and, from the judgment entered thereon, def-ndant brings error.

In Admiralty. Libel by Peter Fisher and another against the steam tug Brinton to recover damages for a collision. Decree for divided damages.

<p>1. Collision — Fog—Immoderate Speed — Fifteen Knots.</p> <p>In a fog so dense tliat a vessel cannot be seen nntil within 1,200 or 1,400 feet, a speed of 15 knots is not moderate speed.</p> <p>2. Same — Steam or Sail — Change of Course — Speed of Steamship Contributing to Collision.</p> <p>A steamship and a bark collided in a fog, the collision resulting- in the sinking of the hark. It appeared that the primary cause of the collision was a change of some 5 points on the part of the sailing vessel; hut the evidence showed that the steamship was going at the rate of about 15 knots; that she saw the sailing vessel at a distance of about 1,350 feet, and at once put her helm hard a-port, and stopped and reversed her engines, but was unable to avoid collision. Computation showed that, had her speed been 9 or 10 knots, instead of 15, she would have passed well clear of the bark, notwithstanding- the latter’s change of course; and that, had her speed been only S knots, she would have been stopped before reaching the line of the bark’s course. Held, that the speed of the steamship contributed to the collision, rendering her liable to the owners of cargo on the bark for their loss.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In Equity. Suit by James II. Young; and others, on behalf of themselves and other stockholders of the Florida, Construction Company, against, said company and the Jacksonville, Tampa & Key West Kailway Company, for an accounting between the two companies. and a distribution of tin1 assets of the. construction company among its stockholders and creditors. An order was made July 8, 1892, and .continued August 2. 1892, appointing a receiver of the property of the construction company, and granting an injunction. The construction company appeals.</p> <p>Statement by WALLACE, Circuit Judge:</p> <p>This is an appeal by the Florida Construction Company from an order of tlie circuit court entered August 2, 1892, whereby a receiver was appointed of all ilie property of tlie construction company within the jurisdiction of the court, with power to reduce the assets of the company to bis possession, and to hold tlie same (luring tils' pendency of the action, subject to the further order or decree of tlie court. The order provided that the officers and agents of the construction company should forthwith deliver up to the receiver all and every part of the property of tlie company, and all books, accounts, vouchers, and papers in any way relating to its business. The order also provided that the construction company, its officers and agents, be enjoined and restrained from removing from tin* jurisdiction of the court, any of the books, papers, or property of the company, and from disposing of any of the assets or property of the company, and from interfering in any way in the possession or control of the receiver over the same.</p>

In Equity. Suit by Hiram G. Hill and others, executors of Hiram Hill, deceased, against James G. Sands and wife, and others, to foreclose a mortgage made by defendants Sands and wife to said Hiram Hill. Decree for complainants. Defendant Charles D. Edwards, the assignee for benefit of creditors of the mortgagor, Sands, appeals therefrom.

<p>1. Federal Courts — Jurisdiction—Duty of Court.</p> <p>It is tbe duty of a federal appellate court to take notice, of its own motion, 'tbat tbe record does not sbow jurisdiction in tbe court below, and thereupon to remand tbe cause. Railway Co. v. Swan, 4 Sup. Ct. 510, 111 U. S. 379, followed.</p> <p>3. Removal of Causes — Local Prejudice.</p> <p>The third subdivision of Rev. St. § 639, applies only in cases between citizens of different states, and not when one of the parties is an alien. Young v. Parker’s AdmT, 10 Sup. Ct. 75, 132 U. S. 267, applied.</p> <p>3. Same — Diverse Citizenship — How Alleged.</p> <p>An averment of residence is not equivalent to an averment of citizenship.</p> <p>4. Same.</p> <p>The description of a party as being “of Greenwood, in the state of Maine,” is not equivalent to an allegation of citizenship.-</p> <p>5. Same — Diversity Necessary at Commencement of Action.</p> <p>Diversity of citizenship must be shown to exist at the commencement of tbe action, and also at tbe time of removal; and hence, when a party dies, the substitution of an administrator having the requisite citizenship does not make the case removable.</p> <p>6. Same — Jurisdiction of Appellate Court — Costs.</p> <p>On a writ of error in an action which appears to have been improperly removed, the appellate court has jurisdiction so far as to determine whether the circuit court had jurisdiction to hoar and determine the case on its merits, and has jurisdiction, therefore, to award costs.</p> <p>7, Same — Diversity First Appearing on Appeal — Amendments.</p> <p>The record must show on its face, at the time of the application for removal, that the cause is removable, and therefore amendments to the record for the purpose of showing diverse citizenship cannot be permitted in tbe circuit court of appeals. Nor is the jurisdiction helped ouf by the fact that diverse citizenship appears from the bond filed with the petition for a writ of error, and in the evidence preserved by tbe bill of exceptions.</p>

<p>In Equity. On plea to the jurisdiction. Bill by Willis E. Heaton, receiver of the Arlington Manufacturing Company, against Charles W. Thatcher, administrator.</p>

At Law. This was an action brought by the plaintiff against the defendant upon a policy of insurance, New York standard form, the petition being in the usual form.

In Equity. Suit to set aside a devise of lands to Kansas City for a public park. Statement by PHILIPS, District Judge: In December, 1890, Azariah Budd died, testate, at the county of Jackson, state of Missouri, leaving the defendant S. A. Cornell Budd his surviving widow. On the 15th day of December, 1890, his will was duly admitted to probate in said county.

<p>1. Judgment — Equitable Relief — Injunction.</p> <p>The collection of a judgment at law, fairly and regularly recovered by a purchaser in good faith for full value against a school district on its treasury warrants, will not bo enjoined, even if there was a good legal defense to the action, when the consideration was received and is still being enjoyed, and the district officers declined to interpose technical defenses because of the moral obligation to pay. Crampton v. Zabriskie, 101 U. S. 601, distinguished.</p> <p>2. Same.</p> <p>It is no reason for enjoining a judgment regularly recovered at law in a federal court that the record therein fails to show that the citizenship of the assignor of the plaintiff therein was such as to give the court jurisdiction, for judgments of federal courts, rendered upon personal service, are valid until reversed, even if the record fails to show the facts on which jurisdiction rests.</p> <p>3. Same — Federal Court — Jurisdictional Amount.</p> <p>Query, whether a taxpayer seeking to enjoin in a federal court the collection of a judgment against a school district must not show that his proportion of the taxes necessary to pay the judgment will equal $2,000.</p>

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

At Law. Audita querela sued out by William Foster, Jr., against Ammi L. Danforth. Judgment for defendant as to .part, and for plaintiff as to the residue.

<p>1. Review on Error — Trtal to Court — General Eindings.</p> <p>When the case is tried to the court without a jury, a general finding has the same effect as the verdict of a jury; and the facts are not reviewahle by hill of exceptions, or in any other manner.</p> <p>2. Federal Courts — State Practice.</p> <p>Federal courts may include in one attachment and suit debts due and not due, without regard to state practice in respect to such joinder. O’Connell v. Reed, 5 C. C. A. 586, 56 Fed. 531, followed.</p> <p>3. Same — Jurisdiction—Citizenship—Amendment.</p> <p>The right of amendment exists independently of any state statute, and may be exercised at any stage of the cause, even after submission, and extends to the verdict and judgment, and is as applicable to attachment suits as to any others. When a complaint is amended its legal effect is the same as though it had originally read as amended; and an amendment making the proper jurisdictional averments establishes the existence of tho jurisdiction from the commencement of the suit, and not simply from the date of the amendment.</p> <p>4. Same —-Assigned Choses in Action — Citizenship op Assignors — Jurisdictional Amount.</p> <p>The provision of the judiciary acts that an assignee of a chose in action cannot sue in a federal court unless his assignor could have maintained the action therein refers only to the citizenship of the assignor, and not to jurisdictional amount; and an assignee of choses in action aggregating $2,000 may maintain the suit, if his assignors were citizens of other states, although they could not have maintained separate suits, because none of their claims amounted to $2,000.</p> <p>5. Attachment — Intervention—Redelivery Bond.</p> <p>Under the Kansas statutes, (Code, § 199,) the execution by interveners, of a redelivery bond estops them from denying that the attached property belonged to the defendant in attachment, or that it was subject lo the attachment.</p>

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

<p>Customs Duties — Classification—Breaka&e of Glass in Transit.</p> <p>Where window glass is broken in transit, so that part of it is useless except for remanufaeture. the broken part is not admissible, under paragraph 590 of the free list, as broken glass, but the whole is dutiable as window glass, unless there is an abandonment to the government, under section 23 of the act of June 10, 1890. 54 Fed. 371, reversed.</p>

At Law. Appeal by tho importers from a decision of the board of United States general appraisers affirming Uie decision of the collector in the classification for customs duties of certain Sumatra leaf tobacco, unstemmed, imported into the port of New York, June 25, 1890. The examination of tho tobacco by the United States examiner and appraiser was as, above set forth in tho syllabus io this case.

At Law. Action brought by- the plaintiffs, importers, against the defendant, collector of customs at the port of New York, to recover the amount of an alleged overpayment of duties on certain merchandise imported by the plaintiffs during the months of May, July, and September, 1889, which merchandise was classified for duty by the defendant Collector, as “fruit in sugar,” at 30 per centum ad valorem, under the provisions' of Schedule G (Tariff Ind., New, par. 302) of the…

<p>Customs Duties — Classification—“Thompson’s Patent Prune Wine.”</p> <p>So-called “Thompson's Patent Prune Wine,” being a compound composed principally of raisins and prunes crushed in water and fermented, to which mixture alcohol was added after fermentation, to preserve the compound from souring and spoiling, the alcohol at the time of importation varying between 14.6 and 16.28 per cent, by weight, held properly dutiable, as an “alcoholic compound,” at two dollars per gallon for the alcohol contained therein, and 25 per cent, ad valorem under Schedule A (Tariff Ind., New, par. 103) of the tariff aet Of March 3, 1883, and nor under section 2513, Rev. St. U. S., as amended by the said tariff aet, at 20 por cení, ad valorem, as a nonenumerated manufactured article.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>In Equity. Suit by the Duff' Manufacturing Company against William Forgie for infringement of patents. Decree for complainant. 57 Fed. 748. Defendant appeals.</p>

<p>1. Patents — Limitation of Claims — Cash Carriers.</p> <p>In a patent for a store-service apparatus, a claim for “a way or ways,” combined with described carriers and propelling devices, must be limited to a way consisting of two or more wires, when the patentee states in the specifications that he uses “two or more fine wires,” to avoid enumerated objections to a single wire, and the state of the art is such as to preclude a broad interpretation of the claim.</p> <p>2. Same.</p> <p>This limitation cannot be removed by any inference as to a broader intent in the use of the words “way or ways” which may arise from the fact that the limitation is expressly incorporated into a subsequent claim, when the latter differs in other respects from the one in question.</p> <p>8. Same — Infringement.</p> <p>The Hayden patent, No. 303,000, for a store-service apparatus, is limited to a way composed of two or more wires, and is not infringed by a device made under the McCormick "patent, No. 399,428.</p>

<p>1. Patents bob Inventions — Infringement—Preliminary Injunction.</p> <p>Where, in a stilt tor tbe infringenient of a patent, it appears that the improvement is novel and useful, that the patent has been generally acquiesced in, and that the person who took the device to defendant, and uses it for him, used it formerly in the employ of the plaintiff, there is a sufficient presumption of validity to warrant the granting of a preliminary injunction.</p> <p>2. Same — Prior Use or Knowledge — How Shown.</p> <p>The affidavit of a third person, stating merely ihat he showed the plaintiff how to make the improvement upon which his patent is based, does not show such prior knowledge or use as will defeat the patent, and hence it does not raise such a doubt as to defeat the motion for a preliminary injunction.</p> <p>3. Same.</p> <p>Xo. 372,002, for combined buckle and buttonhole of metal, having an offset forward to rest upon the upper edge of the button to prevent unbuttoning, presumed valid upon application for a preliminary injunction.</p>

<p>Admiralty — Libel—Joinder oe Causes — In Rem and in Personam.</p> <p>■ A libel against a vessel alleged (hat she was owned “by J. and other persons to the libelants unknown;” and it was sought therein to recover money furnished for repairs “on 1he credit of the owner and said J.,” and also money advanced upon a cargo consigned hy J. alone. Held, that those claims could not be joined, for the transactions out of which they severally arose were unrelated, and the judgments in rem and in personam upon them, respectively, would not affect the same persons.</p>

<p>In Admiralty. On motion for the payment of money paid into court. Libel by Harry L. Higbee against 0,000 cases of tomatoes for freight.</p>

<p>Admiralty — Property in Possession of Assignee or Receiver — Attachment by Marshal.</p> <p>Property in the hands of an assignee for the benefit of creditors, unlike property in the possession of a receiver, is not in custodia legis; and one who has a maritime lien against it is not obliged to obtain the consent of a state court before arresting the property in the admiralty.</p>

<p>¡Shipping — Nondelivery of Cargo — Breakage — Production of Remains of Package — Perils of tiie Sea — Bill of Lading — Exceptions.</p> <p>Though the ship does not produce the remains of casks alleged to have been broken by perils of the sea, the fact that the casks were actually received on board is a matter of proof, and the absence of such remains is not necessarily conclusive of bad faith on the part of the ship; and when the testimony is explicit that the casks were well stored, and that the ship encountered heavy weather, resulting in the destruction of a number of casks, a decree will be given for the ship under the exceptions of a bill of lading against insufficiency of package, breakage, leakage, and perils of the seas.</p>

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

<p>Seamen’s Wages — Discharge Abroad — Irregular Hearing before Consul.</p> <p>Where, on the question of the competency of a seaman, there has been a hearing before a consul, and a proper record preserved of his decision and judgment, it is ordinarily entitled to full credence; but, where there has been no hearing, no judgment, and no record, a forced discharge abroad is illegal,, and it is no defense that it was abetted by irregular action of the consular office.</p>

<p>1. Collision — Vessels at Anchor — Crowded Channel,— Dredge Lawfully Moored.</p> <p>It is obligatory on their owners to raise, when practicable, vessels sunk in collision. Henees a derrick anchored in the channel of the East river under a permit from the secretary of the treasury, occupied in raising a sunken vessel, and, though a partial obstruction to navigation, not such a complete obstruction as to constitute a nuisance, was held not unlawfully anchored, though off the regular anchorage grounds, and not in fault for damage suffered by a vessel which collided with her.</p> <p>2. Same — Dredge Anchored in Narrow Channel Way — Liability of Colliding Vessels.</p> <p>A derrick anchored in the crowded channel way of the East river, engaged in raising a sunken vessel, although not unlawfully in such position, was held not entitled to all the immunities of vessels anchored on anchorage grounds; and certain tugs, which collided with her in spite of skill and diligence exorcised by their pilots, were held not responsible for the damage to the derrick.</p> <p>3. Same — Anchorage Grounds — Act Authorizing Secretary of Treasury to Establish — Application to Vessels Engaged in Raising Wrecks.</p> <p>Whether the anchoring of a derrick for the purpose of raising a wreck falls within the purview of the act of May 1(5, 3888, or the authority of the secretary of the. treasury thereunder “to define and establish an anchorage ground,” etc.,- quaere.</p>

<p>Collision — Steam Tug and Sail — Close Approach — Caution.</p> <p>A steam tug winch attempts a close approach to a sailing vessel for tbe purpose of collecting ber towage bill is bound to approach with care and skill, and with due regard to tbe motion of the sailing vessel; and a tug which, under such circumstances, failed to approach a yacht parallel with the latter’s course, and delayed reducing her speed, by reason of which collision ensued, was held liable for the damage.</p>

<p>In Admiralty. Suit in rem to recover damages for personal injuries to passengers, resulting from a collision of the steam collier Willamette with the passenger steamer Premier. Findings and decree for libelants.</p>

This was a hill filed by Elma Perkins and others against Maria P. Fisher and others, to review a former decree of the circuit court. Certain defendants demurred to the bill generally. The circuit court sustained the demurrer and dismissed the bill. Complainants appealed. Henry J. Fisher, a prominent lawyer of West Virginia, departed this life on - day of January, 1883, leaving a last will and testament, with codicils, the last whereof is dated 25th January, 1883.

<p>Lis Pendens — Bill of- Review — Time of Filing.</p> <p>A final decree dismissing a bill of complaint filed by R. was entered on May 2, 1881, and an appeal from such decree was dismissed for failure to prosecute it on December 0, 1881. On February 29, 1884, F. took a mortgage on lands affected by the litigation, from the grantee of the defendant who had prevailed in said suit. On April 29, 1884, R. filed a bill of review against F. and his grantor to reverse the decree dismissing the bill of complaint for error appearing on the record. Held: (1) That as F. was a purchaser in good faith after the lapse of the term at which a final decree in favor of his grantor had been rendered, his title could not be affected by a decree rendered on a bill of review subsequently filed; (2) that a bill of review will not be regarded as a continuation of the original suit so as to affect with notice a person purchasing the property in controversy in good faith from the successful party, after a final decree, and without notice that a bill of review is intended to be filed; (3) that, unless special reasons exist to excuse delay, a bill of review must be filed within the.time limited by law for taking an appeal, and, as the bül of review filed by R. was not exhibited until after the time allowed by section 1008, Rev. St., for taking an appeal, it could in ho event be entertained in the present case as against F.</p>

In Equity. Bill by the United States against, the Union Pacific Kailway Company and the Western Union Telegraph Company to cancel a contract whereby the telegraphic franchises of the railroad company were transferred to the telegraph company, and to compel the railroad company to exercise such franchises directly through its own .officers and employes.

<p>1. Appeal — Final Decebes — Dismissal of Interpleaders.</p> <p>Orders Anally dismissing interpleaders from the suit, also dismissing an auxiliary petition brought by plaintiff to enjoin them from enforcing a judgment, aud vacating an injunction previously granted thereunder, embody final decisions as to such interpleaders, and are appealable, although the suit between the original parties is still pending.</p> <p>2. Interpleader — When Applicable.</p> <p>A lessee who voluntarily takes an independent lease from each of two adverse claimants to real estate cannot, when sued by one of them for rent, compel the two to interplead, and litigate their conflicting titles and the validity of their respective leases.</p> <p>3. Same — Waiver of Rights.</p> <p>One who has erroneously been compelled to interplead does not waive his right to he dismissed from the action by filing an amended answer after his motion to he dismissed on the pleadings has been denied and he has excepted thereto, since the order is not appealable, and no party should be held to waive his rights by respectfully obeying the orders of the court.</p> <p>4. Parties — Who may be Made Defendants.</p> <p>Under such circumstances the mutual rights subsisting between the lessee and each of his lessors are matters personal to themselves, in which the other lessor has no interest whatever; and hence the latter cannot be brought in as a defendant, under a statute giving power to make defendants any person claiming' an interest in the controversy adverse to plaintiff, or who is a necessary party to a complete determination of the quostions involved. Mansf. Dig. Ark. § 4940.</p> <p>6. Courts — Enjoining Actions.</p> <p>In an action on a lease, to recover royalties, where jurisdiction is acquired hy personal service on defendant, the court acquires no possession or jurisdiction over the demised premises, whereby It would have authority to enjoin a third party from enforcing a decree, obtained in another court, quieting his title to the premises as against the present plaintiff.</p> <p>6. Judgments — Indian Courts — Faith and Credit.</p> <p>The judgments of the courts of the Indian nations in the Indian Territory stand on the same footing with those of federal territorial courts, and are entitled to the same faith and credit.</p>

In Equity. On motion. Motion by Frederick H. Hatch in the suit of Louis Chable against the Nicaragua Canal Construction Company for leave to inspect the defendant’s books in the hands of the receiver.

<p>Appeal from the Circuit Court of the United States for the Northern District of Iowa.</p> <p>In Equity. Suit by J. J. Sehlawig against Bobert Purslow, A. S. Carretson, the Sioux City Savings Bank, and the Sioux National Bank for an accounting and for the redemption of real estate. The bill was dismissed below without an opinion. Complainant appeals.</p>

<p>1. Negotiable Instruments — What Constitutes.</p> <p>A certain instrument made in the state of Kansas contained a promise to pay to K. or order, fire years after date, a. sum certain, with interest at 8 per cent., payable semiannually, as per annexed coupons; both principal and interest payable- at K.’s bank, in Topeka. It recited that boih “this note” and the coupons were to be construed by the laws of Kansas in every particular, and were secured by a mortgage on land, and provided that they should draw 12 per cent, interest after maturity; that in default of payment of any coupon the principal should become due, and the amount of such defaulted coupon should bo added to the principal, and the whole bear interest at 12 per cent. Held, that this was a negotiable instrument.</p> <p>2. Same — Assignment—Subsequent Indorsement.</p> <p>The payees of said instrument indorsed on it a transfer thus: “For value received, we hereby assign and transfer the within bond, together with all our interest in and rights under the same, without recourse,” to J. D. •Held, that this was not a commercial indorsement, but a mere assignment passing an equitable interest subject to the defenses of the makers; that the negotiability of the instrument was thereby destroyed, and the subsequent indorsement by the transferee did not make him liable for payment in the absence of any independent contract, — both transfers having' been made in the state of Kansas. Iron-Works v. Paddock, 15 Pac. 574, 37 Kan. 510, followed.</p>

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>At Law. Actions by Harriett Littauer, Oscar L. Richards, and Lucius H. Littauer, executors of Hathan Littauer, deceased, against Jacob Rodecker and Samuel Cohen, partners under the name of J. Rodecker & Co., and by Lucius H. Littauer against the same defendants, on certain promissory notes. In both cases a jury was waived, and the causes were tried together by the court, which rendered judgment for defendants in the first-named action and for plaintiff in the second. Plaintiffs in the first action and defendants in the second action appeal. The appeal in the first-named cause is numbered 250 and in- the second 251.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>At Law. Action by James McOlurg against the Atchison, Topeka & Santa Ee Railroad Company to recover damages for personal injuries received at a crossing. Verdict and judgment for plaintiff. Defendant brings error.</p>

<p>1. Review on Error — Waiver of Jury — Findings of Fact.</p> <p>On a writ of error in a case in which a jury has been waived in writing, the court cannot inquire whether the special findings are sustained by the evidence; and in the absence of exceptions to the admission or exclusion of evidence, or to rulings upon declarations of law tendered to the court, the review is limited to the question whether the judgment is supported by the pleadings and findings.</p> <p>2. Corporations — Insolvency—Preferences.</p> <p>If the theory that corporate properly is a trust fund for its creditors is invoked to invalidate a conveyance which operates a preference, there is no reason why it should not also operate to prevent complaining creditors from obtaining priority by an attachment.</p> <p>3. Sale — Bona Fide Purchasers — Attachment.</p> <p>A purchaser in good faith, for full value, without notice of defects in the seller's title, can hold the property, ¡is against an attaching creditor of the corporation from which the seller obtained ’it, even if the seller liad notice of the insolvency of the corpora lion, and his title would have been invalidated thereby.</p>

<p>1. Appeal — Decision—Law of the Case — Same Pacts on New Trial.</p> <p>A decision by an appellate court, upon facts found by the court below, that payment of taxes on vacant land was under color of title “made in good faitb,” becomes the law of the case, binding upon tbe appellate court on a subsequent writ of error, and upon the trial court on a new trial, when the facts proved to the jury are substantially tbe same as those originally found.</p> <p>2. Limitation of Actions — Vacant Lands — Payment of Taxes — Construction of Statute.</p> <p>Under the Colorado statute which declares that any person paying taxes on vacant lands under color of title made in good faith, for five successive years, shall be deemed the legal owner, according to the purport of his paper title, (Gen. St. 1883, § 2187,) no possession whatever is necessary, and the court has no power to read into the statute a condition to that effect.</p>

<p>Unlawful Detaineb — When Action Lies.</p> <p>The vendee of a leasehold term cannot maintain an action of unlawful detainer in the Indian Territory, nndor Mansf. Dig. Arle. § 3348, to recover possession from his vendor, who refuses to surrender the premises at the time agreed.</p>

At Law. Action by John E. Soper and others against the Central Vermont Railroad Company for the loss of 3,600 bushels of grain. Verdict and judgment for plaintiffs. Defendant brings error. The bill of exceptions was as follows: This was an action lor the loss of certain grain. The plaintiffs’ declaration was in six counts.

<p>1. Interstate Extradition — Information as Affidavit.</p> <p>An information stating facts on which it charges a crime, sworn to by a prosecuting attorney before a notary public or the clerk of the court, and filed in comí, having on its back the names of witnesses examined at the time of filing, on which the court orders the arrest of the accused, meets the requirement in Rev. St. § 5278, of “an affidavit made before a magistrate” charging the crime.</p> <p>2, Same — Sufficiency of Facts Charged.</p> <p>The accused in a case of interstate extradition should not be discharged because it may be doubtful whether, on the facts stated in the application for the requisition, the transaction complained of constituted a crime, where the question involves the construction of statutes of the state demanding him.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>In Equity. Suit by the Fire-Extinguisher Manufacturing Company against William K. Platt for infringement of patent. Decree for complainant. Defendant appeals.</p>

<p>1. ' Patents — Invention—Error in Drawings.</p> <p>An error in tile drawings made by a solicitor can have no weight in disparagement of the invention, where it is such as to suggest, to persons familiar with the art, a practical identity with a prior device, and to warn them that the language of the inventor in the specifications, clearly describing the actual invention, is rather to be followed than the inaecurate drawing.</p> <p>2. Same — Anticipation—Idea not Exemplified.</p> <p>In a claim for railway brake shoes, the use of the words, “or otherwise so shaping them as to bear upon the flange and those portions of the tire which arc not worn in rolling,” cannot operate to shut ou£ subseguent inventors, when the specifications and drawings fail to exemplify, in a practical form, the idea of bearing on the parts not worn by the rail.</p> <p>8. Same — Invention—What Constitutes.</p> <p>One who, by overcoming difficulties which for years have baffled all others, perfects a device which satisfactorily supplies a long-existing and imperative need, and supersedes all other appliances, both at home and abroad, proves the exercise of inventive faculty, notwithstanding that the change from existing devices seems comparatively slight.</p> <p>4.. Same — Railway Brake Shoes.</p> <p>The Ross patent, No. 292,861, for a railway brake shoe, shows patentable invention over the English patent to Steel, No'. 1,763, of 1875. 47 Fed. 894, reaffirmed.</p>

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

<p>In Admiralty. On exception to libel. Libel by Jacob Mister against Frank Brown, Marion De K. Smith, Spencer O. Jones, Thomas O. B. Howard, and Waters Ford.</p>

<p>Appeal from the Circuit Court of the United Status for the District of Maryland.</p> <p>This was a suit by Horace K. Thurber, Francis I>. Thurber, Albert E. Whyland, Alexis Godillott, Jr., and Jacob 8. Gates, copartners trading as H. K. & F. B. Thurber & Co., against tbe Cecil National Bank and Arian M. Hancock. The bill alleged that Hancock, agent of plaintiffs, wrongfully hypothecated certain warehouse receipts to the defendant bank; charged the bank with notice; and asked for a discovery and injunction, and a decree that the bank deliver the goods covered by these receipts or their proceeds if sold. A decree was rendered in the circuit court against the defendants, (52 Fed. 513,) whereupon the bank appealed.</p>

<p>In Equity. On final hearing. Bill by Robert J. Black and others against John W. Reno and others. Decree for complainants.</p> <p>This is a bill in equity to foreclose a mortgage on real estate situate in Pemiscot county, in this state. On the 13th day of September, 188G, the respondent W. A. Reno, then unmarried, executed his two several promissory notes to the co-respondent John W. Heno, each for-the sum of $5,000, payable to order, — the first of said notes being payable five years after date, and the second ten years after date; the first bearing 10 per cent, interest, and the second 8 per cent, interest, per annum from date, — to secure the payment of which the said W. A. Reno, at the time of the execution of said notes, executed and delivered to said John W. Reno a deed of mortgage on certain described lands in said county, containing about 391.G3 acres, which said mortgage was duly recorded in ihe recorder’s office of said county on the 14th day of December, 1886. The conditions of said mortgage were, in substance, that if the said W. A. Reno should pay the sum specified in said notes, and the interest due thereon, according to the tenor and effect of said notes, the conveyance should be void, “but, if the said he should not be well and truly paid when same become due and payable according to tenor and effect thereof, the deed should remain in full force;” and the said John W. Reno was authorized to proceed to sell the said real estate, or any part thereof, at public vendue to the. highest bidder, at the courthouse door of said county, on giving 30 days’ public notice, and upon such sale and payment of the purchase money he should execute and deliver a deed of said property to said purchaser, and out of the proceeds of such sale he should pay, first, the expenses of the trust, and next whatever might be in arrears and unpaid on said land, whether principal or interest, and the balance, if any, should be paid over to said William A. Reno. To- understand the last recitation it should be stated that the said notes represented what was claimed by the parties thereto to be the purchase money of the sale of said land from said John W. to William A. Reno, the said John W. being the father of said William A. Thereafter, on the 26th day of March, 1S89. said John Wi Reno borrowed from the complainants the sum of $4,000, and executed to them his two several promissory notes, each for $2,500, payable in one and two years thereafter; and to secure the payment of said notes, and as a part of the consideration of said loan, the said John W. Reno transferred them by the indorsement of his name thereon, and delivered the same to the complainants, together with said mortgage deed. Upon the maturity of said notes so executed by John W. Reno to complainants, the same remaining unpaid, complainants instituted suit in this court against said John W. Reno, and obtained judgment thereon, .Tune, 1891, for the sum of $4,000, with 6 per cent, interest from the 26th . day of March, 1887, and which judgment was by consent of parties. No part of said judgment having been satisfied, the complainants instituted this action on the 30t'fi day of March, 1892, on said notes for $5,000 (Mich, so held by tlibm as collateral security, and to foreclose said mortgage, and to have the lauds sold to satisfy the same. The bill joins, as co-respondents with the said líenos, James II. Howard and IV. It. Melds, as subsequent incumbrancers, or as asserting some rigid and interest in tlie said properly. As the respondent Molds has offered no proof in support of Ills answer, and does not appear at the healing of this cause, it is not deemed necessary 1o make, in this connection, any detailed statement relative to his defense, as it does not toncli the merits of the controversy. After the transaction aforesaid between the complainants and John W. Keno, the said Beno went to the recorder’s office in Pemiscot county, and entered satisfaction, on the margin of the record of said mortgage deed, as to 1(50 acres of said land, and thereupon he took from Ms said son, William A. Keno, another note for $1,800, secured by mortgage on said 160 acres of land. This was of date June 10, 1890. This note John W. lleno negotiated to one Hunter for value received, on exhibiting to him an abstract of the title to said land, showing said satisfaction of the mortgage to the 160 acres. This mortgage was foreclosed, and Hunter became the purchaser thereunder, and then conveyed lo the respondent Howard, who claims to be a purchaser for value, without notice of the first mortgage. He sets up in his answer other matters, which are sufficiently noticed in the opinion herein.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Creditors’ hill filed by F. A. Raynolds against Cassius B. Hanna, Hattie L. Hanna, his wife, and J. Twing Brooks, executor and trustee of the estate of Robert Hanna, deceased. The bill was based upon the claim that Cassius B. Hanna had, under the will of his father, Robert Hanna, an estate for life, which might be subjected to the payment of his debts, in an undivided one-half of the real and personal property devised and bequeathed by the will in trust to J. Twing Brooks, the executor. On filial hearing the circuit court held that Cassius B„ Hanna had an equitable interest in an undivided one-fourth of the income. 55 Fed. 783. Both parties appealed; plaintiff contending that Cassius had an undivided half interest which the plaintiff might subject to the payment of his judgment, and the executor and trustee insisting that Cassius had no interest or estate under the will capable of being subjected by the plaintiff. The decree is now reversed and remanded, and a petition for rehearing dismissed.</p> <p>The appellee, If. A. Raynolds, recovered, in 1888, a judgment in a court of law for $44,941.60 against Cassius B'. Hanna and bis wife, Hattie L. Hanna. An execution issued, and bas been returned milla bona. Upon this footing this bill was filed to subject an alleged equitable interest arising under certain trusts created by the will of Robert Hanna, father of Cassius. The executor, J. Twing Brooks, denies that Cassius Hanna has any estate or interest under the will of Robert Hanna which may be subjected by bis creditors. The circuit court held, on final hearing, that Cassius had an equitable interest, until the final distribution of the estate of Robert Hanna, in an undivided one-fourth of the net income thereof, which might be subjected to the payment of the complainant’s judgment. Both parties appealed; the complainant contending that Cassius has an undivided half interest in the income which may he subjected by his creditors; the executor insisting that he has no interest under the bill which can he subjected by complainant.</p> <p>The clauses of the will which bear upon the questions for consideration are these:</p> <p>“Item 4. Excepting the household articles devised to my wife in foregoing item three, I devise and bequeath to my executor hereinafter named, in trust to he disposed' of by him as hereinafter provided, all my property, real and personal, of any and every description, wherever the same may be situated, and however my interest or title in 1he same evidenced; I hereby giving my said executor full, ample, and complete power to manage, direct, and control the same, and every part thereof, according to his own best judgment and discretion; also, to rent, sell, or improve tbe whole, or any part, of my real estate, and in such manner, and upon such terms and conditions, as he may think best, and, in, ease of sale, either at public or at private sale, as he may deem best, and to make, execute, and deliver deed or deeds in fee for the same. T also hereby aulliorize and .empower liim to dispose, of, whenever, in his judgment, it will be best for my estate so to do, any and all of my personal property, stocks, bonds, chattels of every kind, either at public or private sale, and to invest, and from time to time reinvest, in such manner, and in such property, whether real or personal, as he may deem best, the proceeds arising from the rent or sale of my real, and) the income or sale of my personal, estate; and, in case of purchase of real estate by him as aforesaid, i direct that the title to ihe same be taken to himself as executor and trustee of my estate, — it being my wish and purpose to invest, my executor hereinafter named with power to manage and control my entire estate according to his own judgment and discretion, the same; as I could do myself, if living, and subject only to, and be restrained by, the special limitations heroin imposed and expressed by me.”</p> <p>•‘item 7. I hereby authorize and direct my executor, as soon as convenient after my death, and in case my son, Cassius, shall so request, to purchase a home for him at a cost not to exceed twelve thousand dollars, taking title to himself as executor and trustee' as aforesaid, the same to be kept as and for a home for Cassius, freo of rent, so long as he desires so to occupy the same; but in the final settlement of my estate, as hereinafter provided, I direct that the money expended by my executor in insurance, (axes, and assessments on the home so occupied by Cassius, together with six per cent, interest per annum on the cost of said home for the time it shall be so occupied by him, shall be deducted from the amount that is to be paid to Cassius or his children, as is hereinafter provided, or. if my said executor shall deem it best to deduct Ihe amount of said annual insurance, taxes, assessments, and interest from the annual income that is to be paid to Cassius or his children, as hereinafter provided, he is hereby authorized and directed so to do.</p> <p>“Item 8. .So far as the same is practical, in conformity with the oilier provisions of this will. T desire the income of my estate each year to be applied as follows: First, to the payment of taxes, insurance, assessments, and repairs that may be levied or become necessary to bo made on any part of my estate, together with the necessary expense's of the administration of the same, including the compensation hereinafter provided to bo paid to my executor. Secondly, to the payment of the annuity of two thousand dollars hereinbefore provided for my wife, Harriet A. Hanna. Thirdly, after the payment of the items hereinbefore mentioned, I desire the remainder of the yearly income or increase of my estate that shall be collected or received to be divided into two equal parts, one part to be expended by my said executor for the benefit of my son, Cassius, and his family, so long as he (Cassius) shall live; or, in case my said executor deem it proper and best, but in no event otherwise, lie may pay the whole or any part of such portion of 1he yearly income of my estate (subject, however, to the deduction hereinbefore provided to be made of insurance, taxes, assessments, and interest on the cost of the home to be provided for him as mentioned in item 7) to my son. Cassius, in cash. The other of the said equal parts of which the net yearly income of my estate is to be divided as provided in this section 1 direct my executor to expend for the benefit of the children of my deceased daughter, Arrial T. Whitaker, in such manner that each of the children shall have an equal and Hie same portion of said part with Hie other. In case any of said children of my daughter, Arrial, should die without issue before the final division of my estate, then the share of the income of my estate of such child or children so dying shall be divided between the other children of my daughter, Arrial, or the issue of them, they in such to take per stirpes and not per capita; and in such case any of the said children of my daughter, Arrial, should die before Hie final distribution of my óslate, leaving issue, I direct that the share of the income of my estate which should be coming- to such child of Arrial if living shall be paid to the issue of such child, share and share alike; and I hereby authorize my executor to pay in cash; if he shall deem best, the whole or any part of sucli share of the income of my estate as may be flue to each of the children of my daughter, Arrial, as aforesaid, he to take, in such case, the recoil)t of the guardian or such other person who, for the time being, may be charged with ihe care or custody of said children, or either of them, for any payment so made; and in the expenditure of income for the benefit of my son. Oassius, and his family, as well as for the children of my daughter, Arrial, j. desire my executor to have in view the maintenance and education of my grandchildren on a scale comporting with their condition and rank in life; and if, in the judgment of my said executor, the net annual income of my estate, as above described, cannot all be properly and judicially expended or advanced to Oassius and his family and to the children of Arrial, as herein-before described, I authorize and direct my executor to invest such surplus as may remain after what he deems a reasonable expenditure has been made for the benefit of the child or grandchild who would be entitled to it under the foregoing plan of distribution.</p> <p>“Item 9. I will and direct that my executor shall continue to control and manage my estate, and distribute and invest the annual income of ray estate, as hereinbefore provided, from year to year, until the youngest child of my daughter, Arrial, then living, shall come of age, or until such further period as, in his opinion, the welfare of my son, Oassius, or of my grandchildren, will be thereby promoted, and whenever it shall so seem prudent to my executor, but in no event until then. I authorize and direct him to divide and distribute the whole of my estate among my grandchildren, share and share alike, to each that may be living ,at the time of such distribution, or if, before such final distribution, any of my said grandchildren shall have died leaving issue, the issue of such deceased grandchild shall take the share that would be due to such grandchild if he or she were living, share and share alike. And I hereby authorize my executor, if at any time it shall seem suitable and prudent to him, to advance any portion of the final share of my estate to either of my grandchildren that would be due to them under the plan of distribution herein provided, and in such final settlement I direct my said executor to invest a portion of the share hereinbefore provided for each of my grandchildren in a home for such grandchild, in which said child shall have a life estate, with the remainder to his or her heirs, it being my wish and purpose that each of my said grandchildren shall be secured in a home beyond any contingency during the period of his or her life; provided, however, that such final distribution of my estate shall in no event be made during the lifetime of my wife, Harriet A. Hanna, nor shall advances he made to my grandchildren, as hereinbefore provided, to such an extent as to impair the annuity of two thousand dollars which ' is to be paid to my wife as aforesaid: and provided, further, that before any such advances are made, or before any advances are made as hereinafter provided may be made, to my son, Oassius, for the benefit of himself and his children, and in any event before the final distribution of the principal of my estate, as aforesaid, shall be made, I wish and direct my executor to ascertain the amount of advances of money I shall have made during my lifetime to my son, Oassius, in excess of what I shall have made to my daughter, Arrial, or to her and to her children together, and deduct the amount of such excess as it may exist at the time of my death (interest at the rate of six per cent, per annum being added thereto from the time of my death) from the sum total of my estate, which amount so deducted shall be divided equally between the children of my daughter, Arrial, and their issue, per'stirpes, it being my wish thus to equalize, between my children and the descendants of each of them, the benefits of my estate.</p> <p>“Item 10. In order to encourage my son, Oassius, to habits of business and economy, and to- acquire a proper regard for property and its yalue, I hereby authorize my executor, in case he shall deem it prudent and proxier' so to do, but in' no event otherwise, to make advances from the principal of my estate to my son, Cassius, for the benefit of himself and his family, in such amounts and at such times as to him, my said executor, shall deem it prudent and safe; but in no event shall such advances be made to such an extent as to impair the annuity herein provided for my wife, nor shall they be so great- in amount as, combined with the excess of advances made to him during my lifetime- over those made by me to my daughter, Arrial. or to her and her children together, (interest from the time of my death being added thereto at six per cent, per annum,) would amount to one-half the principal sum of my estate, and provided that the amount of any advances, as aforesaid, that may be made to my son, Cassius, by my said executor, shall be deducted by my said executor from the amount tliat would be due to tlie children of my son, Cassius, under the foregoing plan of the final distribution of nay estate mentioned in item nine of this, my will.”</p> <p>Also the following items of the codicil to said will:</p> <p>“Item 1. Believing it to be for the best interest of my estate, and of all those who are, or may be, Interested in the same, I do hereby revoke, cancel, and annul the whole of item 10 in said will, beginning with the words, ‘In order to encourage;’ and ending with the words, ‘item nine of this, my will;’ and I hereby declare said item ten, (10,) and every part thereof, to be no longer any part of my said last will and testament.</p> <p>“Item 2. In order to settle definitely, and make forever free from dispute, that portion of item eight (8) of my said last will which relates to the division and distribution of the annual net income of my estate, I hereby declare it to be my wish and will, and I do hereby accordingly direct, that tlie one-half of said yearly net income which is to be expended for the benefit of my son, Cassius, and his family, is to be so expended for his benefit only until the time arrives for the final distribution of my estate which shall be made under the provisions of said will; and to this extent are the words in said will directing said portion of income to be expended for liis benefit, ‘so tong-as he (Cassius) shall live,’ to be modified and controlled; also, that the one-half of the said annual income which is to be expended for the benefit of Cassius, as aforesaid, shall, until expended or otherwise disposed of, as provided in said Item, be held and kept by my said executor in his possession in trust, to the end that the same may be applied as my said executor shall deem best, and not otherwise, for tlie benefit of my son, Cassius, and his family; also, that any portion of said share of income which may be invested for tlie benefit of Cassius shall likewise be held and kept in his possession in trust by my said executor, the same to be expended for Cassius’ benefit, or paid to him at sucli time, and in such amounts, as he (my said executor) may deem best, and not otherwise.</p> <p>“Item 3. Unless my executor shall have sooner made a final distribution of my estate under the powers granted in my said will, I hereby will and direct that such final distribution be made as soon as may be after the death of my son, Cassius, provided at that time the youngest child of my daughter, Arrial, then living, shall have reached the age of majority.”</p> <p>“Item 5. In event that my son, Cassius, should have no children living, nor grandchildren living, at the time of the final distribution of my estate, as provided in my said will, I direct my executor to retain in his own custody and possession one-half of the whole estate as it may then exist, and hold the same in trust so long as Cassius may live, giving to Cassius so much of the annual net income of said one-half as he may deem, best, and at the death of Cassius said one-lialf of my estate so retained and held to be by said executor distributed per stirpes among the children and grandchildren of my daughter, Arrial; the other half of my estate, in the event spoken of in this item, to be divided between the children of, and grandchildren of, my deceased daughter, Arrial, in the manner set forth In my will, whenever such, final settlement shall take place.”</p> <p>There was evidence submitted from which it appeared that tlie testator’s family, at the making of his will in 187G, and of the codicil in 1881, consisted of his wife, his son, Cassius, and three children of a deceased daughter, Arrial. Cassius was himself a man of family, consisting of a wife and two children. The testator’s widow was amply provided for by provisions of the will unnecessary to be stated. Before the institution of this suit she died. Cassius, his wife and two children, aro living, as is also the ease with the three children of Arrial. At the date of the will, Cassius was a man of sxiendthrii't habits, and hopelessly involved In debt. Item 10 of the will, when read in connection with item 1 of the codicil, made five year's later, and shortly before the death of testator, indicates ihe habits and financial condition of Cassius, and that at the later date his father had despaired of his reformation. The large debt due' to complainant, Baynolds, had been incurred when the codicil was drawn. There was evidence, independent of the intimations found in the will and codicil, that the testator was fully aware of the bankrupt condition of Cassius and his want of business habits.</p>

In Equity. Suit by Á: A. Wenbam against William S. Switzer to compel specific performance of a contract. Bill dismissed. 51 Fed. 351. Plaintiff appeals. This is a suit in equity to compel the specific performance of a contract..

<p>Appeal from the Circuit Court of the United States for the Western District of North Carolina.</p> <p>Bill for specific performance by W. D. Maxwell against Noah Long. Complainant obtained a decree, whereupon the defendant, Long, appealed.</p> <p>This was a bill filed by W. D. Maxwell against Noah Long, in the circuit court of the United States for the western district of North Carolina, for the specific performance of the following contract:</p> <p>“State of North Carolina, Alleghany County.</p> <p>“Know all men by these presents, that I, Noah Long, of th© county of Grayson and state of Virginia, am held and firmly bound unto W. D. Maxwell, of th© county of Alleghany and state of North Carolina, in the sum of twenty thousand dollars, lawful money of the United Stales, to be paid to the said W., D. Maxwell, his executors and administrators or legal representatives, for which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, and every of them, firmly by these presents. Sealed with my seal, and dated this 10th day of February, 1873.</p> <p>“The conditions of this obligation is such that whereas I, the said Long, hold a bond against the said Maxwell for the sum of five thousand dollars, dated the 4th of January, 1865, and also a deed from the sheriff, of Alleghany county for the lands upon which the said Maxwell and his mother now lww dated the 12th day of August, 1870, sold to satisfy some executions, as will more fully appear by reference to said deed. Now, I, the said Long, do agree to reconvey to the said Maxwell or his legal representatives, when called upon so to do, all the lands mentioned in said deed, and ■ all the minerals in said lands, except one-twelfth of said minerals, instead óf one-fifteenth, as was the former agreement, upon the following conditions, to wit: That I, the said Long, ain to have the above-mentioned mineral interest, to .wit, one-twelfth, and also the debts for the land sold to C. H„ Doughton for his son, J. A. Doughton, and the debt from D. C. Jones, upon a compromise in the Austin lands suit, all of which mineral interest and debts I am to have in consideration for the reconveyance of the said lands and minerals, and the money I have expended for the said Maxwell, and otherwise expended in the said premises, except enough out of said debts to pay what the said Maxwell owes A. M. Long and B. H. Thipps, which debts L the said Long, am to pay. I agree with the said Maxwell to aid him in effecting a sale of the minerals in said land, and, in any legal way I can, to help perfect the title to said minerals, if deficient in any particular, that said minerals may be placed upon the market, and a good and sufficient title may be made to the purchaser thereof; and if I. shall expend any money, by the written consent of the said W. D. Maxwell, in the development of the said minerals, I am to have the same amount refunded to mo out of said mineral interest when sold. Now, if the above is complied with, then this instrument to be void; otherwise, to remain in full force and virtue in law.</p> <p>“Given under my hand and seal the day and date first written above.</p> <p>“Noah Long. [Seal.]”</p> <p>Among the averments of the bill was that complainant, “to induce said defendant to execute said contract, agreed to allow said defendant to retain the land debts therein enumerated, and also to retain a one-twelfth mineral interest in said lands contained, with all of which your orator has always been ready, and is now ready, to comply.”</p> <p>The defendant denied the execution of the contract, and in his answer, among other things, further said “that this defendant has expended some moneys in the development of the minerals, and otherwise, by the written consent of the complainant. But he admits that the complainant did not, by such writing, intend to confer any power on this defendant to expend such money, but such writing was only such as the complainant drew up or witnessed between this defendant and other parties recognizing and admitting this defendant’s ownership of the property.” Voluminous evidence was taken, and the cause, having been duly heard in the circuit court, resulted, on July 20, 1891, in the following decree: “This cause came on to be heard at April term, 1890, of this court, and was argued by counsel; and now, upon consideration thereof, it is ordered, adjudged, and decreed as follows, viz.: That the agreement sot forth in the complaint, and proved in the cause, be specifically performed, and that the defendant, Noah Long, on or before the rule day of this court in September, 1891, execute and deliver to the plaintiff a good and sufficient conveyance for the lands mentioned in said agreement, in accordance with the terms of said agreement, the form and terms of the said conveyance to be approved or changed on further directions by one of the judges of this court; and the plaintiff is required to perform, on his part, all the terms of said contract. It is further ordered, adjudged, and decreed that the costs of this cause bo taxed against the defendant by the clerk of this court.”</p> <p>On September 7, 1891, the following entry appears of record; “Defendant comes into court by his att’ys, Charles Price and James 13. Boyd, and by leave of the court enters his motion for further time to comply on his part with the decree filed in this case on the 20th day of July, 1891, and for an order of the court to ascertain, by reference or otherwise, what amount of money, if any, .is duo from plaintiff, to be paid before the execution of the deed provided for in the decree, what other acts or obligations are to be performed, on the part of the plaintiff, antecedent to the execution of the said deed. Whereupon, it is ordered by the court that the execution of the deed-required by the said decree on the part of the defendant bo suspended until the further order of the court, to be made at October term, 1891, upon the further hearing of the case. It is further ordered that a certified copy of this motion and order be served upon the plaintiff, or his attorneys of record.”</p> <p>On October 15, 1892, complainants submitted a motion to the court, “for the execution of the decree heretofore made in this case by the specific performance of the contract set forth in the pleadings,” which was transferred to the circuit court at Asheville at the ensuing November term, to' be heard and determined by a full bench; and the matter coming on to be heard before GOFF, Circuit Judge, and DIGIT, District Judge, the following decretal order was entered November 15, 1802: “This cause came on to bo beard at tías term, on a motion of the complainant for a decretal order for the execution of the decree heretofore made in this ease for the specific performance of the contract set forth in the pleadings, and was argued by counsel: Now, upon consideration thereof, it is ordered, adjudged, and decreed that the defendant, Noah Long, on or before the first Monday in January, 1893, execute and deliver to the complainant, IV. D. Maxwell, a good and sufficient conveyance in foe simple, for the land referred to in the agreement dated the 10th day of February, 1873, reserving, however, to himself, one-twelfth of the mineral interests thereof; and the complainant shall accept the same in performance of his said contract. Let this and the former decree be entered of record in the circuit court at Greensborough; and this cause is reserved for any further directions that may become necessary by the failure of either parts' to comply with the requirements of the decree and decretal order made in this case,”</p> <p>Thereupon, on January 3, 1893, the defendant appealed from the order of November 15, 1892, to this court, and assigned the following errors:</p> <p>“(1) That the finding of the court that the bond for title bearing date February 10, 1873, was executed by the defendant, and was his deed, was against the weight of evidence.</p> <p>‘‘(2) That the said bond is so written and worded that it is ambiguous and unintelligible, and incapable of legal or equitable construction, and cannot be carried into effect, and the court, should have so declared.</p> <p>“(3) That the court, after setting up by its finding the bond to have been duly executed, should have proceeded further, and ordered an account to ascertain what amount of money the defendant had paid, by the written assent of the plaintiff, in developing the minerals on the land in controversy, and in efforts to sell the same, and, when the amount was ascertained, made the same a charge on the land.</p> <p>“(4) That the court should have taken into account the mutual dealings of plaintiff and -defendant, and the matters of indebtedness set up by defendant in his ánswer as owing to him by plaintiff, and should have ascertained what balance, if any, was due defendant, and made such balance, when found, a charge on the land.</p> <p>“(5) That tbie decree filed in the cause is not sufficiently full and explicit, and does not set forth definitely the rights, interests, and equities of the parties in the subject-matter of the controversy.”</p>

In Equity. On demurrer. Bill by the Mercantile national Bank of Cleveland against Joseph C. Shields, treasurer of Cuyahoga county.

<p>In Equity. Bill filed by the Farmers’ Loan & Trust Company against the Winona & Southwestern Railway Company and the Winona & Southwestern Improvement Company. .</p>

<p>Vendor and Vendee — Bona Fide Purchasers — Tax Sales.</p> <p>A bona fide purchaser for full value, without notice, of lands which the vendor had redeemed from a prior tax sale to the state of West Virginia, without paying the taxes for the year in which they were sold, as required by statute, is entitled to hold the same, as against a purchaser at a subsequent sale for the taxes thus omitted, when the want of notice arose from the failure of the county clerk to record the lands as delinquent in a proper book, and tbe unauthorized issuance by the state auditor of a certificate of redemption, which implied that all taxes duo had been paid. 49 Fed. 779, reversed.</p>

<p>At Law. On motion to re tax costs. Action by Duncan Hunter, W. B. Richards, H. O. Pickett, O. C. Dallas, and T. B. Miller against Robert Russell, in which there was judgment for defendant.</p>

<p>In Error to the Circuit Court of the United States for the District of West Virginia.</p> <p>Action by Josephus Tucker against the Baltimore & Ohio Railroad Company for injuries sustained by plaintiff while walking in the yard of the defendant. The judge instructed the jury to find for defendant, and this ruling is now assigned as error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.'</p> <p>This was an action by Roger F. Copwell against John F. Sipe and Carl C. Sigler on a judgment in favor of the plaintiff, Copw ell, against the defendants, Sipe and Sigler, rendered by the supreme court of Rhode Island. A demurrer to the answer was sustained. 51 Fed. 667. A judgment having been rendered for the plaintiff in default of further defense, the defendants bring error.</p>

<p>1. Sale — Delivery—When Title Passes.</p> <p>By agreement for a sale of goods the sellers were not to part with possession until payment should he made by cashing their draft on the purchasers, with bill of lading attached. The purchasers’ bank agreed with them to guaranty payment of (he draft' on the understanding that the goods and bill of lading were to be its property as security, and wired the sellers’ bank that the draft, with bill ,of lading attached, would be paid, whereupon the latter bank cashed it. 'Sold, that the delivery by the sellers of the goods to the railroad company consigned to the purchasers, and taking a bill of lading to that effect, did not pass' title to the purchasers, and that the sellers’ bank acted as the agent of the purchasers’ bank in receiving and transmitting the bill of lading.</p> <p>2. Judicial Notice — State Statutes.</p> <p>The courts of the United States take judicial notice of the public statutes of the several states.</p>

<p>1. Ejectment — Pleading and Prooe.</p> <p>Plaintiff may rely upon the admission in the answer that defendant claims from a certain grantor, and need not prove title in such grantor if he is the common grantor; and, where he offers insufficient proof of title in the common grantor, it must be disregarded, as being proof of a title not in issue. 51 Fed. 73, reversed.</p> <p>2. Tax Titles.</p> <p>Under the laws of Washington requiring realty assessed for taxes to be listed in the name of the owner, and, making the taxes levied a debt due from the owner, to be collected by sale of the land only in case personal property cannot be found, a purchaser at a tax sale acquires only the title of the person assessed. 51 Fed. 73, affirmed.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of California.</p> <p>At Law. Action by Sarah Mitchell against Frederick W. Sharon for slander. A demurrer to the complaint was sustained, (51 Fed. 424,) and thereupon the complaint was amended, and a demurrer to the amended complaint was sustained. Plaintiff brings error.</p>

This was an action by the Norwich Union Fire Insurance So: ciety, of Norwich, England, against the Standard Oil Company and the Goodlander Mill Company, to recover the amount of certain insurance paid by the plaintiff to the defendant mill company, upon the ground that the property was burned through the culpable negligence of the defendant oil company.

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>This is an action on certain coupons detached from municipal bonds, by the Aetna Life Insurance Company against the township of Lakin, in the county of Kearney, state of Kansas. The case was dismissed, on motion, and final judgment rendered for defendant. This ruling of the circuit court is now assigned for error.</p>

Southern District of New York. Action by Frank Beilly against Andrew J. Campbell and William H. Van Tassel. The trial court directed a verdict for defendants, and plaintiff brings error.

In Erfor to the Circuit Court of the United States for the Southern District of New York. This was an action by Dennis R. Shiel against Algernon S. Patrick, in which there was judgment for defendant below, and plaintiff brings error.

At Law. Action by Charles Smith against (he Northern Pacific Railroad Company to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant brings error.

<p>At Law. Actions by tbe H. B. Claflin Company against Dacus & Jordan, and by Hurst, Purnell & Co. against tbe same defendants. Judgment for defendants.</p>

At Law. Action upon a bond executed by the defendants as principal and surety to the United States of America in the sum of $800, dated the 24th day of November, 1891, reciting that the principal in the bond had applied to the collector of customs for the port of New York to make entry of certain goods, wares and merchandise imported in the Eulda from Genoa, and reciting further that, “whereas it is temporarily impracticable for the said principal to produce a proper invoice…

In Equity. . Bill by the Electric Gaslighting Company and Abraham L. Bogart against Charles E. Fuller and others, copartners as Fuller, Holtzer & Co., for infringement of certain patents for electric gaslighting apparatus. Bill dismissed. 55 Fed. 64 Complainants appeal.

<p>In Admiralty. Libel to recover for injuries by William 3L Big-gin against Frank Brown, Marion De K. Smith, and Spencer G. Jones.</p> <p>Code Md. art. 72, regulating the oyster fishery in the water's of the state, provides for the maintenance by the board of public works of vessels to guard those waters and prevent violations of the law. Act Md. 1886, c. 296, imposes upon the board the additional duty of appointing a commander in chief of the state fishery force, and deputy commanders for the several vessels thereof, and of supervising the former in his administration and control of the force.</p>

<p>Collision — Coasting Vessels — Act Feb. 18, 1893.</p> <p>The third section of the act of February 13, 1893, which in terms exempts vessels in the coasting trade and their owners from all liability in certain cases, applies only to the mutual rights and liabilities of owners and shippers, and does not abolish liability to third persons for collisions, or other marine torts.</p>