Volume 6 — Federal Reporter

Petition for Removal. On the third day of February, 1880, the plaintiff commenced his action in the district court of Cherokee county, Iowa. Defendant appeared in the state court at the February term, 1880, and at that term the plaintiff filed his petition for removal to this court: In the District Court of the State of Iowa, in and for Cherokee County. W. M. Kaeiser, Plaintiff, vs. The Illinois Central Bail-road Company, Defendant. PETITION FOR REMOVAL.

<p>1. Liability of Retired Partner — New Firm.</p> <p>In a suit in equity to charge the estate of a partner, who retired from the banking firm of Jay Cooke & Co. in 1871 and died in 1877, with the amount of certain deposits made with said firm in 1869—</p> <p>Held, that where money is deposited with a banking firm which subsequently dissolves, and whose business is continued by a new firm, the liability of the members of the old firm continues, unless facts be shown from which an intention to accept the liability of the new firm in lieu of the liability ol the old firm can be fairly inferred. If such facts be shown, the liability of a retired partner will be held to have been extinguished.</p> <p>2. Same — Acceptance by Creditor of New Firm — Evidence.</p> <p>That where a banking firm is dissolved, and the business is carried on by a new firm which has agreed to assume the liability of the old firm, slight circumstances only are required to .justify finding the existence, on the part of a creditor of the old firm, who has notice of the dissolution and of the agreement of the new firm, of an intention to accept the liability of the new firm in place of the liability of the old.</p> <p>8. Same — Same—Same.</p> <p>That proof of debt made by the administrator of a depositor in the bankruptcy proceedings of the new firm, setting forth tho original deposit made with the old firm as a debt of the new firm, with knowledge at the time that the old firm of Jay Cooke & Co. had been dissolved; that the new firm of Jay Cooke & Co. was composed of persons not members of the old firm, and that the new firm had assumed the debt in question for the purpose of terminating the liability of the retiring partner therefor, was an adoption of the new firm as debtors by the creditor. The adoption of the new firm as debtors under such circumstances, coupled with the omission on the part of the creditor, during the life-time of the retiring partner, to indicate, by word or deed, the existence of a claim against such partner, and with a delay of five years before attempting to charge the retired partner’s estate, are sufficient circumstances to justify the inference that the intention was to accept the liability of the new firm in place of the liability of tho old.</p> <p>4. Same — Equitable RreiiTs — Laches.</p> <p>That the right sought to be enforced by this action, being an equitable right, may be met by equitable circumstances; and where the result of unexcused delay in asserting the liability of the retired partner by the creditor has been to deprive the retired partner of the opportunity to vote as a creditor in the bankruptcy proceedings of the new firm, and, by participating in the distribution of tho property of the new firm, to save himself from any loss arising out of the liability for the debt, it would be inequitable to permit such creditor, at so late a day, to charge the estate of the retired partner-with liability.</p>

<p>1. Mortgage — Unauthorized Stipulation.</p> <p>In the absence of fraud, the mere fact that a mortgage, drawn by the agent of the mortgagor, contained an unauthorized stipulation, would not avail as a defence to its foreclosure, although the mortgagor could not read the mortgage, and the same was not read to him before execution.</p> <p>2. Same — Execution on Sunday — Wisconsin Statute.</p> <p>A mortgage executed on Sunday, without the knowledge of the mortgagee, dated, acknowledged, and delivered on the following day, is not void under the statute of Wisconsin, which imposes a fine for any labor or business done on the first day of the week.</p> <p>3. Same — Same—Estoppel.</p> <p>In such case the mortgagor is estopped from showing that the mortgage was executed on a day other than that of which it bears date.</p> <p>4. Option to Declabe Whole Amount Due — Notice.</p> <p>Where a mortgage contains a provision that the mortgagee may, at his option, declare the whole amount due after there has been a default in the payment of interest for 10 days, such option must be declared at the expiration of 10 days, or within a very short and reasonable time thereafter.</p> <p>5. Same — Same—Same,</p> <p>Notice of the mortgagee’s option to declare the whole amount due after a default of six weeks was too late under the circumstances of this case. — [Ed.</p>

<p>1. Tax Deed — Statute of Limitations — Wisconsin Rev. St. § 1210.</p> <p>The omission of a recital in a tax deed, under the statutes of Wisconsin, of the previous issue of an irregular tax deed, does not prevent the running of the statute of limitations. — [Ed.</p>

<p>1. TllUST — PARTNERSHIP.</p> <p>Where a trust is created by deed, which contemplates the purchase of municipal bonds, (the legal title to which is vested in the trustees,) by a fund raised by the sale of certificates payable to bearer, which entitles the holder to participate in the income and in the distribution of the securities by a drawing’, in a mode prescribed in the deed, the relation of partners does not exist between the certificate holders.</p> <p>Whether such a trust is illegal under the English companies act, 1862, quvre.</p> <p>2. Negotiable Paper — Title op Purchaser.</p> <p>The rule that the purchaser of a chattel acquires no better title than his vendor possessed has no application to negotiable paper. The party who takes such paper before due for a valuable consideration, without knowledge of any defect of title, and in good faith, holds it by a title good against all the world.</p>

<p>1. Attachment — Under-Filing Creditor — Release of Attached Property — Liability of Sheriff — Statutes of Indiana,</p> <p>la the state of Iadiaaa an under-filing creditor in an attachment proceeding, not dismissed of record, has a right of action against the sheriff and his sureties for the prior release of the attached property, without notice, under an agreement between the original parties to the attachment suit. — [Ed.</p>

This was a writ of habeas corpus and certiorari to review the proceedings had before Darius J. Davison, United States commissioner, with reference to the application of the Canadian authorities for the extradition of the petitioner, Oliver Lane. Under the writ of habeas corpus the marshal returned that he held the prisoner in custody by virtue of a mittimus from the commissioner to await the order of the secretary of state.

Section 44-72 of the Revised Statutes of the United States, under which these actions are brought, prohibits the carrying of petroleum, naphtha, nitro-glycerine, and other explosive and dangerous articles upon passenger vessels, but excepts from the prohibition refined petroleum of a certain fire test, upon routes where there is no other practicable mode of transportation.

<p>1. Perjury — Deposition—Oath—Evidence—New York Statutes.</p> <p>Upon a trial for iierjury, for having sworn falsely as to the truth of a certain deposition, the notary, who administered the oath in the state of New York, testified that there was hut one legal form of administering an oath in the state, and that such form was, “Do you solemnly swear that the above affidavit subscribed by you is true, in the presence of the ever-living God;” that he “used that form substantially,” but did not know whether he “put in the presence of the ever-living God;” but that he was “ a little conscientious about that,” and “a little careful about using it.” Held, upon a motion for a new trial, that this testimony of the notary, coupled with the certificate given at the time to the effect that the affidavit was sworn to before him, was sufficient evidence to sustain a finding- that an oath was administered to the accused. — [Ed.</p>

<p>1. PRACTICE — Notice to Produce Letter.</p> <p>Notice to produce an original letter was served upon the defendant’s attorney on the afternoon of the day before the trial, at 20 minutes before 5 o’clock. Held, whore the defendant’s attorney had his office in the same town, and near the place of trial, that the notice was sufficient.</p> <p>2. Same — Same—Envelope.</p> <p>The notice described the letter as enclosed in an envelope. Held, that the notice sufficiently indicated an intention to call for both the envelope and its enclosure.</p> <p>3. Lottery Circular — Deposit in Mail — Evidence.</p> <p>Upon the trial of defendant for having deposited a lottery circular in the mail, in reply to a letter addressed to John Duff & Co., it was proved (1) that defendant was accustomed to use the name of John Dull'& Co., and sold lottery tickets under that name; (2) that defendant personally received the letter which contained the order for the circular in question, and also money to pay for two lottery tickets ; and (3) that the circular was addressed to a fictitious name, known only to the defendant and the sender of the order. Held, under these facts, that it was competent for the jury to infer that the defendant deposited the circular.</p> <p>4. Same — Addressed to Fictitious Name — Rev. St. § 3893.</p> <p>A letter containing a lottery circular, addressed to a fictitious name, was deposited in the mail. Held, that such letter was within the scope of section 3893 of the Revised Statutes, relating to the mailing of letters or circulars concerning lotteries.</p> <p>5. Same — Delivery to Federal Officer.</p> <p>Held, further, that it did not make any difference in the act done by fhe defendant tha1 the person to whom the letter was delivered was an officer of the United States.</p> <p>6. Same — Juror—Talk About Lottf.ry Business.</p> <p>A juror who sat upon the trial of the defendant heard some general talk in the corridor of the court-house, before he was empanelled, about the wickedness of those engaged in the lottery business. Held, upon motion for a new trial, that ho was not thereby disqualified.</p> <p>7. Witness — Occupation—Credibility.</p> <p>The occupation of a person may always be shown as bearing upon the question of his credibility as a witness. — [Ed.</p>

<p>1. MARSHAL — OBSTRUCTION IN PiSHFOHMANCE OH' DUTY— AllJREST BY Members of Munioupax, Poi.ice — Rev. St. § 5522.</p> <p>S. having attempted 1o vote in the ¡presence oí' a deputy marshal, under circumstances sufficient to justify 1 he belief that he was not entitled to vote, was arrested by the latter. The escape of the prisoner having been subsequently effected through the intervention of a crowd which surrounded the marshal, and the latter having been forcibly deprived of his cane, drew a pistol, when he was at once arrest ed by certain members of tho municipal police. Held, that such arrest was an obstruction of the marshal in the peformanoe of his duty, within the meaning of section 5522 of the Revised Statutes.— [Pd.</p>

<p>1. Bankrupt Law — Security bob, Advances.</p> <p>A security given by an insolvent debtor, for money advanced to liim at the time, is notin violation of the bankrupt law.</p> <p>2. Same — Security for Indorsements.</p> <p>And the same principle would apply to a security given for a liability assumed (i. e., as an indorser) upon which money is raised for the bankrupt.</p> <p>3. Same — Same — Security Subsequently Given — Agreement for, NEED NOT BE IN WRITING.</p> <p>And if such advancement is made, or obligation assumed, upon an agreement that the bankrupt would execute a mortgage upon certain personal property to secure such advances or such assumed liability, a mortgage in pursuance of such agreement will be valid; and it is not necessary that such agreement should he in writing.</p> <p>4. Same — Exchange of Securities.</p> <p>An exchange of securities is not in violation of the bankrupt law.</p> <p>5. Unrecorded Chattel Mortgage — Valid between Mortgagor and Mortgagee.</p> <p>As between mortgagor and mortgagee, a chattel mortgage is valid without being recorded.</p> <p><3. Same — Assignee in Bankruptcy — Bankrupt—Creditors.</p> <p>In relation to liens of this character, the assignee occupies only the position of the bankrupt, and therefore is precluded from disputing their validity.</p>

<p>1. Bankruptcy — Mortgage Foreclosure — Assignee not a Necessary Party.</p> <p>The assignee in bankruptcy of a bankrupt mortgagor is not a necessary party defendant to foreclosure proceedings instituted prior to the adjudication in bankruptcy.</p> <p>2. Same — Same—Assignee Can be Made a Party.</p> <p>Such assignee can, however, be made a party upon his own petition, if there should be any reason for his interposition. — [Ed.</p>

<p>In Equity. Proceedings for Contempt.</p>

<p>In Equity. Suit for Infringement.</p>

<p>1. Motion to Strike Out Testimony.</p> <p>Motion to strike out testimony upon the grounds (1) that said testimony, and the oaths thereto, are fictitious and void; (2) that the direct testimony oí said witnesses is fraudulent and inoperative; and (3) that said testimony is unauthorized, and does not properly form any part of the record, or of the proofs, denied, under the circumstances of the case. — [Ed.</p>

<p>In Equity. Suit for Infringement.</p>

<p>In Equity. Suit for Infringement.</p>

In Admiralty. Libel by the master of the bark Ajace against the steam-tug S. Shaw for damages sustained by collision. It appeared from the evidence that the bark, on September 18, 1879, started from Philadelphia and proceeded down the Delaware river in tow of a tug. Late in the afternoon she passed the tug S. Shaw, also bound down the river, and with the schooner Annie M. Allen in tow.

<p>1. Time oe Removal — Act oe March 3,1875, § 3.</p> <p>The words, “ before or at the term at which said cause could be first tried, and before the trial thereof,” contained in section 3 of the act of March 3,1875, relating to the removal of causes, mean, in regard to suits then pending, the first trial after the right of removal attaches, subsequently to the passage of the act.</p> <p>2. Same — Same.</p> <p>Suit was brought in a state court, January, 1872; put at' issue March, 1872; tried by a jury, June, 1878; verdict and judgment obtained by plaintiff, July, 1878; judgment affirmed by the general term of the court, March, 1879; judgment reversed by the court of appeals, and new trial ordered, June, 1880; judgment of court of appeals made judgment of court below, Juno 11, 1880 ; petition for removal filed by plaintiff December 31, 1880. Held, upon motion to remand, that the petition for removal was not filed intime, under section 3 of the act of 1875. — [Ed.</p>

<p>1. Raileoad — Mortgage Foreclosure — Petition for Bill of REVIEW.</p> <p>A trustee filed a bill to foreclose two railroad mortgages, January 23, 1878, and obtained a decree of foreclosure April 3,1879. Held, upon petition of a second-mortgage bondholder for a bill of review, filed January 10, 1881, within a few days before the sale under the decree of foreclosure was advertised to take place:</p> <p>(1) That an adjudication in such decree that part of the second-mortgage bonds were issued in exchange for interest coupons due upon the first-mortgage bonds, and were, with interest thereon, “a lien under the said first mortgage, and constituted a part of the debt secured thereby,” did not entitle such second-mortgage bonds to a preference over the first-mortgage bonds.</p> <p>(2) That, therefore, where the decree had provided that the greater part of the purchase money, upon the sale of the railroad, might be paid in cash, or first-mortgage bonds, or such second-mortgage bonds as had been therein adjudicated to be secured by said first mortgage, at such percentage as the court should authorize at the confirmation of the sale, it was not necessary that such decree should further provide for a cash payment at the time of the sale sufficient in amount to liquidate in full such second-mortgage bonds as were secured by said first mortgage.</p> <p>(3) That a course of procedure prescribed by the mortgages, to be pursued in case of a sale by the trustee without foreclosure, was not binding upon the court in proceedings to foreclose such mortgages.</p> <p>(4) That, therefore, upon a foreclosure sale, the court was not bound to adopt the provisions of the mortgages, as to the application of the bonds upon the bid of a purchaser, or as to the proportion in which such bonds should be so received, or as to the manner in which their value should be ascertained.</p> <p>(5) That where the decree authorized the mortgage bonds to be applied on the purchase of the railroad upon the foreclosure sale, it was not essential that such decree should determine the percentage value of such bonds before the sale actually took place.</p> <p>(6) That, therefore, a provision in such decree that the purchaser, after the payment of a certain specified amount in cash, could pay the balance of his bid in outstanding bonds and coupons, secured by the first mortgage, “ at such percentage of the face value thereof as this court shall, at the approval of said sale, authorize and direct,” was not erroneous, and was similar to that inserted in all railroad mortgage foreclosure sales entered in the (seventh) circuit.</p> <p>(7) That the court cou]d require, upon the subsequent presentation of intervening claims, as a condition precedent to the confirmation of the sale, that the purchaser should make a larger cash payment to meet all exigencies than that fixed by the terms of the decree.</p> <p>(8) That a question as to an adverse title to a part of the mortgaged premises, pending between the receiver of the railroad and a third party, did not seem to be one that could be litigated in a suit to foreclose the mortgage.</p> <p>(9) That the denial of the railroad’s title would divest the petitioner of all right to object to the decree and foreclosure proceedings, upon the ground that such third party was not made a defendant to the foreclosure suit.</p> <p>(10) That where, upon default, a majority of the bondholders had requested the trustee to institute foreclosure proceedings, the mere fact that certain bondholders, including the president of the railroad, retained counsel for the company for the purpose of procuring service of process of subpcena in a genuine action to foreclose these valid mortgages, given to secure a just debt, did not constitute a fraud upon the petitioner, although she had no knowledge at the time of such action by said bondholders.</p> <p>(11) That an agreement entered into between the bondholders for the proposed reorganization of the road could only be considered, under the petition, to the extent that the particular interests of the petitioner might be involved; and that under this restriction no such grounds of objection to the agreement wore presented, or such probable injury to the petitioner shown, as made the petition sustainable.</p> <p>(12) That it was a serious question whether the petitioner had not been guilty of laches in presenting such petition nearly two years after the decree had been filed, and within a few days before the sale was advertised to take place, without any averments in the petition that would seem to sufficiently excuse the delay.</p> <p>(13) That the petition did not allege that the petitioner had any interest in the second-mortgage bonds secured by the first mortgage, or that the mortgaged property was of sufficient value to pay more than the first-mortgage bonds, or contain any allegation whatever as to the value of the mortgaged property, and that therefore it was not certain that the petitioner, as the holder of the bonds described in her petition, had any real interest in the subject-matter of the controversy. — [Ed.</p>

<p>1. General Agency — Power of Attorney — Evidence.</p> <p>If there is clear and satisfactory evidence from which a general agency may he inferred, a written power of attorney, conferring upon the agent certain specific powers, will not he construed as restricting the authority of the agent to the particular matters therein specified, if the power of attorney, in its terms, is not exclusive nor inconsistent with such general agency.</p> <p>2. Same — Same—Innocent Party.</p> <p>The authority of an agent under a written power of attorney may he impliedly expanded hy the conduct of the principal in favor of an innocent third party, even where such party, when dealing with the agent, had knowledge of the written power.</p> <p>3. Same — Contract—Estoppel.</p> <p>If such agent, who, with the knowledge and acquiescence of his principal, has habitually exercised authority heyond the scope of the written power of attorney, enters into a contract with a third party, who was induced to believe by the conduct of the principal that he reposed trusts in the agent beyond those specified in the written power, the principal and his voluntary assignee will be estopped from denying the validity of the contract, especially where it enured to the benefit of the principal, and the other contracting party cannot be restored to his former position.</p>

<p>1. Witness — Party to Suit — Action by Administrator — Rev. St. § 858.</p> <p>In a suit by an administrator for the annulment of a contract, upon, the ground of fraud and undue influence, the defendant is disqualified, by section 858 of the Revised Statutes, from testifying as to transactions and conversations with the decedent personally.</p> <p>2. Contract — Fraud—Insanity'—Evidence.—[Ed.</p>

<p>Action at Law. Motion that defendants be required to answer certain interrogatories, filed in the clerk’s office, in accordance with the practice of the state.</p>

<p>1. New Trial — Verdict' Contrary to the Weight of the Evidence.</p> <p>A motion for a new trial will not he granted upon the ground that the verdict was contrary to the weight of the evidence, unless it clearly appears that the jury must have fallen into some important mistake, or must have departed from some rule of law, or must have made deductions from the evidence which were plainly not warranted by it.</p> <p>2. Same — Same.</p> <p>Therefore, where the verdict was, in substance, “We find for the defendant upon the general issue, and give no consideration to the special pleas,” it was held that a motion for a new trial should be granted, where it was shown that the verdict was not warranted upon the evidence under the general issue, although it could have been sustained if the verdict had been simply for the defendant, without any mention of the special pleas. — [Ed.</p>

<p>1. Negotiable Paper — Want of Consideration — Evidence.</p> <p>Want of consideration may be shown as between the parties to negotiable paper and others having notice.</p> <p>2. Same — Same—Indorses.</p> <p>Therefore an indorser may show that he became a party to the paper without consideration, in a suit by the holder with notice. —[Ed.</p>

Assumpsit by the United States against the Central National Bank, to recover the amount of the following cheek paid by plaintiff to defendant upon a forged indorsement: “No. 6640. Washington, March 24, 1868. “Assistant treasurer of the United States pay to the order of Jos. Barr one hundred dollars. “f 100. C. Holmes, “Paymaster U. S. A. [Indorsed] —“Joseph Barr, “Jas. Barr, “James M. Sellers.” The check had been presented and paid in due course.

The defendant was indicted for violation of the internal revenue law. When the case was called for trial, and a jury was being empanelled, the defendant, in the exercise of his right of challenge, challenged from the jury some of the jurors who had been regularly drawn and summoned as jurors for the term. To fill the vacancies occasioned by these challenges the court directed the marshal to fill the panel by calling persons from the bystanders.

<p>1. Forfeiture — Property Used as a Distillery.</p> <p>Premises occupied and used as a distillery are liable to forfeiture for the violation of sections 7 and 19 of the act of July 20, 1S68, (15 St. 127,132,) in relation to distillers’ bonds and books of account, without regard to the culpability of the owner of the property.</p> <p>2. Same — Decree of Condemnation.</p> <p>A decree of condemnation under such forfeiture relates hack to the time when the acts were committed which incurred the forfeiture.</p> <p>3. Same — Mechanic’s Lien.</p> <p>A mechanic’s lien cannot be enforced in a state court, where the premises have been seized by the marshal under such forfeiture proceedings before the claim has been filed. — [Ed.</p>

<p>1. Revenue Law — Distiller—Assessment fob Material Used in Excess of Capacity.</p> <p>If a distiller uses material for distillation in excess of the estimated capacity of his distillery according to the survey, but, in the regular course of his business, pays the tax upon his entire production, he cannot be again assessed the regular gallon tax on the sp.nts which the excess of material used should have produced.</p> <p>2. Same — Same—Same—Void—Attacked Collaterally.</p> <p>An assessment therefor, and all proceedings taken thereunder, are void, and may be attacked collaterally.</p> <p>3. Fire Insurance — -Application foe — Liens—Illegal Assessment and Levy.</p> <p>A policy of insurance required that liens upon the property insured should be disclosed in the application therefor, and provided that a failure to do so would avoid the policy. Held, that such illegal assessment, and a seizure of the insured property thereunder, did not create a lien thereon, the non-disclosure of which would avoid the policy.</p> <p>4. Same — Policy—Change of Possession — Legal Process — Illegal Assessment and Sale.</p> <p>The policy also provided “that if any change take place in the * * * possession of the property by legal process * * * it shall avoid the policy.” Held, that such illegal assessment, and a seizure and sale of the insured property thereunder, were not a change of possession by legal process.</p> <p>5. Same — Same—“Legal Process.”</p> <p>The phrase “ legal process ” means valid legal process.</p> <p>6. Fire Insurance — Policy—Cancellation.</p> <p>The right to terminate, by cancellation, a contract of insurance which has been fairly entered into, and has taken effect, can be exercised by either party, only by a strict compliance with the provisions of the policy relating thereto.</p> <p>7. Same — Same—Same—Burden of Proof.</p> <p>The burden of proving a cancellation is upon the party claiming that the contract has been terminated.</p> <p>8. Same — Same—Same—Sufficient Evidence.</p> <p>And where the policy provided that the company might terminate the insurance “ by giving notice to that effect and refunding a rata-tie proportion of the premium for the unexpired term of the policy,” held, that the company must show that it had given the assured notice that the policy was cancelled, and that it had paid or tendered him such portion of the premium; and notice that the policy would he can-celled, or a promise to pay, or a request to call for, the premium, is insufficient.</p> <p>9. Same — Same—Same—Power of A.gents — Delegatus non potest Delegare.</p> <p>Agents of an insurance company cannot delegate to others the power to cancel a policy; hut it is not necessary that they should, in person, deliver the notice and pay or tender the return premium.</p>

<p>1. Imports — Appraised Value — Penal Dtjty.</p> <p>If an invoice of imported goods comprises several items of the same kind and description, and one or more items are found to have been undervalued, the penal duty will be imposed upon all the items of the same kind and description, if the appraised value exceeds by 10 per cent, the aggregate entered value of such items.</p> <p>2. Same — Ladies’ Dress Goods — Classification.</p> <p>Ladies’ dress goods do not constitute items of the same kind, within this rule, where they diflier so much in price, figures, and arrangement of colors as to be classified and known to the trade by different names.</p> <p>3. Same — Corrected Invoice — Valuation.</p> <p>The valuation of such importations should be made on Ihe corrected invoice, received and accepted by the collector before the ap-praisement of the goods. — [Ed.</p>

<p>Indictment for Voting Unlawfully, contrary to section 5511, Rev. St.</p>

<p>1. Bankruptcy — Jurisdiction.</p> <p>A voluntary petition in bankruptcy, signed and verified by the agent of the debtor, will be sufficient to sustain the jurisdiction oí the bankruptcy court in a collateral proceeding'.</p> <p>2. Same — Void Assignment — Assignee in Bankruptcy.</p> <p>An assignment for the benefit of creditors, made within four months of the filing of a voluntary petition in bankruptcy, is voidable at the suit of the assignee in bankruptcy.</p> <p>3. Same — Expenses Prior to Assignment in Bankruptcy.</p> <p>In such case the assignee l'or the benefit of creditors should be allowed, upon an accounting, for all proper expenses and services under the assignment, prior to the bringing of the suit to avoid the assignment. — [Ed.</p>

<p>Specifications against Discharge.</p>

This was a qui tam action brought under section 4965, Rev. St.,* by Schreiber & Sons, who sued, as well for the United States as for themselves, against Charles L. Sharpless, Henry W. Sharpless, and Charles W. Sharpless, “trading as Sharp-less & Sons,” to recover the statutory penalty for the copying, publishing, and selling by defendants of a photograph copyrighted by plaintiffs.

<p>In Equity. Exceptions to Answer.</p>

<p>1. Rb-Isstje No. 7,985.</p> <p>Iie-issue Iso. 7,985, for an “ improvement, in sewing machines,” is not void as to the first three claims for want of novelty.</p> <p>2. Same.</p> <p>There is no departure in such re-issue from the original, which in any manner ailed s the validity of the third claim of the ro-issuo.</p> <p>3. Same — Infringement.</p> <p>The first three claims of such re-issue held to be infringed, although there were certain formal structural differences in the infringing machine. — [I£d.</p>

<p>1. Tow — Weecked Canal-Boat — Subsequent Liability of Tug.</p> <p>Where a canal-boat in tow of a tug sunk in a channel-way, and was abandoned by the tug, and two days after another vessel ran on the sunken wreck, which was not buoyed, and sustained damage, for which -she brought suit against the tug, held, that the tug was not liable for such damage, it appearing that the canal-boat had her master on board and in charge at the time of sinking ; that the tug did all she could to save her, and was justified in leaving her when she did.</p>

<p>1 AITVIITUXTY — OoMABTON — FERRY-BOAT APPROACH rNG SLIP — TOW— HesligeNoe — Hjsbteenth Rube ov Navigation — Jaghts.</p> <p>Where a steam-lug, with a tow on her starboard side, was moving slowly down the Hudson river on the Jersey side, a short distance above the Pavonia ferry, about 3 o’clock a. m., the night being clear and the weather fine, with lights indicating that she had a tow, and before reaching the ferry noticed the steam ferry-boat D., while on her trip from Hew York to .Jersey City, heading diagonally across and up the river and across the stern of the tow, and not yet having reached that point in her course at which she turned in towards the ferry-slip, whereupon the tug blew one whistle to the ferry-boat to indicate that she would pass to tho right of the J)., across her bows, which signal the ferry-boat did not observe or respond to, but continued on her course at full speed, and turned towards tho ferry slip as if to cross the bow of tho tug, which was then closely approaching tho month of the ferry slip, whereupon the tug, observing her movements, immediately reversed and backed at full speed, and when the ferry-boat was about 600 feet from the mouth of the slip she gave to the tug a signal of two whistles, which the tug did not reply to, but continued to back, and the ferry-boat, continuing on her course into tho slip without slowing or hacking for the tug, but slowing and backing to prevent her striking too violently against the ferry racks, and as she passed the tug came in collision with and injured the canal-boat in tow of the lug:</p> <p>Held, that the D. was in fault in not noticing and responding to the signal of the tug, in not keeping a good lookout and observing that the tug was proceeding down the river, and in not keeping out of the way of the tug alter she brought the tug and tow on her star-hoard hand.</p> <p>Held, immal erial that the tug was at the time moving very slowly, her movement being such that it could have been observed from the ferry-boat, and her lights showing that she had a tow.</p> <p>The Nwmgansett, 4 Fed. Rep. 244.</p> <p>Held, also, immaterial that the tug and tow w'ere moving down very near the ends of tho piers.</p> <p>Also held, that even if the tug was in fault, and if such fault contributed to the collision, tho owner of the canal-boat could recover his full damages against the ferry-boat.</p>

<p>1. Collision — Tow-Boat Channel — Barges at Anchor — Tow in Motion.</p> <p>Where barges were so moored as to encroach upon the tow-boat channel of the Ohio river, and be in the way of descending coal-tows, such tows being unwieldy and without sufficient steam-power to resist the force of the current, held, that the rule which requires a steamer in motion to steer clear of a vessel at anchor was not applicable to a descending tow-boat, whose tow struck the exposed barges, and that the tow-boat was not liable for damages, there being no want of proper effort on its part to avoid the collision.</p> <p>2. Same — Barges Anchored in Channel — Mode oe Navigating Tow.</p> <p>Where -there are two commonly-practiced and approved modes of navigating tow-boats with coal-tows past a certain point, parties who have there placed their barges so as to encroach upon the tow-boat channel, and be in the way of descending coal-tows, have no right to complain that a descending tow-boat did not pursue that one of the two modes which was the safer for the barges in their exposed situation, when those navigating the tow-boat did not know or have reason to suspect the barges were there until it was too late to change the mode of running the point.</p> <p>3. Same — Verdict in Common-Law Action — Contributory Negligence — Evidence.</p> <p>The owners of the tow-boat brought a common-law action against the owners of the barges for damages sustained by the collision, alleging that it was caused by the defendants having negligently and unlawfully obstructed the channel, and'there was a general verdict and a judgment thereon for the defendants. Held, that in a sui1 in admiralty by the owners of the barges against the tow-boat, the judgment in the action at law was not conclusive against the tow-boat, even to the extent of fixing upon the latter- contributory negligence, it not appearing upon what ground the jury based their verdict, and one of the defences submitted to them being that the barges were in circumstances of distress from a previous disaster, and the emergency such that the owners were excusable in putting them where they did.</p>

<p>1. ADMIRALTY — AMENDMENTS.</p> <p>Amendments are allowable in admiralty, in the discretion of the court, at any time until the termination of the cause.</p> <p>2. Mariner — Wages—Bey. St. §§ 4546, 4547.</p> <p>The proceedings, by a mariner to recover his wages, under the provisions of sections 4546 and 4547, U. S. Kev. St., are cumulative in tlicir character, and do not interfere with his rights to recover his wages by a proceeding according to the ancient course of admiralty, as the same existed before the passage of the act of 1790, upon which the above-named sections are founded.</p> <p>3. Same — Same—Same.</p> <p>At most, the effect of the sections above referred to is to restrain, a proceeding in, rem against the vessel before the expiration of 10 days after the wages are due.</p>

<p>1. Interest — Ohio—Legal Rate — 1863 to 18G9 — Payments in Excess.</p> <p>In Ohio, from April, 1863, to October I, 1869, 6 per cent, was the highest rate of interest that could legally be contracted for, and all payments in excess of that rate were to be deemed as payments upon the principal, and judgment could be rendered only for the balance.</p> <p>2. Usury — Estoppel to Plead — Release oe Mortgage Security.</p> <p>A loan, secured by mortgage upon the borrower’s property, was made in 1863. An usurious rate of interest was contracted for and paid until 1875. At that time, in order 1o perfect a sale of a portion of the property mortgaged, the mortgagee released his mortgage upon such portion, in consideration of the payment of all interest then due and half of the principal debt. There was no evidence that the arrangement was made in settlement of the previous usury, and the properly remaining was more than sufficient to satisfy the balance of the debt. Held, that the mortgagor was not estopped to set np the usury.</p> <p>3. Same — Lex Contractus.</p> <p>Whether a contract is usurious, is to he de'erminod by the law in force at the time of the making of such contract.</p> <p>4. Usurious Contract — Subsequent Law.</p> <p>At the time of the execution of the contract, the rate of interest stipulated for therein — 8 per cent. — was usurious. Subsequently a law was passed which permitted persons to stipulate for that rate. Eeld, that payments of interest thereafter, made in fulfilment of such previous contract, were usurious.</p> <p>5. Usury — Eiotjtjous Principal.</p> <p>Where the interest paid, 'a in excess of the legal rate upon the amount actually due at the time of payment, it is usurious.</p>

<p>In Equity. Demurrer.</p>

<p>In Equity. Demurrer.</p>

<p>On Demurrer to Bill.</p>

<p>1. Delftbiit of Deed — Evidence of Intention.</p> <p>It is not necessary, in order to constitute a delivery of a deed, that it should he in fact handed over to the grantee, or to a person in trust for him; hut, where there is no actual handing over of the deed, some act must he done, or word spoken, to indicate such an intent, in order to make it effectual.</p> <p>2. Same — Husband and Wife.</p> <p>Held, therefore, where a married man procured a mortgage to he taken in the name of a third person, and caused the same to he assigned to his wife, hut retained possession and control of both the mortgage and assignment, that the mere promise to give the same to his wife did not constitute a delivery. — [Ed.</p>

<p>1. Equity Practice — Suit by Married "Woman — Husband a Party to the Suit.</p> <p>In a suit by a married woman, the husband should be joined in all cases where they have no antagonistic interests; but if it be otherwise, she should file her bill by her next friend, and make her husband a party defendant.</p> <p>2. Same — Amendment.</p> <p>Such defect of parties may be cured, however, by amendment.</p> <p>3. Tax Sale — Redemption—-Tender.—[Ed.</p>

In Equity. Rule to show cause why they should not be punished for contempt of court, by the violation of an inj unction, was issued against the Memphis & Little Rock Railroad Company, an Arkansas corporation, doing business in Tennessee, and certain designated officials and agents, who, being served with the rule, all appeared and answered, including the corporation.

<p>On Bill to Foreclose, etc.</p>

<p>1. Joint Trespass — Several Suits — Unsatisfied Judgment.</p> <p>An unsatisfied judgment against one joint trespasser is no bar to a suit against another for the same trespass.</p>

The indictment set out that the defendants were judges of election for the third ward precinct of the town of Manchester, at an election held on the second of November, 1880, for choosing, amongst other officers, a representative in Congress from the third district of Virginia, and charged that they did, at said precinct, in said election, “unlawfully neglect and refuse to perform a -certain duty required of them by the laws of. the United States and of .the state of…

<p>1. Naturalization — White Person.</p> <p>A person of half white and half Indian blood is not a “ white person,” within the meaning of this phrase as used in the naturalization laws, and therefore he is not entitled to be admitted to citizenship thereunder.</p>

<p>1. GRANT TO CHILDREN UNDER SECTION 4 OF THE DONATION ACT.</p> <p>Upon the death ol a married settler, under section 4 of the donation act, (9 St. 497,) before receiving a patent for the donation, and without having exercised the power to sell or devise the same, his interest therein is granted to his widow and children or heirs, and they take as the direct donees of the United States, and not. by descent from such settler; and therefore the property cannot be sold by the administrator to pay his debts.</p> <p>2. Children.</p> <p>The word “children,” as used in section 4 of the donation act, includes grandchildren; so that the children of a deceased child are entitled by right of representation to a child’s part in the donation occupied thereunder by their grandparents.</p> <p>3. Children or Heirs.</p> <p>The grant of the interest of a deceased settlor in the donation to his “children or heirs,” as provided in section 4 of the donation act, takes effect in favor of the children first, and to the heirs only in default of children.</p> <p>4. Heirs of a Deceased Settler.</p> <p>The heirs of a deceased settler, under section 4, are such persons as the local law — the law of Oregon — makes his heirs.</p> <p>5. Patent to the Heirs of a Deceased Settler.</p> <p>A patent to the heirs of a deceased settler, under said section 4, presupposes that it'was found in the land department that such settlers left no children, and the contrary cannot be shown to afEect the patent in an action at law.</p>

<p>In Bankruptcy. Exceptions to the Register’s Report.</p>

<p>1. Statutes of Limitation — Remedy.</p> <p>Statutes of limitation operate upon the remedy, not the title.</p> <p>2. Same — Assignee in Bankruptcy — Rev. St. 5 5057.</p> <p>An assignee in bankruptcy is not precluded from defending against a claim by the wife of the bankrupt for a copyright royalty upon the ground that the copyright was transferred to her by her husband in fraud of his creditors, because he did not, within the two years limited by section 3057 of the Revised Statutes, proceed by suit to recover the copyright or have the transfer set aside.</p>

<p>J. Trade-Mark — Patented Articm — Specjotc Designation.</p> <p>Where a word indícalos a patented machine of peculiar mechanism, such word cannot be protected as a trade-mark upon the expiration, of the patent.</p> <p>2. Same — “ Singer ” Machine.</p> <p>Certain patented sewing machines were known as the “Singer” machines. JTdd, that the word “Singer’2 was not a trade-mark, and became common proi>erty upon the expiration of the patent.</p>

<p>1. Ineuinokmestt o» Patent — Exceptions to Mastek’s Kefobt.</p> <p>The Stevens patent for improvement in railroad-ear brakes, which expired in 1872, having been held valid, upon reference to a master ho reported that the advantages derived by the defendant from its use amounted to 830 per car per year, and that finding that during the latter years of the existence of the patent there was an established license fee of $25 per car per year, lie assessed the complainant’s damages at that rate from the time the license fee was established. Held, that the master’s findings, as to both profits and damages, wore warranted by the testimony, but that, as it was difficult to compute with exactness the money value of the advantages accruing to the defendant from the use of the patent, and as there was conflict of testimony on that subject, the court would accept the license fee as the basis of compensation least likely to do inj ustice, and would decree as for profits at that rate, without interest.</p>

<p>1. Combination Patent — Infringement.</p> <p>A patent for a combination of known parts is not infringed by tbe use of any number of the parts less than the whole.</p> <p>2. Same — New Parts — Infringement.</p> <p>The use, in combination, of any of the new parts of a patented combination constitutes an infringement.</p> <p>3. Same — Scope of Claim — New Parts.</p> <p>Where the invention claimed only describes the combination, the separate constituent parts of such combination should be regarded as old, or common and public.</p> <p>4. Same — Old Part — New Use.</p> <p>The application of an old or well-known part or thing to a new • use, in a patented combination, does not constitute such invention as would render its appropriation an infringement.</p> <p>5. Same — -Skparate Elements — Entirety.</p> <p>A combination must be maintained as an entirety, and no one separate element can be regarded as the distinctive and essential feature of the invention.</p> <p>6. Same — Substitution oe Parts — New Functions — New Combinations.</p> <p>A combination is not infringed by the substitution of a new element, or of one that performs a substantially different function; or by the substitution of an old element, not known at the dale of the patent as a proper substitute for the omitted ingredient; or by a new combination of the existing' elements of the patented combination.</p> <p>7. Same — Infringement—Casts in Judgment.</p> <p>A patent for an improvement in cultivators claimed tho combination of a slotted beam, shank, brace-bar, and bolt, when the parts were constructed and arranged to operate as and for the purposes specified. Held, that such patent was not infringed by a machine which contained such slotted beam, shank, and bolt, but did not include the brace-bar, or any mechanical equivalent for tho same. — [Ed.</p>

In Admiralty. In the matter of seamen’s wages, for which a libel has been filed and proceedings taken in this court against the schooner Jefferson Borden.

<p>1. Demurrage — Suspension oe Yoyage.</p> <p>It is not to be supposed, upon libel lor demurrage, in the absence oí an express agreement, that a master intended or was expected to suspend his voyage, and wait an indefinite period of time before proceeding to complete it, while the consignees were engaged in finding a purchaser for the cargo.</p> <p>2. Same — Lay Days — Stipulation as to Time and Place.</p> <p>When parties stipulate that lay days shall count from a certain time, at a certain place, and another place is afterwards substituted, the term, as to time, applies to the substituted place, there being no agreement to the contrary. — [Dd.</p>

Libel by the master of the ship Josephine against the tug Farnsworth, to recover damages caused by the grounding of the ship while being towed by the tug. The accident occurred June 25, 1880, while the ship was being towed by the tug up the Schuylkill river. The vessels were approaching a curve in the river, and just ahead was a tow of canal-boats bound in the same direction.

<p>In Admiralty. Damage.</p> <p>On the morning of the twenty-fourth of February, 1879, the Italian barkentine Arturo was lying at the pier of the Grand Junction wharf, in East Boston, known as No. 5, or the Elevator pier, where she had received her cargo, and was soon to proceed to England; but, being notified that her berth was wanted, her master desired to be towed to the wharf of the Eastern Eailroad Company, which lies up the harbor in a north-westerly direction.</p> <p>A channel suitable for all classes of vessels has been dredged to the Grand Junction wharves; but to the southward and eastward there is comparatively shoal water.</p> <p>The Arturo was heading up the dock, and to take her to her destination it was necessary that her head should be turned after she shonld come out of the dock, or while she was coming out. Two tugs, the j. C. Oottingham and the Nabby C., belonging to different owners, fastened to the barkentine, one on each quarter, and backed her out of the dock. A very fresh wind from the north-west and a strong ebb tide were constantly setting her towards the bank or shoal water above mentioned, and she grounded there almost immediately after leaving the dock, and sustained the damage complained of. The district court pronounced both tugs to be in fault. The J. C. Oottingham did not appeal. The question in this court was whether the Nabby C. was chargeable.</p> <p>There was evidence tending to show that the consignees of the Arturo had another Italian ship to be moved that morning, and asked Mr. Sargent, a shipwright, to procure her to be towed. Mr. Sargent had some interest in the J. C. Oottingham, or in her employment. He spoke to Mr. Sprague, who was agent for the tug Salem, and it was understood between them that this first vessel, the Danielo, should be moved by those two tugs. On returning to the consignee’s office, Mr. Sargent met the master of the Arturo, who asked him to procure towage for that vessel. Mr. Sargent went again to Mr. Sprague, and asked him to have the Arturo towed as soon as the towage of the Danielo was finished. Mr. Sprague procured Captain Chase, master of the J. C. Oottingham, to go to the Danielo, and to notify the Salem to assist him; all which was done, and the Danielo was moved by those two tugs. Captain Chase understood that the Salem was to assist him with the Arturo, but there was another engagement for her, and Captain Scollay, of the Nabby C., went, at Mr. Sargent’s request, to assist the J. C. Cottingbam, which had already gone over to Grand Junction wharf.</p> <p>When the Nabby C. arrived at the pier 5, she made fast, as directed by Captain Chase, who took command of all three vessels, and gave orders to back the tugs. The captain of the Nabby C. obeyed all the orders of Captain Chase.</p> <p>There was evidence of a usage in the port of Boston that the tug first spoken to “had the job;” that is, the right to conduct the navigation. And one witness testified that if the owners of the tugs were different, those who received the order, or the first order, sent in the whole bill. He added, that if it came to a lawsuit, he understood that each stood on its own bottom. The master of the Arturo had given a written order, but it was written in Italian, and the witnesses could not give its contents; they understood it to be a general order for towage, not specifying the number of tugs or their names.</p> <p>Tugs are bound to care and diligence, and to know the currents and shoals of the harbor in which they ply, and their own ability to do the work. The Margaret, 94 U. S. 494; The Express, 3 Cliff. 462; The Trojan, 8 Ben. 498; The Niagara-, 6 Ben. 469. The burden of proof is on them to show that • there was no negligence. The Webb, 14 Wall. 406; The Bel-knap, 2 L.ow. 281 ¡'The Clover, 1 Low. 342; The Workman, Id. 504. See, on both points, The Lady Pike, 21 Wall. 1; The Neto Philadelphia, 1 Black, 62; The Zouave, 1 Brown, Adm. 110; Trans. Line v. Hope, 95 U. S. 297; Smith v. St. Latorence Go. L. R. 5 P. C. 313; The Armstrong, 1 Brown, Adm. 130; The Austen, 3 Ben. 11; The Morton, 1 Brown Adm. 137; The Moliler, 21 Wall. 230; The James A. Wright, 3 Ben. 248; The U. S. Grant, 7 Ben. 337; Hays v. Paul, 51 Pa. St. 134.</p> <p>The Nabby C. was employed by the bark, and was not the mere servant of the J. C. Cottingham. Recovery can be had in admiralty against an offending thing, without regard to ownership or agency. The Ticonderoga, Swabey, 215; The Ruby Queen, Lush. 266; The May Queen, 1 Sprague, 588; The R. B Forbes, Id. 328; The Rescue, 2 Sprague, 16; The Curolus, 2 Curtis, C. 0. 69.</p> <p>The duty of the tug not to injure the tow does not arise out of the towage contract, but is imposed by law. Phila. é Reading R. Co. v. Derby, 14 How. 468; The Clarita d Clara, 23 Wall. 1; The Quickstep, 9 Wall. 665; The Deer, 4 Ben. 352.</p> <p>The modern rule of the admiralty, in cases of damage by a vessel in tow, is that the vessel whose master is actually guilty of negligence shall respond. The John Frazier, 21 How. 184; Sturges v. Boyer, 24 How. 122; The Maria Martin, 12 Wall. 31; The Mahey é Cooper, 14 Wall. 204; Sproul v. Hemingway, 14 Pick. 1. They also referred to some of the cases cited by the libellants.</p> <p>By the usage of the port the Nabby 0. was under the absolute control of the master of the J. 0. Cottiugham, and his tug alone is Responsible for his negligence.</p> <p>Vessels coining to a port are bound by and presumed to know its usages. The libellants, therefore, knew that their implied contract, if they had one, with the Nabby C., was merely that she should assist and act under the orders of the other tug. Goodenow v. Tyler, 7 Mass. 36, 46; Dwight v. Whitney, 15 Pick. 179, 183; Benson v. Schneider, 7 Taunt. 272; Cuihhert v. Cumming, 10 Exeh. 809; affirmed, 11 Exch. 405.</p>

In Admiralty. Libel for Wages. Upon motion of the libellants’ proctor to confirm the report of the admiralty commissioner under the forty-fourth rule in admiralty.

In Admiralty. Libel for collision, by the schooner Galloway C. Morris against the steam-tug Ben Hooley. The facts are as follows: On November 3, 1876, the schooners Ella C. Little and Index were lying at a pier in the Delaware river. The Index employed tho respondent tug to tow her into the stream, and in order to do so the tug undertook to first tow the Little into the stream. While doing this the hawser parted and the Little collided with and damaged the Galloway 0.

<p>1. Cause Bemovkd — Injunction.</p> <p>Upon the removal of a cause to a circuit court, the same has power, before the first day of its next term, to allow or modify an injunction.</p> <p>2. Injunction.</p> <p>Where a suit for injunction turns wholly upon the validity of an act of the legislature granting the defendant the exclusive right to the use of certain property, to aid in the construction and operation of its railway, which is claimed by the plaintiff as a public levee or landing, and the use of such property, in a way not materially in conflict with any use to which it is being put, is of great advantage to the defendant, an injunction restraining it from such use will bo modified accordingly; and, in the consideration of the matter, weight will bo given to the presumption that an act of the legislature is valid, and that the defendant is engaged in a public enterprise in which the public is interested.</p> <p>3. Bond.</p> <p>Upon the modification of an injunction the court may require, a condition of such modification, that the defendant give a bond to secure the plaintiff against any injury which may result to it from the same, or to perform the final decree concerning the same.</p>

<p>Suit in Equity for an Injunction. Motion for preliminary injunction.</p>

In Equity. Demurrer. This was a bill filed by tlie policy-holders of the St. Louis Mutual Life Insurance Company for relief against its stockholders; The company, a Missouri corporation, was chartered on the mutual plan, with stock of the par value of §100,000, of which defendants were the owners.

<p>1. Betterment Act — Conn. Gen. St. (Rev. 1875) p. 362, Construed.</p> <p>Where a defendant in ejectment, in^good faith, believing that he had an absolute title to the land in question, has made valuable improvements thereon, before the commencement of the action of ejectment, final judgment will not be rendered for the plaintiff in ejectment until he has paid to the defendant the value of his improvements, less the sum due by him for use and occupation.</p> <p>Where good faith and belief actually existed, the deeds'not showing that an absolute title was not conveyed, and the defendant not being chargeable with laches, he will be allowed the value of his improvements, notwithstanding that he held merely under a quitclaim deed.</p> <p>Mere notice of adverse claim does not forbid the conclusion that such subsequent improvements were made in good faith.</p>

This action was tried before the court without a jury. The plaintiffs are citizens and residents of the state of Iowa, and the defendant is a citizen and resident of the state of Minnesota.

<p>1. Statute ot? Limitations — 'Kentucky — Fraud — Discovery ow — When Cause or Action Accrues — Pleading—Practice.</p> <p>The Kentucky statute of limitations (Gen. 81. art. 3, c. 71, § 6) provides that “ in actions for relief for fraud or mistake, or damages for either, the cause of action shall not be doomed to have accrued until the discovery of the fraud or mistake;” and, by section 2, such actions must “be commenced within five years next after the cause of action accrued.” In a suit to recover money expended and lost by reason of the fraudulent representations of defendant’s testator, 'held, that it will be presumed that the cause of action arose when the fraud was committed, and, to avoid such presumption, the plaintiff must, allege and prove the time of the discovery of the fraud.</p> <p>2. Same — Pleading—Practice.</p> <p>And where the defendant had ple.adedtlio statute, alleging that the cause of action accrued when the alleged fraud was committed, (which was more than five years before the suit was brought,) held, that upon failure to reply thereto the defendant is not deprived of her right to a judgment in her favor, because she had also alleged that the fraud was discovered more than five years before suit was brought, to which the plaintiff had tendered the general issue.</p> <p>3. Kentucky Code — Practice—Statute or Limitations — Demurrer —Equity Practice.</p>

<p>1. Grant to Missions in Oregon.</p> <p>The grant to religious societies of mission stations in Oregon, contained in section 1 of the act of August 14,1848, (9 St. 323,) is not confined to a single station to each society, but includes as many stations as were then actually occupied by each society for missionary purposes among the Indians.</p> <p>2. Patent — Suryey.</p> <p>A patent issued under section 2447 of the Rev.' St., upon a survey not approved by the surveyor general, is void; and in case of a grant under section 1- of the act of August 14, 1848, the survey to be approved by the surveyor general necessarily involves the determination of the question, what is the quantity and boundary of the claim?</p> <p>3. Mission Station.</p> <p>The grant to religious societies contained in the act aforesaid of the missionary stations occupied by them in Oregon on August 14, 1848, not exceeding 640 acres, is not confined to the land actually enclosed and cultivated by them, but should be construed to include the maximum quantity at each station occupied by them; that is, claimed and in any way used by them, and not in the actual occupation of any one else.</p> <p>4 Occupation oe Mission Station.</p> <p>“ Occupancy ” is a word of narrower signification than possession, and means to possess by laying hold of or being actually upon the thing possessed continuously and exclusively. Prior to August 14, 1848, the title to all lands in Oregon was in the United States, and therefore no person could have constructive possession of any portion thereof, or any possession thereof, or interest therein, except actual possession or oecupancy; and when this was given up or abandoned, the relation of the party to the land was absolutely terminated.</p> <p>5. MissroN Station at the Dalles.</p> <p>The Missionary Society of the M. E. Church established a mission among the Indians at "Wascopum, near the Grand Dalles of the Columbia, in 1838, and in September, 1847, abandoned and transferred the same to Dr. Whitman, of the Presbyterian mission at Wailatpu, and never re-occupied the same. Held, that the society did not receive a grant of said station under section 1 of the act of August 14, 1848, because it was not at that date in the actual possession and occupation oí the premises; that such occupation was a condition precedent to the taking effect oí such grant, and therefore it mattered not whether the failure of the society to occupy the station in August, 1848, was voluntary, or was caused by the fear of hostile Indians.</p> <p>6. Payment by Congbess.</p> <p>The payment by congress to the missionary society of $20,000, in June, 1860, on account of the reservation of 353 acres of the Dalles mission station in March, 1850, for military purposes, and the loss or destruction of property thereon since 1847, by Oregon volunteers, Indians, or United States troops, did not have the effect to hjjrost the society with the title to such station then or on August 14, 1848; nor was it even an admission that the society had any legal right to the premises, but only that it asserted some kind of a claim thereto which it was deemed expedient to extinguish; nor could congress, in June, 1860, by a direct- recognition of a supposed prior grant to the society, affect the rights of others already acquired in the premises under the town-site and donation acts.</p>

<p>1. ElIBEZZT.F,MENT' — A-SSIGNEE TN BANKRUPTCY — Rev. St. § 5301</p> <p>Wliile an assignee in bankruptcy is an oilicor of the court, lie is not an oiiicer within the purview of section 5504, Rev. St., defining the offence of embezzlement by court officers, and there seems to he no other statute embracing assignees in bankruptcy for the specific offence of embezzlement.</p>

<p>1. Ee-Issu® No. 8,550 — Improvements in Time Locks — Novelty.</p> <p>Re-issued letters patent No. 8,550, for improvements in “time locks,” by which the multiple bolt-work of a safe or vault door could be automatically both dogged or locked and unlocked at predetermined times, — the dogging and releasing being caused by the operation of the time mechanism, and the time for locking or unlocking being capable of alteration at the will of the operator, without disturbance of the clock-work, — contained,, inter alia, the following claims:</p> <p>“(1) The combination of independent multiple bolt-work with the time mechanism and locking or dogging mechanism of a time lock, automatically both dogging and releasing the bolt-work at predetermined times, substantially as described.”</p> <p>“(7) In a time lock the combination, substantially as above set forth, of the time movements and two adjustable devices, one for determining the time of looking and the other of unlocking.”</p> <p>Held, that the language of the seventh claim was not to be extended so as to include time movements which were used for any obstructing purposes whatever, hut was to be considered as referring to the time lock of the specification only.</p> <p>2. Same — Same—Same.</p> <p>Held, therefore, that such claim was not anticipated by a patent for a structure containing two similar adjusting devices, which were operated to open and close a gas-cock much after tiie plan of the patented look.</p> <p>3. Same — Invention.</p> <p>Held, further, that the changes necessary to transform old time locks which unlocked at predetermined times into structures which should also lock at predetermined times, required the exercise of inventive power.</p> <p>4. Same — Same.</p> <p>Held, further, that the application to safe doors of chronomotrie mechanism for automatic locking and unlocking at predetermined times involved invention.</p> <p>5. Same — Jjsj'rinoement.</p> <p>Held, further, that where a lock has two adjustable devices for locking and unlocking automatically at predetermined times, which are the equivalents of the mechanism of the patented lock, infringement is not avoided by the mere fact that the infringing look can also bo used as an instant locker.</p> <p>6. Same — Same.</p> <p>Held, further, that the mere use of such infringing lock constitutes an infringement, although it has only been used as an instant looker.</p> <p>7. Patent Ho. 173,366 — Improvement in Time Locks — Mechanical Device.</p> <p>Letters patent Ho. 173,36G, for improvement in “ time locks,” by isolating the adjusting devices from the winding devices, and by excluding from the adjusting devices the person who winds the clocks, except when he is allowed the use of the key to the supplemental clock by which the adjusting devices are secured, contained, inter alia, the following claim : “In combination with the case of a chronometric lock, having a lid or door for covering the devices which control the hours of locking or unlocking, one or more winding devices, whereby, the lock being attached to the safe door, the time mechanism can be wound from the exterior of the case while the safe door is open, but is inaccessible when said door is closed.” Held that, so far as this claim was concerned, the alleged invention consists in simply securing the door of a time lock with a key, and in providing such door with an aperture through which the clock could be wound, and that in view of the Rutherford clock, the watchman’s time detector, and even the clocks and watches in common use, the improvement did not involve invention, and could only be regarded as mechanical.</p> <p>8. Re-Issue Ho. 7,947 — Application oe Time and Comuination Look-in» Mechanism tó the Bolt-Work oe a Sake Door — Combination —Patentable Result.</p> <p>Re-issued letters patent Ho. 7,947, for an improvement in a combined time lock, combination lock, and bolt-work for safe and vault doors, claimed, inter alia, “the combination with the bolt-work of a safe or vault door of a combination or key lock, controllable mechanically from the exterior of the said door, with the time lock, having a lock bolt or obstruction for locking and unlocking, controllable from the interior of the door, both of said locks being arranged so as to rest against, or connect with, the bolt-work — the time lock being automatically unlocked by the operation of the time movement; both of the said locks being independent of each other, and arranged to control the locking and unlocking of the bolt-work, so that said safe or vault door cannot be opened when locked until both of said locks have been unlocked, or have released their dogging action to enable the door to be opened, substantially as described.” Held, that this combination produced a new result, and was therefore patentable.</p> <p>9. Re-Issue — Abandoned Claim. — Leggett v. Awry, 101 U. S. 256.</p> <p>Held, further, under the circumstances of this case, that this claim was not within the scope of the language employed in Leggett v. Avery, 101 U. S. 256, in relation to the invalidity of a claim in a re-issue which had been abandoned, or rejected with the acquiescence of the patentee, upon the original application for letters patent. — [Ed,</p>

Bill in equity on account of an alleged infringement of reissued letters patent No. 6,050, for improvement in tools for the manufacture of paper bags. The patent was originally issued to Edwin J. Howlett and Susan M. Kirk, and was reissued to Edwin J. Howlett, as assignee. The answer denied that the re-issue was for the same invention that was described in the original patent, or that Howlett was a joint inventor, and alleged anticipation of the devices therein contained.

Libel by James Ward against the steam-ship Behera to recover damages for injuries to libellant’s barge. The facts were as follows: The iron steam-ship Behera, 248 feet long and 34 feet 8 inches beam, having, on board 1,750 tons of old rails, and drawing 22 feet aft and 20 feet forward, went into the dock at pier 39, Delaware river, Philadelphia, on June 7, 1880.

Libel by the Consolidation Coal Company against the steam-ship Norman, to recover for 277 tons of coal furnished to the vessel in New York. The following facts appeared from the testimony: The Norman was a coasting steam-ship, owned by a Massachusetts corporation, composed of residents of Boston and Philadelphia, in one of which ports she was enrolled. In November, 1878, Murray, Ferris & Co., residing in New York, chartered her for a voyage to Nassau and other ports.

<p>1. Delivery to Consignee — Tender oe Goods in Hold op Wreck-Bill of Lading.</p> <p>Certain consignments of goods were shipped in the bark Almira Coombs, and stowed in the lower hold. The bills of lading contained this clause: “ To be landed in ship’s lighters at risk and expense of ■ consignees.” The vessel was subsequently wrecked in the port of delivery, and a few tons of the goods taken out of the lower hold, but not the whole of any one consignment. Upon a survey of the wreck the surveyors reported that no more goods could be recovered without great expense, the hold being full of water, and that the attempt ought not to be made because the value was’insufficient to justify the expense of recovering them and the risk that must thereby be incurred, and advised a prompt sale of the ship and cargo as they then lay. Held, that a tender to the consignees of the goods which had been landed, and an offer to deliver those still on bbard upon pa\ ,.ient of the landing charges and freight, was not sufficient to entitle the ship to freight.</p> <p>2. Insurers — Proceeds Derived from Sale of Goods Insured-Freight.</p> <p>Held, therefore, that insurers who had paid a total loss upon the goods, and received from the insured assignments of the bills of lading and of all their rights of salvage, were entitled to so much of the proceeds derived from the sale of the ship and cargo as represented the goods insured by them. — [Ed.</p>

In Admiralty. This was a lihcl in personam by Elizabeth C. Moore against the Michigan Transportation Company, owner of the steamer Marine City, to recover for the loss of baggage upon a trip from Mackinaw to Detroit in August, 1880. The libel set forth that the steamer was burned upon the trip, and libel-lant’s trunk, with the contents, totally destroyed.

<p>1. National Banks — Taxation of Shakes — Assessment — Rev. St. § 5219.</p> <p>The restriction upon the power of a state to tax the shares of any national bank within its borders “ at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state,” (Rev. St. § 5219,) is intended to secure equality of valuation in the assessment of the stock, as .well as equality in the rate of the tax after the assessment has been made.</p> <p>2. COBFORATIONS — TAXATION—SHAREHOLDERS.</p> <p>An act for the taxation of corporations generally does not exempt individuals from assessment or taxation upon their personal property or moneyed capital invested in the shares of such corporations.</p> <p>3. National Banks — Taxation of Shakes — Capital Stock — Rev. St. $ 5219.</p> <p>Therefore the imposition of a higher assessment and heavier tax upon the shares of a national bank than those imposed upon the capital stock and personal property of other corporations within the state does not contravene section 5219 of the Revised Statutes.</p> <p>4. Same — Same—Assessment Roll.</p> <p>In such case, however, the failure of the assessors to place the names of the shareholders upon the assessment roll, in accordance with the requirement of the state statute, renders such tax illegal and void, although a separate list, with the knowledge of the shareholders, was kept by such assessors showing the names of all such shareholders, with the number of shares held by each, and the assessable value of all such shares.</p> <p>6. Same — Illegal Tax — Injunction.</p> <p>The collection of such tax will not, however, he enjoined upon the application of a shareholder, upon the mere ground of such illegality.</p> <p>8. Same — Same—Same.</p> <p>In order to prevent a multiplicity of suits, however, the collection of such tax will be enjoined upon the application of the bank, where the latter is required by the statute under which the assessment was made to retain so much of any dividend or dividends belonging to such shareholders as shall be necessary to pay any taxes assessed in pursuance of the act. — [Ed.</p>

<p>1. Railroads — Express Companies — Discrimination—Contract.</p> <p>A contract to furnish daily such an excessive and unnecessary amount of space, in the cars of a railroad company, for the transportation of the express matter of any one person or corporation, as will disable such railroad from serving others equally entitled to be served in the same manner, is illegal and void.</p> <p>2. Same— Same — Same—Same.</p> <p>Such a contract must be so framed as to adjust the rate of compensation to the number of persons and quantity (and perhaps quality) of matter transported, and to the length of the haul, and so as not to discriminate in favor of one or more companies or persons doing an express business against another or others engaged in a similar business.</p> <p>3. Reasonable Maximum Rates — Express Matter —Tex. Rev. St. arts. 4256, 4257.</p> <p>Articles 4256 and 4257 of the Texas Revised Statutes, “ establishing reasonable maximum rates of charges for the transportation of passengers and freight on railroads,” provide, inter alia, as follows:</p> <p>“Art. 4256. No railroad company shall demand or receive for transporting a passenger over its line of road exceeding five cents for each mile or fraction of a mile it may transport such passenger.” * * *</p> <p>“Art. 4257. Railroad companies may charge and receive not exceed-ins; the rale oí 50 cents per Irandred pounds por hurdrcd miles for the transportation of freight over their roads, hut the charges for transportation on each class or kind of freight shall he uniform, and no unjust discriminations in the rates or charges for th'e transportation of any freights shall be made against any person or place, on any railroad in this state: # íí ■* provided, that when the distance from the place of shipment to the point of destination of any freight is 50 miles or less, a charge not exceeding 30 cents per hundred pounds may lie made for the transportation thereof.”</p> <p>Held, that these statutory provisions were not intended to fix the reasonable maximum rates of charges for the transportation of the messengers and freight of express companies. — [Ed.</p>

<p>1. Fraudulent Conveyance — Question of Fact — Mtcitt&an Statute.</p> <p>The question whether a conveyance is made with intent to defraud creditors is, in the first instance, a question of fact, under the Michigan statute.</p> <p>2. Same — Reservation of Secret Benefit.</p> <p>The reservation, therefore, óf a secret benefit, upon the execution of an absolute conveyance, does not necessarily render such conveyance fraudulent as to creditors.</p> <p>3. Same — Same.</p> <p>The land, however, may be charged in equity with the benefit reserved.</p> <p>4. Same — Bona Fide Purchaser.</p> <p>The fraudulent intent of the grantor cannot affect a bona fide purchaser without notice. — [Ed.</p>

<p>1. Federal and State Court — Conflicting Jurisdiction — Service OF PROCESS.</p> <p>Whore two suits, involving to a great extent the same subject-matter, are brought respectively In a state and federal court, that court whose process is first served obtains jurisdiction of all questions which legitimately flow out of the subject-matter of the case.</p> <p>2. Same — Same—Same.</p> <p>A bill was filed in a state court to restrain the foreclosure of a mortgage, and have the same set aside and declared void. Subsequently, but on the same day, a bill was filed in a federal court for the foreclosure of the same mortgage, and charged that the defendant was conspiring; with divers persons to defeat a recovery, by denying that the said defendant had any authority to execute such mortgage. The process of the federal court was served upon the following day, before 11 a. m., but the process of the state court was not served until aft or 2 r. ai. of the same day. Held, that the federal court had a right to go on and decide all questions which legitimately flowed out of the subject-matter of controversy in the case, namely, those affecting the existence of the mortgage and the right of the mortgagor to make it, so as to reach a decree, if the case warranted it, which should be conclusive upon 1he mortgagor; that is to say, which should pre-i ent the mortgagor from ever setting up any claim or right to the property, or any claim whatever that it had not the right to execute the mortgage. — [Ed.</p>

In Equity. This is a demurrer to a bill in equity. The bill alleges as a ground for equitable relief, in substance, the following facts: Complainant is the daughter of Daniel Clark, and the devisee of all bis property by his will executed in 1813. She was born in 1806,’ but was brought up in the family of one Davis, with whom she resided in New Orleans until 1812, when she went with them to Philadelphia. She was married in Philadelphia to one Whitney, in 1832.

In Equity. Motion to dissolve injunction. It is provided by statute in Missouri that “any attaching creditor may maintain an action for the purpose of setting aside any fraudulent conveyance, assignment, charge, lien, or encumbrance of or upon any property attached in any action instituted by him.” The cause was removed by the complainants.

<p>1. State Court — Paeol Testimony — Contradiction of Rbcobd.</p> <p>Where a former adjudication of the matter in controversy in a state court is pleaded in a suit in the federal court, the plaintiff will not he permitted to contradict the record of the state court hy parol testimony. — [Ed.</p>

<p>1. MORTAGOR — SEPARATION COT NOTES FROM MORTGAGE — EQUITABLE Belief.</p> <p>A mortgagor is not entitled to relief in equity upon the ground that the mortgage has been separated from the outstanding and unpaid notes which it was given to secure.</p> <p>2. Usury — Equitable Belief.</p> <p>One who seeks relief in equity upon the ground of usury must first oiler to repay the money actually lent.</p> <p>3. Sam® — Same—Foreign Statute. «</p> <p>A statute of New York, which authorizes a borrower to obtain a cancellation of securities without payment, upon the ground of usury, cannot bind a court of equity, out of the state, in dealing with a bond and mortgage made and delivered within the st ate.</p> <p>4. Husband and Wife — Bonds in Name of Wife — Interest of Husband.</p> <p>5. Fraud — Mortgage—Assignee Without Notice. — [Ed.</p>

<p>1. Costs — Attorney’s Docket Fee — Rev. St. § 824. — Jury Trial.</p> <p>In a case wliicli liad been twice tried.to a jury and tlie jury liad each time disagreed, and at a subsequent term tlie case was dismissed, held, that under section 824 of the Revised Statutes, an attorney’s docket fee of only five dollars is taxable.</p> <p>2. Same — “Trial Before a Jury” — Construction.</p> <p>The phrase “ trial before a jury,” in said section, applies only to cases in which a controversy is terminated by a verdict of a jury and a judgment thereon.</p>

<p>1. Equitable Relief — Fraudulent Preference — Contingent Liability — Indorsee.</p> <p>The fraudulent appropriation of the assets of a bankrupt to the payment of a note before maturity, at the request and for the benefit of the indorser, is a proper subject for equitable relief in a bill to charge the indorser.</p> <p>2. Same — Scope oe Remedy.</p> <p>Where there are such grounds for equitable relief as to part of the substantial matters set out in the bill, equity will take cognizance of the whole.</p> <p>3. Fraudulent Preference — Rev. St. § 5128.</p> <p>Such appropriation for the benefit of the indorsee constitutes a preference within the meaning of section 5128 of the Revised Statutes. — [Ed.</p>

<p>1. Assignee in Bankruptcy — Void Sale — Suit to Enjoin Action Between Creditors in State Court.</p> <p>A suit to set aside a sale, void under the bankrupt law, and to enjoin the vendee from prosecuting a suit in the state court against the attaching creditor of the bankrupt vendor for the taking of the goods sold, cannot be maintained by an assignee in bankruptcy, where he has obtained possession of the property, and is no party to the proceedings in the state court. — [Ed.</p>

<p>1. Statute of Limitations — Debt Owing Bankrupt — Kev. St. § 5057.</p> <p>The limitation prescribed by section 5057 of the Revised Statutes, in relation to suits “ between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or invested iu such assignee,” is applicable to an action brought by the assignee to collect a debt owing to the bankrupt.</p> <p>2. Same — Assignee Debtor to Bankrupt — Rev. St. § 5057.</p> <p>Where, however, the debtor is the assignee of the bankrupt, the statute does not begin to run until the death of the assignee.</p> <p>8. Same — Co-Assignee— Estopped.</p> <p>The represent atives of such assignee are estopped from claiming, upon his death, that an action could have been maintained by his co-assignee within the time limited by the statute.</p> <p>4. Same — Representatives of Deceased Assignee — State Statute.</p> <p>Suit must be brought against the representatives of such assignee within the time limited by section 5057, although under the provisions of a statute of the. state of the deceased assignee the term of 18 months was not to be deemed any part of the time limited by law for the commencement of actions againt his administrators. — [Ed.</p>

<p>1. Invention — Kotatort Seed-Wheel.</p> <p>The substitution oí an intermittent rotatory seed-wheel for an oscillatory seed-wheel, with the addition of the devices necessary to effect such rotatory motion, constitutes a valid and important improvement.</p> <p>2'. Same — Division into Distinct Claims.</p> <p>• The supreme court having held divisional patents valid, there can be no legal objection to subdividing an invention into distinct claims. —[Ed.</p>

<p>1. iNMUStGEMENT — SUSPENSION OB' INTERLOCUTORY DECREE — POWER OE Court.</p> <p>Tlie suspension of an interlocutory decree, perpetually enjoining the infringement of a patent,, until an accounting can bo had and a decree entered from which an appeal can bo taken, rests in the discretion of the court which granted the decree.</p> <p>2. Same — Same—Same.</p> <p>In the exercise of such discretion the court should look carefully to all the facts and circumstances involved, regarding the difference between royalties, licenses, and patent monopolies.</p> <p>S. MotioN Overruled.</p> <p>Motion to suspend the interlocutory decree for a perpetual injunction overruled under the circumstances of this case. — [JSd.</p>

<p>1. License — Royalties—Time of Payment.</p> <p>An agreement for an exclusive license, executed January 7, 1878, stipulated, inter alia, that the payments of royalty should “be made quarterly; that is to say, on the first day of January, April, July, and October, or within 10 days thereafter of each and every year ” during the continuance of the agreement. Held, that the first payment cf roj alty became duo on the first day of April, 1878.</p> <p>2. Same — Forfeiture.</p> <p>It was further agreed by the licensee that “ if he should fail to well and truly make the payments above referred to, or to execute or ful-fil any of the other conditions ” contained in the agreement, that the same should be null and void. Held, that the failure of the licensee to render a statement or make a payment on the first day of April, 1878, or within 10 days thereafter, did not, ipso facto, work a forfeiture of his rights under the agreement.</p> <p>3. Same — Payment of Royalties — Duty op Licensob.</p> <p>Held, farther, under the circumstances of the case, and in the absence of a stipulation as to the place of payment, that it was the duty of the licensor to apply to the licensee for an account anda payment, and that he could not in the meantime, without the assent of the licensee, relicense the patent to third parties.</p> <p>4. Same — Subsequent License.</p> <p>Reid, fwrther, that a subsequent license was void where the parties had notice of the prior agreement, and the same was issued without the consent of the original licensee, and after a complete tender of the royalties then due.</p> <p>5. Lettees'Patent — Improvement in Canopy Tops for Children’s Carriages. .</p> <p>Letters patent for an “ improvement in canopy tops-for cnildren’s carriages,” granted Calvin E. Eosburgh, May 29,1877, are not void for want of utility. — [Ed.</p>

<p>1. Re-Issue No. 8,199 — Improvement in Pocket Oheck-Books — Novelty.</p> <p>Re-issued letters patent No. 8,199, for an “ improvement in pocket check-books,” contained, inter alia, the following claim: “(1) The combination in a check-book of checks and stub pieces of substantially the same size, so united that two checks lie between every two stub pieces, substantially as specified and set forth.” Held, that such claim was not void for want of novelty.</p> <p>2. Same — Patent No. 191,436 — Improvement in Bank Check-Books— Infringement.</p> <p>Held, further, that such claim was infringed by bank check-books made in accordance with the description and drawings in patent No. 191,436, for an “improvement in bank check-books.” — [Ed.</p>

<p>1. Infringement — Division op Device.</p> <p>A patent cannot be defeated by dividing a patented device into two parts, which, when combined, produce the same result in substantially the s,ame way.</p> <p>2. Same — Re-Issue No. 7,583.</p> <p>Re-issue No. 7,5S3, for an improvement in coffee-mills, held, infringed.</p>

<p>1. Re-Issue No. 7,643 — Improvements in Air Cooling and Distributing Apparatus — Novelty.</p> <p>Re-issued letters patent No. 7,643, for “ improvements in air cooling and distributing apparatus,” claimed, inter alia: “ In an air cooler, or apparatus for cooling carcasses, etc., the combination of a fan-blower, or its equivalent, an ice-chest, or equivalent, and one or more pipes or conduits, which equally distribute the air within the place or apartment to be cooled, substantially as and for the purpose set forth.” Held, from a consideration of the state of the art at the time of the invention, and from the specifications and claims of the patent itself, that its precise design was to cool apartments; that the same was fairly applicable to enclosures constructed for the tran :por-tation of meat, and that a new and useful result was thereby reached. —[Ed.</p>

<p>1. Salvage — Debeijci1—Compensation.</p> <p>If a vessel bo found, though with no one on board, under such circumstances that the persons assuming to be salvors know, or ought to have known, that their services were not desired, and they take possession with intent to snpplant the master and owners in giving her relief, they have no claim for compensation,</p> <p>2. Same — Same—Possession.</p> <p>Unless a vessel has been utterly abandoned, and is, in contemplation of law, a derelict, even bona fide salvors have no right to the exclusive possession, and are hound to give up charge to the master on his appearing and claiming charge.</p> <p>3. Same — Same—Same.</p> <p>A stranded vessel, laden with a valuable cargo, was left but not abandoned by the master, having been placed in charge of an agent until lie could return in another vessel to recover both the cargo and wreck. Held, that such vessel and cargo could not he taken possession of by a stranger, who was fully advised of these facts, and knew that the master was then on his way in another vessel to take possession.</p> <p>4. Same — Same—COMPENSATION.</p> <p>Held, further, that the mere fact of placing a man on board, with the object of anticipating and supplanting the master, would not entitle such stranger to a share of the property, which was subsequently recovered by the unaided efforts of the master. — [Ed.</p>

Libel by the master of the bark Hero against Peter Wright & Sons to recover damages for an alleged breach of charter-party. The testimony disclosed the following facts: Funck, Edye & Co., ship-brokers of New York, sent to Hoffman & Meyer, ship-brokers of Philadelphia, the name of the bark Hero (then at Cartagena) as a vessel open to charter in case Hoffman & Meyer could obtain any proposals.

<p>1. Charter-Party — Good Sea Risk.</p> <p>A vessel was chartered for the transportation of wheat in bulk under a warranty that she should be tight, staunch, and strong, and in every way fitted for the voyage. Held, under the circumstances of this case, that it was essential that the vessel should be a good sea risk for the merchandise specified as cargo. — [Ed.</p>

<p>1. Dock — Liability oe Owneu ok Occupant.</p> <p>“ Tim owner or occupant, oí a dock is liable in damages to a person who, by his invitation, express or implied, makes use of it, for an injury caused by any defect or unsafe condition of the dock which the occupant negligently causes or permits to exist, if such person was himself in the exercise of due care Such occupant is not an insurer of the safely of liis dock, but he is required to use reasonable care to keep his dock in such a stale as to bo reasonably safe for use by vessels which he invites to enter it, or for which ho holds it out as fit and ready. If he fails to use such due care — if there is a defect which is known to him, or which, by the use of ordinary care and diligence, should be known to him — he is guilty of negligence, and liable to the person who, using due care, is injured thereby.”</p> <p>2. Same — Liability op Vessel.</p> <p>Held, under the circumstances of this case, that the master of a vessel was at fault in attempting to enter a dock after the tide had fallen, when he knew that he was about to enter a dock where his vessel could not float at all conditions of the tide.</p> <p>3. Same — Liability oe Owneu. ,</p> <p>IMd, further, under the circumstances, that the owner of the dock was also in fault in not cautioning the vessel to stop before she readied the point where she was injured by grounding. — [Ed.</p>

<p>1. JVliiiniADiflN ok White-Fish Fishery — Seamek’s Wages — Custom</p>

<p>1. Use of Dby Dock — Mabitime Cohtbact — Whakeage—Mabitime Lies — Mass. Gen. St. a. 151, § 1.</p>

<p>1. Appurtenance.</p> <p>A water right, granted in gross, does not become technically appurtenant to land and a mill upon and for which it is subsequently used by the grantee thereof; but where such water-power is taken and applied to run a mill belonging to the owner of the power, and after-wards, while the water-power is so being used, the owner conveys the premises by metes and bounds without mentioning the water right, the right may pass therewith, as parcel thereof, if such appears to have been the intention of the parties.</p> <p>2. Water-Power not Appurtenant, when Passes with Land.</p> <p>In 1864 a water right was granted by the owner of the basin at Oregon City, in gross; and in 1866 the same was taken and applied to the use of a paper mill and machine shop on block 2, in said town; and in 1867, the same being the property of the owners of the waterpower, they converted it into a flour mill and applied such waterpower to the use thereof, continuously and exclusively, until 1878, when the owner of the mill and power conveyed the mill, describing the property by metes and bounds only, and without any express mention of said water right, to secure a loaD of $20,000, payable in two years, with interest at the rate of 1 per cent, per month; the said property, including said water right, being then worth not to exceed $25,000, of which sum the water right was worth one-third. Held, that, upon the facts and circumstances of the case, it satisfactorily appeared that it was the intention of the parties that the water right should pass with the land and mill; and, being then used in connection therewith, it did so pass as parcel thereof.</p>

<p>1. MUNICIPAL CORPORATION — STREET RAILWAY — POWER TO LICENSE.</p> <p>A general law of tlic state of Illinois, (1872,) for the incorporation of cities and villages in the state, provided that the city council in cities should have authority to license haekmen, draymen, omnibus drivers, cabmen, expressmen, and all others pursuing like occupations, and to prescribe their compensation. Held, that street railways wore within the purview of such statute.</p> <p>2. Same — Police Power.</p> <p>An ordinance of the council of the oily of Chicago (March 18,1878) required each street railway company within the city to obtain an annual license, and to pay for the same the sum of $30 for each car operated and run upon its line. Held, that such ordinance was a valid exercise of the police power of the city council. — [Ed.</p>

<p>1. Suit Arising Under the Laws of the United Statesr— Act of MARCH 3, 1875 — National Bank Shares — Taxation—Iíey. St. § 5219.</p> <p>An action to enforce a right conferred by section 5219 of the Revised Statutes, regarding the taxation of property in the shares of national banking associations, is a suit arising “ under the laws of the United States,” within the meaning of the act of March 3, 1875.— [Ed.</p>

<p>1.' Marine Insurance — Promissory Representation — Substantial Compliance.</p> <p>A. substantial compliance with a promissory representation is sufficient to sustain a contract for marine insurance.</p> <p>2. Same — Seaworthiness—Burden op Proof.</p> <p>Seaworthiness must be shown by the assured, where proof of such fact is necessary to excuse the non-compliance with a promissory representation.</p> <p>3. Motion for a New Trial — Exception to Instruction— Specific Objection.</p> <p>The failure to specify the precise point of objection, upon a broad exception to an instruction, where the latter may very possibly have had a material influence upon the verdict, will not defeat a motion for a new trial upon the ground that such instruction was erroneous.</p> <p>4. Marine Insurance — Promissory Representation — Substantial Compliance.</p> <p>The cargo of a vessel which had been pronounced unseaworthy was insured upon the representation that she was “ to be repaired.” Upon a new survey, however, it was found that no repairs were required, and the same were therefore not made. Held, that the fair construction of the representation, assuming it not to have been the statement ■ of an expectation, but a promissory representation, was that the vessel was to be put in a seaworthy condition for her voyage before the commencement of the risk; and that, if she was in that condition when she left the port from which the cargo was insured, the representation was satisfied.</p> <p>5. Same — Seaworthiness—Burden OB' Proof.</p> <p>IMd, further, tliat tlie íact oí non-compliance with such representation imposed the burden of proving seaworthiness upon the assured. — [Ed.</p>

<p>1. Factor — Pledge op Goods — Statutes ot? Missouri.</p> <p>Under tlie statutes of Missouri a factor is not'authorized to pledge the consignor’s goods tor an amount beyond tlie sum of the advances and charges thereon.</p> <p>2. Samp. — Conversion—Tender.</p> <p>In such case a tender of the advances and charges must first be made hy the consignor before suit can be maintained for the conversion of the goods. — [Ed.</p>

<p>1. COMMERCIAL USAGE— GeNKRAX, LAW.</p> <p>In order to have a commercial usage take the place of the general law, it must he so uniformly acquiesced in, and for such a length of time, that the jury will feel themselves constrained to find that it entered into the minds of the parties and formed a part of the contract.</p> <p>2. Same — Hew York Cotton IOxcIiange.</p> <p>Therefore, the laws, rules, and regulations which govern the members of the Hew York cotton exchange can have no effect upon the legal rights oí a party to a contract, who did not know of or acquiesce in the same. — [Bd.</p>

<p>1. New Trial — Surprise and Newly-Discovered Evidence.</p> <p>Motion for new trial upon the grounds of surprise and newly-discovered evidence granted under the circumstances of this case, where the same was not brought to a hearing until after the expiration of 11 years from the time it was entered. — [Ed.</p>

<p>1, BANKRUPTCY COURT — POWER TO SET ASIDE FRAUDULENT DEEDS.</p> <p>The district court has power, while silting in bankruptcy and exercising the jurisdiction conferred l>y the bankrupt law oí' 1841, by summary order, to set aside and order to be surrendered and cancelled deeds given by the oilioial assignee, which are improvidently, irregularly, or without due authority executed by him, or which wore procured to be executed by imposition and fraudulent practices upon the court, or which were designedly so drawn as to be grants in excess of or varying in material particulars from the orders of the court under which they purport to be executed, while the samo are still in the hands of the party by whom they were so procured from the assignee, and who had notice of said irregularities and defects, and who gave no value therefor, except certain sums paid to the oilioial assignee as fees, upon the petition of a party not a creditor of the bankrupt, and having no interest in the matter, except that he is in the possession of land, claiming title thereto, and that he has been subjected to litigation, or is threatened with litigation, in respect to said land, based upon the deeds sought to he avoided, after the discharge of the bankrupt, and when there are no longer any known assets to be distributed among creditors. — [Ed.</p>

<p>1. Equitable Hemee — Jurisdiction—Assignees in Bankruptcy.</p> <p>A bill in equity by assignees in bankruptcy to recover the value of personal property transferred to the defendant by the bankrupt, in fraud of his creditors, will be dismissed for want of jurisdiction; the complainant has a plain, adequate, and complete remedy at law.</p> <p>2. Same — Same— Pinal Hearing.</p> <p>A bill will bo dismissed for lack of equity, although the point is made for the first time when the cause comes before the court for final liearing on the pleadings and proof.</p> <p>3. Costs.</p> <p>But inasmuch as the defendant is in fault for not raising the objection in the pleadings, the bill will be dismissed without costs to the defendant.</p>

<p>Appeals from district court.</p>

<p>1.° Jukisdictioh — Act of Congress Dividing S. D. Ohio into Two Divisions — Where Suit to be Brought — Personal Privilege— "Waiver.</p> <p>Section 4 of the act of congress dividing the southern district of Ohio into two divisions, which provides that “ all suits not of a local Datare, in the circuit and district courts, against a single defendant, inhabitant of said slate, must be brought in the division of the district where he resides,” does not affect the general jurisdiction of the court, but rather confers a personal privilege upon the defendant, which lie may waive.</p> <p>2. Same — Same—Same—Same—General Appearance — Waiver.</p> <p>Whore a suit was brought in the western division against a resident of the eastern division, who was served with process in the eastern division, and on the return-day of the writ entered its general appearance without exception to the jurisdiction, and at the same and a subsequent term had, upon its motion, the time extended in which to answer, held, that the defendant, by such appearance and proceedings, waived the right to object to the jurisdiction of the court.</p>

<p>1. Invention — Priority.</p> <p>J To who first reduces his invention to a fixed, positive, and practical form would seem to be entitled to a priority oí right to a patent therefor.</p> <p>2. Same — Same.</p> <p>In such case, however, he who invents first has the prior right, if he uses reasonable diligence in adapting and perfecting the same, all hough the second inventor has, in fact, first perfected the same and reduced the same to practice in a positive form.</p> <p>3. Same — Same—-Diligence.</p> <p>In such case the determination of the fact of diligence is not to be reached by a comparison of the diligence of the two inventors.</p> <p>4. Same — Same—Same.</p> <p>A. mentally worked out an invention about November 6,1872, and, without making any efforts to reduce the invention to practice, applied for a patent May IS, 1873. B. independently reached the same result about December 21, 1872, and induced the invention to practice in April, 1873. JIM, where a patent was subsequently granted to A., that B. could not be held liable as an infringer for the use of this invention. — [Ed.</p>

<p>1. “Specification.”</p> <p>Tlie word “ specification,” as employed in the patent laws, when used without the word “ claim,” means description and claim.</p> <p>2. Same — Re-Issujb:. ”</p> <p>Hence, tinder section 4916 of the Rovised Statutes, a re-issue is allowed when the specification is defective or insufficient, in regard to either the description or the claim, or to both, to such an extent as to render the patent inoperative or invalid, if the error arose in the manner mentioned in the statute.</p> <p>3. Same — Same.</p> <p>If a patentee, in the description and claim in his original patent, erroneously set forth something short of his real invention, it is a proper case for a ro-issue, although his real invention may be fully shown in the drawings and model.</p> <p>4. Re-Issue on Valid Patent.</p> <p>A re-issue is not invalid merely because the claim of the original patent was valid, and suit could he sustained thereon.</p> <p>5. Novelty — Similarity in Shape.</p> <p>Similarity in shape does not establish anticipation, if the two inventions are different as mechanical structures.</p>

<p>In Admiralty. Libel in rem.</p>

<p>In Admiralty.</p> <p>Sur Exceptions to the Commissioner’s Deport Distributing Proceeds of Sale.</p>

<p>1. Wharf — Liability of Owner.</p> <p>Where a vessel voluntarily takes her own "berth partly at the wharf of the consignee and partly upon the unwharfed outland of a third person, and neither makes a request for a berth nor inquiry for information, and the consignee does not know of her presence at the wharf, the latter is not liable because information was not furnished • the master of the changed condition of the bottom in that neighborhood since the vessel had last lain at that wharf — [Ed.</p>

<p>1. Canal-Boats — Libel por Wag-es — Rev. St. § 4251 — Enrollment Act op 1793 — Act op April 18, 1874.</p> <p>Section 4251 oí the Revised Statutes, (9 St. 38,) which provides that “ no canal-boat, without masts or steam-power, which is required to be registered, licensed, or enrolled, and licensed, shall be subject to be libelled in any of the United States courts for the wages of any person who may be employed on board thereof, or in navigating the same,” is not abrogated by the act of April 18,1874, (18 St. 31,) which provides that the enrollment act of 1793 (1 St. 305) shall not be so construed as to extend the provisions of the latter act to such canal-boats. — [Ed.</p>

<p>In Admiralty. Exception to Libel.</p>

<p>1. Tu» and Tow — Negligence.</p> <p>A tug is bound to know the nature of tlio bottom of the stream and the depth of the water in which it is employed.</p> <p>2. Same-Same.</p> <p>A schooner, while being towed up the Charles river, as the tide was running out, grounded with her head up stream, in such a position that she would probably have sustained no injury if she liad not been disturbed. The tug, however, attempted to haul her oil, and finally left her with her stern fast whore it first touched, hut her head projecting into the channel, where the bottom was sufficiently uneven to cause her to strain and break. Held, that the tug was in fault in thus attempting to pull the vessel oil. — [Ed.</p>

<p>In Equity. Before BoNd and Mobbis, JJ.</p>

In Equity. Demurrer to Original Bill. In .1866 congress made a grant of land to the state of Kansas to aid in the construction of the St. Joseph & Denver City Uailroad, which road was to run from Elwood, in Kansas, via Maryville, to a junction with the Union Pacific Eailroad, or any branch thereof. In pursuance of the terms of the grant the company filed a map of its line with the secretary of the interior on the twenty-eighth of March, 1870.

<p>Motion to Remand.</p>

<p>1. Fai.se Imprisonment — Trespass.</p> <p>A judgment delator, who has been discharged from imprisonment, either under chapter 216, Gen. St. It. L, for the neglect of the plaintiff to pay his hoard, or under section 5, a. 213, because not taken in execution within 30 days alter final judgment against him, cannot be lawfully arrested again upon an alias execution, or upon mesne, process, in an action upon the same judgment.</p> <p>2. Same — Who Liarle in Trespass.</p> <p>If, after such discharge, the defendant be again imprisoned on an alias execution, the plaintiff and his attorney are liable in trespass, but not the clerk, when there is nothing on the record to instruct, him that the defendant had been imprisoned for more than 30 days, nor the jailer, who is protected by the precept.</p> <p>3. Same — Damages.</p> <p>That the defendant was illegally arrested and detained through a mistake of law, or miscalculation of time, which was shared by all the parties, is a fact which goes far in reduction of damages.</p> <p>4. Same.</p> <p>Chapter 216 and section !>, e. 213, General Statutes of Rhode Island, construed.</p>

<p>1. Life Insurance — Application—Statements and Declarations.</p> <p>A life insurance policy provided that it was issued and accepted upon the express condition and agreement that “ if any of the statements and declarations made in the application, * * * shall be found in any respect untrue,” it should be void.</p> <p>Held, that all statements and declarations in the application, whether material or not, must be true.</p> <p>2. Same — Same—Same.</p> <p>Held, further, that such declarations include promises or agreements with regard to the future existence of facts, as well as those existing at the time.</p> <p>3. Same — Promissory "Warranty.</p> <p>In the application the insured declared that he “ will not practice any pernicious habit that obviously tends to shorten life.”</p> <p>Held, that' this was a promissory warranty, whose breach would work a forfeiture, and evidence to prove such breach was admissible.</p> <p>4. Same — Perntcious Habit.</p> <p>The excessive use of alcoholic liquors is a pernicious habit that obviously tends to shorten life.</p>

<p>1. Demurrer, to Evidence — When Allowable.</p> <p>Tlie evidence of a party, upon tlie affirmation side of an issue of fact before a jury, may be demurred to by the adverse party under certain conditions; but the party upon "whom the burden of the issue rests is not permitted to demur to the evidence of the other party, for he cannot be allowed to assume that he has made out his case.</p> <p>2. Same — Admissions oe Fact.</p> <p>If there is any evidence tending to prove a fact, that fact must he distinctly admitted in the demurrer to he absolutely true, so that the court will have nothing to do but apply the law to the established facts.</p> <p>3. Same — Admissions oe Record.</p> <p>Unless the necessary admissions are distinctly made of record, no judgment can be pronounced on the demurrer, for the court is not substituted for the jury to weigh the evidence.</p> <p>4. Same — Joinder, in Demurrer.</p> <p>It is also necessary that there should be a joinder in such demurrer. — [Ed.</p>

<p>1. Indiotment — Rév. St. § 5523.</p> <p>An indictment under section 5523 of tlie Revised Statutes, for a refusal to answer a lawful inquiry of the supervisor of elections, in the verification of a registration list, must aver that such inquiries were made of the defendant at the place assigned by him in such list as his place of residence.</p> <p>2. Same — Amendment—Rev. St. § 1025.</p> <p>Such omission is matter of substance, and cannot he aided by amendment under section 1025 of the Revised Statutes. — [Ed</p>

<p>1. Assignee's Sam — Bona Bide PuncirASEB — Obdeb of Sabe.</p> <p>A. and B. were adjudicated bankrupts under the bankrupt law of 1841. A.’s undivided interest, in tlie lands in controversy was sold to C. under an order of court dated June 13,1868, directing the assignee “to sell the assets hereinafter referred to in each of said matters at public auction, and for cash, by advertising the same one time, 14 days prior to the day of sale, in the newspaper called the Times, published in the city of ÍTew York,” being “all the right, title, interest, etc., of each and either of said bankrupts in and to any and all real estate in any manner described in a certain will of John Hopper,” etc. A. died in 1874, leaving a will devising the land. Held, upon petition of his devisees to have the sale to C- set aside and annulled :</p> <p>(1) That 0. and his grantees were entitled to avail themselves of all the benefits that may be claimed by a bona fide purchaser upon a judicial sale, no bad faith on O.’s part being .averred by the petitioners, and it appearing that he actually paid the price bid, which was not alleged to have been inadequate.</p> <p>(2) That the order of sale was not invalid merely because it did not fix the day and hour at which the sale should take place. The order was a sufficient compliance with section 9 of the bankrupt act.</p> <p>(3) That the sale was not invalid merely because made at a time to which it was adjourned by the assignee. This was not an appointment of the time of sale by the assignee contrary to section 9 of the act.</p> <p>(4) That a proper construction of the order of sale was that the assignee might put up both A.’s and B.’s interests for sale together, and therefore the sale was not invalid because so made.</p> <p>(6) That the order was none the less an order of court because signed by the judge. There is practically no distinction in a court of bankruptcy between an order of the judge and an order of the court, and whenever the judge acts, his act is the act of the court.</p> <p>(6) That, as the sale was once regularly advertised, the adjournment did not make a new 14 days’ advertisement necessary.</p> <p>(7) That rules 62 and 70 of the rules of court, specifying certain newspapers in which notice of sale must be published, have no application to sales made under the special order of the court. •</p>

<p>1. Right oe Solvent Partner to Administer Assets oe the Firm.</p> <p>The sole remaining solvent partner has the right to demand and take from his insolvent copartner the liquidation of the affairs of the firm.</p> <p>2. Same — Waiver or.</p> <p>This right to administer is a personal privilege, and if the solvent partner permit his insolvent partner, or the representative of his insolvent partner, to go on and administer the assets, he thereby waives his privilege.</p> <p>3. Same — Laches—Statute op Limitations — Use op Assets op Old Edim.</p> <p>A firm holding assets of prior firms, in which the plaintiff was a partner, as liquidators, became bankrupt. The plaintiff, with full knowledge of the bankruptcy and of the adverse claim of the assignee to the assets, demanded, after about two years, an accounting and settlement of his interest in the old firms. Held, upon this suit, brought 10 years after the bankruptcy, claiming for the first time his right to administer the assets as sole solvent partner:</p> <p>(1) That independently of the statute of limitations he had lost the right to administer by laches.</p> <p>(2) That his claim upon any part of the collections made by the assignee from the assets of the firm was barred by Iiev. St. § 5057.</p> <p>(3) That the new firm having, with the plaintiff’s consent, taken and used all the assets of the prior firms as their capital in business, the property was subject to the debts of the new firm.</p>

<p>1. WaiveR of Order of Court by the Parties — Effect of Pinal Order in Composition.</p> <p>The sheriff had possession of certain property of A. and B. attached in the suit of C. A creditors’ petition was filed against A. and^B., and the usual injunction issued against interfering with tha bankrupts’ property, which was afterwards modified “so as not to restrain the sheriff from selling the property in his possession: p7’o-vided, that he shall deposit the proceeds of such sale in the United States Trust Company, subject to the further order of this court.” A., B. and C., and the petitioning creditors, upon whose consent the foregoing order was entered, gave the officer a written waiver of the deposit in the trust company. The sheriff sold the property, and, upon being served with a final order in composition, paid O. the amount of his judgment from the proceeds. 0., under order of the court, paid the sum so received into the registry of the court, with leave to apply for repayment of the same. Reid, upon such application :</p> <p>(1) That the order requiring the deposit of the proceeds of sale could be modified only by the court itself, not by the parties in inter-</p> <p>■ est, and therefore the retention of the money by the sheriff was in direct violation of the order of the court, and he could give no party to the cause any right to it whatever,</p> <p>(2) That the final order in composition did not of itself dissolve the injunction, nor give the sheriff any right to apply the money in satisfaction of C.’s judgment.</p> <p>(3) That the bankrupts having entirely failed to pay the composition, and there being strong reason to anticipate that it would be set aside and an assignee appointed, the application of 0. at this stage of the proceedings must be denied.</p>

In Bankruptcy. Sur petition of W. K. Jennings, administrator de bonis non cum testamento annexo of John Stevenson, deceased, to set aside a private sale of the real estate of the bankrupts, made by the assignee, as per order of court, to William M. MoElroy.

<p>1. Re-Issue — Commissioner of Patents.</p> <p>The decision oí the commissioner of patents as to the mere necessity of a re-issue is conclusive.</p> <p>2. Sam® — Same.</p> <p>A mistake as to the necessity of such re-issue does not constitute an excess of jurisdiction.</p> <p>3. Same — Vabiation of Claims.</p> <p>Upon such re-issue the claims may he varied in order to express the real invention.</p> <p>4. Same — Same.</p> <p>The grant of a re-issue in order to enable the patentee to claim tlie actual operation of his tools in detail is authorized by statute.</p> <p>6. Re-issue No. 7,558 — Novelty.</p> <p>Re-issue No. 7,558, for a presser-foot for a sewing machine, intended for sewing stay strips upon boots and shoes, held not void for want of novelty. — [Bd.</p>

<p>In Equity. Motion to Dismiss Cross-bill.</p>

<p>1. ItlS-ISHDH No. 7,808 — “ IMPROVEMENT IN CAPS.”</p> <p>Ke-issued letters patent No. 7.808, division B, for an “improvement in caps,” does not contain new matter, and is not broader than, and, for an invention, different from, that described in the original patent.</p> <p>2. Pitioit Use — Evidence.</p> <p>Evidence of prior use is inadmissible when such use is not set up in the pleadings. — ■[ Ed.</p>

In Admiralty. Libel for Possession. The evidence disclosed the following facts: In February, 1878, Patrick Hogan, the libellant, who was then the owner of the barge in controversy, chartered her, to be manned by himself, to one William Holeman. While employed under this charter the boat was, during a temporary absence of Hogan, and while manned by a person appointed by Hole-man, sunk at the wharf. She was raised and repaired at a cost of about $400.

<p>1. National Banks- -Taxation of Deposits — Disclosure of Depositors.</p> <p>A national bank may be compelled to disclose tbe names of its depositors, and the amounts of their deposits under the compulsory process of a state court in order to ascertain whether any money deposited therein, subject to taxation within the county, has not been duly returned for that purpose by the owners.</p> <p>2. Same — Injunction.</p> <p>A federal court cannot, in such case, stay the proceedings in the state court by writ of injunction. — [Ed.</p>

<p>In Equity. Motion to Remand.</p>

<p>1. Fraud — Conspiracy—Collusive Judgment — Fictitious Indebtedness — Fabricated Antedated Notes.</p> <p>Where members of an insolvent firm, with intent to defraud firm creditors, conspired with a person to whom the firm was indebted in only a small amount to have an attachment levied on the firm property, and a judgment to be taken upon fictitious and antí-dated firih notes fabricated for the purpose, and to transfer to him all the firm property then in transitu, and for which the firm held bills of lading; and, in pursuance of such conspiracy, judgment was recovered, the firm property sold on execution, and bid in by the plaintiff in the collusive suit, and the remaining property of the firm secretly transferred to him, held, that he was liable to the assignees in bankruptcy, as representative of the firm creditors, for the value of all of the firm property so fraudulently obtained by him, and will be decreed a trustee of such property, and of its proceeds, for the benefit of the firm creditors represented by the assignee.</p>

<p>1. Equitable Relief — Execution—Injunction—Receiver.</p> <p>Where a decree .in equity is obtained against a defendant for a sum of money, and .execution has been returned unsatisfied, a court of equity has jurisdiction of a bill alleging that the defendant has secreted his property, and is disposing of the same with the avowed intent of defrauding the complainant, and depriving him of the fruits of his decree, and praying an injunction and receiver. It is not necessary in sucha bill to particularly describe the assets, whether equitable or not, sought to'be reached, and a court of equity will issue an injunction, appoint a receiver, and compel an assignment of all the property of the defendant, when such action is necessary to defeat the fraudulent designs of the defendant.</p> <p>2. Sequestration.</p> <p>Quare, whether, upon such a showing to the court by petition in the original suit, a writ of sequestration may not issue.</p> <p>3. Injunction — Creditor’s Bill.</p> <p>Quiere, whether, under such an original decree, and upon the showing above mentioned, the court has not the power to issue an injunction, and make an order for a receiver and assignment, without requiring the complainant to file a so-called creditor’s bill, or to wait for the return of an execution unsatisfied.</p>

<p>1. 'Injunction.</p> <p>A preliminary injunction granted to restrain the erection of a bridge across the Wallamet river, at Portland, contrary to the act of congress (il St. 383) declaring the navigable waters of the state free and common highways, at the suit of a riparian owner injured thereby.</p> <p>2. Obstruction to Navigation.</p> <p>Where congress, has declared a navigable river ,to be a common highway, the.state cannot authorize an obstruction therein, and anything which materially interferes with or limits the navigability thereof, considering the use which it is or may be subject to, is an obstruction and a violation of such act of congress, which the United .. States circuit court has jurisdiction, under the judiciary act of 1875, (18 St. 470,) to prevent or abate by injunction.</p>

In Equity. Motion to Dismiss Suit for Want of Jurisdiction. cited the following authorities: The American Express Company, not being a corporation, cannot sue as one in its corporate name or by its president. Louisville, etc., R. Co. v. Letson, 2 How. 497; Marshall v. B. c& O. R. Co. 16 How. 314; 0. & M. R.. Co. y. Wheeler, 1 Black, 286. All shareholders must therefore be citizens of other states than Indiana. Hope Ins.

<p>In Equity.</p> <p>This is a bill in equity to foreclose a mortgage executed by respondent Dempsey R. Walker to John 0. Burrage, conveying certain real estate to secure the payment of a promissory note. The bill alleges default in the payment of said note; that complainant is the holder and owner of the same, and entitled to foreclosure; and that the other respondents, including A. A. Brockway, have, or pretend to have, some claim to or interest in or lien upon said mortgaged premises; but that said claim, interest, or lien is subsequent and subordinate to the lien of complainant. The answer of respondent Brockway alleges that “on the thirteenth day of January, 1876, the date of complainant’s mortgage, as set out in his bill, the said property described in his said mortgage as [describing it] was owned by and the title was in the government of the United States, and that the same was then, and fora long time afterwards, a part of the public lands of the United States; and that neither at the'date of the said mortgage, nor at any time since, has the said Dempsey B. Walker, the mortgagor, had any title or interest in said real estate, and that neither the complainant nor his assignor took any interest in or lien on said real estate by virtue of the said mortgage set out in complainant’s bill.” It is further alleged that on the twenty-sixth day of March, 1877, one Nicholas Walker entered the land in controversy, and received a patent therefor from the United States, and that he after-wards executed to the said respondent Brockway a mortgage upon the same, which he still holds unsatisfied. The prayer of the answer is that complainant’s mortgage may be declared void and held for naught, and that respondent’s lien be declared a first and prior lien on said land.</p>

In Equity. Motion to Remand. This was a suit in equity to enforce certain judgments against the Memphis, Carthage & Northwestern Railroad Company, by compelling contribution from holders of unpaid stock, and for other purposes.

Motion to Remand. The Iowa & Minnesota Construction Company is a corporation existing under the laws of Iowa.

<p>1. Grant of Land to the Territory of Minnesota to Aid in the Construction of Railroads — Indemnity Clause — Act of March 3,1857 — Selection of Indemnity Lands — Act of March 3, 1865-Act of July 13, 1866.</p>

<p>1. Equity Practice — Federal Courts — Plea in Abatement.</p> <p>Under tlie rules oí equity practice, matters in abatement- may be pleaded in the federal courts, and need not be set up in the answer.</p> <p>2. Same — Defective Parties.</p> <p>Under such rules, however, the want of proper parties cannot be pleaded by the defendant, but such defect must be suggested in the answer, as provided by the fifty-second equity rule. — JEd.</p>

Submitted upon Motion for New Trial. Action was brought upon a bond executed by defendants to plaintiff in the penal sum of $2,000, dated the fifteenth of May, 1872, and conditioned as follows: “The condition of the above obligation is such that if the above-bounden Joel Hester, Levi Oren, M. Saville, and Zimri Hester, their heirs, executors, or administrators, shall well and truly pay, or cause to be paid, every indebtedness or liability now existing, or which may hereafter…

<p>1. Promissory Note — Principal and Surety.</p> <p>Where A., B., and-C. are joint and several makers of a promissory note, and after its execution and delivery A. agrees with B. and C. to pay the note, the relation of principal and surety arises between the parties.</p> <p>2. Same — Same—-Parol Evidence.</p> <p>Parol evidence of such agreement is admissible, and does not tend to contradict the written contract, but shows the changed relation between the makers.</p> <p>3. Same — Same—Extension oe Time of Payment.</p> <p>If the holder, with notice of such agreement, for a valuable consideration, extend the time of payment of the note for a definite period, the sureties, B. and C., are thereby discharged.</p> <p>4. Same — Same—Same—Payment of Usurious Consideration.</p> <p>The payment of a certain sum of money for the extension of time, though regarded as a payment of usurious interest, constitutes a valuable consideration under the statute of Michigan.</p>

<p>Motion to Amend Declaration.</p>

<p>1. Amendment of Declaration.</p> <p>Although two special demurrers to the plaintiff's declaration for matters of form have been sustained, the court will permit the plaintiff to amend upon terms, it appearing that the case is important and difficult, and that if the amendment was not allowed a part of the plaintiff’s remedy would be cut off by an exercise of the discretion from which there is no appeal.</p>

<p>Indictment. Motion to Quash.</p>

<p>Motion to Quash Information.</p>

<p>1. GARNISHMENT — INTERROGATION OP GARNISHEE.</p> <p>A garnishee may be required to answer questions tending to show that be was party to a fraudulent assignment by the defendant in the suit. — [Ed.</p>

<p>1. Hands on Steam-Boat — Completion of Voyage — -Unloading Cargo.</p> <p>Libellants were employed as hands on a steam-boat, on a trip from Pittsburgh to Cincinnati and back. They had nothing to dp with the navigation of the boat, but the handling of the cargo was part of their employment. Held, that they had no right to quit the boat as soon as she was fastened to the wharf at Pittsburgh, but that it was their duty to remain and assist in unloading her cargo.</p> <p>2. Same — Deductions from Wages.</p> <p>Held, further, that the respondents could deduct from libellants’ wages the reasonable sums necessarily paid for the discharge of such cargo.</p> <p>S. Practice — Payment to marshal — Payment into Court — Costs.</p>

<p>In Admiralty.</p> <p>The libel was filed in 1866 for salvage, and issue was joined. Both parties noticed the cause for trial, and it was placed upon the calendar. It was reserved generally in 1870, and had not been moved again until 1880. The claimants moved to dismiss the libel for failure to prosecute.</p>

<p>1. Injunction — Interb'Erence with Control ob’ Property in Possession ob’ State Court.</p> <p>No injunction will 1)0 granted by a United States court to interfere with the possession, control, or disposition of properly which is in the hands of a state court of co-ordinate jurisdiction.</p> <p>2. Receiver — Possession of State Court.</p> <p>The possession of a receiver appointed by a state court is the possession of the court itself, and the disposition of the property by the receiver is a matter to be ordered by the state court, and will not be interfered with by a United States court by injunction.</p> <p>3. Sam — Fraudulent Assignment — Injunction.</p> <p>Where a state court has appointed a receiver of the property of a corporation, and a fraudulent assignment has been subsequently made of the same, a United States court will not enjoin the assignee from receiving such corporate property from the receiver, in case the state court having control thereof orders it to be turned over to him.</p>

Motion to Remand. Action of ejectment, instituted in February, 1876, by the plaintiff, C. W.-Burdick, against the defendant, John Peterson, in the district court of Winneshiek county, Iowa. The defendant appeared in the state court and pleaded the general issue and the statute of limitations. The cause was by the state court continued at the February term, 1876, at the June term, 1876, at the October term, 1876, at the February term, 1877, and at the June term, 1877.

<p>1. Juror — Misconduct—Prejudice.</p> <p>Where the natural tendency of what a juror does or says or willingly listens to from others is to bias his mind, or where his misconduct evinces a prejudgment of the case, or ill-will, or passion against the losing party, the inference of prejudice in the true sense inevitably follows, because the verdict cannot be said to be the result of a fair trial.</p> <p>2. Same — Same-Same.</p> <p>Under such circumstances the mere facts that the successful party was not in fault, and that the verdict was approved by the court, does not relieve the case from the inference of prejudice.</p> <p>3. Same — Same—Same.</p> <p>Where a juror talks outside the jury room about a case pending and undecided before him, he gives the clearest evidence that he is not an impartial and unbiased juror.</p> <p>4. Same — Same—Same.</p> <p>The statement of a juror that what he has thus said or heard has not affected or influenced his judgment, is not, under such circumstances, entitled to any weight.</p> <p>6. New Trial — Misconduct op Jurors — Prejudice.</p> <p>Part of the jurors engaged in the trial of a cause passed several consecutive evenings at cards in the room of one of the defendant’s counsel, at the hotel where some, but not all, of said jurors were stopping. It appeared that the counsel did not know that these jurors were of'the party when he consented that his room should be thus occupied, and that when he discovered that fact he studiously kept aloof from the room every evening until after the card party had dispersed. It further appeared that while the case was yet before the jury and undecided, one of the jurors had talked freely and fully with a third party about the case, and had in such conversation expressed himself to the prejudice of the plaintiff and the plaintiff’s counsel. It also appeared that after the jury had retired for consultation that this same juror moved that one of their party act as foreman, and that then, upon motion, said juror was appointed secretary. Meld, in view of these circumstances, that the verdict should be set aside and a new trial granted. — [Ed</p>

<p>1. Monet Paid Under a Mutual Mistake of Pact — Forgery of Drawee’s Name — Negligence.</p> <p>Where the defendant collected from the plaintiff the amount of a " draft received by it from another bank for collection, crediting the payment in its account with the latter, which draft was drawn by a paymaster for bounty money, to the order of one D., upon the assistant treasurer of the United States at New Tork, purporting to be indorsed by him, and was indorsed by the other bank, but not by the defendant, and it was claimed that the fact that D.’s name was a forgery was not discovered by the plaintiff until 10 years afterwards, and not communicated to the defendant until another year had elapsed,—</p> <p>In an action to recover the money:</p> <p>Held, that the case is clearly one of payment of money under a mutual mistake of fact, and the plaintiff is entitled to recover, there being no allegation or proof of any loss or damage to the defendant, or of any loss of remedy by the defendant against the bank from which the draft was received, by reason of the delay in discovering or communicating information of the mistake.</p> <p>That mere negligence, unattended with such loss or damage, cannot impair the equity of the party, paying money under a mutual mistake of fact, to recover it from the other party who received it without giving any consideration therefor.</p> <p>The rule declared in Price v. Neal, 3 Burr. 1354, relating to the acceptance or payment of a draft, the drawer’s signature being forged, and cases following it, are now regarded as exceptions to the general rule.</p> <p>The cases of counterfeit money rest on a different principle, the theory being that delay must necessarily impair the remedies over of the party from whom the money was received.</p> <p>In this case the defendant has a complete remedy against the other bank upon the plaintiff’s recovery in this action. It is immaterial what the plaintiff may do with the money, or what is its duty towards D.</p>

<p>Action for Goods Sold and Delivered.</p>

<p>1. Infamous Crime — Fifth Amendment.</p> <p>Tlie crime oí passing counterfeit trade dollars is not an infamous crime within the meaning of the fifth amendment of the constitution.</p> <p>2. Same — Information.</p> <p>A prosecution for such offence, upon information filed by the disi-trict attorney, does not, therefore, violate the constitution of the United States. — [Ed.</p>

<p>1. IntetsKau Revenue — Manufactoeed Tobacco — Retail Dealek— Rev. St. § 3363.</p> <p>Section 3363 of the Revised Statutes provides, inter alia, that “no manufactured tobacco shall be sold or offered for sale unless put up in packages and stamped as prescribed in this chapter, except at retail, by reta.il dealers,from wooden packages stamped as provided m this chapter</p> <p>Held, that a retail dealer who, in the course of his business, sells at retail tobacco taken by him from a wooden package duly put up and stamped, whether taken at or before the sale, does not violate this section. — [Ed.</p>

<p>1. Bankrupt Law oe 1841 — Rule 30 — Adjourning Question to the Circuit Court.</p> <p>The provision oí the bankrupt law of 1843, that “the district judge may adjourn any point or question arising in any case in bankruptcy into the circuit court for the district, in his discretion, to be there heard and determined,” (6 St. 445,) does not preclude the district judge from exercising that discretion, even though the question has been submitted and he has given an opinion thereon, no final order or decree having been entered. The opinion is subject to revision and correction until the order or decree has been entered.</p> <p>This interpretation accords with the thirtieth rule in bankruptcy, (Act of 1841).</p> <p>The importance of the question is a sufficient reason for adjourning it to the circuit court, even though the point is not deemed doubtful by the district judge.</p>

<p>1. Re-issue No. 2,386, and Letters Patent No. 44,684, for improvements in bottle-stoppers, construed, and Matthews v. Bhoenberger, 4 Ped. Rep. 635, followed.</p> <p>2. Same.</p> <p>A patent for 'an improved bottle-stopper, consisting in a compressible valve, capable of being forced into the bottle through the mouth, and incapable of easy passage through it in the opposite di- • rection, and a bottle having the interior of its neck so shaped as to present a bearing surface or seat with which the valve is brought into close contact to close the bottle, held, not infringed by bottles closed by a simple wooden or glass plug, which easily passes through the neck of the bottle in either direction, but acts as a stopper when pressed or drawn into a rubber ring placed in the neck of the bottle ' after the plug is inserted in the bottle.</p> <p>3. Same.</p> <p>EM, further, that a claim in such patent for “ the entire stopper of such a length that it cannot turn over in the body of the bottle,” was not to be construed as embracing all manner of internal bottle-stoppers having the specified length, irrespective of other distinguishable characteristics and modes of operation. — [Ed.</p>

<p>1. Pleading — Joint and Separate Infringement — Proof.</p> <p>In a suit for infringement the bill alleged that the defendants had “jointly and collectively, and also separately,” used and sold bottle-stoppers containing the patented invention. Held, (although no joint sale or use was shown,) as the.bill was framed to recover for separate infringements, and was not demurred to on that ground, and the case had gone on under that issue, that the plaintiff could maintain the suit as a suit against each defendant separately.</p> <p>2. Combination — Transposition- oe Parts — Infringement—Improvement in Bottle-Stoppers.</p> <p>Re-issued letters patent granted to Earl Hutter, June 5, 1877, for an improvement in bottle-stoppers, claimed, inter alia; “(1) The combination, substantially as before set forth, of the compound stopper, the yoke, the lever, and the supporting device on the bottle, by means of three pivotal connections, upon which the said members can be turned relatively to each other without disconnecting either one from the other.” Held, that the mere transposition of the places of the yoke and the lever did not constitute such a substantial difference in respect to the invention, or the mode of operating the combination, as would avoid infringement.</p> <p>3. License — Construction.</p> <p>A patentee authorized a licensee to use and manufacture his invention “ for his own proper business,” to a specified amount per annum. Held, in the absence of affirmative authority, that a sublicense was not authorized by such agreement.</p> <p>4. Piircm Invention — Borden of Proof.</p> <p>Where prior invention is set up as a defence in a suit for infringement, the burden of proof rests upon the defendant, and every reasonable doubt should be resolved against him.</p> <p>5. Same — Evidence.</p> <p>The invention or discovery relied upon as a defence must have been complete, and capable of producing the result sought to be accomplished; and this must be shown by the defendant. — [Ed.</p>

<p>1. COMBINATION — TRANSPOSITION OF PARTS — INFRINGEMENT—IMPROVEMENT in Bottle-Stoppers.</p> <p>Re-issued letters patent granted to Karl Hutter, June 5,1877, for an improvement in bottle-stoppers, claimed, inter alia: “(9) The combination of the pivoted bottle-stopper, C, neck-ring, A, and eccentric lever, B, the said yoke and eccentric lever being pivoted together and arranged so that the stopper is forced into the bottle by swinging the handle part of the lever against the side of the bottle, substantially as heroin shown and described.” Held, that such claim was infringed by a bottle-stopper, containing all the elements described, having the lever pivoted to the middle part of the yoke, instead of to the lower ends of the yoke, as in the patented structure.</p> <p>2. Same — Formal Modes of Construction — Scope of Re-Issue.</p> <p>Held, further, in view of the prior state of the art, that the re-issue was not limited to the formal modes of construction therein described.</p> <p>3. Same — Foundation Invention.</p> <p>Held, further, that 1he patentee was the first person who had combined, by three pivotal connections, the four elements of the first claim of the re-issue in a combination having the mode of operation therein set forth. — [Ed.</p>

<p>1. S'L’ AY-StMP — ANTICIPATION.</p> <p>A stay made of a folded .strip of leather for covering and strengthening seams oí boots or shoes, and provided with marginal grooves for reception of the stitches, and beaded edges for protection of the same, is not patentable as an article of manufacture, in view of the prior existence and use of harness trimming, ladies’ belts, and straps for pocket-books made of folded st rips of leather, and provided with marginal grooves and headed edges which served the similar purpose of receiving and protecting stitches.</p> <p>2. Same — Ke-Issum.</p> <p>Where the original jMitent described and showed that, by applying-a stay-strip to the seam of a boot or shoe, there would bo formed upon its under side a central longitudinal channel or recession, by virtue of its being saddled over the seam, a valid re-issue cannot be taken for a stay-strip having such a central recession formed in it beforehand to fit or hug the seam.</p>

<p>1. Collision at Sea — Lookout — Lights — Torch-Light — Hey. St. § 4234 — Salvage.</p> <p>Where a collision occurred at sea between a schooner bound to New Torle and a steamer bound to the Delaware, each libelled the other for damages, and the steamer also libelled for salvage, having taken the schooner in tow; and upon trial—</p> <p>Held, that the corner of the house on deck, where the schooner carried her red and green lights, was not a proper location for the side lights; but where it appeared that, in spite of this location, the lights were visible to the approaching vessel, the faulty location of the lights did not conduce to the collision, and does not render the vessel liable.</p> <p>Section 4234 of the Revised Statutes requires a lighted torch to be exhibited by a sailing vessel to an approaching steamer, whether the steamer be approaching from forward or abaft the beam; and where such torch is not exhibited the sailing vessel will be held in fault, unless clear proof be given that the failure did not contribute to the collision.</p> <p>Where lights of a schooner, plainly exhibited to a steamer, were not actually seen by the steamer until the schooner was too close upou her to avoid a collision, held, that the steamer was in fault; and, both vessels being in fault in this case, the damages must be apportioned.</p> <p>2. Salvage Services.</p> <p>Services rendered by a steamer to a sailing vessel run down by fault of the steamer do not entitle the steamer to claim salvage.</p>

<p>1. Collision — Passing Boat.</p> <p>An approaching and passing boat takes upon herself the peril oi determining what is a safe distance in passing another boat going in the same direction, and must bear the consequences of a misjudgment in that respect.</p> <p>2. Same — Same.</p> <p>In determining the question of distance, however, the passing boat has a right to assume that the other boat is well equipped, and is being managed and run with ordinary care and skill.</p> <p>Same — Same.</p> <p>After the boat which is being passed has replied to the passing boat’s signal in the affirmative, she is bound to continue in her then course, if it can be done without immediate danger to herself or other boats that may be in or along the river. — [Ed.</p>

<p>1. CoiiiiTsiorr — -Tuo akd Tow.</p> <p>A tug, with vessel in tow, having given two blasts of her whistle without hearing any reply, steered in a narrow channel to pass an approaching steamer starboard to starboard instead of port to port, and did not repeat her signal until too late to avoid a collision, which took place between the steamer and the tow on the extreme edge of the channel. Held, that the tug was solely to blame.</p> <p>2. Save — UTavigattok—Local Custom.</p> <p>Held, that there is no local custom in the channels in the Patapsco river, and'in the Chesapeake bay, at its mouth, for large vessels descending the channels to take the easterly side, and that the establishment of such a custom, not being called for by any necessity, is to be deprecated as a dangerous departure from the settled rules of navigation.</p>

<p>1. Desertion — Forfeiture of 'Wages.</p> <p>Where an assistant engineer of a steam-ship, after a disagreement with the chief engineer, was. ordered oil duty, and left, hut did not leave the vessel, and afterwards the chief engineer requested him to go to work again, hut he refused, and being sent for by the captain was told that he must go to work or leave the ship, whereupon he left and brought an action to recover his wages:</p> <p>Held, that his refusal to return to his duty, and his leaving of the ship thereafter, make out a case of desertion and entail forfeiture of wages earned.</p>