Volume 60 — Federal Reporter

<p>At Law. On motion to remand. Action by Samuel it. Holt and otters against Louis Bergevin and others.</p>

<p>1. Removal — Separable Controversy — Joint and Several Actions.</p> <p>Tbe complaint alleged that defendant M. and his associates owned a controlling interest in the stock of a certain corporation, and by means thereof chose certain persons as directors, and through them defrauded the corporation and its other stockholders, of whom plaintiff was one, of large sums of money; and this money the complainant sought to recover. Only part of the alleged directors were made defendants, and one of M.’s associates was also omitted. Held that, the right of action being joint and several, bringing the action against part of the tort-feasors only is not an election to treat it as several only, and hence there is not a separable controversy between plaintiff and M., within.the meaning of the removal acts.</p> <p>2. Same — Several Accounting.</p> <p>The complaint concluded with a prayer that “defendants_ may account for all the wrongs alleged, and on such accounting repay all ‘sums realized by said defendants, or any of them.” Held, that this is not a prayer for a several account, and the controversy is not separable on that ground.</p> <p>3. Same — Nominal Parties.</p> <p>Under the allegations of the complaint, the directors appear to have been actual participants in the frauds charged, and hence they are not merely nominal parties, who can be disregarded in arranging the parties to the controversy for purposes of removal.</p>

<p>In Equity. On exceptions to master’s report. Intervening petition of Frank G. Cook in the suit of Samuel Thomas against the East Tennessee, Virginia & Georgia Railway Company.</p>

In Equity. On rule to show cause against confirmation of sale. The original proceeding was a hill filed by the Central Trust Company of Yew York against the Sheffield & Birmingham Coal, Iron & Railway Company. The Anniston Loan & Trust Company filed an intervening petition in this suit, and had a decree therein. The Alabama Iron & Railway Company and others thereupon filed a supplemental and dependent bill of complaint against the trust company and others. Rule absolute.

In Equity. This is a suit by the Florida Land & Improvement Company against T. B. Merrill, as receiver of the First National Bank of Palatka, Fla,, the Florida Land & Lumber Company, the Manhattan Trust Company, and William J. Winegar for the rescission of an alleged fraudulent sale of bank stock. The bill was originally dismissed on demurrer by the court below, but, on an appeal to this court, the decree was reversed. 2 C. C. A. 629, 52 Fed. 77.

<p>L Equity Jurisdiction — Remedy at Law — Forfeiture of Lauds.</p> <p>Lands were forfeited through failure to enter same for taxation. Const. W. Ya. art. 13, § 6. 'Held, that a deed from the state would not be set aside upon the ground that the complainant had been deprived of his property without “due process of law,” because the forfeiture is in that event a nullity, and complainant has an adequate remedy at law.</p> <p>2. Taxation — Forfeiture—Redemption.</p> <p>The privileges given to former owners of forfeited lands by the West Virginia statute of February 21, 1887, and prior acts of like character, cannot, by any rule of construction, be enlarged into an absolute right of redemption, hut, on the contrary, are mere matters of grace on the part of the state, and are confined by the terms of the act to (1) a right to obtain from the state the excess of purchase money, in case the lands have been sold by it; and (2) the right to intervene by petition at any time pending proceedings for sale,, and redeem by paying all taxes and costs. Hence, after the sale is complete, the former owner has no interest whatever therein. McClure v. Maitland, 24 W. Va. 576, followed.</p> <p>& Same — Equity Jurisdiction.</p> <p>Even if the school commissioner of the state sells forfeited lands as “waste lands,” when he has no rigid to do so, the former owner has no rights therein which he can enforce in a court of equity; for the sale is either void, in which case there is an adequate legal remedy, or it is merely irregular, in which case relief must be had in the state court in which the proceedings for sale were had.</p> <p>4. Equity — Laches.</p> <p>A court of equity will not be disposed to exercise any merely discretionary powers in order to relieve from statutory forfeiture lands which for 30 years have paid no taxes, and have not been reported for taxation as required by the laws, especially when the owner does not now offer to pay the same, or ayer an intention to do so, but merely seeks to set aside certain conveyances, which? he alleges will embarrass him in the. exercise of his right to redeem, in case he should elect to do so.</p>

<p>1. Taxation — Property—Mortgages—Where Taxable.</p> <p>The rights conferred by a real-estate mortgage are, in their very nature, rights attached to land, and hence such mortgages may properly be made taxable in the state and county where the lands lie, without regard to the residence oí the owners of the mortgages, or to the fact that the instruments themselves are in the possession of the owners.</p> <p>2. Same — Irregularities—Correction—Jurisdiction on Federal Court.</p> <p>The statutes of Oregon provide that real estate — which includes real-estate mortgages — shall be assessed at its actual value. Complainant, the nonresident owner of mortgages on lands within the state, filed its hill in the United States circuit court, alleging that the state board of equalization had “arbitrarily” assessed all the mortgages at their full value, while lands were assessed at'only 65 per cent, of their actual value. It also alleged that this was done in order to “discriminate against mortgages, and especially against those held by complainant.” but no facts were set up In support of this conclusion; and it prayed an injunction against the collection of the tax so assessed. Held, that the federal court lias no authority, under the circumstances, to correct the inequality, and an attempt to that end would be an unwarrantable interference with state affairs.</p>

<p>1. Public Laws — Patents—Conclusiveness in Court.</p> <p>Where a patent for agricultural land has issued to one who entered it under “additional soldiers’ homestead” scrip, the determination of the land department that the land was of the character described, and that the patentee was entitled to enter it under such scrip, is final, and will not be reviewed by the courts.</p> <p>2. Same — Fraud—Rights of Private Persons.</p> <p>Where such determination in favor of the patentee is procured by fraud, such fraud is committed against the United States, which alone can complain of it; and hence a bill to quiet title, filed by one who claims mineral rights to the land in question, against the patentee, on the ground of such' fraud, is bad on demurrer.</p>

<p>1. Taxation — Railroad Rolling Stock — Interstate Commerce.</p> <p>It is within the power of a state to tax sleeping cars and other rolling stock of a foreign corporation, employed in interstate commerce, in the ratio which the number of miles of line within the state bears to the total number of miles of the whole line, as is done by the Louisiana statute, (Acts 1890, No. 106, § 29.) 55 Fed. 206, affirmed. Pullman’s Palace-Car Co. v. Pennsylvania, .11 Sup. Ct. 876, 141 U. S. 18, followed.</p> <p>2. Same — Remedies—Illegal Taxation — Injunction.</p> <p>The provision of tins Louisiana statute (Acts 1890, No. 106, g 26) requiring taxpayers who fail to make a return of their property to apply, within a limited time, to the committee of assessments for correction of any errors in the assessment, on pain of losing all right of redress, relates only to errors of description and yalnation, and does not apply in the case of a company whose sleeping cars, employed on interstate lines, are illegally assessed at their full valuation instead of at the ratio prescribed by the statute, and such illegal assessment may be enjoined. 55 Fed. 206, affirrhéd.</p>

<p>In Equity. Bill by the Savannah Fire & Marine Insurance Company against the Pelzer Manufacturing Company, the Columbia & Greenville Railroad Company, and others.</p>

<p>At Law. On motion to tax costs. Action by the Rome Railroad Company against the Richmond & Danville Railroad Company, (the Georgia Railroad & Banking Company and the Georgia Railroad, garnishees.)</p>

Augusta Kircher filed this suit on the 10th of September, 1891, against R. G. Murray and five others, to recover title and possession from them of 433 acres of land described in her original petition. On the 12th of February, 1892, R. G. Murray and his codefondants answered, setting up fully the claims of plaintiff and defendants, and contending that under the facts, as pleaded, defendants were entitled to judgment.

<p>Appeal from the Circuit Court of the United States for the Western District of Virginia.</p> <p>Petition by A. K. Fletcher against the United States to recover certain fees for services rendered as clerk of the United States district and circuit courts. Judgment was rendered for plaintiff. and an appeal allowed on petition of the United States.</p>

<p>1. COUNTIES — BONDS.</p> <p>Certain bonds were regularly issued by the board of supervisors November 1, 1871, and the proceeds applied to the erection of county buildings. The organization of the county had been authorized March 31, 1871, at which time it contained but one township, but a second township was created July 29, 1871, by the board of supervisors of the county to which it had been attached as an unorganized county. The supreme court having ruled (People v. Maynard, 15 Mich. 463) that there could be no valid organization of a county containing but one township, an act was passed (April 9, 1875) under which the county, in form at least, was newly organized. 'Held, that the act March 31, 1871, was provisional, and not void upon its face; that it would be presumed that the organization of the county was subsequent to the organization of the second township; that the question of the legal existence of the county could not now be raised, in a private litigation; that the act of April 9, 1875, could not operate to divest rights which had been acquired while the county was exercising the power it had assumed; and that, therefore, in view of all the circumstances, the bonds issued in 1871 were valid.</p> <p>S. Satos — Refunding Bonds — Notice to Purchaser</p> <p>Refunding bonds, payable to bearer, recited that they were issued by the board of supervisors in conformity with the provision of an act authorizing the county to issue such bonds and provide for the retirement of outstanding bonds. Held, that the purchaser was not bound, in the face of the recitals borne by the bonds, to investigate the nature of the refunded indebtedness.</p> <p>3.-Same — Bonds Negotiable in Poem.</p> <p>Statutory authority to issue and market bonds, which are to run for a long period of timo and hear interest, 'held to authorize, by implication, bonds negotiable in form.</p> <p>4. Circuit Court of Appeals — Jurisdiction—Practice.</p> <p>The circuit court of appeals will, upon writ of error, remand a. case, with directions that it he dismissed, when it appears that such ease has been brought within, the jurisdiction by means of collusion; but to justify such action the proof must be clear and unequivocal; otherwise, if the question has not been passed upon by the court below, the court of appeals, on reversing the judgment, will direct the trial and determination of that matter at the circuit.</p>

'At Law. This was an action by the Barber Asphalt Paving Company against Frances Odasz, as administratrix of Frank Odasz, to recover damages for negligence alleged to have caused the death of her intestate. ' There was a verdict for plaintiff, and, to review the judgment entered thereon, the defendant brings the case here on writ of error.

<p>Appeal from the Circuit Court of the United States for the South-érn District of New York.</p> <p>This was an appeal by Eosenstein Bros., importers, from a decision of the board of general appraisers, sustaining the action of the collector in the classification of certain imported merchandise. The circuit court reversed the decision of the board, (56 Fed. 824,) and from its decree the government appeals.</p>

<p>1. Customs Duties — Smugging—Indictment.</p> <p>An indictment for smuggling under R»v. St. § 2865, alleged, substantially in the words of the statute, that the defendant “smuggled and clandestinely introduced into the United States opium subject to a certain duty, which should have been invoiced, without paying or accounting for such duty, and without having such opium invoiced.” Meld, that the ih-dictment is sufficient without alleging that defendant knew that the duty on the smuggled opium had not been paid.</p> <p>8. Same — Evidence—Secondary—Telegrams.</p> <p>On such indictment, telegrams received by the prosecuting witness, and purporting to have been addressed to him by defendant, wore admitted in evidence as corroboration of the testimony of such witness as to verbal admissions made by defendant. Meld, that these telegrams were competent as admissions; and the principle that the original telegrams are the only competent evidence of their contents does not apply.</p>

<p>At Law. On demurrer to answer. Action by the First National Bank of Blaine against J. W. Blake.</p>

the District of Massachusetts. . In Equity. Suit by the Tripp G-iant Leveller Company against George W. Herrick, Frederick W. Herrick, and George H. Herrick, doing business as George W. Herrick & Co., for infringement of letters patent No. 884,893, issued June 19, 1888, to Cutcheon & Johnson, as assignees of James C. Cutcheon. The patent, which is for a machine for beating out the soles of boots and shoes, was sustained by the court below, and infringement declared.

In Equity. Suit by the Jonathan Mills Manufacturing Company against M. C. Whitehurst and others for infringement of let ters patent No. 267,098, issued November 7, 1882, to Jonathan Mills, for- an improvement in machines for bolting flour. A decree for complainant was heretofore granted. 56 Fed. 589. Heard on motion for rehearing.

<p>1. Patents — Reissues—Validity.</p> <p>A reissue after long delay, - during which adverse equities have arisen, cannot be sustained, even if the claim is technically narrowed instead of broadened, when the original patent did not indicate, or even hint at, the invention of the reissue, as an invention, although the patentee did actually make it, but, through ignorance of its nature or other mishap, failed to describe it in the specifications. 52 Fed. 809, affirmed.</p> <p>2. Same — Straw Braid Sewing Machines.</p> <p>The Hooper reissue patent, No. 10,600, for an improvement in machines for sewing straw braid, is void, as to the fifth claim, as covering an invention not disclosed in the original patent. 52 Fed. 809, affirmed.</p>

• Appeal from the Circuit Court of the United States for the Northern District of New York. This was a hill filed by John N. Briggs against the Central Ice Company for the infringement of a patent. There was a decree below for defendant, (54 Fed. 376,) and complainant appealed.

<p>Patents — Invention—Combination—Track Brake por Cars.</p> <p>The Boot patent, No. 304,863, for a track brake for railway cars, shows a patentable combination which was not anticipated by the patents for baling presses, issued to Godwin, to Patterson, and to Huntington & Carter. 52 Fed. 863, affirmed.</p>

<p>1. Patestts — Invention—Cunrjjrw Irons.</p> <p>There is no invention in substituting, in a curling-iron, a drawn rod for a cast rod performing the same function, or in displacing a round spring by a flat spring, which is a mere equivalent.</p> <p>S. Same.</p> <p>The Thompson patent, No. 460,709, for a curling-iron is void for want of invention.</p>

<p>1. Patents — -Limitation op Claim.</p> <p>Wliere “a mechanical lit valve” is one of the elements of a combination claim, the mere fact that one of the drawings and its description show a lit valve having a knife-edge hearing does not confine (he claim to that, form of fit valve, when Hiere is no other reference, either in the claims or specifications, to a knife-edge bearing. 46 Pert. 288, reversed. Consolidated, etc., Co. v. Woerle, 29 Fed. 449, disapproved.</p> <p>2. Same.</p> <p>In a claim covering an automatic relief apparatus for beer barrels, consisting of a fit valvs in combination with a surrounding water chamber, and water therein to pisevent fouling of the valve, the water cannot he considered as a separate element, and the combination consists of the two elements, — -a fit valve, and a water chamber surrounding the same.</p> <p>8. Same — Anticipation.</p> <p>A patent for a mechanical combination is anticipated by a prior device containing the same elements, although the inventor of the latter did not describe or appreciate Hie advantage of using the combination in the way pointed out in the patent.</p> <p>4. Same — -Valve foe Beer Barrels.</p> <p>The Zwietuseh & Heitmann patent, No. 222,975, for an automatic pressure-relief apparatus for beer vessels, was anticipated by the Schaefer patent, No. 318,040. 46 Fed. 288, reversed.</p>

<p>1. Patents — Infringement—Damages—Absence of License Pee.</p> <p>Where there is no evidence to show that any license fee has ever been paid or demanded, the jury, in estimating- the damages, should consider the utility and advantage to the defendant of the use of the patented device, as compared with any other means of obtaining similar results whose use was open to it, and may compare the cost of using the one to the cost and saving in the use of the other.</p> <p>2. Trial — Instructions—Damages.</p> <p>After correctly instructing as to the evidence to be considered in estimating damages, it is proper to refuse instructions which characterize certain parts of such evidence as “important,” “material,” and “controlling.” , '</p>

<p>1. Tbadb-Mauk — Infringement—Defenses—False Statements by Assigntse.</p> <p>Where a trade-mark is a mark of special qualities, due to superior material, processes, skill, and care exercised by the originator thereof, an as-signee of the business, who continues to use labels which contain the false» statement that the goods are prepared by the originator, is not entitled to relief against an infringer.</p> <p>2. Same — Correcting Pause Statements.</p> <p>Correcting false statements after the suit is filed, by attaching an additional explanatory label to (he goods thou being sold, does not help the case of one who, because of such false statements, had no right to relief! at the-time the suit was filed.</p>

In Admiralty. Libel by Thomas Martial and others against the ship Eclipse (Andrew Anderson and others, claimants) for "balance of seamen’s wages. Decree for libelants. 53 Fed. 273. Claimants appeal.

<p>Shipping — Injuby to Stuvbuokk's Employe — Dkpmotivií Appabatus.</p> <p>A ship is liable for injuries caused to a stevedore’s employe by tbtv slipping of the pin from the eye of a shackle furnished and rigged ⅛⅝ the crew, because of defects therein noticed and pointed out to the mate by one of the stevedore’s men, although the shackle was so rigged while the heavy hoisting apparatus prepared by the ship was being exchanged for a lighter gear insisted upon by the stevedore, and arranged in a manner directed by him; it appearing that such arrangement required no unusual strength of materials, and that the substitution was not unreasonable, in view of the fact that the original apparatus was much heavier and more cumbrous to handle than was required by the work in hand. 56 Fed. 241, affirmed.</p>

<p>Collision — Inevitable Accident — Moored Vessel — Insecure Spile — Gale.</p> <p>A ship had been for a long time moored at a wharf in a customary and apparently a safe manner, but, on the occasion of a very heavy gale, shifting to the quarter which bore most heavily upon the ship, the spile to which she was moored, and of whose insecurity she could have had no knowledge, gave way, and the ship went adrift and damaged another vessel. 'Held, that the accident was inevitable, or at least without fault of the ship.</p>

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

<p>'At Law. Action by the Jackson & Sharp Company against Isaac Pearson, trustee, to recover possession of certain bonds of Mercer county, Ky., issued to pay a subscription by the county to the capital stock of the Louisville Southern Railroad Company, and deposited with defendant, to be held by him until certain conditions were complied with by said company. Defendant demurs to the petition.</p> <p>In Equity. Suit brought in a court of the state of Kentucky by said Isaac Pearson, trustee, against said Louisville Southern Railroad Company and said Mercer county, to compel them to inter-plead, and have determined whether said bonds of the county in his possession should be delivered to the railroad company, or should be canceled. By an amended petition the Jackson & Sharp Company, plaintiff in the action at law above mentioned, and others, were made defendants. That company removed the cause to the circuit court of the United States on the ground of local prejudice. Mercer county and Pearson move to remand.</p>

<p>I. Municipal, Cobporations — Drainage—Construction of Statute.</p> <p>In the Louisiana statute transferring all drainage property in New Orleans from the drainage commissioners to the city itself, the provision of section 9 that “all property, not money, so received, shall be held in trust for the payment of said Mississippi and Mexican Gulf Ship Canal Company, and ultimately for the benefit of New Orleans?, should the same not he required for the work of drainage,” means that the property is to he held for drainage purposes as long as it is required therefor; and in the mean time it cannot be subjected to the canal company’s debts. 56 Fed. 376, affirmed.</p> <p>S. Same.</p> <p>The concluding words, “work of drainage,” as used in section 9, are not restricted to the property required for the work of drainage under the system of drainage contemplated by that act, so as to leave all propertyL not in accordance with that system to he held in trust for payment of the debts of the canal company.</p>

In Equity. Suit by Marcus M. Towle against the American Building, Loan & Investment Society. A receiver having been appointed by the court, a- petition has been filed by a receiver aft-erwards appointed by a state court, asking that this court’s receiver be required to surrender to him the assets of the corporation.

<p>Appeal from üie Circuit Court of the United States for the Eastern District of Texas.</p> <p>In Equity. Bill brought by Minnie M. Appleton, T. J. Appleton, and James M. Strong against J. H. Smelser, B. T. Estes, and the Bowie Lumber Company to recover the value of timber alleged to have been wrongfully cut from lands in which complainants have an interest, and for partition of such lands. The demurrer was at first overruled, but after evidence was taken, and a hearing had, the demurrer was sustained, and the bill finally dismissed, from which decree the complainants appeal.</p>

In Equity. Bill filed by J. F. Wood and others against John S. Collins and others. There was a decree for respondents, and complainants appeal. This suit was Drought by appellants by bill in equity to restrain prosecution of a suit at law instituted by appellees on the law side of the docket against appellants to recover 320 acres of land in McLennan county, Tex., patented to file heirs of W. P. Johnson, December 12, 1872, upon a location and survey made in 1871.

Oil October 10, 1883, George Parsons filed his bill in equity against Máxime J. Desvergers, Thomas H. Harden, and Francis J. Ruckert, wherein he stated: That early in the year 1881 — about January 1, 1881 — he employed Desvergers as his agent, and that Desvergers acted as his agent during the whole of that year, and a portion of the following year.

<p>1. ACCOUNTINGS— OBJECTIONS TO MASTER’S REPORT — WATVER.</p> <p>Where an order directing an accounting states ihe principle to be followed, and no objection is made thereto until after final decree, four years later, — the opposite party haring died in the mean time, — it is then too late to contend, for the first time, that certain matters plainly excluded by the order ought to have been taken into consideration.</p> <p>2. Appeal — Review—Accounting.</p> <p>A reviewing court will not, on an accounting between partners, reverse the action of the court below in disallowing, on conflicting evidence, certain claims which were first presented on exceptions ⅛> the master’s, report, when the consideration of such claims was necessarily excluded by the order under which the accounting was conducted, and when tlie opposite party and one of the bookkeepers having knowledge of the matters had died in the mean time.</p> <p>8. Partnership — Dissolution — Sale op Property by Resident Partner— Trusts.</p> <p>A resident managing partner, who is charged with the duty of winding np the partnership affairs and selling its property, is the agent and trustee of his nonresident copartner; and it is a breach of trust for him to become interested as a purchaser of such proi>erty, either alone or with others, without his partner’s knowledge, or to make profits out of the property at his partner’s expense, and by so doing he renders himself liable to account for the full value of the property at the time of the sale.</p> <p>4. Same — Conveyance ob- Partnership Interest — Effect.</p> <p>A deed whereby a partner owning a two-tbirds interest in the partnership conveys to bis copartner an “equal interest” in all the property of tbe firm will not, in the absence of a special provision to that effect, operate as a release of tbe accounts of the firm, against the partners, respectively; but these, like other accounts, remain part of the firm property.</p>

<p>Circuit Court of Appeals — Appellate Jurisdiction.</p> <p>An order made for the purpose of executing a decree, after an appeal from such decree has been perfected, but reserving final action until a commissioner should report his proceedings to the court at a subsequent term, is not subject to review on apiieal.</p>

<p>1. House and Street Railroads — Void Ordinance — Estoppel.</p> <p>A grant, by ordinance, to a sireel-raihvay company, was extended, by subsequent ordinances imposing new obligations, to a period beyond the limit of the corporate life of the company. The franchises of the company were thereafter transferred in turn to two different corporations, whose charters did not expire within the term of the extended grant. 'Held, that the extended grant was void upon the ground that it could not exceed the normal life of the original company, and that the enforcement of new ‘obligations, discharged at great expense by the new companies, would not estop the city, in view'of statutory res frictions, from denying a grant in the streets by any oilier act than an ordinance “duly enacted for the purpose.” How. Ann. St. Mich. § 3548.</p> <p>3. Same.</p> <p>An ordinance, imposing new obligations, extended a grant heyond the limit of the corporate life of a street-railway company. 'Held, that such ordinance constituted a valid, subsisting contract during the term of the corporate life of such railway company, and that the city was not 1 hereby estopped from asserting the right to oust the grantee of such railway company (whoso charter did not expire within the term of the extended grant) from the occupation of the streets after the expiration of such term.</p>

<p>Negligent Killing — Action against Receivers.</p> <p>A receiver is not a “proprietor, owner, charterer, or hirer,” within Rev. St. Tex. art 2899, giving a right of action for injuries resulting in death caused by the negligence of the proprietor, owner, charterer, or hirer of a railroad, etc., or by the negligence of their servants or agents. Turner v. Cross, 18 S. W. 578, 83 Tex. 218, followed.</p>

<p>This suit was commenced by a petition filed in the civil district court for the parish of Orleans by the state of Louisiana, represented by M. J. Cunningham, attorney general, and Henry C. Newsom, commissioner of agriculture, against E. Lagarde & Son, a commercial partnership doing business in the city of New Orleans, and charging, among other things, said E. Lagarde & Son, as dealers in commercial fertilizers, with carrying on their business in violation and disregard of the provisions and requirements of Act No. 51 of the Laws of Louisiana of 1886. That everything has been done -on the part of the state, contemplated; by said act, as to the rules established by the bureau of agriculture; the issuance and distribution of circulars; the preparation of tags; the establishment of the necessary regulations for the printing and attaching to bags and packages of fertilizers of the analyses of such fertilizers, seeking to obtain samples, and publishing analyses of fertilizers; the establishment of regulations for obtaining such samples and making the analyses; the adoption of rules and regulations for the collection and deposit of money for tags sold and fines imposed, etc. That said E. Lagarde & Son, for the seasons of 1890-91 and 1891-92, submitted to the commissioner of agriculture the statement required by section 2 of the- act, and obtained the certificates and licenses for each of those seasons required by section 8. That said E. Lagarde & Son have failed and refused to submit said statement as to the fertilizers they sell, or propose to sell, during the current season of 1892-93, and they therefore are not authorized, and have no right, to deal in commercial fertilizers in this state; but that, notwithstanding their failure to file the statement and receive the certificate aforesaid, they are and have been so dealing, and are therefore liable to a fine of $1,000 for each violation of the law, which petitioners now sue for. Further, that said E. Lagarde & Son have been guilty of many of said violations, selling without filing said statement and procuring such certificate, exceeding 10 in number, up to the commencement of this suit, etc., and during the past two seasons have sold in this state, as petitioners believe, an average of 8,000 tons of commercial fertilizers, and have sold up to this time, during the current season (1892-93), 1,000 to-ns, malting 7,000 tons up to this date; that the whole of said amount has been so sold by them in bags, some containing 200 pounds and some 100 pounds, or from 10 to 20 bags to the ton, or, at the lowest, 70,000 bags of fertilizers so sold by them; that they have failed entirely to comply with the positive requirements of section 6 of said act, having failed and refused to attach, or cause to he at-tached, to each of said bags, one of the tags prepared according to section • 5; that the taggage affixed by law is 50 cents a ton, which said E. Lagarde •& Son now owe on 7,000 tons heretofore sold by them, or $3,500, np to this time, which petitioners now sue for. Further, that, in addition to said tag-gage which said E. Lagarde & Son owe, ihey are liable, under seelion 6, to a penalty of $150 for each omission to affix a tag to each hag of fertilizer sold by them, making $10,500,000, which petitioners now sue for. And the petition details instances of various and sundry sales alleged to have been made by said E. Lagarde & Son without compliance with the law aforesaid. The petition further charges that said IS. Lagarde & Son, and other dealers operating with them, have willfully desregarded the law, and hampered and crippled the bureau of agriculture and the experiment stations; that they have not the right to carry on business or the sale of fertilizers, directly or indirectly, personally or through an agent, or as agents, resident or nonresident, in violation of the law; that unless they are restrained they will continue their unlawful business, and cripple and destroy the efficiency of these important state institutions, and cause petitioners irreparable injury. Wherefore, they pray for order and writ of injunction enjoining said JO. Lagarde & Son from further dealing in fertilizers or selling fertilizers in this state until they shall have filed with and submitted to tbe commissioner ol' agriculture a written or printed statement- as required by section 2 of Act No. 51 of 18S6, and procured a certificate required by section 3 of said act, and without placing upon and attaching to each hag or package of fertilizers one of the tags prepared and furnished by the commissioner of agri-eulinro. And they also pray for judgment against Jfl. Lagarde & Son, in solido, in the sum of 810,000 penalties incurred under section 3 of said act, and for the sum of $3,500 taggage or inspection fees, and for $10,500,000 penalties prescribed by section fi of the act, and for costs and for general relief. On the said petition an injunction issued as prayed for. Thereafter, on motion of E. Lagarde & Soil, suggesting their desire to bond the said injunction in accordance with the practice in Louisiana, the said injunction was dissolved, on a bond of $1,000; and thereafter, on. petition of defendants, and bond for removal, the cause was transferred to this court, as one arising under the constitution and laws of the United States.</p> <p>In this court the defendants filed a cross bill, wherein they allege that orators have been, during the years 1890, 1891, 1892, and 1893, engaged in the,, business or occupation of soliciting agents or drummers in this city and state for the Thompson & Edwards Fertilizer Company, a corporation created and organized under the laws of the state of Illinois, and are citizens of said state, the business of said fertilizer company being the manufacture and sale of commercial fertilizers; that orators’ business consists in soliciting orders for said fertilizer company from persons in this state, inducing them to agree to purchase fertilizers from the said fertilizer company, and, when they have so secured an agreeing purchaser for said company, they notify said company by sending to it the name and address of the intending purchaser, and the terms of (he sales agreed upon, and said company then ships direct from Chicago, 111., to the said purchaser in this state, the fertilizers so sold; that “your orators do not manufacture, pack, ship, handle, or even see, said fertilizers, hut the same are sold by the said fertilizer company to the purchaser, and shipped direct from the state of Illinois to the purchaser in the state of Louisiana, without your orators ever handling or owning or having any possession or control thereof;” that orators are not, and never have been, the soliciting agents of any other dealer in fertilizers than the said Thompson & Edwards Fertilizer Company; that they do not now have, and never have had, any fertilizer in their possession in this state, or exposed for sale in this state; have never had anything to do with said fertilizers, except as soliciting agents, as above stated; that for their services to said fertilizer company they receive a commission on sales effected through their efforts. Orators further aver that said Thompson & Edwards Fertilizer Company do not now, and have not during the years 1890, 1891, 1892, and 1893, or during orators’ connection with the said firm, kept on hand or exposed for sale any fertilizers in this state. The hill then sets out in full Act No. 51 of the Acts of the General Assembly of the State of Louisiana for the Tear 1886, and also the proceedings hereinbefore recited in regard to the institution of the suit. It is further averred that “orators are not manufacturers of or dealers in commercial fertilizers in this state, within the meaning of the provisions of said Act No. 51 of 1886, but that said commissioner of agriculture and the said attorney general claim that' your orators’ aforesaid business is subject to the provisions of said act. And orators charge that, if said act is applicable to the aforesaid business of orators, then said act is unconstitutional, null, and void, because in violation of the constitution of the United States, and especially of article 1, § 8, d. 3, thereof; and, in support of this, orators aver that their business is now, and has ever been, that of soliciting agents or drummers of said Thompson & Edwards Fertilizer Company, for the sale and shipment of fertilizers by said company from the-state of Illinois to the state of Louisiana, said shipments being made direct from Chicago, HI., to the purchasers in Louisiana, and received by orators in the original packages; that orators’ business or occupation is interstate commerce, and is exempted, by the above referred to provisions of the constitution of the United States, from any such regulations, interference, restriction, burden, or tax as is sought to be imposed by said Act No. 51 of 18SC. And orators further say that, if said act be an inspection law, it must be confined to commercial fertilizers manufactured in this state, or prepared for export or actually offered and exposed, for sale in this state, and so far as applicable to fertilizers manufactured in other states, and not brought into this state, except after sale, and while in course of direct transportation to the purchaser and consumer, said act is in violation of the commerce clause of the constitution of the United States above referred to. But orators charge that said act is not in any proper or legal sense an inspection law; that said act does not require or provide for any actual inspection or examination of the fertilizers subject to its provisions; that it is purely and simply a revenue act. Orators further charge that said act is in violation of article 29t of the present constitution of the state of Louisiana, *in that it embraces more than one object, and of articles 202-to 218 of said constitution, which define and limit the power of the general assembly to impose licenses or any other taxes for purposes of revenue.” It is further averred that “notwithstanding the premises, and the patent unconstitutionality and nullity of said Act No. 51 of 1886, the said commissioner of agriculture and the said attorney general threaten to enforce its provisions against your orators, and they threaten to (and, unless restrained by this court, will) bring, not only a number of civil suits against your orators, but will cause to be instituted a number of criminal prosecutions against your orators, and the members there :, and will cause them to be indicted, arrested, and tried for each sale of fertilizers negotiated by them as the soliciting" agents of the said Thompson & Edwards Fertilizer Company as aforesaid, and will so oppress and harass your orators and the individual members by a multiplicity of suits and prosecutions as to break up their aforesaid business, and subject them to irreparable loss and injury, and deprive them of their personal liberty.” The prayer is that the defendants may answer, but not under oath, and that a writ of injunction may issue, restraining and enjoining Henry C. Newsom, commissioner of agriculture of this state, and M. J. Cunningham, attorney general of this state, and each of them, their agents, attorneys, and servants, including Charles A. Butler, district attorney, and John J. Finney, assistant district attorney, for the parish of Orleans, state of Louisiana, from instituting or filing, or directing any others to institute, any suit or suits, action or actions, civil or criminal, against your orators, or the individual members thereof, to enforce against them the provisions of Act No. 51 of 1886, to recover the tax or taggage fees therein provided, or the fines or penalties, or any of them, therein imposed, except in this cause and in this court, and from interfering with orators’ business by reason of anything contained in said act; and in the mean time they pray for a restraining order embracing all the relief prayed for.</p> <p>On notice to show canse why the restraining order prayed for in the cross bill should not issue, the defendants M. J. Cunningham, attorney general, and II. C. Newsom, commissioner of agriculture, appeared by counsel; and thereupon, on their motion, the suit was ordered placed on the law docket of tlie court, and the application for an injunction and for equitable relief dismissed and abandoned, — consent, however, being given that the cross bill of E. Eagarde & Son should stand as an original bill. Thereupon, the defendants to the bill were ordered to show cause why an injunction pendente lite, as prayed for, should not issue; and, in the mean time an order was entered, restraining the defendants, their agents and servants, and certain prosecuting officers, from instituting further suits, civil or criminal, against the complainants.</p> <p>On the hearing the complainants presented the affidavits of several dealers in fertilizers, to the effect that the law in question, in its operation, is in no wise' an inspection law; that no inspections are made, or ever have been made, under the same; and that there are no officials appointed, or ever have been appointed, or are acting, under said statute, whose duty it is to inspect fertilizers, or to see that said tags required by tlie act are affixed io the packages of fertilizers offered for sale or sold. Complainants also presented affidavits to tlie effect that tlie members and agents of tlie bureau of agriculture have threatened and are threatening to prosecute complainants, civilly and criminally, in all the parishes of the state, based on every transaction of theirs as' the soliciting agents of fertilizers, with tlie intention declared of involving them in a multiplicity of suits and prosecutions, unless they shall comply with the law, and that such suits and prosecutions are intended to bi-eak up complainants’ business, which is & growing and profitable one, and thus destroy tlieir property.</p>

At Law. This was an-action by Reuben W. Millsaps against tbe city of Terrell. There was judgment for defendant, and plaintiff brings error. The defendant, the city of Terrell, is a municipal corporation in the state of Texas, existing under and by virtue of chapters 1 to 10 of tille 17 of the Revised Statutes.

<p>In Error to the Circuit Court of the United States for the Northern District of Florida.</p> <p>This was an action by J. T. Whiting, administrator of H. O. F. Brown, against the Equitable Life Assurance Society. There was a judgment for defendant on a verdict directed by the court, and plaintiff brings error.</p> <p>This was an action brought by the complainant in error, J. T. Whiting, as administrator of the estate of H. C. F. Brown, in assumpsit against the Equitable Life Assurance Society, a corporation of New York, in the circuit court for Escambia county, state of Florida, whence it was removed to the circuit court of the United States for the northern district of that state. Tt was alleged that plaintiff’s intestate, on the 28th day of June, 3873, made application to the defendant company for a policy of insurance upon his life for the sum of 830,000, and paid therefor the first premium of ,8817.51. The policy was not granted, but the party died the 16th of July that year. In 1892 an administrator was appointed, and suit was commenced by him to recover, first, the amount of premium paid with interest; second, 839,990 and interest for life insurance on the life of the plaintiff’s intestate. This last claim was abandoned by plaintiff at the trial, and the only demand was for the premium alleged to have heen paid, with interest. Upon the trial, the plaintiff proved the death of the intestate, the granting of 1lie administration to the plaintiff, and that the widow of the intestate came into possession of her husband’s papers, among which she found a receipt as follows, to wit:</p> <p>“Age 36. • No.-.</p> <p>“The Equitable Life Assurance Society of the United States, New York. “Amount, 830,000.09. Premium, 8817.50.</p> <p>“William O. Alexander, President; Henry B. Hyde, Vice President.</p> <p>“Received from Mr. H. C. F. Brown eight hundred and seventeen dollars and fifty cents, being for the first annual premium and policy fee on an as-, surance of thirty thousand dollars on the life of the said II. C. F. Brown, for which an application is this day made by him to the Equitable Life Assurance Society of the United States. The said H. C. F. Brown to be assured from the date of this receipt, in accordance with the rate of premiums and the provisions of the policy of said society: provided always said application shall be approved and accepted by said society; but should the said application be declined by said society, then the amount, the receipt whereof is hereby acknowledged, is to be repaid by me to the said H. O. IT. Brown. Inasmuch as delays and miscarriages may take place in the mails or otherwise, the applicant for the policy is desired himself to send the annexed coupon by mail to the head office of this society, where it will receive immediate attention. Faitee to do this will .relieve the society from any liability under this conditional receipt.</p> <p>“Dated Mobile, June 28th, 1873. Jos. E. Murrell, G. A.,</p> <p>“Per J. 0. Ruse.</p> <p>“For further reference, the applicant 'should note here the date he himself Sends the coupon, and the name of postoffice at which mailed.</p> <p>“Date of sending coupon,-, 187-. Mailed at-post office.</p> <p>“In case of acceptance, the society will send the policy without delay, and, in case of declining the application, will at once notify the applicant. Should, therefore, the applicant not receive from the society notice of his acceptance or rejection within fifteen days from the date hereof, he is requested to communicate at once with the society.</p> <p>“No agent is authorized to deliver this ‘conditional receipt’ without the coupons attached.”</p> <p>. Upon the presentation of this paper, its reading was objected to because it was not shown that Murrell or Ruse had signed the same, or that Murrell was authorized to sign it, which objection was sustained. The plaintiff then introduced interrogatories and answers of one Bacon, which had been taken by defendant, to the effect that during June and July, 1873, at which time the receipt appears to have been given, he was clerk in the employ of the Equitable Life Assurance Company; that he identified the application of Brown for $30,000, forwarded through their agent, Murrell, at Mobile; that the application was not approved and accepted, on account of insufficiency of examination and lack of a certificate; and that he informed Murrell by letter of the suspension of the application until tether examination. He also presented and identified a letter written by him, notifying Murrell of the suspension of Brown’s application, and one from Murrell in reply, which was as follows:</p> <p>“The Equitable Life Assurance Society of the United States, No. 120 Broadway, New York.</p> <p>“Wm. C. Alexander, Bres’t; Henry B. Hyde, Vice-Pres’t; J. E. Murrell Gen’l Agent, Mobile Co., Ala., and Border Counties of Mississippi.</p> <p>“Mobile, Ala., July 12th, 1873.</p> <p>“Geo. W. Phillips, Esq., New York — Dear Sir: I have your lines of the 8th respecting Brown. Mr. Brown gave us a sight draft on New Orleans for the premium, which was protested, and it seems that he was not authorized to draw the draft, there being no such firm in New Orleans; hence the provisional insurance is canceled, and the application must remain declined. The examination was complete, being examined by an outside physician also. The condition of the kidneys normal, but by oversight the blank opposite that question was not filled up, the risk being first class. However, for the reason stated, I do not now deem the case morally acceptable. ,</p> <p>“Yours, very truly, Jos. E. Murrell, Gen’l Agt.”</p> <p>The original record does not show, in the bill of exceptiofis therein contained, that the receipt which had been objected to and excluded was again presented and permitted to be read in evidence, but an amendment to said record presented at the hearing alleges that it was so presented and admitted and read in the case, and that the record had been properly amended by the action of the court below. Mrs. Brown, who had testified to finding the receipt among her husband’s papers, was recalled, and testified that a short time after her husband’s death John G. Ruse called upon her, and wanted to see her husband’s papers, and showéd her her husband’s signature upon a piece of paper attached to a small book, which he declined to let her have unless he could see the papers. He also wanted her to give him the receipt of the company, which she refused to do. He also told her that there was a letter at Bay Minette for her husband, but that he would send her a copy of it. He shortly afterwards sent her a copy of a letter said to have been written to her husband, which was as follows:</p> <p>“The Equitable life Assurance Society of the United States, No. 120 Broadway, New York.</p> <p>“Win. A. Alexander, President; Henry B. Hyde, Vice President; .T. E. Mur-rell, Gen’l Agent, Mobile, Ala., Mobile County, Alabama, and Border Counties of Mississippi.</p> <p>“Mobile, Ala., ———, 1873.</p> <p>“Copy of my letter July 8th: ‘H. 0. F. Brown, Esq., Bay Minette — Dear Sir: I regret to inform you that your application for $30,000 in the Equitable Bife Assurance Society has not been accepted, and no policy will be issued. Please return me the receipt I gave you and I will forward the sight draft you gave me for the premium. Yours, very truly, Jos. E. Murrell, G. A., per Jno. C. Ruse.’</p> <p>“N. B. This letter was directed to ‘Mr. H. 0. F. Brown, Bay Minette, M. & M. It. R.’ ”</p> <p>Here the plaintiff rested 1ns ease, and John C.'Ruse was introduced for the defendant, who testified: That during June and July, 1873, he was clerk in the insurance office of J. E. Murrell, who was general agent for the defendant company. That he recollected H. C. F. Brown, plaintiff’s intestate, making application for insurance, in writing, in Juno, 1873, and that he had signed his name as witness, and that the application, was in his handwriting. That Brown never paid any premium in cash for the policy for which application was made, hut that he g'ave a draft upon some house in New Orleans, upon which a receipt was given him. That the draft was promptly forwarded for collection, but was returned witli report that the collection could not he made, and the draft was protested. That such draft was never paid, so far as ho knew. The draft was returned, and remained with J. E. Murrell, without the said Brown, or any one else, paying the same. He remained with Mur-rell for a long time, and it was not paid. That the draft was protested for nonpayment. That it was always kept by Murrell, and, if not destroyed, is probably among his papers, he being dead. Ho admitted that he did ask Mrs. Brown to surrender the receipt given by him to Brown, because upon its face it would have appeared that money liad been received, and the company would have to show that it had not. This concluded the testimony in the case; whereupon the counsel for the defendant requested the court to instruct the jury to find a verdict for the defendant, which it did; and, under such instruction, the jury returned such verdict, and judgment was entered accordingly.</p> <p>The only ground of error alleged is not submitting the determination of the ease to the jury, but instructing them to find a verdict for the defendant.</p>

This was an action of trespass to try title, brought by the Texas Lumber Manufacturing Company against Wharton Branch, T. M. McVeigh, C. L. Sisson, Stephen Hines, P. Scroggins, (J. J. Collins, and others, in which J. B. Abbington, E. C. Douglass, and others, intervened. The case was tried by the court without a jury, and judgment was rendered in favor of plaintiff, and the defendants and interveners brought the case on error to this court.

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>Action by the Guaranty Savings Bank against the city of Alma upon coupons on certain municipal bonds. Plaintiff obtained judgment. Defendant brings error.</p> <p>This was a suit on coupons of municipal bonds which were issued and sold by the city of Alma, a city of the third class of the state of Kansas, situated in the county of Wabaunsee. The power to issue the bonds was derived from section 38, art. 3, of an act to provide for the' incorporation of cities of the third class (vide Gen. St. Kan. 1889, par. 961), which is as follows: "The council may provide for making any and all improvements of a general nature in the city, and for the purpose of paying for the same may, from time to time, borrow money, and may issue bonds therefor, and street bonds to contractors and others performing work or furnishing materials; but no such money shall be borrowed or bonds issued until the city council shall be instructed so to do by a majority of all the votes cast at an election held In such city for that purpose. Bonds issued under this section shall be payable in not less than ten years nor more than twenty years from the date of their issue, with interest thereon at a rate not exceeding ten per cent, per annum, with interest coupons attached, payable annually or semiannually. The council shall levy taxes on all taxable property within the city, in addition to other taxes to pay said bonds at their maturity and their interest coupons as they respectively become due, which taxes shall be paid in cash only.” Acting under the foregoing power, the city council, on March 18, 1S89, duly passed and recorded in the journal of its proceedings the following resolution:</p> <p>“Council Chamber, 18th March (cont’d), 1889.</p> <p>. “Motion by Fred Craft, and seconded by Geo. M. Keene, that the following resolution be adopted: Resolved, that, complying with the request of many citizens and electors,. publicly expressed at a meeting of the citizens of the city of Alma held at the courthouse on the evening of the 10th day of March, 1889, we deem it advisable to call a special election to obtain the will of the electors of this city as to whether or not the said electors will instruct the city council of Alma to issue bonds of the said city in the sum Of $25,000.00 for the purpose of carrying on general improvements; that said bonds, if issued, shall be payable in twenty years from the date of their issue, and shall bear interest at the rate of seven per cent, per annum, with interest coupons attached, payable semiannually at the fiscal agency of the state of Kansas at the city of New York, N. X.; that such election be held on the first Monday in April, 1889, at the courtroom in the courthouse in said city, and that Henry Pauly, Geo. M. Keene, and William K. McDonald, members of the city council, be appointed judges of such election, and that Henry Weygand and Y. O. Welch be designated as clerks of such election, and that the polls be opened at eight o’clock a. m., and close at six o’clock p. m.; of said day; and that the ballots shall be worded, ‘For instructing the city council to issue the bonds,’ and ‘Against instructing the city council to issue the bonds;’ and that the mayor make proclamation of such election by publication in the city official paper.”</p> <p>The proposition contained in the foregoing resolution was voted upon by the inhabitants of the city at an election which was held on April X, 1889, after being duly advertised, and after due proclamation by the mayor. It so happens that said, election was coincident with the regular annual election held on April 1, 1889, for the election of city officers. The vote taken on said proposition was duly canvassed by the city council, and the proposition to issue bonds was found to have been carried by a very large majority ■ of all the votes cast. Subsequently, and on April 3, 18S9, the city council passed the following resolution by a unanimous vote, and caused the same to ba duly entered in its journal:</p> <p>“Council Chamber, April 3rd, A. D. 1S89.</p> <p>■ “Resolved, that acting in obedience to the expressed will of the electors of the city of Alma, at the election held on the 1st day of April, A. D. 1889, in relation to the council issuing improvement bonds in the sum of $25,000 00-100, and being instructed to so issue said bonds, that said bonds now be issued in the form and upon the terms specified in the proclamation of said election; that said bonds be prepared and executed in compliance with the law in such cases made and provided. And further resolved, that, upon signing and execution of the said bonds and coupons, the mayor of the city be requested to negotiate the same at not less than par per cent, of their face value, and make report of his doings in respect to the same at the next regular meeting of the city council, or at a special meeting called for that purpose before such regular meeting.”</p> <p>Subsequently, the bonds were duly executed under the hand of the mayor and clerk, with the seal of the city attached, and the same were sold, and the city received, and still retains, the proceeds. The bonds thus issued were entitled “improvement Bond.” On their face they contained a recital of the law under which they had been issued, and a copy‘of the same, to wit, section 38, art. 3, supra, was printed on the back of each bond. They were also duly registered in the office of the auditor of the state of Kansas on April 5, 18S9. The case was tried to a jury in the circuit court, and the trial judge directed a verdict against the city, and in favor of the holder and purchaser of the bonds. To reverse the judgment entered on that verdict, the city has sued out a writ of error.</p>

<p>In Error to the Oircuit Court of the United States for the Southern District of Iowa.</p> <p>Action by Allelia R. Morgan, by her next friend, B. W. Morgan, against the city of Des Moines, for personal injuries. Defendant obtained judgment on demurrer to the petition. Plaintiff brings error.</p>

This was an action by Elizabeth Schneider against the Hew Orleans & Carrollton Railroad Company, a street railroad, for personal injuries. Plaintiff obtained a verdict in the sum of $2,000, “with legal interest from judicial demand,” and judgment was subsequently entered thereon. 54 Fed. 466. Defendant now brings error.

At Law. On motion for new trial. Action by John A Lightcap against the Philadelphia Traction Company for negligence. There was verdict for plaintiff, and defendant seeks a new tidal.

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>At Law. This was an action by Leonard M. Thom against Maddox Bros. & Anderson. There was judgment for plain till, and defendants bring error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>This was an action of trespass to try title, brought by William O. Crowls and others against J. F. Newman. There was a judgment for plaintiffs on a verdict directed by the court, and defendant brings error.</p> <p>This suit was instituted in the United States circuit court for the northern district of Texas by defendants in error, citizens of the state of Louisiana, to recover from plaintiff in error, a citizen of the state of Texas, 040 acres of land situated in Fisher county, Tex., patented by the state of Texas to the heirs of George W. Crowls on June 9, 1890, by virtue of a land certificate issued by the adjutant general of the state of Texas to the heirs of George W. Crowls on February 17, 1852, in accordance with an act of the legislature of Texas approved February 10, 1852. The action was brought in the ordinary form of trespass to try title, as provided by the laws of Texas, plaintiff in error answering by plea of not guilty. Defendants in error (plaintiffs below) proved that they were the only heirs of George W. Crowls, deceased; that he died a soldier in the army of the republic of Texas on November 0, 1830; that a bounty certificate of 040 acres of land was issued to them, as the heirs of George W. Growls, by the adjutant general of the state of Texas, on February 17, 1852, in accordance with an act of the legislature of Texas approved February 10,1852, which granted and secured to the heirs of George W. Growls, deceased, 040 acres of land, “to which they are entitled by virtue of the services and death of said Geo. W. Crowls in the army of the republic of Texas,” and authorized the issuance of a bounty warrant for said 640 acres of land to the heirs of said George W. Crowls; that the land in controversy was located by virtue of said bounty certificate, and was patented on June 9, 1890, to the lieirs of George W. Crowls, deceased. Plaintiff in error (defendant below) introduced in evidence, and relied upon, a judgment of the district court of Fisher county, Tex., in the cause of The State of Texas v. The Heirs of Geo. W. Crowls et al., (No. 18,) rendered March 14, 1890, (which was a proceeding to escheat the land in controversy,) an order of sale issued in said cause on May 12, 1890, and a deed to plaintiff in error, of date June 3, 1890, from the sheriff of Fisher county, Tex., reciting the judgment and order of sale above mentioned, alleging the due advertisement and sale of the property in controversy thereunder to plaintiff in error for the sum of §1,920 cash, and purporting to convey to plaintiff in error all of the estate, right, title, and interest which the lieirs of George W. Growls and other defendants (squatters upon the land) and the state of Texas had in and to- the land in controversy. It was shown that plaintiff in error was the highest and hest bidder at said sale; that the land was sold to him for $1,920 cash, which sum he paid the sheriff on receipt of deed to the land; and that the sheriff paid over to the treasurer of the state of Texas $1,036.40 of this money, that being the balance left after payment of the costs of the escheat proceeding. Defendants in error then introduced: in evidence a duly-certified copy of the transcript of the complete proceedings in the said cause of The State of Texas v. Heirs of Geo. W. Growls et al., (No. 18,) in the district court of Fisher county, Tex. Said transcript shows, among other things, service by publication, as follows:</p> <p>“The State of Texas to the Sheriff or any Constable of Fisher County, Greeting: Oaths therefor having been made as required by law, you are hereby commanded that you make publication of this citation in some newspaper published in said county once a week, for four consecutive weeks previous to the return day hereof you summon all persons interested in the estate of Geo. W. Crowls, deceased. Defendants to be and appear before the district court to be holden in and for the aforesaid county of Fisher, at the courthouse thereof, in the town of Roby, on the first Monday in September, 1888, then and there to answer tho petition of the state of Texas, by R. C. Crane, county attorney of Fisher county, plaintiff, filed in said court on the 8th day of August, 1888, and numbered on the docket of said court 18, against P. A. Williams, a resident of Taylor county, and <T. F. Newman, a resident of Nolan county, and the heirs of the said Geo. W. Crowls, deceased, alleging, in substance, as follows: That in the year 1853 a bounty warrant was issued to the said Crowls by the state of Texas, and said bounty warrant was in said year located by him on 640 acres of land situated in Fisher county, Texas, now known and designated as ‘Survey No. 325, Block 16, Abstract No. 19,’ lying on the south bank of the Clear Fork of the Brazos river; that no patent was ever issued by the state of Texas to tho said Geo. W. Crowls upon said land, or to any one claiming under or through him; that said Crowls has departed this life, and left no heirs, or any one having a legal claim to said land; that said P. A. Williams and J. F. Newman are claimants of said land; and that said Newman is now in possession thereof. Plaintiff- asks for judgment vesting title to said land in the state of Texas, and for a writ of possession for said land in behalf of the state of Texas, for costs and general and equitable relief. Herein fail not, but have you then and there before said court this writ, with your return thereon, showing how you have executed the same.</p> <p>“Issued this 6th day of August, A. D. 1888.</p> <p>“Witness: W. g. Rector,</p> <p>“Clerk District Court. Fisher County.</p> <p>“Given under my hand and the seal of said court, at office, this 8th day of August, A. D. 1888.</p> <p>[Seal.] “Attest: ■ W. S. Rector,</p> <p>“Clerk District Court of Fisher County.”</p> <p>“Sheriff’s Return.</p> <p>“Received this writ on the 8th day of August, A. D. 1888, at 10 o’clock a. m. of said day; and I executed the same by publishing the same in Fisher County Call, a newspaper published in the county of Fisher, once in each week for four consecutive weeks, previous to the returu day thereof. Said publication was made on the 9th, 16th, 23d, and 30th days of August, A. D. 1888, and a printed copy thereof herewith accompanies this return.</p> <p>“Witness my hand, officially. C. E. Roy.</p> <p>“Sheriff Fisher County.”</p> <p>Indorsed as follows: “No. 18. In District Court. The State of Texas v. Heirs of Geo. W. Crowls. Citation by publication. Issued this 8th day of August, 1888. W. S. Rector, Clerk.”</p> <p>Said transcript also shows the judgment of the district court of Fisher county, Tex., in favor of the state of Texas, and against the heirs of George W. Crowls and others, as follows:</p> <p>“On this day came on to be heard the above styled and numbered cause, and the state of Texas appearing by her county attorney, W. W. Beall, and ft. O. Grane and 1?. Keifer, attorneys for the state of Texas, and it appearing to the court that the heirs of G. .W. Growls, though duly cited as required by law, by making publications in the Fisher County Call, a weekly newspaper published in Fisher county, Texas, of the citation issued herein, prior to the return day of the September term, A. 1). 1888, of this court, failed to appear and make answer herein, but wholly made default; and it further appearing to the court'that Allen Williams and J. F. Newman, defendants herein, though duly cited by law, failed to appear and make answer in the said cause, but wholly made default; and it further appearing to the court that Mrs. P. A. Williams, a defendant herein, having been duly cited, appeared and made answer herein at the September term, A. D. 1889, of this court, and neither the state of Texas nor either of the defendants herein demanding a jury, the court therefore proceeded to hear the evidence and determine the issue upon the pleadings and evidences in said cause. And it appearing to the court that the only claim of the heirs of G. W. Crowls upon the tract of land herein sued for is by virtue of a certificate issued by the state of Texas to the said heirs in the year A. 1). 1858, and that the said certificate was by said heirs located upon (he tract of land herein sued for, and situated in Fisher county, Texas, and that no patent has ever been issued from the state of Texas to the said heirs of G. W. Crowls, or to any other party, for said tracts of land, and that the title thereto still reimiins in the state of Texas, and it further appearing to the court that no act of ownership has been exercised by the said heirs of G. W. Crowls, or any person or persons claiming by, through, or under them, for a period of more than seven years preceding the institution of this suit, and that no lawful claim has been asserted within the said time by any party; and it further appearing to the court that no one of said defendants herein has set up any title to said tract of land, or has offered any evidence of title thereto, though duly cited as before stated; and it further appearing to the court that said tract of land is reasonably worth the suin of at least $3.00 per acre — it is therefore the opinion of the court that the law and facts are with the plaintiff, and that he have and recover the tract of land herein sued for and here-inbefore described. It is therefore ordered, adjudged, and decreed by the court that the state of Texas do have and recover of the defendants,'heirs of G. W. Crowls, J. F. Newman, P. A. Williams, and Allen Williams, all that tract or parcel of land situated in Fisher county, Texas, hereinafter more particularly described by metes and bounds as follows.”</p> <p>The court, on the evidence, instructed the jury to return a verdict for defendants in error for the land in controversy, which was accordingly done, and judgment was rendered in accordance with said verdict.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Texas.</p> <p>This was an action by George W. Russ against Count Joseph Telfener to recover damages for breach of a contract to purchase certain rights acquired by plaintiff in lands belonging to the state of Texas. There was a verdict and judgment for plaintiff, which, on a writ of error, was reversed by the supreme court of the United States, and the case remanded for a new trial. See 12 Sup. Ct. 930. Verdict and judgment have again been rendered in favor of plaintiff, (see 57 Fed. 973, for the court’s charge to the jury,) and defendant now brings the case on error to this court.</p> <p>The following statement of the facts was made by Mr. Justice Field when the case was before the supreme court:</p> <p>On tbe 14th of July, 1870, tbe legislature of Texas passed an act “to provide for the sale of a portion of the unappropriated public lands of the state,” and the investment of the proceeds. The following are the sections of the act which bear upon tins ease: "Sec. 2. That any person, firm, or corporation, desiring to purchase any of the unappropriated lands herein set apart and reserved for sale, may do so by causing the tract or tracts which such person, firm, or corporation desires to purchase to be surveyed by the authorized public surveyor of the county or district in which said land is situated. Sec. 3. It shall be the duty of the surveyor, to whom application is made by responsible parties, to survey the lands designated in said application within three months from the date thereof, and, within sixty days after said survey, to certify and record a map and field notes of said survey; and he shall also, within tlie said sixty days, return to and tile the same in the general land, office, as required by law in the oilier cases. * * * Sec. 5. Within sixty days after the return to and tiling in the general la.nd office of the surveyor’s certifícale, map, and field notes of tbe land desired to be purchased, it shall be the right of the person, Arm, or corporation who has had the same surveyed to pay, or cause to be jiaid, into the treasury of the state, the purchase money therefor at tlie rate of fifty cents per acre, and, upon the presentation to the commissioner of the general land office of the receipt of the state treasurer for such purchase money, said commissioner shall issue to said person, firm, or corporation a patent for the tract or tracts of land so conveyed and paid for.” “See. 7. It shall he the duty of the commissioner of tlie general land office to give such general and specific instructions to the surveyors in relation to the survey of the public lands under the provisions of this act as may best subserve all interests of this state, and carry into force and effect the intent and purposes of this act. See. 8. After the survey of any of the public domain authorized by this act, it shall not be lawful for any pen-son to file or locate upon the land so surveyed, and such file or location shall be utterly null and void. Sec. Í). Should any applicant for the purchase of public land fail, refuse, or neglect to pay for the same at the rate of. fifty cents per acre within tlie time proscribed in section 5 of this act, he shail forfeit all rights thereto, and shall not thereafter bo allowed to purchase the same, but the land so surveyed may be sold by the commissioner of the1 general land office to any other person, firm, or corporation who shall pay into the ü-easury the purchase money therefor.” An amendment of the act in 1881 extended its provisions to unappropriated land in other counties than those originally mentioned. On the 22d of January, 1883, both acts were repealed.' While the first of these acts was in force the plaintiff helow, the defendant in error here, claimed to have acquired a valuable and transferable interest in a large body of these lands, exceeding in extent a million of acres, and to have sold the lands to the defendant below, Count Joseph Telfe-ner, at 25 cents an acre. To recover damages for breach of this alleged contract, and a supplementary contract of the same date accompanying it, the present action was brought in a state court of Texas. The petition of the plaintiff, the first pleading in the action, alleges that the plaintiff is a resident of Texas, and that the defendant is not a resident of .the state, but a tran''sient person then temporarily in the state of New York; that on the 1st day of November the plaintiff was the sole owner of a certain valuable, valid, and transferable interest in the whole of a certain body of land containing, as subsequently ascertained by survey, 1,813 tracts of 640 acres each, being an aggregate of 1,160,320 acres, situated in the county of El Paso, in the state of Texas, and forming part of what is known as the “Pacific Reservation;” and that he had become such owner by complying with the requirements of the act of July 14, 1879, mentioned above, and of the amendatory act of March 11, 1881. The petition then details the mode in which the plaintiff became such owner, namely, that during the month of October, 1882, being a responsible party, and intending to purchase the said body of land which was subject to sale under the terms of the acts mentioned, he applied to the surveyor of the county of El Paso for the purchase and survey of the 1,813 tracts, describing them by metes and bounds as a whole; that he made the application pursuant to the instructions of the commissioner of the general land office of the state to the surveyors of the counties and land districts containing lands subject to sale; that the application was filed and recorded in the office of the surveyor in October, 1882; that, having thus made due application for the purchase and survey of said lands, he was, on the 1st day of November, 1882, about to have them surveyed into tracts of 640 acres each, when the defendant, by his duly-authorized agents, applied to him to purchase his interest in the lands thus acquired; and that thereupon the plaintiff, not yet having paid to the state of Texas the 50 cents per acre to which the state was entitled, and the defendant offering to assume such payment, and desiring simply to contract with the plaintiff for the purchase and assignment of his right to purchase from the state, they entered into the contracts contained in the exhibits annexed, marked “M” and “N,” which are as follows:</p> <p>“Exhibit M.</p> <p>“The State of Texas, County of Dallas — ss.: This contract and agreement entered into by and between George W. Russ, of Dallas county, Texas, party of the first part, and Count J. Telfener, party of the second part, this first day of November, A. D. ,1882, witnesseth as follows: .Whereas, said Russ claims to have made application in due form for the purchase of about one million acres of land, more or less, in El Paso county, Texas, from the state of Texas, under and by virtue of an act of the legislature of Texas, approved July 14,1879, providing for a sale of a portion of the public lands of Texas at 50 cents per acre, and the amendments to said act, said application having been made in October, 1882, and duly filed in the surveyor’s office of El Paso county, at Ysleta; and whereas, the said Count Telfener is desirous of purchasing from said Russ all his rights, titles, and interest under and by reason of such application, provided it shall appear that such application has been regularly made and filed in such manner as will, under the terms of said law, entitle the said Russ to become the purchaser of the said lands from the state of Texas; and in such case has agreed and promised to pay to said Russ, as consideration of his sale, transfer, and assignment of all his said rights, titles, and interest, twenty-five cents per acre for each and every acre of land covered by his said application, and the said Russ has agreed and bound himself, in consideration, of said price and sum to be paid to him, to sell, transfer, and assign unto the said Count Telfener all his rights, titles, and interest in said lands acquired by his application and files: In order, then, that the said contract of purchase and sale and assignment may be effected, the said parties agree as follows: The said Count Telfener, for the purpose of ascertaining whether the said application for purchase has been regularly ami properly made as aforesaid, and according to the provisions of said la w and the amount of land covered by or embraced within such application, shall proceed at once and inspect the records and tiles of the surveyor’s ofiice of El Paso county, at Yslota, and the map of said county in said office. If it shall be there shown that the said application and tiles thereof have been regularly and properly made, in such manner as under the terms of said law would entitle the said Rnss to become the purchaser of said lands from the state of Texas, the said parties shall ascertain by reference to said application and files and the maps of said county in said surveyor’s office, and in the office of the commissioner of the general land office of the state at Austin, the number of acres approximately embraced in or covered by said application and files. The number of acres being ascertained by approximation in manner aforesaid, and said application having been found good and regular as aforesaid, the said Count Telfener agrees to pay to the said Russ in cash, in the city of Dallas or the city of Austin, Texas, as said Russ shall prefer, ninety per centum of the said purchase price so agreed upon as aforesaid for the number of acres so' ascertained' approximately as .aforesaid; and the said Russ agrees and hinds himself that upon such payment being made he will execute and deliver to said Count Telfener any and all deed or deeds or other instruments that may he proper or necessary, conveying, transferring, and assigning unto the said Count Telfener al) and singular the rights, titles, and interests that the said Russ now has or may be entitled to in and to said lands, by reason of such application and files, binding himself by covenant of warranty against all persons claiming or to claim the same, or any part thereof, by, through, or under him. It is understood, however, that the said inspection, ascertainment of regularity of files, and of the amount of land by approximation shall be completed on or before the 15th day of November, 1882, and that the said Count Telfener shall not bo on tilled to any delay beyond that time for said purposes and for making the payment aforesaid. After the transfer and assignment as aforesaid shall have been made by the said Russ, the said Count Telfener shall proceed, without delay, and have said lands surveyed and platted, and the field notes thereof returned and filed according to the provisions of said law. Upon the completion of said surveys and field notes, the number of acres embraced in said lands so sold and transferred shall be ascertained, and, if the said sum so paid as aforesaid by said Count Telfener shall not amount to the full purchase price of twenty-live cents per acre for each and (ivory aero of said land, the deficit shall he paid at once in cash to said Russ by the said Count Telfener in the city of Dallas, Texas, or at Austin, Texas, as the said Rnss may prefer.</p> <p>“Witness our hands this 1st day of November, 1882.</p> <p>“Geo. W. Russ.</p> <p>“J. Telfener, by G. Baecarisse, Agt.</p> <p>“Witness:</p> <p>“Chas. Fred. Tucker.</p> <p>“Win. McGrain.’’</p> <p>“Exhibit N.</p> <p>“This conti act and agreement entered into this 1st day of November, 1882, by and between Count JT. Telfener and G. W. Russ, witnesseth as follows: Whereas, the said parties have this day entered into a contract providing for the sale and transfer by the said Russ to the said Count Telfener of all the right, title, and interest of the said Russ in a certain tract of about one million acres of land in El Paso county, Texas, for the purchase of which the said Rnss has made application under and by virtue of the act of the legislature of Texas approved July 14, 1879, known as the ‘50-Cent Act;’ and whereas, if said sale and transfer shall he made as provided for by said contract, it will be necessary to complete the surveys of said land, and file the field notes and maps thereof in the surveyor’s office of El Paso county, Texas, and in the general land office at Austin, within the time required by the said law: Now, therefore, it is agreed by the said Russ that, if the sale and transfer shall lie made under the said contract as aforesaid, he will, at his own proper cost and expense, make all the surveys, field notes, and maps of the said lands, and file them in the office of the surveyor of El Paso county, and in, the general land office of the state, at Austin, in the manner and within the time required by the provisions of the said law, and that he will pay all the feos required to be paid for such patents as shall be issued by the commissioner of the general land office for said lands to said Count Telfener, his heirs or assigns, the said surveys, field notes, and maps to be correct; and in consideration of said services and payments to be rendered and paid. by said Russ the said Count Telfener agrees and binds himself to pay to said Rhss in cash, at the city of Dallas or Austin, Texas, the sum of five (5) cents per acre for each and every acre so surveyed, platted, and returned by him as aforesaid, said payment to be made as follows, viz.: Three (3) cents per acre when the survey and field nof<^ shall be completed, and one (1) cent per acre when the field notes shall be filed in the land office, and the balance when the patents shall issue.</p> <p>. '.“Witness our hands this 1st day of November, 18S2.</p> <p>“Geo. W. Russ.</p> <p>“J. Telfener, by C. Baccarisse, Agt.”</p> <p>The petition alleges that by the contracts set forth the plaintiff sold and agreed to assign to the defendant, and the defendant purchased and agreed to accept from the plaintiff, at the price of 25 cents an acre; a conveyance of plaintiff’s application to purchase of the state 1,S13 tracts of land, being part of the Pacific reservation, and that at the time the plaintiff was able and authorized to make the contracts, and to execute and deliver a proper and valid assignment and transfer of his said application, and of all his rights, titles, and interests thereunder, to the defendant. The petition also contains various allegations as to arrangements made by the pardos for ascertaining whether or not the application of the plaintiff for the purchase of the lands had been regularly and properly made, and according to the provisions of the laws of Texas, and, among others, that such conformity being shown as would entitle the plaintiff to become the purchaser, the defendant agreed to pay him 90 per cent, of the purchase price stipulated. It also alleges the readiness of the plaintiff to fully comply with the contract, and the failure of the defendant in all things to comply with the same on his part, to the damage of the plaintiff of $400,000. The plaintiff, therefore, prayed judgment for the sum of 25 cents per acre alleged to be due to him for said 1,160,320 acres, and also for the sum of $58,016, alleged to be due him on the supplementary contract contained in Exhibit N, together with legal interest on both sums, and for such further judgment and decree as on the hearing might seem equitable and just. The defendant appeared to the action, and for answer sa’d — First, that the petition was insufficient in law, wherefore he prayed judgment; second, that he denied all and singular the allegations of the petition; and, .third, that he denied that he executed, by himself or agent, the instruments, or either of them, annexed to the petition. The case was subsequently, on application of the defendant, removed from the state court to the circuit court of the United States for the western district of Texas, and there the defendant had leave to file an amended answer, which averred (1) that the petition was insufficient in law to require him to answer it, upon which the judgment of the court was prayed; (2) that the so-called Pacific reservation was not subject to sale by the state of Texas; and (3) that if Baccarisse, mentioned in the petition as the agent of the defendant, ever had any authority to negotiate in regard to 1he purchase of lands in Texas, it was merely as an employe under one Westcott, and his employment was merely to inquire and ascertain whether options or conditional contracts could be obtained by which parties would agree to sell lands in that state subject to the inspection and approval of an expert or inspector sent out by a London syndicate for that purpose, such contract not to be final and binding unless ratified by the defendant after the approval of the expert; that the defendant never knew, until shortly before the present suit was instituted, that Baccarisse had attempted to execule any Contract, as set up in the petition; and that he never authorized him to mhke any contracts, nor ever approved or ratified any made by him. This ■answer was again amended, by leave of the court, by the addition of a further defense, in which the defendant averred that if any such contract-or contracts as arc referred to and exhibited with (.he petition were entered into by his authority or ratiiied by him, which is denied, the. same were without any consideration, or, if there was any valid consideration therefor, the same failed in this: that the law which permitted the purchase, of ¡he lands was repealed before the steps required thereby to obtain tide, or any vested interest therein, could have been or were taken, and by reason thereof all right, if any, which defendant acquired or could have acquired under the contracts were lost to him.</p>

1\ J. Willis & Bro., a West Virginia corporation, sued in the district court of Galveston county, state of Texas, the Manhattan Rife Insurance Company, a New York corporation, and the administrator of Andrew Peyton, deceased, a resident of Palls county, Texas, on a policy of tlie Manhattan Company on the life of Andrew Peyton.

This is an action of trespass to try title, filed on the law side of the circuit court, by Marquis Green, Henry Darcy, and Caroline Garthwaite against William L. Dunlap, James Tullís, and Daniel Higgins for (he title and possession of 1,000 acres of land In Ft. Bend county, Tex., part of the Robert Peebles league, known as the “Dunlap Place.” Tullis and Higgins disclaimed, except as tenants of Dunlap, and Dunlap pleaded not guilty.

<p>1. Mandamus — -To Parish Officers — Consolidation of Parish.</p> <p>A mandamus against the police jury of a division of a parish, to compel a levy of taxes to pay a judgment, may he enforced, after a consolidation of the divisions, against the police jury of the parish thus formed. State v. Police Jury of Jefferson, 3 South. 88, 39 La. Ann. 979, and U. S. v. Port of Mobile, 12 Fed. 768, followed.</p> <p>2. Res Judicata — Mandamus—Merger of Judgments.</p> <p>Questions which have been decided by courts of last resort, on application for mandamus to enforce certain judgments against a parish, are res judicata, on a subsequent application by the same party to enforce a new judgment, into which unpaid balances on the original judgments have been merged together with other judgments, in so far as the remainder of the original judgments are concerned, but not as to the additional judgments merged with them.</p>

<p>1. Pleading — Reply—-When Necessary.</p> <p>Under Mansf. Dig. Art. §§ 5043, 5072, which forbid a plaintiff to reply to new matter contained in the answer, unless such new matter constitutes a set-off or counterclaim, a plaintiff may prove, without pleading them, facts showing that the defendant has waived, and is estopped from asserting, breaches by plaintiff, of the contract sued on, such breaches having been averred in the answer by way of confession and avoidance.</p> <p>' 2. Trial — Objection to Evidence.</p> <p>An objection to evidence as “incompetent, irrelevant, and immaterial” is too general to sustain the point on appeal that the evidence relates to matters not pleaded.</p>

<p>Constitutional Law — Interstate Commerce Act — Compelling Self-Incrimination.</p> <p>Act Feb. 11, 1893, which declares that no person shall be excused from testifying or producing documents in proceedings based upon ilie interstate commerce act on the ground that it may tend to criminate him,, hut that he shall not be prosecuted or punished on account of any matter concerning which he may testify, violates the fourth and fifth amendments to the United States constitution, which declare that the right of the people to be secure against unreasonable searches and seizures shall not he violated, and that no person shall he compelled in any criminal case to he a witness against himself.</p>

<p>Application for a Writ of Habeas Corpus.</p>

At Law. Petition by Frank J. Wetberell for a review of the decision of the board of general appraisers assessing merchandise for duty.

<p>In Equity. On motion for injunction pendente lite. Bill by the Social Register Association against Frank Howard..</p>

In Equity. On final bearing. Bill by John Kerry and others against Hercule A. Toupin to restrain the infringement of complainants’ trade-mark. Decree for complainants.

In Equity. On final hearing. Bill by Thomas De Q. Richardson and others against John Shepard and others for the infringement of complainants’ patent. Decree for complainants.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a bill in equity brought by tbe Edison Electric Light Company and the Edison General Electric Company to enjoin the Davis Electrical Works, Leonard L. Davis, and Charles F. Wittemore from infringing the Edison incandescent electric lamp patent No. 223.898, issued January 27, 1SS0. A preliminary injunction was granted below, (58 Fed. 878,) and defendants appeal to this court under the seventh section of the judiciary act of March 3, 1891. The matter complained of was that defendants were engaged in replacing the carbon filament of Edison lamps, after the original filament liad been destroyed by use. This, complainants alleged, was a reconstruction of the lamp, amounting to infringement of the patent; while defendants claimed that it was mere repairing,-which they were entitled to perform. The process, as described by the court below, was as follows: “Tbe defendants first break off the tip of the glass bulb of the lamp, and ream out a hole about one-half inch in diameter. The broken filament is then removed. The new filament, having Its ends cemented into platinum sleeves, is then inserted into the glass chamber, the sleeves being pushed down over the two platinum leading-in wires, and compressed upon them. A tube of glass, made into the shape of a tunnel, is heated, and placed over the hole in the lamp chamber. This tube is fused into the open end of the bulb, which brings It into the condition of the ordinary lamp bulb just prior to exhaustion. The air is then exhausted, and the bulb sealed.”</p>

This was a suit in equity by the Boston Lasting Machine Company against Erastus Woodward, James Barrett, and Thomas Barrett, for infringement of the Woodward patent, Ho. 248,544, for a lasting and tacking machine. The court below adjudged infringement of the second, third, and fourth claims of the patent, but declared the first and fifth claims to be void. 53 Fed. 48L From this decree the defendants appeal.

<p>1. Patents — Fruir Use.</p> <p>The defense of prior use must be established beyond, a reasonable doubt.</p> <p>2. Same--'Two Patents for Same Invention.</p> <p>After an inventor has secured a. patent for a concavo-convex dish cut or scooped from a block of wood by a revolving curved knife working alternately with a flat facing-off knife, and another patent for a machine for thus making the dish, he cannot secure a third valid patent‘for the process of making the dish, as it would be, practically, a new patent for matter covered by the prior ones. Plummer v. Sargent, 7 Sup. Ct. CIO, 120 U. S. 442, followed.</p> <p>8. Same — Invention—Limitation—Wooden Dishes.</p> <p>The Smith patent, No. 273,773, for a wooden dish, is restricted by the specification to a dish cut or scooped from a block of wood by a revolving curved cutting knife or its equivalent, and as thus construed shows invention and is valid.</p> <p>4. Same-Invention — Wooden Dish Machines.</p> <p>The Smith patent, No. 276,198, for a machine for scooping out wooden dishes from a block of wood, and consisting of a revolving curved cutting knife and a flat facing knife, allows invention of a high order, and is entitled to a reasonable application of the doctrine of equivalents.</p> <p>6. Same —Infringement—Equivalents.</p> <p>Infringement of a patent for a machine for sedoping out wooden dishes is not avoided by making the cutting knife oscillate instead of revolve, and the flat facing knife reciprocate vertically instead of revolve around a shaft, for in each case the devices are mechanical equivalents.</p>

<p>Admiraltv — Process—Cokstructive Levy.</p> <p>Where a vessel is in the custody of the marshal, his receipt of a warrant of arrest in another suit, with intent to levy it, is a constructive levy, notwithstanding that he returns the warrant “withheld,” because he was advised that he had no right to make service on a vessel in custody, as it was, at the suit of the United States.</p>

<p>In Admiralty. Intervention of Harvey Rockwood in suit by Robert Mark against the steamboat Hew Idea and barges. Decree for intervener.</p>

<p>In Admiralty. Libel by John Sharp against the Journeyman for wages. Decree for libelant.</p>

<p>Shipping — Damages—Act Ebb. 13, 1893 — Vessels Mutually at Fault — Liability for Cargo Damage.</p> <p>Section 3 of tlie act of February 13, 1893, was not designed to relieve one vessel, at the expense of the other, in cases of co Vision by mutual fault. The prior rules of apportionment are to he adhered to as closely as possible. Hence, when damage has occurred by reason of the mutual fault of two vessels, the damages of the two vessels, Including personal effects, (which are to be treated as part of the vessel,) are first to be made even. The North Star, 1 Sup. Gt. 41, lOü U. S. 17. Either vessel whose cargo has been damaged cannot be charged, directly or indirectly, with any part of the loss suffered by her own cargo, nor can any offset against the carrying vessel’s claim for her own damage be made by the other vessel on account of what the latter must pay for the carrying vessel’s cargo damage; hut the claim of the cargo of the carrying- vessel must be reduced by tbe amount which would, before the passage of the above act, have been charged against such carrying vessel, or against the moneys payable to her.</p>

These are cross appeals from a decree of the district court, southern district of Yew York, made on February 14, 1893, awarding libelants one-half the damages sustained by their schooner through a collision with the steamship La Champagne, which occurred about 5:30 a. m., February 25, 1890, on the Atlantic ocean, 25 miles to the southward of Shinnecock light.' Both vessels sustained damage, and the district judge held them both in fault. 43 Fed. 444.

These were two suits brought; ⅛ a court of South, Dakota, one by the Ruby Canyon Gold Alining Company et al. against David Hunter et ah, and the other by William S. Elder, as administrator, et ah, against Thomas White et ah The defendants removed the suits into this court, and a motion is now made to remand them.

<p>Monopolies — Interstate Commerce — Sugar Trust.</p> <p>Act Cong. July 2, 1890, declares “every contract, combination in the-form of ai trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states or with foreign nations” illegal; prohibits any person from attempting to monopolize, or combining or conspiring with any other person to monopolize, any part of the trade or commerce among the several states, or with foreign nations; and invests the circuit courts with jurisdiction to restrain violations of the act. Held, that a combination whose object is to enable a single company to monopolize and control the business of refining and selling sugar, by buying up all competing concerns in the United States, is not in violation of this statute; for it constitutes no restriction upon, or monopoly of, commerce between the states, but, at most, only makes it possible for the promoters of the combination to restrict or monopolize such commerce, should they so desire.</p>

<p>Appeal from the Circuit Court of the United Stales for the District of Kansas.</p> <p>Suit hy Antoinette C. Sanders against Thomas Devereux and others for partition. The suit was dismissed on demurrer. Complainant appeals.</p> <p>This was a bill filed by the appellant, a citizen of the slate of Illinois, against more than 100 defendants named in the complaint, who were, for the most part, citizens of the state of Kansas, to obtain a partition of the N. W. ¼ of the S. W. ¼ of section 23, in township 27, range 1 ID., in Sodgwich county, Kan., which tract of land appears to be within the corporate limits of the city of Wichita. The bill contained the following averments; in substance: That on December 11, 1873, Dindley Dee and wile conveyed the property in question to George A. Sanders, the husband of the appellant, as trustee for their three minor children, to wit, Walter D., Alice B., and Fannie A. Sanders. That such deed had the effect, under the statutes of Kansas, of conveying directly to the three children aforesaid an estate in fee simple in said lands, which they held as joint tenants, and not as tenants in common. That Alice B. Sanders died on February 19, 1876; that Fannie A. Sanders died on February 22, 1876; and that the title to said property tiiereupon became vested in Walter D. Sanders, the surviving joint tenant. That Walter L. Sanders subsequently died, intestate, on July 20, 1888, leaving no wife or children, and that hy virtue of his death his mother, the present appellant, became entitled to an undivided one-half of the above-described property, under and by virtue of the laws of descent of the state of Kansas. The bill of complaint further disclosed that on the 3d day of March, 1883, subsequent to the death of her two children, Alice B. and Fannie A. Sanders, the appellant, Antoinette 0. Sanders, had joined with her husband, George A. Sanders, in a deed to Thomas Devereux, which on its face purported to convey the whole property above described, and the entire title thereto, to said Devereux. with full covenants of warranty. It was further disclosed by the bill that on March 7, 3.883, George A. Sanders had executed a further conveyance of the same property to said Devereux, which was signed hy the grantor as trustee for his children, Walter B., Alice B., and Fannie A. Sanders, two of whom were then dead. The appellant averred that she joined her husband in executing the deed of March 3, 1883, in the belief that her husband was thereby conveying some interest which he then had in the property, and that her signature was necessary to relinquish her inchoate right, under the laws of Kansas, in and to the real estate of her said husband, which he.whs then conveying. She further averred that she did not intend to join, and did not in fact join, in the covenant of general warranty which that deed contained. The bill also averred in substance, that Thomas Devereux conveyed the property in controversy to John M. Steele on March 17, 1883, by a warranty deed which purported to convey the whole property and the entire title; that on November 5, 1883, Steele, in like manner, conveyed the land to A. C. Payne; that on September 30, 1884, Payne platted the property, laying it off into blocks, with streets and alleys, and caused the plat to be duly filed and recorded under the name of College Hill addition to the city of Wichita; that Payne thereafter sold and conveyed by warranty deed various portions of the property which had been thus XDlatted, to several different grantees, and in such deeds described the property sold by subdivisions and lots, according to the recorded plat. The bill further showed that thereafter certain portions of said property had been subdivided into smaller lots, and had again been platted as “Hillside Subdivision of College Hill Addition,” and as “Le-ñare Addition to the City of Wichita.” The appellant averred that the platting of the property last aforesaid was done without her knowledge or consent, and that the aforesaid deeds, purporting to convey the whole title to the property therein described, were each made and delivered without her knowledge or consent. She also averred that all of the persons named as defendants in the bill were severally claiming some interest in the property, the precise nature of which she was unable to state, under the two deeds executed by herself and husband on March 3 and March 7, 1883. The bill contained no averment that at the time the suit was instituted the complainant was seised or possessed of any portion of the property in dispute, or that she had ever been in possession of the same or of any part or portion thereof. The circuit court sustained a general demurrer to the complaint, for want of equity, and thereupon entered a final decree dismissing the same. To reverse that decree the complainant has prosecuted an appeal to this court.</p>

<p>1. Judgment — Collateral Attack — Eminent Domain — Jurisdiction.</p> <p>A judgment of condemnation of land rendered by a court having jurisdiction over the parties and power to condemn land in proper cases is not subject to collateral attack on the ground that it was rendered in favor of a party who had not the legal capacity to condemn land, since that is a matter to be determined by the court rendering the judgment.</p> <p>2. Injunction — Defenses—Remedy at Law.</p> <p>It is no objection, to a suit brought to enjoin an action of ejectment on the ground that the defendant has acquired title by condemnation proceedings, and to quiet the defendant’s title, that such title constitutes a perfect defense to the action at law, since the remedy at law is not as efficient as a decree in such suit.</p> <p>3. Same — Appeal—Waiver.</p> <p>The objection to an injunction suit, that the plaintiff has an adequate remedy at law, comes too late when raised for the first time on appeal.</p>

<p>1. Execution — Bona Fide Purchasers — Unrecorded Deed.</p> <p>On a bill to quiet title, complainants were purchasers at execution sale made under a judgment owned by them, while respondent claimed under a prior deed from the judgment debtor, which was not recorded. The only evidence as to notice of this deed was that the debtor told complainants, before the execution sale, that he had sold all his property, and endeavored to settle the judgment for a small amount. But he did not tell them to whom he had sold, nor did complainants ever hear respondent’s name mentioned in connection with the land in controversy. HeM, that they were purchasers without notice of respondent’s deed.</p> <p>2. Same — Sij-hftff’s Deed — Description.</p> <p>Whore, unon the record, a judgment debtor had the unqualified fee simple in the land, the levy upon and sale of “all the estate, right, title, and interest” which he had in the land, and the execution of a deed in the same tei’ms, vest the same unqualified fee in the purchaser, without regard to a prior unrecorded deed made by the debtor, of which he had no notice.</p>

This is a bill filed by A. W. Wickham, as receiver of the First National Bank of Ellsworth, Kan., against Nelson Hull and John1 T. Liddle, executors of the last will of O. N. Hull, deceased, to en: force collection of an assessment upon certain share® of capital stock of the bank, belonging to the estate. The cause is submitted on bill and answer.

<p>1. Res Judicata — Identity op Causes op Actton.</p> <p>A bill was brought to redeem certain corporate stock, and the pleadings, as finally made up, asserted, on complainant’s part, a pledge of the stock in 1871, and a continuing pledge in 1875. Defendant denied the pledge in either case, and claimed to be the owner of the stock from 1871. The material issue involved was the nature of the transaction had in 1875 in relation to the stock. There was a hearing on the pleadings and the testimony as noted, which resulted in a final decree dismissing the bill. This decree was affirmed by the state supreme court. 'Held, that the whole question as to the ownership of the stock was res judicata, and complainant could not thereafter maintain a suit in a federal court to compel a conveyance to him.</p> <p>2. Same.</p> <p>In a suit in a federal court, a decree of an Alabama chancery court, dismissing a bill between the same parties, was set up in bar." This decree was rendered in vacation, and it is well settled in Alabama that a decree in vacation dismissing a bill on demurrer without giving opportunity to amend is erroneous. This decree, however, had been affirmed by the state supreme court. Held, that the affirmance necessarily involved án adjudication that the deeree'was rendered on issues of fact, and therefore its effect as res judicata eould not be avoided by claiming that it was rendered on demurrer.</p>

This is a bill by Henry Drummond against Henry Altemus to enjoin the publication and sale of a book purporting to contain certain lectures delivered by complainant. Heard on application for a temporary injunction.

<p>This is a bill by James Pott and others to enjoin Henry Altemus from publishing a book containing incorrect and fragmentary copies of certain lectures by Professor Henry Drummond. Complainant based his right on an assignment of the copyright. Heard on application for a temporary injunction.</p>

<p>Creditor’s Bum — Equity Jurisdiction — Co uporations.</p> <p>Rev. St. Ill. 1893, c. 32, § 25, which authorizes a suit in the nature of a creditor's bill to be brought against corporations ini certain cases by simple contract creditors, does not give federal courts jurisdiction to entertain such a suit where the creditor has not first exhausted his legal remedy, since the equitable .jurisdiction of federal courts cannot be enlarged by state legislation.</p>

<p>Wbit or Ekeob — -Finai, Judgment — -Attachment.</p> <p>An order quashing an attachment, and leaving the action still pending in the trial court, cannot bo reviewed by writ of error, since it is not a final decision. Standley v. Roberts, 59 Fed. 836, distinguished.</p>

<p>In Error to tbe Circuit Court of the United States for the Western District of Missouri.</p> <p>Attachment by W. & J. Sloane, a corporation, against Isaac Wolf. An interplea was filed by James G. Adkins. Plaintiff obtained judgment. The interpleader brings error.</p>

<p>1. Review on Appeal — Exceptions.</p> <p>Under Rev. St. U. S. § 700, which declares that when an issue of fact is tried by the court without a jury “the rulings of the court in the progress of the trial if excepted to at the time” may be reviewed upon appeal and that “when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment,” where no requests for any declarations of law are made at the trial, and exceptions to the rulings of the court on the evidence are not taken, the only question for review on appeal is the sufficiency of the findings of fact.</p> <p>2. Fraudulent Conveyances — Chattel Mortgage — Question of Fact.</p> <p>Where a chattel mortgage on a stock of goods in Iowa contains no provisipn allowing the mortgagor to sell, and he does sell, the goods in the usual course of teade, without accounting therefor to the mortgagee, the question whether or not such mortgage is fraudulent as to creditors ip one of fact, under the decisions of the supreme court of Iowa, which the ■ national courts follow in such a ease. 3 affray v. Greenbaum, 20 N. W. 775, 64 Iowa, 492, followed.</p>

<p>1. Judgment — -Default—Application to Set Aside.</p> <p>Mansf. Dig. Ark. § 5153, which provides that “the application for a new trial must be made within three days after the verdict or decision was rendered unless unavoidably prevented,” has no application to a motion to set aside a default.</p> <p>2. Appeal — Review—Findings of Fact.</p> <p>Rev. St. § 1011, which provides that “there shall be no reversal in a supreme court or in a circuit court upon a writ of error * * * for any error in fact,” governs the circuit court of appeals as well; and that court will review errprs of law only.</p>

<p>Insurance — Oral Modification of Policy.</p> <p>In an action on a policy of boiler insurance, it appeared that the policy only covered seven boilers, which were all that the insured had when the policy was issued, and that he afterwards put in two more boilers, one of which exploded. When the two bdilers were put in, they were inspected by the company’s inspector, at the insured’s request, and the inspector told him that these boilers were insured. It appeared that both the insured and the inspector erroneously believed that there was no more risk in using nine boilers than in using seven, if only seven were used at once, and that the policy covered any seven boilers in use by the insured. ifeM, that the statement of the inspector did not constitute a modification of the policy. Caldwell,. Circuit Judge, dissenting.</p>

<p>1. Release and Discharge — Construction.</p> <p>A release for settlement of claim for certain personal injuries specified in the release, and also “of and from all manner of actions, causes of action, claims and demands, whatsoever, from tlie beginning of the world to this day,” does not cover personal injuries not therein specified, and not known to exist at the time the release is executed, since the general terms in the release are limited by the preceding specifications.</p> <p>3. Master and Servant — Negligence of Master — Charity.</p> <p>A master who sends his servant for treatment to a hospital maintained by tlie master for charitable purposes is not responsible for injuries caused to the servant by the negligence of tlie hospital attendants, where the master has exercised ordinary care in selecting such attendants.</p> <p>3. Charities — Hosiutat,—Railroad Companies — Negligence.</p> <p>A hospital maintained by a railroad company for the free treatment of its employes, supported partly by the monthly contributions of all its employes and partly by the company, and not maintained for profit, is a charitable institution.</p>

<p>1. Railroad Companies — Negligence—Fences—Injury to Employe.</p> <p>Where, through the failure of a railroad company to erect and maintain sufficient fences, as required by Rev. St. Mo. 1889, § 2611, an animal gets on the track, causing the derailment of a train, an employe on the train, who is injured by the accident, is entitled to sue the company therefor, since such statutes are designed to protect the persons on trains as well as the cattle owners.</p> <p>⅞ Same — Negligence op Fellow Servant.</p> <p>The defense that the insufficiency of the. fence was caused by the negligence of a fellow servant is not available, since the duty of fencing, cast by the statute upon the company itself, cannot be delegated by it to' its servants. 1 ,</p> <p>3. TfUAL — OBJECTIONS to Eyibknck — Waiver.</p> <p>Where the company has introduced evidence as to repairs mane by it on the fence after the accident, it cannot complain of the admission of further evidence on that point offered by the plaintiff in rebuttal.</p> <p>4. Master asd Ser vast — Contributory Negligence —Violation of Bulks.</p> <p>ibhe mere knowledge and assent of the conductor of a train to a violation by a brakeman on the train of a rule of the company requiring him to be on top of the car, in order to give signals to the engineer, does not exonerate the brakeman from the charge of contributory negligence for injuries received by him in consequence of Ms violation of such rule.</p>

This was an action by Oscar C. Thomas against the New Orleans & Northeastern Railroad Company and the New Orleans & Southern Railroad Company to recover damages for personal injuries. There were a verdict and judgment for plaintiff,.and defendants bring the case on error to this court.

This was a proceeding by the United States on the relation of M. M. Fisher .and wife against the hoard of liquidation of the city debt of New Orleans, for a writ of mandamus. The writ was denied, and relators bring error.

<p>In Equity. On final bearing. Bill by L. Durand, Huguenin & Co. against Green, Schulze-Berge & Koechlin, for infringement of patent.</p>

These were three suits, brought by the Edison Electric Light Company and the Edison Electric Light Company of Philadelphia against the Philadelphia Trust, Safe-Deposit & Insurance Company and others, the Manufacturers’ Club of Philadelphia, and the Spreckels Sugar-Refining Company, respectively, for infringement of the Edison incandescent electric light patent. Heard on application for preliminary injunctions.

<p>On petition for rehearing. The facts are fully stated in the prior opinion of this court, reported in 7 O. O. A. 498, 58 Fed. 818.</p>

<p>Bill by tbe Edison Electric Light Company against the Electric Engineering & Supply Company for infringement of patents. On final hearing.</p>

In Equity. Suit by Henry L. Tatum and others against John D. Eby for infringement of letters patent No. 290,358, issued to J. A. Robb, December 18,1883, for a gang edger. On final hearing. Decree for complainants. Suit on two letters patent for improvements in gang edgers, granted to J. A. Robb, and assigned to complainants, numbered 227,936 and 290,358, and dated, respectively, May 25, 18S0, and December 18, 1SS3.

<p>Appeal from tbe Circuit Court of tbe United States for tbe District of Montana.</p> <p>In Equity. Bill by tbe Pacific Cable Bailway Company against tbe Butte City Street Bailway Company for infringement of letters patent No. 182,668, granted September 26, 1876, to Andrew J. Halli-die, for an improvement in cable railways. Tbe patent was sustained by tbe court below, and infringement declared. 55 Fed. 760. Defendant appeals.</p>

<p>Patents for Itsvkntions — Patentability—Corn Htjsktsrs.</p> <p>Letters patent No. 290,571, issued Dec. 18, 1883, to S. P. Goddard for an improvement in the method of reducing com in the stalk and separating the kernels, consisting of a cutter with iced rollers in front, a beater or thresher, a revolving screen or separator, and a shaking screen under it, all mounted in one frame, and so geared that the parts are driven by a single band wheel, are void for want of invention, since the device consists merely in the application to a new use of old and well-known devices. 51 Fed. 284, affirmed.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois, Southern Division.</p> <p>Bill by Thomas A. Galt and others against the Parlin & Orendorf Company to restrain the alleged infringement of a patent. Defendant obtained a decree. 52 Fed. 749. Complainants appeal.</p> <p>The case is well stated in. the following opinion of Judge Blodgett, delivered in the court below, and reported in 52 Fed. 749:</p> <p>This is a bill in equity for an injunction and accounting by reason of tbe alleged infringement of patent No. 197,545, granted November 27, 1877, to Jay S. Corbin, for an improvement in wheel harrows, reissued June 24, 1879, No. 8,7G5. The inventor says in his specifications: “My invention relates to the improvement of that class of machines known as ‘wheel’ or ‘disk’ harrows, in which the disks are arranged in two1 or more gangs upon horizontal rotating shafts; and has for its object the construction of the "machine in such manner as to adapt the gangs to follow the even surface of the ground; also, to provide for the easy and rapid setting of the gangs at any desired angle to the line of draught while in motion or at rest, and holding the same when set. ⅜ ⅜ ⅝ Also, to provide a ready means of setting the gangs at different angles relative to the line of draught.” The reissued patent has eleven claims, but infringement is charged only of the fifth, sixth, and seventh. The original claims relating to the part of the harrow in controversy are: “(5) The combination with a gang of rotating harrow disks of a lever connected to the gangs for setting the same at an angle with the line of the draught, substantially as described. (G) The combination with a gang of rotating harrow disks of a lever for setting the same at an angle with the line of draught, and a rack and dog for holding the disks in position when set, substantially as described.” The fifth, sixth, and seventh claims of the reissue are: “(5) The combination, in a wheel harrow, of the following elements, viz.: a draft frame or a draft plank projecting laterally from the tongue, disk gangs pivoted to the draft frame or draft plank, and a set lever mounted on the tongue and connected with the disk gangs between the points at’ which said gangs axe connected with the draft frame or draft plank, substantially as set forth. (6) The combination, substantially as set forth, in a wheel harrow, of the following elements, viz.: a tongue, a draft frame or draft plank, a lever mounted on the tongue, and rods connected with the levers and the metal bearings which support the inner ends of the disk gangs. (7) The combination, substantially as set forth, in a wheel harrow, of the following elements, viz.: a tongue, a draft plank or draft frame projecting laterally from the tongue, disk gangs pivoted to the draft plank or frame, a lever mounted on the tongue connected with the inner end of the disk gangs, and a rack and dog for holding the disks in proper position when set.” It will be seen from these claims that the only controversy in the case is over what is called in the specifications the “set lever,” by which the angle at which the disks shall cut the ground is regulated. This lever consists of a vertical arm pivoted to the tongue forward of the driver’s seat, the lower end of which extends below the tongue, and from which two rods extend, one to the inner end of each of tho gang shafts or axles, so that by the movement of the lower end of this lever forward or backward! the axle of the gangs is regulated. There is also upon the top of the tongue a rack or sector, with a dog working in it, to hold the gangs at the required angle. The defenses relied upon are want of novelty in this lever device, and noninfringement. The proof shows that this patentee is only an improver, and a late improver at that, of this class of agricultural implements; that in September, 1859, a patent was issued to S. G-. Randall for a disk harrow embodying all the elements of complainant’s machine, except that no set lever for changing the angle of the gangs is shown in the patent. The proof, however, abundantly' shows that, in constructing his harrows in accordance with his patent, Randall had a lever for adjusting the angle of the disk gangs which, although operating substantially in the same way and performing the same work as that done by the complainant’s lever, was not mounted upon thfe tongue or frame of the machine, but was so lfiaced that it must be operated by a person standing or walking behind the machine. There is also in proof a patent granted to B. O. Winters, in May, 1875, on a revolving cultivator, which is a machine analogous in its use to that of the complainant, in which a set lever is mounted on the tongue as shown, which operates to change the running depths of the spades, or cutters, which are shown in that device. In several other machines referred to in the testimony the regulation of the angles of the disk gangs hy means of rods and levers Is shown. So far as the terms of the claims on which infringement is charged in this patent are concerned, they are, it seems to me, com-I>letely met by the old Randall lever of 1803, applied to the harrow shown in the patent of 1850; that is, Randall had a combination with a gang of rotating harrow disks of a lever connected to the gangs for setting the same at an angle with the line of draught, and its operation was substantially as described, but it was not located in the same place; and undoubtedly it was more convenient to locate this lever, which Randall has introduced into the organization, upon the tongue than it was to locate it where Randall had it, at the rear of his frame; but, as it seems to me, no inventive talent was called into action to apply the lever shown in Winters’ patent to the complainant’s gang. It seems to me that this patent is but for an aggregation of parts. The idea of changing the angle of the disk frames is Randall’s; the idea of doing that by means of a lever is Randall’s. The lever used by Randall is substantially, in its mode of operation and effect, the same as that used by complainant; and simply to relocate that lever, or place upon the tongue of complainant’s machine the Winters lever, does not seem to have required any inveutive talent. It was merely a mechanical act to transfer Winters’ lever to the tongue of complainant’s machine. That it was an improvement upon the machine may be admitted, but that it was such an improvement, as will sustain the patent I do not think, because this class of machines, according to the proofá, has always been operaied, so far as the angles of the disk harrows are concerned, to a greater or less extent by means of a lever. Such a lever for shifting or changing the seed shoos and hoes of the seeding machine from a straight to a zigzag line is shown in the Davis patent of 1868; and ihe same device is also shown in the Schmidt patent of February, I860, on a seeding drill, and in the Manny mower patent of 1871 for tilting and lifting the cutter apparatus. In fact, it may, perhaps, be said to be a part of common knowledge at the date of the patent that levers of this character for the purpose of regulating the movements of plows, cultivators, seeders, and harrows, wore in constant use; and all this patentee has done is to take one of those old levers and mount it on his tongue for the purpose of adjusting the angle of Ms disk gang, instead of placing the lever where Randall placed It. It perforins the same function, and no other, when placed on the frame of the machine as it did in Randall’s old machine. If Randall’s lever had been patented, it is quite clear the Oorbin lever would have been an infringement. If Randall had attached a rod to his lever and extended the same forward to the driver’s seat, so that the angle of the disk gang could be controlled from the driver’s seat, he would have* had a device operating upon the same principle and producing the same result as is done by the complainant’s lever; and no one, I think, would contend that It would have been patentable to so attach a rod to the Randall lever, and hold it by any common locking device. I am, therefore, clearly of the opinion that this patent must be held void for want of novelty.</p> <p>The following is the argument made here in support of the patent:</p> <p>While invention is necessary only in the means, it involves or contains also the conception in the mind of the inventor that the result can be accomplished by such means. “In all discoveries, of course, there are two things, — there is an object to bo achieved, and a means of achieving that object. No invention is required as to the object. The invention may be in the means for effecting the object, whether [the latter be] old or new.” Adío v. Clark, 3 Oh. Div. 135. Wood, Y. C. It is not a fair presentation of tlio problem to consider only whether a mechanic could take an ordinary lever and place it as Corbin has placed it, in connection with the disk gangs at tlielr inner ends, without any quality of invention being involved in. the transaction. But, as stated in Adíe v. Clark, before cited: “In all discoveries, of course, there are two. things,--there is an object to be achieved, and a means of achieving that object.” It might have occurred to a mechanic that a lever could be placed as Corbin placed it, but the mechanic might not have believed in advance that when thus placed the lever would accomplish the result, and have abandoned the idea. In none of the earlier constructions of the disk, harrows, whether shown in patents or by evidence of actual use, was there any moans of adjustability presented which were capable of adjusting the gangs while the harrow was in motion and the draft of the team exerted thereon. Corbin, therefore, had to determine, first, that adjustability as against the draft of the team could be effected while the harrow was in motion; and, second, he had to devise means for accomplishing the result under the conditions named. It is obvious, as well as established by proof, that there is an incalculable advantage in having means for adjusting the d sk gangs while the machine is in motion, and without intermitting the draft of the team. An,l the result is certainly different, as the depth of cut effected by any special angle can be determined only by experiment; that is, wh'le the machine is moving. Corbin’s construction afforded not only the advantage of adjustability without loss of time, but it also afforded means of determining the adjustability required, by exhibiting, in actual experience, what degree of entrance into the surface of the earth any spec’al point of adjustability produced. Therefore, Corbin produced a new result in ibis, that he not only effected an adjustability, but concurrently therewith illustrated the depth of cut resulting therefrom. * ⅜ * It does not meet the case, therefore, to contend that other means of adjusting the gangs while the machine was stationary had been previously employed; neither does it meet the case to insist that a lever as a means of adjustment of other machines, under other conditions, had been previously employed.</p>

<p>Costs and Pees — Extra Allowance to Court Officers.</p> <p>A United States district court has power to make an allowance to the ■ clerk of the court for services rendered beyond what are required by law. Such compensation allowed in the case of a transfer by him of a large fund from the depository of court to a trust company: a change made hy order of court on application of the proctors in interest, and for their pecuniary benefit, and imposing on the clerk additional cares, responsibilities, and duties.</p>

These are two admiralty cases brought to recover damages arising from a collision in Boston harbor April 27, 1802, between the steamship Philadelphian and the schooner Lizzie Williams.

In Admiralty. Petition of the Humboldt Lumber Manufacturers’ Association, charterer of the steam tug Printer, for limitation of liability under sections 4282--42S9, Rev. St. U. S. Claims interposed by Olivia Christopherson et al. and by Mathilda O. Pederson et al. for loss of life, and by George W. linger et al., part owners of 9-32 of the schooner Fidelity, for the loss of said vessel, alleged to have been caused by the gross negligence and unskillfulness of the muster of…

In Admiralty. This was a libel by Charles Meynier against T. C. Lawless and William Kyle for wages. There was a decree for libel-ant, and respondents appeal.

This was a libel by the Alctieselskabet Banan against Russell H. Hoadley and others to recover charter money under a charter of the steamship Banan. The district court dismissed the libel, and the libelant appeals.

This was a libel by Frank Wencke and Heinrich Wencke, partners as Wencke Soelme, against (1. Vaughan, individually, and as surviving partner of the linn of G. Vaughan & Co., to recover damages upon a charter* party for failure to furnish cargo to the steamship Etna. The court below dismissed the libel, and libelants appeal.

This libel was filed by Rittenliouse Moore against the steam tug E. E. Simpson (Isaac H. Rogers, claimant) to recover for the loss of the dredge, boat Lutin, which resulted from the alleged negligent grounding of the tug in Mobile bay. There was a decree for the libellant in the court below, and the claimant appeals.

' This was a libel by Firemen’s Charitable Association against Wm. Ross & Co., owners of the steamship European, for salvage. The lower court dismissed the libel, and libelant appeals. The steamship European, having taken on board a cargo of cotton and grain at the docks of New Orleans, left that city on the 27th of May, 1891, for a voyage to ports of Europe.

These were cross libels filed by Arthur Laing and Arthur L. Nickerson, respectively, to recover damages for a collision between the steamer Riversdale and the schooner Allen Green. . There was a decree below for divided damages (53 Fed. 286), and both parties appeal.

<p>Collision between Steamers- — Overtaking Vessel.</p> <p>Two steamers were going on parallel courses, abreast of each other, and about 250 feet apart, when the faster of the two changed her cour, e one point towards the other, and the two vessels collided about a minute htter at an angle of about 15 deg. There was some ev donee that the other vessel also deviated from her course, but this was not clear y proved. 'Held, that the collision was caused by the negligence of the faster vessel in thus changing her course.</p>

tes for the District of Indiana. Action by the Davis & Rankin Building & Manufacturing Company against William W. Barber and 60 other defendants for breach of contract. A demurrer to the declaration was sustained, and the plaintiff brings error.

This action, was brought in a Colorado court by William Barth against W. N. Coler, Jr., and Walter O’Malley to set aside certain deeds made by O’Malley to Coler pursuant to a sale under a deed of trust. Defendant Coler removed the case to the federal court, by which, after hearing had, it was dismissed. From the decree of dismissal, complainant appeals.

.This was a bill filed by W. S. O’B. Robinson, receiver of the First National Bank of Wilmington, N. C., against the city of Wilmington and William A. Willson, to enjoin the levy of a tax exe: cution against the real estate of the bank. The court below, having granted a restraining order, afterwards made an order dismissing the same, and denying an injunction. From this order complainant appeals.

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>This was a bill for an accounting originally filed by Charles A. De Chambrun against Douglas Campbell, impleaded with Prances A. Gesner. The deaths of De Chambrun and Campbell being suggested, Pierre De Chambrun, as administrator of the former, and Abraham Cox and William A. Campbell, as executors of the latter, were substituted. There was a decree for defendants, and complainant appeals.</p>

This was a hill in equity filed by the British & American Mortgage Company of London, Limited, against Ben M. Pettis, W. C. Pettis, Charles L. Watts, and A. C. Johnson, to rescind a mortgage and procure a decree for the return of the money loaned. There was a decree for complainant in the court below, and the defendants appeal.

<p>1. Attorney and Client — Compensation—Amount.</p> <p>Counsel were retained to bring suit upon an. important and doubtful claim, which had already been asserted in another jurisdiction without success. It was'agreed that the client should furnish $2,000 for necessary. costs and disbursements, and that counsel should look only to the amount recovered for compensation for their services, of which recovery they were to be permitted to retain “a liberal amount.” The litigation, which was. long and arduous, was in the end successful. All the counsel "retained testified that one-third of the amount recovered was no more than a moderate compensation, and their testimony was not contradicted. 'Held, that they were entitled to a lien on the amount recovered to the extent of one-third thereof.</p> <p>2. Same — Agreement—Abrogation.</p> <p>Pending the-litigation, counsel wrote to their client that, inasmuch as 'a final settlement was likely to be long deferred, they thought it “no more than reasonable to ask for a payment on account of services;” but -no payment was made, and the request was not insisted upon. Held, ■that no inference could arise from this that the agreement asserted by counsel had not been made.</p> <p>8¡ Same — Lien—Eevkeot oe Assignment..</p> <p>. .. An assignment made by a client, pending litigation, of the amount to be recovered, cannot prejudice the lien'of his attorney thereon for serv-fees; nor is it'essential to the preservation of his rights that he should •! ■ notify .the assignee of his claim, especially when such assignee assents to the services, ¡rendered, and knows that the client is financially unable i,..to .pay .the.'fees.* .....</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Texas.</p> <p>Petition by Leona P. Hawk against Charles Dillingham, receivér of the Houston & Texas Central Railway Company, to have a judgment recovered by her against such receiver paid out of the estate in his hands. There was a decree granting the prayer of tbe petition. The receiver appeals.</p>

<p>Iu Error to the Circuit Court of the United States for the Southern District of Illinois:</p> <p>Assumpsit by Rachael S. Lyman against the Masonic Benevolent Association of Central Illinois. Plaintiff obtained judgment. Defendant brings error.</p> <p>This was an action by the defendant in error against the plaintiff in error upon a certificate of membership issued by the latter to Joseph Lyman, for the benefit of his wife, who is the defendant in error. Omitting the formal parts, the certificate is as follows: “This certificate of membership wit-nesseth, that the Masonic Benevolent Association of Central Illinois, in consideration of the representations and warranties made to it in the application for this membership, which is hereby made a part of this, and the sum of six dollars paid by Joseph Lyman, of Council Bluffs, Iowa, and the sum of one and 25-100 dollars to be paid within fifteen days after due notice has been given of the death of a member of this association, according to the by-laws, does promise and agree to and with Joseph Lyman to pay, or cause to be paid, to Rachael S. Lyman, his wife, if living; if not, to Aaron J: Lyman, his son, if alive; if not, then to the legal heirs of the survivor of said beneficiaries, — within ninety days after satisfactory proof of the death of the said Joseph Lyman, and proof of interest, shall be received at the office of this association, and shall have been approved by the directors, the amount of ninety cents for each whole member, forty-five cents for each half member, and twenty-five cents for each quarter member, of the association at the time of death: provided, however, and it is expressly understood and agreed, that the benefit herein provided for shall never exceed the sum of four thousand dollars.” “It is also agreed that if the said Joseph Lyman shall not pay the assessment hereinbefore named on or before the time mentioned for the payment thereof, or in case he shall; without the consent of this association previously obtained in writing, engage in any military or naval service whatsoever in time of war, rebellion, aerial voyages, the manufacture of highly explosive or inflammable substances, or as a freight brakeman on a^ railroad, or if any of the représentations made in the application for this membership is untrue, then this certificate shall be null, void, and of no effect. It is expressly understood and agreed that no suit at law or in equity can be maintained upon this certificate for the recovery of any claim by virtue thereof unless the same shall have been actually begun within twelve months from the date of the death of the member to whom it was issued, any statute of limitations to the contrary notwithstanding.” Section 1 of article 3 of the hy-laws is the only one material to any question sought to be raised by the assignment of errors.- It is as follows: “Section 1. Upon the death of a member of the association, the secretary shall send by mail to the postoffice address of each member of the association a notice giving the name of the deceased member, and the post office address at the time of death, and the assessment due from each member to whom such notice is sent, or the secretary may employ a suitable person, in each town or city where the members reside, who shall act for the secretary in serving such notices either personally or by mail, which notice so sent or served shall be deemed and taken to be lawful and sufficient notice for the payment of the assessment so called for and required; and any member fa'l'ng to pay such assessment within fifteen days after such notice has been served upon him shall forfeit his membership in the association, and all benefit therefrom.”</p> <p>The plaintiff in error pleaded the general issue, and it was stipulated that all defenses might be proved thereunder which would have been provable under any plea which might have been pleaded. The. only defense sought to-bo made on flie trial was that the certificate of membership had become forfeited by the failure of Joseph Lyman to pay an assessment of if(5.25 claimed to havo'boen made December 1, 1889, of which he had seasonable notice in, writing. Two questions of fact were sharply contested: (1) Whether Joseph Lyman had received notice of the assessment; (2) whether the board of directors of the plaintiff in error had made an assessment before the notice was sent. John F. Scott, the secretary of the plaintiff in error, was called and examined as a witness in its behalf, and gave evidence tending to support its defense. On his cross-examination ho testified that lie knew that a notice had been served on the association or its counsel to produce on the trial certain record books and papers in his custody and control as such secretary; and ho admitted that, on the suggestion of counsel, he had failed to produce them. The defendant in error offered in evidence the notice so served, to -which counsel for the plaintiff in error objected. The objection was overruled, and an exception reserved. The bill of exceptions dees not show that the notice was read in evidence to the jury. The plaintiff in error, to maintain its defense, offered in evidence a number of letters written by Joseph Lyman, which it was asserted contained admissions that he had notice of the assessment, and had failed to pay it. Upon objection the court excluded the letters, and an exception was duly reserved. The bill of exceptions does not set forth any of the letters so offered or excluded. The plaintiff in error also offered in evidence another letter written by Joseph Lyman, said to inclose an application by him for reinstatement, which was excluded, and an exception reserved. Neither this letter nor the inclosed application is set forth in the bill of exceptions. The court, at the conclu-sión of the argument, gave an oral charge to the jury upon all the legal questions involved in the case. The charge covers about two pages of the printed record. At the conclusion of the chax*ge the plaintiff in error reserved its exception thereto, as follows: “To the giving of each and all of which instructions the defendant, by its counsel, excepted.” The plaintiff in error has copied the entire charge in its assignment of errors, and at its conclusion is the following: “We assign error as to that part of the instructions holding that each member shall be assessed, and that such assessment should be by the board of directors, and that (he board of directors should ascertain and determine that certain members of the association liad died, thereupon assessing a certain amount to be due on said death losses. And as to that part of the instructions holding that if they, (the jury) believe, from the evidence, that a record was kept, they should uot consider oral evidence, and, as to the rule of damages, we insist that the word ‘assessment* is synonymous with the word ‘installment,’ and t-hat it was a sum certain, due upon the death of a member, and that there was no evidence whatever of any record upon.which to base that part of the instruction. As to the rule of damages, we insist that the amount to be paid,, in all cases, depends upon the amount actually paid in, and not upon the membership.”</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>This was an action brought by William R. Russell against the5 Missouri, Kansas & Texas Railway Company ior killing stock be-:. longing to the plaintiff. There was judgment for plaintiff in the court below, and defendant brings error.</p>

<p>In Error to tlie Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>This was an action brought b,y Mrs. Otto Johnson, individually and as tutrix of her minor children, Anthony, Celia, and Anna Johnson, against .the American Sugar-Reflning Company, to recover damage for injuries to her husband, Otto Johnson, from which he died. There was a verdict for plaintiff in the sum of $10,000, from which she remitted $2,500. Judgment was entered for the remainder, and defendant sued out this writ of error.</p> <p>The petition of the plaintiff in the lower court, defendant in error here, suing individually and as tutrix of her minor children and as a citizen of Louisiana, averred that the “American Sugar-Refining Company, a corporation domiciled and doing business in this city [meaning the city of New' Orleans, La.], and a citizen of New Jersey, and found within the eastern district of Louisiana, of which George S. Eastwick is general manager,” is indebted to petitioner in the sum of $10,000 upon the following grounds: “That on and prior to the 20th day of June, 1892, your petitioner’s husband, Otto Johnson, was employed by the said American Sugar-Refining Company as a laborer to work at their refinery situated in this city. That under said employment petitioner was employed to work in tlie fifth story of said refinery, and under said employment was required to watch and care for large tanks used for the purpose of receiving sugar that is pumped up through a large 18-inch pipe running from said fifth story to the first floor of the said refinery. That, after said pumping of sugar ceases and the tanks having-sufficient, the said 18-inch pipe is cleaned by the engineer on the first floor by turning on a strong force of steam through said pipe, which forces the sugar out, and thoroughly cleans said pipe; and, should any one be in close proximity to said pipe, he is liable to be scalded and killed. That said steam is always turned on immediately after the sugar pumping ceases. That on said date and at said place, without any warning or notice by the said defendant company or its agents or engineer in charge of the engine on the first floor to petitioner’s husband and to the workmen on the top floor, where petitioner’s husband was working, and in close proximity to the said pipe, his employment requiring him to be there, the steam was turned on with great force, although the pumping of sugar had long since ceased, and your petitioner’s husband was badly scalded and burned, which caused him great bodily injury and pain, from the effects of which he died after great suffering; thus depriving your petitioner from his support and companionship and from earning a living for herself -and four small children. That petitioner’s husband was using due diligence and care on his part, and that tlie defendant company could have prevented the said disaster by the employment of a competent and trustworthy engineer, and by the use of proper appliances for the giving notice by the engineer to the occupants of the upper story, where your petitioner’s husband was engaged, either by messenger, bell, or speaking tube, 'which they neglected and failed to do. That it is the legal duty of the defendant company to maintain and employ competent foremen, workmen, and engineers to superintend, manage, and care for and direct their work, and thus prevent tlie disaster which occurred to your petitioner’s husband, and wliich they failed to do. That petitioner’s husband was lawfully compelled and directed to be in the place where he was injured, and had no notice or warning of the danger, and same was caused by gross neglect of duty on their part by not having the proper appliances, and competent, faithful, and trustworthy workmen and employe's.”</p> <p>The defendant below excepted to this petition on the grounds that the alleged cause of action did not survive, and that the injury complained of was the result of the negligence of a fellow servant The plaintiff below, under leave of the court, then undertook to amend by filing tlie following: “The supplemental and amended petition of Mrs. Otto Johnson, widow of Otto Johnson, individually and as tutrix of her minor chi dren, Anthony, Ce”a, and Anna Johnson, with respect shows: That in conformity with the order of the honorable judge presiding in the above-mentioned court, petitioners reiterate all the allegations of their original petition filed herein, except in so far as tlie same is altered by this amended petit'on, and allege further that the said Otto Johnson, husband and father of plaintiffs, was employed as a laborer by the said American Sugar-Itefining Company to work at tlieir refinery, situated in Ibis city, and that under said employment lie was caused to work in the fifth story of said refinery, and was required to watch and care for large tanks, used for the purpose of receiving sugar which was to be pumped up from the first floor into said tanks, which pumping was to be done by means of machinery operated by steam power, and which machinery was run by an engineer stationed on the ground floor of said refinery. That, it is the custom and usage of said refinery that, immediately after the said tanks are sufficiently filled with sugar, warning is given to tlie occupants and workmen on the said fifth floor, where said tanks were situated, that the pipe which conveys the sugar to said tanks is blown out by injecting a strong force of steam, which warning prevents tlie occupants of said floor from being within close proximity of said pipe, tlieir business requir'ng them otherwise to be engaged within close proximity to the siii pipe. That it is necessary said pipe be cleaned by injecting a force of steam immediately after said pumping ceases, otherwise same would corrode and become clogged. That on the date mentioned, long after said pumping had ceased, and contrary to the custom and usage of said refinery, the said refinery, through the incompetent, irresponsible, and untrustworthy person employed by them as an engineer in charge of said machinery, and without any warning or notice whatsoever to your petitioner’s said husband, Otto Johnson, who was engaged in his usual employment of storing tlie contents of said tanks, a strong force of steam was suddenly sent through said pipe, terribly burning and scalding petitioner’s husband, said Otto Johnson; and from said burning and scalding the said Johnson, after groat pain and suffering for some days. died. That your petitioner’s said husband, at the time that lie received tlie injuries as aforesaid, was engaged in his usual employment in said refinery, using due diligence anil care on his part; and that by liis death your petitioner and her said children were deprived of his support and companionship, and from earning a living for herself and her small children. Petitioner further avers that the said killing of her said husband was caused solely by tlie neglect and gross carelessness of the said American Sugar-Refining Company, and that they could have prevented the said disaster if they had used due diligence and care in (lie employment of a competent and trustworthy engineer, and by tlie use of proper appliances for the giving notice to tlie occupants of tlie upper story, where your petitioner’s husband was engaged, either by messenger or boll or speaking tube, all of which they neglected and failed to do. Your petitioner alleges that by reason of the said carelessness and neglectful acts of the said American Sugar-Refining Company aforesaid, that she and her said children have been damaged, by reason of the pain and suffering her said husband endured, and by reason of tlie loss and deprivation to them of his care and support, In the full sum of ten thousand dollars ($10,000.00).”</p> <p>The defendant below again excepted as follows: “First That said so-called ■ amended and supplemental petition does not conform, to, but disre-, gards, the order of the court directing an amendment. Second. Said So-called supplemental and amended petition is so vague, inconsistent, incoherent, and contradictory in its allegations that defendant cannot justly be called on to.join issue thereon, nor can any issue be intelligently framed, thereon for submission to a jury. And, if the foregoing exception be overruled,' defendant further says: Third. That, as appears on the face of the so-called' amended and supplemental petition, the said Otto Johnson died from the effects of the alleged accident;* and under the law of Louisiana no right of action in the premises set forth in said petitions survived to plaintiff, individually or as tutrix of her minor children, nor to said children, nor by said law is there in the same premises any.right of action by plaintiff, individually or as tutrix of her minor children, or by said children, for damages alleged to have been sustained by her or by them by the death of said Otto Johnson. Fourth. And; if this exception be overruled, defendant further says that, as appears on the face of said so-called amended and supplemental petition, plaintiff alleges that said Otto Johnson was injured and killed in the course of an employment the risk of which he assumed, and by his own' carelessness, or by the act of a fellow servant, the risks of whose carelessness he, said Johnson, also assumed, or both, and that said petition states no cause of action against this defendant.”</p> <p>These exceptions were overruled, and the defendant below, reserving the benefit of the exceptions, answered in substance as follows: “Respondent admits that the deceased, Otto Johnson, was employed in the refinery of defendant in this city; but specially denies that said deceased was, ever injured through any fault, carelessness, negligence, or want of care of respondent, its officers, agents, and employes, or any party or parties for whom it was or is in any manner responsible, as set forth in said petitions, or otherwise. Respondent specially denies that the injuries complained of in said petitions were in any manner caused by, or the result of, the want of proper machinery and appliances in said refinery, or the employment of incompetent or untrustworthy engineers, foremen, or workmen, but avers,', on the contrary, that the. machinery and appliances in said refinery were proper and in good order, and the engineers and other parties were competent and trustworthy. Respondent further avers that, even if said deceased, Otto Johnson, was injured through any fault or negligence of respondent, its -agents, or employes in the premises, or as stated in said petitions (which is specially denied), yet even in such case plaintiff cannot recover, because said deceased, Otto Johnson, was himself careless and neglectful in said premises, and by his negligence and fault contributed to the accident complained of, and its results. And respondent specially denies that said deceased, Otto Johnson, was, at the time of said accident, using due diligence and care on his part. Or [respondent avers] the said accident and results were caused by the negligence and fault of fellow servants of said deceased, engaged in a common employment. Respondent further avers that said deceased, Otto Johnson, was familiar with the appliances used in said refinery, and the manner in which the work was carried on, and he assumed ali the risks of his employment. Respondent avers that it is in no manner indebted to or liable to plaintiff.”</p> <p>The cause was tried before a jury, and a verdict, rendered for $10,000. On a motion for a new trial, the plaintiff remitting $2,500, judgment was ren-⅞ dered for $7,500. The defendant below took its writ of error, and with if filed the following assignment of errors: “And now comes the defendant, the American Sugar-Refining Company, and assigns the following errors in the final judgment of this honorable court, rendered April 21, 1893, and signed April 22, 1893: (1) The court erred in entertaining jurisdiction of the said cause, and rendering said judgment; said court, on the face .of the record,..having no jurisdiction in the cause, and the averments of .citii zenship,' whether of Otto Johnson, deceased, or of his children, or of this defendant, as stated in the petition, not being sufficient to give jurisdiction to .the court, and-there being no federal question in the cause. (2) Said cour£ erred-in overruling the first exception to the supplemental and amended peti] t’ión, as well as to the original petition, filed herein on the 30th day of.N.qj vernier,, 1892,* and: in requiring the defendant to answer thereto; the so-•palled amended and supplemental petition not conforming to, biit disregarding, the order directing an amendment. (3) The said court erred in overruling tlie second exception filed herein on the 30th day of November, 3892, to the amended and supplemental petition, as well as to the original petition, and in requiring the defendant to answer thereto; the said supplemental and amended petition, of the plainüíf, and the original petition as well, and the same, when taken, together, being too vague, inconsistent, and contradictory in their allegations to demand an answer, or enable defendant to' safely answer the same, and to go to trial thereon. (4) The said cornu erred in overruling the third exception filed in this cause on the 30th day .of ¡November, 1892, and requiring defendant to answer, it appearing' on the 'face of said amended and supplemental petition, as well as the original petition. that said Otto Johnson died prior to the institution of this suit from the effects of the alleged accident; and under 1he law of Louisiana no right of action in the premises set forth in said petitions could survive to plaintiff individually or as tutrix of her minor children, nor to said children; nor bv law is there in the said premises any right, of action by plaintiff individually or as tutrix of her minor children, or by said children, for damages alleged to have been sustained by her or hy them, by the death of said Otto Johnson. (5) The said court erred in overruling the fourth exception filed herein November 30, 1892, it appearing on the face of the plaintiff’s petitions that said Otto Johnson was injured and killed in the course of an employment ihe risk of which he assumed, by his own carelessness or the act of his fellow servant, the risk of whose carelessness he,' the said Johnson, also assumed, or both; and tlie said petitions showed no cause of action against the defendant. And for these and other errors apparent on the face of the record the said defendant, applying for a writ of error, prays that the said final judgment may be reversed, and plaintiff’s suit dismissed, and for costs and general relief.”</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>This was an action by Arthur Robinson Tatum to recover damages against the American Sugar-Refining Company for personal injuries sustained while in its employment. There was a verdict for plaintiff in the sum of |4,000, and, a new trial being refused, defendant brought the case upon writ of error.</p>

<p>1. ADMIRALTY APPEALS — NEW E VIDENOB — WHEN ALLOWED.</p> <p>New testimony will be admitted on appeal when the court is of opinion that, under all the circumstances, substantial justice requires it, although a perfectly satisfactory excuse is not given for failing to produce 1he testimony below.</p> <p>2. Shipping — Negligence—Landing of River Steamers — Custom.</p> <p>It is the general usage on the Mississippi and its branches to land steamboats having stages operated by steam, for the delivery of small quantities of freight, by running the bow into the shore, and holding the vessel in position by revolutions of the wheel, without putting out lines; and therefore any risk attendant upon this method is assumed by the employés whose business it is to pass over the stage in delivering or receiving 'freight. 56 Fed. 248, reversed.</p> <p>3. Same — Fellow Servants.</p> <p>Negligence of a steamboat fall tender selected from the crew, in slacking the fall controlling a stage operated by steam so as to cause the drowning of a member of the crew, is negligence of a fellow servant, for which the owner is not liable.</p>

<p>Costs on Appeal — Attorney’s Fee.</p> <p>Upon the affirmance of a judgment, with costs, by the circuit court of appeals, an attorney’s fee of $20 is taxable against plaintiff in error, as this is the uniform practice of the supreme court under a rule identical with that of the circuit court of appeals (Sup. Ct. Rule 24, subd. 2, 3 Sup. .Ct. xiii.; Cir. Ct App. Rule 31, subd. 2, 47 Fed. xiii.), and as the act (realms' the latter court declares that “the costs and fees in the stv preme court now provided for by law shall be costs and fees in the circuit courts of appeals” (26 Stat. 826, § 2).</p>

<p>At Law. Action by the International Bow & Stern Dock Company against the United' States.</p>

<p>At Law. Action by Alfred Eamshaw against Jerome L. Boyer. On motion to strike off nonsuit.</p>

<p>1. Mining — Location of Claim — Notice—Recording.</p> <p>Under Rev. St. § 2324, and the rules of a certain mining district passed pursuant thereto, one desiring to locate a mining claim was required to post thereon a notice of his location, attested by a claim owner within the district, and to have such notice recorded so> as to show the name of the locator, date of location, and a description of the claim by reference to some natural object or permanent monument, sufficient to identify it. Held, that it was not necessary that the record of the claim should be an exact and literal copy of the notice posted on it.</p> <p>2. Same — Notice—Posting.</p> <p>a notice of location of a mining claim, required by rules of the mining district to he posted on the claim, was put in a tin can, which was placed on a shelf in a rock mound on the claim more than two foot high, the comers of the claim being marked by similar mounds. 'Held, that this was a sufficient posting.</p> <p>8. Same — Description—United States Surveys.</p> <p>a notice of location of a mining claim, required by rules of the mining district, referred to subdivisions of a. United States survey for toe boundaries ot the claim. It was shown That a surveyor had been deputized to make this survey, and that ho returned field notes and a map to the land office, which, map was approved by the land department; but that the commissioner, upon information tending to show that the survey was not made in the field, suspended this approval, and ordered an Investigation. <Held, that the notice was sufficient, for the map may be referred to for a description of the claim, whatever may be the ultimate fate of the survey.</p> <p>4. Same-Placer Location — Area.</p> <p>Under Rev. St. § 2331, which provides that no placer location “shall include more than twenty acres for each individual claimant,” a claim located by three persons must be limited to said 20 acres when it appears that they are all in the employ, and acting in the interest, of a single company.</p> <p>5. Same — Work Done — Claims Held in Common.</p> <p>Rev. St. § 2324, provides that on all placer mining claims located after a given date, and until a patent has been issued, “not less than $100 worth of labor shall be performed or improvements made during each year; but where such claims are held in common, such expenditure may be made upon any one claim.” 'Held, that the work required must have been done with a view to prospect or develop the'claim; and, in order that work done on one may inure to the benefit of another, held in common with it, the claims must be contiguous.</p> <p>6. Same — Working Oil.</p> <p>Por the purposes of this section, work done and expense incurred in the general development of an oil-bearing district, embracing many distinct claims held by the same owners, whatever its amount, can only inure to thé benefit of claims contiguous to these operations, notwithstanding that it constitutes the most economical and practical mode of working the oil, and may ultimately result in extracting the oil from all of the several claims.</p>

<p>1. Interstate Commerce Act—Discrimination — Place op Origination op Goods.</p> <p>All goods offered for shipment at a certain point must be carried at the established rate for such goods from such point, regardless of the place where they originated.</p> <p>2. Same — Traffic Agreements.</p> <p>The fact that cotton is offered for shipment at Mobile for New Orleans by a packet company which had carried it from Demopolis does not . make a case of dissimilarity of circumstances or conditions allowing the carrier which had no line to Demopolis to charge more than the established rate between Mobile and New Orleans, regardless of its agreements with other roads as to cotton so received.</p>

At Law. On demurrer to rejoinder. This suit is an action for personal injuries. Among other defenses set up by the defendant is that of the statute of limitations. It is pleaded that the cause of action accrued more than one year before this suit was brought.

<p>1. Courts — Jurisdiction—Cross Bill against a State.</p> <p>A state brought a suit in equity against certain corporations in one of her own courts. The cause was then removed to a federal court, and a cross bill was filed by one of the defendants. 'HeW that, as the state had voluntarily submitted herself to the jurisdiction, and as a cross bill is not an original suit, the same could not be dismissed on the ground that suit will not lie against a state.</p> <p>3. Service or Process — Substituted Service on State.</p> <p>When a suit is instituted by a state, and a cross bill is filed against it, it is proper to serve the state by making substituted service upon the attorney general, by whom the bill was filed.</p>

<p>Masteb and Sbhvant — Risks or Employment — 1Trial—Directing Vbkdict.</p> <p>Plaintiff, who was an old, experienced railroad man, in defendant’s service, was directed to assist in moving a “dead” engine in the company’s yard, and while so doing was injured, by being caught between, that engine and another one that was standing on an adjoining track. Tho work was done in open day. Plaintiff could see both engines, and judge of the distance between them, and he was not directed to take any particular position in working. ⅞¾ that the evidence justified a peremptory verdict for the defendant, since the danger was one incident to Ute service.</p>

la Error to tbe Circuit Court of tbe United States for tbe Northern District of Texas. Action by John McG-rath against tbe Texas & Pacific Railway Company for personal injuries. Defendant obtained judgment. Plaintiff brings error.

Action by the curator of James T. Haile, a lunatic, against the Texas & Pacific Railway Company, for injuries to plaintiff’s ward. Defendant obtained judgment on exceptions to the petition. Plaintiff brings error.

<p>1. MÚNICIPAL CORPORATIONS — NEGLIGENCE—DRAWBRIDGES.</p> <p>Defendant town assumed the obligations of a private corporation chartered to construct and maintain a drawbridge across a navigable stream. Neither the corporation nor the town was required by law to operate the draw in such bridge, but after a time the town undertook such operation by a draw tender appointed first at a town meeting and afterwards by its selectmen. Held, that the town, ha,ving voluntarily assumed the obligation of operating the draw, is liable for the consequences of its negligence in such operation.</p> <p>2. Same — Action fob.</p> <p>The rule that a private action will not lie against a town for the neglect of a public duty is confined to the case of public governmental duties; while the obligation, voluntarily assumed, ol' operating a draw in a drawbridge is a mere private corporate duty.</p> <p>3. Admiralty — -Maritime Torts — Prawbridges—Towns. .</p> <p>An injury to a vessel from negligence in operating a draw in a drawbridge is a maritime tort, and a court of admiralty will entertain an action against a town therefor.</p> <p>4. Municipal Corporations — Negligence—Drawbridges.</p> <p>A town maintained and operated a drawbridge across a stream which was navigable only at high tide. Xábelant’s barge approached the bridge about high water, and signaled for the opening of the draw. The draw tender was absent, and one of the selectmen undertook to open the draw; failing in his attempt, he discovered that it was locked underneath, and he then procured a boat, and opened the draw. In the mean time the barge had been delayed about half an hour, the tide had fallen some six inches, and, while passing through the draw, the barge struck on the bottom, and sank, suffering serious injury. Geld, that there was negligence on the part of the town.</p> <p>5. Same — Contributory Negligence.</p> <p>The proper course of the barge was straight through the middle of the draw. She sunk diagonally across it, and witnesses for the toiwn testified that her master’s negligent steering turned her how to- starboard, and caused her to strike the pier. The master denied that he so- steered her, and testified that her wheel touched bottom, causing her to strike her port bilge; and her bow took a shift to starboard when Hie engines were reversed. ’The shipwright who repaired her testified that her port side was broken, but that she had struck nothing on the starboard side. Geld, that she was properly navigated through the draw, and the master was not negligent.</p> <p>6. Same — Beaching.</p> <p>Nor was he negligent in attempting to pass through the draw notwithstanding- the fall of the tide, where it appeared that he could neither go hack nor turn, around, and that it was dangerous to ground the barge on the flats, on account of rocks which would go through her bottom.</p> <p>7. Same — Unlicensed Master.</p> <p>As there was no negligence on the master’s part contributing to the injury, the fact that be had no- pilot’s license is no- defense to- ihe town; especially where it was shown that he had passed the draw several times before, and had examined the channel at low water in a skiff</p>

This was a libel by Ambrose Van Etten against the town of West-port to recover damages for the loss of a steam barge through the alleged negligence of the defendant in the opening of a drawbridge.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Action by Robert G-. Bushnell against Park Bros. & Co., Limited. Plaintiff obtained judgment. Defendant brings error.</p>

<p>1. Libel and Slander — Question for Court.</p> <p>Where the purport of the publication complained of is plain and unambiguous, the question, in a civil action, whether it is a libel or not, is for the court.</p> <p>2. Same — Question for Jury.</p> <p>The alleged libel charged that defendant, as agent of an insurance company, was short in his accounts, and that, he had “boasted of the manner in which he had helped himself to the company’s money.” It further charged that the agents of the company “had been given unlimited opportunities to swindle the policy holders,” and stated that its readers were familiar “with the methods and extent to which the agents named have availed themselves of then- opportunities.” 'Held, that there was no such ambiguity therein as to mahe a question for the jury.</p> <p>3. Actions — Parties—Unincorporated Association.</p> <p>Code Civ. Proc. N. Y. § 1919, provides that any action that may be maintained against an unincorporated association may be brought against its president; and section 1921 provides that a judgment in an action so brought shall be satisfied out of the property of the association, and shall not authorize the issue of execution against the president. Held that, when the action has been brought against the president, an amendment to the complaint, substituting the association itself as defendant, does not introduce a new party to the action.</p> <p>4. Witness — Crimination—Privilege—Waiver.</p> <p>In an action against an unincorporated association the defendant' cannot object to incriminating testimony given by one of the associates, where the witness himself fails to assert his privilege.</p>

Indictment of J. T. Stokes, Abram Kendrick, A. J. Kendrick, E. H. Cook, Samuel H. Mixon, Morgan Mixon, D. J. Morgan, J. I). Pinkerton, and 15. S. Lane. Defendants, having been tried, convicted, and sentenced, sued out a writ of error to this court.

<p>At Law. Appeal by Amor Smith, Jr., surveyor, etc., from a decision of the board of general appraisers in favor of Rheinstrom Bros.</p>

<p>Customs Duties — Classification—Sulphate of Ammonia — Manures.</p> <p>Sulphate of ammonia, though made exclusively from bone, is dutiable as such at half a cent per poitnd, under paragraph 10 of the tariff act of October 1, 1890, and cannot be admitted free of duty, under paragraph 600. as a substance “expressly used for manure,” even when imported and actually used for the manufacture of fertilizers. Magone v. Heller, 14 Sup. Ct. 18, 150 D. S. 70, followed.</p>

This is a suit brought under Bev. St. § 4918, by the National Cash-Begister Company and Charles Edgar Lord, against the Lam-son Consolidated Store-Service Company, in respect to certain interfering patents for improvements in cash registers and indicators.

<p>Appeal from the Circuit Court of the United States for the Northern .District of Illinois.</p> <p>Suit by the Dames Automatic Sprinkler Company against the Walworth Manufacturing Company and others for infringement of a patent. The hill was dismissed. Complainant appeals.</p> <p>The bill in this case is for an -accounting and an injunction against, infringement of certain claims of letters patent No. 233,393, for improvements in automatic fire extinguishers, issued October 19, 1880, to Charles Barnes, who assigned to the complainants. The court found that one of the claims in issue liad not been infringed, and that the others were devoid of patentable noveliy. For the opinion see 51 Fed. 88. The answer of the Walworth Manufacturing Company, besides denying invention and infringement, and showing tile prior art, contains the following: “And this defendant, further answering, says that the said Charles Barnes unjustly obtained the said letters patent No. 233,393, for that which was in fact invented by one Charles WT. Talcott, of Woonsocket, in the state of Rhode Island, who was using reasonable diligence in adapting and perfecting the same. That the saicl Tal-cott, long prior to the supposed invention by said Barnes, invented an automatic fire extinguisher in which was contained in combination a perforated distributor, a valve located within said distributor, and having a stem projecting through the shell of the distributor, and a lever to hold the valve to its seat until a fusible pin, or solder joint, holding such lever was released by the action of heat; that said apparatus was also provided with an elastic cushion to hold said valve to its seat, with an elastic pressure; and that said Talcott perfected his said invention and filed his application for letters patent therefor in the United States patent oflice on the 8th day of April, 1879, and long prior to the supposed invention of the said Barnes, and prior to the application of said Barnes for said letters patent No. 233,393, and that letters patent No. 253,128, dated January 31, 1882, for said invention, were duly issued to said Talcott.”</p>

<p>Patents — Limitation of Claims — Impkovemf.nts in Stoves.</p> <p>The Stirrat patent, No. 357,874, for an improvement in stoves, must, in view of the prior state of the art, and of the modifications of the claims in the patent office, be strictly limited to the construction described, which includes as one essential element a removable top plate, or long center, east hollow, or with a projection having a water passage through it. The patent therefore does not cover the idea of bolting a water pipe or water box to the long center for the purpose of cooling it, and giving h greater durability.</p>

The suit was brought by Alexander Saunders and others against James P. Allen, for infringement of letters patent, reissue No. 10,021, dated January 31, 1882, to Andrew Saunders, for a pipe cutter.

This is a bill by tbe Newark Watcb-Case Material Company against tbe Wilmot & Hobbs Manufacturing Company for infringement of a patent for protectors of watches against magnetic influence.

<p>1. Patentarle Device — General Index.</p> <p>Letters patent No. 461,787, granted October 20, 1891, to Montgomery H. Watson, for an improvement in general indexes to be used in connection witb books, in which are recorded the names of individuals and facts or transactions connected therewith, are for a patentable subject-matter; the device covered being within the term “manufacture,” as used in the patent laws.</p> <p>2. Invention — Campbell and Watson Indexes.</p> <p>Letters patent No. 461,787 were granted to Montgomery H. Watson on October 20, 1891, for an improvement in general indexes to be used in connection with books, in which were recorded the names of individuals and facts or transactions related thereto. The Campbell index, in general use before this patent, consisted of a blank book or books having as many divisions are there are letters of the alphabet, each devoted to surnames having the corresponding initial letter, while on a fly leaf, at the front or back of the book, are the letters of the alphabet, in a horizontal line, representing the initials of Christian names, under which are placed figures referring to the pages on which those names are found. In the Watson patent, this table showing the initials of Christian names, and the pages on which they are to he found, is placed at the top of each page of the index, whose arrangement as to surnames is substantially the same as that of .Campbell's index. Tho effect of this improvement is to make each page, practically, a complete index, and to avoid tho wear and tear and the loss of time involved in turning constantly to the fly leaf, as it is necessary to do both in making and in searching the Campbell index. 'Held, that the Watson improvement involves invention, and 'the patent is valid.</p>

<p>In Equity. Bill by the Jaros Hygienic Underwear Company against the Fleece Hygienic Underwear Company for the infringement of a patent. On demurrer.</p>

<p>Libel by G-race Howard Potter and others against the steamship Majestic for breach of a contract of carriage. Libelants obtained a decree. The claimant, the Oceanic Steam Navigation Company, appeals.</p> <p>Appeal by the Oceanic Steam Navigation Company, claimant of the steamship Majestic, from a decree of the district court for the southern district of New York in favor of the libelants. 56 Fed. 244. The libel was filed to recover for an injury to the contents of certain trunks on a voyage from Liverpool to New York.</p>

<p>ChaeteR Party — Bmpi.oymmst or Objkctionabtjs Stevedore.</p> <p>Under a charter party requiring the charterer to furnish a full cargo of lumber to be loaded by the vessel, the shipper has no right, in the absence of express stipulation or established usage, to refuse to furnish the cargo because of the employment by the master of a stevedore who, although competent and experienced, is personally objectionable to the shipper.</p>

<p>1. Shipping — Bill op Lading — Lighterage Charges.</p> <p>A bill oí lading of certain rags provided for delivery from the ship’s deck to consignees, who were to be ready to receive the same “simultaneously with the ship’s being ready to unload” them. In default thereof, the master was authoriaed to “land, warehouse, or place, them in lighter,- without notice.” The consignees, though notified, did not appear, to receive the rags; and, as the health regulations of the port forbade landing them on the dock, the master placed them in lighters, from which they were transferred, after some delay, to a warehouse. Held, that the master’s action was justified by the bill of lading, and the goods were thenceforth at the risk and care of the consignees.</p> <p>2. Same — Duty op Consignees.</p> <p>When, several days later, the consignees appeared and claimed the rags, they objected to paying the lighterage expenses; and finally the ship’s agent sent the rags to a warehouse, where the charges were much less than on the lighter. The consignees afterwards objected to the lighterage expenses, as excessive; claiming that the goods should have been sent to the warehouse immediately, so as to reduce the expense to a minimum. It appeared, however, that it was necessary to obtain permits from officials for the removal and storage, which required some time. Held, that as it was the duty of the consignees to attend to these details, and having chosen to leave them to others, they could not complain of the delay.</p>

<p>Appeal from a decree of the District Court, Eastern District of New York, in favor of the owners of the French fishing bark Ghris-tophe Colomb, for the recovery of §27,794.50, collision damages, against the steamship Obdam.</p> <p>The material facts are stated in the opinion of this court, infra. The conclusions of the district court were announced in the following opinion by Judge BENEDICT:</p> <p>My conclusion in this case is that the collision in question must be held to have been caused by the fault of the steamer in maintaining a rate of speed which was unlawful under the circumstances, and was not caused by fault on the part of the bark. Let a decree be entered In favor of the libel-ants, with an order of reference to’ ascertain the amount of the damages.</p>

<p>1. Appeal — By United States — Jukisdiotion.</p> <p>The United States have a right to appeal from any judgment of any amount rendered against them under Act March 3, 1887, authorizing suits to be brought against the United States. U. S. v. Davis, 9 Sup. Ct. 657, 131 U. S. 36, followed.</p> <p>2. T.BIAL — SUFFICIENCY OP FINDINGS.</p> <p>In an action against the United States for a pile driver, boat, engine, and tools lost while hired by the government, a finding for the plaintiff for “a pile driver, its tackle, apparel, and furniture” is sufficiently specific on appeal, where the record does not show any request for a more specific finding, and the evidence is not preserved in the record,</p> <p>8. Bailment — Nkoutgf.nce op Bailee — Liability.</p> <p>Where a hired chattel is lost while In the possession of the hirer, and on account of his negligence, he is liable for its value to the owner.</p>

<p>Federal COURTS — Mistake in Decrees — Correction after Term.</p> <p>Mistake of counsel, whereby a decree is entered which does not conform to the opinion of the circuit court, cannot he corrected by that court after the lapse of the term.</p>

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

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>Action by Nora Adams against the Louisville & Jeffersonville Perry Company to compel it to issue to her a certificate for 1661-shares of its capital stock, which she claimed to own. The defendant the ferry company instituted a second action in the circuit court of the United States for the district of Indiana against Mrs. Adams and Hiram Mabury, in the nature of a bill of interpleader, calling upon them to assert their respective claims to the stock which was the subject-matter of the first action. The defendants to the second action, by cross bills against the ferry company and against each other, set up their respective claims to the stock; and by stipulation the two actions were consolidated, and a joint decree entered in favor of Mrs. Adams, from which Hiram Mabury has appealed.</p> <p>This suit arises out of a controversy between Nora Adams, one of the ap-pellees, and Hiram Mabury, the appellant, regarding a one-twelfth interest in the Louisville & Jeffersonville Ferry Company, and the right to 1he issuance of 166% shares of stock in said company, of the par value of $16,-666.66%, representing that interest. The company stands ready to issue this stock either to- Nora Adams or to Hiram Mabury, as that right ma.y be determined in this suit. It may be said, however, that Nora Adams claims the right to the stock independently of any claim or interest which Mabury may hn,ve in the ferry property. The first suit was brought by Nora Adams in 1888 against the company, in the circuit court of Clark county, Ind., to compel the company to issue the said shares of capital stock to her. That suit was removed by the company to the circuit court of the United States for the district of Indiana. After that suit was removed, the ferry company began another' suit in the same court against Hiram Mabury and Nora Adanas, in the nature of a bill of interpleader, to determine the respective rights of the parties to the issuance of such stock. In that suit the defendants, by cross bills against the ferry company and against each other, set up their respective claims to the stock, and by stipulation the two suits were consolidated, and heard as one, and a decree entered in favor of Nora Adams, which determined that she was the owner of the disputed one-twelfth interest in the ferry .company, and entitled to have the stock representing that interest issued to her; that Mabury had no right, title, or interest in or to said one-twelfth share; and that he be perpetually enjoined from asserting the same, by suit or otherwise, and adjudged to pay the costs of suit. The evidence is mainly documentary, and the facts undisputed. Those necessary to' present the points at issue are substantially these:</p> <p>' In 1802 William Henry Harrison, then the governor of the Indiana territory, granted a ferry franchise to one Marston G. Clark. In 1815 Clark ■sold the franchise, and in 1822 it came into the hands of George White. At this time, White was in possession and operating another ferry, under an act of fte Indiana legislature passed December, 1820, wbicb recited, that he was the assignee of the franchise theretofore granted to Samuel Merri-/weather. White, thus having the two ferries, in 1820, sold one undivided one-half to Charles Steade, who conveyed the same to Athanasius Wathen, and the othér undivided half to Ephraim Gilmore, who convoyed the same to Charles Strader, John Shailcross, and James Thompson; so that at that time, and until 1835, the two ferries belonged, equally, one-balf to Athanasius Watben, and one-balf to Shailcross, Strader, and Thompson. In 1807 Gov. Harrison had granted another ferry‘franchise to one Joseph Bowman, who ran the ferry down to 1837, leaving two brothers and two sisters as heirs. One of these sisters and one of the brothers sold their shares to A. Wathen. Another brother died, leaving nine children, each entitled to one thirty-sixth of the ferry franchise. Eight of the children sold their interest to A. Wathen. whoi married the other sister, Elizabeth Bowman Wathen (referred to in the case, generally, as Mrs. Elizabeth Wathen). The other brother sold his share to. Shailcross, Strader, and Thompson. From 1837 the ferry was conducted by A. Watben, as the owner of one half, and by Shailcross, Strader, and Thompson, as tbe owners of tbe other half. This A. Watben, thereafter known as A. Watben, Sr., died in 1851, leaving a widow, Elizabeth, and four children, James, Athanasius, George W., and A. J. Wathen. If the ferry franchise was real estate, it stood, upon the death of Athanasius Wathen, Sr., as follows: Shailcross, Strader, and Thompson, 12-24; Mrs. Elizabeth Wathen, dower for life, 4-24; James Wathen, 2-24; Athanasius Wathen, Jr., 2-24; George Wathen, 2-24; A. J. Wathen, 2-24. And there would be a reversionary interest of 1-24 in each of tbe four sons of Atha-nasius Wathen, Sr., to take effect upon the death of Mrs. Elizabeth Wathen, the widow. In 1857 George Wathen conveyed to Hiram Mabury all bis interest in the ferry. This gave Mabury 2-24 in possession, in fee, and 1-24 in reversion, upon tbe death of Elizabeth Wathen. The deed is broad in its terms, and professes to grant, bargain, sell, and convey to Mabury, and to bis beirs and assigns forever, all bis right, title, interest, and claim in and to tbe ferry right, ferry landing, and steam ferryboats, together with all the appurtenances thereunto belonging. In 1859 A. J. Watben also conveyed to Mabury all his interest in tbe ferry. These two deeds gave Ma-bury 4-24 in fee, and 2-24 in reversion. In 1858, by a sheriff’s deed, all James Wathen’s interest in tbe ferry was conveyed to Reed, Lewis & Howard, who conveyed tbe same to Thomas J. Howard. October 31, 1863, ■Howard conveyed the same interest to Mrs. Elizabeth Wathen, who thereupon, by virtue of this conveyance and her former interest, became entitled to tbe following interests in tbe ferry: For life, 3-24; in fee, 3-24. At tbis time tbe Wathens’ half interest in tbe ferry stood as follows: Elizabeth Watben: For life, 3-24; in fee, 3-24. Athanasius Wathen, Jr.: In fee, 2-24; in reversion, 1-24. H. Mabury: . In fee, 4-24; in reversion, 2-24. In 1865 (March 11th) there was a conveyance of ferry interests to Pinkney Yarble and others, in which Shailcross, Moses Brown, H. Mabury, Eliza-betli Watlien, George Walhen, and James Wathen joined. In that deed is' the following provision: “And it is also understood between the parties hereto that the four twenty-fourths of said premises hereby conveyed by the grantor Elizabeth Wathen, two twenty-fourths are the same which she acquired by purchase, heretofore held and owned by her son James Wathen, and the other two twenty-fourths conveyed by her is the one-half of an interest in which a question may arise as to the right of reversion or inheritance after her death. Now therefore, I, James Wathen, for the consideration of one dollar cash to me in hand paid, join in this conveyance, and sell and convey to said grantees herein all my right, title, and interest, in possession, remainder, or reversion, in or to the said four twenty-fourths of said ferry property, conveyed herein by my mother, said Elizabeth Wathen; and I, George Wathen, for the like consideration to me paid, do convey and quitclaim to said grantees said four twenty-fourths conveyed by my mother, Elizabeth Wathen. And said H. Mabury, party hereto, agrees and covenants to look to the two twenty-fourths not conveyed herein for his reversionary interest, as grantee of Andrew Wathen and George Wathen, and that in no event will lie, by virtue of his purchase of the interest of said George and Andrew Wathen, claim any interest in the four twenty-fourths of said ferry property hereto, conveyed by said Elizabeth Wathen.” The son Athanasius Wathen was non compos, and it appears by this deed that his mother undertook to convey Ms reversionary interest, and Mabnry undertook to risk the claim of Athanasius Wathen to one of the two- twenty-fourths still held by Elizabeth Wathen. This deed left Mrs. Wathen two twenty-fourths, being what remained of her life interest as widow; and Mabury undertook to look to those tren shares so' retained by Mrs. Wathen, for his reversionary interest as grantee of Andrew and George Wathen, by their previous ’ conveyances to him. These, as will be seen hereafter, are the identical two twenty-fourths in controversy in this suit. On September 23, 18G5, following, the claim of Athanasius Wathen, Jr., was conveyed to Sherley & Co. by William D. Beach, guardian of A. Wathen; and on October 17, 1865, Mrs. Wathen conveyed to her son, James Wathen, her remaining two twenty-foiuths, in which she held a. life interest.</p> <p>Under date of March 20, 1865, a voluntary association was formed hy the owners of the ferry, and an agreement signed by them. These articles of association were signed by John Slmllcross, Moses Brown, Hiram Mabnry, James Wathen, W. I). Beach (guardian of A. Wathen), J. A. Wathen, Sher-ley, Woodfolk & Co., John B. Smith, W. C. Hite, E. S. Hoffman, Pinkney Varble, Daniel G. Parr, and Howard Johnson. A provision of these articles which figures largely in this suit is as follows: “Article I. All the boats, appurtenances, and franchises having become the common property of said company, in proportion as herein set forth of their interest: John Shalleross, one-eightli (l-8th); Moses Brown, one-eighth (l-8th); Hiram Mabury, one-eighth (l-8t,h); James Wathen, one-twelfth (l-12th); A. Wathen, hy Wm. I). Beach, guardian, one-twelfth (l-12th); Sherley, Woodfolk & Co., one-eighth (l-8th); J. B. Smith, one twenty-fourth, (l-24th); W. C. Hite, one-twenty-fourth (l-24th); E. S. Hoffman, one-twenty-fourth (l-24th); P. Varble, one-eighth (l-8th); Dan’l Parr, one twenty-fourth (l-24th); Howard Johnson, one twenty-fourth (l-24th).” In other words, the Wathen interest, by that agreement, stood as follows: Hiram Biabury, 3-24; James Wathen, 2-24; Athanasius Wathen, by his guardian, 2-24; making 7-24. As Mrs. Wathen had previously conveyed 4-2⅛, and Hiram Biabury 1-24, the 7-24 named in the deed covered what remained of the original Wathen interest of 12-24. It will be seen that the articles do not name Elizabeth Wathen as the owner of any interest in the ferry at that date, though, according to the record, she had never parted with her life interest in the 2-24 of which Biabury held the re-versionary interest after her death. And it is claimed by counsel for Mabury that the inference from this fact is that, when the association was formed, James Wathen had in some way arranged to acquire and represent this interest standing in his mother's name; and which she did*in fact afterwards convey to him. On the other hand, it is claimed by Nora Adams’ counsel that, as against Mabury, ho is absolutely bound by the agreement, and es-topped from showing that the interests stood at that time any otherwise than as set down in the articles. It is alleged in Mabury’s cross bill, and admitted in Nora Adams’ answer, that the so-called “articles of association,” while dated 29th of March, 1865. were not in fact adopted until October 7, 1865, which is the date of the deed from Elizabeth Wathen to James Wathen. In 1867 James Wathen died, bequeathing all his estate to his widow, Nora Wathen. In 1869 the present corporation, the Louisvillé & Jeffersonville Eerry Company, was chartered by the legislature of Kentucky. Among other provisions of this charter were the following: “(7) Said corporation may purchase from any existing ferry companies or associations any ferry, boats, wharfs, and ferry franchises for any ferry or ferries between Louisville and Jeffersonville, and upon the purchase of all such existing franchises shall have the right to carry on and conduct a ferry or ferries between said cities. (8) Said corporation may accept such boats and franchises and wharfs and other property in payment of stock subscribed, and at such prices as may be agreed upon.” The corporators met on the 24th of April, 1869, and after accepting this charter, and resolving to organize under it, passed the following resolution: “Resolved, that the president be, and is hereby, authorized and empowered to make and complete the purchases authorized by sections seven and eight of the charter of this company, by purchasing the franchises and boats, and all other property and rights, of the association known as the ‘Jeffersonville Perry Company,’ at the price of two hundred thousand dollars, payable in the stock of this company at par.” A meeting of the board of directors was held on the 11th of September, 1869, at which was passed the following resolution: “Resolved, that as fast as the title of each owner of an interest in the old ferry company is duly conveyed to this corporation, free of incumbrance, the stock to which.such owner may be entitled in payment for such interest shall be issued to him. No fractional shares shall be issued, but certificates therefor shall be given; and, whenever a number of those certificates equaling or exceeding one full share shall be presented, stock shall be issued therefor to the amount of the share or shares embraced by one value of the certificates, and for any fraction over a new certificate shall issue.” By deed dated, the 6th of July, 1869, there was conveyed to this corporation various interests in this ferry franchise by divers parties; said deed, among other clauses, containing the following: “And Nora Wathen, in consideration of one hundred and sixty-six and two-thirds shares of the stock of Louisville and Jef-fersonville Perry Company to the said Nora Wathen assigned and transferred, does hereby grant, bargain, sell and convey to the said Louisville and, Jeffer-sonville Perry Company one equal and undivided twelfth part of all the franchises and other assets, real and personal, of the firm or association known as the ‘Jeffersonville Perry Company,’ except the wreck of the steamer Wathen, and reclamations arising from the loss of said boat; to have and ⅛ hold to the said Louisville and Jeffersonville Perry Company, in fee simple, forever.” This deed was recorded in Jefferson county on the 15th of April, 1870, and in Clark county, Ind., some months subsequent thereto. By deed dated the 24th of September, 1869, Hiram Mabury convoyed his three twenty-fourths interest. This deed was. recorded in Jefferson county on the 15th of April, 1870, and some mosths thereafter in Clark county. The following recital is contained in this deed of Hiram Mabury: “To have and to hold to said party of the second part, with covenant of general warranty, in fee simple, forever; but it is expressly understood and agreed that this conveyance in no wise affects the claim of said party of the first part to the reversion, after the death of Elizabeth Wathen, of two twenty-fourths of said ferry now held by Nora Wathen as assignee of said Elizabeth Wathen, and no part of the same is conveyed herein.” There was another deed, dated September 15, 1869, from Jonas Howard, guardian of Athanasius Wathen, to the Louisville & Jeffersonville Perry Company, and which was recorded on the 15th of April, 1870, in Jefferson county, and subsequently in Clark county, Ind., and which it is important to observe in this connection. The recital in that deed is as follows: “Whereas, the owners of a majority of the interest of the ferry franchises and real estate and other assets, real, personal, .or mixed, which belong or appertain to the association or firm known as the ‘Jeffersonville Perry Company,’ and now and for many years engaged in running and opera.ting a ferry between the cities of Louisville, Kentucky, and Jeffersonville, Indiana, having organized a company, under the recent act of the general assembly of the commonwealth of Kentucky known as the Louisville and Jeffersonville Perry Company, for the purpose of enabling the several owners of the interests in said ferry franchises, etc., to transfer their several interests therein to said ferry company, and to receive back in lieu thereof an amount of stock of said company equal in value to the interest so conveyed by such owner; and whereas, Athanasius Wathen, a person of unsound mind, is the owner in fee of the undivided one-twelfth part of said ferry franchises, boats, tackle, docks, etc., of the estimated value of sixteen thousand six hundred and sixty-six and 66-100 dollars.” It then goes on to transfer to the ferry company the undivided one-twelfth of the ferry franchises and real estate, and provides that the deed is not meant to include any right said Athanasius1 Wathen may have in reversion to the interest which descended to Ms mother, Elizabeth Wathen, for life, from one A. Wathen, deceased, in and to said ferry franchises, etc. On the 9th of October, 1869, the following proceedings were had at a meeting of the directors of the Louisville & Jeffersonville Perry Company:</p> <p>“Louisville, Ky., October 9, 1869.</p> <p>“The board met, upon the call of the president, at the residence of Oapt. Z. M. Sherley. Present: Z. M. Sherley, W. O. Hite, P. Leib, 1). G-. Parr, Howard Johnson. Oapt. W. O. Hite offered the following resolution, which was adopted: ‘Resolved, that the stock now in the name of Mrs. Nora Wathen shall not be issued to any one, but remain in the possession of the company until the matter of title isi definitely settled.’ On motion, the board adjourned. H. H. Reynolds, Secretary.”</p> <p>It appears in evidence that In October, 1869, all of the stock of the Louisville & Jeffersonville Perry Company, which, as above shown, consisted of 2,000 shares, of $100 each, was issued either in the form of share certificates, or in the form of scrip for fractions of shares, excepting 166⅝ shares. It further appears that these shares, which were reserved on account of Ihe claim of Mrs. Nora Adams (then Mrs. Nora Wathen), had not been issued; and, although this occurred in 1869, the shares had not been issued until the decree in this cause. In the mean time, Mrs. Adams received the dividends upon this stock, and was allowed to vote; but no certificates, as we have above stated, were issued to her. In 1888 Athanasius Wathen, the unfortunate son of Mrs. Elizabeth Wathen, died, leaving no heir at law except his mother, and subsequently she died. After Mrs. Wathen’s death, Mr. Mar bury claimed that the stock should be issued to him, representing this one-twelfth interest, and Mrs. Adams claimed that it should be issued to her. The dividends, after that, were not paid to anybody, nor had the stock been issued to anybody; and this controversy is to determine to whom that stock belongs.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Georgia.</p> <p>The original hill in this case was filed by the Few England Mortgage Security Company against Annie P. Tarver to foreclose a mortgage. An agreement was reached between the parties, which resulted in the entry of a consent decree containing various provisions and stipulations. Subsequently the Union Real-Estate Trust Company and J. E. F. Brewster presented a petition in the nature of an ancillary and supplemental bill, for the purpose of enforcing the decree above mentioned. To this, answers and a crossbill were filed, and the hearing below was upon the matter thus presented. The court below entered an interlocutory decree restraining the complainant and petitioners from taking out a writ of assistance, and the present appeal is taken therefrom.</p> <p>The following opinion was delivered in the court below by SPEER, Circuit Judge:</p> <p>The record of this cause presents a large number of questions. It was argued upon demurrer some time ago, but, on account of the intricacy of the matters presented, and the unusual and exacting demands made upon the time of.the presiding judge by other very pressing and weighty causes pending in the court, it has not been practicable until now to obtain a satisfactory conclusion. On the lltli of June, 1891, the Union Real-Estate Trust Company, of Atlanta, and J. E. E. Brewster, a citizen of'Massachusetts, presented to the court their petition in the nature of an ancillary bill and supplemental bill to the original litigation which had been for some time pending in this court between Annie P. Tarver as complainant and the New England Mortgage Security Company and others. From the averments of 1his proceeding, which for brevity will bo called the “supplemental bill,” it appears that on the 10th day of January, 1891, a final decree was rendered by the court in the original litigation. This litigation involved a large a.nd remarkably fine body of lands in this district, estimated by some of the witnesses to be worth several hundred thousand dollars. They had been pledged to secure loans mq.de by the New England Mortgage Security Company, and a decree had been obtained foreclosing the mortgages executed thereon. Mrs. Annie P. Tarver, when an attempt was made to enforce the decree, filed her bill, in the nature of a bill of review, setting out, among many grounds of apparent importance, that she had not been served, and had not had her day in court. The bill containing proper averments and prayers, a receiver of the court was appointed to take charge of the properties, to prevent waste, collect rents, etc. While the litigation was in this situation, propositions for settlement were mutually entertained by the parties. The agreement finally had was as follows:</p> <p>“State of Georgia, Bibb County — ss.: This agreement, made and entered into this, the 31st day of December, A. D. 1890, between Thomas P. Stovafi for the Union Real-Estate Trust Company, and J. E. E. Brewster and 111 New England Mortgage Security Company, parties of 'the first part, and Mrs. Annie P. Tarver, party of the second part, and William B. Tarver, parly of the third part Whereas, there is now pending in the circuit court of !!■" United States for the western division of the southern district of Georgia a bill in equity filed by Mrs. Annie P. Tarver against the New England Mortgage Security Company et al., the intervention of the Union Real-Estate Trust Company in said proceedings, the cross bill of the New England Mortgage Security Company against said Annie P. Tarver, which said bill and dependent and auxiliary litigations involve the title, ownership, and possession of sixteen thousand three hundred and sixty-four acres of land, more or less, known as the ‘Tarver Place,’ in Twiggs county, Georgia, and more particularly described in said bill and proceedings: Now, therefore, and in consideration of the sum of eight thousand seven hundred and fifty dollars in Band paid to the said Annie P. Tarver by the said party of the first part at or before the signing and delivery of these presents, the receipt whereof is hereby acknowledged, and for ,and in consideration of the sum of one dollar in hand paid to the said William B. Tarver by the said party of the first part at or before the signing, sealing, and delivering of these presents, the receipt whereof is hereby acknowledged, and for and in consideration of the mutual concessions and undertaking of the said parties hereto, as hereafter more fully set forth, made for the more speedy settlement and compromise of matters in litigation' as hereinbefore mentioned, and disputes between them, the said Annie P. Tarver and the said William B. Tarver, each for themselves, have relinquished, and by these presents do relinquish, all claim, right, title, interest, and possession of, in, and to any and all • of the said) lands in controversy in said litigation, as well as the twenty-one hundred acres, more or less, known as the ‘J. R. Wimberly Place,’ except as to six hundred and fifty (650) acres of the said J. B. Wimberly place known as the ‘Old Homestead,’ or Hunter Place;’ said relinquishment being in favor of J. F. F. Brewster, of Suffolk county, Massachusetts, subject to whatever agreements may exist between said Brewster and the said Union Beal-Estate Trust Company in reference to said lands. And it is further agreed between all the parties hereto that this agreement shall be made a part of the decree of the said circuit court in said pending litigations, which it is agreed shall be forthwith entered by consent of all the parties upon the presentation of this agreement to the court, and according to the terms hereof, and without any further preliminary proceedings; and that the court shall decree in said final decree that the said Annie P. Tarver, and those claiming under her or through her, are forever estopped from denying the validity or effectiveness of the service of process upon her in the foreclosure suit against her filed in the United States circuit court on April 30th, 1887, by the said New England Mortgage Security Company for the foreclosure of the mortgage upon said lands given by said Annie P. Tarver to the sai.d the New England Mortgage Security Company, and that the decree of foreclosure entered in said suit on July 7. 1887, as well as the execution issued upon the same, and the levy and sale of said lands thereunder, and the marshal’s deed of September 6, 1887, conveying said lands to Charles L. Flint, the purchaser at said sale, shall be decreed to be good and valid and binding from the respective dates thereof upon the said Annie P. Tarver and the said W. B. Tarver, and all persons holding under or through them; and that it shall be further decreed that the . said W. B. Tarver shall surrender up to said J. F. F. Brewster the bond for title to what are known as the ‘McKae Bands,’ in said county of Twiggs;, and that the said Annie P. and W. B. Tarver shall transfer and assign in proper form to said Brewster the bond for title made to said J. B. Wimberly by Charles B. Flint on the 21st day of June in the year 1882, wherein and whereby said Flint obligated himself and his assigns to reconvey 2.100 acres, more or less, which are fully described in said bond to said Wimberly, upon the payment by him. of a certain note of that date for the principal sum of $5,000, with interest, and which said note has been sued to judgment in. the superior court of Fulton county, Georgia. And it shall be further decreed that the said J. F. F; Brewster is entitled to the immediate possession of all of said lands, except the 650 acres known as the ‘Old Homestead,’ or ‘Hunter Place,’ before mentioned, subject to the contracts and agreements heretofore entered into in relation thereto between said Brewster, Stovall, and the Union Beal-Estate Trust Company; and that process may forthwith issue to put said Brewster in possession of same; and that the said Annie P. Tarver and William B. Tarver shall forthwith vacate the house and premises now occupied by them by leave of the court heretofore granted, and shall surrender all possession, title, interest, and claim of, in, or to any and all of said lands, except said 650 acres of said Wimberly place; but that said J. F. F. Brewster and said Union Beal-Estate Trust Company shall execute a deed relinquishing to said Annie P. Tarver, or to whomsoever she may designate in writing, all their right, title, and claim in or to the said six hundred and fifty acres known as the ‘Old Homestead,’ or ‘Hunter Place,’ the same to he surveyed and platted so as to include the piece o-í woodland next to Tarvers-ville, and run oil In one body, in such shape as Mrs. Tarver may direct. And that it shall be further decreed that all parties to said proceedings in said A'.ourt shall pay the fees of their own respective solicitors, and that no costs shall be taxed therefor. That the costs in said proceeding's shall be taxed as follows: The New England Mortgage Security Company shall pay the court costs of the bill filed by said Annie P. Tarver, as aforesaid, and of the answer thereto by it, and also the cross bill filed by it. The Union Real-Estate Trust Company shall pay all the costs made by the filing of its intervention, the costs of the receivership, and all compensations decreed the receiver by the court; and the said Annie P. Tarver shall be relieved of all court costs. This settlement is intended to settle all demands of the said the New England Mortgage Security Company, J. F. F. Brewster, the Union Real-Estate Trust Company, and Thomas P. Stovall, or either of them, on the one side, and of the said Annie P. Tarver and W. B. Tarver, or either of thorn, on the other side.</p> <p>“In witness whereof the parties have hereto set their hands and seals, this December 31, 1890.</p> <p>“Annie P. Tarver. [L. S.]</p> <p>“William B. Tarver. £L. SJ</p> <p>“Union Real-Estate Trust Company, by</p> <p>“Thos. P. Stovall. [It. S.]</p> <p>“The New England Mortgage Security Co., by its attorney,</p> <p>“W. E. Simmons. [L. S.]</p> <p>“J. F. F. Brewster, by his attorney at law,</p> <p>“W. E. Simmons. [L. S.]”</p> <p>It having been alleged iu the pleadings heretofore filed that Mrs. Tarver liad been conveying away her property under the dominating influence of her husband, the chancellor thought proper to caution her, and advise her as to the character of this agreement. This was done, and the agreement, having been signed by the counsel for all the parties, was made the decree of the court on the 10th day of January, 1891. As will be seen in the agreement, and as alleged in the supplemental hill to enforce this decree now before ihe court, it was provided that J. F. F. Brewster and the Union Rcal-Estale Trust Company should execute a deed relinquishing to Mrs. Tarver, or whomsoever she might designate in writing, all their right, title, or interest in or to 050 acres of land known as the “Old Homestead,” or ‘Hunter Place,” the same to he surveyed and platted so as to include the piece of woodland next to Tarversville. to run off in one body, in such shape as Mrs. Tarver may direct. The supplemental hill alleges that the complainants have earnestly endeavored since the decree to induce Mrs. Tarver to “run off” from said Hunter place and have platted 650 acres of land, provided for by the decree, tout that she has refused to take any steps in that behalf, and has refused to make any agreement upon the subject. Complainants aver that they were anxious to make the deed as provided for by the decree, hut that Mrs. Tarver refused to aid them in any respect, and was using their failure to make the deed as an excuse for remaining in possession of certain lands passed to Ihe complainants by that decree; the supplemental bill describing it as the “Hunter Place,” and setting forth the boundaries, which it stated will more fully appear by reference to the abstract of title made" by John Wimberly, March 10, 1882, and furnished by him to Charles L. Flint, and the deed to Hits same made by said John R. Wimberly to Charles L. Flint, July 1, 1882, now to the court shown. It otherwise appeared that Charles D. Flint was ihe president of the New England Mortgage Security Company, and the supplement;) 1 bill stated that the complainants had acquired the title to the said Hunter place through said Charles L. Flint; that said Hunter place contained 1,313¾ acres, and “that out of the same Mrs. Tarver is entitled to have six hundred and fifty acres, to he surveyed and platted so as to include the piece of woodland next to Tarversville, to run off in one body, in such shape as she may direct.” The supplemental hill then prays that, in order to carry this decree into effect, the court will appoint a competent surveyor to survey and plat said lands and run off said 650 acres out of said Hunter plane in one body, in such shape as Mrs. Annie P. Tarver may direct, and so as to include the piece of woodland next to Tarversville. On the 17th day of June, 1893, Mrs. Tarver filed her answer to this proceeding. She denied that she had' delayed the steps to carry out the agreement. She averred that at the time the contract was signed she had discussed with the complainants the best mode of carrying out the agreement in good faith; that complainants had stated to her that it would be impossible to make a deed and give possession of the 650 acres of the Hunter place until said Hunter place could be sold by the sheriff of Twiggs county under a fi. fa. issued from Pulton superior court' against John R. Wimberly. It otherwise appears in the record that this fi. fa. was issued on the suit of the New England Mortgage Security Company against John R. Wimberly, and under the contract between these parties, construed by the law of Georgia, the judgment constituted a lien of the highest dignity on these lands, to wit, the Hunter place, which had been conveyed to secure the loan. She states further in her answer that complainants promised that they would immediately commence to advertise the said Hunter place for the sheriff’s sale in March, 1S91, and that, as soon as the sale could, be made, the entire tract, containing 2,172 acres, would be bought in by the complainants, and the 650 acres should be surveyed, and a deed and possession of the same should be given to her. She states that she agreed to do this, induced to do so because complainants assured her that under no circumstances would she be disturbed in her present abode until said arrangement of sale and survey could be perfected and possession given. She states further that complainants did not advertise said lands for sale by the sheriff of Twiggs county under the fi. fa. from Pulton superior court. The advertisement was in the- month of February, 1891, in pursuance of her agreement with the complainants. In her answer ■ she further avers that two weeks before the time fixed for the sale, T. P. Stovall, who, it appears, was acting for the Union Real-Estate Trust Company, in the entire transaction, came to respondent, and requested her to assign or transfer to said complainants bond for titles to the Hunter place, described in said decree. Respondent says that at first she refused to do so until the said sale should be made and the deed and possession given to said 650 acres, but-that, upon assurances of said Stovall that the sale should certainly take place at the time advertised, and that complainants would buy said land, would survey the same, and that a deed would be made in good faith in a few days thereafter, defendant reluctantly yielded, and signed said bond for titles as Stovall requested; her objection being on the ground that her contract did not provide for any assignment whatever. Defendant did provide for the delivery of said bond after said survey was made and deed and possession given to said 650 acres of land. The answer further states that, after the bond for titles had been assigned, complainants immediately withdrew the land from sale. Although repeatedly and urgently requested so to do, they have failed and refused to- take any steps to put themselves in a position that would enable defendant to carry out in good faith the terms of such agreement undertaken by them. She charges that she has been the victim of systematic fraud and misrepresentation on the part of complainants, not only in the framing of said decree, but in carrying out its provisions after it was adopted. She charges that she signed the agreement on the undertaking then and there of complainants to make to her good and sufficient titles to said 650 acres of the Hunter place, and put her in possession thereof; and that by artful evasions said decree was so worded that respondent was only to receive a quitclaim title from them to her of said 650 acres. She claims further by her answer that she was entitled to have 650 acres run off out of the 2,172 acres, which she insists comprises the Hunter place, and not from the 1,313% acres, as complainants propose, which last tract was known as the “Coombs Place,” and was included in said 2,172 acres. She denies that complainants had any title to the said land, and insists that Henry R. Wimberly has now, and has had for years, possession of the land; that the deed that John R. Wimberly has filed and recorded in terms of the law was merely made to secure the loan, and did not pass the title; that by the sheriff’s advertisement which the complainants had inserted they admit possession and title in John R. Wimberly. And she insists further that the court had no jurisdiction to appoint a receiver, and direct a survey of the lands held by persons not parties to the litigation. In her answer she asks affirmative relief from the court, to wit, that the complainant should be required to do equity, and carry out in good faith the terms of the agreement. She refers to the supplemental agreement of the date of January 9th, which was omitted from the decree by the fraudulent conduct of complainants, which omission was to defraud respondent of her just and legal rights under said agreement, respondent insisting that such supplemental agreement and the entire contract that was in fact made should bo executed in the utmost good faith. The substance of her prayer is that the complainants should be compelled to renew the advertisement of the sale of the Wimberly lands, known as the “Hunter Place,” sell the same, acquire title, execute good and sufficient titles to respondent, arid have the survey as aforesaid of said 650 acres hereinbefore described, as they undertook to do.</p> <p>Pending the questions raised by this supplemental bill and her answer, it was agreed between the parties that the following questions arising on the above petition and answer shall he submitted on the proofs to be made by affidavits and documentary evidence and arguments of counsel to his honor, Judge Speer: Eirst. Prom what lots and parts of lots of land the 650 acres of land referred to in the final decree of January 10, 1891, shall he carved. Second. That when the judge shall have determined the lots or land out of which the 650 acres shall be run off as Mrs. Tarver may direct, in the manner designated in such decree of January 10, 1891, the judge shall then appoint a surveyor to run off said land, and plat said 650 acres in manner and under the terms of said petition for said survey, out of the lands such judge may designate above. Third. That until said survey is complete, and plat approved by the court, the status of the parties in other respects is to remain as now, and no new steps to be taken by either party that would tend to oust the jurisdiction of the court in this proceeding. The intent of it is that the movants will not dismiss the bill after the survey, and at the same time get the advantage of the survey. Movants reserved the right to make, after said survey is complete, any legal objection to the relief prayed for in the answer of Mrs. Tarver, by demurrer or otherwise. The defendant reserved the right to make such amendment and alteration of her pleadings as may he proper and necessary. This agreement was signed by the counsel. Pursuant to this agreement, the court rendered its decision on the 16th of November, 3891. It held that it could grant no affirmative relief to the respondent upon an answer in the nature of a cross bill, but that, under the equity practice, it would he necessary to present the matters of grievance and the affirmative relief sought by a cross bill proper. As to the survey, the contention of the complainants was fully sustained as to the locality and boundaries of the Hunter place, and it was ordered that Galvin W. Hendricks, a surveyor, he appointed to run off and plat the said 650 acres, mentioned in the decree of January 10, 1891, out of the Hunter place as defined and described in the order, said survey to be in such shape as Mrs. Annie P. Tarver may direct, and so as to include the piece of woodland in the southeast corner of lot 181, next to Tarversville. The order further provided that after the survey shall have been completed, and plat filed with the court, unless exceptions shall he filed by either party to this proceeding after said plat is filed, the same shall be fully and finally confirmed. This survey was made by the surveyor, and filed in the clerk’s office on December 14, 1891, and, so far as the court is informed, no exceptions have been filed to the decree itself.</p> <p>On the 23d day of December, 1891, the Union Real-Estate Trust Company filed its quitclaim deed to Mrs. Annie P. Tarver to the 650 acres marked off by the survey. On the same day J. E. E. Brewster and the New England Mortgage Security Company filed with the cierk a similar deed. On January 7, 1892, it being represented to the court by the counsel for Mrs. Tarver that the marshal was proceeding with a writ of assistance to eject this lady from the home which she had occupied, that she was in delicate health, and about to be confined, and the court having been apprised by its Knowledge of tlie record that there was a dispute pending between her and the complainants, which she purposed to bring to the attention of the court, the following order was passed: “Upon motion of counsel for Mrs. Annie P. Tarver, it is ordered by the court that the Union Real-Estate Trust Company do not sue out a writ of assistance to enforce said final decree of January 10, 1891, without first having made formal application to the court for leave to sue out said writ of assistance, and shall serve Mrs. Annie P. Tarver with notice of such application.” This order was made to apply also to J. P. P. Brewster. In the mean time, to wit, on November 16, 1S91, Henry S. Wimberly was made party by intervention pro interesse suo. Frdrn' this intervention it' appeared that Mrs. Tarver had no title whatever to the Hunter place; that H. S. Wimberly was the father of John R. Wimberly; that H.'S. Wimberly conveyed by deed this land to his son in order to enable him to borrow money from the New England Mortgage .Security Company by pledging the land therefor. It is alleged in the intervention that the deed to John R. Wimberly was made for no other purpose, and, while John R. Wimberly conveyed this land to the New England Mortgage Security Company for the purpose of securing a loan of $5,060, H. S. Wimberly insists that he is, as between himself and the New England Mortgage Security Company, entitled to pay off the debt, and retake his lands. The New England Mortgage Security Company, holding a deed to the property to secure the debt under the law of Georgia, after suing its note to judgment, may file its deed with the clerk of the superior court, and levy on the land, and sell it, and, taking the sheriff’s deed, may be put in possession by the sheriff; or it may, if it chooses to do so, bring an action of ejectment on the deed made to secure the debt, and acquire possession of the land by that method. This action, however, may be defeated by the payment of the debt with all proper charges. The New England Mortgage Security Company began its procedure under the option first stated. It brought suit, as we have seen, in the superior court of Fulton county, and the Union Real-Estate Trust Company, having acquired all the rights of the New England Mortgage Security Company in this debt, as we have further seen, causes fi. fa. to be levied, and the land to be advertised for sale thereunder, after the consent decree with Mrs. Tarver was taken. H. S. Wimberly attaches to his intervention a copy of the bond for titles to reconvey the land on payment of the debt, made by Charles E. Flint, president of the New England Mortgage Security Company, to John R. Wimberly. Mrs. Tarver’s connection with this land is explained by the intervention as follows: Several gentlemen undertook to make a ranch on all of the Tarver lands, amounting to some 16,000 acres. This particular tract, known as the “Hunter place,” from its situation, was necessary to their scheme, and H. S. Wimberly was induced to convey this land to Annie P. Tarver for them. They were relatives of hers, and all of these lands had been placed in her name. She gave to Wimberly her note for $5,000 in consideration of the Hunter place. The note was not paid. Wimberly sued in the superior court of Twiggs county. The suit was after-wards dismissed by consent. By agreement the debt was canceled, and Mrs. Tarver relinquished all right and title and interest in the Hunter place to Wimberly. As Wimberly had made no conveyance to her, she made none to him, and the color of title which she had to the Hunter place at the time of the consent decree of January 10th between herself and the New England Mortgage Security Company and Union Real-Estate Trust Company was the bare custody of the bond for titles executed by Charles U. Flint to John R. Wimberly to reconvey to the latter tlm Hunter place when Wim-berly’s debt to the New England Mortgage Security Company should be paid. H. S. Wimberly, by his intervention, calls the attention of the court to the fact that the Hunter place was in no sense comprehended in the suit between Annie P. Tarver and the New England Mortgage Security Company to enforce the debt of the latter against her lands, which was not mentioned in the pleadings. The Hunter1 place was not in her possession, and he declares that the consent decree of January 10, 1891, was wrong and unjust and illegal as to him for the reason that the court had no authority to take his land, or utilize it in any way as a part of the consideration of the settlement between parties in which he was in no sense concerned. He charges a fraudulent scheme oh part of the complainants to obtain a transfer by Mrs. Tarver of the bond for titles which was made by Gharles L. Flint to John R. Wimberly, the object of this being to relieve complainants of the necessity of reconveying the land if the debt should be paid. This he now offers to do. lie charges full notice upon all the parties as to his interests in the matter and the equities which belong to him. He states that the loan itself was usurious; that John It. Wimberly gave the note for $5,000, and in point, of fact received $4,000; but he declines to avail himself of this plea. He does object to giving Mrs. Tarver 650 acres of his land, which he prays may be sold at public outcry to the highest bidder, the New England Mortgage Security Company having elected to proceed by judgment, execution, and advertisement; and proposed to pay off the debt with interest, and take the laud; or he proposed to make his land bring at the sale the amount of the debt with" interest and costs, and claims that he may be paid the excess of the bid, above that amount.</p> <p>Another complication is presented by the intervention of W. B. Sparks. This was filed the 20th of July, 1891.. It recites that John ft. Wimberly owned the Hunter place. That he made to the New England Security Company a deed thereto to secure the payment of $5,000 loaned him. The deed was made, as we have seen, to Charles E. Flint, who, as we have seen, was president of the company, as grantee. Flint executed to John R. Wimberly his bond for titles to reconvey the land on the payment of the debt. After this occurrence John R. Wimberly transferred and assigned said bond for titles, together with all his title, right, and interest in said lands and under said bond, to Annie P. Tarver; and that Annie P. Tarver did afterwards on ihe 29th day of January, 1886, make and execute to intervener Sparks a mortgage upon certain lands. It may he observed at this point, however, that John It. Wimberly transferred and assigned this bond for titles to Mrs. Tarver on the 14th of February, 1886, and that the mortgage made to Sparks is dated the 29th day of January of that year, which was some days before Sirs. Tarver had received the bond for titles. A mortgage to Sparks was made to pay certain notes and drafts due by Mrs. Annie P. Tarver. lie attacks the mortgage or deed of the New England Mortgage Security Company for usury, charging that 20 per cent, per annum was exacted, whereas the notes only specify 8 per cent, as the rate of per cent, charged, and that this was done by means of a scheme and pretended commissions to evade the laws of Georgia relative to usury. He charges further that the whole contract is void, and not collectible under the law of New York on account of the usurious charge, and that it was made in New York, and that for this reason the title never passed out of Wimberly to secure said debt. He states that the transfer of John R. Wimberly to Mrs. Tarver therefore conveyed the title which gives to intervener a first lien upon the property. He charges notice of these facts upon' the Union Real-Estate Trust Company, its agents and attorneys. He charges a conspiracy between Annie P. Tarver, J. F. F. Brewster, the New7 England Mortgage Security Company, and the said Union Real-Estate Trust Company, by means of which Mrs. Tarver sought to divest herself of the title which she received from Wimberly by conveying the bond for titles from Flint to Union Real-Estate Trust Company. That this was done to relieve the lands of intervener’s mortgage, and then to cause a conveyance of the land to some person other than Annie P. Tarver, and place it beyond the reach of intervener’s right, and defeat the collection of this debt. That this agreement was made the judgment of this court on the 1st day of January, and is a part of the record in this cause. Intervener charges that Annie P. Tarver did assign and deliver up the bond for titles from Flint to Wimberly in pursuance of said agreement, and calls on all of the parties lo produce the said bond for titles at the trial. He charges that the land is worth far more than a sufficient amount to pay off and discharge both the debt of John R. Wimberly and the New England Mortgage Security Company, and also to Annie P. Tarver, and that it will bring at public sale more than a sufficient amount of money to pay both debts. Mrs. Tarver has but little property, and, if said parties are allowed to pursue their purpose and intention to convey to others said land, it will reach the hands of an innocent third party, who will be protected against intervener’s mortgage. He stated that the amount was within the jurisdiction of the court, and, all the parties being in court asserting their several claims, he prays that he may be allowed to come in and assert his rights in the premises, and, waiving discovery, prays — First, for substituted service upon the solicitor of the nonresident parties; second, that all other parties, them agents and attorneys, be immediately enjoined and restrained from further proceeding to survey said lands, and from executing and delivering or receiving any conveyances of or to said lands until the final order of the court; third, that he have judgment and decree of foreclosure of his mortgage against said Annie P. Tarver for principal, interest, and attorney’s fees; fourth, that his mortgage be decreed to be the first lien upon said lands, and entitled to payment out of the same in preference to the claim of any of said' parties defendant; fifth, and for general relief it was agreed further that the application for a survey should proceed without prejudice to the rights of H. S. Wimberly.</p> <p>Cross Bill of Mrs. Annie P. Tarver.</p> <p>On July 6, 1892, Mrs. Annie P, Tarver filed her cross bill. She states that when the terms of the consent decree had been fully discussed and agreed upon, the decree was drafted by the attorneys for the New England Mortgage Security Company and the Union Keal-Estate Trust Company, and that neither she nor her attorneys read said decree. She states that she, her husband, W. B. Tar-ver, and Minter Wimberly, one of her counsel, were present when the decree was read to them by William E. Simmons, attorney for the New England Mortgage Security Company, and that the word “quitclaim,” or other word of similar import, was never used in reading said decree, but that “good” title or “warranty deed” was substituted therefor, by which she was induced to accept the terms of the agreement, because that, in discussing the terms of said agreement in the presence of her husband and W. A. Davis, also D. C. Hughs, — friends of the oratrix, selected by her to aid her in fixing the terms of said agreement, — and that in the presence of the counsel for the Union Beal-Estate Trust Company, and also in the presence of Thomas P. Stovall, it had been invariably understood and expressly agreed that she should receive good and sufficient titles to said 650 acres of land. She states further that both Thomas P. Stovall and William E. Simmons assured her that the title would be put beyond all question by the sale of the Wimberly land; that when said sale should taire place, and the title of Wimberly and the mortgage of W. B. Sparks finally divested, they could and would make to your oratrix a good and sufficient title to the same; that both herself and the other parties to the decree were fully advised of the complications surrounding the making of titles to said land; and that, if she had in good faith agreed to accept the conditions of said decree as it now stands worded, she would have done so with the full knowledge that the portion of said decree by which she was to receive a quitclaim deed to said 650 acres’ of the Hunter place was utterly worthless, and carried no valid consideration, and conferred upon her no greater privilege than that of paying off the Sparks mortgage, of which your oratrix had never received one dollar of benefit, and which had been made for the benefit of other persons entirely, and which she could never have been legally compelled to pay out of .her own personal means. She states further that she was lulled into a feeling of security by the positive assurance that the sale of the said Wimberly land should take place as had been agreed upon, and, knowing that if said sale should be made, and said land bought in at said sale by said New England Mortgage Security Company and said Union Beal-Estate Trust Company, as they had solemnly promised to do, their deed would give her a good title to the land she had selected and earnestly desired in order to shelter and rear her helpless brood of little children. She states that she was advised by disinterested friends that in accepting said decree, even as she supposed it to be, she was making a great sacrifice of her material interest. That she was moved to make this sacrifice in order to get ⅜ home, where she might rear and educate her children, unvexed by litigations and unembarrassed by the anxieties of continual lawsuits. She states that she was. misled and entrapped into agreeing to the terms of said agreement by having them' read in a different manner from that in which they were set down, and in finally accepting said decree under the belief that the subsequent stipulations as to sale and possession of the said 0.50 acres had been inserted therein as agreed upon. She states that, relying upon the good faith of said William E. Simmons and Thomas P. Stovall, she would have immediately given up possession of her home, and placed herself absolutely in their power, if the latter had not then and there tendered to her notes for $2,500, payable in New York, at 8 per cent, interest, instead of cash, as it was understood said payment was to bo in cash. That she had already signed said agreement, and then and there refused to accept said notes, which were void under the laws of New York, but, being incensed at what she believed a deliberate effort to swindle her, at once repudiated said entire agreement, and immediately left for her home; and subsequently, when urged by Thomas P. Stovall to reconsider her action, she consented to accept proper notes on New York, instead of cash, for said $2,500, upon the solemn assurance that she was not to be molested in her home until said notes should be paid, and said Wimberly land should be sold, and oratrix put in possession of said 650 acres as above described. That she refused to reconsider her action until the said agreement should contain a stipulation, in addition to the former terms, that said sale of said Wimberly land should take place immediately, and that she should remain in undisturbed possession of the homestead until said sale and conveyance of title of said 650 acres of land should be made to her, which Thomas P. Stovall then and there agreed to be done. She states that she was assured by her husband, W. B. Tarver, that said agreement contained said additional stipulation, and that she acted under that belief when she informed the chancellor in a private interview that she was satisfied with said agreement. She states that she received no consideration for the sacrifice she made in accepting said decree, except the $8,750, paid as aforesaid; and that, if said decree should be enforced according to its literal tenor, the portion of said consideration purporting to give her a home, which she regarded as the most valuable and indispensable part thereof, would he rendered utterly valueless and worthless to her, and, she repeats, would give her no greater advantage or privilege than to pay off and settle the mortgage of W. B. Sparks, which is a debt incurred for the benefit of other persons, and in which she did not participate. That she has been systematically misled, not only in getting her consent to accept said decree, but in the reading of the same so as to give the terms thereof an entirely different significance from those actually set down; and that said agreement to give her a title to a home on the 650 acres was so worded and so read for the express purpose of making the word of promise to the ear, only to break it to the hope.</p> <p>To the various answers and cross hills and interventions which have been hereinbefore set out, the Now England Mortgage Security Company and the Union Keal-Estate Trust Company have interposed demurrers. They were set down for argument. After argument the questions presented were taken under consideration by the court. The questions themselves have been found difficult and perplexing. Eor the purpose of demurrer, of course, the averments in the answers and in the interventions arid in the cross bill of Mrs. Tarver, where properly pleaded, must be taken as true. At the same time, the court must consider them in connection with the record wherein it makes plain the intention of the parties and the action of the court. After careful and anxious inquiry, we find, in the present state of the record, that the equity of the case may be stated as follows: Mrs. Tarver claimed the title to about 16,000 acres of land, which was exceedingly valuable. She was resisting an interference with her possession of these lands by means of an execution obtained by the New England Mortgage Security Company against her. Without considering the merits of her contention, it may be presumed from the facts that the Union Keal-Estate Trust Company, who succeeded to the rights of the New England Mortgage Security Company, agreed to pay her the sum of $8,500, and also to relinquish to her all the claim and right it had and which the New England Mortgage Security Company had to the Hunter place, above described, in consideration of tlie abandonment by her of the contest she was making; that the resistance was formidable, and perhaps threatening to the validity of the execution itself. In the agreement it appears that she did abandon Ibis contest, and, further, that She surren-tleucd her right to a very large, very fertile, and very valuable body of lands, which is otherwise shown in the record to be worth anywhere from $75,000 to $200,000. Now, to secure both parties the valuable results of the agreement into which they entered, it is undoubtedly true that the valuable result which the Union Eeal-Estate Trust Company sought to attain is this immense body of fertile and valuable land. It is perhaps not improper 'to state that it otherwise appears in the record that the company was organized perhaps mainly for the purpose of profitable speculation in these lands. That Mrs. Tarver’s title was seriously embarrassed is unquestionably true. That the mortgage of the New England Mortgage Security Company would eventually have prevailed as against her landsi is probably true. It is, however, probably true that there would have been delay caused by the fact that she was not served by process as the law requires. The valuable result which she sought to' obtain was pecuniary compensation paid her and the C50 acres of land, which all through the controversy appears was desired by her as a home for herself and her children. This appears in her answer and in her cross bill. It was stated in judicio by her counsel when the consent decree was proposed; it was discussed by the chancellor and this lady when he felt obliged to advise her as to the far-reaching effect of the decree which conveyed away from her the title to so much and such valuable property. It follows, therefore, that if, without violating the principles of equity, the court can secure to her her home, it is our duty to do so.</p> <p>Now, it is true it is insisted that upon the face of the agreement, which is made the decree of the court, there is nothing but the relinquishment of the title which the Union Eeal-Estate Trust Company and J. E. E. Brewster, who acted for the New England Mortgage Security Company, had in the 650 acres of the place called the “Hunter Place,” and otherwise the “Wimberly Place.” It might be true, if this were a court of law, it would be obliged to give a narrow construction to the terms of the instrument itself, without a consideration of the equities surrounding it, that this contention might be sustained; but we are in a court of equity, which will look through forms in order to find the substance of the agreement. Now, what is the language of this agreement upon which Mrs. Tarver is ready to rely in order to obtain a home for herself? It is agreed that Annie P. Tarver and William B. Tar-ver shall forthwith vacate the house and premises now occupied by them by leave of the court heretofore granted, and shall surrender all possession, title, interest, and claim of, in, or to any or all of said lands except said 650 acres of said Wimberly place, but that the said J. F.- F. Brewster and said Union Eeal-Estate Trust Company shall execute a deed relinquishing to said Annie P. Tarver, or to whomsoever she may designate in writing, all their right, title, and claim in or to the said 650 acres known as the “Old Homestead,” or ‘Hunter Place,” the same to be surveyed and platted so as to include the piece of woodland next to Tarversville, and run off in one body, in such'shape as Mrs. Tarver may direct Is it not, then, true, when these parties agreed to relinquish to Mrs. Tarver all their right, title, claim, and interest to said 650 aeres, they agreed to give her all the elements and means of making an effective title in her to that land which they possessed? We think so, dearly. And if, by directing them to do that for her, which they otherwise in the assertion of her title would and could have done, the court can make her title perfect, it is our duty to direct.</p> <p>Now, what is the right and title of the Union Eeal-Estate Trust Company and X F. F. Brewster or the New England Mortgage Security Company in the Hunter place? In other words, what is their equity? Whatever it is, Ml's. Tarver takes it under this agreement. If it should be a perfect title the word “relinquish” would he equivalent to the word “convey,” and it would not matter, to the perfection of her title, that there was an absence of the covenant of warranty in the conveyance. The New England Mortgage Security Company held at the time of the agreement, and now holds, an equity which could be easily ripened by their action into a formal and perfect title to the Hunter place. It follows, therefore, that this power is also applicable to any portion of tbe Hunter place, and to the 650 acres surveyed and set off to Mrs. Tarver. H. S. 'Wimberly had conveyed the entire tract to the New England Mortgage Security Company to secure a debt for 85,000. It is true that the New England Mortgage Security Company, in compliance with the statute of the state of Georgia, had given to John B. Wimberly a bond obliging them to reconvey the title to him on the payment of the debt. And it is also true that this bond for titles was delivered to Mrs. Tarver, and that subsequently she redelivered this bond for titles to Thomas P. Stovall, in the interests of the complainants. It is also true that the New England Mortgage Security Company did not elect to proceed against this land upon their title to it, but they treated their agreement with John It. Wimberly merely as a security for the debt. They sued their note in Pulton superior court, obtained judgment, and issued execution, which, according to the averments of Mrs. Tarver’s bill, they levied upon the land, and advertised it for sale for the purpose of perfecting title in her. Whether this last statement be true or not, if it also be true that H. S. Wimberly chooses to do so, he can pay off the accounts due on this execution, with all proper charges; and the New England Mortgage Security Company, and those who hold under it, will have no right to complain. But, if this be not true, the New England Blortgage Security Company and the Union Iteal-Estate Trust Company haying relinquished all their right in this land to Mrs. Tarver for a valuable consideration, she has the right to compel them to do for her which they might have done for themselves to proteet her title to the 650 acres of that tract intended for her. She therefore has plainly the right to insist that they should levy on the 650 acres of land, sell it at marshal’s sale, and bid at the sale to the full extent of their judgment against John R. Wimberly, and 0ms buy in the land, and make their right, which they have conveyed to her, a perfect title. If, however, the entire tract should bring a larger sum than the amount due on their judgmem. and if it should be bought in at the sale by other parties, Mrs. Tarver would be entitled to be paid from the proceeds a sum to be ascertained as an equitable apportionment of the value of her 650 acres as compared with the entire tract. This seems to be upon principles of equity incontestably true. The court cannot shut its eyes to the fact that it is at this moment' easily within the control of the complainants in the supplemental bill to make title to themselves by a judicial sale certainly in the 050 acres, and we repeat that whatever they might do for themselves, it being their legal right has been relinquished by them to Mrs. Tarver, and the court can compel them to do for her. It is also time, in view of the averments of his intervention, that H. S. Wimberly is entitled to have the Hunter place sold, and to bid, if he chooses, at the sale, or, if he does not bid, to claim any excess of the price for which these lands sold over and above the amount necessary to discharge the debt due to the New England Mortgage Security Company and controlled by J. F. F. Brewster and the Union Real-Estate Trust Company. For these reasons the demurrers to the intervention of H. S. Wimberly to the answers and cross bill of Mrs. Tarver will be overruled and denied.</p> <p>With regard to (he intervention of W. B. Sparks, the court is of the opinion that it lias no jurisdiction to consider the relief which that intervener seeks. He insists that he has a mortgage, executed by Mrs. Tarver, on these lands. If he has, lie may proceed in the state courts to assert the lien of his mortgage, and his equities, if they exist, need not be considered by this court. Mrs. Tarver insists that her individual property is not responsible for this debt. Whether it is or not, or whether the mortgage of W. B. Sparks will prevail against a title perfected by sale under the special lien of the mortgage to the New England Mortgage Security Company, controlled by the Union Real-Estate Trust Company, it is not necessary for this court to consider. For the reasons stated, let an order be taken striking the intervention of W. B. Sparks, and overruling the demurrers presented by the complainants.</p>

<p>In Equity. Petition filed by Oliver Ames, 2d, and others, receivers, against the Union Pacific Railway Company and others.</p> <p>The receivers herein appear by petition, and state that, by their general order No. 1, they have retained in their employment all of the officers, employes, agents, and servants who had been theretofore in the employment of the corporations defendant, but that such employment had ceased, and a fresh engagement began, when 'the defendant companies went into their hands; that because of the general decline of the earning capacity of tiie company’s system of railways, and of the task imposed upon them of conducting the insolvent trust estate in their care in as economical manner as possible, they investigated tlie rules, regulations, and schedules g-overning their employes prior to (he time the companies came into their hands, as also the wages paid, and made a comparison with the wages paid upon other railway systems similarly situated, and found that the wages they paid were in excess of the prevailing rates paid for similar classes of labor in a like region of country. The receivers pray for an order sustaining them in their revision and rearrangement, of the rules, regulations, schedules, and wages of the nonsalaried employes, as promulgated, and that the employes be directed to refrain from conspiring with intent to induce a strike upon the system of railways operated by the receivers.</p>

Attachment by the H. B. Claflin Company against H. Kern & Son. An intervention was filed by A. Shwartz & Sons. Plaintiff obtained a personal judgment. Defendants and interveners bring error. Held: surrendered by Mr. Dreyfous and Mr. Benedict to the insolvency court, and the terms and conditions upon which it was deposited and held.

<p>At Law. On demurrer. Petition of John W. Powell to recover of the United States compensation for services rendered by him as a deputy marshal.</p>

<p>1. Insurance — Contract—What Law Governs.</p> <p>A Vermont corporation did business as a life insurance company in the state of New York, having an office and an agent in New York city. A resident of New Jersey effected insurance in such company by delivering, through his agent, an application to its general agent in New York, and receiving the policy there from such general agent. 'Held, that the contract of insurance was a New York contract, and subject to the laws of that state as to forfeiture for nonpayment of premiums.</p> <p>2. Same — Forfeiture—Nonpayment of Premiums — Notice—Time.</p> <p>Laws N. Y. 1877, c. 321, prohibits the forfeiture of life insurance policies for nonpayment of the premiums when they fall due, unless the insurer shall mail to the assured a notice of the amount of the premium due, with other particulars, in which case the policy shall be void for failure to pay within 30 days after the notice is mailed, with a proviso that the insurer may serve such a notice on the assured “at least thirty days prior to the day when the premium is payable,” in which case default on that day will avoid the policy, according to its conditions. On November 2, 1891, an insurer mailed to one of its policy holders a notice that his premium would be due December 2, 1891, and that nonpayment on that day would avoid his policy. 'Held, that the notice was ineffectual, for the day of mailing is to be excluded, in the computation of time, and hence it was not mailed 30 days prior to the day when the premium fell due.</p> <p>3. Same — Surrender of Policy.</p> <p>An insurance policy had been pledged as collateral security for a loan. After the death of the assured, his executors tendered to the creditor the amount of the loan, with interest, and demanded the policy. He refused to deliver it up, and the insurer, with full knowledge of these facts, procured a surrender of the policy from the creditor to itself. 'Held., that the tender extinguished the creditor’s title to the policy; and, as the insurer acquired by the surrender no greater rights than he had, it is liable to an action at law on the policy by the representatives of the assured.</p>

Action by Martba Reed against tbe Pennsylvania Railroad Company. There was judgment for tbe plaintiff below, (56 Eed. 184,) and defendant brings error.

<p>1. Horse and Street Railroads — Negligence—Instructions.</p> <p>In an action against a street-car company for injuries received by plaintiff, caused by the car starting while he was trying to get on, it is reversible error for the court, after instructing the jury that if the car stopped a reasonable length of time, and plaintiff neglected to get on till the train had started, he could not recover, to omit to charge them to the effect that, even though the car stopped a reasonable time, yet if it started suddenly and violently, while plaintiff was in the very act of getting on, the company would be liable if its employés knew or ought to have known of his presence.</p> <p>2. Same.</p> <p>Where the evidence shows that the train consisted of a grip and two trailers, and thát plaintiff passed the trailers and endeavored to board the grip, it is error to assume in the instructions that plaintiff might have boarded one of the trailers, where the proof does not show whether the trailers could be entered from the side of the track on which plaintiff was standing, since the burden of proving contributory negligence is on the defendant.</p>

Robert S. Burke, the defendant in error, brought his action in the circuit com’t of the United States for the eastern district of Texas, at Galveston, against the Southern Pacific Company, plaintiff in error, to recover damages for personal.injuries, alleged to have been caused by the gross negligence of the company while he was an employs of the same, by which he lost his right arm, and suffered other serious injuries, to his damage $10,000.

<p>Municipal Corporation — Power to Issue Bonds.</p> <p>Under Act Ind. 1847, incorporating the city of Evansville, and authorizing the city “to borrow money for the use of the city,” the city has power to issue bonds for money so borrowed. Railroad Co. v. Evansville, 15 Ind. 395, followed.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Alabama.</p> <p>Action by Thomas M. Scruggs against John F. Scott and H. S. Freeman upon two promissory notes. Plaintiff obtained judgment. Defendants bring error.</p>

<p>1 Appeal from the Circuit Court of the United States for the East-; ern District of Louisiana.</p> <p>Suit by James N. Ogden and others against the United States to recover, for work done under a contract to construct a levee.. Plaintiffs were to be paid 28$ cents per cubic yard, and they had been paid in full; according to the estimate of the work made by Capt. Daniel C. Kingman, the engineer officer in charge of the work. They claimed, however, that they had done more work than that for which they had been paid. Defendant obtained judgment. Plaintiffs appeal.</p>

<p>Error to the Gircuit Court of the United States for the District of Connecticut.</p> <p>Action by Mary Brady against the United Life Insurance Association. The trial court directed a verdict for defendant, and plaintiff brings error. Judgment affirmed.</p>

<p>Death by Wrongful Act — Liability of Railroad Receiver.</p> <p>The Texas statute giving a right of action when the death of any person is caused by the negligence of “the proprietor, owner, charterer or hirer” of any railroad, or their servants (Rev. St. art. 2899), creates no right of action against a railroad receiver. Turner v. Cross, 18 S. W. 678, 83 Tex. 218, followed.</p>

. Action by the Memphis National Bank against Ben W. Sturdivant upon a promissory note. Plaintiff obtained judgment. Defendant brings error. Defendant in error declared below against the plaintiff in error in assump-sit on a promissory note which was in the following words and figures: “No. 2. “§7,500.00.

<p>In error to the Circuit Court of the United States for thé Northern District of Mississippi. .</p>

At Law. Indictment charging E. H. Jefferson, master of the steam snag boat Skagit, with unlawfully requiring laborers employed in removing obstructions to navigation to work moré than eight hours in a single day, in violation of chapter 352, Laws 52d Cong. (27 Stat. 340). Jury trial. Verdict, “Rot guilty.”

<p>At Law. Indictment of W. Bowen Moore and Achille J. Oishei under Rev. St. § 5421. Heard on demurrer.</p>

At Law. Indictment against Daniel F. Beatty for using the United States mail with intent to defraud. On demurrer and motion to quash.

This is an indictment against William Cuta jar for violating seo.tion 9 of the customs administrative act of June 10, 1890, by making an entry of imported cheese by means of a false invoice and other papers. Heard on demurrer to the-indictment.

.At Law. Appeal by Charles Foster, secretary of the treasury, from the decision of the United States hoard of general appraisers in favor of Claas Vocke & Co., importers.

<p>Patents — Infringement Suits — Pleading.</p> <p>Failure ro aver Unit the invention of the patent has not been previously patented or described in any printed publication is a, defect which may be taken advantage of by special demurrer.</p>

This is a bill filed by Charles W. Holtzer against the Consolidated Electric Manufacturing Company and others for infringement of a patent for an improved construction of galvanic batteries.

This is a hill hv William Mack against Levy, Dreyfus & Co. for infringement of letters patent No. 268,112, issued November 28, 1882, to complainant. On motion for rehearing. The prior opinion is reported in 59 Fed. 408.

<p>This is a bill in equity filed by John H.' Sessions against William B. Gould and others for infringement of patents for trunk fasteners,</p>

<p>Trade-Marks — Numerals Applied to Specific Remedies.</p> <p>Numerals used by a medicine company to identify specific remedies for various ailments are, in effect, descriptive terms, and their use will not be protected as a trade-mark.</p>

<p>1. Copyright — Judicial Knowledge as to Originality.</p> <p>In a suit for infringement of copyright in a dramatic composition, the court will rarely interpose its judicial knowledge to the extent of finding on demurrer against the allegations of the hill touching questions of originality.-</p> <p>2. Same — Allegation op Authorship.</p> <p>A bill for infringement of copyright alleged that complainant was the proprietor of a certain dramatic composition “written or composed” by citizens of the United States. Held, on demurrer, a sufficient allegation of authorship, in tho absence of specific exception.</p> <p>3. Subjects op Copyright.</p> <p>The introduction, skeleton, and chorus of a “topical song," — part of a dramatic composition, — though designed merely to amuse, though possessing little literary merit or originality, may be subject to copyright, if of value for the purposes for which they were designed.</p>

<p>1. Maritime Liens — Wharfage—Domestic Vessels.</p> <p>A maritime lien arises for wharfage furnished to domestic vessels, when the wharfage is obtained in the ordinary course of navigation on the engagement of the master or officers of the ship.</p> <p>2. Same — Credit of the Vessel.</p> <p>To sustain a maritime lien, there must he in all cases, either in fact or by presumption of law, a credit of the ship; and when such credit is negatived by the evidence no such lien, whether maritime or statutory, will be recognized.</p> <p>3. Same — Personal Contract for Wharfage. — Other Considerations Included.</p> <p>Where wharfage was furnished to a steamship company under a contract which, for 'a single price per day, embraced other valuable considerations, the supply of which would give no lien, on the ship, and which it was impossible to separate from the wharfage, and the contract did not look to any credit of the ship, but only to the personal responsibility of the company, it was held that no maritime lien was created for the wharfage.</p>

This was a suit by Henry. Werner against Franklin Murphy, receiver of the Orane-Galioone-Barnet Company, and others, to set aside alleged fraudulent conveyances, and enforce collection of certain notes made by that company. Defendants demurred.

<p>1. Removal op Causes — Remand.</p> <p>A cause may be remanded prior to tbe beginning of tbe term at which (Act 1887-88, § 3) the removing’ defendants are required to file the transcript in the federal court, when the party moving to remand gives proper notice, and himself files the transcript. Delbanco v. Singletary, 40 Fed. 177, and Mills v. Newell, 41 Fed. 529, followed. Kansas City & T. By. Co. v. Interstate Lumber Co., 36 Fed. 9, disapproved.</p> <p>2. Same-Petition — Nonjoinder of a Defendant.</p> <p>Failure of one of the defendants to join in the petition is fatal to the right of removal (Act 1887-88) when there is no separable controversy.</p>

Suit by the Georgia Packing Conipany, W. L. Henry, and others against the mayor and council of the city of Macon to enjoin the enforcement of a city ordinance. The averments of the bill are those following: Tlie complainants are wholesale and retail butchers in the city of Macon, in this district. They supply meats to the people of Macon and the surrounding country, dealing exclusively in dressed meats. They do not slaughter.

<p>1. Circuit Court on' Appears —Jurisdiction of Constitutional Questions.</p> <p>The questions whether the business of dealing in western meats constitutes interstate commerce (Const, art. 1, § 8, par. 3), and whether certain city ordinances discriminate against such commerce, involve the construction or application of the constitution, and cannot, therefore, he considered by the circuit court of appeals. Judiciary Act, March 3, 1891, §§ 5, 6.</p> <p>2. Same — Appeal from Interlocutory Decree.</p> <p>The circuit courts of appeal can have no jurisdiction of an appeal from an interlocutory decree granting or continuing an injunction, under section 1 of the judiciary act of March 3, 1891, if the case is of such a character that they would have no jurisdiction of an appeal from a final decree therein.</p>

<p>1. Courts — Conflict of Jurisdiction — Creditor's Bill.</p> <p>A creditor’s bill filed in a federal court alleged that one oí the defendants therein had made an assignment, in which plaintiff was a preferred creditor, and that the other defendants, though having notice of this assignment, had taken possession of the property, and had converted a part of -it. These defendants filed a plea alleging that they had sued in the state court to have the assignment set aside, as fraudulent, and that a receiver had been appointed in such suit. 'Held, that the pending of this suit was no bar to the bill in the federal court, especially as plaintiff was not a party in the state court.</p> <p>2. Same — Receiver of State Court.</p> <p>The possession of the property by the receiver of the state court is no bar to the plaintiff’s bill, as against those who instituted the suit in which the receiver was appointed.</p> <p>3. Same.</p> <p>Such bill cannot be maintained against the receiver, however, without permission for that purpose first obtained from the state court.</p> <p>4. Equity — Pleading—Objections to Bill — Answer.</p> <p>The objection.that the bill cannot be maintained because it shows that plaintiff was given preference for an amount greater than that which was actually due him, and hence that the assignment was fraudulent, can only be raised by answer.</p>

Bill by D. H. Chamberlain, receiver of the South Carolina Railway Company, against George H. Walter, Hugh Ferguson, and others, sheriffs and county treasurers of the state of South Carolina, seeking the instructions of the court in respect to the assessment and levy of a tax on the property of the railway company.

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>This is an appeal from a decree of foreclosure and sale of the Kentucky Union Railway. That railway has been constructed and is in operation between the city of Lexington, Ky., and the town of Jackson, Breathitt county, Ky., a distance of about 95 miles, a few miles of which were completed by the receiver in the case, under order of court, and with money raised by the issue of receiver’s certificates. The complainants in the original bill were J. Kennedy Todd & Co. and the Central Trust Company. The former claimed to be general creditors of the Kentucky Union Railway Company to the amount of $270,000, and the Central Trust Company is (he trustee in the first mortgages executed by the railway company t,o secure the sum of $2,500,000 of bonds. The defendants were the railway company and the Columbia Finance & Trust Company, the trustee in the second mortgage. The second mortgage was to secure the sum of $1,300,000 of bonds, of which $800,000 were outstanding.. Both the first and second mortgage bonds were absolutely guarantied, both principal and interest, by the Kentucky Union Land Company, which company was not made a party to the suit. Upon the allegations of insolvency the court appointed a re-receiver to take charge of the railway company. During the progress of the cause, many intervening petitions were filed, setting up claims for liens upon the property, but no question arises upon this appeal concerning them. Prom the final decree of foreclosure and sale the Columbia Finance & Trust Company, trustee in the second mortgage, has prosecuted its appeal without supersedeas, and the Central Trust Company, trastee in the first mortgage, has prosecuted an appeal with supersedeas; the only error assigned in the latter case being also one of those assigned in the former. The appeal of the Central Trust Company was disposed of at a former term by a stipulation entered into by all of the parties interested therein, by which the decree in the matter complained of was by agreement modified. The errors now to be disposed of arise alone upon the appeal of the Columbia Finance & Trust Company.</p>

This was a petition presented by Thomas F. Oakes, Henry 0. Payne, and Henry 0. Rouse, Avho were appointed receiver^ of the projierty of the Korihern Pacific Railroad, in a suit brought against that company and others by the Farmers’ Loan & Trust Company, setting forth that their employés are contemplating a strike for the purpose of preventing a proposed reduction of wages, and praying that they be enjoined therefrom.

<p>1. Appeal — Adequate Remedy at Law.</p> <p>Where the objection that there is an adequate remedy at law is taken for the first time on appeal, the court is not obliged to entertain the same, where the subject-matter of the suit is of a class over which a court of chancery has jurisdiction.</p> <p>2. Interpretation op Deed — Family Home. .</p> <p>A purchaser of real estate took a deed to himself, for the use and benefit of his wife and children, the sole object being to provide a family home. He subsequently obtained a divorce, the decree providing that he should be discharged from any apparent trust growing out of the deed. Held, that the decree was conclusive that the children were not tenants in common; that the beneficial interest of the wife and children ceased when they left the home; and that, therefore, a subsequent sale by the father to pay off mechanics’ liens for improvements, of which sale he obtained confirmation by a chancery court on publication against his children, who were then nonresident minors, divested any possible interest remaining in them, even if the publication was defective.</p>

This is a suit in equity, brought by three stockholders of the Sutro Tunnel Company, a California corporation, viz.; Frank J. Symmes, as owner… Held: which finally culminated in the adoption of a circular to the stockholders of the Sutro Tunnel Company, which was promulgated by the executive committee on the 15th of November, 1887, and which, after commending and approving the report of Sutro resolved, among other things: “That the following plan of reorganization, without…

<p>In Error to the Circuit Court of the United States for the Northern District of Florida.</p> <p>This was an action by the Marion Phosphate Company against F. D. and W. M. Cummer, copartners trading as F. D. Cummer & Son, and the F. D. Cummer & Son Company, a corporation, • in which two separate actions, brought by plaintiff against defendants in a court of the state of Florida, and removed to the United States circuit court, were consolidated. Om trial by the court without a jury, judgment was rendered for defendants. Plaintiff brought error.</p>

<p>Evidence — Parol to Vary ’Writing-Release.</p> <p>Parol evidence that the consideration for a release pleaded in bar of the action was different from that named therein, and that such consideration was never paid, is inadmissible, as being an attempt to vary a written instrument by parol.</p>

This was an action by Sarah T. Kinney, as administratrix of John Cl Kinney, for services and disbursements by Mm as United fc-siates marshal and as jury commissioner. Judgment was. rendered for plaintiff for part of the items claimed (54 Fed. 313), but was reopened as to certain items.

This is an action by one Devere against the Delaware, Lacka-wanna & Western Bailroad Company. Heard on motion to quash the writ of summons for irregular service. ' ;

<p>Sale — Warranty—Evidence—Custom.</p> <p>In March, 1888, certain packers of corn sold 2,000 cases “best packing of 1888 corn,” with “usual guaranty against, swells.” The evidence showed conclusively that “swells,” as used in the trade, included all cans whose contents were sour; that the “usual guaranty” was until July 1st of the following year; and that it was customary before that time to notify the seller 'of the number of spoiled cans, and return the goods. The evidence, failed to show that the words “best packing of 1888” had any definite meaning in the trade. >ReW, that these words carried no implied warranty of quality, and that in the absence of any notice or return of the spoiled goods, according to the conditions of the warranty against swells, there could be no recovery for the spoiled corn.</p>

' This is an indictment under Rev. St. § 5440, against John Wilson, O. J. Mulkey, William Dunbar, P. J. Ban non, and others for conspiracy to commit the offense of aiding and abetting the unlawful landing of Chinese laborers in the United States. Defendants Mulkey, Dunbar, and Bannon were found guilty, and moved for a new trial.

<p>This was a suit by the H. W. Johns Manufacturing Company against Henry M. Robertson and George T. Sinclair for infringement of a patent. On final hearing.</p>

<p>1. Patents — Novelty— Fastening Stabs to Flags.</p> <p>There is no novelty in fastening stars to the opposite sides of a flag by a method which had previously been employed to fasten letters to blankets, patterns to embroidery, and patches to fabrics.</p> <p>2. Same.</p> <p>The Bowman patent, No. 469,395, for an improvement in the method of making flags, is void for want of novelty.</p>

<p>Libel by John Bain and others against the Sandusky Transportation Company and another to recover damages for wrongful arrest ánd imprisonment.</p> <p>Libel in personam against the Sandusky Transportation Company, as owner oí the schooner S. L. Watson, for alleged tortious acts of the master. The master was also named as respondent in the libel, but is not before the court, as he was not served, has not appeared, and no ownership is shown in him. The libelants are four seamen who shipped on board the schooner S. L. Watson, at Sandusky, in September, 1889, for a voyage described in the so-called “shipping articles” as “from Sandusky to Toledo, Buffalo, and other ports, and back to Lake Brie port.” They claim that these articles were signed on shipboard, after leaving port, and without reading, while the master states otherwise. The vessel was loading grain at Toledo for Buffalo. 'Arriving at Buffalo, she took on coal for Milwaukee, and ivas thence to proceed to Escanaba for iron ore for a Lake Erie port,--designated in the testimony as a “triangular trip.” After arrival at Milwaukee, it appears that the libelants were persuaded by ¿members of a union organization to become dissatisfied with the rate of wages fixed in their agreement, and left the vessel without notifying the master of their intention; but they testify that they informed the mate, and he said “All right.” Later, the master met thorn on shore, and urged their return to the vessel, but they refused. Tbe master then, upon advice of counsel, placed the matter before a United States court commissioner; and a complaint was thereupon sworn out by the master against the libelants, charging desertion, under section 4596, Ttev. St. XT. S. They were arrested, bound over for trial, and, in default of bail, were committed, and held in jail two months, until hearing was had in the district court upon demurrer to the information. The court ruled thereupon (XT. S. v. Bain, 40 Bed. 455) that section 4596 ivas not applicable to navigation on the lakes; therefore, no offense was charged, and demurrer sustained. The men were then released, but navigation had closed, and they were left, without employment, among strangers. The libel'asserts that this imprisonment was wrongful and illegal, and claims damage against the owners of the vessel, as for false imprisonment. The elements or measure of damage are stated in the brief of libelants as follows: (1) The wages earned and unpaid; (2) wages at the going rate during the period of detention in jail; (3) necessary expenditures occasioned by the detention; (4) and suggestion that libelants be, permitted to amend their libel to claim punitory damages. There is no showing that the owners advised, authorized, or approved this action by the master, and they expressly deny any such sanction.</p>

This was a libel for salvage filed by the Oharente Steamship Company, Limited, and others, against tbe steamship Dupuy De Lome, of which the Compagnie Commerciale de Transport a Vapeur Franchise and others are claimants. There was a decree for libelants, finding the salved property to be worth $379,800, and awarding one-twelfth thereof as salvage (55 Fed. 93), and the claimants appeal.

<p>1. Maritime Liens — Innocent Purchasers — Taking Vessel fob Debt.</p> <p>One who takes a barge in payment óf a debt is not an innocent purchaser, so as to entitle him to the benefit of the rule that, when the business in which a vessel Is engaged is divided into distinct. seasons of activity, old claims must be enforced before the debts growing out of the next season are incurred.</p> <p>8. Same — Extinguishment—Taking- Note.</p> <p>The taking of a note does not extinguish the lien, unless such was the understanding of the parties.</p>

<p>Collision — Anchored Vessel — Breaking Adrift — Insecure Anchorage.</p> <p>When the owner of an anchored vessel has reasonable notice of the insufficiency of his anchorage, and the danger of drifting in a. storm, he takes the risks of such drifting, and a collision caused thereby is due to his neglect, and cannot be held to be inevitable.</p>

<p>These actions were brought in a state court, and thence removed to this court by defendant. They are now heard together on motion to remand.</p>

This was a bill in equity filed by the United States against the E. C. Knight Company, the Spreckels Sugar Refining Company, the Franklin Sugar Refining Company, the Delaware Sugar House, the American Sugar Refining Company, and numerous individuals, to have canceled and declared void certain contracts made by the American Sugar Refining Company with the other defendants, as being the result of a combination or conspiracy to monopolize or restrain interstate and foreign…

<p>This was a suit by the Reorganized Church of Jesus Christ of Latter-Day Saints against the Church of Christ and others to declare a trust as to certain real estate in favor of the complainant.</p> <p>This is a bill in equity to declare a trust in favor of the complainant, -a religious body, as to certain real estate situate at Independence, county of Jackson, state of Missouri, known as the “Temple Lot.” The controversy is between two divisions of what is popularly known as the “Mormon Church.” The lot in controversy was bought in 1832 by one Partridge, bishop of the then Church of Jesus Christ of Latter-Day Saints, with its central organization at Kirtland, Ohio, with funds furnished by said church for such purpose. In the view of the church this spot was to be the future site on which was to be erected the great temple of Hie church, and was to be to it the New Jerusalem. In 1839 said Partridge made the following deed, declaratory of said trust:</p> <p>“Know all men that whereas there was money put in my hands, to wit, in the hands of Edward Partridge, by Oliver Cowdery, an elder in the Church of Latter-Day Saints, formerly of Kirtland, state of Ohio, for the purpose of entering lands in the state of Missouri, in the name of and for the benefit of said church; and whereas, I, Edward Partridge, was bishop of and in said church, he took said money and funds thus put in his hands and entered the land in his own name, in the county of Jackson, state of Missouri, in the name of Edward Partridge, the signer of this deed: Now know ye, for the furthering the ends of justice, and as I have to leave the state of Missouri by order of Governor Boggs, and with me also our church, I do, for the sum of one thousand dollars, to me in hand paid by said Oliver Cowdery, do give, grant, bargain, and sell to John Cowdery, son of Oliver Cowdery, now seven years old,- and Jane Cowdery, three years, and Joseph Smith Cowdery, one year old, all the lands entered in my name in the county of Jackson, in the district of Lexington, in the state of Missouri. Said Edward Partridge, the first party, and signer of this deed, does also sell, alien, and confirm to the aforesaid John Cowdery all real estate and lands he hath both entered as aforesaid, and all lie owns in his own name by private purchase and holds by deed of gift, being intended for the use of the Church of Latter-Day Saints or otherwise. This ‘ sale is to embrace all lots of all sizes, situated in Independence, and to embrace the lot known as the ‘Temple Lot,’ and all other lands of whatever description said Partridge, the first party, is entitled to in said Jackson county, ' in the state of Missouri. Said Partridge also agrees to- amend this deed to said Oliver Cowdery at any time for the purposes aforesaid.</p> <p>“Given under my hand and seal on the date above written.</p> <p>“Edward Partridge. [Seal.]</p> <p>“E. Gi Gates, Witness.”</p> <p>“State of Missouri, Caldwell County — ss.:</p> <p>“Be it remembered, that on the 25th day of March, 1839, before the undersigned, one of the justices of the county court in and for said county, came Edward Partridge, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing as party thereto, and did acknowledge the same to be his act and deed for the purposes therein mentioned. Elias Higbee, J. C. C. C.”</p> <p>“The foregoing deed, with the acknowledgment thereon from Edward Partridge to lane Cowdery et al., was filed and duly recorded in my office on the 7th day of February, A. D. 1870. A. Comingo, Recorder,</p> <p>. “By H. G. Goodman, Deputy.”</p> <p>Partridge left the state about that time, and died in 1841. One Poole, who lived at Independence, Mo., in 1848 hunted up the heirs, five in number,' of said Partridge, in the state of Iowa, and obtained from three of them a purported deed (acknowledged- in Missouri), to the 03 acres of land at Independence, so deeded by said Partridge to Oliver Cowdery, including the temple lot, which lot contains about 2½ acres. The said trust deed from Partridge was not put on record in said Jackson county, Mo., until 1870. Other mesne conveyances of this property were made under the Poole deed. The lot in question remained vacant and unoccupied until 1882, when the respondent church took possession of it, claiming title thereto under deeds made to one Hedrick in trust for the respondent church, and by adverse possession. This action was brought within 10 years after respondent took possession of the property. The evidence in the case tends to show that the said grantees under the Partridge deed died during their minority, and that one Marie Louise Johnson is the sole surviving sister and heir of said Cowdery children. On the 9th day of June, 1887, she and her husband, Charles Johnson, executed and delivered a deed of quitclaim to said lot to George A. Blakeslee, bishop of the complainant church, in trust for the benefit of said chinch, which deed was duly acknowledged on. the 9th day of June, 1887, and filed for record on the 10th day of June, 1887, in the recorder’s office of Jackson county, Missouri. The complainant clmrcli was thereafter duly incorporated under the laws of the state of Iowa. The other important facts of the case will sufficiently appear from the opinion herein.</p>

This was a bill for an injunction by the Walla Walla Water Company, a corporation, against the city of Walla Walla, to restrain 'the latter from proceeding to construct and establish works for supplying the city with water, and issuing negotiable bonds whereby to obtain money for that purpose. Application for injunction pen-dente lite granted, and demurrer to bill of complaint overruled.

This was a bill for an injunction by Julia A. Moore, a nonresident taxpayer of tlie city of Walla Walla, to prevent the incurring of a bonded indebtedness for waterworks. Application for injunction pendente lite denied, and demurrer to bill of complaint sustained.

<p>1. FeDEEAB COURTS — JURISDICTION—CITIZENSHIP.</p> <p>In a suit against an administrator there must he diversity of citizenship between him and the complainant; and the fact that his decedent possessed the requisite citizenship at the time of the transactions giving rise to the suit, and at the time of his death, is immaterial.</p> <p>8. Laches — Pueadins—Demurrer.</p> <p>A bill against an administrator alleged that complainants loaned money to defendant’s decedent upon his representation that he owned certain lands in New Jersey, and his promise to give a mortgage thereon; that he never gave the mortgage, and in fact did not own any such lands; a.nd that tills fact was not suspected hy complainants until the filing of the hill, ten years after the loan was made. By the New Jersey statute the claim was barred in six years, and there was no allegation of a subsequent promise. Held that, as title is a matter of record in New Jersey, so that a single inquiry would have disclosed the fraud, complainants were so manifestly guilty of laches as to require a dismissal of the bill upon demurrer; and, furthermore, that the allegations in respect to the discovery of the fraud were too vague to sustain the bill.</p>

This is a bill filed by Oliver Ames, 2d, and others, against the Union Pacific Railway Company and others, for the appointment of receivers, etc. The canse is now on rehearing in respect to certain questions on which conflicting decisions were rendered by this court while sitting for the district of Nebraska and for the district of Golorado, respectively. For the latter decision, see 60 Fed. 674.

<p>This was a suit by the Gulf States Land Company against C. Harrison Parker, state tax collector, and the city of New Orleans, to restrain the sale of land for state and city taxes.</p>

<p>1. Wr.rr or Error — Issue and Return— Dismissal.</p> <p>A writ of error will not be dismissed because returnable within 30 days, as prescribed by rule of court, although authorized by order of the judge allowing it to be made returnable within 00 days, or because the citation is returnable withiu 30 days, and not on any specified day, or because the prayer for reversal was filed after the assignment of errors.</p> <p>2. Circuit Court of Appeals — Jurisdiotion.</p> <p>A circuit court of appeals has jurisdiction of a case in which the jurisdiction of the court below is in issue, or which involves the construction or application of the federal constitution (Act March 3, 1891, § 6), if other questions are also involved.</p> <p>3. Railroad Compartes — Receivers—Damages fkom Operation op Road.</p> <p>Where earnings of a railroad while in the hands of a receiver, moro than sufficient to pay claims for damages from negligence in the operation of the road by him, are diverted into betterments, of which the railroad company has the benefit on the return of the property to it, an action at law on such a claim may be maintained against the company, and a personal judgment may be rendered against it thereon. Railway Co. v. Johnson, 13 S. W. 403, 70 Tex. 421, followed.</p> <p>4. Same — Discharge op Receiver — Limitation oe Time fob Presenting Claims.</p> <p>An order discharging the receiver of a railroad, restoring the property to the railroad company, and requiring all claims against the receiver to be presented to the court before a certain date, in default whereof they shall be barred, does not preclude the recovery, on a claim not presented within that time, of a personal judgment against the railroad company, on the ground that it has received in betterments earnings out of which such claim should have been paid. Railway Oo. v. Johnson, 13 S. W. 463, 76 Tex. 421; Id., 14 Sup. Ot. 250, followed.</p>

. This was an action of ejectment brought in a court .of Idaho territory by the Washington & Idaho Railroad Company against the Coeur d’Alene Kailway & Navigation Company and the Northern Pacific Railroad Company to recover land' alleged to constitute part of plaintiff’s right of way. On the admission of Idaho as a state, the case was removed by defendants to the federal circuit court. The case was tried to the court without a jury, and judgment was entered .for defendants.

<p>1. NEGLIGENCE — PROXIMATE CAUSE.</p> <p>An obstruction in a highway is not the proximale cause of an injury sustained by one slipping and falling Ihereon, unless its presence cansed, or contributed to cause, the fall.</p> <p>2. Same — Question por Jury.</p> <p>Where the jury may reasonably infer that one crossing a highway had to jump over an obstruction m reach a platform at the side of the way, in such a way 1hat his foot .slipped on the platform, and he fell backward on the obstruction, it is for them to determine whether the presence of the obstruction contributed to the fall.</p>

This was a writ of error to the judgment of the circuit court of the United States for the eastern district of Tennessee, northern division, in favor of the East Tennessee, Virginia & Georgia Railway Company, hereafter referred to as the “Tennessee Company,” against the Louisville & Nashville Railroad Company, hereafter referred to as the “Louisville Company,” for §11,219.94, as damages for an injury to a sleeping car caused by the collision with it of a freight train of the…

<p>1. Master and Servant — jSTegmgunck—Question for Jury.</p> <p>A switchman riding on the front of a switch engine was killed by the derailing- thereof, which was caused by sand washing down from a pile near the track, and becoming- embedded between the rails. The accident occurred about 6 o’clock in the morning, and there liad been a heavy rain an hour or two before. The track liad been examined at 12 the preceding night. Just before the accident, a wall, undermined by the rain, had fallen upon a passenger train, and at the time the section boss and his men were engaged in rescuing the dead and injured. Held,, that it could not be said, as matter of law, that the company was guilty of negligence in not sending somebody to examine the track after the rain, and the question was one for the jury.</p> <p>2. Same — Contributory Negligence.</p> <p>An intimation of the danger was signaled by another switchman to deceased, as he stood on the front of the approaching engine, but apparently he did not see it; and there was some evidence that the sand was over the rails. Held, that as it was the duty of deceased to watch for signals, and observe obstructions, is was not apparent, as matter of law, that he was not guilty of contributory negligence, and this question, too, was one for the jury.</p> <p>3. Same — Evidence—Flagman at Street Crossing.</p> <p>Ordinances requiring railroad companies to keep flagmen at street crossings are not intended for the protection of the company’s employés; and therefore, in an action for negligently causing the death of a switchman riding on a switch engine, which was derailed by an obstruction at a crossing where no flagman was stationed, it is error to admit such an ordinance in evidence.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was a petition for a rehearing.</p>

<p>In Error to the district Court of tbe United States for the Middle District of Tennessee.</p> <p>The appellant sued the appellees, Hill and the sureties on his sheriff’s bond, and filed this declaration:</p> <p>“The State of Tennessee, for the use of the United States of America, Plain-tiif, vs. Wm. J. Hill, H. 0. Hudson, James W. Johnson, R. G. Fehr, J. G. Sawyer, T. M. Graham, B. H. Beazeley and V. E. Skwab, Defendants. (No. 832.)</p> <p>“The plaintiff sues the defendants for this: That on the 1st day of January, 1892, and on divers other days before said date, the defendant William J. Hill was the sheriff of Davidson county, Tennessee, within said middle district of Tennessee, duly elected, qualified, and acting as such sheriff. That on the 1st day of September, 1890, he, the said William J. Hill, as required by the law of the state of Tennessee, executed a bond in the penal sum of $40,000, with the defendants H. 0. Hudson, Jas. W. Johnson, R. G. Fehr, J. G. Sawyer, T. M. Graham, B. H. Beazeley, and V. E. Shwab as sureties thereon, and they, the said sureties, executed said bond, and it was approved and delivered; that said bond was conditioned as required by the law of Tennessee, in eases of sheriff’s bonds, and was, among other things, conditioned that he, the said William. J. Hill, would ‘faithfully execute the office of sheriff of Davidson county, and perform its duties and functions during his continuance in office,’ etc. A certified copy of said bond as it was delivered to, executed before, and accepted and approved by the judge of the county court of Davidson county, and filed as provided by law, together with a duly-certified copy of the oath of office taken by the said William J. Hill as sheriff, is here to the court shown, and made a part hereof. That among the duties of said William J. Hill as sheriff, as provided by law, is the following, to wit: ‘To take charge and custody of the jail of said county, and of the prisoners therein; to receive those lawfully committed, and to keep them, himself or by his deputies or jailer, until discharged by law.’ That by the statutes of the state of Tennessee, in such cases made and provided: ‘(1) The county jail is used as a prison for the safe keeping and confinement of all persons committed thereto under the authority of law. (2) The foregoing provisions extend to persons committed by authority of the courts of the United States. (3) The sheriff is liable for failing to receive and keep all persons delivered under the authority of the United States to the like pains and penalties as to similar failures in the case of persons committed under the authority of the state. (4) The sheriff has the custody and charge of the jail of his county, and of all persons committed thereto, and may appoint a jailer,,for whose acts he is civilly responsible. (5) It is made the duty of the sheriff to take charge and custody of the jail of his county, and of the prisoners therein; to receive those lawfully committed, and to keep them himself or by his deputies or jailer until discharged by law.’</p> <p>“And the plaintiff says that the conditions of said bond, executed by the defendants as aforesaid, have been broken in this, that is to say: One Thomas O. Boalen, at the October term, 1891, of the United States circuit court for the middle district of Tennessee, was duly indicted by the grand jury of said court for violation of sections 5440, 545S, 5477, and 5469, of the Revised Statutes of the United States, to wit: ‘For stealing, embezzling, and taking out of the street mail box at the corner of Olmrch and Market streets, in the city of Nashville, a letter containing a check, and he unlawfully opening it, and embezzling said check therein contained. For talcing from the street mail box another letter, and opening it, and embezzling said check therein contained. For conspiring with Charles Hubbard, alias Charles Dymond, and Charles J. K. Stratton, alias Harry Armstrong, to commit the offense of breaking open said mail box and taking therefrom said two letters, and opening the letters and embezzling two checks therein contained. For willfully and maliciously destroying mail matter deposited in said letter box. For feloniously having in his possession certain keys suited to locks on the street mail boxes in use by the United States for receiving mail in the city of Nashville, etc. For stealing and taking from an authorized depository for mail matter, to wit, the street mail box in the city of Nashville, two letters deposited in said mail box. For opening and embezzling and destroying two drafts, which he, the said Thomas C. Boalen, took out of a street mall box, in the city of Nashville, one of said letters containing a draft; for §(>01.05, and another a draft for §352.50, and embezzling- said two letters and drafts.’ That, after said indictment was found as aforesaid, the said Thomas C. Boalen was arrested by due process of law on a warrant sworn out before Will Haight, a United States circuit court commissioner, at Atlanta, Ga., on the-day of November, 1801, and thereupon, to wit, on the 9th day of November, 1891, an order was made by the circuit court of the United States for the northern district of Georgia ‘that he, the said Thomas C. Boalen, be removed and transferred to the circuit court for the middle district of Tennessee,’ etc. That thereafter, to wit, on or about the 10th day of November, 1801, the United States marshal for the northern district of Georgia, as he was ordered to do, did transfer the said Boalen to the middle district of Tennessee, and there delivered him to O. B. Harrison, United States marshal for the middle district of Tennessee. That thereupon, under an order of commitment duly made by H. M. Doak, Esq., United States circuit court commissioner for the middle district of Tennessee, being an officer authorized by law to issue said order, to wit, on the 10th day of November, 1801, which was during the time for which said hond aforesaid was executed by the defendants, the said United States marshal did commit the said Thomas G. Boalen to the jail of Davidson county, within said district, and to the custody of him, the said William J. Mill, sheriff for Davidson county, aforesaid, who was. then acting as such sheriff. That thereupon, to wit, on the - day of -, 1891, the said William J. Hill, failing to do his duty, and without the leave and license of, and against, the will of, the plaintiff, negligently and unlawfully suffered and permitted the said Thomas O. Boalen to escape and go at large wheresoever he would, out of the custody of him, the said William J. Hill, so being such sheriff as aforesaid, and the said Thomas C. Boalen is still at large, and cannot be found. Whereby the said plaintiff has been and is greatly injured, and plaintiff is greatly delayed and prevented from prosecuting the said Thomas O. Boalen for the great crimes and felonies by him committed, contrary to the statutes and against the peace and dignity of the United States; and plaintiff is greatly delayed in and prevented from prosecuting him, the said Thomas O. Boalen, under the said indictment so found as aforesaid against him by the grand jm-ors for the said United States circuit court for the middle district of Tennessee, in the cause of the United States vs. Thomas G. Boalen et al., then and there pending before the said United States circuit court for the middle district of Tennessee; and whereby the said plaintiff aforesaid is delayed in and prevented from causing the said Thomas C. Boalen to be punished with imprisonment for the term and terms of years which is provided by statute as a punishment in such cases, and is delayed in and prevented from recovering from him, the said Thomas C. Boalen, the lines imposed by law for violation of the United States statutes, — $10,000. And in endeavors to arrest and to cause the arrest and capture of him, the said Thomas O. Boalen, who was notoriously one of a gang of dangerous offenders, plying their vocation in many places in the United States, prior to the time he was found and arrested in Atlanta, Georgia, to wit, on (he- — - day of November, 1801, and leading up to the arrest, and bringing about the arrest, the plaintiff necessarily expended large sums of money, to wit: §10,000, for (raveling and other necessary expenses of officers and employes of the United States post-office department; and, also, §2,000, for other necessary expenses in that behalf, such as advertisements, printing, etc., etc. And for the arrest and imprisonment and trial of the said Thomas 0. Boalen, at Atlanta, Georgia, proceedings for removal, and removal from Atlanta, Georgia, to Nashville, the plaintiff necessarily expended another large sum of money, to wit, $1,000. And for endeavors to recapture and ferret out the whereabouts of the said Thomas C. Boalen, since he, the said defendant, William J. Hill, negligently, carelessly, etc., as aforesaid, allowed him to escape from his custody, the said plaintiff has necessarily expended another large sum of money, to wit, $1,000, and other necessary expenses in this behalf, — $1,000. To the plaintiffs’ damage .twenty-five thousand dollars ($25,000). Hence suit.</p> <p>“John Hulun,</p> <p>“U. S. Attorney, M. D. T.”</p> <p>The defendants 'demurred to this declaration, and alleged several grounds therefor. The principal ones are: “(1) Because the defendants were not liable to a civil action on the bond given to the state of Tennessee at the suit of the United States for damages for the alleged negligence. (2) The said action is one that cannot be maintained in United States district court. That the liability of the officers of the state of Tennessee upon their official bonds can only be enforced in its own court, and that the state of Tennessee is a necessary party plaintiff, and no suit can be brought by her or in her name against citizens of the state bf Tennessee in a United States court sitting in that state. (3) That no recovery can be had for expenses incurred by the officers of the United States for the arrest, imprisonment, and trial of said Boalen, or for his removal from Atlanta, Ga., to Nashville, Tennessee, because the same was not a debt or liability against said Boalen. (4) That no recovery could be had for the fines imposed by law for the offenses charged against said Boalen until conviction and imposition of said fines by a verdict of a jury and judgment of the court against him. (5) That the money expended by plaintiff in an effort to recapture said Boalen after his escape is not recoverable, in this action, for the reason such expense would not be recoverable against Boalen should he be recaptured, convicted, and sentenced. (6) Because the declaration nowhere alleges that said escaped prisoner was guilty of the Offenses charged in the indictment” The demurrer was sustained, and the suit dismissed by district court.</p>

This is an appeal from the action of the clerk in taxing in the defendant’s bill of costs an item for “printing brief, $40.”

192), sustaining the decision of the board of general appraisers, which overruled the classification by the collector of merchandise known as “Swiss Muslin.”

<p>Customs Duties — Dutiable Weight — Ultramarine Blue.</p> <p>Ultramarine blue in pulp, wbicb consists of tlie ultramarine ground in water so as to form a thick paste, is dutiable, under paragraph 55 of the • act of October 1,1890, at 4½ cents a pound on the full weight of the paste, and not on the weight of the ultramarine contained therein when dry.</p>

This was a suit by the American Cable Railway Company against the mayor, aldermen, and commonalty of the city of New York, for infringement of letters patent No. 271,727, issued February 6,-1883, to Daniel J. Miller, for improvements in the construction of cable railways. There was a decree for complainant in the court below (66 Fed. 149), and defendants appeal.

<p>This was a petition for limitation of liability for loss of cargo by the steamship State of Virginia, filed by the State Steamship Company.</p>

<p>Tugs and Tows — -Mootiing Scow — Exposed IT.ace — Gage- -Damage — Liability.</p> <p>Defendant chartered libelant’s scow'to carry garbage to sea. On returning from a trip, the scow was made fast to (lie sea fence, in a position which would be exposed in ease it should come on to blow from (.lie west, and without any notice of the mooring being given to libelant. There was no custom or usage between the parties that authorized defendant to leave the scow at that place without previous arrangement with libelant, although two other scows ha.d been left there by libelant’s directions during the few clajs previous. At the time of mooring this scow, the weather indications were thro.-doiling, and the master of the scow protested against being left there. He had thereafter no means of mooring; the scow, and was in no way negligent. During the night it blew a. gale from tile northwest, and in the morning the scow was found to be damaged. Jlehl, that defendants were liable.</p>

<p>COLLISION — Steam Vessels Crossing — Starboard Hand Rule.</p> <p>Thé ferryboat D., Avhile crossing the East river from Brooklyn to New York, collided with the tug O. B., at the time going up stream near the NeAv York shore, and having the D. on her starboard hand. On conflicting evidence the court found that the tide was nearly slack, and the D. making nearly a direct course across the river to her. slip; that as soon as she saw the tug threatening to go between her and her slip, she blew one . whistle, slowed down, and stopped and backed as soon as danger became apparent. 37⅝ that the ferryboat had done all that was required of her, and that the collision was due to the failure of the tug to keep out of the way.</p>

<p>Collision — Steam and Sail Meeting — Faulty Lookout — Change of Course.</p> <p>A tug, going- down New York hay at niglit, incumbered with scows in tow on a hawser, saw ahead the lights of a sailing vessel, and took measures to avoid her by blowing one whistle and sheering to the right, after which she continued her original course. Owing to a faulty lookout on the schooner, the latter changed her course when near the tow, either by reason of taking in sails preparatory to anchoring, or by an intentional change of course towards her anchorage ground, and ran in between the tug and the tow, and collided with one of the scows. 'Held. that the sole liability was with the schooner, for negligent lookout and unwarranted change of course when approaching a steam vessel.</p>