Volume 61 — Federal Reporter

This is an action at law, brought in a court of Texas by J. D. Hurst against Cobb & Avery, to recover damages for wrongfully causing a United States marshal to levy an execution of plaintiff’s chattels.

<p>This was an action by Thomas Sweeney against the Grand Island & Wyoming Central Railroad Company; John and David Fitzgerald, copartners as John Fitzgerald & Bro.; John Carroll, Samuel E. Donoghue, and Frank P. Phillips, late copartners as Carroll, Donoghue & Co.; and the Congdon & Henry Hardware Company. The action was brought in a state court to enforce a mechanic’s lien, and was removed to this court by the railroad company.</p>

'Appeal from the Circuit Court of the United States for the Western District of Texas.

<p>1. Eminent Domain—Contract—Estoppel.</p> <p>A party asking relief against a railway company upon a contract which necessarily assumes a right of eminent domain in the latter cannot, in the same suit, complain of an additional taking of lands, on the ground that the company is not of a kind to be invested with such right. ></p> <p>2. Same—Fraudulent Location—Setting Aside.</p> <p>A court of equity cannot set aside an adjudication of a proper tribunal determining and locating the quantity of lands required for a public use merely because the parties who brought about the adjudication had a fraudulent or illegal intent; but it must appear that the tribunal itself proceeded fraudulently, or in excess of its powers, or that it committed a gross mistake, or was imposed upon by fraudulent methods.</p> <p>3. Same—Extent op Location—Equity Jurisdiction.</p> <p>A court of equity has power to determine whether the amount of land taken is needed for public use, but in this respect the courts are liberal towards the party exercising the right, as the owner is protected by the requirement for compensation; and every reasonable intendment will be made in favor of the adjudication of the tribunal awarding the lands.</p> <p>4. Same—Uncertainty op Location.</p> <p>A location of lands taken for public use cannot stand if it is uncertain in law; but that it is uncertain in fact, so as to require a resort to the courts for settlement of its boundaries, does not render it uncertain in law, for in law that is certain which can be made certain.</p> <p>5. Contract—Construction—Lease.</p> <p>The owners of a mountain summit leased a portion thereof to a tourists’ railroad company for five years, with the privilege of erecting an hotel and other buildings thereon. At the termination of the lease, the lessors were to have the right to purchase whatever buildings were on the premises, whether within or without the limits of the railroad right of way, “excepting such parts of said buildings and improvements within said limits as may be required by said second parly for the proper and convenient use of its road, and for its engines, cars, and repairs.” A hotel and other buildings were accordingly erected, partly within and partly without the railroad location. The lease was twice renewed, and after the expiration of the last term, and before any adjustment was reached, the'railroad company made an additional location, which was claimed to include the hotel and most of the other buildings. Held, that the question whether or not the buildings were required for railroad purposes was to be determined . by the condition of things at the termination of the lease; that, reading the contract as a whole, the lessors were not to take any buildings required for strictly railroad uses, whether situated within or without the original location; that the word “required” should he read as “fairly required;” and that the hotel was not thus required for railroad purposes, as was conclusively proved by tlie fact that the railroad people had rented it to be run substantially as the lessors must run it, if they took it.</p>

This was a bill filed by the English & Scottish Mercantile Investment Trust, Limited, against William A. Orman, for an injunction and other relief. The original bill in this cause was filed to assert' and establish the priority of the rights of the appellee, the English & Scottish Mercantile Investment Trust, Limited, over those claimed and sought to be enforced by the appellant, William A. Orman.

<p>1. Foreign Corporations—Calls cor Unpaid Stock—Foreign Laws.</p> <p>The validity of culls made hy a British corporation for unpaid stock is to be determined by tlie British law.</p> <p>2. Same—Validity ok Calls.</p> <p>The articles of association of a British corporation authorized the directors, on 20 days’ notice, io make calls for unpaid stock, and further stated that each member should be liable to pay the amount of the calls to Hie persons, and at the times and places appointed by the directors. Held, that the naming of such person, time, and place in the resolution adopted by the board of directors was not a prerequisite to the validity of a call, and such omission did not affect the liability of a member to pay the same.</p> <p>8. Same—Interest on Unpaid Calls.</p> <p>The articles of association of a British corporation provided that, if any member did not pay calls for unpaid stock on or before the day fixed therefor, he should be liable for interest from that day at such rate as the directors might from time to time appoint by notice to the defaulter. Held, that a defaulter to whom no notice was sent of any resolution requiring payment of interest was not liable for any interest.</p>

<p>This is an action brought by Thomas J. Kirkpatrick against the Pope Manufacturing Company to recover royalties.</p>

<p>3. Jurisdiction—Foreign Corporation.</p> <p>The federal courts have jurisdiction, upon the ground of diverse citizenship (Act Aug. 33, 1888), of an action against a foreign corporation, brought in the judicial district in which the, plaintiff resides, when such corporation is subjected hy statute to the jurisdiction of the courts of the state in which the district is located.</p> <p>2. Same—Service on Ticket Agent.</p> <p>Service of a summons upon a station or ticket agent, in accordance with the provisons of the statute of the state in which the district is located (Code Iowa, § 2611), will vest the federal courts with jurisdiction in a suit against a foreign railroad corporation.</p> <p>8. Same—Division oe Judioiai, District.</p> <p>An action may be brought in Hie state of Iowa against a nonresident defendant “in any division of either district wherein the defendant may be found.” 22 Slat. 172. Held, that it; is not required, in such a case, that suit be brought in the division of the district wherein the plaintiff resides.</p>

<p>1. Release—Bar to Action for Personal Injuries—Fraud.</p> <p>In an action at law to recover damages for personal injuries, a release intentionally executed by plaintiff for a money consideration, knowing the legal effect thereof, cannot be attacked, or its effect as a complete bar avoided, by showing that plaintiff was induced to sign it by the misrepresentations of defendant’s surgeon, who attended him, as to the permanent character of his injuries. The action, however, may be suspended while plaintiff brings an independent suit in equity to rescind the release for fraud.,</p> <p>3. Rescission of Release—Tender of Considf.ration.</p> <p>A suit to rescind a release of a claim for personal injuries cannot be maintained without tendering back the money paid as a consideration therefor, and keeping the tender good.</p>

<p>Trespass to Realty—Telephone Companies—Municipal Corporations.</p> <p>A telephone company, invested with the power of eminent domain, and authorized by law to erect poles and stretch wires through the streets of a city, was required by ordinance to move its poles and wires from a street to the adjoining sidewalk. In doing so, it was necessary to trim certain trees, and this was done by the servants of the company, under the direction of a city officer. Held, that the company was not liable therefor to an action of trespass by the owner of the trees, since the act was dono under lawful authority.</p>

<p>Action by Giuseppa Gianfortone, widow of Pietro Monasterio, and as tutrix of her minor children, to recover damages against the city of New Orleans for permitting the killing of her husband by a mob.</p>

<p>1. Assumpsit—Pleading—-Performance of Contract.</p> <p>Where one has performed work in good faith, though not in the manner or within the time prescribed by the contract, and it has been accepted, he may recover its reasonable value under the common counts in as- • sumpsit.</p> <p>2. Contracts—Interpretation—Conditions—Penalties.</p> <p>Plaintiff contracted to do work for defendant,, and complete it “by November 15th,' under a penalty of $100 per day, provided you have foundation ready by June 15th.” Held, that the completion of the foundation was a condition precedent, in default of which defendant could not claim the penalty as liquidated damages for plaintiff’s delay.</p> <p>3. Appeal—Review—Harmless Error.</p> <p>In an action on a contract which embodied a penalty for delay in performance on plaintiff’s part, the court ruled during the trial that defendant need not show actual damages arising from delay; and afterwards, in its charge, it called the jury’s attention to the fact that no actual damage to defendant was shown. Held, that the error was without prejudice where defendant had admitted that it was impracticable to show actual damages. ‘</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was an action upon a bond given to se,eure the performance of a contract, and was brought by C. Amory Stevens against James A. Mundy, JdSeph Busch, and William B. Johns, doing business as James A. Mundy & Co., as principals, and John M. Sharp and Clarence Busch as sureties.</p> <p>The material facts were as follows: James A. Mundy & Co. had contracted with the United States to furnish the necessary plant and do the work required for the improvement of the harbor of Philadelphia, and they were hound to remove 1,075,000 cubic yards of earth by December 31, 1891. At that date they liad made hut little progress, and they then secured an extension of time until June 30, 1892. In February, 1892, they sublet the work to plaintiff under the following contract:</p> <p>“Agreement, made this second day of February, 1892, between O. Amory Stevens, party of* tho lirst part, and James A. Mundy & Company, consisting of James A. Mundy, Joseph Busch, and William B. Johns, parties of the second part. i</p> <p>"(1) The party of the first part agrees to furnish the necessary plant and do all tho work required for the improvement of the harbor between Philadelphia and Camden, as described in the contract between the parties of the second part and Major C. W. Iiaymond, TJ. S. army, under date of April 23, 1891. ,</p> <p>“(2) The party of the first part agrees to assume all tho duties and obliga-' tions imposed by said contract upon the firm of James A. Mundy & Company, and to keep and perform all the undertakings, agreements, and covenants which said firm undertook to keep and perform under said contract.</p> <p>“(3) The party of the first part further agrees to perform the work mentioned in said contract, and the modifica tions thereof made or to he made, in the manner and within the time fixed by said contract and the extensions thereof, granted or to he granted, and to save said linn of James A. Mundy & Company, and each of them, harmless from all loss or damage which might ensue to them by reason of any failure faithfully to perform said contract, resulting from the wrongful act or omission of said party of the first part or his representatives.</p> <p>"(4) The parties of the second part agree to pay to the party of the first part lor all work done by him hereunder, and as soon as the same is received from the war department by said parlies of the second part, tho same amount and prices for the work that tho x>M'ties of tho second part shall receive under their above-mentioned contract with the war department, to wit: First. Ten and seven-eighths (10%) cents per cubic yard, measured in the scows, for all material excavated, removed, and deposited at the place provided by the said James A. Mundy & Company, and ax>i>rovcd by the engineer officer in charge for the entire imxirovement of the Philadelphia harbor approved by congress. Second. One dollar and ninety coins ($1.90) per lineal foot for X>iles and timber roofing or revetment removed. Third. Nine and a half (9%) cents x>or cubic yard, measured upon the scows, for all dredged material deposited and spread upon League island, this price to be in addition to the price per cubic yard paid under item one. ¡</p> <p>"(5) The parties of tho second part will properly forward all applications for jiayments as soon as the same may he received from the party of the first i>art, and will make such reasonable requests and applications concerning the terms of said contract or modifications thereof as the x>arty of the first part may suggest.</p> <p>“(G) The party of the first part, in consideration of the premises, hereby agrees to pay to- the parties of Hie second part the sum of one hundred and seventy nine thousand dollars ($179,000) as follows: The parties of the second xiart shall be paid monthly, until the payment of all money becoming due to them under the provisions of this section, the sum of three cents per yard for all material dredged during the month, and if subsequent to- June 30, 1892, any such monthly payment shall not amount to at least nine thousand dollars ($9,000), the parties of the second part may deduct from 1he next payment falling due the party of the first paid thereafter, under the provisions of the fourth section hereof, such sum as shall bring the x>ayment for such preceding month up to the said sum of $9,000. The unpaid part of such $9,000 shall draw interest at six (G) per cent, from the date on which it should have been i>aid until paid or deducted as aforesaid; but no action shall he brought by the parties of the second part against the party of the first part for any such deficit below $9,000 in a monthly payment, unless said party of the first part shall fall to perform the work under this contract, and die parties of the second part shall he thereby compelled to complete the work. Said sum of $179,000 shall he paid within eighteen (18) months from this dato; $150,000 thereof shall, if ixraetieable, be paid within one year from this date, and, in case any part of said sum of $150,000 shall' then remain unpaid, such part shall draw interest at six (6) per cent, from that date till payment.</p> <p>“(7) Upon the completion of the work under the said contract with the war department, or whenever the war department shall make payment of its reservation, the said parties of the second part shall retain (and from the first portion of the reservation so paid) such amount of the “reservation made by the war department under said contract as shall, at the date hereof, be due to the said parties of the second part for work already performed; but the said parties of the second part shall pay over to the said party of the first part all such portion of said reservation as shall be hereafter retained by the war-department under its contract for work thereunder undertaken, and completed by the said party of the first part on and after the date of this contract.</p> <p>“(8) The parties of the second part may receive from the government and retain the amount due for work done by them prior to the date of this agreement.</p> <p>“(9) In case the party of the first part shall fail to perform this contract, so as to endanger the forfeiture of the contract with the war department, the parties of the second part shall have the right to proceed to the eonrpletion of the work in order to keep good their above-mentioned contract with the war department.”</p> <p>After the execution of this contract and the making of the bond sued on, the following supplemental contract was made:</p> <p>“It is hereby mutually agreed by and between O. Amory Stevens, of the first part, and James A. Mundy, Joseph Busch, and William B. Johns, copartners trading under the name of James A. Mundy & Co., parties of the second part, as follows: The sixth section or paragraph of the agreement for the- performance of the work of dredging Philadelphia harbor, made and entered into by and between the parties hereto, and dated the second day of February, 1892, is hereby wholly canceled and revoked, and the following is hereby substituted as and for the said sixth section or paragraph of said contract, and the whole thereof, to wit: ‘(C) The party of the first part, in consideration of the premises, hereby agrees to pay to the parties of the second part the sum of one hundred and seventy-nine thousand dollars ($179,000) as follows: The parties of the second part shall be paid monthly, until the payment of all money becoming due to them under the provisions of this section, the sum of two and one-half cents per cubic yard for all material dredged during the month.’ All the other terms and provisions of said contract of February second shall remain in full force and virtue.</p> <p>“Sealed with our seals and dated this-day of June, 1892.</p> <p>“Witness:</p> <p>“N. H. Band. Jas. A. Mundy. [B. S.]</p> <p>“N. H. Band. Wm. B. Johns. [B. S.]</p> <p>“N. H. Band. Jos. Busch,</p> <p>“Pei- C. M. Busch, Atty. [B. S.]</p> <p>“N. H. Band. C. Amory Stevens. [B..S.]”</p> <p>The bond sued on was as follows:</p> <p>“Know all men by these presents that we, James A. Mundy, Joseph Busch, and William B. Johns, composing the firm of James A. Mundy & Company, as principals, and John M. Sharp and Clarence M. Busch, as sureties, are held and firmly bound unto C. Amory Stevens in the penal sum of two hundred and fifty thousand dollars ($250,000), lawful money of the United States' of America, to be paid to the said C. Amory Stevens, his executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors, and administrators, firmly by these presents.</p> <p>“Sealed with our seals. Dated the second day of February, one thousand eight hundred and ninety-two.</p> <p>“The conditions of the above obligation are such that if the above-bounden James A. Mundy, Joseph Busch, and William B. Johns, composing the firm of James A. Mundy & Company, their heirs, executors, or administrators, shall well and truly pay or cause to be paid unto the above-named C. Amory Stevens, his executors, administrators, or assigns, immediately upon the receipt thereof by them from the department of war of the Unitod States of America, all and every sum or stuns of money paid the said firm of .Tames A. IVTundy '& Company hy the said department of war for work of any nature whatsoever performed or done hy the said James A. Mnndy <Xr Company or the said O. Amory Stevens, under and hy virtue of an agreement for Hie improvement of Philadelphia harbor, made by and between the said firm of James A. Mundy & Company and the department of war of the United States of America, and dated the 21st day of April, 1891, as provided in Hie agreement of even dace herewith by and between Hie said James A. Mundy, Joseph Busch, and William B. Johns, composing the firm of James A. Mundy & Company, and the said C. Amory Stevens; and, further, if the abovc-boundon .Tames A. Mundy, Joseph Buseli, and William B. Johns, composing the firm of James A. Mundy & Company,—in the event that the said department of war of the United States of America, or the representatives of the government of the United States of America, símil, by reason or on account of Hie execution of the said agreement between the said James A. Miuidy, Joseph Buseli, and William B. Johns, composing the firm of James A. Mundy & Company, and C. Amory Srevens, of even date herewith, and the rights ami privileges acquired by the said G. Amory Stevens thereunder, or by reason of any act, omission, or negligence on Hie part; of tins said Janies A. Mundy, Joseph Buseli, and William B. Johns, or the said firm of .Tames A. Mundy & Company, during tlie existence of said agreements, or either of them, declaro the said agreement, between the department of war of the United States of America, and the said James A. Mundy & Company for the improvement of Philadelphia harbor, dated the 21st day of April, 1891, forfeited or annulled, or shall take any proceedings to forfeit or annul said contract,—shall, immediately upon such agreement being declared forfeited, or proceedings Thereunder so taken by said department, well and truly pay or cause to be paid unto the said O. Amory Stevens, his executors, administrators, or assigns, the sum of one hundred and seventy-nine thousand dollars ($179,000), or so much thereof as shall then have been paid unto (he said James A. Mundy, Joseph Busch, and William B. Johns, in Hie manner and as provided for in the said agreement between the said James A. Mundy, Joseph Busch, and William B. Johns, and the said C. Amory Stevens, of even date itere with: Then, and in Hie event of all the aforesaid conditions being fully carried out and complied with, the above obligation to be void; otherwise, to remain in full force and virtue.</p> <p>James A. Mundy. |B. S.]</p> <p>“William B. Johns.</p> <p>“By John M. Sharp, Atty. [B. S.;|</p> <p>“Joseph Buseli,</p> <p>“By O. M. Buseli, Atty. |B. S.J</p> <p>“John M. Sharp, IB. S.]</p> <p>“C. M. Busch. [B. S.)</p> <p>“Sealed and delivered in the presence of “Edward Kent.”</p> <p>The plaintiff, Stevens, after entering upon the work under his contract, made hut slow progress, and, on the expiration of the extended time, only about, one-third of the required excavation had been made. Another extension, until July 31, 1892, was then procured, at the end of which time a final extension was granted by the government, until December 31, 1892. The evidence tended to show that, in the latter part of July, work was stopped by the plaintiff. but was begun again early in August, and that Mundy & Co.' were then in default for payments. On August 16th they took possession of the plant, and put an end to their contract with plaintiff. The suit is brought to recover payments alleged to have become due at that time.</p>

<p>1. Removal of Causes—Time oe Application—Review.</p> <p>It is too late, on appeal, to raise the question that the application upon which the cause was removed from the state to the federal court was not made in time.</p> <p>8. False Imprisonment—What Constitutes.</p> <p>Defendant procured, from a- judge having jurisdiction, a warrant for plaintiffs arrest, which was directed to the sheriff of any county in the state. It was delivered to the sheriff of S. county, who arrested plaintiff outside of his county, and took him to a third county, to he identified, before bringing him to S. county. Held, that there was no trespass for which defendant could be held liable in an action for false imprisonment.</p> <p>8. Malicious Prosecution—Probable Cause—Oonvtotion.</p> <p>In an action for malicious prosecution, the conviction of plaintiff upon the charge complained of is prima facie evidence of probable cause for the prosecution, notwithstanding a new trial was granted, and a nolle subsequently entered by the state.</p>

Appeal by Goldberg & Co. from the decision of the circuit court for the southern district of New York, which affirmed the decision of the board of general appraisers as to the classification of sundry importations -of hat trimmings and ornaments.

<p>1. Patents-—Limitation of Claims.</p> <p>Statements of counsel to die patent office of mere reasons why it is desirable to bave claims allowed in a particular form do not estop tbe patentee from claiming- wliat is clearly granted by tbe patent.</p> <p>2. Same—Designs—Form of Claims.</p> <p>In a patent for a design for coaeb lamps, consisting of a tulip conventionalized in form, if is proper to allow separate claims for the upper and lower parts, and a, third claim for the entire design.</p> <p>3. Same—Anticipation and Prior Art—Evidence-“Publications.”</p> <p>A drawing exhibited in a mere trade circular, unaccompanied by any evidence that it was ever actually published, or intended for general use, or accessible to tbe public, is not admissible as a printed publication for tbe purpose of showing anticipation.</p> <p>4. Same.</p> <p>A pamphlet purporting to be a number of a coachmaker’s magazine, primed ior general circulation, bound up with other numbers for the same year, and containing references to advertisements, with terms therefor, is prima facie a publication, within the meaning of the patent law.</p> <p>5. Same—Exhibit of Drawings—Absence of Description.</p> <p>Drawings exhibited for the purpose of showing anticipation of a design patent are not rendered irrelevant by the fact that they are unaccompanied by a written description. This objection merely affects their weight as evidence, and not their admissibility.</p> <p>6. Same—Invention.</p> <p>The fact that a coach lamp made to resemble a tulip, conventionalized ' in form, shows outlines resembling a calyx, while in nature the tulip has no calyx, is strong evidence of original combination or creative thought.</p> <p>7. Same—Design Patents—Infringement—Expert Evidence.</p> <p>Little weight should be attached to the evidence of experienced designers on the question of infringement, since they are liable to be biased by the trained observation of the specialist. But the court should endeavor to place itself in the position of the ordinary purchaser, giving such attention as he would usually give.</p> <p>8. Same—Validity—Infringement.</p> <p>The Britton design patent, No. 20,670, for a carriage lamp in the form of a conventionalized tulip, held to show patentable novelty, and to have been infringed by defendants.</p>

This was a suit by Anthony Miller and John T. Corn against William W. Handley, the St. Louis agent for the Wheeler & Wilson Manufacturing Company, for infringement of letters patent Mo. 419,863, granted January 21, 1890, to complainant Miller. Complainant Corn is assignee of a one-half interest in the patent.

These were two hills filed by the McKay & Copeland Lasting Machine Company against M. C. Dizer and others, and William Olaflin and others, respectively, for the infringement of letters patent Xo. 197,607, issued Xovember 27, 1877, to Copeland, Woodward and Brock, for an improvement in lasting machines for boots and shoes.

Tins was a suit by Joshua K. Jones, trading as the National Publishing Company, against William A. Holman and George S. Lare, trading as A. J. Holman & Go., for infringement of a patent for easel albums.

Libel in rem by Xafclianiel T. Bacon to recover the steamer Boconoket from the possession of the Interstate Steamboat Company. Heard on a rule against libelant for security for damages, and for increase of security for costs. (1) As a general rule, a litigation may he carried on at the charge of costs; hut, if a litigant seeks to change the possession of property, then he must indemnify the real owner when the claim is decided against him.

<p>Appeal from District Court of the United States for the Eastern District of New York.</p> <p>Petition by the Myers Excursion & Navigation Company for limitation of liability in respect to their excursion barge, the Republic.</p>

Tins was a libel by Juan M. GebaOos against the steamship Alert, of which Olaf Bergh and others were claimants, to recover for loss of cargo. At the time of the loss the ship was in possession of the Yew York & Yucatan Steamship Company as charterer; and on the petition of the claimants, alleging that the charterer alone was liable for the loss, that company was made a defendant, and required to answer both the petition and libel. 40 Fed. 836.

<p>Collision—Steam Vessels—Fog—Signals—Ferryboat Inside of Pier Line.</p> <p>A ferryboat, in a fog, wliicb bad made lier trip across the Hudson river, and arrived inside of tbe line of tbe New' York piers, and was there maneuvering to get into her slip, was held not bound to continue tbe fog signals which she bad stopped on getting inside of such line, nor liable for damages by collision to another ferryboat, which, through lack of proper caution and watchfulness, had got within the pier lines.</p>

<p>This was a libel by the Thames Towboat Company against the Central Railroad Company of New Jersey to recover damages for a collision.,</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan.</p> <p>This was a libel by Charles H. Weeks and others against the steamer Olympia, of which the Wilson Transit Company is claimant, to recover damages for a collision.</p> <p>Tills is a case of collision between the schooner John Sherman and the steamer Olympia. It occurred about 4 p. m., May 8,1891, on Detroit river. The da.y was bright, and there was neither wind nor sea. The Olympia was bound np the river, and was on the American side, when the colliding vessels came in sight. The Sherman was hound down the river, in tow of the steamer Lovell. Astern of ¡he Sherman, and in the same tow, was (he schooner Roberts. The Lovell and her tow were on the Canadian side of the channel. The river at point of collision was ono-lialf mile in width. The Olympia, when nearly a,breast of the Lovell, was headed to pass under the slei'n of the Roberts, and well off the starboard side of the Sherman. The second article of the Lbel avers: “That said propellers were on courses that would have carried them a considerable distance apart, and that no accident would have occurred had The propeller Olympia kept on her course, as it was her duty to have done, and that the said propeller Olympia, instead of keeping her course, departed therefrom, and fumed to starboard, and towards the propeller Lovell and her tow, and came on with great speed, and without properly stopping and hacking, or making any other effort to avoid the collision which ensued, struck the said schooner Sherman upon her starboard side, crushing in her side, rail and planking, and so breaking and injuring said schooner as to render her a total wreck. That said collision occurred in broad daylight, and that it was impossible for said schooner to avoid or get out of the way of the said Olympia,.” Among other things, the answer of the claimants states: “That when opposite the lower end of the Detroit the Olympia cheeked down, and drew in toward the American dock for the irarpose of being met by the reporter’s boat, which came out to her nearly opposite Woodward avenue, in said city. That the Lovell was coming down the river near mid channel with Hie Sherman and another barge in tow. That, after dismissing the reporter’s boat, the Olympia ported slightly, to go under the stem of the tow, and get out info mid-channel, and the course past the Belle Isle, and gave the all-right signa! to her engine for the usual full speed. She started to swing, and was swinging slowly to starboard, when the order to steady was given, the Olympia then heading astern of the tow, and all clear of them, and the wheelman turned the wheel, and attempted to starboard the helm, in order 1:o stop her swing and steady the steamer, when it was found that the helm could not be starboarded; whereupon, insianfly, the reversing signal was given, and her engine was promptly reversed and hacked, with all its power, and an alarm whistle was blown to the tow. That the Sherman could and might have been sheered with her holm over to her port far enough to entirely avoid the collision, without letting go of her towline, hut respondent says that no one on board the Sherman paid any heed to I,he warning signal. That no effort was made on her either to shift her course, or to let go the towline, hut she continued to go on, passing (he starboard bow of the Olympia, which had been thrown some to starboard by the reversing of her propeller wheel, so that, the starboard bow of the Olympia came glancing against the starboard quarter of the Sherman, the headway of the Olympia, being by that time nearly, if not quite, 'stopt>ed. That, owing to the manner of their coming together, as aforesaid, and the angle of contact, the force of the collision was not great or severe, and would not and could not have materially injured a seaworthy vessel, or one of ordinary soundness and strength, and did not in any mannei; or to any extent injure the Olympia. That (he cause of the steering gear failing to work was ascertained to be ¡.lie breaking of the wire wheel rope aft on the starboard side. That it was a wire rope of suitable and ample size, which had been bought at a price which should have insured the best material for that purpose, and was properly rigged and fitted in the most approved manner. That it had been overhauled at Cleveland the day previous to this collision; and her steering gear had been put, so far as human knowledge and Ingenuity could do so, in perfect condition; and that, according to the standing-rule in said steamer, the mate had looked over and examined the steering gear, including this rope, before the vessel entered Detroit river, but a few hours before the accident, on which occasion ho had apparently found everything in good order and condition. Respondent avers that the breaking of said wheel rope, and the consequent inability to steady the vessel, was due to no fault, negligence, or omission on tlie part of tliis respondent, or tlie officers and crew of said steamer, Put tlie same was due to, and was caused by, unavoidable accident, wbicb could not be foreseen, and against which human prudence could not guard.” The cause was submitted to the district judge, who sustained the defense of inevitable accident, and dismissed the libel, each party paying its own costs.</p>

<p>This was an ae.tufli by Samuel Cabot against William I. McMaster, as surety on a penal bond.</p>

<p>Removal of Causes—Who May Remove.</p> <p>A corporation, being sued for personal injuries, presented, after issue joined, a petition alleging that a certain other corporation was solely interested in the litigation, and ashed that the latter might he made a defendant, exhibiting at the same time certain papers tending to show a transfer of defendant’s assets to it. The petition was denied, whereupon the other corporation presented a petition and bond for removal, alleging that it was a defendant, that the controversy was wholly with it, and that it was a citizen of another state. Plaintiff objected to the filing of these papers, offering, however, to agree that the applicant might become a party to- the record if it would admit liability in case plaintiff showed a right to- recover. This the applicant refused to do. The court then refused to allow the filing of the removal papers, and proceeded to trial. Held that, as the applicant never became a party to the record, it had no right of removal, and that an injunction obtained by it from the federal court restraining the prosecution of the case in the state court, on the ground that a removal had been effected by force of the statute (Act 1887-88, § 3), was improvidently awarded.</p>

<p>This was an action by Hester J. Daugherty against the Western Union Telegraph Company. The action was commenced in a state court, and, defendant having moved therein for an order awarding a removal to this court, the same was denied, on the ground that its petition and bond were not seasonably filed.</p>

<p>1. Court-Martial—Jurisdiction—Pleading.</p> <p>Tiie charge on a trial before a court-martial was “conduct to the prejudice of good order and military discipline;” the specification set up to be proved certain acts showing homicide by the accused. Held, that there was nothing in the charge itself alleging that the accused had committed murder; that the offense charged was within the jurisdiction of the court-martial, and it was for it to decide upon the validity and the sufficiency of the pleadings.</p> <p>2. Same—Writ of Prohibition.</p> <p>Where accused is charged berore a court-martial with “conduct prejudicial to good order and military discipline,” and the specification shows that he is alleged to have committed a homicide, a plea of former acquittal-by a civil court is a defense going to the merits of the case, and not to the jurisdiction of the court, and a civil court cannot interfere to prevent the exercise of such jurisdiction.</p> <p>8. Same—Interference of Civil Courts.</p> <p>The power to make rules and regulations for the government of the land and naval forces, and the power to establish the civil courts, were conferred upon congress under different articles of the constitution. They are independent powers; and when courts organized under those re-' spective powers are proceeding within the limits of their jurisdiction they must be free from interference.</p>

<p>Public Lands—Railroad Grants—Excepted Claims—Pre-emptions.</p> <p>The mere filing of a declaratory statement, without any previous settlement, as required by the pre-emption laws (Rev. St. § 2264 et seq.), was not sufficient to canse a pre-emption claim to become “attached” to the lands so as to except it out of the grant, made to the Union Pacific Railway Company by the act of 1864. Whitney v. Taylor, 45 Eed. 616, disapproved.</p>

This was a suit for foreclosure by William Bayard Cutting against the Tavares, Orlando & Atlantic Railroad Company, in which the Florida Central & Peninsular Railroad Company intervened. William Bayard Cutting, as trustee, brought suit In the circuit court against the Tavares, Orlando & Atlantic Railroad Company to foreclose a mortgage-on thirty-two miles of road In Orange county, state of Florida.

<p>1. Interstate Commerce Law—Connecting Lines—Discrimination.</p> <p>Tlie provision of the interstate commerce law forbidding discrimination against any locality or description of traffic (24 Stat. 380, § 3, cl. 1) is for the protection of the locality or traffic itself, and cannot be invoked by a carrier as against a connecting carrier which discriminates, in the matter of requiring prepayment of freight and car mileage, between goods which come from different sections of the country over the line of the complaining carrier. 51 Fed. 465, affirmed.</p> <p>2. Same.</p> <p>The provision requiring carriers to afford all reasonable, proper, and equal facilities for interchange of traffic, and forbidding discrimination between connecting lines (section 3, cl. 2), is not violated by receiving and forwarding, without prepayment of freight or car mileage, cars of other companies containing goods coming from one locality, and refusing to do so, unless prepayment is made, when the goods are from a different locality. 51 Fed. 465, affirmed.</p> <p>3. Same—Northern Pacific Railroad Charter.</p> <p>The provision in the charter of the Northern Pacific Railroad Company requiring that company toi permit other railroad companies “to form running connections with it on fair and equitable terms” (Act July 2, 1864, § 5), includes only such arrangements as to the time of arrival and departure of trains, and as to stations, platforms, and other facilities, as will enable companies desiring to connect to do so without detriment or serious inconvenience, and does not apply to alleged discrimination in the matter of prepayment of freight and car mileage on goods tendered by connecting lines. 51 Fed. 465, affirmed.</p>

<p>1. Equity—Rescission—Fraud—Matters ov Ocinton.</p> <p>A bill for the rescission of the purchase of a silver mino on the ground of fraud alleged that defendant represented that the ore therein contained a certain average of pure silver, making it very valuable, whereas in fact the average was so low that it was worthless; and that defendant had “salted” the samples which complainant took from the mine, and upon the faith of whose analysis the purchase was made, by fraudulently mixing native silver therewith. Held that, where the latter allegation is sustained, defendant cannot shelter himself behind the plea that his representations were mere expressions of opinion as to the value of the mine.</p> <p>9. Same—Evidence—“ Salting ” Mines—Accident.</p> <p>In a suit to rescind the salo of a silver mine on the ground of fraud perpetrated by defendant by “salting” the samples of ore taken by complainant for assay, it was shown that there was m> native silver in the ore of the mine, but every one of thirty samples taken contained from 80 to 90 per cent, of powdered silver. The assays were made at different places and by different persons, but all with substantially the same result. Held, that the evidence showed that the presence of this powdered silver in the samples could not have been accidental.</p> <p>3. Same—Evidence—Other Frauds.</p> <p>In a suit to rescind the sale of a silver mine on the ground of fraud perpetrated by defendant by “salting” samples of ore, upon the assay of which complainant was induced to purchase, it is competent to show that defendant had “salted” samples used in prior negotiations with other persons for the sale of the same mine.</p> <p>4 Same—Evidence—Sufficiency.</p> <p>In a suit to rescind the sale of a silver mine on the ground of defendant’s fraud in “salting” the samples by means of which complainant was induced to purchase, it was shown that defendant had a substantial pecuniary interest in effecting the sale; that some of the samples were tested immediately after being taken from the mine, in which oxieration they were put into the hopper of a crusher by complainant, and were received by defendant as they came out, at a point which was out of complainant’s sight, while the samples not then tested remained for some days in defendant’s exclusive possession and control; that the “salting” was done with powdered metallic silver, such as was easily procurable in the market, and which might have been introduced into the samples with a syringe without breaking the seals of the bag's; and that, after the „ presence of metallic silver in the samples was accidentally discovered, defendant opposed the erection of a mill adapted to its separation, he having an interest in the company for which complainant had bought the mine, and knowing that there was no native silver in the ore. Held, that the evidence showed that the “salting” was done by defendant.</p> <p>5. Same—Laches—Waiver.</p> <p>Complainant purchased á silver mine from defendant, and afterwards discovered that the samples by which he had been induced to purchase had been “salted.” He at once attempted to persuade defendant to take the property back, but he refused to do so. Complainant then erected a small mill in order to make more Complete tests of the quality of the ore, and also sought to discover evidence to convict defendant of the “salting.” He did not reach conviction upon this point until a year after the sale was consummated, and he at once filed a bill for rescission.- Held, that there was not such a dealing with the properly as amounted to a waiver of his right to rescind, nor was he guilty of laches.</p>

<p>This was an action by the Exchange National Bank of Atchison, Kan., against the Washita Cattle Company.</p>

<p>1. Railroad Companies—Municipal Aid—Parts of Counties.</p> <p>The charter of a railroad company (Act Ky. Feb. 24, 1888) provided that any county through which it might pass, or any magisterial precinct or precincts of such county, might subscribe to its capital stock (section 9); that, when any precinct or precincts made such subscription, bonds of the county should be issued, showing on their face the precincts mailing the subscription, which alone should be bound to pa.y the bonds (section 10); and that its provisions should not apply to a. defined portion of R. precinct in a county named (section 19). Held, that the residue of R. precinct, not excepted from the provisions of the act, might join with another precinct of such county in making a subscription, and joint bonds bo issued therefor.</p> <p>2. Same—Bonds—Taxes to Pay—Assessment.</p> <p>The charter of a railroad company (Act Ky. Feh. 24, 1888) authorized the magisterial precincts of counties through which it should pass to subscribe to its capital stock (section 9), and provided that such subscriptions should be paid by taxes levied in such precincts alone. Such a subscription was made jointly by one precinct and part of another, the residue having been expressly excepted from the operation of the charter. Held, that the assessor might he required to list separately the property of the district making such subscription, and liable to a tax therefor, under Acts Ky. 1891-9.'! (volume 1, p. 283, § 4), wiiich requires him to make separate books for each “taxing district of his county, by wards or other subdivisions, as convenience may require.”</p> <p>8. Same—Deltyeky—Conditions.</p> <p>Act Ky. April 9,1873, which provides that, before county bonds issued in aid of a railroad are delivered, the president of the road shall give bond for the faithful application of their proceeds to the construction of the road, has no application where the road has been completed before the bonds are delivered.</p> <p>4 Same—Action on Bonds—Pleading.</p> <p>In an action on, railroad aid bonds, a simple allegation in the petition that “an election was duly held” to determine whether the subscription should he made is sufficient; arid any irregularities in the mode of holding such election are matters of defense.</p> <p>5. Same—Reservation in Bonds.</p> <p>In an action on county bonds issued in aid of a railroad, plaintiff need not allege a reservation made in the bonds by the county as to the time of payment, where there was no such reservation in the act authorizing the subscription, for the power to issue the bonds was in no wise affected thereby.</p> <p>6. Same—County Bonds—Judgment.</p> <p>The charter of a railroad company (Act Ky. Feb. 24, 1888) authorized magisterial precincts of any county through which it passed to subscribe to its capital stock (section 9), and provided that the bonds of the county should be issued in pajunent of such a subscription in every respect as if such subscription was made by the county, but that such precincts should be alone bound to pay such bonds (section 12). Held, that the county is liable to actions on such bonds, but judgment against it is to be satisfied out of a tax levied on such precincts alone.</p>

<p>1. Pleading—Equitable Decense—Action at Law.</p> <p>In an action at law in tho federal court on an insurance policy, it was alleged in defense that a suit was pending in tho state court for the reformation of tho policy, and defendant prayed that all proceeding's be stayed until that suit was determined. Held, that this was an equitable defense, only, and should be stricken from the answer, as not admissible In an action at law-</p> <p>2. Abatement-Former Suit—State and Federal Courts.</p> <p>An action on an insurance policy was removed to the federal court, and defendant answered therein, alleging that, a suit was pending in tho state court tor the reformation of the policy. Held, that this was not good as a plea in abatement, for the pendency of the prior suit in tho state comí: is no bar to the action in the federal court. i</p>

<p>These were proceedings for the deportation of Chow Cheong under the provisions of the act of May fi, 1892, as amended by the act of November 3, 1893.</p>

<p>Habeas Corpus—Whbs bins.</p> <p>Habeas corpus will not lie to determine the simple question of law whether the facts proved before a United States commissioner on preliminary hearing are sufficient to constitute the crime for which the prisoner lias been committed.</p>

<p>This was a petition by John Y. McKane for a writ of habeas corpus, alleging that he was imprisoned at Sing Sing, N. Y., in violation of the laws of the United States.</p>

This was a suit by the Municipal Signal Company, licensee, and James E. Oyster, assignee, to restrain the Camewell Eire-Alarm Telegraph Company and others from infringing letters patent. No. 178,750, granted June 18, 1876, to Henry Ennis. The patent was for an improvement in telegraphic fire alarms. The circuit court entered an interlocutory decree granting a perpetual injunction, and referred the cause to a master to take an account of profits. 52 Fed. 464.

This was a suit by Alonzo Gerard against the Diebold Safe & Lock Company for infringement of letters patent. No. 246,748, granted September 6, 1881, to complainant for “an improvement in burglarproof safes.” The circuit court dismissed the bill on demurrer (48 Fed. 380), and complainant appealed.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a hill by Howard T. Marshall against Fred. Packard and others for infringement of letters patent No. 340,135, issued April 20, 1886, to complainant. The invention relates to hoots and shoes “more particularly designed for use in playing lawn tennis, although capable of use for other purposes.”</p> <p>The claims of the patent were as follows:</p> <p>(1) A boot or shoe having an outer solo permanently secured to the upper and inner sole, and its outer or treading surface made of India rubber, or any of its compounds, a.nd provided with independent projections integral with said rubber, and severally separated from each other, and with the surface of the sole exposed between and around them, substantially as described, and for the purpose specified. (2) A. hoot or shoe having an outer sole permanently secured to the upper and inner sole, and its outer or treading surface made of India rubber, or any of its compounds, and provided with independent projections integral with said rubber of conoidical, and in planes parallel with said outer surface of circular or substantially circular, form, and severally separated from each other, and with the surface of the sole exposed between and around them, substantially as described, and for the purpose specified.</p>

<p>This is a libel by the Bancroft-Whitney Company and others against the steamship Queen of the Pacific, of which, the Pacific Coast Steamship Company is claimant, to recover damages for breach of contracts of affreightment.</p>

<p>This was a libel by John J. Sullivan, master of the barge or lighter Ellen Herron, against the steamer Columbia (The Upper Delaware River Transportation Company, claimants), to recover damages for injuries caused by the agitation of the water produced by the steamer in passing up the Delaware river. The district court rendered a decree for libelant. 55 Fed. 766.</p>

This was a libel by the Insurance Company of North America and others against the steamship Energia and the schooner Wild Pigeon for damages by collision between the vessels to the cargo of the steamship, of which libelants were insurers. The steamship was held in fault. 56- Fed. 124. The question of libelants’ right to recover, as damages, average charges upon the cargo, was submitted upon the pleadings and a stipulation as to the facts.

<p>1. Receiver—Aupeau from Injunction.</p> <p>A receiver appealed from an order of the court by which he had been appointed, granted upon intervening petition, and restraining him from obstructing a road which the court found to have been improperly vacated. Held, that the appeal was consonant with the relation which ought to exist between the receiver and the court, as the petition and answer were in the nature of an adversary proceeding in which the receiver represented the interest of the owner of the property of which he was temporarily in charge.</p> <p>2. Same—Injunction of Puimrc Nuisance.</p> <p>If, upon intervening petition, it be shown that a receiver lias been guilty of a iiublic nuisance, such as tiie ereciiou of a fence across a highway, it is the duty of the court to order its discontinuance, although the public character of the nuisance would prevent the petitioner from maintaining a suit thereon for injunction.</p> <p>3. Same—Vacation of Road.</p> <p>A receiver has no lawful right to obstruct a road which lias been vacated by a road commissioner upon petition of certain persons said to be resident along and in the vicinify of the road, where» ¡here has been a failure to comply with, the provision of the statute (Act Term. 1891, p. 1) in relation to notice, viewers, and waiver of damages.</p>

<p>1. Railroad Land Grants—Unsubveyed Lands—Tenants in Common.</p> <p>A land-grant railroad company is not a tenant in common with the United States in respect to lands which lie within its grant limits, opposite the completed line, but which have not yet been surveyed, so as to render the odd sections belonging to the company distinguishable from the even sections reserved to the government.</p> <p>3. Same—Enjoining Trespassers.</p> <p>The company has, however, such an interest in the lands as will entitle it to maintain alone (the government having ‘refused to join with it) a suit to enjoin trespassers who are cutting timber from the lands in such manner that the denuded portions will fall within the odd, as well as the even, sections when the survey is made.</p>

<p>Equity—parties—Petition of Receiver.</p> <p>The receivers of- a railroad company filed petitions in the suit in which. they were appointed, alleging that a certain other railroad, company, which was not a party to the suit, was unjustly discriminating against their company, and praying that such discrimination be restrained. Meld, that there was no jurisdiction to grant such relief in the original suit, and the petitions should be dismissed.</p>

This was a suit by the Nashua & Lowell Railroad Corporation against the Boston & Lowell Railroad Corporation, upon a contract in writing concerning the business of the two roads. The circuit court dismissed the bill, but complainant appealed to the supreme court, which held that complainant was entitled to an accounting, and accordingly reversed the decree, and remanded the cause. 10 Sup. Ct. 1004.

• This was an action by Eppinger A Russell against J. M. Steiner and others, as executors of Joseph Steiner, in which plaintiffs had judgment, and defendants bring error.

<p>1. Patents—Federal Jurisdiction.</p> <p>Plaintiff alleged infringement, and defendant set up a right to manufacture and sell under plaintiff’s patents, by virtue of a license which it held by assignment from the licensee. Plaintiff claimed that the license was unassignable, and that defendant had no rights thereunder. Held, that the matters to be determined arose out of and depended upon the patent laws, and the case was therefore one of federal jurisdiction. Hartell v. Tilghman, 99 TI. S. 547, distinguished.</p> <p>2. Same—Assignability of License.</p> <p>A license which contains no words importing assignability, such as “heirs,” “successors,” “assigns,” and the like, is unassignable.</p>

Action by E. M. Patton against the Texas & Pacific Railway Company for personal injuries, in which plaintiff' had judgment, and defendant brings error.

This was an action by Eli II. Murray, as receiver of the California Savings Bank of San Diego, against the American Surety Company of New York, to recover damages for breach of conditions of certain bonds. A demurrer to the original complaint was heretofore sustained. 59 Fed. 345.

<p>Husband Abandoning Insane Wife—Action for Support—Pleading.</p> <p>An institution which supports and cares for an insane wife, abandoned by her husband, can maintain an action against him, under the common law, to recover the reasonable value of such support and care, without expressly averring that they were furnished upon his credit.</p>

<p>1. Sale—Interpretation of Contract—Description of Goods.</p> <p>A contract for sale of “liigli grade kiln-dried” phosphate rock of a quality particularly described, provided that, whenever the seller should accumulate a certain quantity thereof, “of the proper quality to deliver under this contract,” the same should be taken by the buyer within a specified time after notice. Held, that a tender of such rock not kiln-dried, with an offer to have it kiln-dried before removal, was not a tender of a proper delivery under the contract.</p> <p>2. Parol Evidence—Conversations Prior to Contract. »</p> <p>A written contract for sale of kiln-dried phosphate rock provided that, whenever the seller should accumulate a certain quantity thereof of the proper quality to deliver, the same should be taken by the buyer within 80 days after notice of the seller’s readiness to make delivery. Meld, that prior conversations between the parties were not admissible to show that the rock might be kiln-dried after notice of readiness to deliver, or that the buyer was not to have full 80 days to take kiln-dried rock.</p>

<p>Application by Oppenheimer & Levy, importers, for review of a decision of the hoard of United States general appraisers concernihg certain importations of silk veils in the piece made by them.</p> <p>The contention of the United States was that the merchandise was in fact veils, although manufactured in the piece; that they were clearly marked and designated by a border, and adapted to no other use than for veils; that the mere cutting by scissors between the borders on a clearly marked line in the goods did not constitute any further process of manufacture, and nothing more was necessary to be done in order to constitute veils ready to be worn, and that veils were wearing apparel for women. Citing Arnold v. U. S., 147 U. S. 494, 13 Sup. Ct. 406; Maillard v. Lawrence, 1 Blatchf. 504, Fed. Cas. No. 8,971. It was urged on behalf of the importers that the goods were “piece goods,” and were commercially known as “silk veiling” and not as “silk veils,” and that it required a further process before they became veils ready for use.</p>

<p>Appeal from an interlocutory decree of the circuit court for the southern district of New York, which decreed in favor of the complainant in a bill in equity to restrain the infringement of the second and third claims of letters patent of the United States No. 341,-380, dated May 4, 1886, and of the first and third claims of letters patent. No. 388,366, dated August 21, 1888.</p>

These were five suits for infringement of a patent. They were brought by the Tripp Giant Leveler Company against the following defendants, respectively, viz. Clarence A. Itogers, Pérley Weeks, John M. Hoyes, the Portsmouth Shoe Company, and Maurice V. Bresnahan and others.

<p>1. Patents—Novelty and Invention—Piiocess of Fumigating Plants.</p> <p>The discovery that the okl process of fumigating plants and trees with hydrocyanic-acid gas, afior covering them with an oiled tent, is more effective in the absence of the actinic rays of the sun, gives no right to secure a patent for the use of that process at night, or other times when the sun is not shining.</p> <p>3. Same.</p> <p>Tile Wall. Jones & Bishop patent, No. 445.J42, for a process of fumigating trees, is void for want of novelty and invention.</p>

<p>This was a suit by Edwin Aorton and Oliver W. Aorton against the Eagle Automatic Can Company for infringement of letters patent Ao. 2(57,014, granted Aovember 7, .1882, to Edwin Aorton, for a can-heading machine. A preliminary injunction was heretofore granted (57 Fed. 929), mainly upon the strength of the decision of the circuit court of appeals, sustaining the patent, in Norton v. Jensen, 1 C. C. A. 452, 49 Fed. 859, and afterwards defendant was adjudged guilty of contempt in violating the same (59 Fed. 137).</p>

<p>1. Patents--Novelty.</p> <p>Evidence of want of novelty, .to deprive an inventor of the fruit of his genius, must he so definite and cogent as to produce strong belief.</p> <p>2. Same.</p> <p>Where a machine would naturally- be known to more than a few observers, the fact that it is claimed to have been known to but few at a particular time throws doubt upon its existence at that time.</p> <p>3. Same.</p> <p>Novelty is not negatived by prior sf me tures in another art, which were not designed or used, prior to the new invention, to do its work, though afterwards so modified in form and proportions, in the light of that invention, as to perform its function.</p> <p>4 Same—Operative Device.</p> <p>An inventor is not deprived of the fruit of his invention simply because the physical laws upon which it operates are not susceptible of satisfactory exposition. '</p> <p>5. Same—Dust Collectors.</p> <p>Claims 1, 2, and 3 of patent No. 403,362, claims 1 and 2 of patent No. 403,363, claim 4 of patent No. 403,770, and claims 1 and 2 of patent No. 408,987, of Orville M. Morse, for improvements in dust collectors, are all valid.</p>

<p>Towage.</p> <p>Libelants’ barges in tow of respondent’s tug were wrecked in a narrow channel in the Ohio river. Proper navigation of this channel required that the tow should be allowed to drift through it with the current, the tug backing, meanwhile, to keep control of it and steer it. Witnesses from the tug testified at the trial that this maneuver was undertaken, but that a severe gale blowing at the time turned the whole tow around so that the tug was helpless, and the current cast the tow on the bank. Witnesses from another boat testified that at the time of the accident the tug was going ahead; and it was shown that immediately after the accident the captain of the tug admitted that it was caused by the tug’s going ahead, owing to the engineer’s mistaking the signal bells. Held, that the accident was due to the negligence of the tug.</p>

Appeals from the District Court of the United States for the District of Massachusetts. These were four libels in admiralty,—the first, by William W..

In admiralty. The libel was filed by Michael Fahy against the mayor, aldermen, and commonalty of the city of New York to recover- for loss of a canal boat sunk at respondents’ wharf.

<p>Collision—Steam Vessels Crossing—Attempt to Cross Bows.</p> <p>Two tugs, towing a bark, came down tbe East river, bound west, and in tbe neighborhood of Corlaer’s Hook began to pull towards the New York shore. The steamboat R. P., having the tow in full view, attempted to cross its bow, despite opposing signals from the tugs, with which she thereafter collided. Held, that such attempt to cross the bows of the tugs was at the risk of the steamboat, and if, as she contended, the length of the tow made it impossible for her to go under its stern, then it was her duty to have stopped, instead of keeping on; and that the steamboat was solely liable for the collision.</p>

<p>These suits were couimenced as actions at law to recover damages for loss of life under the California statutes (Code Civ. Proc. §§ 376, 377). The first one was brought by Henry F. Smith and George C. Smith, infants, by Eliza A. Smith, their guardian, and Eliza A. Smith for herself, and as administratrix of the estate of Henry Smith, deceased, against the Occidental & Oriental Steamship Company and the Pacific Coast Steamship ‘Company, to recover for the death of the husband and father, Henry Smith. The second was by Eliza A. Smith, individually, against the same defendants, to recover for the death of her daughter, Myrta Smith.</p>

These were two libels, one in personam, by Mary McCullough, as administratrix of Patrick McCullough, deceased, against the New York & Norwalk Steamboat Company, owner of the steamboat City of Norwalk, and the New York, New Haven & Hartford Bail-road Company, owner of the steamtng Transfer No. 4 and of Car •float No. 16, for damages for the death of said Patrick McCullough by a collision between the steamboat and the car float while in tow of the tug; the other a libel in…

This was a petition filed by H. T. Hudson, Jr., in the case of the Finance Company of Pennsylvania and others against the Charleston, Cincinnati & Chicago Railroad Company and others, asking payment of a judgment, rendered in his favor for personal injuries, out of the proceeds of a foreclosure sale, prior to the payment of the mortgage debt.

This was a suit by the Mercantile Trust Company for foreclosure of a mortgage given by the defendant the Chicago, Peoria & St. Louis Hallway Company and others, upon default in the payment of interest..

<p>Contributory Negligence—Gates up at Crossing—Question for Court.</p> <p>Tiie question whether a pedestrian was gnilty of contributory negligence in not looting and listening at a railroad crossing for an approaching train, where the gates had not been lowered, is not a question for the jury, where the evidence leaves no doubt that, if such pedestrian had made any use of his senses, he could have both seen and heard, in due season, an approaching train, and thereby hare avoided the accident which resulted in his death. *</p>

This was an action by Robert Hamilton (for whom his executors, Cora B. Hamilton and John W. Bryant, have been substituted) against-the Phoenix Insurance Company on a policy of fire insurance. Robert Hamilton, the testator of the plaintiffs in error, filed his petition against the defendant in error, the Phoenix Insurance Company of Hartford, Conn., seeking to recover a judgment for the loss under a fire insurance policy in. the sum of $2,500.

<p>In Error to the Circuit Court of the United States for the District of Washington, Eastern Division.</p> <p>This was an' action by Ziegler against the Spokane Falls & Northern Bailway Company, in which plaintiff had judgment and defendant brings error.</p>

<p>Exceptions to Special Referee and Examiner’s Report, recommending discharge. Exceptions taken by the United States.</p>

<p>Customs Duties—Classification—Printed Tissue Paper.</p> <p>Tissue paper having certain colors, in stripes and plaids, printed or stamped thereon, and not of one uniform color, held to be dutiable at 8 cents per pound and 15 per cent, ad valorem, under paragraph 419 of the act of October 1, 1890, as “tissue paper, white or colored,” and not at 25 per cent, ad valorem, under paragraph 423, as “printed matter, not specially provided for.”</p>

<p>Appeal from Decision of Board of United States, General Appraisers. Board.</p> <p>Park & Tilford, in 1891, imported truffles in bottles. Duty was assessed thereon by the collector of customs at New York at 45 per cent, ad valorem, under paragraph 287 of the act of October 1, 1890. Importers protested, claiming duty at 40 per cent, ad valorem, under paragraph 271, and that truffles are a species oí fungi and assimilate to mushrooms.</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>In June, 1891, the defendants in error, Mihalovitch, Fletcher & Co., imported from Germany, through the port of New York, certain flint glassware, claimed by them to he bottle glassware. The merchandise was forwarded in bond to the custom house in Cincinnati, where the acting surveyor of customs assessed it for duty at 60 per cent, ad valorem, under paragraph 105 of the act of October 1, 1890. To tbis action of the surveyor the importers duly protested, claiming said assessment to be illegal, and insisting that the duty should have been assessed under paragraph 103 of said act, and asking to have $108.75, so illegally assessed, refunded. The importers appealed from the action of the surveyor at Cincinnati to the board of general appraisers at New York, under the act of June 10, 1890. In October, 1891, that board flled a decision sustaining the protest of the importers, and found the articles imported to he flint-glass bottles, under paragraph 103 of the act above cited, and to be dutiable at one cent per pound. Under the provisions of section 15 of the act of June 10,1890, the surveyor of customs, through John W. Herron, district attorney, filed his application in the circuit court of the United States for the southern district of Ohio, in October, 1891, asking that'court to reverse the decision of said board of general appraisers.</p>

<p>In Equity. Bill by the Pusey & Jones Company against Mary Ann Miller and Will W. Bierce.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a suit by the Philadelphia. Novelty Manufacturing Company against Albertos A. Weeks, for alleged infringement of letters patent No. 220,402, dated April 13, 1880, and No. 274,941, dated April 3,1883, both issued to Isaac W. Heysinger, and relating to what are known as “stapling machines,” being small tools for inserting and clinching wire staples near the edges of superimposed sheets of paper.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a libel by tbe Napier Shipping Company, Limited, against tbe Panama Eailroad Company, to recover damages for injuries received by libelant’s steamer Stroma, while lying at respondent’s pier at Colon, Panama. The district court originally dismissed the libel (42 Fed. 922), and libelant appealed to the circuit court, where tbe decree was affirmed pro forma, and an appeal taken to this court. On February 16, .1892, this, court reversed tbe decree (1 C. C. A. 576, 50 Fed. 557), with directions to ascertain the amount of libelant’s loss, and render a decree therefor with, costs. The cause was accordingly referred to a commissioner, and on the coming in of his report the exceptions taken thereto by respondent were overruled, and tbe report adopted.</p>

This was a libel by the United States seeking the forfeiture of 250 kegs of nails for violation of Rev. St. § 4847. The circuit court overruled a demurrer to. the answer, and entered judgment against the United States, from which they have appealed.

Circuit Court of the United States for the Southern District of New York. This was an action by James C. Heed against the United States, brought under Act March 3, 18S7 (24 Stat. 505), for expenditures by him as shipping commissioner. The circuit court rendered judgment for plaintiff.

<p>Suit by the Hot Springs Independent School District No. 10, of Fall River County, S. D., against the First National Bank of Hot Springs and Alvin Fox, receiver of said bank.</p>

<p>1. Corporations—Risht of Stockholder to Sue in Behalf of Corporation— H EOETVERS.</p> <p>A stockholder of a corporation that is in a receiver’s hands has no right to sue upon a cause of action in favor of the corjioration upon refusal of the receiver to sue on the stockholder’s request, without showing that he has asked the court that appointed the receiver to direct him to sue.</p> <p>2. Same—Pleading.</p> <p>A hill by a stockholder in a suit by him upon a cause of action accruing to the corporation which alleges that he has requested the directors to sue, and that they have neglected and refused to do so, without showing when or how the request to sue was made, nor upon what showing of facts, nor whether the persons who then composed the board of directors are still in office, is demurrable as not showing that the stockholder has exhausted all. means within his reach to obtain redress within the corporation itself.</p> <p>3. Action against Receivers—Leave of Court.</p> <p>Supp. Rev. St. 614, which declares that any receivers appointed by federal courts “may be sued in respect of any act or transaction of his in carrying on the business” without leave of court, does not authorize a suit by a stockholder of a corporation against its receiver and others, without leave of court, upon a cause of action which accrued to the corporation before the receiver was appointed, and upon which the receiver has refused to sue, since such refusal does not constitute an act or transaction in carrying on the business.</p>

<p>1. Wills—Contest of Validity.</p> <p>Under the laws of Oregon the validity of a will cannot be contested in the proceedings to probate it, which are purely ex parte; hut such contest must be made the subject of a direct attack upon the will in a formal suit inter partes.</p> <p>8. Same—Jurisdiction of Federal Courts.</p> <p>The proceeding under the laws of Oregon to contest the validity of a will which has been already admitted to probate, being a suit between parties, is one of which the United States circuit court may take jurisdiction, where the amount in controversy is sufficient, and the parties are citizens of different states.</p> <p>8. Same—Admission of Probate.</p> <p>In a suit to set aside a will on the ground that it was forged, where the bill fails to allege the probate of the will, but defendant’s answer alleges that it was admitted to probate, the defect in the bill is cured by the answer, and a demurrer on the ground of such defect must be regarded as waived.</p> <p>4, Same —Laches.</p> <p>In a suit to set aside a will as being forged, no laches can be Imputed to plaintiff on account of the length of time which has elapsed since testator’s death, where the suit was commenced immediately after the will was probated by the parties claiming under it, and there are no rights of third persons involved.</p>

<p>1, Constitutional Law—Delegation of Taxing Power—Roads.</p> <p>Acts Kan. 1887, c. 214, wliicli provides tliat, if the resident landowners within half a mile on either side of a road shall petition the county commissioners to improve the road, the latter shall appoint three road commissioners to take charge of the improvement and assess two-thirds of the expense against the lands in the district, the balance to he paid out of the general county fund, is an unconstitutional delegation of the taxing power, since Const. Kan. art. 2, § 21, which declares that “the legislature may'confer upon tribunals transacting the county business of the several counties such powers of local legislation and administration as it shall deem expedient,” necessarily precludes any implication of authority to delegate to road commissioners or to resident landowners near a road the power of taxing all the property in the county. Board v. Abbott (Kan.) 34 Pac. 416, followed.</p> <p>2. Samk—County Warrants.</p> <p>Certificates of indebtedness issued by a county by virtue of an unconstitutional law are void.</p>

<p>This was a motion by complainant, Henry W. I’utnam, a bolder of bonds secured by mortgage from the Jacksonville, Louisville & St. Louis Kailway Company to the Finance Company of Pennsylvania, ui)on Us sworn bill of foreclosure, for the appointment of a receiver of tin1 railway and premises and property covered by such mortgage; also, application for- a receiver, of certain intervening petitioners, employes of the Jacksonville Southeastern Line, of which the defendant railway company was a part; and also the application for a receiver, upon their intervening petition, of the receivers of the Chicago, Peoria & St;. Louis Kailway Company, which road was also a part; of the Jacksonville Southeastern Line.</p> <p>The Chicago, Peoria & St. Louis Railway Company was owner of about 168 miles of railway, extending from Pekin, III., through Havana, to Jacksonville, 111., with a line from Havana to Springfield, and a line of railway from Litchfield to Bast St. Louis, which latter line was disconnected from the former lines. The Jacksonville, Louisville & St, Louis Railway Company was the owner of the line of railway extending from Jacksonville, 111., through Litchfield, to Oentralia,—a distance of about 112 miles. The Litchfield, Carrollton & Western Railway Company was the owner of the line of 52 miles of railway extending from Barnett, 111., westerly, to Columbiana, on the Illinois river. These lines of railroad wore under one management, and were operated together under the name of the Jacksonville Southeastern Line. There appeared to be, however, no express agreement between the companies, providing for such joint operation, or for the terms thereof. The business was conducted in the name of the Jacksonville Southeastern Line. The employes were employed by the management under this name.</p> <p>Article 2 of the mortgage in question, from the Jacksonville, Louisville & St. Louis Railway Company to the Finance Company of Pennsylvania, provided that “until default shall be made by said party of the first paid, its successor» or assigns, in the payment of interest or principal of said bonds, or in the due observance of the covenants and agreements hereinafter contained on the part and behalf of the said first party of the first part, said party of the first part, its successors and assigns, shall be suffered and permitted to remain in the actual possession of said railway and premises, and tó exercise the franchises and rights relating thereto, and to collect, receive, and use the revenues and profits thereof in any manner which will not impair the lien created by these presents.” And the mortgagor thereby covenanted that it (the mortgagor), remaining in the possession of said railway and premises, should and would keep the said railway in good order, and safe running condition, and should and would, from time to. time, pay and discharge all taxes, assessments, and governmental charges lawfully imposed upon said railway and premises, so that the priority of said mortgage might be duly preserved, and that said mortgagor would not do or suffer any act or thing whatever whereby the lien of said mortgage might or could be impaired, until said bonds, and all interest thereon, should be fully paid and satisfied. Article 3 of the mortgage provided that in case default should be made in the payment of any installment of interest upon said bonds, or any of them, when such interest should become due and be demanded, and such interest, or any part thereof, should remain unpaid and in arrears for six months, or in ease default should be made in the due observance and performance of the covenant of further assurance in said mortgage, or in the payment of any taxes, assessments, or other governmental charges which might be lawfully levied or imposed upon said railway or premises, or any part thereof, and either of said defaults should continue for six months, or in case default should be made in the payment of the principal of said bonds, or any of them, then it should be lawful for said trustee or enter into and upon the said railway and premises, and the same to have, hold, and enjoy, operating said railway, making such repairs, replacements, and improvements thereto as the trustee might deem expedient, and to collect and receive all revenues and profits, and after deducting expenses and payments for taxes and assessments, or other charges or liens prior to such mortgage, to apply the revenues and profits to the payment of interest as therein provided. Article 5 provided that in case default should be made in any installment of interest, and such interest should remain unpaid and in arrears for six months, the principal of each and all of said bonds might be declared by said trustee, or by a majority in interest of the holders of all of said bonds outstanding, to be, and should become and be, due and payable immediately. Article 6 provided that in case default should be made in the payment of interest upon any of said bonds when such interest should become due, and be demanded, and such default should continue for six months, or in case default should be made in the payment of the principal of said bonds, it should be the duty of the trustee to take appropriate proceedings, at law or in equity, to enforce the rights of the holders of said bonds, upon a requisition signed by holders of at least one-third in amount of said bonds outstanding.</p> <p>The bill of complaint of Putnam, which was filed December 7,1893, alleged that said mortgagor railway company had made default in the payment of taxes lawfully levied upon said railway and premises, and that said default had continued for more than six months prior to December 1, 1893, and still continues; that on May 8, 1893, said mortgagor railway company, being in default in the payment of its taxes due for the year 1802 in Olinton county, 111., suffered and permitted its road to be sold for such taxes, and the same was sold, as provided by law, to one Keshner, for the sum of $1,302.84; that said railway company did not pay the taxes lawfully levied upon said railway and premises in Macoupin county, 111., for the year 1892, amounting to $2,538.35; and that, by reason thereof, penalties to the amount of $034.59, costs and interest to the amount of $51.03, had accrued, and that by reason of such failure said railway and premises in said county were forfeited to the state of Illinois, and that said taxes, penalties, costs, and interest in said counties are still due and unpaid, and that in both of said counties such default had continued for more than six months, and that said mortgagor railway company is, and for more than six months prior to December 1,1893, has been, in default for taxes lawfully levied and imposed upon such railway and premises for the years 1890 and 1891, in various counties in Illinois through which said railway extends; that penalties, costs, and interest have accrued upon the same; and that the railway and premises of said company have, in some of the counlies through which it extends, been sold, and in others forfeited to the state of Illinois, for and on account of such taxes. The bill alleged that said mortgagor railway company is hopelessly insolvent, and unable to pay its debts and current and presently accruing indebtedness; that it has failed and refused to pay wages and operating expenses, and other obligations and indebtedness, although the payment thereof has been duly demanded; that such unpaid indebtedness in arrears amounts to more than $200,-000, and that said railway company will he unable to pay the interest upon the bonds secured by said mortgage which will fall due January 1, 1894, amounting- to $32,500; and that said railway company has failed and neglected to keep its said railway in good order and safe running condition, but lias suffered and allowed the same to become and remain, and it now is, in bad order, and unsafe running- condition. The bill further alleged that complainant ascertained the facts alleged in said bill of complaint as to such defaults aliwtt December 5,1892, through his solicitor, in Chicago; 1hat thereupon said solicitor advised him of such facts, whereupon, on December 7, 1893, complainant communicated with said trustee in said mortgage, and advised said trustee of said default of said railway company, and of its insolvency, and of the necessity of action on the behalf of the bondholders for the protection of the lien and security of said mortgage, and requested said trustee to take proper steps for the protection of the interests of the bondholders represented by it, and to institute legal proceedings for the appointment of a receiver to conserve and protect the interests of said bondholders, and that said trustee lias failed and neglected to lake any steps in the premises; and that, thereupon, complainant was advised by counsel, and avers, that it is necessary for the protection of the lien and security under said mortgage, and of the rights of the holders of said bonds, to apply to a court of equity for relief in the premises, to the end that said properly be conserved, and the rights and interests of complainant and other bondholders protected.</p> <p>The intervening- petition of the employes stated the amounts owing to them under their employment by the Jacksonville Southeastern Line, hut such claims were not in judgment. The petition of the receivers of the Chicago. Peoria & St. Louis Railway Company alleged the joint operation of said lines of railroad under the name of ihe Jacksonville Southeastern Line; that the books were kept under that name; that moneys belonging to said Chicago, Peoria & St. Louis Railway Company had been used by the management to pay indebtedness of said Jacksonville, Louisville & St. Louis Railway Company; that the hooks of account of the fiscal transactions of said Jacksonville Southeastern Line had been so conducted as to be misleading; that the Chicago, Peoria & St. Louis Railway Company had been wrongfully charged with divers items, and that ihe Jacksonville, Louisville & St. Louis Railway Company had not been charged with items for whicli it was chargeable; that an accounting between said companies, and of the affairs of said Jacksonville Southeastern Line, was necessary,—and also alleged the defaults in the payment of taxes, and tax sales and forfeitures, which are alleged in said bill of complaint of said Putnam.</p> <p>Upon bill of complaint of tlie Mercantile Trust Company, Trustee, v. Chicago, Peoria & St. Louis Railway Company, and upon certain intervening petitions consolidated therewith, the court had previously appointed receivers of the Chicago, Peoria & St. Louis Railway Company, and included in such receivership the Jacksonville, Louisville & St. Louis Railway, and tho other railways above mentioned, composing the Jacksonville Southeastern Line; and upon the petition and motion of the Jacksonville, Louisville & St. Louis Railway Company for the release of its railway from such receivership, and the restoration to it of its property by such receivers, such motion was sustained by the court. Rut before such restoration was consummated or directed the present application for a receiver of the .Jacksonville, Louisville & St. Louis Railway Company was made and heard.</p>

<p>Building and Loan Associations—Dissolution in Equity— Accounting.</p> <p>Where a building and loan association, organized under a statute which declares that borrowers may repay their loans at any time, and be entitled to a credit of one-eighth of the premium for each of the unexpired years of the association’s eight-year period, is dissolved by a court of equity before the expiration of the eight-year period because it is losing money, the court called in all the loans, and distributed the proceeds among the stockholders, giving the borrowers credit for the unearned part of their premiums, as though they had voluntarily paid up, but gave them no credit on their loans for assessments and fines paid by them, since all the stockholders are alike responsible for the losses of the association.</p>

<p>1. Taxation—Makket Value of Cobpobate Stock..</p> <p>A tax upon the property of a telegraph company (“Nicholl’s Law,” Rev. St. Ohio, § 2778a), determined, in part at least, by the aggregate value of the shares of its capital stock, conflicts with a constitutional provision (Const. Ohio, art. 12, § 2) that the taxation of all taxable proi>erty shall be “by a uniform rule,” because the market value of such slock boars no necessary relation or proportion to the value of the tangible property of the corporation, and because it involves elements of value, such as the good will and earning capacity of the business, which are not taxable in the state, and not used therein to determine the value of the taxable property of individuals or other corporations.</p> <p>2. Same—Franchise of Cokpobation.</p> <p>Such tax cannot, be supported as a tax upon the franchise of the corporation to do business in the state, or as a tax upon the business of the corporation, or as a tax upon the property of the corporation, combined with such franchise and business, because the legislature lias not proscribed any definite mode of ascertaining the amount of such tax, and could not, under the constitution, conimit the determination of such amount to the discretion of a board of appraisers.</p> <p>3. Injunction—Illegal Tax.</p> <p>A federal court has no general equitable jurisdiction in such ease to enjoin a board of appraisers from certifying tbe amount to be assessed in each county upon the ground that such tax is illegal, nor does it acquire such jurisdiction under the provision of a state statute (Bov. St. Ohio, §§ 5848, 5849) that an action may bo brought to prevent the illegal levy of a tax against a corporation or person beneficially interested in ihe proceeds, and against a county auditor who completes the levy by placing it on the tax duplicate.</p> <p>4. Same'—Multiplicity of Suits.</p> <p>In such case, however, a federal court has jurisdiction to enjoin the board in order to prevent a multiplicity of suits in the several counties of the state. '</p> <p>5. Same—Amount in Oontboveiisy.</p> <p>Tbe jurisdiction of the federal court will not be defeated in such case by the fact that the assessment will not amount to $2,000 in any single county, because, the action being against the board of appraisers, the whole amount to be certified is the amount in controversy.</p>

<p>Taxation—Express Companies—Nichols Law.</p> <p>The “Nichols Law” (Rev. St. Ohio, § 2778a), which provides that the taxable value of the property of express companies doing business within the state shall be based upon the market value of their capital stock, violates Const. Ohio, art. 12, § 2, which requires that the taxation of property shall be “by a uniform rule;” for the value of the capital stock includes good will and other intangible elements of value, which are not taxed as against individuals and other corporations.</p>

<p>In Equity. On demurrer. Bills by the United States Express Company against Ebenezer W. Poe, auditor, John K. Richards, attorney general, and William T. Cope, treasurer, of the state of Ohio, and by the American Express Company against the same defendants.</p>

Bill by the Pacific Boiling-Mill Company against C. L. Hamilton and James Street Construction Company, a corporation, to recover the balance of purchase price of materials used in the construction of the James Street Cable Bailway in Seattle, and' to establish and foreclose a lien for said balance. On final hearing.

<p>Action by tbe firm of Swan & Barrett against the city of Arkansas City to recover interest on certain bonds.</p>

<p>In Equity.</p> <p>Suit by Henry E. Cotton against W. G. Dacey and otbers.</p>

<p>Appeal—Action on Bond.</p> <p>An appeal bond wbicb is given in a cause in which no appeal lies, and which does not operate to stay execution, creates no liability.</p>

<p>This was a suit by Joseph Walton and Isaac N. Bunton against the United States of America to recover interest on a certain judgment rendered by the court of claims.</p>

<p>- In Error to the District Court of the United States for the District of Kentucky. ■ •</p>

<p>1. Banks—Dnrosrrs—Individual and Trust Funds--Set-Off—Recbivebs.</p> <p>Debts of a partner and his firm to a bank cannot, in equity, be set off by a receiver of the bank against trust moneys which the partner, after the debts were contracted, mingled with the firm deposits, without the bank’s knowledge, and the whole amount of which remained continuously in tbe hank until it failed. 58 Fed. 99J, affirmed.</p> <p>2. Triad to Court—Agreed Statement—Waiver.</p> <p>A stipulation in an action of assumpsit to submit the case to the court on an agreed statement of facts, witli like effect as though the same had been found by a jury, judgment to be entered for tbe party which the court finds entitled, waives all questions as to the remedy adopted; and judgment may he entered for the party having the equitable right, without inquiring whether the same could be enforced at law. 58 Fed. 991, affirmed.</p>

<p>On the 16th day of January, 1893, the Lake Erie & Western Railway Company filed its bill for injunction against the defendants to restrain them from obstructing and interfering with the movements of its trains. A temporary restraining order was issued at once, in accordance with the prayer of the bill, and a further hearing of the cause was set for the 25th day of January, 1893, and certified copies of this order were served upon the defendants by the marshal. Afterwards, upon affidavits filed by the complainant showing that certain of the defendants had violated the restraining order, a rule was entered against them, requiring them to show cause why they should not be attached for contempt. On their failure to appear pursuant thereto, it appearing that service of the monitory order had been made upon them, an attachment was issued, and they were brought before the court and tried.</p>

Petition of appeal from the decision of the district court in the matter of Alanson T. Briggs, a bankrupt, and in the suits of Augustus Hutchins, as his assignee, against Alanson T. Briggs and others, and of the same against Amelia A. Tate and others. Samuel E. Briggs, as a creditor of the above-named bankrupt, made a motion in the bankruptcy proceedings pending in the United States district courtfor the southern district of New York to remove the assignee in bankruptcy.

<p>Appeal by Importers from Decision of Board of United States General Appraisers. G. A. 302, 1080.</p> <p>Certain vegetables, consisting of cucumbers and cauliflower packed in salt, in hogsheads, and imported into the port of New York in December, 1891, by Alart & McGuire, were assessed for duty by the collector of the port under paragraph 287, as above stated. The importers protested, claiming the merchandise was not “pickles,” nor “vegetables, prepared or preserved,” as known in trade and commerce, but that they were commercially known as “vegetables in their natural state,” and piroperly dutiable under paragraph 288; that they were packed in dry salt only for convenience and preservation during transportation. The Unified States attorney contended that the terms “prepared or preserved” were foot commercial terms, and had been judicially construed by the United States supreme court in Presson v. Iiussell (decided April 9,1894) 14 Sup. Ot. 728, jwhieh construction would cover and include the imported merchandise in sw'+ -</p>

<p>Appraisement for duty of certain artists’ colors, imported by one Rich.</p>

<p>Admiralty Jurisdiction—Dredge and Scows.</p> <p>A dredge and her scows are to be treated as one concern, and are subject to libel in admiralty for wages.</p>

<p>Admthat.ty .Titrtsdtctior—Mature Pump.</p> <p>A marine pump, which is weighted with heavy ballast, so as to rest on piles, but capable of floating and being towed from place to place, and which is used for sucking mud from beneath the water or from scows alongside,^ and forcing it by steam x>ower onto the adjacent land, is not a subject of admiralty jurisdiction.</p>

<p>Charter Party — Delivery oe Vessel in Foreign Port — Time—“About” April 10th—Seasonable Start Necessary—Breach oe Charter.</p> <p>Where the charter of a steamer, made at New York on March 3d, which all parties knew was hired for the fruit trade, provided that the vessel should he delivered for charterer’s use at a port in the West Indies “about April 10th,” held, that the word “about” gave the owner only such additional time as might be made necessary by accidents of navigation arising on the voyage after a seasonable start; and such delay in starting as would prevent the ship from arriving at the port of delivery before April 27th was, under the conditions of the trade in which the vessel was to be employed, a breach of the charter, entitling charterer to recover against the owner any damages sustained thereby.</p>

<p>This was a libel by A,. Foster Higgins and others against the steamship Allianca to enforce an alleged lien under a statute of the state.</p>

<p>This was a libel against the schooner O. P. Minch, filed by certain of her crew to recover salvage.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In Admiralty.</p> <p>For decision of the district court, see 48 Fed. 323.</p>

<p>Libel by Frank Hoffman against tbe steam propeller Nebraska.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This was a libel by William T. Sfyffe against the steam tug J. &' J. McCarthy, Frederick A. Verdón, claimant, to recover damages for personal injuries.</p> <p>The facts and the matters in controversy, aside from the testimony, were thus stated by the district judge;;</p> <p>“On the 19th of July, 1892, between 2 and S o’clock in the afternoon, the libelant, who was the captain in charge of the canal boat Fred Fassbender, which was going around the Battery in tow of the tug ,T. & J. McCarthy on a hawser about. 40 or 50 feet long, lost two of the fingers of his right hand by getting them smashed in changing the hawser from the port cleat to Uie forward bitts. The tow had been taken from the Wall about by two hawsers running to the port and starboard sides. Off pier 5 or G, East river, the star-hoard hawser either slipped or parted, and the canal boat, being held by the port line only, began to take a sheer to starboard. The libelant was at that time near the stern of his boat. Seeing the sheer, he ran forward, saw that the starboard hawser was gone, and, according to his testimony, was hailed by one of the men on the stern of the tug, who told him to shift the hawser from the port clea t, and put it over the bitts near the stem; that he attempted to do so; and that while putting the loop which formed the end of the port hawser over the hilts, the tug started up, and that his lingers were thereby caught between the hawser and one of the bitts about six inches from its top.”</p>

<p>This was a libel by Frank Deming against the steamship Argonaut for personal injuries to libelant while employed in unloading the steamship’s cargo.</p>

<p>In Admiralty. Libel by Heal against the Elena (1. for salvage.</p>

These wore cross libels by John Murray and another against the ferryboat Chicago, and by the Pennsylvania Railroad Company against the tug Volunteer, for damages from a collision between the ferryboat and a scow in tow of the tug.

This was a libel by George H. Dentz and another against the ferryboat Fanwood for damages to libelants’ steam tug Treush by collision.

This was a libel by Charles H. Winnett and others against the steamship Delaware for the loss of libelants’ tug Talisman by collision with the steamship.

These were two libels—one by John Egan, and the other by John A. Smith—against the Barclay Fibre Company, for demurrage for detention of libelant’s canal boats on delivery of cargo.

<p>In Error to the Circuit Court of the United States for the District of Washington.</p> <p>This was an action of ejectment by Charles F. Jones against the Everett Land Company.</p>

This was a suit by the United States Trust Company of New York against the Omaha & St. Louis Railway Company, in which J. F. Barnard was appointed receiver of the railway company. Thereafter said receiver made application to the court for an order and writ of injunction, with reference to garnishment proceedings about to be brought in the state courts to reach wages of his employes in his hands.

This was a suit by Charles Richardson against Ephraim T. Walton and Francis N. Duck, former copartners, wherein the bill of complaint, prayed that the articles of dissolution he declared to have been procured by fraud and duress, and that the same be reformed in accordance with the real value of the firm’s assets at the time of said dissolution. The case is fully reported in 49 Fed. 888.

In Equity. On petitions of Boston Safe-Deposit & Trust Company, trustee under mortgage of the Attleborough, North Attleborough & Wrentham Street-Railway Ooinjiany, Charles Francis Adams, owner of certain bonds of the Interstate Street-Railway Company, and the General Electric Company, owner of certain shares of stock of the Attleborough, North Attleborough & Wrentham Street-Railway Company, for appointment of separate receiver in the suit of Harvey Clan and others against…

In Equity. On motion for injunction. Suit by Spokane county against F. Lewis Clark, as receiver of the First National Bank of Spokane, to obtain payment in full of its deposit in said bank. Complainant moves for an injunction to forbid payment of dividends to creditors pending suit.

Petition by the Grievance Committee of the Brotherhood of Railway Trainmen, Lodge No. 196, Beattie, Wash., and James E. Corcoran, against Thomas R. Brown and John H. Bryant, receivers of the Beattie, Lake Shore & Eastern Railway Company, for an order requiring the receivers to conform to the terms of a certain contract.

<p>In Equity. On demurrer and plea.</p> <p>Suit by the Farmers’ Loan & Trust Company against the Chicago & Northern Pacific Railroad Company, the Northern Railroad Company, and others to foreclose a mortgage.</p>

This was a suit by the Farmers’ Loan & Trust Company against the Northern Pacific Bailroad Company and others to foreclose certain mortgages of the property of the railroad company, in which Thomas F. Oakes, Henry C. Payne, and Henry C. Bouse were appointed receivers.

This is a writ of error by the defendants in the court below to review a judgment for the plaintiff. rendered npon the verdict of a jury by the direction of the court. The plaintiff sued as receiver of the Oheyenne National Bank to recover the sum of $10,000 and interest, as the balance of an account due to the barde from the defendants.

This was an action in tbe nature of ejectment brought by tbe .Northern Pacific Railroad Company against Samuel Maclay and others. Held: possessed, and claimed under that patent at the time this suit was brought. That Chief Chariot lives upon, claims, and occupies one odd section of said Bitter Boot lands, and has done so ever since 1855.”

This was an action of ejectment by the Tyler Mining Company against the Last Chance Mining Company and others to recover possession of certain mining ground. At the first trial there was a verdict and judgment for defendant, but the judgment was reversed by this court. Mining Co. v. Sweeney, 4 C. C. A. 329, 54 Fed. 284.

This was an action by Mary Griffin against the Overman Wheel Company to recover damages for the death of her husband, John Griffin.

This is an action brought by George J. Novak, defendant in error, but herein designated as plaintiff, to recover damages against the Union Pacific Railway, plaintiff in error, hereafter designated as defendant, for injuries received by him on the 21st of July, 1890.

<p>Action by William Dittaur against the Narragansett Pier Railroad Company.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>This was an action by Mary M. Boberson against the Western & Atlantic Bailroad Company to recover damages for the death of her husband.</p>

This was a writ of error from the circuit court of the United States for the western district of Tennessee, sued out hy the plaintiff below, Francis J. Byrne, administrator of George Nason, deceased. The action was brought for the wrongful death of the plaintiff’s intestate against the Kansas City, Ft. Scott & Memphis Kailroad Company and the Kansas City & Memphis Railway & Bridge Company. 55 Fed. 44.

This was an action brought in the superior court of San Diego county, Cal., by C. V. Norton, against the Atchison, Topeka & Santa Fe Railroad Company, to recover the value of certain horses killed in course of transportation. Defendant removed the case to this court, and afterwards moved to quash the service of summons.

This was an action by Jesse W. Lillienthal against the Southern California Railway Company. Judgment was rendered for plaintiff, and defendant now appeals from the clerk’s taxation of costs in respect to the fees and mileage of certain witnesses, who attended without subpoena.

This was an action by Joseph E. Cook and L. E. Langley, partners under the firm name of Cook & Langley, against the Western Union Telegraph Company, to recover damages occasioned by mistake in the transmission of a telegram.

This was a libel by David J. Warn against the Davis Oil Company for damages to libelant’s canal boat, S. F. Phelps, from an explosion in defendant’s factory, near the dock at which the canal boat was lying.

This was a libel by .Nordiinger and others against Nelson, Don-kin & Go. for damages to a quantity of beans, part of the cargo of the ship Timor. Libelants’ beans were imported in bags, claimed to be of a standard size, designed to hold 100 pounds each.

This was an action by Maggie Minnick, for herself and as next friend of her children, against the Texas & Pacific Railway Company to recover damages for causing the death of her husband, W. W. Minnick. There was a verdict for plaintiff, hut the judgment entered thereon was reversed by this court for error in the instructions. 6 C. C. A. 387, 57 Fed. 388. A new trial was had, and verdict and judgment again rendered for plaintiff.

This was au indictment in three counts, under the act of September 26, 1888 (25 Stat. 496), for depositing postal cards of an alleged nonmailable character in the mails.

<p>On Habeas Corpus. Report of special referee and examiner, recommending the discharge of Yee Lung.</p>

On Habeas Corpus. Report of special referee and examiner, recommending discharge of Loo Yue Soon. Report set aside, and not confirmed, and Loo Yue Soon remanded. See preceding case of In re Yee Lung, (51 Fed. (543.

<p>Customs Duties—Cx,assifiovtton—“ScnMAKcmsir” Cloves.</p> <p>Ladies’ gloves, 14 inches or less in extreme length, manufactured from the skins of stillborn or immature kids, imported from Germany, described on the invoice as “schmasehen, low Quality,” costing from 14.50 to 15.25 marks per dozen, were properly dutiable as “schmasehen” gloves at §1.75 per dozen pairs, under Schedule N, par. 458, of the tariff aci of October 1, 1890, and not as “ladies’ kid,” at §8.25 per dozen pairs, under the same schedule and paragraph, and were not liable to the additional duty of §5 per dozen pairs, imposed by the first proviso of the said paragraph, and assessed upon them by the collector, in addition to the duty of §8.25 per dozen pairs.</p>

<p>Appeal by the collector of the port of New York from a decision of the board of United States general appraisers reversing the decision of the said collector as to the dutiable character of certain illustrated supplements printed in Germany in the German language, and imported by the New York Daily News Company, which merchandise was classified for duty by the said collector as “printed matter,” at 25. per cent, ad valorem, under schedule M, par. 423, of the tariff act of October 1,1890, which is as follows:</p> <p>“423. Books, including blank books of all kinds, pamphlets and engravings, bound or unbound, photographs, etchings, maps, charts, and all printed matter not specially provided for in this act, twenty-five per centum ad valorem.”</p> <p>Against this classification the importing corporation protested, claiming that the merchandise was “periodicals,” and duty free, under the free list (paragraph 657) of said tariff act, which is as follows:</p> <p>“657. Newspapers and periodicals; but the term ‘periodicals’ as herein used shall be understood to embrace only unbound or paper covered publications, containing current literature of the day and issued regularly at stated periods, as weekly, monthly, or quarterly.”</p> <p>The local appraiser reported to the collector that the merchandise was pictorial sheets intended to be given away with the German edition of the New York Daily News. No testimony was taken by the board of general appraisers, and that board, in its decision, found, in substance, that the publication was an eight-page pictorial paper, “New. Yorker Lustige Blaetter;” that these papers contained stories, poems, selections of German humor, and other current literature; that they were issued weekly; that they were to be used as supplements to the German edition of the New York Sunday News. As conclusion of law, the board found that they were “periodicals,” within paragraph 657 of the tariff act, and duty free, thereby sustaining the protest of the importers. The collector, thereupon, by petition, appealed the case into the circuit court, under the provisions of the customs administrative act of June 10, 1890; and the board of United States general appraisers made its return to the court, sending up therewith samples of the printed matter in question. An order for the taking of further evidence in the circuit court was obtained on the part of the government, and testimony was accordingly taken before a referee appointed by the court. From this testimony, it appeared that the supplements in question were printed in Munich, Germany; there being in that city a German publication called “Lustige Blaetter,” which appeared there in very large editions, furnished to different German newspapers as a supplement, with various and different headings and devices, appropriate to the newspapers issued in German' cities; that this “blew Yorker Lustige Blaetter” was specially printed in Munich, Germany, for the New York Daily News, and was furnished with a special heading, representing the Brooklyn Bridge, and the Statue of Liberty in New York Harbor; that upon these supplements appeared the statement, in German, that they were issued or printed or published (according to the translation of the German words used) by the New York Daily News at 31 and 32 Park row, New York City; that these supplements were numbered regularly during the year, from 1 to 52, hut contained no date upon any of the numbers. The German edition of the New York Bunday News, published weekly, contained an advertisement each week referring its readers to the gratis supplement by sucii. and such a number. It was also shown'that these; comic German extras were received in invoices containing usually two numbers, in large lots, of many thousand copies, and were, after importation, issued regularly, by numbers, with the Sunday edition of the New York German Daily News.</p> <p>On the trial in the circuit court, it was contended on behalf of the government that the uucoiitradicied evidence showed that the comic extra was merely printed in Munich for the New York Sunday News, with special headings, and the statement that the extra was published in New York City, and that the’publication had never been, and was not, regularly issued in Germany, so as to bring it within paragraph 657 of the free list of the tariff act, hut that it became a periodica] only when issued with the weekly edition of the German Bunday News in New York City. The importers’ counsel insisted that the publication was regularly issued in Germany in weekly numbers furnished regularly to many-newspapers in that country, and also to the importers in question, and that it was, when Imported, a periodical, entitled to free entry, under paragraph 657 of the free list. After deliberation the court handed down the following opinion, sustaining the claim of the collector and of the United States, and reversing the decision of the board of general appraisers.</p>

<p>Suit by the Empire State Nail Company against the American S. L. Button Company and others for injunction. Complainant moves for a preliminary injunction.</p>

This was a suit by Morris F. Bray and Oscar Lublin against Edwin <T. Denning and others for infringement of letters patent No. 440,246, granted to Morris P. Bray for a dress stay.

<p>1. Patents—Anticipation—Cancellation—Estoppel.</p> <p>Complainant applied lor a patent for an improvement in electric railways. He was informed by the patent office that his application showed, but did not claim, the same invention covered by a pending application; and upon its suggestion he added claims covering the same. An intrference was then declared, and it was decided in his favor. It was after-wards held that these additional claims covered magneto machines, as well as dynamo machines, and that ihey were consequently anticipated by an existing British patent; whereupon complainant canceled them, and a patent was issued on the original claims. The canceled claims, which were made to conform to the broad construction which the patent office placed on the patent, embodied substantially the same combination as the claims which were allowed. Held, that their cancellation, showing his acquiescence in the holding of anticipation, did not estop complainant to insist upon his own narrower construction of the original claims as embracing only dynamo machines, in order to avoid- anticipation of them, also, by the same patent that caused the rejection of the additional claims.</p> <p>2. Same—Pkior State of Art—Eleotiuo Railways.</p> <p>Letters palent No. 407,188, granted July 10, 1889, to Stephen I). Fie’d, for improvements in electric railways, claimed “the combination of a stationary dynamo-electric, generator, driven by a suitable motor; a circuit of conductors composed, in part, of an insulated or detached section of the line of rails of a railroad track; a wheeled vehicle movable upon or alongsaid insulated section of track; an electro-magnetic motor mounted upon said vehicle for propelling the same, and included in said circuit of conductors; and a circuit controlling device placed upon said vehicle.” Held that, in view of the prior state of the, art, as shown by British and French patents and the experiments of American inventors, the only improvement involved in Field’s combination w as the selection of a generator producing a sufficient current to operate the railway, and this did not constitute invention.</p> <p>8. Same—Sufficiency- of Caveat.</p> <p>One Stephen D. Field iilod a caveat in the patent office intended to cover a proposed improvement in electric railways, which consisted substantially of a stationary dynamo-electric machine whose wires connected witli rail!, which, together with the wheels of the vehicles -which were to run thereon, served as conductors of the current to a secondary dynamo-electric machine placed on the vehicle itself, and geared to its axles. Thereafter, on July 16, 1889, letters patent No. 407,1,88 were issued to him for such improvement; but in the patent, instead of using- the rails as conductors, and the wheels as collectors, he made use of a third rail and an additional collector. Held that, in view of this deviation, and of the fact that the caveat does not describe either generator or motor, it is not such a complete and exact description of the invention as will entitle the patent to priority as of the date of the caveat.</p> <p>4. Same—Assignment—Estoppel.</p> <p>Fending an interference declared by the patent office between applications for patents filed by Stephen D. Held and by Thomas A. Edison, complainant corporation was formed for the purpose of developing under one management the inventions of these two parties, and both patents were assigned to it. After a time the stockholders representing tlie Edison interest, refused to advance any more money to further the ends of the corporation; and it was finally agreed that each party should resume what It had put into the enterprise. The complainant assigned all its rights in Edison’s patents to ihe General Electric Company, representing the Edison interest; and that company transferred to complainant all the stock received by it as its share of complainant’s assets. Held, that this was a mere transfer of stock in complainant corporation, and was not such a sale to it of the Field patent, or any interest therein, as would estop the General Electric Company to question the validity of such patent.</p>

<p>This was a suit by Joshua B. Jones against William A. Holman and others for infringement of letters patent Ho. 432,411, for an invention relating to easel albums.</p>

This was a suit by Samuel F. Merritt against John D. Middleton and Beuben S. Middleton for alleged infringement of United States letters patent Xo. 175,821, for improvements in eyeglass holders, issued April 11, 1876, to I. Xeal Clawson, and assigned to complainant.

<p>Patents fob Inventions-Infringement-Steam-Heating Pipes.</p> <p>Letters patent No. 269,224, issued December 19, 1882, to Eugene P. Osborne, for improvement in steam piping for heating, consisting in a change in the place where the steam supply pipe is connected with the seal tank, is not infringed by a system of steam heating consisting of the old single-pipe system, without any seal tank, even though the incidental depression of a pipe under a doorway should cause it to be occasionally filled with water, since that would not constitute a water seal between radiators, within the meaning of the patent.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a suit by John M. Cornell against Achille Bataille, for alleged infringement of the first claim of letters patent No. 213,119, issued March 11, 1879, to Maddox & Humphries, for improvements in folding gates.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a suit by Maynard, Merrill & Co., a corporation, against William Beverley Harrison, for infringement of copyright.</p>

<p>1. Admiralty Jurisdiction—Floating Bath House.</p> <p>A bath house built on boats, and designed for navigation and transportation, is within admiralty jurisdiction.</p> <p>3. Salvage—Subject-Matter.</p> <p>Use in trade and commerce, of the property savéd, is not essential to salvage.</p> <p>3. Same—Liability of Bailee.</p> <p>A bailee in possession of a floating bath for repairs disobeyed the owner’s directions as to its fastenings for security from storms, and increased its weight and exposure. Held, that he took the risk of its going adrift, and was bound to indemnify the owner for salvage thereupon.</p> <p>4. Same — Suit in Personam — "Request” for Service within Admiralty Rule 19.</p> <p>A floating bath house, the property of a city, but in possession of a bailee for repairs, having gone adrift with no one on board, was picked up by a tug. Held, that as it was equally of the highest interest .to the bailee and to the city to have it rescued, and as the right to- proceed in rem against public property was 'doubtful, the request necessary, under S. Ct. admiralty rule 19, to sustain a suit in personam, might be implied, as respects both owner and bailee.</p> <p>6. Same.</p> <p>Query, whether any part of admiralty rule 19 is applicable where the tes is exempt from arrest as public property.</p>

<p>1. Salvage—Compensation.</p> <p>A steam barge worth $2,500, laden with a cargo worth $600, was found derelict and in peril in Long Island sound, and was towed to port by the salvors, who were in an oyster steamer. The time consumed was 6Y2 hours; the distance towed was 3% miles; and the rescue was made with danger, to the life of one of the salvors and some danger to the oyster steamer, which was worth about $15,000. Held, that the salvors were entitled to $800 compensation.</p> <p>2. Same—Dubbss.</p> <p>Where the owner of a vessel in the possession of a salvor takes possession by force, threatens the salvor with violence, and induces him to accept less than his claim for salvage, such settlement is not binding on the salvor.</p>

<p>Salvage—Amount—Towage—Evidence.</p> <p>The steamship Chinese Prince, when off Cape Romaine, in the latter part of December, broke her piston rod and the head of her high-pressure cylinder. She was some 13 miles from shore, in water from 0 to 13 falhoms deep, and in the track of coastwise vessels. She might have repaired damages in about 40 hours, and proceeded to port under sail and her low-pressure engine; hut she signaled for assistance, and about midnight was taken in tow by the steamboat Dessoug, and brought into Charleston the next day. At the time of the accident, and for some days after, the weather was good, and at no time did either vessel incur extraordinary risk, or were the lives of Iheir crews in danger. The detention did not interfere with the regular scheduled trips of the Dessoug out of her home port, Savannah, but she incurred extra expenses to the amount of §750. The value of the Chinese Prince and her cargo was from §225,000 to §250,000; that of the Dessoug, about §140,000. Held, that the Dessoug rendered a salvage service, for which §5,000 is an adequate reward, cohering also the extra expenses.</p>

<p>1. Shipping—Charter Party "Guaranty op Speed—“Light-Laden.”</p> <p>The charter of a steamship for the fruit trade guarantied that she should make a certain average speed, “fruit or light-laden.” Held, that the term “light-laden” must he construed in reference to the context, and the vessel was to he deemed light-laden, in respect of draft, if her draft did not exceed that of a full fruit, cargo, and in reckoning weight of cargo the weight of so much ballast as would be needed for a fruit cargo should not be counted.</p> <p>2. Same—Waiver op Objections to Loading.</p> <p>Failure of a steamer to make the speed guarantied by her charter cannot be excused by objections to her trim, as loaded by charterers, which were not made by the master at the tíme of loading, the deficiency in speed having been frequently complained of.</p> <p>3. Same—“Lay-Up” Ouause.</p> <p>A clause in a charter of a steamship for the fruit trade stipulated that she “is to lay up for overhauling two weeks each year in winter, at time charterers designate.” Held, that this assumed the need of overhauling, and the charterers’ arrangements as to time therefor, and cessation of pay during such period, could not be defeated by the owners’ claim that overhauling was unnecessary.</p>

<p>1. Appealable .Judgments—Interlocutory Decree for Accounting.</p> <p>A decree determining the right of a complainant to an account, and settling the principles on which the account should be taken, is interlocutory merely, and no appeal lies therefrom.</p> <p>2. Jurisdiction of Federal Courts—Diverse Citizenship—Proper Parties.</p> <p>A contract between two corporations Cor the joint operation of part of a line of railroad owned by them provided that the local freight business should be (Jone by one of them, which should receive a certain percentage of the earnings therefrom, the remainder to be divided equally; and that corporation subsequently leased its line for a certain percentage of the gross earnings thereof, including the proper proportion of the earnings of said part. Thereafter the lessee, claiming to be entitled to all the rights of its lessor under the contract, brought, suit for an accounting of local freights carried on said part of ilie line by the successor of the other party to the contract, and made both such successor and the lessor parties defendant. Held, that the lessor was a proper, though not a necessary, party,' and as its interests in the controversy were identical with complainant’s, and it and the other defendant wore corporations of the same state, a federal court had no jurisdiction, although complainant was a corporation of a different state.</p>

<p>1. Federal Courts—Equitable Remedies under State Laws—Restraining Collection of Tax.</p> <p>A. remedy by injunction against the collection of an illegal tax, expressly provided by a state statute, may be applied by federal court of equity in the state, notwithstanding the statute also provides for an action at law to recover back the tax when paid. Cummings v. Bank, 101 TJ. S. 153, followed.</p> <p>2. Same—Lien for Taxes as Cloud on Title.</p> <p>A federal court of equity has jurisdiction to afford relief against the illegal assessment of back taxes under a state statute making .them a lien on real estate, thereby throwing a clond on the title thereto.</p> <p>3. Constitutional Law—Due Process of Law—Notice of Assessment of Tax.</p> <p>Proceedings by a county auditor under Rev. St. Ohio, § 2781, by which an assessment for taxes of years preceding the current year is entered on the general tax duplicate against the taxpayer without notice or opportunity to be heard, which assessment is a clond on the title to his realty, and a lien on his property enforceable by distraint and sale of 'goods without suit in court, deprive him of his property without due process of law, and are invalid under Amend. Const, art. 14.</p> <p>4 Same—Disqualification by Interest.</p> <p>Such proceedings by the auditor being 'judicial in their nature, Ms direct pecuniary interest therein under Rev. St. Ohio, § 1071, which entitles him to a commission of 4 per cent, on all taxes added by him to the duplicate under section 2871, is a disqualification which makss the proceedings, when conducted by him, not due process of law within Amend. Const, art. 14</p> <p>6. Taxation—Restraining Collection—Amendment of Bill.</p> <p>Failure of a bill for injunction against collection of a lax to aver that plaintiffs have property within the distraining process authorized therefor may be supplied by amendment, after submission of the cause, where the averments of the original bill were a sufficient basis for the temporary injunction allowed, and the facts are manifestly incontestable.</p>

<p>1. Writ of Assistance—Against Whom Issued.</p> <p>A writ of assistance should not; issue against one who is not a party to the suit, and who did not enter pendente lite.</p> <p>2. Receivers—Controversy Regarding Possession of Property.</p> <p>Property leased by one railroad company to another, and in possession of a receiver of an assignee of the lessee, was claimed by the receiver of the lessor on the ground that the lease had been terminated by notice by the lessor. Held, that the court which appointed both receivers had jurisdiction of a proceeding- for determination of the controversy, either by an independent bill or by petition.</p> <p>8. Same—Property in Possession of Licensee.</p> <p>Properly of a corporation in possession of a licensee at the time of the appointment of a receiver for the corporation passes to the receiver, subject to the rights of the licensee, and, on the termination of the license, the receiver is entitled to possession.</p> <p>4 Same—Judgment Affecting Right of Possession—Res Judicata.</p> <p>Where an action of unlawful detainer is brought before a justice of the peace for property in possession of a receiver without leave of court, a judgment for defendant, being null and void, is not available to the receiver as a defense to a subsequent proceeding to obtain possession of the same property.</p> <p>5. Equitable Estoppel—Reliance on Erroneous Statement — Revocation ■ of License.</p> <p>A license by one railroad company to another to use certain depot grounds provided for its termination on two years’ notice by the licensor., Soon after such notice had been given, the licensee assigned its rights to another company, for which, subsequently, a receiver was appointed; whereupon the licensor wrote said receiver a letter, informing him of the notice of termination of the license, referring thereto as of a date a year later than its actual service, and inclosing a copy of the notice, not dated. An attentive reading of the letter would have indicated to the receiver that there was some mistake as to the date of notice. Held, that the licensor was not thereby estopped to claim the property on the expiration of the notice, in the absence of evidence that the receiver relied on the statement of the letter, and was injuriously misled thereby, notwithstanding averments to that effect in his answer, not responsive to the allegations of the licensor’s pleading.</p>

This was an action by William Johnston against the Canadian Pacific Railway Company for personal injuries. A demurrer to defendant’s plea was sustained (50 Fed. 880), and the plea wras amended, and issue joined on replication to the amended plea. On trial, a motion to direct a verdict for defendant was overruled, and the jury found a verdict for plaintiff, and judgment for plaintiff was entered 'therein. Defendant brought error.

<p>In Error to the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>This was an action by William Cotter, administrator of John T. Cotter, deceased, against the Alabama Great Southern Railroad Company, for damages for the death of said John T. Cotter. At the trial the court directed a verdict for defendant.</p>

This was an action by Alfred E. Alvord against the Mutual Fire Insurance Company of New York on a policy of insurance against fire. At the trial the jury found a verdict for plaintiff.

<p>In Error to the United States Court in the Indian Territory.</p> <p>This was an action by Etta Bevil and others against the Ardmore Coal Company for damages for the death of Henry Bevil. At the trial the jury found a verdict for plaintiffs.</p>

<p>Horse and Street Railroads—Negligence—Collision—Instructions.</p> <p>Where, in an action against a street-car company for injury caused by a collision, defendant asks an instruction to the effect that, if plaintiff stopped his horse near the car, and the car then started with the horse in a position of safety, and the horse became unmanageable from having been scared by the ringing of the gong, and jumped in front of the car before it could be stopped, tbis would not be negligence, it is proper to modify the instruction by adding that if the horse was in a state of alarm, and the gong was rung violently, and so near to the horse as to produce greater alarm, and cause the accident, that might he negligence..</p>

<p>These were three libels against the ship Dunbritton,—the first, by K. Flemming Crooks and others; the second, by Morris F. Knudson and others; and the third, by Henry Smail and others,-—all to recover for damages, by leakage of oil, to plumbago and other goods, cargo of said ship.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>This was a suit by Elliott M. Bonnell and John S. Lambing against Bobert P. Stoll and others for infringement of a patent for improvements in bed bottoms.</p>

Action of ejectment by the lieirs of Morrill against Scott and others, for lands claimed by plaintiffs under a patent from ihe… Held: or derived from or under any grant of the commonwealth, bearing date previous to the first day of January, 1845, who shall have discharged all taxes duly assessed and charged against him or them upon such lands, and all taxes that ought to have been assessed or charged thereon from the lime he, she, or they acquired title thereto,…

. Appeal from tbe Circuit Court of the United States for the Southern District of Illinois. Petition by William McCammon against the Chicago & Ohio Biver Bailroad Company for an order requiring the company to pay peti-' tioner the amount of a certain judgment.

<p>Public Lands—Homestead Entry—Grant to State—Annulling Certification.</p> <p>Lands selected by a stale under a grant by congress (Act Sept. 4, 1841) were certified to it, and thereafter conveyed by it and its grantees. Several years afterwards, a settlement was made thereon hy one claiming under the homestead laws, but his application for entry and his final proofs were rejected on the ground of such previous selection and certification. BcM, that lie stood in no such privity with the United States as would entitle Mm to maintain a suit to cancel the certification to the state, or to obtain the benefit thereof, on the ground that the lands were not subject to selection hy the state.</p>

<p>Appeal from tlie Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>Creditor’s hill by the National Foundry & Pipe Works, Limited,, against the Oconto Water Company, S. D. Andrews, W. H. Whit-comb, Charles C. Garland, F. H. Todd, George W. Sturtevant, Jr.,</p> <p>5. W. Ford, Matt S. Wheeler, A. J. Elkins, N. S. Todd, Minneapolis Trust Company, Oconto National Bank, City of Oconto, and Oconto City Water-Supply Company.</p> <p>An order was entered appointing a receiver for the property of the water company and restraining the defendants from interfering therewith. Defendants Andrews and Whitcomb appeal.</p> <p>This appeal is from a preliminary order of injunction granted in connection with an order appointing a receiver of the property and effects of the OcontoWater Company. By the terms of the order, the appellants, Andrews & Whitcomb,'with, others, were restrained "from holding, managing, or interfering in any way with the rights, franchises, property, rents, profits, bonds, and affairs of said Oconto Water Company and the said water plant in the hands-of said receiver, and from asserting any right, title, or interest in the property or the rents, issues, and profit^ thereof, until the further order of the court.” When this order was made, Andrews & Whitcomb were in possession of the waterworks, claiming title by purchase at a foreclosure sale under a mortgage made to them by the Oconto Water Company to secure the repayment'of money loaned which was used in the construction of the plant. The appellee, at whose instance the receiver was appointed and the injunction granted, was a judgment creditor whose execution had been returned unsatisfied. For a detailed statement of the facts, reference is made to the opinion delivered in the circuit court, reported in 52 Fed. 29. The mortgage under which the appellants assert title was executed in pursuance of the contract of September 13, 1890, whereby it was agreed that there should be a transfer in trust to the appellants “of the Oconto waterworks franchise as issued to said Oconto Water Company;” but, by its own terms, the mortgage or- deed of trust was of “all the rights, privileges, immunities, franchises, and powers, of whatsoever name or nature, which were granted unto the said Oconto Water Company in and by that certain ordinance passed by the common council of said city on ihe ninth day of July, A. I). 1890, being ordinance No. 153,” etc.; following which the mortgage proceeds to say: “To have and to hold the said rights, privileges, immunities, franchises, and powers, and each and all thereof, unto the said Andrews & Whitcomb, and unto their1 heirs and assigns forever; and The said Oconto Water Company, for itself and its successors, hereby covenants and agrees to and with the said Andrews & Whitcomb that it has good right and lawful authority to sell, assign, transfer, and set over in the manner aforesaid all of said rights, privileges, immunities, franchises, and powers, and that it is the owner and holder of all thereof on the date hereof.” The first section of the ordinance contains the grunting clause, and reads as follows: “Section 1. That the Oconto Water Company, its successors and assigns, he and are hereby authorized, subject to the limitations herein or by law provided, to construct, own, maintain and operate water-works in the city of Oconto, to lay pipes for the carrying and distributing of water in any of the streets, avenues, alleys, lanes, bridges or public grounds of the city as now or may hereafter he laid out, to acquire and hold as by law authorized any and all real estate easements and water rights necessary to that mid and purpose, with all necessary and proper buildings, wells, conduits or other means of obtaining water supply, with all necessary machinery and attachments ihorp.ro to supply the city and inhabitants thereof with good and wholesome water, suitable for fire and domestic purposes, and for this purpose may enter upon any street, avenue, alley, lane, stream, bridge or public ground under control of tire city, to take up any pavement or sidewalk thereon, and make such excavations as may be necessary for the laying of such pipe and attachments; provided, that such use of such ground he made with the least practical inconvenience to the inhabitants of said city; that such excavations he guarded by barricades wherever necessary and lighted at night, and that such sidewalk, pavement or excavation be replaced by and at the expense; of the grantee, its successors or assigns, in as good condition as before, as nearly as practicable. and with'the least possible delay. Hard grantee and its successors or assigns shall assume all risk of accidents arising from the construction and operation of said water works and shall save the city harmless from all damages therefor.” The city of Oconto by its charter (chapter 5fi, Laws Wis. 18821 is given “the general powers possessed by municipal corporations at common law,” and among other specified powers is authorized “to enact, enforce, alter, amend and repeal ordinances, rules and by-laws, for the benefit of the Irado, commerce and health,” and “to provide1 for the erection of water-works for the supply of water to the inhabitants of the city.” By section 030a of chapter 125 of the Acts of 1879, every city of Wisconsin was authorized “to permit,” subject to rules and conditions of its own choice, “the laying of pipes in the streets and alleys and the maintenance and use of such pipes for the purpose of convoying water,” etc.</p> <p>The Oconto Water Company was incorporated July 8,1890, under the general law of the state, which required ihe articles of incorporation to contain a statement “of the business or purposes” of the organization; and, in compliance with that requirement, the articles stated that this company was formed “for the purpose of constructing and operating a system of waterworks within the city of Oconto, in Wisconsin, for supplying said city and its inhabitants with water for protection against lire, and for domestic, manufacturing, and other purposes.” Upon an analysis of the several statutes and the ordinance referred to,-the court below reached tt<o conclusion that the water company received its franchises directly from the state and not from the city under the ordinance mentioned, and that ihe mortgage, and the decree of foreclosure and sale thereunder, limited as they were by their terms to franchises granted by the ordinance, vested the appellants with no interest in the property or franchises of the water company. Upon this point the court said: “At the threshold of the inquiry, the court is confronted with the question what rights Andrews & Whitcomb acquired under the agreement of September 13, 1890, the instruments executed pursuant thereto, and the foreclosure of the rights thereby acquired. The grant to them was of ‘all the rights, privileges, immunities, and powers, of whatever name or nature, which were granted unto the said Oconto Water Company hy the ordinance of the city of Oconto.' What tights could the city lawfully grant, and what were granted? The solution of the questions depends upon the powers confe^’ed upon that municipality. The city by its charter is vested with the general powers possessed by municipal corporations at common law, and with certain governmental powers specifically defined in its charter, and with authority to enact and enforce ordinances under the ‘general welfare’ clause usual in charters of municipal corporations, and specific power is vested touching various matters of municipal concern. Laws Wis. 1882, c. 56. The general power is conferred upon cities’to borrow money and to issue negotiable bonds for the purchase or erection of waterworks. Rev. St. Wis. § 942. By chapter 125, Laws 1879 (Sanb. & B. St. § 930a), the common council of every city is authorized to permit, subject to such rules and -regulations as may be imposed, the laying of pipes in the streets of the city, and their maintenance and use, for the purpose of conveying water or steam under the surface of the streets. By the general statute entitled ‘Of Cities’ (Laws 1889, c. 326; Sanb. & B. St. c. 40a), cities are authorized to own and operate waterworks, and to legislate on all matters with reference to their construction, operation, management, and protection (section 925i\’). In the chapter entitled ‘Organization of Corporations’ (Rev. St. Wis. c. 86), under which the Oconto Water Company confessedly had being, it is enacted that ‘any corporation formed for the purpose of eonstrueting and operating water-works in any city or village of this state may make and enter into any contract with such city or village to supply such city or village with water for fire and other purposes upon such terms and conditions as may be agreed upon, and may, by the consent of, and in the manner agreed upon, with the proper authority of such city or village, use any street, alley, lane, park, or public grounds for laying water pipes therein; * * * and any such city or village may, by contract duly executed by the proper authorities, acquire the right to use the water supplied by such corporation, or such portion thereof as it may desire, upon such terms and conditions as may be agreed upon by such corporation and the authorities of such city or village.’ Section 1780, as amended. These are all the statutory provisions which I have been able to find touching the question of municipal authority and corporate franchise here presented.</p> <p>“It may be difficult to enumerate the common-law powers of a municipal corporation. It is certain, however, that the conferring of franchises upon other corporations is not one of them. Under its charter, by a well-known principle of law, it' can exercise no power not expressly granted or fairly to be implied. It may be that, by virtue of its duty to care for the public health and safety, a city has the power to contract for a supply of water; but it cannot, without express legislative authority, construct, maintain, or operate waterworks. Dill. Mun. Corp. (4th Ed.) § 27. Without like authority it cannot grant exclusive right to use the streets, and a distributing plant located in the streets is essentially a monopoly. The right to use the public highways for gas pipes or water mains rests in legislative authority, directed, granted, or delegated to municipalities. So, likewise, the right to operate waterworks is of legislative origin, and can only be conferred by a municipal corporation when expressly authorized by the supreme legislative power of the state. It cannot be doubted that the common council of the city of Oconto, in the enactment of the ordinance in question, entertained k broad and generous view of its own powers. It was pleased to confer, or attempt to confer, upon this water company, the power ‘to construct, own, maintain, and operate waterworks in the city of Oconto, * » * to acquire and hold, as by law authorized, all real estate, easements, and water rights necessary to that end and purpose, with all necessary and proper buildings, with conduits or other means of obtaining water supply, with all machinery and attachments thereto,’ in addition to the right to use the streets and public grounds of the city for its water mains and pipes, and undertook to regulate contracts and dealings between the water company and the inhabitants of the city, using water, and to bestow upon the company the right of access to the homes of consumers of water, and to regulate its exercise. If the right to confer these great privileges and franchises, and to exercise inquisitorial powers, can be pointed out, the-ordinance is effective to the end designed. No ordinance, however, can enlarge, vary, or diminish the powers of a municipality.</p> <p>‘"Whence came that power? I find no legislative warrant for it. The charter of the city does not confer it. No general law applicable to the city of Oconto grants it. The chapter entitled ‘Of Oities’ (Sanb. & B. St. c. 40a) was enacted in 1889 (Laws 1889, c. 326). It provides that no city then incorporated shall be affected by the provisions of the act, unless it shall adopt the same for its government In the manner provided. Sanb. & B. St. § 925(1. The present charter of the city of Oconto was enacted in 1882. Laws 1882, e. 5(5. There is no suggestion in the record that the city of Oconto has ever adopted the provisions of the general law, and we are not at liberty to assume that it has. Failing such adoption, (lie city is not affected by, and derives no power from, that general law, assuming that the chapter has relation to waterworks owned and operated by a corporation other than the municipalily, which may be doubtful. The city is therefore only authorized to permit the laying of pipes in the streets, and their maintenance and use. Sanb. & B. St. § 930a. That is not a grant of power to bestow a franchise, but permission to suffer an easement. The law of its incorporation confers upon the Ocoulo Water Company its franchise (1) to own and operate title waterworks; and (2) to use the streets of the city. Id. § 1780. The former power is without condition; the latter is subject to the assent of the municipalily. The practical efficacy of the franchise may depend upon the discretionary act of the city. The franchise is not, however, derived from that discretion, but from the will of the legislature. The law authorizes the city to assent to the exercise of a power granted by the statute. The grant of power to the water company, as to the use of the streets, becomes operative only upon the happening of that contingency of municipal assent. That is not a grant of power to a city to confer a franchise. Sims v. Railway Co., 37 Ohio St. 556. The matter is somewhat analogous to the case of an act of the legislature taking effect only upon the assent of the people expressed at the polls, which is now generally held to be valid, upon the ground that the law derives its potency from legislative will, and not from the assent of the poll. So, here, the right to use the streets was conferred upon the Oconto Water Company by the law of its incorporation, subject to the contingency of the assent of the city. .The franchise emanates from the legislature, not from tiro municipality. The ordinance is not an exercise of legislative power, but. of the right to contract. City cf Indianapolis v. Gas-Light Co., 66 Ind. 396.</p> <p>"‘The case of State v. Madison St. Ry. Co., 72 Wis. 612, 40 N. W. 487, is not in conflict. The ruling there was to the effect only that, considering the terms of Rev. St. Wis. § 1862, the provisions of the ordinance there under review, by force of the statute, became part of the law of the incorporation of the railway company, and for violation of such provision an action could be maintained by the attorney general to vacate the charter or annul the existence of the railway company, under the provisions of Id. § 3241. Applying the doctrine of that case to the one in hand, the most that, can be said is that the conditions of the assent of the city to the use of its streets inhere in and are part of the law of incorporation of the defendant water company. None the less, however, are its franchises derived from the legislature, and not from the municipality. It is also to be noticed that there is a marked difference in the statute under consideration in that case and those in question here. Section 1862, there considered, provides that ‘any municipal corporation * * * may grant to any such corporation [a street-railway corporation] such use, and upon such terms as the proper authorities shall determine, of any streets or bridges. * * * Every such road shall be subject to such reasonable rules and regulations * * * as the proper municipal authorities may by ordinance from time to time determine.’ There the legislature does not directly grant to the railway corporation any power to use the streets, but delegates to the municipality the right to grant the power. Here the power is in terms conferred by the legislature upon the water company, subject to the assent of the municipality. There the street railway is subject to constant municipal control. Here the water company is independent of municipal direction except in the use of the streets. It is, I think, clear that the power possessed by tire city of Oconto was only to yield its assent to a legislative grant of the use of its streets, and to contract for a supply of water. The franchises .of the water company were conferred by the legislature of- the state, and' not by the ordinance of the city.</p> <p>“The question then recurs, what rights passed to Andrews & Whitcomb under the instruments of transfer and their foreclosure? By their terms they convey or assign only such rights and privileges as were granted the water company by the ordinance of the city. No other franchise or rights are attempted to be conveyed. If the right to the use of the streets may be said to have proceeded from the municipality, it was, standing alone, a mere easement. The transfer of such naked right could not carry with it the ownership of the mains, nor the title to the plant as an entirety, nor the franchise to operate the plant, nor to the land upon which the plant was situated. So that if it be true, as is here claimed, that a naked franchise is transmissible, that the franchise is the main and the plant the incident, and that a transfer of the former carries with it the title to the tangible property essential to its use and beneficial enjoyment, it still remains that here there was no transfer of the franchise to operate the plant, and consequently no transfer of tangible property. It therefore results that the claim of Andrews & Whitcomb to the plant is unfounded in law, and its possession by them wrongful as against the complainant.”</p>

<p>Appeal—Objections not Ratsrd Below--Timad by Cocet.</p> <p>The sufficiency of the evidence to support a general finding by the court on a trial at law without a jury cannot ho reviewed on writ of error, where the case was submitted by both parties without a request for a peremptory instruction on the facts, although a general exception was taken to the judgment at the time it was entered.</p>

<p>1. Appeal—Discretion of Trial Court—Necessity of Bill of Exceptions.</p> <p>The discretion of the trial court in sustaining motions to make answers more certain, and to strike out parts of answers as indefinite, and imposing costs as a condition of amending an answer, will not be reviewed on writ of error; especially where there is no bill of exceptions to make such mo-v tions part of the record.</p> <p>3. Same—Objections not Raised Below—Trial by Referee.</p> <p>On writ of error to review a judgment entered on a referee’s report in an action at law, where there is no written stipulation waiving a jury, and nothing showing a reference under the state statute, and where there is no bill, of exceptions, and no specific exception was taken to the overruling of exceptions to the referee’s report or to the judgment thereon at the time it was entered, no question is presented for review. Investment Co. v. Hughes, 8 Sup. Ct. 377,124 U. S. 157, followed.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri.</p> <p>This was a proceeding by scire facias by the United States to enforce a forfeited recognizance against Robert H. Hunt and Hugh C. Ward, the sureties therein.</p>

<p>In Error to the Circuit Court of the United States for the District of Wyoming.</p> <p>This was an action by the United States against Thomas J. Carr, Charles F. Miller, Luke Voorhees, Elias W. Whitcomb, and John W. Collins, on the official bond of said Carr as United States marshal, wherein tbe other defendants were sureties. Defendants’ answer claimed credits for certain fees and other compensation as due said marshal. The circuit court, on trial without a jury, allowed part of said credits, and rendered judgment for the United States for the residue of the amount claimed. The United States brings error.</p>

<p>1. Evidence—Letter—Presumption of Genuineness.</p> <p>A letter received in due course of mail in response to a letter sent by the receiver is presumed, in the absence of any showing to the contrary, to be the letter of the person whose name is signed to it.</p> <p>2. Same—Admission Contained in Offer of Compromise.</p> <p>Where the execution of the contract sued on is denied by the defendant, a letter offering to compromise the claim, and making an express recognition of the contract, is admissible in evidence as an admission of the execution of the contract.</p> <p>8. Contracts of Corporations—Evidence—Principal and Agent.</p> <p>A contract entered into on behalf of a business corporation by its agent or manager is admissible in evidence against the corporation without proof that its execution was authorized by any formal corporate act.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>This was an action by Jane McCurtain, administratrix of Jackson P. McCurtain, deceased, against William P. Crabtree, on a promissory note made by defendant, payable to said Jackson F. McCurtain.</p>

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

This was an action by Thomas H. Morton against the Kansas & Arkansas Valley Railway Company for personal injuries. At the trial the jury found a verdict for plaintiff.

Assumpsit by Mary Burkheiser against the Mutual Accident Association of the Northwest upon an insurance policy on the life of plaintiff’s husband. Defendant obtained judgment. Plaintiff brings error.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was a suit by U. Durand, Huguenin & Co. against Green, Schultz-Berge & Koeehlin, for infringement of a patent.</p>

This was a suit by Henry A. Fowler, John H. Lingley, and. Samuel Fowler against H. L. Judd & Co., a corporation, for infringement of a patent. On the hearing in the circuit court the following opinion was rendered; Wheeler, District Judge.

<p>This was a hill by M. S. Shapleigh against the Chester Electric-Light & Power Company and others, ior infringement of a patent. Heard on the pleadings and proofs.</p>

<p>This was a suit by Jesse B. Johnson against Olaf B. Olsen for infringment of a patent for improvements in excelsior machines.</p>

<p>Appeal from the “Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>Suit by the Edison Electric Light Company and the Edison General Electric Company against the Electric Manufacturing Company, T. A. Pamperin, Julius B. Grnnert, and George Beyer to restrain the infringement of a patent. Defendants appeal from an order granting a preliminary injunction.</p> <p>The appellees filed their bill in the court below to restrain the infringement hy the appellants here of the second claim of letrera patent No. 223,898, issued to Thomas A. Edison, January 27, 1880, for improvements in electric lamps, which claim is as follows: “The combination of carbon filaments with a receiver made entirely of glass, and conductors passing through the glass, and from which receiver the air is exhausted, for the purposes set forth.” By the original answer, the defendants below conceded that, they had infringed the second claim as it had been construed by the courts, but afterwards, by amendment, denied infringement, substantially upon the ground that, hy the proper and narrower construction which they insisted should he given to the claim by reason of the prior state of the art, founded upon an alleged prior invention hy one Goebel, not considered in the prior litigation, the defendants’ lamp should not he construed as infringing upon the patented rights of the appellees. The patent itself was also attacked upon the ground of the alleged prior invention of Goehel. The court below, upon a hearing, grant; d an injunction pendente lite, from which order this appeal is prosecuted. Th-> case below is reported in 57 Fed. 616, where the facts are sufficiently stated for the disposition of the ease here.</p>

<p>Patent^—Limitation of Claim: by Disclaimer—Filtration of Water.</p> <p>The Hyatt invention, described in patent No. 293,740, for an improvement in the art of filtering water, defined, and the patent, as limited, sustained. The claim was for the described method of introducing a substance to- coagulate or separate impurities- sufficiently to facilitate their removal by the filter bed. The specification described the coagulant as a substance such as perchloride or persulphate of iron. From a year after the date of the patent its- owners used alum in place of these substances, because more convenient and less expensive. Several years afterwards, they disclaimed a part of the specification which stated that the patentee did not confine himself to the employment of the persulphate or per-chloride of iron or permanganate of potassa as a c'oagulating agent, nor to any particular proportions or quantities of such' agent, nor to any párticular liquid; thereby restricting the patent to the actual objects and scope of the invention. Held that, by this disclaimer, the claim was not so limited as to exclude from the protection of the patent the use of alum or the salts of alumina, which for many years had been well known to be interchangeable as coagulants with the reagents specifically named.</p>

<p>1. Patents—Novelty—Tekka-Cotta Wire Conduit Pipe.</p> <p>A patent claiming a rectangular terra-cotta wire conduit pipe having rectangular partitions made in one integral piece by forcing the material, while plastic, through a die, and burning it, cannot be sustained as for a new article of manufacture, the making of sewer pipe out of clay by the same process being old, and hollow blocks of terra cotta, rectangular in form, and divided into ducts by partitions, being previously well known, although used as building material, rather than as a conduit for wires.</p> <p>2. Same.</p> <p>The Lynch patent, No. 396,407, for terra-cotta wire conduit pipe, held void for want of novelty.</p>

This was a suit by William C. Krick against Edward Jansen for the infringement of a patent. The defendant demurred to the bill. The second ground of demurrer assigned was the want of novelty on the face of the patent. The demurrer on this ground was overrated. See 52 Fed. 823.

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>Lihel by McLeod against 1,600 tons of nitrate of soda for demurrage.</p>

<p>Shipping—Carriage of Goods—Li ability for Delay.</p> <p>A clause in a bill of lading, gis'iug (lie ship liberty “to tow and assist vessels in all situations,” authorizes her, if in the ordinary course of the voyage sho falls in with another vessel in distress, to go to her assistance and tow her to such place of safety as, under the particular circumstances of the case, is most reasonably accessible.</p>

<p>Shipping—Liability for Loss.</p> <p>The damages for cattle lost at sea through the negligence of the ship includes, in addition to the market value of the cattle at the place of shipment, the freight paid in advance, and the pro rata premiums of insurance.</p>

<p>Maritime Contract—“Building” of Vessel.</p> <p>A contract for the machinery of a vessel is not enforceable in admiralty, where such machinery was supplied for the completion of the construction of the vessel, and such vessel was not then completed for the purpose for which she was intended.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>The decision of the district court in this case will be found fully reported in 55 Fed. 126. The proctors for the appellant claimed in their brief that the “new evidence” hereafter referred to in the opinion of the court of appeals tended to establish the following facts, namely:</p> <p>“(1) That the libelants testified falsely when they testified that the Alpha was in good condition. (2) That the Alpha had been leaking previously, had been in danger of sinking within a day or two of the collision, and that the leak in her had been only temporarily stopped by Capt. Kelly’s putting overboard some manure to check the leak.’’</p>

<p>t. Collision—Conflicting Evidence.</p> <p>Testimony as to precautions taken by a steamer to avoid collision with a sebooner, given by intelligent witnesses on board the steamer, who co-operated in the precautionary maneuvers, is not overcome by that of witnesses looking on from remote points, or aboard the schooner, who failed to observe such precautions.</p> <p>2. Same—Schooner Unnecessarily Tacking across Steamer’s Bow.</p> <p>A steamship is not liable for collision with a schooner unnecessarily tacking across the steamer’s bow, in a narrow channel, and in such close proximity that the steamer cannot avoid her.</p>

<p>Appeal from the Circuit Court of the Uniied Stales for the Eastern District of Tennessee.</p> <p>This was a suit by Lena Newman against Morris Schwerin for an accounting.</p>

<p>Suit by the Bank of California against J. L. Cowan and S. E. Cowan to set aside certain conveyances. Defendants demur.</p>

<p>Action by Ludwig Riederer against Emil Pfaff, Portland National Bank, and J. L. Hartman to foreclose a chattel mortgage.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>This was a suit by J. X. Brown against Charles Paxson and the Iowa & Arkansas Land Company to remove clouds on the title to certain lands. Complainant having died, the suit: was continued in the names of Sarah Brown, ida B. Brown, Mariah X. Glassgow, Sarah E. Kennedy, Xancy (laston, and Bertha J. Klinskneith, a minor, by William Klinskneith, her next, friend, complainant’s widow and heirs, and a decree in their favor was rendered. Defendants appealed.</p> <p>December 11, 1888, .T. N. Brown filed a bill in the court below iu which he alleged that he was the owner of certain unoccupied lands in St. Francis county, Ark.; that he derived his title from Barnett Graham, through a general assignment for the beneiit of Ms creditors made by William G. Lane to Frederick N. Lawrence and L. M. Wiley, March 4, 1801; and that the appellants were making unfounded claims to own the same; land, and had recorded certain deeds thereof, which constituted clouds upon the complainant’s title, and he prayed that the title to these lands might be quieted in him, and the clouds removed. The appellants answered that the complainant, Brown, was not the owner of these lands; that they were; and that they derived their title from the heirs of Barnett Graham and from the heirs of William G. Lane; and prayed that the title to the lands be quieted in them, and that the deeds under whicli the complainant claimed be adjudged to be clouds on their title and removed. The complainant, Brown, died, and this suit was. continued in the name of the appellees, his widow and heirs at law.</p> <p>The appellees took The depositions of Frederick N. Lawrence, the sole surviving assignee of William G. Lane, and of Henry Yanderzee, who purchased These lands from the assignee. From these depositions it appeared that, while Barnett Graham had conveyed the lands to Lane, they were purchased and paid for by a copartnership styled “William G. Lane & Co.,” of whicli he was a member; 1hat the title was taken in liis name for them, as a matter of convenience; that William G. Lane & Co. made a voluntary assignment for the beneiit of their creditors to the same assignees as did William G. Lane, and on the same day; that the assignment of William G. Lane & Co. purported to convey these lands to the assignees, while 1hat of William G. Lane did not; and that Henry Yanderzee, through whom the appellees claim title, purchased them of Frederick N. Lawrence, as sole surviving assignee of William G. Lane & Go., and not as assignee of William G. Lane, but, through abundance of caution, took a deed from him. as assignee of the firm, and also as assignee of Lane, the individual. Thereupon, May 1, 1892, the appellees filed an amended bill, deraigning' their title through the assignment of William G. Lane & Co.; and the appellants answered, denying the validity of this title, and alleging that they were innocent purchasers for value from the heirs of Graham and from the heirs of Lane. A replication was filed,, and, after final hearing, the court below rendered a decree for the appellees for the relief they sought.</p> <p>It is conceded that Barnett Graham owned these lands. The title of the appellees is derived from him as follows: Barnett Graham and wife conveyed these lands by warranty deeds to William G. Lane, and these deeds were recorded in the county where th^se lands were situated. The lands were purchased by William G. Lane & Co., and William G. Lane had no beneficial interest in them except as a member of that firm. March 4, 1861, all the members of the firm of William G. Lane & Co. joined in a general assignment of their firm property to Frederick N. Lawrence and L. M. Wiley for the benefit of their creditors. The land in dispute was a portion of about 25,-000 acres of Arkansas lands referred to in the schedule filed under this assignment. The assignment was made, filed, .and recorded in New York City, where William G. Lane & Co. were conducting them business. This firm owed Henry Vanderzee $70,000, and he subsequently became practically the only creditor, ánd acted as the clerk of the assignees. He testifies positively that this assignment and the assignment of W. G. Lane were recorded in St. Francis county, Ark., and Lawrence, the assignee, testifies that he b’elieves that they were so recorded, but that he has no documents to prove it. Subsequent to 1801, and during the war of the Rebellion, the records of St. Francis county were burned. L. M. Wiley died prior to 1873. Prior to that time, Lawrence, as assignee, expended about $10,000 in paying taxes upon these lands and redeeming them from forfeitures. In 1873 he sold them, as assignee of William G. Lane & Co., to Henry Vanderzee, and made a deed to him, as sole surviving assignee of William G. Lane, and as sole surviving assignee of William G. Lane & Co., which was dated January 7, 1873, and was recorded in St. Francis county, February 8, 1873. December 6, T875, Vanderzee sold the lands in dispute in this suit to T. B. Mills for 50 cents an acre, and conveyed them to him by a deed which was dated on that day, and was recorded in St. Francis county, February 27, 1877. The title thus acquired by Mills passed by subsequent conveyances,' duly recorded, to J. N. Brown, the original complainant in this action, prior to January 21, 1877.</p> <p>The title of the appellants is derived from Barnett Graham as follows: Graham died prior to 1883. July 5, 1883, the widow and heirs of Graham made a deed of the lands in dispute to G. W. Miller, which was recorded in St Francis county, September 29, 1883. August 8, 1883, the appellant Charles. Paxson, as trustee for the Iowa & Arkansas Land Company, pm-chased these lands of Miller for $3,000, and the latter made a deed of them to Paxson, dated on that day, and recorded September 29, 1883. William G. Lane died in 1885. September 4, 188S, the appellant Paxson, as trustee, bought from the heirs of William G. Lane, for $600, a quitclaim deed of these lands, dated on that day, which was recorded October 24, 1888.</p>

<p>CONCIVUSrVF.NESS OF JUDGMENT— JURISDICTION OF STATE AND FEDERAL COURTS.</p> <p>The judgment of an Indiana court, on the appeal oí a railroad company from the action of county drainage commissioners, is conclusive in respect to the benefits and damages accruing to a railroad horn the improvement of an unna viga ble stream which passes under the track; and although the judgment assesses benefits, but no damages, a federal court has no jurisdiction to enjoin the making of the improvement, on the ground that the company is engaged in interstate commerce, is carrying the mails, and tha t the use of the road will be interrupted, and the company put to great expenses in rebuilding its bridge.</p>

This was a suit for the specific performance of a contract by the American Box Machine Company against George A. Crosman and others, in which there was a decree (57 Fed. 1021) dismissing the bill as against Crosman and the Lynn Box Machine Company, but granting an injunction against the remaining respondents.

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>This was a hill of interpleader by the Washington Park Club making defendants Kinzea Btone and Thomas J. ("Hay, in which Dudley Allen, claiming a joint interest with Stone, was allowed to intervene.</p> <p>This dispute is over the oulcomc of a horse race. In the fall of 1889 the Washington Park Club, of Chicago, a corporation organized under the laws of Illinois, advertised among the events of the ensuing summer meeting the following proposal for a race to be run .Tuly 17, 1890, “entries to close by October .15, 1889:” “The Hyde Park Stakes. A sweepstakes for two year olds (foals of 1888); $150 each, $50 f., or only $10 if declared out on or before February 1st, or $25 by April 1st, 1890. All declarations void unless accompanied by the money. With $5,000 added. Tile second to receive $1,000, and Lhe third $500, out of the stakes. A winner of any stake race of tho value of $1.500 to carry 3 lbs., of two or more stake races of any value, 5 lbs. extra; maidens allowed 5 lbs. Three-quarters of a mile.”</p> <p>One hundred and thirty-five horses were named or entered for the race, of which Id only ran, and of these Balgowan, owned by the appellee, Olay, was declared the winner of the first money, and Kingman, owned by the appellant Stone, was declared winner of second money. Some days later, Stone demanded first money, on the ground that Balgowan had theretofore won two stake races, and, instead of carrying in this race, as he did, only 118 pounds, should have carried 5 pounds more. His demand having been denied by tho board of racing stewards, composed of officers of the club, Stone brought a suit at law against the club for tho amount of the first money, less the amount of second money, which had already been paid him. Thereupon the club brought a bill of interpleader, and, the appellant Allen, who claimed a joint interest with Stone in the winnings of Kingman, having been allowed to intervene, the court ordered the money deposited in the registry, and that the claimants present their respective statements. The issue formed between them was referred to a master, whose report, over excep-' tions by the' appellants, was confirmed, and a final decree entered in favor of the appellee. The chief question in dispute is whether a race which Bal-, gowan had won upon the track of the Washington Park Club, July 5, 1890, was a stake race. If it was, he had won two races of that character, and should have carried five pounds extra weight in this race. The race of July 5th was announced as follows: “A free handicap sweepstakes. For two year olds. Of $15 each, if not declared, with $600 added; the second to re-. ceive $100 out. of the stakes. Entries to be made Thursday, July 3rd. Weights to be announced and declarations to be made Friday, July 4th. Three-quarters of a mile.” For, that race 43 horses were named, but, after the announcement of weights, 32 were declared out. Balgowan won, and his owner received of the club $065, the owner of the second horse receiving $100.</p> <p>The Washington Park Club is a member of the American Turf Congress, which is governed by a code of rules known as the American Racing Rules, of which the following are more or less relevant here: “(4) Race: Any contest for ‘purse,’ ‘stake,’ premium, or wager for money, or involving admis-, sion fees, on any course, and in the presence of a judge or judges, shall constitute a race. (5) Purse: A ‘purse’ is a sum of money or other prize offered for a race. (6) Sweepstakes or Stake: A ‘sweepstakes’ is a race publicly declared open to all complying with its conditions, for which the prize is the sum of the stakes which the subscribers agree to pay for each horse nominated; and, if an additional sum of money, cup, plate, or other reward is offered to the winner, the race is still a sweepstakes, whatever may be the name given to such addition. Three subscribers, unless .otherwise stipulated in its conditions, make a sweepstakes, and the race is not void so long as there is a horse qualified to start.” “(8) Handicap: A ‘handicap’ is a race for which the horses are weighted according to their merits in the estimation of the handlcapper, for the purpose of equalizing their chances of winning, (u; Free Handicap: A ‘free handicap’ is one in which no liability is incurred for entrance money, stake, or forfeit, until accept-' anee of the weight allotted, either by direct acceptance or through omission to declare out.” “(14) Conditions Supersede Rules: The express conditions of a race supersede the rules of racing when they conflict. (15) Entries and Subscriptions: Entry shall be made by writing, signed by the owner of the horse, or by some person deputed by him,” etc. “(31) A subscription to a stake cannot be withdrawn,” etc. “(34) The death of a horse, or a mistake in the entry of a horse, when eligible, does not release the subscriber or transferee from liability for a stake or forfeit.” “(37) Liability for Stakes and Forfeits: A person entering a horse thereby becomes liable for the entrance money, stake, or forfeit. A subscriber to a sweepstakes is liable for the stake or forfeit,” etc.</p>

<p>1. Contracts—Mutuality—Subject Matter—Performance.</p> <p>A contract between plaintiff and defendant recited that plaintiff owned timber lands tributary 1o two streams on which defendant ivas engaged in the business of driving logs, and that differences had arisen between the parties in regard to charges l'or services rendered by defendant; it was therefore agreed that, in consideration of a specified compensation, defendant should drive, boom, mid deliver all logs put by plaintiff in the rivers in question, not to exceed a named limit annually. The parties acted under this contract until all but a small part of the Timber was cut from plaintiff’s land. Held, that defendant could not refuse performance as to the balance of the timber on the ground that there was a lack of mutuality in the contract.</p> <p>2. Same—Excuse for Nonperformance-Impossibility.</p> <p>Plaintiff owned timber lands on the Chippewa river, and a sawmill below, on the Mississippi. Defendant logging company contracted to receive the logs, and deliver them at plaintiff’s mill. To do' this it was necessary to drive them down the Chippewa into a boom where they were assorted by means of pockets and formed into rafts so as to be towed by the raft boats in use on the Mississippi. The contract bound defendant, in terms, to perform these several operations, and specified “Beef Slough” boom, which was controlled by defendant, as the one into which the logs were to be driven. During (lie life of the contract Beef slough was filled up by the action of Hoods, and was no longer available for use as a boom; but defendant constructed a. boom in another slough, on the west bank of the Mississippi, and the operations necessary to the delivery of plaintiff's logs could be carried on as well at this boom as at Beef slough. Held, that defendant could not excuse itself from further performance of the contract on the ground that it had been rendered impossible by natural causes which it could not control.</p> <p>3. Same—Nonperformance—Excuses.</p> <p>Defendant contracted to drive', boom, raft, and deliver plaintiff’s logs, and agreed that the boom charges should not exceed 00 cents per thous- and feet. During the life of the contract the necessary boom charges were increased by reason of circumstances over which neither plaintiff nor defendant, had any control. Held, that this did not excuse defendant from further performance of the contract, uor entitle it to demand a higher compensation than that contracted for.</p> <p>4. Best and Secondary Evidence—Scale Books—Logging.</p> <p>“Scale books” were offered in evidence to show the quantity of timber cut from certain lands. It was shown that “camp scalers” take the measurements of logs as they are cut in the woods, and enter Them upon cards; that at the close of the day these measurements are entered on the scale books; that inspectors verify the scale books by counting ihe logs and remeasuring a sufficient number to satisfy themselves of their correctness; and that the scale books are then sent to the owners of the logs, and payment made to the cutter according to their contents. Held, that the scale books are primary evidence of the quantity of logs cut.</p>

<p>1. Appeal—General Exception to Charge.</p> <p>Under a rule of court requiring a party excepting to a cliarge to state distinctly tiie several matters of law to wliieli lie excepts, objections to instructions given cannot be considered on a general exception to tbe charge as an entirety.</p> <p>2. Same—General Exception to Refusal of Instructions.</p> <p>An exception to tbe refusal of “each and all” of instructions requested, consisting of a series of propositions submitted as one request, is not available.</p> <p>3. Custom and Usage—Negligence—Railroad Car on Side Track.</p> <p>An employe of a ear company, working on one of its’ cars placed on the side track of a railroad, was killed by the railroad company’s switching engine running into the ear. In an action against the railroad company therefor, the complaint alleged that the car company’s unfinished ' cars were accustomed to be placed, with defendant’s knowledge and consent, on its side tracks, to be there finished and made ready for shipment. Sold, that evidence of an agreement between the companies, for the use by the car company of the side tracks as a delivery track, but not for constructing or completing cars thereon, was immaterial, as it was not inconsistent with the alleged custom, and the railroad company would be bound to act in reference to such custom, whether it origiuated in an agreement or grew up independently.</p> <p>4. Same—Duty to Give Notice op Danger.</p> <p>Whether, under the circumstances, deceased should have given notice to the men in charge of defendant’s engine of his being at work on such car, was a question for the jury; and, in view of the alleged custom, the presence of new cars on the track might be considered a sufficient notification, during the ordinary hours of labor, that workmen were probably engaged on them.</p>

This was an action by the Auburn Savings Bank against Frank N. Haves, as receiver, etc., originally commenced in a state court. The plaintiff now moves to remand.

<p>Banks and Banking—Insolvency—Preference—County—Trusts.</p> <p>A county whose funds are deposited in a bank that fails has no preference over other depositors, as to the bank assets, where the identity of the funds deposited by the county has been lost. San Diego Co. v. California Nat. Bank, 52 Fed. 59, disapproved.</p>

<p>1. School Districts—De Pacto Corporation.</p> <p>The exercise for many years, under an act for the incorporation of a school district, of all the franchises and privileges of such a corporation, constitutes the district a de facto corporation, under the law of Michigan; and its legal existence cannot be questioned, in a collateral proceeding, on the ground that the act of incorporation was unconstitutional. *</p> <p>2. Same—Extent of District.</p> <p>In the absence of constitutional restriction in that respect, the incorporation of a school district containing 180 square miles is not invalid, although general statutes provide for organization of districts not to exceed nine sections in extent.</p> <p>8. Same—School Inspectors.</p> <p>Const. Mich. art. It, § 1, providing for ('lection of township officers, among them a “township clerk, who shall bo ex officio school inspector,” does not render invalid an act incorporating a school district, which transfers part of the functions of such school inspector to a board to be elected hy the people of the district.</p> <p>4. Same—Division of District—Apportionment of Debt.</p> <p>Part of the territory embraced in a township constituting a sc_, »ui district was severed therefrom, and organized into new townships, hy act of the legislature; but by a subsequent act it was restored to the school district, and provision was made for detaching therefrom any of the new townships on apportionment of the indebtedness of the original school district. Held that, unless apportionment was made as so provided, the new townships were liable to creditors of the original district for debts contracted while their territory was part of it, even though do facto school districts in such new townships continued the current administration of school affairs.</p> <p>5. Same—Enforcement of Judgments against Districts.</p> <p>How. Ann. St. Mich. §§ 5109-5113, prescribing proceedings for collection of judgments against primary school districts by the judgment creditor filing a certified copy of the judgment with the town supervisor, who shall proceed to assess the amount, apply to judgments against a district incorporated by an act which makes all general laws relating to primary schools applicable in the district; and a judgment creditor of such district, who has complied with those requirements, need not make the school board parties to proceedings for mandamus to compel payment, and require them to certify the judgments to the supervisor, as required hy such act for levy of taxes to pay bonded indebtedness by installments.</p> <p>6. Mandamus—Levy of Taxes to Pay Judgment against School District— Apportionment.</p> <p>A writ of mandamus to compel the levy of taxes, by several townships, to pay judgments against a union school district, need not specify how the amount shall be apportioned between them, where the law prescribes the mode of apportionment.</p> <p>7. Same—Objections to Petition—Writ of Error.</p> <p>An objection to a petition for mandamus, that it does not show that respondents were requested to perform the duty sought to be enforced, and refused to do it, is not available on writ of error, where, from circumstances appearing in the record, a refusal to comply with such duty must be conclusively inferred against them, and where the objection is first taken in their supplemental brief in the court of appeals.</p> <p>8. School Districts—Officers—Service of Process.</p> <p>Au act incorporating a school district provided for the election of a “president, secretary, and treasurer,” whose powers and duties other than those specified should “severally be the same as those of the moderator, assessor, and director” in districts organized under general laws. Held, that this imposed on the secretary the duties and powers of the assessor, including power to receive service of summons for the district, although the duties of the secretary* expressly defined in the act, corresponded with those of the director under the general .laws.</p>

<p>1. Judgment—Motion in Arrest—Defect in Pleading.</p> <p>A complaint against a railroad company for personal injuries to an employs, caused by a hole in its track, alleged that defendant, “by its servants,” knew, or should have known, the condition of the track, but did not show that the servants referred to were not fellow servants of plaintiff. Held, that this was not ground for a motion in arrest, the complaint being sufficient irrespective of that allegation.</p> <p>2. Trial—Instructions—Stating Issues.</p> <p>A statement, in an instruction upon the burden of proof, that defendant has interposed a general denial, is not objectionable as an assumption that such denial is the only defense interposed, especially wnere other parts of the charge sufficiently present the other defenses.</p> <p>3. Same—Different Points Involved.</p> <p>An instruction on a particular point or phase of a case is not erroneous merely because it does not cover some other point or phase,—even one correlative in character.</p> <p>4. Same—Determining Weight of Evidence.</p> <p>Where the testimony is conflicting, it is error to refuse to instruct upon the mode of determining the preponderance of the evidence.</p> <p>o. Master and Servant—Negligence of Fellow Servants — Safety of Place of Work.</p> <p>Although a switchman and track repairers work in the same yard, and for the same general purpose of maintaining and operating the railroad of their common employer, if an injury to the switchman is caused by the trackmen negligently leaving a dangerous hole in the track, their negligence is attributable to the employer, in view of his positive duty to provide a reasonably safe place for the switchman's work, the measure of which duty is not changed by having it attended to by others. Railroad Oo. v. Baugh, 13 Sup. Ot. 914, 149 U. S. 368, followed.</p> <p>6. Same—Contributory Negligence—Coupling Cars.</p> <p>The fact that a switchman, injured while coupling cars, by reason of a hole in the track, might have selected another place to make the coupling, if he desired, will not defeat his recovery for the injury, unless he knew, or ought to have known, of the danger incurred.</p> <p>¶. Same—Failure to Use Coupling Stick—Instructions.</p> <p>In an action against a railroad company by a switchman for injuries received while coupling cars, alleged to have been caused by a hole in the track, it appeared that he had neglected to use a coupling stick, as required by the rules of the company. Held, that refusal of an instruction requested, that if he was injured by reason of such neglect he could not recover, was error, although a charge was given that, to entitle him to recover, it should appear that the hole in the track v as the sole cause of the injury.</p>

<p>New Trial as oe Right—Action eor Possession oe Beal Property.</p> <p>Code Civ. Proc. Colo. 1887, § 272, provides that in an action to recover possession of real property, “whenever judgment shall be rendered against either party,” he may, before the next term, pay the costs recovered, and on his application the court shall grant a new trial, “and neither party shall have but one new trial in any case as of right without showing cause.” SeU to apply to a defeated party in such an action, who has never had a new trial of his case as of right, under that statute, regardless of the number of new trials he may have had for cause.</p>

<p>1. Post Office—Obscene Letteb.</p> <p>An obscene letter constitutes nonmailable matter (25 Stat. 496), altbougb no obscene matter appears on the envelope.</p> <p>■ 2. Same—Indictment—Soienteb.</p> <p>Where an indictment for the mailing of obscene matter charges that defendant “knowingly deposited in the post office an obscene letter,” the word “knowingly” qualifies the whole act charged, and it is not necessary to allege that he knew the letter to be obscene. U. S. v. Clark, 37 Eed. 106, followed.</p>

<p>(Syllabus by the Court.)</p> <p>Application by John Zimmerman, importer, for a review of a decision of United States general appraisers concerning certain importations of braids made by him in 1890 and 1891, affirming the decision of the collector at the port of Yew York.</p> <p>The importations were classified for duty by the collector under the provisions for “cotton cords, braids, hoot, shoe, and corset lacings,” contained in paragraph 354, schedule 1, Act 1890 (20 Stait. 593). The importer protested, as stated in the syllabus.</p>

<p>1. Authority op Agent to Sell Patent—Interpretation op Power op Attorney.</p> <p>A power of attorney which, in consideration of a prescribed royalty, appoints the donee sole agent in the United States “for the purpose of working and developing the business of said patents,” with power to “negotiate the sale of the said patents upon terms to be agreed upon,” does not give the agent power to grant an exclusive license, which would transfer substantially the entire interest in the patent; but it does authorize him to grant nonexclusive licenses to manufacture and sell.</p> <p>2. Assignment op Patent—Interpretation op Contract.</p> <p>A contract which purports to convey, for a prescribed royalty, the sole and exclusive right and license to make, usé, and sell' in the United States the improvements covered by a patent for the full term thereof, is in substance a virtual if not an actual sale. 59 Ped. 20, affirmed.</p> <p>3. Unauthorized Sale by Agent—Ratification.</p> <p>The sale, by an agent who had authority to grant nonexclusive licenses only, of an exclusive license transferring in substance the entire patent, may be held good as a nonexclusive license, when the licensees have been misled by the ambiguous language used by the principal in conferring power on the agent, and especially when the principal has long recognized them as licensees, although, in so doing, he was unaware that their license purported to be exclusive. . ,</p> <p>4. Power op Attorney—Contract in Attorney’s Name—Validity.</p> <p>It seems that when a contract which may be made by parol is put in writing, merely for convenience and certainty of proof, as in the case of a nonexclusive license to make and sell under a patent, the fact that the writing purports to be made under a power of attorney, but is executed by the attorney in his own name, will not render the contract void.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was a suit by Joseph M. Merrow against John Shoemaker and others for infringement of letters patent No. 428,508, issued to complainant May 20, 1890, for a “crocheting or overseaming machine.”</p>

<p>Appeal from -the Circuit Court of tbe United States for tbe District of Massachusetts.</p> <p>This was a suit by tbe Municipal Signal Company against tbe Gnmewell Fire-Alarm Telegraph Company and others for infringement of certain patents.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>This is a bill filed by E. C. Atkins & Co., a corporation created and organized under the laws of the state of Indiana, against Amos S. Parke and Sarah A. Parke, residents of Bay City, in the state of Michigan, for infringement of-letters patent No. 833,540, issued to Sarah A. Parke, January 5, 1886, foxswaging saw teeth, and for an accounting for profits and damages.</p> <p>The bill avers that on the 30th of January, 1886, the patentee constituted - Amos S. Parke hex- true and lawful attorney, to sell saw swagipg machines, and transfer territorial rights to manufacture and sell the same. On Feb- • ruary 2, 1886, the bill avers that said Amos S. Parke, as snch agent, sold and conveyed to the plaintiff the right to make and sell said machines throughout the United States, excepting the states of California and Oregon, and the terri-. tory of Washington; that all interest in said patent, excepting in said states and territory, was thereby transferred and conveyed to the plaintiff. The bill further avers that the defendants, without the consent or license of the plain- ; tiff, and notwithstanding said grant to sell, have infringed the plaintiff’s rights by making, at Bay City, Mich., saw swaging machines according to the invention of said patent, and have refused to desist from such manufaetxu-e ox-account for then- profits and damages. The bill prays for an injunction and for an account.</p> <p>The answer admits'that the plaintiff is a corporation; that Sarah A. Parke is the ti-ue inventor of the patent named; that she made - Amos S. Parke her true and lawful attorney; but denies that said attorney did grant aud convey to the plaintiff, or its repx-esentatives or assigns, the exclusive right to make' and sell said machine according to said invention. But defendants admit that on said 2d of February, 1886, they did enter into a certain contract in relation to the manufacture and sale of the improvements mentioned in said letters patent, and that a copy of said contract is attached to the answer.</p> <p>The defendants deny that the plaintiff has substantially complied with the tex-ms of said contract, and deny that, by a substantial compliance with the material conditions thereof,-all right and title to said letters.patent is vested in the complainant. The defendants deny that they have infringed by manufacturing said saw swaging machines, or that the plaintiff had any right ox-title in and to said improvements described in said letters patent at the time said bill was filed, and, at that time, deny the plaintiff had any interest in the profits of said machines, made under said patent, and deny that the plaintiff had any right to make and vend such machines.</p> <p>The defendants admit that said Amos S. Parke, after the termination of the contract marked “Exhibit A,” as hereinafter stated, on or about the 29th day of January, 1889, did begin to make at Bay City saw swaging machines, and has made about 60 of such machines, but deny that they were unlawfully made in violation of the plaintiff’s rights.</p> <p>(1) Defendants claim that said contract of February 2, 1886, was not an ■unconditional sale ox- transfer of the defendants’ title, but was only a conditional sale, liable to be terminated by default of the plaintiff, at -the election of the defendants.</p> <p>(2) That said plaintiff was in default by failing to comply with the stipulations in said contract, and same was not in force at the time of the wrongs complained of.</p> <p>(3) That plaintiff has failed to comply with the condition of said contract by neglecting to fill orders for said machines; that, on the day said contract was made, said defendants gave an order to the plaintiff for twenty-five of said machines, but plaintiff failed to fill said order until about July 8th, following, when ten of said new swages were sent; that repeated orders were sent fox-said machines, but not filled; and that the defendants thereby lost sales of the same, as they had contracts fox- the sale of the same.</p> <p>(4) That plaintiff failed to manufacture said machines as fast as the demands of trade required, and as it agreed to do.</p> <p>(5) That from February 2,1886, to January 26, 1888, plaintiff had made and put on the market not to- exceed 60 of said machines, and had not sent to defendants to exceed 30, though there was ready sale and an active demand for the same.</p> <p>(6) That, by said plaintiff’s failure to make and place said machines on the market, the defendants lost the sale of a large number, and the profits on the same.</p> <p>(7) That the plaintiff made what machines were manufactured in a defective and unworkmanlike manner, so as to injure the salé of the same, and, of the 30 sent to defendants, 10 were so defective that they could not he sold, and were returned to the- plaintiff; that, out of the 00 machines made and put on the market, 42 were returned, as appeared by tpe plaintiff’s letter (marked “Exhibit B”), and the defendants charge they were returned because of defective make; that from February 2, 1880, to January 20, 1888, the defendants had orders for machines which would have been filled by machines returned if they had been well made.</p> <p>(8) That plaintiff failed to promote sales by refusing to advertise; that defendants furnished cuts which were not used; that portions of said invention which related to swaging hand saws’ teeth were wholly omitted; that, though the plaintiff manufactured various articles in lumber and working of wood, and advertised largely, in none of said advertisements is said improvements shown.</p> <p>(!)) Plaintiff was interested in the Hinldy machine, used for similar purpose, and therefore did not work in good faith under said contract, hut made inferior machines to retard their sale.</p> <p>(10) That plaintiff has forfeited its rights, failed to make reports and pay royalties; that from the 2d of February, 1880, no report of sales was made until March 17, 1887.</p> <p>(11) That on the 20th of January, 1888, the plaintiff having forfeited its rights under said contract, defendants elected and did declare the contract forfeited, bjr written notice served on the plaintiff.</p> <p>(12) Defendants charge that plaintiff was interested in another saw swaging machine, and entered into a contract to control the machines made under the Parke patent for the purpose of preventing said machine from being put on the market, a.nd that said contract was a fraud on its part.</p> <p>(13) That, since the making of said contract, plaintiff has caused to he made and put on the market other saw swaging machines, and did all in its power to prevent the Parke machines coming onto Hid market.</p> <p>(14) Defendants claim the patent described in No. 333,540 to be of great value and use to the public, and, if manufactured and sold, would he a source of great revenue to the defendants and benefit to the public, and, if complainant is permitted to prevent the manufacture and sale, defendants will be irreparably injured.</p> <p>Defendants submit the plaintiff is entitled to no relief, and pray for the same benefit by their answer, as though they had filed a cross 'bill or a demurrer.</p>

<p>1. Patents—Limitations—Equivalents.</p> <p>Where the essence of aD invention in respect to buttonhole machines is the production of an automatic relative motion between the stitching mechanism and the plate, whereby the buttonhole is stitched along one side, and then about the eye and along the other side, which constitutes a broad and meritorious invention, the fact that the specifications and claims speak of a movement or traveling of the stitching mechanism only will not prevent the application of the doctrine of equivalents, so as to cover a machine which accomplishes the same result by moving the plate while the stitching mechanism remains stationary. 54 Fed. 884, reversed. Winans v. Denmead, 15 How. 330, applied.</p> <p>2. Same—Effect of Amending Claims.</p> <p>The rejection of a claim and its amendment, where there is no direct issue of novelty or invention, and- the amendment comes in incidentally and in reference to an incidental matter, does not necessarily exclude a liberal interpretation or the application of the- doctrine of equivalents, when the invention is a broad one. 54 Fed. 884, reversed.</p> <p>3. Sauk—Validity—Infringe ment—Buttonhole Mach tnes.</p> <p>The lieece patent, Xo. 240,540. for improvements in buttonhole machines, construed, and claims 5, 11, 12, 13, and 38 held valid, and infringed. 54 Fed. 884, reversed.</p>

<p>Appeals from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>These were two snits by the Brown Manufacturing Company— one against Deere & Co., and the other against the David Bradley Manufacturing Company—for infringement of a patent. The circuit court decided in favor of complainant (21 Fed. 709), but, upon a rehearing on its own motion, rendered decrees in both cases for defendants. 51 Fed. 226;. Id. 229. Complainant appealed.</p> <p>These suits were each brought to obtain an accounting and an injunction against infringement of the first claim of letters patent No. 190,816, which read as follows:</p> <p>“Be it known that I, William P. Brown, of Zanesville, in the county of Muskingum, and state of Ohio, have invented a new and improved coupling for cultivator; and I do hereby declare that the following is a full, clear, and exact description of the same, reference being had to the accompanying drawing, forming part of this specification, in which Eig. 1 is a perspective view of the particular form of cultivator to which my coupling is to be applied; Eig. 2 is a side view of one of the couplings, looking in a line with the axle; Eig. 3 is a front view of one of the couplings, looking at right angles to the axle; Eig. 4, an enlarged transverse section through line, x, x, Eig. 3.</p> <p>“My invention relates to an improved form of coupling for. fastening the forward ends of the beams of plows or gangs to the axle of a wheeled cultivator. The improvement consists in the particular construction and arrangement of a tube or pipe box turning loosely upon the horizontal ends of the crank axle, and connected, through an adjustable stirrup or sleeve and bracket, with a head having a long bearing at right angles to the pipe box, to which head the forward ends of the plow beams are bolted, while the pipe box is provided with means for turning it against the gravity of the attached cultivator in the rear, whereby the said cultivators are manipulated with greater ease, as hereinafter more fully described.</p> <p>“In the drawing, A represents the longitudinal bars, extending forward to form the tongue, and constituting the main frame of a wheeled cultivator, to which my invention is applied, which bars are arranged upon the elevated crank axlé, B, supported upon wheels, O. Upon the horizontal parts of said crank axle, between the upright portions and the wheels, are arranged my couplings, which secure the beams of the plows or gang's, D. These couplings are constructed as follows: E are tubes or pipe boxes, which embrace the</p> <p>axle, B, and turn freely thereon. G is a stirrup, which is held to the pipe box, E, by means of a loop, s, and is made to rigidly connect with said pipe box by means of longitudinal ribs upon the stirrup, which engage with corresponding ribs upon the pipe box. The stirrup, however, instead of having, a loop, s, may be constructed in form of a sleeve, and made to embrace pipe box, E, in which case it will be adjusted thereon by a screw holt, a, whose inner end may hear upon a roughened steel jib, which bites the pipe box, and prevents the sleeve from slipping. Said stirrup is formed with projecting lugs or brackets, H, which are perforated to receive a pivot holt, b, arranged vertically and at right angles to the pipe box. Around this bolt, b, is arranged the head, I, which is made with a long bearing, to which head the forward ends of the beam are bolted. Referring to the feature of the pipe box and adjustable sleeve, I would have it understood that 1 do not claim such broadly, as tlie same "idea is shown in patent No. 108,915. J is a cap fastened to the crank axle between the hub of the wheel and the pipe box, by means of a staple, c, which hinds around the axle, and is fastened to the cap by nuts, d. This cap serves as a stop to the hub of the wheel, to separate the same from the pipe box; and its curved and flanged end, e, acts as a guard to keep dirt and other obstructions from the hearings of the wheel. K is a brace designed to stay the axle to the tongue; and L is a link arranged in the staple of the cap, •T, to which the draft attachment is secured to properly distribute the strain upon the implement.</p> <p>“ITom the above description, it will he seen that the gangs of cultivators have free and easy motion laterally, from right to left, on the long bearing of the vertical pivot bolt, and also a free movement vertically upon the axle (by reason of the pipe box), when it is desired to lift the cultivators, either to hang them upon the hooks of the frame, out of contact with the earth, or to raise them for any other purpose. To render the manipulation of the plows or cultivators easy, I provide an arrangement whereby either springs, weights, or the draft power may he utilized for sustaining a part of the weight of the said cultivators when they are lifted from the ground, to be hung up, or shifted laterally. In accomplishing this, I construct the pipe box, with a hooked arm, M, and arrange a stiff spring, N, of metal or rubber, upon the main frame above, so as to engage, by moans of a loop, with the end of the arm, M, to rock the pipe box; and as the cultivator beam in the rear is rigidly attached to the pipe box by the stirrup or the sleeve, and its screw bolt, the spring has the tendency to rock the pipe box, and assist the driver in lifting the cultivators.</p> <p>“I do not claim, broadly, the application of springs to sustain a part of the weight of the cultivator, as this is shown" in my patent No. 128,701, of 1872, but I do claim a pipe box provided with an arm or projection adapted to rock the same; and, referring to this same feature, I do not limit myself to the use of a spring operating in connection with such projection, as the pipe box may he provided with a perforated flanged projection, M/, to which the draft attachment may be directly fastened, and so arranged as to utilize a part of the draft to produce the same lifting effect upon the cultivators when attached above the center of the pipe, and, when below the center, assists to make the plows run deeper, and when the plows are raised out of the soil or dirt the draft on projecting flange ceases, allowing the spring to assist in lifting the plows. In the place of the flange mentioned, a counter weight may he employed for the same purpose, or a sheave or pulley ma.y he arranged on the pipe box with a chain, to produce the same effect.</p> <p>“In making use of my invention, the sleeve or stirrup and brackets can bo adjusted to regulate the width between the duplícale cultivators by slackening the set screw (if a sleeve be used) that hinds the same to the pipe box, or by disengaging the ribs and grooves of the pipe box and stirrup, and moving said sleeve or stirrup as desired. These ribs or the set screw, it will ho seen, hold the arm, M, in an upright position to allow the spring its proper tension, and, by moving the set screw and stirrup or sleeve, the tension of the spring may be regulated as desired. The set screw, or its equivalent adjustment, also serves to hold, the sleeve or stirrup and brackets rigidly in place, to give the plows or cultivators a Arm and steady upright j)osition. The length of the tube of the pipe box gives a long bearing for raising and lowering the plows, and, while causing the latter to he held steady, affords also an easy motion, and one that cannot get cramped. The length of the pivot holt, and distance between the brackets, also permit the coupling head, I, to he sufficiently deep to prevent the rocking or swaying motion of the plows when guided by the driver; and, among other advantages, may he mentioned the small degree of friction which is secured by the long bearings of the pipe box and the head, and also the fact that its construction is such that its bolts cannot be made too tight, and hence there is no liability of its parts being wrongly adjusted by the unskilled. With respect to counteracting the gravity of the cultivators or plows by means of the projecting flange or arm and spring, or its equivalent, it will be seen that it not only assists the plowman in operating the plows, and also in hanging them when not in use, but it also acts as a counterbalance to the tongue, and thus relieves the neck of the team from the weight of the same. It also prevents the shovels from getting dull so rapidly, for, as the under sides of said shovels do not press so hard upon the earth, the force of' the earth is more nearly equalized above and below tbo, point, and the shovel is easily worn above and below. It also assists the shovels in scouring, as they are held more uniformly and with a more elastic pressure against the face of the soil, especially when the flange, M', is used, which, when the draft is from the bottom of tbe same, causes the increased resistance to the shovels (which the hard places afford) to compel the draft to force the shovels deeper into said hard places, instead of skimming over the same.</p> <p>“Having thus described my invention,' what I claim as now is:</p> <p>“(1) The pipe box provided with a projection adapted to co-operate with a spring, weight, or the draft, to rock the said pipe box against or with the weight of the rear cultivators or plows, substantially as and for tbe purpose described.</p> <p>“(2) The combination, with the crank axle, and the gangs or plows, of the pipe box, having arm, M, tbe spring, N, attached to tbe main frame, tbe bead, I, and the stirrup, G, or its equivalent, having brackets, H, and pivot bolt, b, and fastened to the pipe box, substantially as and for tbe purpose described.</p> <p>“(3) Tbe pipe box, E, having longitudinal ribs, combined with the stirrup. G, having corresponding grooves and a clamping device, substantially as described,”</p> <p>Of tbe annexed drawings tbe first is taken from one of tbe briefs in the case, and shows the coupling alone; the second is figure 2 of the patent, and shows the coupling in eompination or connection with other parts of the cultivator.</p> <p>Among the defenses pleaded were"denials of infringement and of invention, with references to the following prior patents: No. 9,0S6, granted to- A. H. Allison; No. 26,600, to V. Monaghan; No. 45,721. to FT. Jordan; No. 61,649, to A. H. Allison; No. (¡5.573, to J. Hollingsworth; No. 70,643, to II. K. Stoner; No. 72,456, to Philip Coonrod; No. 73,972, to Martin Heyden; No. 82,938, to B. H\ and J. Y. Guy; No. 96,379, to W. S. Baker; No. 108,276, to L. Luppen; No. 108,945, to D. O. Stover; No. 127,878, to William Haslup; No. 128,701, to W. P. Brown; No. 134,540, to G. A. Grove; No. 140.513. to L. Litchfield and H. S. Corbin; No. 154,666. to M. L. Gorham; No. 164,180, to A. J. Judson; and British letters patent No. 1,582, dated July 5, 1856, to Thomas Smith.</p> <p> </p> <p> </p> <p>The couplings used by the appellees were made under the patents of Moore, No. 217,811, and Bradley, No. 270,629, -which the appellees, respectively, own, and are illustrated by the following drawings:</p> <p> </p> <p>By the first decision below, reported in 21 Fed. 709, the patent was upheld; but the court—having-, of its own motion, granted a rehearing—declared its final conclusion that the claim in question was not, as contended by the complainant, for <a combination, but for the device, “a pipe box with a projection adapted to co-operate with a spring.”</p> <p>The following extracts from the brief of counsel show the chief points of the argument made here in the appellant’s behalf:</p> <p>“Omitting, for the present, the elements of ‘weight or the draft,’ the devices which are specifically named in the claim are, (1) the pipe box; (2) a projection; (3) a spring; (4) the rear cultivators or plows. Implying, as wo must, a main frame, which is an element in all such machines, it is perfectly plain that, adding this, we have all the elements required to construct a working combination, and that all of them are absolutely essential, it is also true that, by the phraseology of the claim, these elements are all united together into a working combination. As to that there can be no dispute. Hence, nothing is wanting to make a technical combination of it, except the word ‘combination’ itself, or the word ‘combined,’ or the word ‘arranged.’ If any of these three words were in the claim, there would be no room for dispute. The word -adapted’ is the one which is used. It would seem to require no great si retch of Language to construe this word ‘adapted’ as moaning ‘arranged’ or ‘combined.’ That, obviously, is its force, and obviously was the intent of the party who used it. How adapted? The adaptation is made by putting the things together in the way which is shown and described in the patent, and until that is done there is no adaptation made, within the meaning of the patent law. A mechanical device is ‘adapted’ to do its work by being actually put into co-operative relationship with such other devices as will enable it to perform its function. This is the highest and most perfect adaptation known to the law, and when it is done a combination is made: Hence, it is submitted that the devices being named which make the combination, their co-operative relationship being described and set forth fully and .specifically, and a co-operative relationship in the machine being clearly called for by the word ‘adapted,’ it clearly follows that the claim in cjRestion should be construed as a combination claim; the more so, because, by such construction, the invention, as actually made, will receive the proper protection. /</p> <p>“Let us turn now to the question of function.. I have said that, as a matter of fact, the use of a weight in the Brown combination in lieu of a spring (assuming it to be usable at all) would introduce into the Brown cultivator a function previously unknown in the art. This function may be thus stated: Making a weight or spring coact or co-operate with a hand lever or handle in the manually directed movements of the cultivator shovel in such a way that the spring or weight should always be an auxiliary device, and should never be an opposing device. That thing or function was absolutely new with Mr. Brown. The co-operation of those two elements—the spring or weight, on the one hand (or include, if you please, the draft of the team), enacting with the hand lever or handle through which the cultivator shovel was manually guided in doing its work, and so as always to be a help, and never a hindrance—was unknown in the art until Mr. Brown did it. This is the final and material fact in the case; and, this fact being true, it is submitted that the.validity of the Brown patent cannot be called in question. A new combination which involves a new function' is always patentable.</p> <p>• “Weights vs. Springs. . In machines- which travel about from place to place, a weight is not, as a general rule, the mechanical equivalent of a spring. While Mr. Brown, when he applied for his patent, undoubtedly thought that, for the purposes of the invention in question, a weight was practically, as well as theoretically, the equivalent of a spring, the simple fact is that, in so thinking and so saying, he was mistaken. It was an error on his part-nothing more and nothing less,—but an error which ought not to prove fatal to his patent, in view of the fact, first, that the actual invention which he made was incontestably novel, and has proven to be of great value, and in view of the still other fact that the defendants have undoubtedly used it. In many kinds of stationary machinery, weights can obviously be substituted for springs without invention, and with beneficially the same results. Where they can be so substituted, they are equivalents, and otherwise not. In most kinds of movable or portable machinery, they are not equivalents. Thus, in watches they are not equivalents, though they may be in stationary clocks, they are not .equivalents in eye glasses, and a weight would be a sorry equivalent for a spring in a carriage or in a bed. Whether they are equivalents depends upon the environments. It is also submitted that the whole question of weights as mechanical equivalents was practically disposed of in the first decision in the Deere Case, and on the principle there enunciated and applied, Titile per inutile non vitiatur;’ and to this the court very properly added: ‘Whatever part of this claim may be deemed to have reference to the projection, M', it seems to me, is of no moment, for the purposes of this case at least, for it is not claimed that defendants use this part of this claim, or anything equivalent to- it.’ Manufacturing Go. v. Deere, 21 Fed. 709, 711. So of the weight. Neither party uses it, or ever has. For the purposes of this case, all reference to it may properly be disregarded, or it may be rejected as surplus-age.” * * *</p> <p>“In the invention now in question, the place of hitch—that is, the place where the connection was made through which the spring gcted on the cultivator beam—was changed from the cultivator beam itself, and was shifted forward to a radial arm or projection, which was made for the purpose on the pipe box. It will be remembered that the forward end of the beam is pivoted to a pipe box on the axle by a vertical joint. This vertical joint permits sidewise motion, and through the pipe box itself, turning on the axle, we get vertical motion. The problem was to hitch the spring so that it would -aid the operator in the vertical movement of the beam, without interfering with the sidewise movement. . In order to do this, Brown made on his pipe box an arm, M, which extended radially out from the pipe box. To this he hitched the free end of the spring, which in his patent is marked ‘N,’ the other end of tlie spring being fixedly secured to the main frame. Hence, the Brown invention, stated in a general way, consists in hitching the spring to an arm or projection which extends radially out from the pipe box in any desired direction. ~ * * The invention, in-operly construed, takes in any place of hitch at or forward of the vertical pivot bolt by which the cultivator beam has sidewise motion. This is the only part of the invention which is now properly in controversy.”</p>

<p>Patents—Limitation of Claims—Water-He atino Device for Stoves.</p> <p>The Stirrat patent, No. 357,874, for a water-heating device for stoves, in view of the prior state of the art and the modification of the claims in the patent office, must be strictly limited to the construction described, which includes, as an essential element of the combination claimed, a hollow, long center plate or a top plate of a stove having a chamber therein, through which the water to be heated is caused to pass; and hence does not cover a device containing a solid, long center plate with a water box bolted thereto. 60 Fed. 607, affirmed.</p>

This was a suit by Albert H. Overman against the Warwick Cycle Manufacturing Company to restrain the infringement of letters patent No. 331,001, granted to the complainant for a saddle for velocipedes.

<p>Bill of Health—Port of Departure. ,</p> <p>A merchant ship bound for the United States must (27 Stat. 449) procure a bill of health “from the consul or other consular officer of the United States at the port of departure.” Held,, that “the port of departure” is not the last port at which the ship stops while bound for the United States, but .the port from which she cleared.</p>

<p>1. Tugs and Tows—Stranding Tow—Negligent Navigation.</p> <p>A barge having run aground while in tow of two tugs, her owner brought this suit against both tugs to recover the damage. The defense was that high water was lower than usual, and that the draught of the barge had been represented as being hut 20 feet, when she in fact drew more. The evidence did not satisfactorily show any misrepresentation as to .the draught of the barge, and it did appear that the barge grounded</p> <p>' forward, where her draught was not ever 19 feet 0 inches. The chart showed sufficient channel way for the barge, even with an abatement of a foot or two in the usual height of the flood tide. Held, that the tugs did not take the best water, and that this was the true cause of the grounding, and rendered the tugs liable.</p> <p>2. Same—Two Independent Tugs—One Directing Navigation — Liability.</p> <p>Where two independent tugs were employed to tow a barge, and during the towing the barge was run aground, 'held, that both tugs were liable, although it appeared that the pilot of one tug was taking the direction of the navigation in the shallow waters when the barge struck.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>This was a suit by the Central Trust Company of New York against the Wabash/ St. Louis & Pacific Railway Company and others to foreclose a mortgage on the properly of the railway company. The Chicago, Milwaukee & Si. Paul Railway Company filed an intervening petition for a claim under certain (raffle contracts.</p> <p>On December 5 and December 29, 1883, contracts providing, among other things, for a pooling and division of competitive traffic, were entered into by and between seven railroad companies, to wit, the Union Pacific, the Chicago, Rock Island & Pacific, the Chicago, Milwaukee & St. Paul, the Wabash, 'St. Bonis & Pacific, the Chicago & Northwestern, the Chicago, St. Paul, Minneapolis & Omaha, and the Missouri Pacific. There were four contracts. The first was between the Union Pacific Railway Company, as party of the first part, and the Chicago, Rock island & Pacific Railway Company, as party of the second part, and the Chicago, Milwaukee A St. Paul Railway Company, as party of the third part. The other throe contracts admitted the other parties into the pool, and made some modifications and extensions of the original contract. The four contracts were in effect one, and will be so treated. The following are some of the material provisions of the contract:</p> <p>The preamble declares the object of the contract to be to “make the railway system of the parly of the first part substantially a part of the railway system of each of the other parties hereto, as to westward-bound traffic which will pass through Council Bluffs, in the state of Iowa, and each of the railway systems of the other parties substantially a part of the system of the party of the first part, as to east-bound traffic which will pass through the same place. * * It is declared to be the purpose of the parties hereto</p> <p>by the execution of these articles, and the performance ol' the several covenants, promises, and agreements herein set out, to establish and operate through lines of railway, which shall connect, when the same can be done by a reasonably direct line through Council Bluffs, all points on the system of the party of the first part with all points on the several systems of the other parties (excepting the Kansas Division of the party of the first part and its railroads in the state of Kansas), including all extensions of the main lines, branches, and other railways mentioned in the preamble hereto, and all lines and branches which are now owned, controlled, or operated by either of the parties hereto in connection with any of its railways above mentioned, and which may be added thereto by construction, purchase, lease, or otherwise, and to secure the operation of all of said lines as to such through traffic as they should be if operated by one corporation which owned all of them. * • •</p> <p>“The party of the first part covenants, promises, and agrees with each and both of the other parties that it will, so far as it lawfully can, deliver to the railways of said other parties, at Council Bluffs, all eastward-bound through traffic which may be received by it for transportation to any point which can be reached with reasonable directness over any of the through lines composed of the railroads of two or more of the parties hereto passing through Council Bluffs, and that it will make all lawful and reasonable efforts to secure the transportation of all such through traffic which may be received by it for transportation over such through lines. It will divide all competitive through traffic which shall be transferred from its own railways to those of the other parties, as nearly as shall be practicable, into two equal parts, and transfer one of said parts to the railways of each of said parties for transportation to destination, or to the proper connecting line. * * *</p> <p>“The rates which shall be charged for the transportation of through traffic over the through lines hereby established, for which provision has not been made in the preceding section, shall be fixed in the manner following: The established or current rate of the party of the first part, as per schedules hereto attached and made a part hereof, between the point at which traffic is received or to which it is destined and Council Bluffs, shall be added to the established or current rates of the parties of the second and third parts, as per schedules hereto attached and made a part hereof, between the points on their several lines at which such traffic is received or to which it is destined and Council Bluffs, and the sum of the two rates shall be the through rate: provided, however, that the rates upon all through traffic between competitive points which may be connected by a through line over the Northern Pacific Railroad shall be so adjusted that the rates between such points and all Chicago and Mississippi river points by way of Council Bluffs shall be as low as by way of St. Paul. * * *</p> <p>.* “The through rates on east-bound through traffic over the lines hereby established may be reduced by the party of the first part, and the like rates on like traffic west bound may be reduced by the party of the second or third part, by whom it shall be delivered to the party of the first part, when such reduction shall be rendered necessary by competition with lines other than those hereby established. When any through rate is reduced by a party for any reason it shall immediately notify the other parties hereto of such reduction and the facts which it is claimed justified such reduction. A reduction of a rate shall continue only so long as shall be necessary because of competition. No rate shall, be reduced by any party otherwise than as provided in this and preceding sections. * * *</p> <p>“If any through rate shall be reduced by any party for reasons which are not satisfactory to the other parties, the rates fixed by the schedule shall be immediately restored, and maintained until a majority shall direct a mbdification, and all traffic transported under modified rate shall be accounted for at full rates in the division of the proceeds of the through traffic between the parties. In no case shall a schedule of rates be in any manner modified, altered, or reduced for the purpose of drawing traffic from the railways of any party hereto. If any party shall feel aggrieved because of any modification of any through rate, or of any order restoring a rate which' has been cut, or by the action of any party tending to evade or in any wise impair agreed rates, the party so aggrieved may makei it the basis of a complaint which shall .be determined by reference as hereinafter provided. On the hearing of any such reference, the referees may affirm the order made by a majority of the parties, or direct the restoration of the rate reduced, and in a proper case make award to the party or parties injured by any evasion or unjustifiable reduction of a rate, as compensation for any damages which shall have been sustained. * * *</p> <p>“If the east-bound competitive traffic actually transported by either of the parties of the second or third part, in any one month, shall not amount to the equal share to which it shall be entitled under the provisions of these "articles, the balances shall be so adjusted as to give to each the proceeds of an' equal share of the gross revenue received by both for the transportation of shfjh traffic. P * * , .1</p> <p>“To prevent confusion in the settlement of accounts, the following ■ distances arc arbitrarily established: From Council Bluffs to all points east thereof which take Chicago rates, five hundred miles; from Council Bluffs to all points east thereof which take Mississippi river rates, three hundred and forty miles. * * *</p> <p>“No covenant, promise, or agreement in said original articles or in these supplemental articles contained shall be so construed as to affect or control (otherwise than by securing equality of rates, as provided in said original and these supplemental articles) through traffic specially routed, marked, and consigned by the shippers over through lines of which the Southern Pacific Railroad does now, or shall hereafter, form a part; but the rates on all through traffic between competitive points which may be connected by a through line over the Southern Pacific Railroad shall be so adjusted ihat the rates between such points and all Chicago and Mississippi river points by way of the Southern Pacific shall be as high as by the way of Council Bluffs. * -- *</p> <p>“If, at any time while this contract remains in force, the construction of new railroads, or the extension of existing ones, or the purchase or lease of railroads, or traffic or other arrangements, made by any one or more of the parties hereto, .shall materially change the relations now existing between the parties with regard to traffic, the contract set out in tho original and in these supplemental articles shall he so modified, altered, and amended as to establish between them, with regard to the then existing circumstances, substantially the relations hereby established between them with regard to the circumstances now existing. It is declared to be the purpose and intent of the parties to maintain the relations hereby established with regard to existing railroads and operating and traffic arrangements, and to adjust such relations to any chango which may be made therein with regard to through traffic. If the parties cannot agree upon the modifications, alterations, or amendments which shall be made, if'any, under the provisions of this section, the difference or differences which may thereby arise shall be determined by reference as in the original and these supplemental articles provided. * * *</p> <p>“Each party will contribute to a common fund all of the gross revenue which it shall receive for the transportation of both east and west bound through traffic, hereinafter described, to or from Council Bluffs, and to and from Missouri valley, in the performance of the covenants, promises, and agreements sot out in said original and supplemental articles. For the purpose of ascertaining the full amounts of the gross revenue which the parties shall severally contribute, each shall account and pay for all through traffic, both east and west bound, so transported by it, as follows: For all through traffic, except lumber, between the saidi Union Pacific and tho Sioux City Pacific Railways and the railways of other parties hereto covered by said original and supplemental articles, which shall originate at, be destined' to, or cross the Mississippi river at any point between the cities of Dubuque and St. Louis, both inclusive, at the rates for like traffic between Chicago and Council Bluffs. Through traffic which shall be transported for the government of the United States shall be accounted for at tho actual rates paid for the same; that is, the regular rate, less the discounts which may be made because of land grants. When a penalty is charged on traffic for excess of weights, such traffic shall be accounted for at the regular rates for actual weight. Each party shall deliver to each of the others quarter-monthly statements showing what through traffic covered by said original articles and the supplemental ax'Ucles referred to has, during the quarter* month immediately preceding, been transferred over its railroads, or any of rbem, in' what it consisted, between what stations and in what directions it was transported, and the rates charged and received therefor.</p> <p>••The party of the thix-d part hereto undertakes to account) to the other parties, and pay to tho common fund, provided for in tho second section hereof, at Chicago'rates, for all through traffic which may he received on its line, which can be lawfully transported fx-om the point at which it shall be reeeived to destination or the proper connecting railway, over any of the through lines by the original articles and the supplemental articles established,with reasonable directness, through Council Bluffs, though such traffic, dr son}e portion thereof, may not have been so actually transported: provided, however, that no greater amount of traffic to or from California points, actually transported by way of the line of the parly of the third part and the Southern Pacific line, shall be reported to such common fund than the amount that shall be necessary (when added to the amount reported for other through traffic transported by the party of the third part) to make the sum equal to the proportion of the common fund to which the third party is entitled. Said common fund shall, when settlements are made between the parties in manner and form 'as provided in said original articles, be divided into four equal parts, one of which shall be paid to each of the parties hereto. This result shall be accomplished, so far as shall he practicable, by a physical division of the traffic to be accounted for (aided by diversion from- one line to another) into four equal parts, one of which shall be transported by each of the parties hereto. When, for any reason, such division of the traffic has not been made during the month, the party or parties who shall receive an excess over the share to which it shall be entitled, as above provided, shall pay to the party or parties who shall not have received their full shares a sum or sums of money sufficient to make the division exact in producing gross revenue to the parties.”</p> <p>The pooling and division of traffic intended by the contracts were to be accomplished, so far as might be, by physical division of the traffic itself, between the companies, in certain fixed proportions; and, where this was not or could not be done, it was to be accomplished by pooling and division of the gross earnings of such traffic between the companies in such fixed proportions. The contract was to continue for 25 years.</p> <p>In May, 1884, Solon Humphreys and Thomas E. Tutt were appointed receivers of the property, rights, and franchises of the Wabash, St. Louis & Pacific Railway Company by tbe circuit court of the United States for the eastern district of Missouri; and, as such receivers, they operated the railway committed to their charge until, under the decree and order of the court, the property was sold and transferred to the purchasers. The receivers acquiesced in the contracts referred to until March 31, 1887, when, by consent of all the parties, they were abandoned.</p> <p>In tbe course of business, under the contracts, the traffic involved was not actually divided between and carried by the companies in the proportions fixed; but the Wabash, St. Louis & Pacific Railway Company, among others, actually carried more than the share allotted to it, and the Chicago, Milwaukee & St. Paul Railway, among others, actually carried less. The pool commissioner, provided for by the contracts, ascertained and made a statement of the differences, and, in making an adjustment of titem, directed that the Wabash receivers should pay to the Chicago, Milwaukee & St. Paul Railway Company a sum which, after deducting admitted credits, amounted to $18,-404.40; and this suit was instituted to recover that amount.</p> <p>The defense is that the contract upon which the claim is based is against public policy, and void. The court below (Thayer, ,T.) sustained this defense, and the intervener appealed. There was no evidence of' the rate fixed by the parties for the traffic involved in their contract, and no evidence as to their mode of operating under the contract beyond what is afforded by the contract itself.</p>

This was an action by Poster Simpkins against the Atchison, Topeka & Santa Fe Railroad Company to recover damages for personal injuries. Defendant moved to retax the costs.

<p>This was an action by Charles Simpkins against the Atchison, Topeka & Santa Fé Railroad Company to recover damages for personal injuries. Defendant moved to retax the costs.</p>

<p>Post Office—Indecent Dettehs—Indictment.</p> <p>Rev. St § 3893 (1 Suop. Rev. St. p. 621), provides that “every obscene, lewd or lascivious book, pamphlet, picture, paper, letter, writing, print or other publication of an indecent character, * * * whether sealed as first-class matter or not, is hereby declared to be non mailable matter.” Held, that a private letter in a sealed envelope is within the prohibition of this statute if it is of an indecent character.</p>

This was a suit by the Edison Electric Light Company and another against the Packard Electric Company, James Ward Packard, and William I>. Packard, for infringement of letters patent. The following cases were cited to the point that the officers, stockholders, or agents of a corporation cannot be enjoined individually from infringing a patent, when the corporation for which they act has not been served with .process: Ambler v. Choteau, 107 U. S. 586, 1 Sup.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a suit by Amand Levy and others, constituting the firm of Levy Bros., against Henry Waitt and others, constituting the firm of Waitt & Bond, to- restrain the alleged infringement of the trade-mark “Blackstone,” as applied to cigars.</p>

<p>This was a libel by Ossian Eustrom, a deputy grain inspector, against the steamer City of Naples, for damages for injuries received by falling through an open hatchway.</p>

<p>• Shipping—Injuries to Cargo—Seaworthiness.</p> <p>A cargo of flour shipped from Baltimore to Rio on the steamer Thames was badly damaged by water which leaked through the deck. The deck rested upon iron beams, 3 feet apart, extending across the ship, braced by iron plates half an inch thick and 15 inches wide, laid diagonally across them, and bolted to them. The deck planks were not grooved where they crossed these plates, as required by rule of Lloyds, so that they should rest solidly on the beams; but thin pads of wood were laid on the beams to keep the planks from sagging between the diagonal plates, which were nine feet apart It was shown that the deck did sag, nevertheless, thereby continually working out the calking, and that several cargoes before the one in question were damaged by water. Held, that the ship was not seaworthy for the carriage of flour, and is liable for the consequent damage thereto.</p> <p>2. Same.</p> <p>In the hold of an iron steamship bound from Baltimore to Rio, there were stowed 17,000 cases of kerosene oil; and on top of them, on a dunnage of one-inch pine boards, were stowed 5,000 barrels of flour. When the ship reached Rio, it was found that all the flour was so saturated with the oil itself, or contaminated by its odor, that it was unfit for food. The sweating in this hold was excessive, and much water leaked into it through the deck; but there was no means of ventilation, and the hold was not opened during the whole voyage, which consumed one month. It was shown that oil and flour, in small quanties, could he shipped together without injury to the flour, but only when they were stowed in a hold which was perfectly dry and thoroughly ventilated. Held, that the ship was not seaworthy for the carriage of such large quantities of flour and oil in juxtaposition, and she is liable for the consequent damage to the flour.</p> <p>8. Same—Stowage—Improper Place.</p> <p>Inasmuch as the master designates the place within the ship where each kind of cargo is to go, when such place is improper the ship is liable for consequent damages to the cargo, although it was stowed by the freighter’s stevedore.</p> <p>4. Same—Bill of Lading—Damage—Notice.</p> <p>The bill of lading under which flour was shipped required that notice of damage should be given the shipowner within three days after unloading. The unloading was completed January 31st, and notice of damage was given February 3d. While the resulting survey was in progress, it was discovered that, in addition to damage by water, the flour was also damaged by the odor of oil shipped in the same hold, and another notice was given, and another survey ordered. Held, that the original notice was in time to bind the ship for the whole damage.</p> <p>5. Same—Seaworthiness.</p> <p>When a well-known article of commerce is received on board ship, and carried on a voyage, the master guaranties the seaworthiness of the ship for the carriage of that particular cargo.</p>