Volume 62 — Federal Reporter

<p>In Equity. On motion to remand. Bill by the Pelzer Manufacturing Company against tbe Hamburg-Bremen Fire Insurance Company.</p>

<p>‘Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>Bill by Louisa L. 'Williams and others against J. F. Shipp and others to foreclose a trust deed. Complainants obtained a decree. Defendants appeal.</p> <p>The original bill was filed in the TJnitod States circuit court for the southern division of the eastern district of Tennessee. The complainants are citizens and residents of the state of New York. The defendants are all citizens and residents of the state of Tennessee. The complainants are creditors of the defendants Shipp and wife and Temple and wife by notes exhibited with the bill, and secured by two deeds of trust on real estate in Chattanooga, Tenn. The other defendants are Da.vid Woodworth, Jr., and Xen. Wheeler, and are the trustees in llie deeds of trust sought to be enforced by decree of sale. The bill alleges (hat both the trustees had qualified as trustees, and had twice undertaken to execute the trust by selling the property at public sale, after default, by virtue of a power contained in the deeds of trust; that each time tlie defendants had enjoined the sale under bills filed in a state chancery court upon an allegation of usury. The bill then alleges that the said defendants Woodworth and Wheeler, discouraged by the obstacles thrown in their way for purposes of delay, have “refused and declined to further exercise 1hoir duties as trustees under said deeds of trust, and announce their determination to decline the use of their names and services in the matter of foreclosing said deeds of trust.” The defendants Shipp and wife and Temple and wife appeared, and demurred to the jurisdiction. The demurrer being overruled, they answered. Upon the final' hearing there was a decree in favor of complainants. The defendants have appealed, and assigned errors.</p>

This was a suit by Oliver Ames, 2d, and others, against the Union Pácific Railway Company and other companies, for the appointment of receivers of that company as insolvent.

<p>1. Receivers — Rkduotioh oi’ Wages — IIeasohabi/kness.</p> <p>A railroad company, whose solo property was the equipment and leasehold of' another road, passed into the hands of a receiver. The animal rent was a first lien on the equipment, and the leasehold was subject to forfeiture for nonpayment of the rent. Owing to general business depression, the earnings of the road tell off, until they were not sufficient to pay the rent, and the receiver ordered a reduction of 10 per cent, in the wages of all employes. It appeared that a like reduction had been theretofore made by competing roads, and that, in order to avoid discharging many employes, the receiver had been compelled to lesson the working time ot each one. Held, that ¡lie reduction was not unreasonable.</p> <p>2. Sami: — Workikg Time.</p> <p>"Where a 10 per cent, reduction of wages by a receiver of a railroad company is reasonable in itself under all the circumstances and the get - oral condition of trade, it is not rendered unreasonable by the fact that, his employes were already working on short time, with a proportionate reduction of wages; the shortening of time having been directed wit Is their own consent, in order to avoid the discharge of many of tlieir number.</p>

This was an action by Murray against the Chicago & Northwestern Railway Company to recover damages for alleged unreasonable rates charged for transportation of freight. Submitted on motion and demurrer to amended petition.

<p>This was an action by Anderson against tbe Louisville & Nasb-ville Railroad Company for damages for ejection from 'defendant’s trains. Defendant demurred to plaintiff’s petition.</p>

<p>1. Excessive Fees in Pension Cases — Indictment—Requisites.</p> <p>In an indictment under the act of July 4, 1884, § 3, for demanding and receiving compensation for prosecuting a pension claim before sucli claim is allowed, it is unnecessary to aver tfiat tfie amount so received was in excess of the sum legally chargeable, or to negative the existence of a contract in regard to the fees.</p> <p>2. Same.</p> <p>An indictment for violating the statute regulating fees for prosecuting pension and bounty land claims (Act July 4, 1884) need not aver that the applicant for a pension had been in the military or naval service of the United States.</p> <p>3. Same.</p> <p>An indictment charging the receipt of a fee exceeding $10 for prosecuting an application for an increase of pension because of an increase of disability need not negative the existence of a contract; for under the act of July 4, 1884, it was unlawful to receive, even by contract, a fee exceeding $10.</p> <p>4. Constitutional Law — Regulation of Contracts — Fees in Pension Cases.</p> <p>Congress has constitutional power to regulate the amounts which claimants under the pension laws may contract to pay to their solicitors, even though both parties are citizens of the same state.</p>

<p>These were indictments under the pension laws against George Kessel for accepting bribes to influence his official action as a member of a board of examining surgeons. Defendant demurred to the indictments.</p>

<p>These were indictments charging George Kessel with violating the pension laws. Defendant demurred to the indictments.</p>

<p>These were indictments under Bov. St. § 5440, against George M. Van Leuven, for conspiracy. Defendant demurred to said indictments.</p>

<p>1. Officers of the United States — Pension Office — Examining- Surgeons.</p> <p>A member of a board of examining surgeons appointed by the commissioner of pensions, though not an “officer of the United States,” is yet a “person acting for or in behalf of the United States” in an “official capacity,” and under authority of an “office of the government,” within the meaning of Rev. St. § 5501, relating to bribery. U. S, v. Germaine, 99 U. S. 508, distinguished.</p> <p>2. Same — “Decision or Action” — What Constitutes.</p> <p>The .certificate which a board of examining surgeons is required to make out is a “decision or'action on” a “question, matter, cause, or proceeding,” within the meaning of Rev. St. § 5501, relating to bribery.</p> <p>3. Indictment for Conspiracy to Defraud United States — Sufficiency.</p> <p>In an indictment under Rev. St. § 5440, for conspiracy to defraud the United States by bribing a member of a board of examining surgeons to make a false report to the commissioner of pensions, it is unnecessary to aver that the commissioner had authority to grant pensions, for such authority is given by general statutes, of which the court will take judicial notice. U. S. v. Reichert, 32 Fed. 142, distinguished.</p> <p>4. Same.</p> <p>A conspiracy to procuro, by bribery, tbe making' of a false certificate by the board of examining' surgeons, whereby the commissioner of pensions may be induced to allow a fraudulent increase of pension, is a conspiracy to defraud the United. States, within the meaning of Rev. St. § 5440.</p> <p>5. Indictment— Joindkk of Parties — Conspikacy.</p> <p>There is no impropriety in joining' in one indictment, under Rev. St. § 5440, a, charge of conspiracy against a private individual, and against a member of a board of examining- surgeons appointed by the commissioner of pensions. U. S. v. McDonald, Fed. Oas. No. 15,670, 3 Dill. 543, distinguished.</p>

<p>1. Violation or Pension .Laws — False Affidavits — Indictment.</p> <p>An indictment under Rev. St. § 474(5, for procuring the making or presentation of a false or fraudulent affidavit in support of a pension claim, nos'd not charge that it was made for the purpose of defrauding the United States.</p> <p>2. Same.</p> <p>An indictment: under Rev. St. | 5118, for transmitting to the office of the commissioner of pensions a false and altered affidavit, with intent to defraud the United States, is fatally defective, where it fails to charge that the affidavit was transmitted with relation to, or in support of, a claim against the United States, or to aver facts from which the court can find that the United States could be prejudiced in any way thereby.</p>

<p>Appeal from tbe Circuit Court of the United States for the Eastern District of Michigan.</p> <p>Libel by Harvey H. Brown and others against the steamer North Star (the Northern Steamship Company, claimant) for a collision between said steamer and the steamer Sheffield. The district court found both vessels in fault, and decreed that the damages should be divided (43 Fed. 807); and, after a hearing of exceptions to the report of the commissioner on the question of damages (44 Fed. 492), a decree was entered for libelants. Claimant appealed.</p> <p>This was an appeal from a decree of the circuit court of the eastern district of Michigan affirming the decree of the district court, which held that two steamers, the Charles J. Sheffield and the North Star, were both at fault in a collision between them on Lake Superior, and divided the damages.</p> <p>Harvey H. Brown, E. M. Peck, Payette Brown, and C. J. Sheffield, the owners of the Sheffield, which was sunk by the collision, began the litigation by filing their libel in the district court against the North Star. The libel alleged that on the 14th day of June, A. D. 1880; the Sheffield was bound on a voyage from South Chicago, Ill., to Two Harbors, Minn., with no cargo; that having passed Whitefish Point, on Lake Superior, and adopted a course W. N. W., she encountered foggy weather,, with a strong southerly breeze; that it was not a steady fog, but would light up at intervals, affording a view for several miles ahead; that, to overcome the effects of the southerly wind, she was kept up a quarter of a poiut from about 1 to about 4 o’clock p. m. on that day, when the wind shifted ahead, moderating to a light breeze, the fog gradually setting-in denser, and more steady; that from the time the wind began shifting the Sheffield was steered by compass W. N. W.; that her fog signal of one blast was blowing regularly, as required by law and the circumstances; that the water was smooth, and the wind, at the time of the collision about to be described, was light. The collision is then described in the libel as follows: “That about 4:40 o’clock the whistles of two steamers were heard. One, a loud whistle, was comparatively near; but, at first sounding nearly abeam, it passed, and required no further attention. The other was the faint, faraway sound of the steamer’s whistle, nearly ahead, which steamer proved to be the North Star, and with which last-mentioned steamer the .Sheffield, fifteen minutes later, came in collision, as hereinafter shown. The Sheffield’s engine was at once checked, and close attention was paid to locate the direction of the whistle when it should sound again. It was heard again, a little on the starboard bow. The Sheffield was thereupon, the second time, chocked, and to a speed so slow that, as afterwards appeared, she had not good steerage-way, and a passing signal of two distinct blasts was blown to the approaching steamer. No answer was received. The signal was repeated by the Sheffield, and she was starboarded half a point. The approaching steamer then replied with one blast, still a long distance away. To make certain whether this was blown as a fog feignal, or as a passing signal in response to her own blast, the Sheffield, two or three times, blew the signal of two blasts, to each of which signals the approaching steamer responded directly with a distinct signal of one blast. Thereupon, the Sheffield, acquiescing in the proposal or demand of the approaching steamer to pass port to port, also blew a passing signal of one blast, and ported her wheel. The vessels were then a mile and a half to two miles apart, the North Star then being less than a point on the Sheffield’s starboard bow. The Sheffield was not steadied until she headed about northwest by north. In executing the maneuver, it was seen that she had not sufficient steerageway, for which reason her speed was slightly increased, enough to give her steerageway. The whistle of the North Star was thereafter heard on the Sheffield’s port bow, each vessel blowing to the other passing signals of one blast, which signal was exchanged repeatedly, the Sheffield proceeding as last above described; and the vessels being — as, In •accordance with said signal, they should be — on such courses that the sound of the North Star’s whistle was broadening each time off the port, until she was well off on the port side of the Sheffield, and all risk of collision seemed to be past. In this situation, those on the Sheffield, for the first time, heard a signal of two blasts, for starboard helm, from the North Star, sounded fully four points off the Sheffield’s port how, the vessels being now too close to ehaiige sides by starboarding. The Sheffield answered with one blast, and hard ported. Again Tlie North Star blew two blasts, which were answered again by one, and then the North Star swung up through the fog, heading for the Sheffield, two lengths or more distant on the port side, and coming at great speed; those forward on her hailing tlie Sheffield io go ahead strong, while the master of the Sheffield was at Hie same time signaling tlie engine room for full steam, and ordered her wheel amidships. The North Star came on at so great siieed that she struck the Sheffield at about a right angle, by her port mizzen rigging, crushing in hex side, and after that cutting into her a distance of six to eight feet, inflicting such damage that within five minutes the Sheffield sank, and became and is a total loss.” Tlie libelants allege that the North Star was in fault — First, in that, after selecting a mode of passing and establishing an understanding to pass port to port, by passing signals of one blast, she improxierly departed from that course, and attempted the opposite mode of passing, to wit, starboard to starboard, when it was too late to safely make or attemi>t the change; second, in I hat she improperly starboarded; in that slie was proceeding at an unnecessary, excessive, and illegal rate of speed; and, third, in that she did not adopt seasonable and proper means for avoiding the collision.</p> <p>The Northern Steamship Company appeared as claimant, and filed its answer. The answer averred that at about. 5 o’clock p. m., Buffalo time (27 minutes faster than Cleveland time), the North Star was proceeding on a course of S. 10. ½ E., the usual course from Alanitou Island, to take her well off Whiteflsh Point, and that she was running under check, at a moderate and safe rate of speed, the wind being light from about N. W., and tlie sea nearly smooth. The collision, and the circumstances which led np to it, are thus described: “While running along in this way, shortly after 5 o’clock, the lookouts heard, and reported to the master, a, signal of a steam vessel bearing about three-quarters of a point from the starboard bow. The signal was heard by Uie master at the same time, and, although indistinctly, it was made out to be two blasts of a steam whistle, from some vessel approaching. At the moment when the said two blasts on the whistle were heard as aforesaid, it was well known to those in charge of the North Star that the said signa) was a passing signal of some vessel bound np Bake Superior, and in all probability in a parallel course with that of tlie North Star, and that if each of the vessels pursued her respective course no collision could occur, as the vessel which blew the signal was well off the starboard bow, inland, with miles of open lake between her and the nearest land to the south. The signal of the approaching vessel was promptly answered by two clear and distinct blasts of the steam whistle of Hie North Star. In less than a minute after the North Star so answered as aforesaid, the second signal of two blasts was. heard from tlie same vessel, still on (he starboard bow of the North Star. This was again answered by two clear and distinct blasts of the North Star’s whistle. Again the approaching vessel blew a signal of two blasts, and again the North Star answered with two blasts. As there appeared to be no disagreement between the vessels as to their signals, or the mode of, passing, and as the approaching vessel was still on ihe starboard, there seemed to be ■ no reason why any danger of collision should be feared. After the last two blasts of the North Star, mentioned above, were given, tlie approaching steamer, which afterwards proved to be the Sheffield, suddenly blew a signal of one blast of her whistle, still off ihe North Star’s starboard bow. As soon as this was blown, danger of collision was apprehended, and the North Star promptly answered this signal last blown by the Sheffield by adhering to her passing signal of two blasts; and her master immediately took the precaution to check down still further the speed of tlie North Star, which was then moderate. The Sheffield, however, again blew a signal of one blast of her whistle, still on Hie North Star's starboard bow, but closer. The engine of the North Star was then immediately stopped, and while this order was being obeyed the Sheffield hove in sight, near to, and heading across, the North Star’s bow and course, from starboard to port. The vessels were then so close to each other that a collision seemed inevitable, but notwithstanding this, the master of the North Star immediately ordered her wheel to port, so that she might swing under the stern of the Sheffield, and possibly pass her, and ordered the engine to baclr, and immediately followed this order to back strong; and, in response to this order, every available pound of steam was given the engine, and the steamer was backing with full power. But, notwithstanding these precautions (there remaining sufficient headway), the Sheffield, which was still crossing her bows, threw herself in the North Star’s way, so that the latter collided with and struck her just forward of the port mizsen rigging, and her great weight imparted such energy to the blow that^ she cut into the Sheffield’s side four or five feet. At the time of the collision' the North Star was backing strong, but knowing that the Sheffield was so injured that she could not float, and knowing that her crew were in danger, the master of the North Star stopped the engine of the latter, and then ordered it ahead, so that the bow of the North Star might be kept in the breach made by the collision until the crew of the Sheffield could be taken on board. When this had been accomplished, the North Star backed out of the breach, and in a few moments thereafter the Sheffield sunk.”</p> <p>The answer alleged that “the collision was brought about solely on account of those in charge of the Sheffield failing to observe the signals of the North Star, which had been blown in answer to the former’s signal to pass starboard and starboard, and improperly,- and without sufficient warning, and in too close proximity to the North Star, attempting to cross the latter’s bow, so that it became impossible for those on the North Star to avoid a collision with her.”</p> <p>After the hearing in the district court the claimant' and respondent filed an amendment to the answer, as follows: “That at the instant the Sheffield’s signal of one blast (i. e. the first cross signal) was heard, as aforesaid, the orders to check, stop, back, and back strong were given by the master of the North Star, almost simultaneously, and were promptly obeyed, and that no perceptible period of time elapsed between the first order to check, and the final order to back strong.”</p> <p>The district judge (now Mr. Justice Brown), after hearing the evidence, reached the conclusion, with the aid of nautical assessors (see The North Star, 48 Fed. 807), that the Sheffield was guilty of four manifest faults, in failing to stop at four different times when by reason of the signals of the North Star, her officers must have been uncertain as to the course which the North Star was pm-suing. One good reason for uncertainly on their part he found to be that the fog signal and the signal announcing a porting of the helm were single blasts, differing only in length, so that it necessarily involved a risk of collision for the Sheffield’s master to assume that single signals from the North Star indicated an agreement to pass port to port, and thereupon to port his helm on that assumption, without stopping to ascertain definitely its correctness. He held that the North Star was at fault in failing to stop and reverse at the first cross signal of the Sheffield, and also in running at a speed which was not moderate. The question of damages was referred to a commissioner, who reported that the damage suffered by the owners and crew of the Sheffield amounted, with interest, to the date of report, to $177,214, and that the damage to the North Star amounted to $7,110.65; and the court awarded to the libelants the sum of $85,051.67, being the one-half of the total damages arising out of said collision, including interest to the date of the decree. The decree in the circuit court was entered by Mr. Justice Brewer, without a hearing, for $95,895.75, which included interest on the amount of the decree of the district court to the date of the decree in the circuit court.</p>

<p>1. Com-tstox — Trtat,—NAUTIOATj ASSESSORS.</p> <p>In a collision case, there is no error in the district judge calling to his assistance a navigator of experience as nautical assessor.</p> <p>2. Same — Between Steamers — Fog.</p> <p>The steamer Fountain City collided with the tug Samson on a starlight night, when there was considerable fog on the water, so that neither vessel was visible from the deck of the other. The captain of the steamer testified (hat ho first hoard one blast of the tug’s whistle, about one point on tlie port how, and answered it, indicating that the vessels would pass port to port. Next he heard three blasts from the same point, indicating that the tug had a tow; and he answered with a single blast, and ported his helm, to give her a wider berth. At this time the mate reported from the cross trees that the tug was on the port beam. He then heard two blasts from the tug, and answered them, and starboarded his helm. Then the tug gave a single blast, which he answered, and stopped his engines; but in a moment the tug was discovered altead, and the collision occurred. field 1hat, as the position of the tug was doubtful, — her whistle sounding ahead, and the steamer’s mate reporting her abeam, — the steamer was in fault, for not reversing- when the captain heard the double blast, indicating a change of the agreement to pass port to port.</p> <p>3. Same.</p> <p>The steamer Fountain City collided with the tug Samson in the nighttime, when fog on the water made each invisible from the deck of the other. The tug’s lookout on top of the pilot house discovered the steamer about one point on the starboard bow. The tug gave two blasts, which were answered by the steamer, and starboarded her helm a little. A second signal of two blasts was answered from the same quarter, hut the tug’s third signal was not answered; and, though her officers became uneasy at this, she kept on until the collision occurred. Meld, that the tug was in fault, for not stopping and reversing when her signal was not answei*ed.</p>

<p>Appeal front the Circuit Court: of the United States for the District of Maryland.</p>

<p>Appeal — Objections not Raised Below — Trial by Refebee.</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, although these rulings were assigned as grounds of a motion for a new trial, no question is presented for review.</p>

This was a suit by Bacon and others against A. W. Harris and others, to set aside certain bills oí sale as being void against creditors. Submitted on pleadings and proofs.

<p>Appeal from the Circuit Court of the United States for the District of South Dakota.</p> <p>This was a suit by John Gregor against S. Y. Hyde for cancellation of a deed. The bill was dismissed. Complainant appealed.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri.</p> <p>This was a suit by W. W. Bonham against the Springfield Hardware Company to have a judgment against complainant declared void for want of jurisdiction. A demurrer to the bill was sustained. Complainant appealed.</p>

This was an action by the Exchange Bank, against Samuel T. Hubbard and others, doing business under the firm name of Hub-hard, Price & Co., for the amount of certain hills of exchange. A demurrer to the complaint was overruled (58 Fed. 530), but at the trial the judge directed the jury to find a verdict for defendants, and judgment for defendants was entered thereon. Plaintiff brought- error.

<p>lu Error to the United States Court in the Indian Territory.</p> <p>This was an action by John McLelland against the St. Louis & San Francisco Railway Company for injuries to plaintiff’s colt, causing its death. At the trial the jury found a verdict for plaintiff. Judgment for plaintiff was entered thereon. Defendant brought error.</p>

<p>Second Writ or Error Unnecessarily Sued Out — Dismissal.</p> <p>After reversal of a judgment on writ of error, for errors committed at tlie trial, a second writ, sued out to correct alleged errors in taxation of costs after rendition of judgment, which might have been incorporated in the same record, will he dismissed at the cost of plaintiff in error.</p>

<p>This was a suit by the Kilmer Manufacturing Company against J, Wool Griswold and others for infringement of patents.</p>

This was a suit by Julius M. Goldstein against Charles A. Whe-lan and others to enjoin alleged infringement of a registered trademark. Complainant moved for a preliminary injunction.

<p>Application by Shebata Saito for naturalization.</p>

This was a suit by tlie Cairo, Vincennes & Chicago Kailway Company against JBrevoort, to restrain the construction of a levee along the bank of the Wabash river across complainant’s right of way. Defendant demurred to the bill.

This was an action by James R. Watts against Walter Weston and Alfred J. Weston on a guaranty. The circuit court directed a verdict for plaintiff for six cents damages. Plaintiff brought error.

This was an action by Elijah SI. Blarker against Robert Mitchell to recover damages for personal injuries. There was a verdict for plaintiff in the circuit court, and afterwards a motion for a new trial was denied. 54 Ped. 637. Defendant sued out this writ of error.

This was an' action by 0. W. Shipman against the Saltsburg Coal Company, for damages for breach of contract. On the trial in the circuit court the jury found for defendant, and judgment for defendant was entered on the verdict. Plaintiff brought error.

<p>Customs Duties — Plate Glass Silvered and Beveled.</p> <p>Certain cast polished plate glass, silvered and beveled, from which looking glasses are made, held dutiable at 6 cents a square foot, and also to an additional duty of 10 per cent, ad valorem, under paragraphs lid and 118 of the tariff act of October 1, 3890, and not dutiable under paragraph 110 only, as “looking glass plates.”</p>

<p>1. Customs Duties — Bauxite—Alumina.</p> <p>The white powder known to the trade as “refined bauxite,” which is manufactured from bauxite by removing from the crude ore the impurities of iron, silica, and titanic acid, is not bauxite, within the meaning of paragraph 501 of the free list of the tariff of October 1, 1890.</p> <p>2. Same.</p> <p>The white powder known to the trade as “refined bauxite” or “hydrate of alumina” is made by heating in a furnace a mixture of crude bauxite,, ground fine, and soda ash, until the carbonic acid of the latter is expelled. The mixture is then cooled and treated with watei-, which dissolves the resulting alumínate of soda, leaving behind the silica, iron, and titanic acid of the bauxite; and the solution is treated with gaseous carbonic acid, which converts the soda into a carbonate, and allows the precipitation of the alumina. From this precipitate, when washed and dried, results the powder in question. Held, that this is alumina, within the meaning of paragraph 9 of the tariff act of October 1, 1890, and is dutiable as such at six-tenths of a cent a pound.</p>

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p> <p>This is an appeal from a decree of the circuit court of the United States for the district of Maryland dismissing the petition of the United States that the judgment in the principal canso he reformed so as to exclude' interest and costs. Dyon, Hall & Co., importers, having been dissatisfied with the rulings of the collector of the port of Baltimore, appealed from him to the board of general appraisers, under the provisions of the act to simplify the laws in relation to tho collection of taxes, approved 10th June, 1890 (26 Stat. 131). The board reversed the ruling of tho collector, and thereupon, under the fifteenth section of the act, application was made to the circuit court of the United States for the district of Maryland for a review of the questions of law and fact involved in their decision. The court affirmed the ruling of tho board of general appraisers, but, on appeal to this court, the decree of the circuit court was reversed. 5 C: C. A. 359, 55 Fed. 964. No provision was made in the body of the mandate of this court as to the costs of appeal. This was explained by a footnote of the clerk, stating: “No costs. See section 4, rule 31.” 1C. C. A. xxiii.,47Fed. xiv. This rule provides thatnocosts shall be allowed In this court for or against the United Slates; and it also provides that, when costs are allowed in this court, it is the duty of the clerk to insert the amount thereof in the body of the mandate or other proper process sent to the court below, and annex to tho same the hill of items taxed in detail. When the mandate reached the court below, that court, on 28th June, 1893, entered an order following the mandate, in so far as it reversed the former decision, and then proceeded as follows: “And it is further ordered, adjudged, and decreed that the appellants, Dyon, Hall & Oo., have judgment against the appellee, .William M. Marine, collector of the port of Baltimore, in the sum of three hundred and sixty-six dollars and twenty-four cents, paid in excess of proper legal duties upon said importation, together with their coste expended in this behalf, to be taxed by the clerk, and Interest thereon from October 26, 3.891, until paid. The judgment entry is for §366.24, interest from October 26, 1891. The costs are taxed as follows:</p> <p>Plaintiffs’ costs in circuit court paid by them.§ 67 46 Plaintiffs’ costs in U. S. circuit court of appeals paid by them... 3.04 95 $172 41”</p> <p>It was stated in argument that the costs taxed as of this court were obtained by a memorandum of the plaintiff showing the costs he had paid. There was no taxation by the clerk of this court. Thereupon the -petition on the part of the United States was filed, praying the reformation of the judgment in the items of interest and costs. This petition was refused.</p>

<p>This was a suit iu equity by the Johnson Company against the Pennsylvania Steel Company for infringement of a patent.</p>

Bill by the H. Tibbe & Sons Manufacturing Company against the Missouri Cob-Pipe Comparty and others for infringement of letters pat-ens No. 205,81(5, of July 9, 1878, for improvement in pipes.

This was si suit by the Southern Pacific Railroad Company against James R. Townsend and Rig Rock Greek Irrigation District, a corporation, to enforce a contract for the sale of land by complainant to defendant Townsend. The suit was brought in a court of the stale of California, and, after the filing of a demurrer by defendant Townsend, was removed, on petition of defendant Big Rock Creek Irrigation District, to the circuit court of the United States.

This was a petition by the Bondholders and Purchasers of the Iron Railroad for a rehearing of a claim against proceeds of sale on foreclosure of mortgages on that and other railroads, constituting the Toledo, Cincinnati & St. Louis Railroad. The Toledo, Delphos Sc Burlington Railroad Company and the Toledo, Cincinnati & íát. Louis Railroad Company demurred to the petition. The demurrer was sustained, and thereupon the petition was dismissed. The pe-xitioners appealed.

<p>Tliis was an action by Michael Craven against the Canadian Pacific Railroad Company, in which judgment was entered for plaintiff on an agreement signed by the attorneys for the parties, and filed in the case.</p>

<p>1. Intkuest — Judgment oi<’ Court op Oi.aims.</p> <p>Interest held, not recoverable upon a judgment in the court of claims, where the.judgment was founded upon a tort, and the case had been referred to the court under a special act (25 Stat. 1334), which did not contain any provision in relation ,to interest.</p> <p>2. Same — Jurisdiction of Circuit Court.</p> <p>Interest cannot he recovered in the United States circuit court upon a judgment rendered in the court of claims; the question being incidental to the original suit, and the court of claims being the proper forum for its determination.</p>

<p>1. Jurisdiction of Fuderau Oouiits — Citizensiiii-.</p> <p>Where jurisdiction depends on diversity of citizenship, and the bill shows that complainant and one of the defendants are citizens of the same state, and such defendant, although ho liles a disclaimer, is not dismissed out of ilie case, the suit should be dismissed.</p> <p>2. Review on Appeal — Objection not Raised by Counsel.</p> <p>On appeal from a decree dismissing- a suit for want of equity the appellate court should lake notice of a, lack of jurisdiction, appearing from the bill, even though it is not suggested in the briefs or at the hearing.</p>

This was a suit by the president, etc., of Talé College, against the state treasurer of the state of Connecticut, to prevent a threatened diversion from complainant of the income of the "Agricultural College Fund,” created by act of congress. Defendant demurred to the bill.

This was a suit by W. I). Tyler, receiver of the Oregon & Washington Territory Railroad Company, against Hamilton and another, to have certain leases of property of the railroad company which had been assigned to defendants declared void. By a supplemental bill, the Washington & Columbia River Railroad Company was joined with the receiver as a complainant.

<p>This was a suit by the executors of Harly Green against A. M. Root and Eliza Jane Root and others to subject certain real estate to payment of a judgment against said A. M. Root.</p>

<p>Appeal from the Circuit Court of the United States for the District of South. Carolina.</p> <p>The facts, as sufficiently stated by counsel, are these: On December 10, 1890, the Finance Company of Pennsylvania and others, complainants, filed their bill in the circuit court of the United States for the District of South Carolina, against the Charleston, Cincinnati c% Chicago Railroad Company, the Boston Safe Deposit & Trust Company, and others, alleging: The incorporation of the railroad company, for the purpose of constructing and operating-a railroad from Charleston, S. C., to Ashland, Ky., a distance of 620 miles; the execution and delivery to the Boston Safe & Deposit Company, on August 9, 1887, of a mortgage upon said railroad, to secure an issue of bonds to- the-amount of $15,600,000, which were delivered to said Boston Company; a contract for construction of the railroad, with a construction company, the partial performance of this contract, and the delivery to "the construction company of over $7,000,000 of these bonds, and the purchase by complainants from said company of a portion of said bonds; the completion and operation of a part of the railroad; the insolvency of the construction company, and its inability to complete its contract; the insolvency of the railroad company; its inability to complete the- road or to operate the completed portion; want of rolling stock; suits pending; no credit with which to purchase fuel, oil, waste, and other necessary supplies; nonpayment of employes for several months. Complainants therefore prayed the appointment of a receiver.</p> <p>The railroad company and the construction company answered, joining in the prayer; the deposit company admitted the first three paragraphs of the bill, and required proof of the remainder.</p> <p>On December 10, 1890, Samuel Lord was appointed temporary receiver, but the order made no provision for payment of any balances to connecting lines, or for the payment of any ante-receivership indebtedness. On February 26, 1891, D. H. Chamberlain was appointed permanent receiver, by an order of said court, “with all the authority and duties prescribed in the. order herein-before made, naming Samuel Lord, Esq., temporary receiver,” which order contained the following provision: “That said receiver be further authorized to pay all the wages due to the employés, at the date of the order appointing the temporary receiver herein, for labor and services within ninety days before the same, and also all balances due to other carriers and connecting lines, and necessary to be paid for the conducting of the said railroad.” On March 16, 1891, Chamberlain, the receiver, filed his petition asking to be allowed to issue $30,000- of certificates to pay certain obligations found due and unpaid upon entering upon his duties as permanent receiver, aggregating-$48,901.93. These consisted of taxes, freight balances due on December 10, 1890, freight balances and freight due since that date, and amounts for cross-ties, coal, and other supplies. With the cash ón'hand, and estimated receipts for some days in March, and the proceeds of these certificates, the receiver stated in his petition he would be able to pay off all said indebtedness, except $5,247.12. This he proposed to pay along with the future current expenses, out of the future current earnings. Leave was granted to issue said certificates, March 17,1891.</p> <p>On August 4, 1891, the Richmond & Danville Railroad Company filed its intervening petition, setting out its account against the railroad company in full, accruing both before the appointment of the temporary receiver and subsequently, and praying that it be paid out of the earnings of the road, and for-general relief. This was referred the same day to a special master, to take testimony and report, but no proceeding's were had under this order until after the sale of the road, when, on July 11. 1893, the reference was proceeded with. The account consisted of four classes of items: (1) Amount due on account; of claims, §75.44; (2) amount due on Blacksburg Grossing, §1,057.05; (3) amount due on freight, §5,422.91; (4) amount due on freight balances, 88,095.58.</p> <p>It appeared, in the testimony returned hy the master, that the Richmond & Danville Company held, as against the account in question, a note of the Charleston, Oincinnaii & Chicago Company for §10,000, secured hy certain first mortgage bonds of that company, the note “to he payment when paid,” and counsel for the deposit eonrpnuy, trustee, claimed that, upon the settlement of the account, the trustee was entitled to the return of the collateral bonds, or to an accounting for their value.</p> <p>It was admitted that the Charleston, Cincinnati & Chicago Company was run at a loss, botii before and. since the appointment of a receiver, and that the earnings of the receiver had been more clian absorbed by running expenses; also, that there had been no diversion of income to payment of interest</p> <p>The master having made his report, the application of the interveners to be paid out of die proceeds of sale came on to he heard in the circuit court, before Simonton, J. The court allowed the first item, which was admitted; disallowed the second item; allowed the third and fourth items,- and rendered a decree August 24, 1895, for the sum of §13,421.95 (made up of the three items allowed, with a deduction of credits amounting to §172.01), with interest, from December 11, 1890. From this decree, the Boston Safe & Deposit Company prayed an appeal to this court, and assigned errors as follows:</p> <p>1. That the court erred in ordering Hie sum of §5,422.94, made up of items of freight charges of the Iticlimond & Danville Railroad Company against the Charleston, Cincinnati & Chicago Railroad Company for cars and other articles of freight carried hy the former company for the last-named company, and delivered to it as consignee and owner, to he paid out of the proceeds of sale.</p> <p>2. That the court erred in ordering the freight balance of §4,376.19, due by the Charleston, Cincinnati & Chicago Railroad Company to the Richmond & Danville Railroad Company, to he paid out of the proceeds of sale.</p>

This was a suit by Sarah E. McClaskey and others against Robert Barr and others for partition of lands. The court rendered a decree for partition (48 Fed. 100), and there was a reference thereupon to a special master. Complainants excepted to the special master’s report as to claims by defendants for compensation for improvements.

<p>Laches — -Claim oe Title to Land.</p> <p>Claimants of land under a sheriff’s sale, with full knowledge of the origin and character of their claim, entered into an agreement for its prosecution with an attorney, on terms indicating that it was regarded as of doubtful validity. An effort made, accordingly, to establish their title, was unsuccessful, and the claim was apparently abandoned for 25 years. During that time the land was laid out into lots, which were bought in good faith by numerous persons, many of whom placed valuable improvements thereon, and taxes and assessments for more than that time were paid by them. Held, that a bill to establish the claim was barred, notwithstanding a general averment therein denying laches.</p>

<p>This Avas a petition bv Joseph M. Street for a mandamus to the circuit court of the United States for the district of Maryland, directing the allowance of an appeal from certain orders or decrees of that court in the case oi‘ Charles E„ Lewis, trustee, against the Baltimore & Lehigh Kailroad Company and others.</p>

<p>In Error to the Circuit Court of tbe Uhited States for the District of South Carolina.</p> <p>This was an action by the People’s Bank of Greenville, S. C., against the Aetna Insurance Company, on a policy of insurance, brought in a court of the state of South Carolina, and removed therefrom to the United States circuit court, which denied a motion to remand, the cause. 53 Fed. 161. At the trial the jury found a verdict for plaintiff. A motion by defendant for a new trial was denied, and judgment for plaintiff was entered on the verdict. Defendant brought error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Virginia.</p> <p>This was an action by B. D. Avis, trading as Ti. D. Avis & Co., against Archer Anderson, administrator of Joseph It. Anderson, deceased, for breach of contract. The jmy found a verdict for plaintiff, and judgment was entered thereon. Both parties brought error*.</p>

<p>1. Receivers — Right to Appeal.</p> <p>A. receiver of a railroad, appointed in a suit to foreclose a mortgage thereon, against whom a decree is rendered for damages for injuries to an employe from negligence in operating the road, is entitled to an appeal' therefrom, when allowed by the court.</p> <p>2. Appeal — Exception to Instructions.</p> <p>A general' exception to a charge, containing nothing special to any particular part of it, cannot be considered.</p> <p>3. Master and Servant — Negligence of Fellow Servants.</p> <p>Railroad section men and laborers on repair trains, employed by the same master for the same general purpose of keeping the roadbed and track in order, and working for the same general result, are fellow servants; and the employer is not liable for injuries to one, caused by negligence of another, even though such other has control over either gang of men.</p>

This was a suit by Newgass & Co. against the Atlantic & Danville Railroad Company to foreclose a mortgage on its road, in. which Alfred P. Thom was appointed receiver. Gilbert Smith tiled a petition, claiming dnmages for personal injuries received while in the employ of the receiver, and R. E. Cogbill, ás administrator of E. S. Walters, and also as administrator of Nelson Peace, filed petitions claiming damages for the death of said Walters and said Peace, respectively.

<p>1. Municipal Corporations —Liability for Damages for Death by Act op Mob.</p> <p>In the absence of a statute giving a remedy, a city is not liable for damages for the talcing of human life by a mob, although its officers may have been negligent in preserving the public peace.</p> <p>2. Same — Civ. Code La. art. 2315.</p> <p>Civ. Code La. art. 2315, declaring that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,” which, by subsequent amendments, is made applicable to cases of death through negligence, and is extended to damages sustained therefrom by surviving relatives of tlie deceased, when construed with regard to the principles of tlie system of laws of which it is part, gives no remedy for such damages against a municipal corporation for negligence in preserving the public peace, resulting in loss of life by acts of a mob.</p>

In Assumpsit. This was an action by Mrs. R. Summerfield against tbe North British & Mercantile Insurance Company on a policy of insurance against fire. This is an action of assumpsit brought on a policy of fire insurance issued by the defendant company to the plaintiff. The contract of the defendant company is to insure the plaintiff against all direct loss or damage by fire, to an. amount not exceeding $2,600, on her certain property described in the policy.

District of Texas. This case was instituted December 23, 1890, in the circuit court of the United State's for the northern district of Texas, by Samuel Fleischman, plaintiff in error, against O. B. Bowser.

<p>In Error to the Circuit Court of the United States for the Western District of Texas.</p> <p>These were two actions, one by Laura P. Duval, the other by Mary D. Maddox and her husband, against the Pullman Palace-Car Company, brought in a court of the state of Texas, and removed therefrom by defendant to the circuit court of the United States, and there consolidated. At the trial the court instructed the jury to find for defendant. Judgment for defendant was entered on the verdict. Plaintiffs brought error.</p>

<p>1. Patents eor Inventions — Infringement—Carriage—Top Forms.</p> <p>The Oakes patent, No. 378,457, for adjustable forms for setting and building carriage tops, claimed a form consisting of movable bases longitudinally adjustable on parallel sliding bars, and secured thereto by bolts passing through slots in the free ends of said bars, upwardly projecting standards, secured to said bases, and connected at their upper ends by connecting bars having- angularly disposed grooves on their ouier faces, and means for securing- the carriage top rails to ihe base of the form. Held that, as this was the first form on which a carriage top could be constructed complete, and removed therefrom ready to he attached to the carriage body, the patent covers all devices attaining the same result in a substantially similar way; and hence this claim is infringed by the device described in the Quimby patent, No. 458,252, though in the latter the size of the machine is adjusted by different means, the grooves are on the inner faces of the connecting bars, and tbe carriage top sockets are secured to the form directly, instead of by means of the carriage rail, as in the Oakes patent.</p> <p>2. Same.</p> <p>The same patent also claimed a combination of adjustable connecting-bars and adjustable blocks, permitting adjustment of the form to receive different sorts of carriage top sockets, by changing the upper points of support; this being done as a consequence of supporting the sockets through the intermediary of the carriage top rail. Held, that this claim also is infringed by tine Quimby patent, No. 458,232, in which, tbe carriage top rail being abandoned as part of tlie supporting device, tbe nec:-. essary adjustment is secured by moving both tlie upper and lower points of suxiport, although the connecting bars are fixed, the blocks being adjustable.</p>

<p>. 1. Fa tents — Assignment—Estoppel.</p> <p>The assignor of a patent is not estopped by his assignment from limiting its scope by reference to the prior state of the art; nor is he so estopped by haying marked on articles made by him for the market the dates of the patent, and of all patents controlled by him for such devices, even if such marking amounts to a representation that the articles are covered by all the patents.</p> <p>2. Same — Limitation by Prior State of Art — Infringement.</p> <p>The Martin patent, No. 255,525, claiming, in an automatic cash-box system, the track, endless cord, cash box, and appliances described for attaching and automatically detaching said box, and a suitable motor, when construed with reference to prior structures, particularly that described in the English patent No. 377 of 1878, to Wirth, does not cover all machines having a box carried on a track, an endless cord operated by a motor, and devices for attaching and automatically detaching the box, but covers only the combination of track, car, cord, and motor, and the device for attaching and automatically detaching the car, and is therefore not infringed by the apparatus described in the Martin patent No. 399,150, which has a different device for making the attachment and automatic detachment.</p>

<p>This was a suit by Bampson against Donaldson and others for infringement of a patent.</p>

Exceptions to Master’s Report. This was a suit by the Winchester Repeating Arms Company against the American Buckle <& Cartridge Company for infringement of patents. A decree was rendered for complainant, directing an accounting. 54 Fed. 704. Both parties filed exceptions to the master’s report on the accounting.

<p>This was a suit by tbe Pacific Contracting Company against Bing-ham for infringement of patents.</p>

<p>Patents — Extent of Claim: — Brooms.</p> <p>The Flynn- patent, No. 218,251, for an improvement relating to the manner of seeming caps on wisp brooms concealing the fastening wire, and the construction of the handle, describes the cap as of velvet or similar material, and the handle as a paper tube, covered with such material, fitting over a wooden stock, and the description refers solely to its use in wisp brooms. Held, that claim 1, for the cap so secured, in combination with the wisp and such cylindrical handle, does not cover large brooms having a cap so secured, but using a metallic ferule, instead of the cylindrical handle, notwithstanding a statement in the specification that the manner of fastening the cap might also be applied to large brooms as a finish; as the only new feature in the combination was the cylindrical handle,, and there was no intimation that it could bp used on large brooms.</p>

<p>This was a suit by Pedro Costil and others against Mateo Drobaz for infringement of patents.</p>

<p>This was a suit brought by the Pacific Cable Railway Company against the Consolida led Piedmont Cable Company for infringement of a patent.</p>

<p>This was a suit by tbe Morley Sewing-Machine Company and others against Benjamin A. Shute lor infringement of a patent.</p>

Libels for damages to a passenger, and for supplies, etc. Exceptions fo libels, on the ground that the court has no jurisdiction, the vessel being operated by a receiver appointed by the circuit court of the state of Oregon. Exceptions overruled.

<p>Salvage — Compensation—Extinguishing Pibe by Means op Chemicals.</p> <p>A cargo of sulphur having taken fire while being -discharged, and the city fire department, assisted by three steam tugs, having thrown water into the vessel for several hours without apparent effect on the fire, a skilled chemist, who had had experience in extinguishing a fire in another vessel by use of chemicals, at the request of the insurers, and with the assent of the master, took charge of the vessel, and, by generating ana introducing into the hold carbonic acid gas, in a few hours brought the fire under control, and finally extinguished it. He was engaged in this work almost continuously during three days and nights, and thereafter rendered valuable services in supervising the unloading of the sulphur, his total attendance on the vessel covering the greater part of 19 days. The fire involved great danger of explosion, and of injury to the vessel from the combination of burning sulphur with the steel plates and other iron work. The value of the vessel was $7(5,000; of the sulphur, $21,000. Held, that $10,000 was a'reasonable salvage compensation.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois, Northern Division.</p> <p>This was an action of assumpsit by Nora G. Clark and William Diacon against W. H. Banks and W. G. Stevens. At the trial the jury found for plaintiffs. Judgment for plaintiffs was entered on the verdict. Defendant Stevens appealed.</p>

<p>1. Appeal — Objections not Raised Below — Exceptions to Charge.</p> <p>An exception to tlie judge’s “charge in its entirety, and to the following portions thereof,” followed hy a series of propositions embracing substantially all of the charge, is not good where any part of the charge is correct.</p> <p>2. Same — Assignments, op Error.</p> <p>Under a rule of court requiring an assignment of errors to “set out separately and particularly each error asserted and intended to be urged,” there should be a separate assignment of error in respect to each part of the charge which is alleged to be erroneous.</p> <p>3. Same — Briefs.</p> <p>Under a rule of court requiring appellant's brief to contain a specification of the errors relied on, each specification of the brief should conform substantially to the particular assignment of error on which it is based.</p>

This was a suit by Rowena M. Clarke against tbe Central Railroad & Banking Company of Georgia and others, in which Francis S. Hésseltine and others intervened and became co-complainants. . The circuit court dismissed tbe bill. Complainants appealed.

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>This was a suit by J. Kennedy Tod and others against the Kentucky Union Land Company and others to have an alleged fraudulent preference by the company declared, under the law of Kentucky, an assignment for benefit of its creditors. The circuit court rendered a decree for complainants, and appointed a special commissioner to report on claims filed, and on his report a decree was entered (57 Fed. 47), from which certain creditors, who had intervened, praying that certain guaranty debts of the corporation be declared void, appealed.</p>

<p>1.- Judgment on Pleadings — Rendition and Entry.</p> <p>Rev. St. Ohio, § 5328, which provides that judgment may be rendered for the party entitled thereto on the statement in the pleadings, although a verdict has been found against him, authorizes such a judgment before verdict..</p> <p>S. Corporations — Guaranty oe Contract op Other Corporation.</p> <p>A corporation organized under the law of Ohio for the purpose of -mailing ironwork for mining plants has not power to guaranty the performance of another’s contract for the erection of a mining plant, and the accompanying warranties, on the ground that the guaranty will secure a sale of the ironwork used in the plant.</p> <p>3. Same — Estoppel.</p> <p>Performance of such contract on the part of the party to whom the guaranty is given does not estop the corporation from denying its power to give the guaranty.</p>

This was an action by E. S. Stahley against the Chicago, Rock Island & Pacific Railway Company for personal injuries. On trial in the circuit court the jury found a verdict for plaintiff, and judgment for plaintiff was entered thereon. Defendant brought error. The facts in this caso are, briefly stated, as follows: Plaintiff below (defendant in error) was in the employ of the railway company at Horton, Kan.

<p>1. Courts — Jurisdiction or Circuit Court or Appeals.</p> <p>Where the jurisdiction of the court below is not the sole question presented by the record, but other questions are involved, the circuit court of appeals is authorized to determine that question, as well as the others.</p> <p>2. Same — Illegal Combination oe Railroad Companies.</p> <p>Jurisdiction over an action against two railroad companies jointly operating a railroad, for injuries inflicted through negligence in its management, is not affected by the illegality of their combination.</p> <p>8. Federal Courts — Suit in District or Dependant’s Residence.</p> <p>The requirement that suits in federal courts shall be brought in the district where tlie defendant lives confers an exemption, in the nature of a personal privilege, that may be waived, and has no application to a suit removed from a state court to the federal court by the defendant</p> <p>4. Carriers — Injuries to Passengers — Contributory Negligence.</p> <p>A railway passenger, on asking the conductor and brakeman of the train whether it would stop at a certain station, was informed that it would stop at a railroad crossing near it, where he could get off. When the train was about a mile from the place, moving at the rate of 85 miles an hour, the passenger, at the invitation of the brakeman, because it was expected that the train would make only a very short stop, went on the platform, and while waiting there, holding to the car rail, was thrown from the platform by the sudden stopping of the train. Reid, that the question whether he was negligent was for the jury.</p> <p>6.' Same. - '</p> <p>Ret. 'St. Ind. § 3928, which relieves railroad companies from liabilfty, in certain cases, for injuries received by passengers when on the platform of a car, does not apply to passengers who, at the invitation of the brakeman, go on the platform for the purpose of alighting.</p>

<p>1. Contracts — Action for IVreaoh — Evidence.</p> <p>The exclusion of a question to a witness in an action on contract cannot be held erroneous, on the ground that the question related to a condition of the contract, where it also included other conditions not embraced in the contract.</p> <p>S. Same.</p> <p>In an action for the price of automatic sprinklers furnished by plaintiff to defendant under a contract providing that the size of the pipes should conform to the schedule required by defendant’s underwriters, evidence of the cost of making the sprinklers conform to a certain schedule, not shown to have been adopted by the companies that insured defendant’s property, is not admissible.</p> <p>3. Same.</p> <p>In such action, a report on the sprinklers furnished made by an inspector appointed by an association of insurance companies is admissible in evidence to show that the insurance companies to whom the report was transmitted acted upon it in insuring defendant’s property,</p> <p>á. Same — Instructions.</p> <p>The evidence did not show that thdre were any well-known, printed requirements of insurance companies, which were known to plaintiff when the contract was made. EeU, that an instruction which assumed the existence of such requirements, and required plaintiff; to prove that his sprinklers conformed thereto, was properly refused.</p> <p>5. Same.</p> <p>Defendant having accepted the sprinklers, an instruction to the effect that any defect in them would bar plaintiff’s right to recover anything was properly refused.</p> <p>6. Appeal — Objections not Raised Below — Instructions.</p> <p>On an instruction that defendant was entitled, under a counterclaim, to be allowed for an amount expended by him, an objection that it did not embrace expenditures which the evidence showed he would be obliged to make is not available on appeal, if the attention of the court below was not called to the matter.</p> <p>7. Costs' on Appeal — Voluminous Record.</p> <p>Where the printed record is .unnecessarily prolix, but it does not appear from the record itself which party is responsible therefor, the facts on that point may be presented to the court of appeals by affidavit or other proof, so that the unnecessary costs may be taxed to the proper party.</p>

<p>1. Corporations — Liability of Officers for Corporate Deists — Failure to File Reports.</p> <p>Under section 10 of tlie general corporation law of Colorado (Mills’ Ann. St. 1891, § 491), requiring annual reports of tlie financial condition of a corporation to be filed in the county in which its business is carried on, and. in case of failure to do so, making the directors liable for the debts of the corporation, where a certificate of incorporation states, in compliance with section 2 of the act, the place and county in which the principal office of the corporation in the state shall be, such reports must be filed in that couniy, notwithstanding the certificate also states that the principal business of the corporation is to be earned on in another state.</p> <p>2. Same — Judgment against Corporation.</p> <p>A judgment against such a corporation for the recovery of money is a debt, within the meaning of the statute, and may be counted on in an action under tlie statute against a director, without pleading' the original indebtedness, there being no question of the lime when the debt was incurred.</p> <p>3. Statutes — Expression of Subject in Title.</p> <p>In the general corporation law of Colorado, enacted under the title “An act to provide for the formation of corporations” (section lf>), requiring the filing of annual reports of the financial condition of corporations, and, in case of failure to do so, making The directors liable for debts of tlie corporation, is "dearlv expressed in its title,” as required by Const. Colo, art. 5, § 21.</p> <p>4. Pleading — Striking Allegations from Answer.</p> <p>Striking out an allegation of an answer that a certain company had no corporate existence, because organized to do all its business without the state, is not error, whore the answer contains a previous express admission that the company was a corporation organized under the laws of tlie state.</p> <p>5. Appeal — Objections not Raised Below.</p> <p>An objection and exception to tlie introduction of certain evidence, for which no ground was assigned, cannot be considered on appeal.</p> <p>6. Same.</p> <p>On a trial by the court, where no request was made for a peremptory declaration that the evidence was insufficient to entitle plaintiff to judgment. a general finding for plaintiff cannot be reviewed on a single exception to the finding and the judgment thereon.</p>

<p>Patents — Limitation by Prior State of Akt — Infrtnsemknt—Waffle Irons.</p> <p>In the Selden and Griswold patent, No. 229,280, for an improvement in waffle irons, consisting in a construction of the hinge conneding the parts of the pan, whereby one of the pivots or journals on which the pan rotates forms part of the hinge, while the opposite pivot or journal is formed on the divided handle, so that the pan opens in the same plane, with its axis of rotation, the claims for such hinge and journals or pivots are not restricted to the peculiar constructions described, either by the prior state of the art, or by patents describing various similar cooking utensils not provided with a hinge; and therefore those claims are infringed by the waffle iron described in the Harlcer and Williams patent, No. 277,422, the only variation in construction being the making of the hinge itself the journal. 55 Fed. 991, reversed.</p>

This was an action by Caroline A. Rice, guardian, against Joseph W. Le Favour, for infringement of a patent. The circuit court rendered judgment for plaintiff. Defendant brought error.

<p>This was a suit by the Shipman Engine Company against George < h McLaughlin for infringement of a patent.</p>

This was a suit by the Edison Electric Light Gompany and others against the Boston Incandescent Lamp Company and others. Com-plaiuants moved for a preliminary injunction.

<p>This was a suit by the Eastman Company against the Blair Gam-era Company for infringement of a patent.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>This was a suit by Nelson B. Fassett against the Ewart Manufacturing Company for infringement of a patent. The circuit court dismissed the bill. 58 Fed. 860. Complainant appealed.</p> <p>The appellant filed his bill in the court below to restrain the infringement of letters patent 377,370, issued February 7, 1888, for “machine for coupling chain links.” Prior to 1874, outdoor machinery was operated by leather or rubber belting. In that year William B. Ewart invented an attachable link metal belt to overcome the objections found to obtain with respect to leather and rubber belting. The novelty of the invention consisted in the form of the link, it being- capable of being made into a chain of any desirable length by assembling or coupling the necessary number of links together by a side motion, the end bar of one link being forced into the hook of a companion link by forcing the link sidewise while standing at an acute angle to the link with which it is being coupled. This invention was patented on September 1, 1874, and its validity sustained in Ewart Manuf’g Oo. v. Bridgeport Malleable Iron Oo., 31 Fed. 151. About 18S1 the complainant invented a detachable chain link, which differed from the Ewart link in that it was so constructed that it could not be coupled with another link by a sidewise motion, but only by an endwise motion. A patent therefor seems to have been issued to him February 22, 1881, No. 237,967. Prior to 1882 these links were assembled or coupled by hand. During the winter of 1882-3, Mr. Fas-sett. invented and constructed a machine for assembling the links together, and operated the same experimentally in the first half of the year 1S83. This machine assembled the links of the drive chain together by an endwise thrust of the links. In January, 1884, one Eugene L. Howe constructed, and on the 6th day of October, 1884, applied for a patent for, a machine for assembling the links of a drive chain together by a sidewise thrust suitable to assemble the Ewart chain links; which machine was put in operation and publicly used by the appellee in January, 1884, and has been continued to the present time. On the 8th of April, 1884, the complainant, Mr. Fassett, filed a caveat in the patent office, which he renewed on April 4, 1885, for the term of one year. On the 6th of October, 1884, Mr. Howe filed his application in the patent office for a patent upon his machine, which resulted in the issuance to him, as assignor to the Ewart Manufacturing Company, the appellee, of letters patent No. 317,790, dated May 12,1885. On the 21st of August, 1885, the complainant, Fassett, filed in the patent office an application, serial No. 174,961, which resulted in the issuance to him of the patent No. 347,338, daied August 17, 1886. This patent is known as case A. On tlio 21st of August, 1885, Mr. Fassett also- filed in the patent office his application, serial No. 174,962, which is known as case B. On the 7th of September, 1886, an interference in the patent office was declared between the Howe patent. No. 317,790, and the Fassett application, case B., which resulted in a decision by the examiner oí interferences on February 21,1889, in favor of Howe, which decision was affirmed by the examiner in chief on October 1, 1889, and liy the commissioner of patents, upon a further appeal, on February 21, 1890. By this decision the commissioner awarded to Ilowo priority in invention of the subject-matter covered by the four claims of the Howe patent, and the first five claims of the Fassoit case B. This decision has been acquiesced in by the complainant. Case A. was an application for a machine for coupling chain links by an endwise motion. It was an exact reproduction of Fassett’s first machine, as shown by his model, with the exception that it is provided with a thrust bar, as in the Howe machine, instead of a sprocket wheel, for pushing or drawing the chain through the chain channel. This change was made in May or June, 1885, after the issuance of the patent to Howe, and its character is thus stated by Mr. Fassetc: “The sprocket wheel and ratchet wheel attached together for feeding the assemble! ■links forward through the machine were taken off, and a thrust bar substituted in their place for pushing the links forward in the machine after they were coupled.”</p> <p>The further facts touching the character of the invention and claims asserted are sufficiently stated in the report of the decision of this cause by the court below (Fassoit v. Manufacturing Co., 58 Fed. 360), to which reference may be made.</p>

<p>1. Carriers — Acceptance of Goods — Bills of Lading.</p> <p>The agent of a steamboat line signed a bill of lading for cotton as shipped “on board the good steamboat, called--, or any other boat in the employ of same line,” the name of steamboat being- left blank. Held, that the rights of parties under it were not affected by Act Miss. March 1(5, 1886, making “every bill of lading acknowledging- the receipt” of goods conclusive evidence, in the hands of bona iide holders, that the goods were actually received for transportation, as there was no acknowledgment of the receipt of any cotton, or its shipment on any named boat.</p> <p>2. Same.</p> <p>Another bill of lading, in the same form, had the blank for the name of the boat filled with an abbreviation of the name of the steamboat line. Held, that the statute did not make this conclusive evidence of the receipt of the cotton by a particular boat of the line, in the absence' of evidence that such abbreviation was intended to designate that boat, or was so understood by either party. ■</p> <p>3. Shipping — Bills op Lading — Agent of Steamboat Line.</p> <p>Several steamboats, associated under the name of the S. T. Line, ran regularly between the same points under an agreement as to rates and sailing days, but each kept its own earnings, and paid its own expenses. The masters of all the boats executed a writing authorizing a person named to sign bills of lading, and to represent their boats, as agent. Held, that bills of lading signed' by such agent could not bind all the boats jointly, and thus create a maritime lien against them all for each shipment, without regard to whether one or the other carried the goods, for the masters had no power to grant such authority. 53 Fed. 936, affirmed.</p> <p>4. Same.</p> <p>In bills of lading executed by said agent for cotton shipped by such line from an intermediate landing, no steamboat was designated. The' custom was that the first boat of the line coming after goods had been received for shipment should take them, unless already fully loaded. After issue of the bills of lading, and before any boat of the line arrived, the cotton was destroyed by fire. The next boat of the line passed without stopping. Held, that the bills of lading created no maritime lien on such boat for the destruction of the cotton. 53 Fed. 936, affirmed.</p>

<p>Removal of Causes — Time of Application — Amendment Statin® New Cause of Action.</p> <p>A suit between citizens of different states may be removed in due season after an amendment stating- a new and different cause of action, in which tlie original suit is merged, although the timo within which it might originally have been removed has expired.</p>

<p>1. School Dtsttuots — Officers—Authoiuty to Sure- — Ratification-.</p> <p>Under Rev. St. Mo. §§ 8040-8042, making- it the duty of the state board of education, when it shall he ascertained that the objects of the grant of school lands have been violated, to institute suits in the name of the state to i>revent such violations, and authorizing the board to employ an attorney to prosecute such suits, an attorney appointed by the board cannot maintain a suit for such purpose without the direction of the hoard, based on its ascertaining the existence of tlie facts authorizing the institution of suit; and failure of the board to disaffirm the bringing of a suit by the attorney does not amount to a ratification,</p> <p>2. Same.</p> <p>In such a suit, brought in the name of the state without authority of the board, in .which the county also joins as complainant, after a compromise between the county and the defendants, founded on a valuable consideration, and a dismissal thereupon of the suit on the part of the county, no subsequent ratification by the board could operate against the defendants to sustain the suit.</p>

<p>1. Equity — Jurisdiction—Bill to Recover Lboacy.</p> <p>A bill by a legatee against an executor, to recover a legacy claimed by Mm to be void under the state law, is witbin the equitable jurisdiótion of the federal courts.</p> <p>2. "Wills — Construction—Certainty as to Beneficiary.</p> <p>A bequest of a certain sum to an incorporated missionary society whose whole mission work is divided into two branches, domestic and foreign, is not rendered void for uncertainty of beneficiary or purposes by the addition of a direction to apply it to domestic missions, as such legacy is not to bo considered ns held upon any irnst, but to- be expended by the corporation in its regular domestic mission work, as distinguished from its foreign mission work.</p>

This was a suit hv the Stimson Land Company, a corporation, against Alonzo Bawson, Jr., and others, for the purpose of determining adverse claims to the title to lands conveyed by patents from the United States. Complainant filed exceptions to the defendants’ answer.

<p>Action in trespass by John Bicknell and others against the Austin Mining Company. Judgment for plaintiffs.</p>

This was an action by Mary McCarty, administratrix of Michael McCarty, deceased, against the New York, Lake Erie & Western Railroad Company for damages for the death of said Michael McCarty. Defendant demurred to the complaint.

<p>1. Negligence — Independent Contractors — Loading Passengers’ Baggage-on Ship.</p> <p>Stevedores bringing passengers’ baggage on board a steamship, and placing it where requested by passengers for their convenience, are not exercising an independent employment, but are performing a duty which rests on the ship, and it is the duty of the ship’s officers to see that risk of accident to persons on board is avoided.</p> <p>2. Same.</p> <p>The use, for lowering baggage into a steamship, of the same companion way used by passengers and their friends in passing up and down, where the ship has more than one that could be so used, is want of care* for which the ship is liable io sncli a person Injured by the fall of a trunk, caused by its handle breaking while being so Ion ered.</p>

This was a suit for personal injuries, brought by Louis Williams, defendant in error, against the plaintiff in error, in which he alleged that he was a section hand in the service of plaintiff in error, and while riding on one of the regular passenger trains from Dallas to his place of work, by permission of the road master, he was assaulted and beaten and kicked from the train by the company’s conductor in charge.

<p>1. Witness-Compelling Attendance before Master Outside Jurisdiction of Court.</p> <p>On tiie appointment by a circuit court, in a suit in equity, of a master to take testimony in another district, a subpoena to appear and testify before liim was issued by ilie circuit court for that district, and served on a witness therein, who appeared, but refused to be sworn. Held, that the witness was punishable for contempt by the court issuing the subpoena.</p> <p>2. Contempt — Punishment — Review of Order by Circuit Court of Appeals.</p> <p>Where a witness declines to be sworn, in order to present objections which his counsel might reasonably have supposed well founded, an order punishing him for contempt therefor may be in the alternative, or, if peremptory and final, its operation may be stayed until an appeal can be heard and determined by the circuit court of appeals, if that court has jurisdiction of such an appeal.</p>

<p>1. Patents — -Anticipation—Band-Saw Mills.</p> <p>In the Smith patent, No. 442,645, for an improvement in band-saw mills, claim 1 of which is for the combination with the band wheels and main supporting frame or column of an integral standard carrying the front bearings of the upper and lower band-wheel shafts, the standard being attached to the front side of the main frame or column between the band wheels, the essential feature covered by this claim is the outside support for the front bearings of the hand-wheel shafts, which, as constructed, permits the removal and replacement of the band saw without difficulty or derangement of the machinery; and the claim was not anticipated by previous patents, none of which covered the combination in the same form, although its elements were found in them.</p> <p>2. Same — Limitation on Claim — Pnion State or Akt — Inkeingemicnt.</p> <p>As there was no invention in combining such elements found in previous patents, nor in overcoming their defects by merely increasing the strength of the parts, the claim cannot he construed broadly to cover the use of an integral outer standard attached to the main column between the band wheels, hut must be limited to the construction, shown of such outer support in the form of a single casting, as expressed in the application, stating the object to be to lessen the number of parts usually considered necessary; and hence that claim is not infringed by a combination in which the outside support is made of two parts, although they are bolted together so as to present the effect and produce the result of a single casting; and claims 2, 3, and 4, each of which merely adds to the combination of claim 1 an element found in previous patents, not involving invention, are1 not infringed by like combinations having the outside support so constructed. 57 Fed. 934, reversed.</p> <p>3. Same.</p> <p>Claims 5, G, and 10 of the patent, covering the straining device whereby tho saw is kept at the proper tension, all the elements of which, except the mechanism supporting the kmfe-edgod bearings of the rock shaft, are found in previous patents, is limited by such pre-existing devices, and hence is not infringed by the straining device of the Kooi’od patent, No. 4G8,303, the differences in the supporting mechanism being greater than the Changes) made by the Smith patent in adapting the previous devices. 57 Fed. 934, reversed.</p>

<p>Patbhts- -Isfkixgeme.nt — Accoukit foe Peo fits.</p> <p>Combinations covered hy claims of complainant’s patent for a frilling' and crimping machine were used, with additional features, hy defendants, in roller-plaiting machines, producing large quantities of plaitings finished for use as trimmings. On an accounting of profits from the infringement, there was no satisfactory proof that the finished product could bo produced hy complainant's machine,-;: and it appeared that, while such plaitings could be made hy hand, the process was tedious and expensive, and tin; product inferior and unmerchantable, and they had not been so made before the introduction of the roller-plaiting machines. Held, that defendants should not be held liable for profits to the amount of the difference between the cost of making- the plaitings by machine and the cost — ¡50 to 50 time's greater — of making them by hand; the burden being on complainant to show that the profits were entirely due to his patented combinations, and that the cost price of hand-made; plaitings was a fair measure of comparison.</p>

<p>Patents — -Limitation by Prior State of Art — Electric Wiring.</p> <p>In the Johnson and Greenfield patent, No. 401,498, for improvements in wiring structures for electric lighting, claim 1, for the combination of a pipe of insulating material, a pair of wires insulated from each other and in close proximity within the pipe, each forming one side of an electric lighting circuit, and a safety catch interpolated in the circuit, and claim 3, for the combination of the same elements, having the wires twisted together, even if such combination involves invention, all the elements being old, in view of the prior use of similar devices and combinations, can be upheld only if limited to a complete system of pipes extending continuously through the building, as described and shown; and they are not infringed by structures which do not employ such a system.</p>

In Equity. Tliis was a suit by Jehyleman Sbaw against William D. Andrews and others for an accounting for a share of royalties and profits under an assignment of a patent.

This was a suit by the ISTew Departure Bell Company against the Hardware Specialty Company for infringement of patents. Defendant answered the bill, and also filed a cross bill. Complainant moved to strike out the cross bill.

<p>This was a suit; by the George Frost Company and Mary G-. Brown against William Bilvermann and others for infringement of patents. Complainants moved for a preliminary injunction.</p>

<p>1. Design Patents--Limitation by Prior Art.</p> <p>After one has painted a design, another cannot, have a valid patent for merely embossing the same design upon a similar object.</p> <p>2. Same — -Infringement.</p> <p>The Prentice design patent, No. 17,270, for a design for radiators, if valid at all, in view of prior designs, must be limited to the precise drawing shown, and, being so limited, is not infringed by a radiator differing in size, shape, and depth, so that an ordinary purchaser, looking for the specific design of the patent, could hardly he deceived.</p>

This was a libel by Alfred B. Beers against the steamship Nor-mannia, her engines, etc., and the Hamburg-American Packet Company, owner.

<p>1. Shipping — Stevedore’s Compensation for Breaking out Cargo on Fire.</p> <p>A stevedore loaded and stowed a cargo of cotton, under a contract, for 50 cents a bale. On the cargo taking fire, lie rendered services in breakIng out a large part of the cargo, the hold being filled with smoke, and the cotton either on fire or saturated with water. Held that, in the absence of an agreement as to the amount of the compensation therefor, he was entitled to more than the ordinary wages, and an award of 75 cents a bale, justified by evidence as to the custom of the port, should be sustained. ,</p> <p>2. Payment — Application by Debtok.</p> <p>An agent of two vessels, making payments at intervals to a stevedore for work on both progressing at the same time, kept their accounts separate, stating in the receipts taken and in the checks given the vessel on whose account payment was made. Held, that one of the vessels was not liable to the stevedore in a suit in rem for more than the amount due from her on such appropriation of payments by the agent.</p>

This was a libel by Edward Perry against the steamship Port Adelaide (David E. Jamison, claimant) for freight received by said steamship while under charter to libelant, and for damages for breach of the charter party. The district court rendered a decree for libelant. 59 Fed. 174. Claimant appealed.

<p>Appeal from the District Court of the United States for the Eastern District of Virginia.</p> <p>This was a libel by Cyrus O. 'Rockwell, master of the steamship Saginaw, against the steamship Phoenix, John J. Parsons and Thomas Linton, claimants, for salvage. The district court rendered a decree for libelant. Claimants appealed.</p> <p>The decision of the district court, rendered by HUGfHES, District Judge, was as follows:</p> <p>Statement of the Case by the Court.</p> <p>The British steamship Phoenix (Philliskirk, master) left Macio, Brazil, on the 19th of .January, 1893, laden witli 2,100 tons of sugar, bound for New York, where the cargo was worth $98,953. The vessel herself was worth not less than $00,000. Her freight money on tills cargo was $5,000. She was of two short masts, schooner rig, carrying foresail, square foresail, double topsail, fore and aft foresail, fore staysail, main staysail, and jib. Her tonnage was 1,728 gross; her length, 250 feet; beam, 30 feet; and depth, 18 feet 0 inches. On the 8th day of February her shaft broke square off in the thrust bearing. The steamer was then in longitude 70° 20', laiitude 30° 31'. All sails were set, and the ship headed to the northwest. Site proceeded under sails until the afternoon of the 12th, making a total distance in the time of 117 mill's. The engineers began an attempt at repairing the broken shaft on the 9th by cutting out the thrust collars, and placing in these two steel plates, on opposite sides of the shaft, fastened with bolts, as is shown by that portion of the shaft itself, which is exhibited in court. They worked at this job continuously from the 9th to the afternoon of the 12th, and now they say they could have completed the two patches and have fastened them in place iii four or five hours longer. The job was never completed, and its efficacy was never shown during the period of a week and more before the arrival of the Phoenix at New York; especially not in the ten or twelve hours of the twelve which elapsed after they had unnecessarily suspended their labors, and before the Phoenix was actually taken in tow by a salvor, at 2 a. m. on the 13th. Previously to the 12th, the Phoenix had put out signals of distress; but only two ships had been seen (both sailing vessels) in the period of four days. She was out of the track of vessels, in unfrequented waters; 'being 150 miles west of the usual track of vessels trading to South American ports, and 150 miles east of the track of those bound to and from the Gulf, San Domingo, and Cuba. Between sundown and midnight of the 12th, the rockets she sent up as signals of distress attracted the attention ot the American Clyde steamer Saginaw (Rockwell, master), which was bound from New York to Turk’s Island and other West Indian ports. The Saginaw proceeded immediately to the relief of the ship in distress, which proved to be the Phoenix, hailed her, and received her master, Philliskirk, on board, who came alone.</p> <p>The Saginaw is a freight and passenger steamer, plying between New York and ports of the West Indies on fixed schedule time, in conjunction with, one or more other Clyde steamers, which also sail on schedule time, arranged at intervals of ten days or two weeks, as one or two sister steamers of the Saginaw may be put on the line. The Saginaw is a modern iron steamer, with a gross tonnage of. 1,800, and length 200 feet. She is valued at $125,-000, and had an assorted cargó, composed in part of perishable goods, and embracing $193,000 of specie, all worth in total value about $400,000, her freight money being $13,000. She had a crew of thirty-nine men, and she had eight passengers.</p> <p>As to what occurred on the night of the 12th of February, 1893, when the Saginaw responded to the call of the Phoenix upon her for help, the two masters sajr as follows (I quote from their depositions):</p> <p>Philliskirk, loquitur': “Q. When he [Rockwell] came up alongside, what happened? A. He asked me if I wanted assistance. I told him,‘Yes.’ And the captain said, Well, hadn’t I better come on board. I said, ‘Very well.’ I put &e boat out and went on board. Q. After you got aboard, whom did you see? A. I saw the captain [Rockwell]. Of course, he asked what was the matter. I told him the thrust shaft was broken. He asked if I wanted assistance. I said I did. ‘Well,’ he says, ‘captain, I have got a perishable cargo aboard and passengers, and am bound to Turk’s Island. I will tow you there.’ I said that would not do me at all. Turk’s Island is no use to me. I couldn’t do anything or get anything there. So, after a little conversation, I said, ‘You may tow us up the Chesapeake, — the nearest place.’ And he consented to the Chesapeake. Q. You refused to go to Turk’s Island? A. Yes. Q. Did you inform him you were making repairs to your shaft? A. No. Q. Was anything said about that? A. Nothing said. Q. Did you inform him of the value of your cargo or freight or vessel? A. No; I don’t think I said anything about the value of the cargo. He asked me what I had in her, and I told him sugar; * * * near about 2,100 tons.”</p> <p>Rockwell, loquitur at Norfolk: “About 9 o’clock p. m. of the 12th, we saw signals. from the E. S. E. of rockets. We proceeded in that direction about an hour, and found the Phoenix broken down. I hallooed and asked him if ho wanted assistance, and he said, ‘Yes.’ I asked him to come aboard, which he did, and he desired to be towed to the Chesapeake, which I did. Q. When he asked to be towed to the Chesapeake, what proposition did you make to him? A. I objected to towing him to the Chesapeake for several reasons, and offered to tow him to Turk’s Island, and then to Bermuda, and he objected strongly to that for several reasons, and wanted to come hero very much; and, after thinking the matter all over, I agreed to take hold of him and tow him here if possible; if not, to such safe point as I could. Q. Did he express himself as to any trouble? A. I asked him his trouble, and he said his shaft was broken. I asked him if it could be repaired at all, and he said he could fix it; and I said -there was no use of my fooling with him if he could fix it. But he objected strongly to my leaving him, hut I told him, if he could repair his ship, I wouldn’t want to trouble with Kim at all. Q. In other words, you were reluctant to undertake the service? A. Unless he was helpless. Q. And you only undertook it on account of his saying that lie was helpless? A. Yes. sir; he insisted upon my helping him into port, and insisted upon coming here to this port.” In cross-examination Rockwell says: “Q. I understood you to say, when the captain [PhilliskirkJ came on hoard, he made some mention of these repairs? A. I don’t remember. He said he had made some repairs, but he said it could he fixed, or words to that effect; and there was some mention made about repairs or fixing. Q. You said that you did not want to take him in tow if that was the case? A. In case he could repair his ship, 1 didn’t want to take hold of him at all, and he objected strongly to my leaving him.”</p> <p>Genie, engineer of the Phoenix, loquitur: “It ivas against my wish for them to take my ship, hut, of course, I didn’t care about refusing the a'ssistance. Q. You mean by that— A. Of course, I told the captain to take the taw, you know. Q. You did not cure about refusing? A. It was against my wish, certainly, for my own part, but still 1 wouldn’t have refused it, you know. The captain asked me, and I told him, ‘Certainly, take the ship;’ because I did not know what it would have done. I just went on his own judgment.”</p> <p>It may be added here that, previously to the Saginaw’s taking hold of the Phoenix, her master saw and spoke to no other member of the Phoenix’s crew, and there is nothing in the evidence to show, and it is not at all probable, that either Capt. Rockwell or any of his men were on the Phoenix during the whole of this salvage service. Counsel for respondent admit that Oapt. Rockwell took hold of the Phoenix for the purpose of securing the salvage award. The Saginaw took hold of the Phoenix and began to make for the Chesapeake about 2 o’clock on the morning of the 13th of February. The chart exhibited in the record shows that the place whore the Phoenix was found ivas in latitude 32° 30', longitude 71° approximately, about 475 miles due east from Charleston, and 300 miles from Chesapeake hay. The towage was done with a steel hawser belonging to the Phoenix, which was put aboard the Saginaw by the men of the Phoenix. It was at no time lost, and did not part. It was hitched to 35 fathoms of chain on the Phoenix, and was connected to the Saginaw by a bridle of manilla hawsers, in order that the line between the vessels should be springy and elastic, to enable the towing to be done without the jerk that would result from having so much dead weight to tow. The manilla hawsers belonged to the Saginaw, and were rendered useless in the progress of the towing by the chafing to which they were subjected by the heavy tow. The whole length of the to wing-cables and the hawsers forming- the bridle was upwards of 250 fathoms, and, if the lengths of the two ships be added, then the length of the whole tow was 330 fathoms, or more than one-third of a mile. The course of the towing lay directly across ¡lie Gulf Stream, where heavy fogs are prevalent in February. The fog and the length of the make-up rendered the danger very considerable of colliding with vessels passing north and south along the Gulf Stream across the course of the procession in necessary ignorance of the fact of one vessel being in tow of the. other, lixeo.pt two or three periods of gale, and except the fog, the weather during tile lowing after the 12th and before the 17th was favorable; but, the towing was at ail times difficult, and required the utmost care in the navigators of the Saginaw to prevent fouling of the cable with her propeller or rudder during the several intervals when it was necessary to stop or slow down to readjust the bridle on the Saginaw. The sea, as usual in February, was rough, requiring a man to si and constantly aft on the Saginaw to watch the hawsers, which chafed continually, and requiring a man to stand much of the time at the engine-room door to pass orders by word of mouth to the engineer, in order to conform better the speed of the towing vessel to the exigencies of the work in hand and the movements of the ship in tow. Necessarily, there was a great deal of yawing by so large a body as the Phoenix, whose engines were disabled, especially in the early days of the towing. There were fresh gales of wind on the 13th, 14th, and 15th, not of long duration, but putting great strain on the cables; and, during the last days of the service, fog was encountered, rendering it often difficult for the Phoenix to he seen from the Saginaw for hours at the time, and creating much risk of collision with coastwise vessels crossing them in the Gulf Stream. On the ,16th the two vessels arrived in the Chesapeake hay, about three miles W. N. W. of Gape Henry light in Lynnhaven bay, where they had to come to anchor in consequence of the dense fog. The Saginaw l&y by the Phoenix, waiting for better weather, until the morning of the 17th, when the Phoenix was again taken in tow with difficulty, while a strong northwesterly gale was prevailing, and at about 4 o’clock p. m. she was finally brought to anchor in Hampton Roads. In approaching the Virginia Capes on the 16th. a dense fog prevailed, which rendered it difficult to get within the Capes without a pilot, and would have made it necessary for almost any other navigator to come to anchor outside, until a pilot could have been procured; but Capt. Rockwell, from his familiarity with those waters, resolved to make his way in. This he did successfully, by diligent sounding, and by cautiously regulating his course by the moan of the Siren buoy off Cape Henry light. His good fortune in this venture, by which he brought the two ships into safe anchorage in Lynnhaven bay on the 16th,. secured them from the hazard which would have overtaken them outside from the northeasterly storm which soon after set in and continued for many hours.</p> <p>The salvage service lasted through all of the 13th, 14th, 15th, 16th, and 17th days of February. Although the weather was, in general, unusually favorable for the season of the year, yet much of it was rugged, and nearly all of the latter part of it was characterized by thick fog, which, as said before, brought much risk to a tow more than one-third of a mile long of being run into by coastwise vessels crossing its course at right angles, unaware of the fact that the two steamers were fettered in their powers to maneuver by a connecting cable. There was constant risk, whenever it became necessary to stop or slow down, of the cable becoming fouled with the propeller of the Saginaw, or else with her rudder. Unusual precautions were taken against this risk by Capt. Rockwell, in having an ample force of men and mechanism ready at hand to keep the slack of the cable promptly hauled in whenever stop or slow down was made. In this matter, and in his entire work during this arduous service, Capt. Rockwell proved himself a seaman of the highest order of skill and efficiency and provident intelligence.</p> <p>The towing service rendered it necessary for the Saginaw to replenish its store of fuel and provisions at Norfolk. The time lost in the service was rather more than seven days. The towing of so heavy an object as the Phoenix and her 2,100 tons of cargo across the Gulf Stream into Hampton Roads, for so long a distance as 375 miles, and for the protracted period of five days, subjected the Saginaw to much strain, which, though not requiring immediate repairs, entails a necessity for them in the future. Much dissatisfaction was caused to the shippers of freight on the Saginaw by the week’s delay in delivering it. Much of the freight destined for her on her return trip in the West Indies which was awaiting her on the wharves had to be stored during the lost week, and other freights sought other conveyances to market. Great loss and inconvenience also resulted to the owners of the Saginaw by the next trips of herself and her companion ship being thrown together; which practically caused the loss of one trip out from the West Indies to one or other of the two ships. The pecuniary losses resulting from these several necessary incidents of the Saginaw’s service to the Phoenix are set forth by an estimate filed in the evidence.</p> <p>In ascertaining the amount proper to be recovered in this action by the libelant, the actual expenses incurred by the Saginaw in the performance of the service must be allowed. The accounts shown by Exhibit G of $570.89 for actual expenses are allowed. I think the evidence shows that the use of the Saginaw and her crew for seven days is worth on the basis of quantum meruit fully $400 a day, or $2,800. Exhibit H, in the libelant’s evidence, is an estimate of the incidental and resulting cost to the Saginaw of the deviation and delay which the salvage service caused. I regard it more as an argument for a liberal award than as recoverable eo nomine.</p> <p>Comments and Conclusions by the Court.</p> <p>The interview between the two masters on the Saginaw in the night of the 12th of February was a distinct employment of the Saginaw by the Phoenix, which was helpless, in a salvage service. When something was mentioned about fixing the broken shaft (which was of so little importance that Capt. Philliskirk entirely forgot it in giving Ins testimony), Capt. Rockwell at once said: i!If yon can fix your sliai'r, I will not fool with you;” whereupon Capt. Philliskirk incontinently dropped the subject, not to be resumed, and insisted upon being assisted to port. The chief engineer of the Phoenix himself, who was the inventor of two flange plates which figure so largely in respondent’s evidence, had advised his master to crave assistance and accept it For four days, while the work in the two small flange plates was in progress, the ship was flying and tiring off signals of distress, calling for help. When, at last, rescue came, not one word was said of the 7 by 10 flange plates, not a word to render material the voluminous testimony which has been taken concerning those two pieces of steel and their screws. Although it is now insisted that those patches could have been completed in four or live hours of the 12th, yet work upon them Immediately and finally ceased as soon as rescue came. The Interview between the two masters was the time and place for these since tediously discussed plates to have been brought into the ease;, yet Capt. Rockwell heard not a word of them, and it was not until the testimony of the respondent was taken and its answer was filed that they loomed up as the prominent features of the defense. As these plates were not brought to the attention of Capt. Rockwell in the interview of the two masters, and were not mentioned’ then and there, and as all menlion of them was then avoided, the question of the ability of the Phoenix, by completing the patching of the shaft for which these plates were intended, to steam her way into the port of New York, is of very slight materiality in this cause, if Capt. Phillis-kirk and his several engineers, who all tell the same stereotyped story of ability to complete the repairs in four or five hours, and of confidence in the sufficiency of the two little plates to bring them info port, really believed in mat sufficiency, then a deliberate deception was practiced on Capt. Rockwell in concealing from him the grounds of that confidence; and, as to him. the case is the same as if the repairs had never been attempted. That the repairs were in fact puerile is almost apparent from the evidence of the engineers themselves. That a thrust shaft 10 inches in diameter, of solid wrought iron, which had broken square across in a smooth fracture under The strain or pressure or twist which it had to sustain, could be made efficient again in any degree by two steel plates 7 by 10 inches long and wide, and % of an inch thick, bent over the cylindrical shaft, and screwed to it by a Cow ¾ screws, sunk an inch into the huge shaft, is to me incredible. If the sanguine engineer who devised this method of repairing a solid shaft really believed in its efficiency, his infatuation calls to mind that of the schoolboy who had broken the big blade of bis pocketknife in a square fracture, and thought he had made it all right, again with two little drops of Spalding’s glue. Tt is not a case for mixed mathematics, but for plain common sense and practical .-judgment. When a vessel flies signals of distress in midocean in winter weather, and demands and accepts salvage service of a passing ship, and conceals from the salvor the fact of her ability to get to port without help, and then uses the fact of her not being helpless to reduce the salvage service to the grade of mere towage, public policy and every consideration of fair dealing forbid an admiralty court from entertaining such a pretension. The relations between the salvors and the salved in the crisis of peril are too serious for concealments of such a character as I am dealing with. The utmost frankness is demanded of the vessel in peril. A full and complete revelation of all the circumstances of the ship in distress which are not visible to the naked eye is essential. Concealment of any material fact is absolutely intolerable. I will do Capt. Phillis-kiik and his engineers the justice to say that I do not believe they thought their vessel was otherwise titan helpless, or that it really entered into Capt. Philliskirk’s thought to deceive ('apt. Rockwell in this matter. This pretense of ability to repair the shaft and to get to port with the ship’s own engines a.nd sails is an afterthought, resorted to as a means of diminishing as much as possible the reward due for the salvage service, which, by the'skill, thoughtfulness, diligence, and good fortune of Capt. Rockwell, was, unexpectedly. so successfully and easily accomplished. The pretension does not commend itself to the favorable consideration of the court, and is rejected. It is rejected — First, because, if the Phoenix was really able to get to port without help, it was a fraud upon the Sag.‘ua w to ask for and to obtain salvage service by concealing this ability; ana, second, because, if the ability did not exist, which was doubtless the fact, the pretense of it now is an afterthought, which the court cannot entertain to the prejudice of a meritorious salvor, after an admirably conducted and exceptionally successful salvage service.</p> <p>Another question, less elaborately discussed in the briefs, is whether a salvor who takes upon himself all risks in entering upon a dangerous service is entitled to reward if the casualties incident to the service do not actually happen. Is the salved alone entitled to the benefit of the nonhappening of expected casualties? If all goes well, and the seas, the winds, and the working of machinery are propitious, is the salvor to sink into a more tow master, and the salved to be sole beneficiary of the good providence which attended the service? These questions cannot be answered in the affirmative. They are self-refuting. The question assumes a more concrete form, however, when applied to a prominent incident of the service under consideration. The two steamers neared the Gapes of Virginia on the 16th February, in a thick fog. Gapt. Rockwell did not come to anchor and wait for a pilot, as would have been proper in other vessels, but, trusting to his individual knowledge of those waters, resolved to come on and get inside the Gapes at once. This knowledge and the skill he exerted in effecting his purpose gave success to his venture, and the two ships were thus in safe anchorage inside the Gapes when the northeasterly storm came on, which soon after set in with great force and violence. The salvage service was still in progress when this storm prevailed. It would possibly have' been disastrous to the Phoenix, unable to use her engines, if she had remained outside, waiting for a pilot. She was saved from this danger by the skill and resolution of Gapt. Rockwell. A question discussed in the briefs, pro and con, is whether the court may increase its award to Cairt. Rockwell for saving the Phoenix from the possible and threatened disaster which was avoided and escaped by having been brought into the Capes before the storm set in. While there are frequently cases in which admiralty courts may refuse to take into consideration storms that have been fortuitously avoided and escaped, yet I think that this case presents circumstances which call urgently upon this court to make up its award with reference in part to Capt. Rockwell’s skillful and fortunate conduct in this particular matter. •</p> <p>Summing up the case, I deem this to have been a highly meritorious salvage service. It was rendered in dangerous waters, by a ship embodying values exceeding half a million of dollars, to another ship embodying property worth $160,000. The Phoenix was picked up in the waters off Halteras, Lookout, and Pear, proverbially a nest and habitat of storms, and was towed for four days through those waters, in a wintqr month, for a distance of 375 miles, into Hampton Roads. The Phoenix was found in unfrequented waters, moving under sail at the rate of 117 miles in four days, or rather more than a mile an hour, at which rate she was more than 15 days from anchorage, with disabled engines, which constituted an incumbrance rather than a help in those rough seas, presenting a tempting and certain prey to winter storms whenever an evil fortune should bring them upon her. At the distance* at which she was found in the waters off Halteras, she was in a piteously helpless condition with reference to the storms there prevalent and always probable, and in which the two small steel plates so largely discussed in evidence would have been less prominent in the minds of seamen on the ocean than they have been in the minds of witnesses on dry land. The unusual length in miles of this service distinguishes it conspicuously from nearly all the cases cited in the arguments of counsel. The long duration of the risk and the strain of the heavy draft on the salving ship is another distinguishing feature. The length of the salvage expedition, more than one-third of a mile, stretching across the path of ships, made the risk of collision and entanglement unusually great in the long nights and heavy fogs of that season and of those waters. The steam navigator’s terror of fouling his propeller was always present. The complete success, without a single accident, and only one day’s delay from adverse weather, was a crowning and distinguishing merit of this enterprise. This success is due in chief part t4 the rare resolution and conscious skill of Gapt. Rockwell, but for which the Phoenix would not have been taken in charge at all in the dangerous region of shipwrecks and storms in which she was found. Salvage services rendered in this region cannot be justly assimilated with such services rendered in other regions of navigation. They will not be undertaken here at all unless under the stimulus of maximum rewards for maximum successes. It was a happy fortune of the Phoenix that fogs and adverse winds had driven the stalwart ship Saginaw, commanded by such a master of the sea as Oapt. Rockwell, in her vicinity. Pew other men would have taken hold of her at all at the risk of half a. million of values; and few other ships would have been stout enough to draw her over so long a distance for so protracted a time, into safe anchorage. The embarrassments which were brought upon his owners and the shippers of the cargo, and on the schedule trips of the steamers of the line to which the Saginaw belonged, by the bold action of Oapt. Rockwell, cannot with any justice or propriety be overlooked by the court in fixing the salvage award in this case. I will give a decree • for $35,000, and for amount of the account for outlay of §570.89, which has been mentioned.</p>

This was an application for a writ of error to the supreme court to review an order dismissing, for want of jurisdiction over the subject-matter, a petition for removal of the cause from the state court, on the ground of local prejudice. 58 Fed. 977.

<p>This was a suit by Horatio G. Cilley against William A. Patten, in which John J. Cilley and J. Henry Dearborn were also joined as defendants, to disestablish a will admitted to probate in the state court and establish an earlier will. For reports of • previous decisions in the same litigation, see 46 Fed. 892; 1 O. C. A. 522, 50 Fed. 337; 58 Fed. 977; also, 62 Fed. 497.</p>

<p>1. Removal — Jurisdiction—Amount in Controversy.</p> <p>An action was brought by a city in a state court to recover a tax of $2 for each of 509 telegraph poles maintained in the streets, but tito declaration concluded: “And plaintiff claims $10,000.” Held, that the actual amount in dispute was but the amount of the tax, $1,018, and a circuit court could not take jurisdiction by removal.</p> <p>2. Same.</p> <p>Defendant could not maintain that the real man»’ in dispute was its right to keep its poles in the streets without paying the tax and without being liable to the fine of $10 per pole for nonpayment, imposed by the city ordinance, and the penalty of having its poles removed; for in an action at law to recover money, ¡lie amount in controversy is determined by the particular demand sued for, and not by any contingent loss through the indirect or probative effect of the judgment, however certain such loss may be.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Mississippi.</p> <p>On application for mandamus.</p>

This was a suit by Basil B. Gordon against William J. Smith, C. A. Johnston, the First National Bank of Columbus, Miss., R. T. Williams, and E. A. Quintard, to establish a lien on certain lands and to redeem the same.

e Circuit Court of tLe United States for the Eastern District of Texas. This was a suit by J. G-ordon Brown against Cornelius Davis and others to restrain enforcement of a deed of trust and for cancellation thereof. The circuit court dismissed the bill.

<p>Equity Practice — Mast mi’s Ekes.</p> <p>The permanent master appointed in two suits to foreclose mortgages on a railway was a. young man. not a lawyer, and without experience in railway accounts. The suits were not contested, and no matter of importance was litigated before him. His office expenses had been paid, and he had received $0,000 on account of his compensation. The principal part of.Ms work was done by the receiver's auditor, to whom was allowed therefor more than S3,000. The master and the clerk of the court were appointed commissioners to sell the property, which was purchased at the upset .price, $500,000, and each received $0,500 as commissions. His services extended very little over two years, during which he was absent live months or more; and he was also master in another railway foreclosure suit. Held, that his application for further compensation should be denied.</p>

<p>Bill by the United States against the Southern Pacific Railroad Company and others to recover lands. Decree for complainant.</p>

<p>This was a suit by Frederick W. Bound against the South Carolina Railway Company and others to foreclose a second mortgage on said company’s railroad. H. Pinckney Walker and James M. Calder, trustees in the first mortgage of said railroad, filed petitions for compensation and counsel fees.</p>

<p>Quietiitg Title — Nature of Claim.</p> <p>IV., complainant’s grantor, granted to H., for two years, power to soil certain land, for not -less tlian $415,000, 11. to have 90 per cent, of any amount obtained in excess thereof. On the last day of the two years, II. came to AV., stated that he had sold to defendant corporation for $445,000, that T., who was with Mm, was Its attorney, and demanded a. deed. AV. said he would give it as soon as possible, and sent for his attorney. The next day AV. sent to IT. for any contract he had made, but none was furnished. T. stated that he did not think there was any in writing, and had not been informed of the terms of any that had been made. He was informed that if any liad been made, with reasonable time for preparing deed, AV. would be glad to carry out its terms. Seven years thereafter, defendant began actions for specific performance and breach of contract, which have not been prosecuted and are still pending'. During the two years to which the power was limited, IT., claiming to act thereunder, executed to defendant, for a consideration of five dollars, an option on the land. Thereafter he executed to it a deed thereof, for five dollars, dated within the two years, but acknowledged long thereafter. H. said nothing to AAr. about these instruments, but, after the date thereof, stilted that he was negotiating for a sale. Between the date of the option and deed, defendant executed a mortgage of the land, reciting that it had the right to become the purchaser on payment of $(¡00,000; and, by its answer in this suit to have any claim of defendant to the land declared void, it alleged that the tender claimed to have been made by IT. by certified check was $600,000. H. was the president and principal stockholder of a corporation which owned most of toe stock of defendant. 'During the 10 years since the expiration of toe power of IT., toe owners of toe land have made large and necessary expenditures in connection with the land, which defendant has not paid for, and does not offer to pay. Defendant, moreover, is insolvent. Held, that oomplainant is entitled to a decree.</p>

This was a suit by Alfred W. La Chapelle against Capt. John W. Bubb, U. S. A., as Indian agent of the Colville Indian Agency, and certain Indian defendants, for an injunction to restrain said Indian agent from forcibly dispossessing the complainant of land which he claimed as a settler under the homestead law of the United ¡States. Complainant moved for an injunction pendente lite.

<p>This was a suit by the Puget Sound National Bank of Seattle against King county and others for an injunction to restrain the col-leciion of taxes upon Ihe stock of file complainant under an assessment against the bank, as agent for its shareholders, for the year 1891. A demurrer to the bill was overruled (57 Fed. 433), and an answer was filed. Complainant' filed exceptions to the answer.</p>

This was a suit by the First National Bank of Walla Walla against H. H. Hungate, as treasurer of Walla Walla county, for an injunction to restrain the collection from complainant of taxes, for the year 1892, upon bank stock assessed against the individual shareholders of the complainant. Defendant demurred to complainant’s amended bill.

<p>On motion for a new trial.</p>

<p>In Error to tbe Circuit Court of tbe United States for tbe Eastern District of Texas.</p> <p>This was an action by tbe widow of James Nolan against tbe Texas & Pacific Railway Company for damages for tbe death of said Nolan. At tbe trial tbe jury found for plaintiff, and judgment for plaintiff was entered tbereon. Defendant brought error.</p>

<p>Chattel Moutgages — Title and Possession — Absoluto Bill oe Sale — Re-plevin.</p> <p>In an action for possession of personal property, by one alleging title and right to possession, defendants pleaded a bill of sale from plaintiff to them, alleging that it was an absolute conveyance, and produced evidence to sustain their allegations. Plaintiff admitted that lie executed the instrument set forth, but gave evidence that it was a mortgage. Held, that such evidence did not chango the legal effect of the instrument on the question at issue, under Slausf. Dig. Ark. § 4754, — in force in the Indian Territory, — which provides that, in the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.</p>

<p>This was an action by Thomas S. Williams against William J. Athens Lumber Company, Limited, in liquidation, and others, for the recovery of certain real property.</p>

<p>This was an action by Charles W. Parrott against the New Orleans & Northeastern Railroad Company for personal injuries. Defendant filed exceptions to plaintiff’s petition.</p>

This was an action by the Barber Asphalt Paving Company against the city of Harrisburg to recover money alleged to be due for street paving. Defendant demurred to plaintiff’s statement of claim.

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>This was an action by Fred. S. Fisher against the Newark City Ice Company to recover damages for breach of a contract. The case was tried to the court without a jury, and judgment rendered for defendant. Plaintiff sued out this writ of error.</p> <p>The circuit court made the following findings of fact:</p> <p>(1) The plaintiff and the défendant entered into and executed a contract dated February 13, 1890, for the sale and delivery of 15,000 tons of ice by the plaintiff to defendant, which contract is made part of the declaration in this cause.</p> <p>(2) That in pursuance of the terms of that contract the defendant paid to the plaintiff on the day aforesaid $3,750, part of the consideration thereof.</p> <p>(3) The subject-matter of this contract was the delivery of 15,000 tons of ice by the plaintiff to the defendant at a certain fixed price per ton. Such ice, previous to delivery, was to be stored in certain buildings then erected, or to be erected, and in said contract particularly stated. In said contract there was this proviso: “Provided, however, said Fred. S. Fisher shall have the right to make up the quantity to be delivered as aforesaid by purchase or otherwise, indemnifying the said Newark City Ice Company for any additional expense they may be put to.”</p> <p>(4) The ice which was the subject of the sale, and was to be delivered pursuant to the terms of the contract, was to be cut from the Kennebecasis river, in front of certain lands leased or controlled by the plaintiff, and was, by the terms of the contract, to be stored in the building then in course of erection or to be erected by the said plaintiff upon lands owned by the said plaintiff, and situated on the Kennebecasis river, in the parish of Rothesay, and county of Kings, being the same land which the plaintiff had previously bought from one Susanna Hicks.</p> <p>(5) By the terms of the contract, or of a supplemental contract, hereafter referred to, the said plaintiff was permitted to store a certain portion of said ice, if necessary, in a building to be erected upon lands leased by him from the Wetmore estate in the immediate neighborhood of the other ice house, or in any other buildiDg to be approved by the defendant. At the time that said contract was made the plaintiff was engaged in cutting ice at the places named.</p> <p>(G) Afterwards, on the 7th day of April, 1890, a certain supplemental contract was entered into between the plaintiff and the defendant, which is attached to the declaration, and forms a part thereof. This contract, under the view I take of the case, is of no special consequence.</p> <p>(7) The ice in question was to be delivered to the defendants during the months of June, July, August, and September of that year; such delivery was to be made “free on board” certain vessels suitably and properly dun-naged for a voyage from the place of delivery to Newark, which vessels were to' be furnished by the defendant.</p> <p>(8) The defendant did send to the place of delivery, to wit, the ice houses heretofore spoken of, vessels upon which, at intervals, the plaintiff did deliver the ice in question up to about September. 10,1890.</p> <p>(9) On or about that day it came to the knowledge of the defendant’s agents that practically all the ice stored in the ice houses referred to had been delivered; the quantity remaining being variously estimated by the different parties, but admittedly less than a cargo.</p> <p>(10) The plaintiff in fact stored 11,250 tons of the ice which was to be delivered in the building mentioned in the contract.</p> <p>(11) On September 10, 1890, the agent of the defendant served upon the plaintiff personally a notice, of which the following is a copy:</p> <p>“St. Johns, N. B., 10 Sept., 1S90.</p> <p>“Frederick Fisher, Esq., City — Dear Sir: By your contract of the 13th of Feby., A. D. 1890, with us, you agreed to cut and deliver to us 15,000 tons of ice, to be packed and delivered f. o. b. on board of vessels properly dunnaged for a voyage to Newark during the months of .Tune, July, August, and September, for which we are to pay you the sum of $1.60 per ton; said ice to be stored in the building named in the said contract. A large sum is still due us for advances made to you on said contract, and we have removed all the ice in said building with the exception of a small amount, not enough for a cargo, and would now call on you to fulfill said contract.</p> <p>“[Signed] Newark City Ice Co.</p> <p>“Per S. D. Addis, Agt.”</p> <p>(12) Although, upon receipt of this notice, the plaintiff expressed his intention to fulfill his contract according to its terms, the only action he took thereafter was to offer ice to the amount of a cargo or more from Palmer’s ice house, and the tender of ice, made a,t Newark, as hereinafter stated.</p> <p>(i:i) At the date of the second supplemental contract, to wit, April 7, 1890, the defendants paid the further sum of §3,750 as part of the consideration of said principal contract.</p> <p>(14) During the months of June, July, August, and September the plaintiff delivered on board of vessels furnished by the defendant 6,156 45-2000 tons of ice, being parcel of the 15,000 tons to be furnished under the contract.</p> <p>(15) The ice was to be paid for by the defendants, in addition to the §7,500 advanced, at the rate of 75 cents per ton as the ice was shipped; said 75 cents por ton ¿o be paid by sight drafts drawn by the said plaintiff on the said defendant, with bill of lading attached, and weight of ice to be verified by sworn weighers, whose certificates were to be attached to the bill of lading. On repayment in full of said advance by delivery of ice, sight drafts, as aforesaid, were to be drawn for The ice thereafter shipped at §1.60 per ton.</p> <p>(16) That on or about September, 1891, and after Hie ice stored as per contract liad been exhausted, the plaintiff offered to the defendant, through Id's agents, Charles A. Palmer and Charles II. Pisher, under the contract. 2,389 1294-2000 tons of ice, then being on vessels afloat and in the port of New York or elsewhere, which ice, it was alleged by the plaintiff, came from the Kenne-becasis river, and was of the same quality as the ice required by said contract; also 4,000 tons of ice of a similar character, then stored in ice houses on the river Kennebocasis, but not in the houses mentioned in said contract; and 4,000 tons of similar ice, then stored at Chamcook, a place about 50 miles distant from the place where the other ice was stored under the contract.</p> <p>(17) While the evidence is exceedingly unsatisfactory as to the title to the ice in the vessels afloat in New York harbor and elsewhere, for the purposes of this decision I assume that such ice was owned by the plaintiff.</p> <p>(18) The title to the ice at Chamcook was admittedly in the, plaintiff and Ms brother as joint owners.</p> <p>(19) Dor the lee actually received by the defendant the plaintiff lias been fully paid.</p>

<p>Constitutional Law— Interstate Commerce — License Tax on Traveling-Salesmen.</p> <p>A state statute imposing a license tax upon persons traveling from place to place for tiie sale of goods, “at retail or to consumers,” by sample or otherwise (Eev. St. Wis. § 1570), is void as an interference with interstate commerce in so far as it applies to agents soliciting orders by sample for goods which belong to a resident of another state, and which are at the time outside of the state, and are proper articles of commerce.</p>

This was a suit by Henry Rudolph, and others against Benjamin A. Williams, George A. Williams, and others, to obtain an adjudication that complainants were entitled to a patent.

This was a suit by the New York Filter Company against the 0. H. Jewell Filter Company and others for infringement of a patent. A decree for complainant was granted directing an injunction and an accounting. 61 Fed. 840. Defendants moved for leave to amend and to take new proofs.

<p>1. Patents — Extent of Claim — Breech-Loading Cannon.</p> <p>In the Seahury patent, No. 425,584, tor an improvement in breech-loading cannon, claim 1, — tor the combination, with such a cannon, and a breech block therefor, which is withdrawn in a rearward direction, of a breech-block carrier hinged to the breech, and a breech-block retractor hinged to the breech, separate from the carrier, to move independently of the carrier, to draw the breech block thereinto and push it therefrom, but callable of moving with the carrier, — although broad, is sustainable when read in connection with the specification, which accurately describes the device, and states the result to be. accomplished, namely, to effect all the necessary movements by a continuous movement of a single lever.</p> <p>2. Same — Prior State of Art.</p> <p>The claim is not defeated, nor is its construction limited, by the English patent to Nordenfelt, No. 7,195, of February 10. 1888, as the device described therein appears not to be operative, and, though it embodies an attempt to effect all the movements by the continuous swing of a hand lever, does not solve the problem, and lacks the retractor separate from and moving independently of the carrier.</p> <p>3. Same — Infringement.</p> <p>The claim is infringed by the use, without the consent of the patentee, of the device described in the Dashiell patent, No. 468,331, which accomplishes the same result by a combination of the same elements, the mechanism being substantially the same, although varied in form, to render it simpler and more compact.</p> <p>4. Same — Action for Infringement — Defenses.</p> <p>Although devices described in a patent to an officer of the navy are being made for the United States, and in its shops, a suit against such officer to restrain their making and use, as infringing a prior patent, is not objectionable, as in effect an attempt to enjoin the United States, where such manufacture is by authority and direction of the defendant, and under a contract with him by which he is paid a certain sum for each article made.</p> <p>6. Same — Pleading and Proof.</p> <p>Failure, in such a suit, to sustain by proof' charges in the bill imputing bad faith to officers of the United States, does not preclude relief on the ground of infringement unattended with fraudulent acts.</p>

<p>Patents — Limitation op Claim — Electric Light Switches.</p> <p>In the Perkins patent, No. 247,103, for a circuit breaker for electric lamps, claim 1, for the combination, in an electric light switch, of a ratchet having metallic projections and insulating teeth between them, and. a pawl or detent for engaging with the insulating teeth when released from contact with the metallic projections, is so limited by the prior state of the art and its own language that it does not cover switches made under the Crowell patent, No. 436,122, whose only points of resemblance are that they are snap switches, and cannot be turned backward, those features having been open alike to both inventors.</p>

<p>1. Patents — Novelty—Structure for Circulation of Water About Furnace Mouths.</p> <p>In the Lamprey and Bugbee patent, No. 421,588, for an improvement on their patent No. 388,337. for a structure to prevent by circulation of water the burning out of furnace mouths, the improvement covered by claims 1 and 2, consisting of the combination, with the appliance for circulation of water set forth in the earlier patent, of a steam dome connecting therewith, and pipes affording communication with the boiler, which averts the difficulty arising from the steam generated by allowing the steam to collect in the dome and pass from it into the boiler, involves patentable novelty, and was not anticipated by the Sloane patent of May 16, 1882, although that patent involved the same principle and accomplished the same results, nor by other devices previously known.</p> <p>2. Same — Infringement.</p> <p>As the structure for the circulation of water described in the patent may he a hollow shell or other contrivance as well as pipes, an M-shaped shell structure for the channels of circulation, combined with the steam dome device, although called a “steam drum,” is au infringement.</p> <p>3. Same — Delay in Payment of Patent-Office Fee.</p> <p>A patent regular on its face is not subject to collateral attack because the patent-office fee was not paid within the time prescribed by Rev. St U. S. § 4897.</p>

<p>This was a suit by the Knit Goods Patents Company against A. Shuman and others for infringement of a patent.</p>

<p>This was a suit by Alfred II. Littleton and others against the Oliver Ditson Company for infringement of copyrights.</p>

<p>Trade-Marks — Infringement.</p> <p>Selling an imitation, as such, without any suggestion or arrangement that it be sold again for the genuine article, although with assent to such suggestions from others, does not infringe the right of the manufacturer of the genuine.</p>

<p>Seamen — Compensation por Shortage op Provisions — Invalid Contract-Estoppel.</p> <p>Notwithstanding the adoption by shipping articles of the statutory scale for provisions (Rev. St. § 4612), the master issued provisions according to a “method” of his own, whereby there was a shortage of bread. The seamen protested, and the statutory scale was followed for a few days, but they were dissatisfied with the manner in which the provisions were weighed and served under this scale, and ashed the captain to return to his “method,” which he consented to do on condition that they would “agree to be perfectly satisfied in the future, and make no more complaints,” and an agreement to that effect was entered on the log. Helé, that the contract was void as being one-sided and without consideration, and did not estop the seamen from suing for the extra compensation allowed by Rev. St. § 4568, in cases of shortage.</p>

<p>Libel for collision between the ferryboat Fulton and the steamer Sylvan Dell.</p>

<p>Demurrage — Liability op Charterer — Readiness to Take Cargo.</p> <p>A schooner was chartered to load a full and complete cargo, not exceeding 1,150 tons; but her master, on tendering her, stated that she had been leaking, and asked to have 500 or 600 tons furnished, and, if that did not increase the leak, so much more as she could safely carry. Held, that the charterer' was justified in refusing this, and was not liable for the delay until the master, after a surrey, gave notice that he would take a full cargo.</p>

<p>This was a libel by .Benjamin if. Berry against William R. Grace and others for a balance of height under a chapter party.</p>

<p>Libel to recover damages for stranding of barge in tow of tug.</p>

<p>Ooiiiiisiou — Fog—Steamers Passing — Rate of Speed.</p> <p>Two steamers, on regular runs in opposite directions, in a fog so dense that the exact position and course of one could not be known 1o the officers of the other in time to pass safely at full speed, should have passed starboard to starboard, as their courses did not cross, and the master of each knew tho route and direction of the other; but the master of one, hearing the other’s whistle, assumed that they were coining together on opposite courses, gave the signal to pass port to port, and set his helm hai-d a-port, thereby swinging his vessel across the other's bow. The other pursued her proper course, and gave the proper signals £or passing, hut continued her full speed oí 18 to 20 miles an hour until the vessels came in sight of each other, and, before her speed was perceptibly checked, struck the timbers supporting the stern wheel of the first vessel. Held-, that both were in fault.</p>

<p>1. Collision — 'Tug and Tow — Vessel at Anchos.</p> <p>A tug which, owing to lack of a proper lookout, takes her tow so near to an anchored vessel that, on the hawser breaking by reason of the tug' suddenly changing her course, the tow is unable to avoid the anchored vessel, renders her owner liable to such vessel, it being without fault, for damages from the collision. The Giovanni v. City of Philadelphia, 59 Fed. 803, affirmed.</p> <p>2. Same — Lookout.</p> <p>The duty of keeping a lookout is not complied with by the officer in charge of the navigation of a tug with a tow keeping a lookout from the pilot house. The Giovanni v. City of Philadelphia, 59 Fed. 303, affirmed.</p> <p>8. Municipal Coupohations — Liability bob Touts.</p> <p>A city which, pursuant to its charter powers, engages in the business of towing vessels for profit, is liable for a collision caused by the fault of its tug. The Giovanni v. City of Philadelphia, 59 Fed. 303, affirmed.</p>

<p>This was a libel by Wrigbt and others against tbe bark Felix to recover salvage.</p>

<p>Taxation oi<’ Costs in Partition— Eolt,owing- State Practice.</p> <p>The Pennsylvania statute wliicli provides that In the taxation of costs in all cases of partition there shall lie included a reasonable allowance to the plaintiff for counsel fees, as expounded by the supreme court of the state, will be followed by the circuit court of the United States.</p>

This was an action of claim and delivery by Henry K. Porter against S. W. Davidson, Jr., sheriff of Cherokee county, N. C. ■ Defendant moved to set aside the service of summons, and to dismiss the complaint.

This was an action by Edward B. Wilson and others against George T. Bruen, in which a writ of garnishment was issued against Joel J. Perrin, to whom Bruen had given a mortgage of his goods. Judgment was rendered for plaintiff against defendant Bruen, but on trial of the issue as to Perrin the judge directed the jury to find for him, and judgment for Perrin was entered on the verdict. Plaintiffs brought error.

<p>Mechanics’ Liens — Sale—Yaudits'.</p> <p>In an action to enforce a mechanic's lien on defendant’s entire property, in -which several interveners claimed liens against the same, and one claimed a lien against a portion only, a decree was entered fixing the amount due each claimant, and adjudging that each have a lien therefor against the property described in his complaint, and ordering the entire property to he sold to satisfy the liens. All the parlies assented to the decree, and no motion was made to set aside the sale thereunder. Held, that the sale was not; void on the ground that by such sale the person claiming a lien against only a portion of xhe property shared in the proceeds from property of which his complaint did not give the court jurisdiction.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Texas.</p> <p>The appellants, Minnie M. Appleton, and T. J. Appleton, her husband, citizens of the state of Michigan, claiming to sue in the right of the said Minnie M. Appleton, and as next friends of James M. Strong-, an infant, filed a bill in the circuit court of the United States for the eastern district of Texas against Joseph Marx, L. O. De Morse, and others, citizens of Bowie county, in the state of Texas, and Max Munzesheimer, S. Cory, and F. M. Duncan, nonresidents of the state of Texas. The bill charges, in substance, that in November, 1884,' James Strong died intestate in the state of Michigan, leaving surviving the said Minnie M. Appleton (then Minnie M. Strong), his wife and widow, and the said James M. Strong, his only child and heir at law, then an infant two years old; that on May 7, 1885, the defendant Joseph Marx was duly appointed temporary administrator of the estate of said James Strong, deceased, by the county court of Bowie county, Tex.; that on the same day the said defendant Joseph Marx gave bond as temporary administrator ih the sum of $50,000, with all the. other defendants as sureties on said bond, which bond was duly received, approved, and filed; that on.the same day the said Joseph Marx qualified as said temporary administrator, and entered upon the duties thereof; that on the 20th day of June, 1885, the said Joseph Marx filed in the county court of Bowie county an inventory and appraisement of the estate of said James Strong, deceased, in which he showed numerous claims, due and owing to said estate, secured by mortgage p.nd other liens, recapitulating the same; that on June 9, 1885, and on January 27, 1880, and January 25, 1887, the said Joseph Marx, as temporary administrator, 'collected certain claims, amounting to about $19,500, belonging to the estate of James Strong, deceased. That on October 1, 1884, the said James Strong, then living, placed in the hands of the said Joseph Marx a promissory note against the firm of Frost & Ferguson, in Miller county, Ark., for $850, which note belonged to said Strong, and was placed in the hands of Marx for collection; that on January 1, 1885, the said Marx collected the said note, with $50 interest due thereon, which said sum of money was assets in the hands of said Marx when he was appointed as tern-porary administrator, and should have boon included in the inventory and ap-praisement of the estate of said James Strong. and is now a. proper charge against said Joseph Marx as such temporary administrator; that in January, 1885, the said Joseph Marx received from the Kaiser Lumber Company a largo sum of money as the proceeds oí the sale of lumber, machinery, etc., belonging to the estate of said James Strong, which said money was assets belonging to the estate of said James Strong, and in the hands of said Marx when ho was appointed temporary administrator, and should have been included in the inventory and appraisement of the property and estate of .¡said James Strong; that the said James Strong owned and possessed 250,000 feet of lumber, which was of the value of .82.500, and that the slid Joseph Marx, through willful and gross negligence, failed to include said lumber and property in the appraisement of the assets of the said Strong, and through willful and gross negligence failed to take the said lumber into his possession, and failed to keep and preserve the same, hut suffered and allowed W. Behan, W. B. Kaiser, and J. M. Kaiser, three of the sureties on his bond as temporary administrator, to take and convert 1ho said lumber to their own use and benefit, whereby the said lumber and property was totally lost to the estate of said Strong, deceased, whereby the said Marx became liable and bound to pay orators the value of said lumber and property, with interest, for permitting and allowing said waste; that at the March term, 1887, of the district court of Bowie county, Tex., the said temporary administration of the estate of said James Strong, deceased, was determined, ended, and closed by the said court by its proper judgment, and that, by the judgment of said court, the said Marx, as such temporary administrator) was ordered and commanded to deliver up and turn over all the property, money, and assets then in his hands belonging to said estate to those entitled to receive the same, which judgment has never been set aside;, modified, or appealed from; that there never was any regular administration of the estate of said James Sfrong, nor any necessity for an administration of said estate, for there were no outstanding debts on said estate at the death of said James Strong; that orators Minnie M. Appleton and James M. Strong were the sols; owners, and were entitled to the immediate possession, of all of the property and assets belonging to the estate of said James Strong, deceased, as the surviving wife and only child and heir at law of said James Strong, deceased. That in pursuance of said judgment of the district; court, orators did, on the 21st of March, 1887, make a demand on said Joseph Marx, as such temporary administrator, for possession of all the property, claims, money, and assets belonging to the estate of said James Strong, deceased, which demand said Marx failed and refused to comply with; that said Marx, as temporary administrator, converted to his own use and benefit all the property. claims, money, and assets belonging to the estate of James Strong, deceased, as the same liad come to his hands and possession, and thereby committed a total waste of the whole of said ('.state that had been committed to his charge by virtue of the appointment; and that in March, 1887, the time when the said temporary administration was closed, and when said Marx, as temporary administrator, converted to his own use and benefit all the property, claims, etc., the said Minnie M. Appleton was a married woman, the wife oí T. J. Appleton, the co-complainant, and the said James M. Strong was and is an infant under 21 years of age. The hill prayed for process, and for judgment and decree against all of the defendants for the full amount of the several sums of money mentioned in the bill, and for the full amount of the property, claims, money, and assets mentioned and specified in the said inventory and appraisement, together with interest on all of said amounts at the rate of 8 per centum per annum from March 21, 1887, and for general relief.</p> <p>To this bill the defendants demurred for want of equity, and specially excepted that the county probate court of Bowie county, Tex., had solé, exclusive, original jurisdiction of the matters and things complained of in the bill. This demurrer was not properly verified, because not supported by the affidavit of the defendants that it was not interposed for delay. See Equity Bule 31. The demurrer coming on. however, to be heard, the court sustained the same as to the allegations m the complainants’ bill as to the closing of tlie administration, but overruled it as to tbe jurisdiction of tbe court and as to ,tbe want of equity in tbe bill, and complainants were given leave to amend; whereupon tbe complainants filed an amendment, by wbicb it was alleged that on February 5, 1S8C, tbe defendant Marx filed bis report as temporary administrator of the estate of James Strong, deceased, in tbe county court of Bowie county, Tex.; that tbe complainant Minnie M. Appleton (then Minnie M. Strong) filed objections and exceptions to tbe said report, tbe said James M.. Strong, then an infant, not being a party to tbe proceedings in said county court; that on February 20, 1886, tbe defendant Marx filed a supplemental report as temporary administrator, showing tbe condition of tbe said estate, and the amount of cash in bis bands as temporary administrator; that tbe two reports filed by Marx on February 5, 1886, and tbe report filed on February 20, 1886, and tbe objections and exceptions of Minnie M. Strong, surviving wife, were heard and a judgment rendered thereon by tbe county court of Bowie count}', Tex., approving and confirming the said report, and overruling tbe said objections and exceptions, from wbicb judgment the said Minnie M. Strong appealed to the district court of Bowie county in tbe state of Texas; that on March 1, 1886, the said Minnie M. Strong (now Minnie M. Appleton) filed an appeal bond, as required by law, whereby tbe said cause was duly appealed to said district court for a trial anew; that on March 19, 1887, tbe said case was tried by tbe district court of Bowie county, and a final judgment rendered therein, whereby tbe said temporary administration of tbe defendant Joseph Marx of tbe estate of James Strong, deceased, was determined, ceased, and ended, wbicb judgment has never been appealed from, set aside, or changed; that tbe district court, in tbe last-named judgment, reversed, revised, and reformed tbe said judgment of tbe county court in favor of Mrs. Minnie M. Strong, and closed tbe said temporary administration, and ordered said Marx, as tbe temporary administrator, to surrender up and turn over to tbe parties entitled thereto all tbe moneys and assets belonging to tbe said estate; that on January 21, 1889, tbe records and papers of tbe district court of Bowie county were totally destroyed by fire, and that tbe judgments of tbe district court, and tbe judgment of tbe county court, and nearly all of tbe original papers in said temporary administration, were destroyed by tbe said fire; whereupon they prayed as they bad prayed in tbe original bill, but waiving answer under oath.</p> <p>To tbe bill as thus amended tbe said defendants renewed and propounded tbe demurrer filed to tbe original bill, and again alleging want of equity, and that the plaintiffs, if they have any action at all, have a complete and adequate remedy at law. This repropounded demurrer was not verified according to equity rule 81. However, tbe same came on to be beard, and was sustained, with leave to tbe complainants to further amend by tbe rule day in March, 1892; and thereupon tbe complainants again amended, reciting substantially tbe same facts as recited in tbe original bill and its first amendment, but therein more specifically and at greater length, with more adjectives, and charging fraud and false accounting against tbe said Joseph Marx, as tbe temporary administrator. In this last amendment to the bill tbe complainants prayed.for an accounting against the said Joseph Marx; that tbe distributive share of tbe residue of the estate due Minnie M. Appleton be ascertained, and a decree entered allowing the said Minnie M. Appleton her said distributive share of tbe estate of said James Strong, deceased; that the said residue of ,said estate be partitioned and divided between Minnie M. Appleton and said James M. Strong equally, share and share alike; that tbe distributive share due to James M. Strong be ascertained, and a decree entered allowing the same, and for a. decree making a final partition, division, and distribution of tbe entire residue of said estate among tbe distributees as their respective rights may be shown to tbe court; and they again prayed for judgment and decree against Marx, as temporary administrator of tbe estate of James Strong, deceased, as principal, and bis codefendants, as sureties, for tbe full amounts of the several sums of money mentioned and specified in this amended bill and their original, first amended bill, together with interest, costs, etc. As before, tbe defendants demurred, and on the same grounds, but with a different result; for, at tbe September term, 1802, the court, overruled the demurrer and exceptions, giving leave, however, for the defendants to answer. Thereupon, in November, 1802, the defendants generally, without particularly naming any of them, tiled a plea as follows: “To so much of plaintiffs’ bill as demands and prays for an accounting by defendant, Joseph Marx, as administrator of the estate of .Tames Strong, deceased, that such accounting- has been fully made and acted upon and approved before a competent jurisdiction, to, wit, the county fprobate] court of Bowie county, Texas, at the February term, A. 13. 1880, of said court, in the matter of the administration of the estate of said James Strong, deceased, in said court, then defending, wherein the final account report of the said Joseph Marx, as administrator of said estate, came,' on regularly to be heard, and the plaintiffs herein then and there appeared and objected and excepted to said final account and report, the plaintiffs alleging, in objection thereto, the same matters set forth in their original and amended bills herein, and upon the trial before said court of said final account and report of said Joseph Marx as administrator as aforesaid was, by the court, approved, and a final judgment approving same duly enterad npon the minutes of said county court of Bowie county. Wherefore defendants plead said action and judgment of said court in bar of plaintiffs’ bill for an accounting herein. And for further plea in this behalf the defendants say that the definid,ant Joseph Marx was, at the time of the death of James Strong, a bona fide creditor of said Strong in large amounts, to wit, the sum of nine thousand, six hundred dollar’s (¿¡>9,600.00), besides interest, in which amount: the said Strong was justly indebted to said Marx; that said Marx, as such creditor, on the-- ‘day of May, 1885, applied for and obtained letters of administration upon the estate of said Strong in duo and proper manner as provided by law. and without wrong or fraud of any kind, and defendants specially deny that any false or fraudulent representations were ever made by him in any maimer to obtain said letters of administration., but the same was made in good faith, to protect his rights as creditor; that the plaintiffs herein appeared in the county court of Bowie county, Texas, wherein said administration was pending, and contested said Marx’s right to administer said estate, and said contest was duly, regularly, and finally tried by said court, and it ivas adjudged by said court that said Marx was a bona fide creditor of said Strong, and was entitled to administer on his said estate, and said court did proceed to appoint said Marx administrator; that he duly qualified, and said estate was by him duly, legally, and regularly administered in said court, and the final report and account of said Marx as administrator was duly approved by said court; that all the above proceedings were regular, fair, and in accordance with law, and in a court of competent and exclusive jurisdiction; that said orders and judgments have never been reversed or set aside, but were appealed from by plaintiffs herein, contestants in said proceedings, to the district court of Bowie couniy; that said appeal was abandoned by plaintiffs, and plaintiff Minnie M. Appleton, for the first time, in the district court of Bowie county, offered and tendered a bond to withdraw said estate from administration, and said district court accepted the same, and entered an order withdrawing said estate from administration, which said action and order of said district court defendants say was without and beyond its jurisdiction, and was void; that said action operated an abandonment of the appeal, and the original orders, action, and judgment of the county court aforesaid were and’ now are final. Whereupon,” etc. Tills plea was verified by the affidavit of the solicitor for (he defendants to the effect that the matters of fact stated in the above plea are true; but there wn.s no certificate of counsel that, in his opinion, said plea was well founded in point of law, nor any affidavit by any defendant that it was not interposed for delay, or Unit it was true in point of fact.</p> <p>The evidence pertinent to the plea shows that Joseph Marx was appointed temporary administrator of the estate of James Strong, deceased, by the county court of Bowie county, Tex., on 1he 7th day oí May, 1885; that on the same day he qualified as sucli temporary administrator by taking the oath and giving bond in the sum of $50,000; that on the 20th day of June, 1885, said Marx filed a sworn inventory, and on the 5th of February, 1886, filed a report in the county court of Bowie county as temporary administrator, ■wherein he admitted the collection of a large sum of money, and alleged an appropriation of much of it in payment of his own indebtedness; and on the same day, February 5th, filed- an additional report, showing appropriation of more of the funds collected to the credit of the estate, and that after-' wards, on February 20, 1880, filed an additional report, showing amount of funds of said estate on hand at date of same to be $15,840, and asking an allowance of 5 per cent, commission for receiving said moneys. To the reports filed February 5th, Mrs. Minnie M. Strong, surviving wife of James Strong, filed exceptions, wherein she objected to the credits- claimed or suggested by Marx, and afterwards filed objections to the report of February 20th. The objections to the said reports filed February 5th came on to be heard before the county court of Bowie county at a regular term, February 19, 1886, and the said court entered the decree following: “This day came on to be heard the report of J. Marx, temporary administrator of the estate of James Strong, deceased, was examined and approved and administrator ordered to pay court cost out of the funds the estate in his hands, and he further ordered forthwith deliver the estate remaining in his possession to the person legally entitled to the possession of the same'. Mrs. Minnie M. Strong, by her attorney, gives notice of appeal in open court to the district court of Bowie county, Texas, and, it appearing to the court that there is a contest pending over the appointment of a permanent administrator, it is ordered that this temporary administrator be continued until the termination of said contest, from which judgment the said Minnie M. Strong has appealed to our district court of Bowie county, Texas.” And thereafter the objections to the report of February 20th were heard and overruled. From these judgments of the court, Mrs. Strong prosecuted an appeal to the district court of Bowie county, when the following decree was rendered: “This cause was this day called for trial, whereupon came the parties plaintiff and defendant, by their attorneys, and announced ready for trial. It being made to appear, since the institution of this suit, plaintiff Minnie M. Strong has intermarried with one T. J. Appleton, on motion of plaintiff said T. J. Appleton was made a party plaintiff with his said wife (now Minnie M. Appleton), and suit ordered to proceed in their name as plaintiffs. Thereupon came on to be heard the objections of plaintiffs to the report of defendant filed in the county court of Bowie county, as follows, viz.: Two reports filed on the 5th day of February, 18S6, and one report filed on the' 20th day of February, 18S6. And- it appearing to the court that plaintiff’s objection to said two first-named reports filed on the 5th day of February, 188G, are well taken, and that the law is for the- plaintiffs, it is ordered, adjudged, and decreed that said two reports be disapproved and not allowed, and judgment is hereby rendered for plaintiff's, sustaining their objection to said two reports, and that defendants take nothing thereby. It is further ordered, adjudged, and decreed that the said report marked, ‘Filed on the 20th day of February, 1886,’ showing amount of funds of said estate on hand at date of same to be fifteen thousand three hundred and forty dollars, and asking an allowance of five per cent, commission for receiving said moneys, be allowed, and approved as to allowance of said commission, and that plaintiffs’ objection be overruled. It is therefore considered and adjudged that defendant be allowed as commissions for receiving said moneys the sum of seven hundred and sixty-seven dollars, and that said temporary administration be closed. It is further ordered that a certified copy of this judgment be transmitted to the county court of Bowie county for observance.”</p> <p>The evidence further shows that on the 4th day of May, 18S5, Joseph Marx filed his petition in the county court of Bowie county, state of Texas, suggesting the death of James Strong, his domicile in Bowie county, Texas, a large estate, consisting of real and personal imoporty and choses in action, the indebtedness of Strong to petitioner in the sum of about $10,000, and asking to be granted letters of administration of said estate. To this application airs. Minnie M. Strong, surviving wife of James Strong, filed exceptions and objections, among other things denying that said Joseph aiarx was a creditor of said estate, because his pretended debt against said estate was fraudulent, illegal, and not a bona fide debt against said estate; declaring there were no other creditors; and tendering a bond in tbe sum of $20,000, conditioned that the obligors would pay the debt of said Joseph Marx upon flic establishment thereof by a suit in a court of competent jurisdiction. The application of Joseph Marx for permanent letters of administration came on to be neard before the county court on the 20th day of February, 1880, and thereupon the court, decreed: “It is therefore considered, ordered, adjudged, and decreed by the court that the objection of the said Minnie M. Strong to the application of the said Joseph Marx for permanent letters of administration be. and the same are Hereby, overruled, and that the apmlicant, Joseph Marx, be, and lie is hereby, appointed administrator of the estate of the said Janies M. Strong, deceased, ami that the clerk of this court be, and he is hereby, directed to issue letters of administration on said estate to Joseph Marx upon his giving bond in the sum of lifty thousand dollars, conditioned, payable and approved as the law directs, and William Behan,'A. L. Ghio, and A. J. Hoffman be, and they are hereby, appointed appraisers of said estate; to all of which Minnie SI. Strong, by her counsel, excepts, and in open court gives notice of appeal to the district court of Bowie county, Texas.” The appeal prayed for above was perfected to (ho district court. When the matter came on to be hoard in the district court, the following proceedings were had, as testified to by Mr./l'odd, the counsel for Joseph Marx (reference being had to parol testimony because of the alleged destruction of the Bowie county records by fire): “Immediately thereafter came on to be heard the appeal from the judgment of the county court appointing .Joseph Marx permanent administrator of the estate, and, when that matter was called up, the counsel for the contestant, Mrs. Appleton, complainant in this suit, arose in his place in court, and stated to the court, in substance, that the contest was based upon the denial of the genuineness of the notes claimed to be held by Marx against Strong, and consequently the denial that he was a creditor entitled him to administration, but that all parties interested had agreed to submit the original notes, with a large number of admittedly genuine signatures of Strong, to an expert, Rhodes Fisher, of Austin, and abide by his decision as to whether the notes were genuine or not; that after some time the said expert. Rhodes Fisher, had rendered a decision, deciding that the notes were genuine, and the contestant’s counsel then stated to the court that they did not further insist upon their contest on that ground, but withdrew it. At the same time the counsel offered to- the district court to make a bond to secure other claims against the estate which had not been allowed by the court, and asked to withdraw the estate from administration. The court fixed the amount of the bond at $(>,000, — being about double the amount of claims which had been disallowed by the district court at the former order’, — and a good and sufficient bond was tendered by Mrs. Appleton as principal, Mr. Slitcr, Capt. F. M. Henry, IV. II. Tilson, and J. H. Henderson as securities. Thereupon, the contest having been withdrawn, the district court affirmed the appointment of Joseph Marx as permanent administrator, and in the same order accepted the bond in the sum of §50,000 to secure other claims, and make a final order withdrawing the estate from administration, closing it up, and ordering the administrator, Joseph Marx, to deliver to the persons entitled to the same, upon their demand, all the property in his hands belonging to the estate of James Strong.”</p> <p>On submission of the evidence, the court below entered a decree as follows: “On this day, this cause being called, and it appearing to the court: that heretofore, to wit, on May 17, 1803, at Paris, in chambers, upon hearing then and there and upon plaintiffs’ original bill and amendments, the defendants’ plea, and the plaintiffs’ replication, and the issues joined, and the evidence and argument thereon, the plea of the defendants herein was sustained by the court and found to be true, and defendants’ general demurrer having-been sustained to plaintiffs’ bill as to all other allegations and issues not put in issue by said plea, and it was adjudged, that said plea meets all the equities alleged in plaintiffs’ bill, it was ordered, adjudged, and decreed that said plea of defendants be sustained, and that final judgment be entered at the regular term of this court susutining' said plea, and dismissing the plaintiffs’ bill, which order was duly certified and is of record: It is therefore considered, ordered, and adjudged and decreed that said order so made in vacation, as aforesaid, be, and the same is hereby, approved, and in all tilings confirmed, and it is now here ordered and adjudged' and decreed by the court that the plea of the defendants herein be and is sustained and held to be true, and the plaintiffs’ bill herein be and is hereby finally dismissed, without prejudice to any action at law by plaintiffs; and that plaintiffs pay all costs in this behalf incurred and expended, for which execution may issue in favor of the defendants and officers of the court” From this decree plaintiffs appealed to this court.</p>

<p>National Banks — Insolvency —Biievetiences—■ Cleamnu House Balances.</p> <p>By special agreement, a national bank, instead of the usual deposit of securities as collateral for payment of its daily balance at the clearing house, each day left with the clearing house manager all checks drawn on it, and other evidences of its indebtedness received from other banks, to bo held until the balance due from it for the day was paid. While certain checks and other evidences of its indebtedness were so hold, the hank was closed by the comptroller of the currency. Thereupon the clearing house collected the amount of the checks, etc., from the banks from which they had been received, and therefrom paid, besides the bank’s balance for the day, duebills given by it for its balance for the preceding day, by their terms payable only through the clearing house the day after issue, and actually in the exchanges held when the hank closed, and applied the remainder towards cancellation of clearing house loan certificates issued to the bank under an agreement between the banks whereby any loss from failure of one to pay such certificates was changeable upon the others. Held that, as the transaction on the part of the bank was not in contemplation of insolvency, nor with a purpose to give a preference, or to prevent application of its assets as prescribed by law, the exchange between the banks was valid, and that it was not avoided, nor were the rights of the clearing house or of the creditor banks impaired, by what subsequently occurred; and therefore the receiver of the bank, taking its assets subject to all equities and rights against it bad no equity, in a suit against the managing committee of the clearing house alone, to question the appropriation of the money paid by the other banks. 58 Fed. 746, reversed.</p>

<p>Appeal from tlie Circuit Court of tlie United States for the Eastern District of Texas.</p> <p>This was a suit by Henry H. Myers against J. C. League and J. R. Coryell, for specific performance of a contract for the sale of land by defendants to complainant. At the hearing the circuit court dismissed the bill, but decreed that defendant League should repay to complainant a certain sum of money paid by complainant as part of the contract price. Complainant appealed.</p>

<p>Appeal from the Circuit Court of the United States for the Middle District of Alabama.</p> <p>This was an application by James N. Gilmer, appellee, for a rehearing, after a decision reversing the decree appealed from (60 Fed. 332).</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Georgia.</p> <p>This was a suit by Coffin, Stanton, and Street, doing business under the name of Coffin & Stanton, against W. B. Thomas, to restrain him from interference with their ownership of certain stock and bonds. The circuit court rendered a decree for complainants. Defendant appealed.</p>

<p>RECEIVERS — IfentJCTION OF WAGES.</p> <p>The court, in its discretion, will consider an application by railroad employes to rescind an order of the receiver reducing wages.</p>

<p>1. Contract between State and Railroad Company — What Constitutes— Exemption oe Property from Taxation — Repeal—Validity.</p> <p>Act Gen. Assem. N. C. Jan. 27, 1849, incorporated the N. C. R. Co., with a capital stock of $3,000,000. The state of North Carolina subscribed for two-thirds of the share's, and paid for them with 6 per cent, bonds. The other shares were taken, by private persons. Act Gen. Assem. N. C. Fob. 14, 1855, amended such charter by increasing the capital stock to $4,000,-000, because the original amount was insufficient to complete the road, and the state subscribed for the additional shares, paying therefor with é per cent, bonds. Section 5 provided that all real estate held by said company for right of way, stations, and workshops should be exempt from taxation until the dividends of profits should exceed 6 per cent, per an-num. Held, that the exemption provided by section 5 was a part of the contract between the state and the corporation, and that acts of the general assembly of such state repealing such section, and providing for the listing of such property for taxation, were void, as impairing the obligations of a contract. Tomlinson v. Jessup, 15 Wall. 458, applied.</p> <p>2. Same — Directors—Authority to List Property for Taxation.</p> <p>A majority of the board of directors of such corporation cannot list for taxation the property exempted by such act, against the protest of the minority stockholders.</p> <p>3. Same — Injunction—Bill by Stockholders — When will Lie.</p> <p>Where a majority of the directors of such corporation, who represent the state, have done everything they can as a board to surrender or destroy such exemption in the face of the protest of the minority, and the governor and the state desire such surrender, the minority stockholders may maintain a bill to enjoin such corporation and the president and individual directors from procuring such property to be taxed, without first going to the board of directors and endeavoring to induce them to prevent such taxation.</p>

In the matter of the appointment of a receiver for the Cape Fear & Yadkin Valley Bailroad Company, an order was made appointing a receiver, and giving leave to any party interested to intervene, and move to rescind or modify the order, within 60 days from the date thereof. The North State Improvement Company and the People’s National Bank of Lynchbnrgh, Ya., intervene and object to the order.

<p>1. Railroad Companies — CONSOLIDATION—Ratification.</p> <p>An agreement was entered into for a consolidation of several railroad companies, which was in compliance with the statute (Gen. St. S. O. § 1426) providing therefor, and was executed by each board of directors, and. submitted to the stockholders of the several companies. The minutes of the action of three of the companies, confirming the agreement, were in evidence, but the minutes of the other company had been lost. The old stock was surrendered, and the new certificates accepted. The now company took full diarpo and conirol of all tlic component roads without question or exception, and for years exercised such coni rol, and immense advantage resulted to the railroad from such consolidation. Held to show that the agreement was accepted and ratified.</p> <p>2. Sams.</p> <p>It tv as not an essential prerequisite to such consolidated companies acting as a corporation that the agreement should have upon it the certificates of the several secretaries of each of the railroad companies that it had been accepted.</p> <p>3. CORPORATIONS — MORTGAGES—RIGHT 01’ STOCKHOLDERS TO QUESTION VALIDITY.</p> <p>Where an organization assumes to act as a corporation, and issues bonds secured by mortgage, and puts the bonds in circulation, persons holding stock in the corporation, as such, cannot defeat the bonds and mortgage by alleging that the corporation was not duly incorporated.</p> <p>4. Railroad Companies — Wight or Directors to Issue Mortgage without Vote op Stockholders.</p> <p>Gen. St. S. 0. §§ 1-127, 1428, provide, that, on the consummation of the act of consolidation by several railroad companies, the rights, privileges, and franchises of each of the corporations, parties thereto, shall be deemed vested in and transferred to such new corporation without any further act of deed. Held, that where each of the corporations, at the date of the consolidation, had outstanding bonds, secured by mortgages, under proper authority, (he directors of the new corporation may, without the vote of the stockholders, issue a mortgage on the property of the new corporation in order to take up and substitute bonds of the new corporation for the bonds of the old corporations.</p>

This was a suit by Isidore Newman against Gordon, Strobel & Lareau, for an injunction to restrain enforcement of a decree. On the 9th of January, 1889, the Central Trust Company of New York filed against the Sheffield & Birmingham Coal, Iron & Railway Company, in the circuit court of the United States for the northern district of Alabama, its bill to foreclose two certain mortgages.

Shinkle, Wilson & Kreis Oo. and others obtained a preliminary injunction against the Louisville & Nashville Railroad Company,' without notice to it, compelling it to obey an order of the interstate commerce commission. Subsequent to the granting of the order defendant filed an answer putting in issue the material facts alleged in the petition. Defendant moves to discharge the order. Order dissolved.

<p>In Error to the Circuit Court of the United States for the Western District of Michigan, Southern Division.</p> <p>This was an action by Bridget Clark against the city of North Muskegon for personal injuries. The jury found for plaintiff, and judgment for plaintiff was entered on the verdict. Defendant brought error.</p> <p>This writ of error brought into review the judgment of the circuit court for the western district of Michigan. Bridget Clark, the plaintiff below, ,⅜ citizen of the state of New York, filed her declaration setting forth a plea of trespass on the case against the city of North Muskegon, a municipal cor-Deration existing under the laws of Michigan, which, since the acts complained of, had ceased to he a village, and had become a city. The declaration averred that the corporate authority of the village extended over divers public ways, highways, and streeis. and especially over a certain public highway or street known as Maple sired, and over the bridges, sidewalks, crosswalks, and culverts on the same; that the said Maple street, for more than 10 years before the committing of the grievance in the declaration thereinafter set forth, had been, and was at the time of the filing of the declaration, a public highway and street of the village, anil open to public travel; that it was the duty of the village, by reason of Act No. 2(51 of the Public Acts of the Suite of Michigan, passed at the regular session oí 1887, and approved June 27, 1887. to keep and maintain the sidewalk upon said street in reasonable repair, so that it should he reasonably safe lor public travel; that, in violation of this duty, the village, at: a point on the slrooi; in front of the premises of one Misner, carelessly and negligently permitted the said walk to become greatly out of repair, and the boards or planks to become so loose that it was in a dangerous condition for persons to pass and repass upon it, of all of which the village had had notice Cor a year preceding the 8th day of' October, 1800,' upon which day the plaintiff, while proceeding along the sidewalk of said Maple sircet with due care and caution, was tripped by the loose planks or boards in said sidewalk, was thrown to the ground with force and violence, and the bones of her left ankle and leg were broken. Por this injury slio asked damages.</p> <p>The defendant pleaded the general issue, and in its bill of particulars gave notice that it, would give in evidence the fact that the plaintiff liad sited the defendant, under its then corporate name of the village of Muskegon, in the circuit court of the county of Muskegon, in the state of Michigan, in a certain plea of trespass on The case for commit ting' the same supposed wrongs and injuries (if any such there were) in the plaintiff’s declaration mentioned; that thereafter the defendant demurred to the declaration, and, the issue coming on to be tried, the court adjudged that the matters contained in the declaration were not sufficient in law for the plaintiff to have the action against the defendant, and sustained the demurrer; that the court ordered that, upon payment by the plaintiff to defendant of $10 as attorney’s fee, within 20 days thereafter, the plaintiff might have leave to file an amended declaration, to which the defendant should plead, within the rules of practice of the court, but otherwise it was considered by the court that the plaintiff should take nothing by her declaration, and that the defendant should recover, against the plaintiff, its costs, and have execution therefor; that the plaintiff did not filo an amended declaration, and did not pay the attorney’s foe required, and that the judgment of (he circuit court for (he county of Muskegon against the plaintiff, and in favor of the defendant, remained in full force and effect, unreversed.</p> <p>No. 2(54 of the Public Acts of Michigan for 1887 imposes a liability upon townships, villages, cities, and other municipal corporations for bodily injury sustained by any person by reason of the neglect of such municipal corporation to keep in repair its public highways, streets, bridges, sidewalks, crosswalks, and culverts, when the same are ojien to public travel, and the municipal corporation has had reasonable time aiid opportunity, after knowledge that such highway, street, bridge, sidewalk, crosswalk, or culvert is unsafe or unfit for travel, and has not used reasonable diligence thereafter in putting the same in repair. The fourth section limits the application of the law to highways in certain corporations which have been in use 10 years or more.</p> <p>The declaration in the circuit court of the county of Muskegon set out exactly the same cause of action as the declaration herein, except that it did not allege, what the declaration herein does allege, that Maple street was a street which had been in use for 10 years, and was open to public travel. It apjieared from the bill of exceptions that, after the demurrer was sustained, and judgment given for the defendant, a writ of error was sued out, and the case carried for review to the supreme court of the state; that there the judgment of the state circuit court was affirmed, and leave was given to the plaintiff to file an amended declaration, but the plaintiff never did so; that subsequently, and after suit was brought in the court below, a stipulation to discontinue the suit, signed by the attorneys, was filed in the state court.</p> <p>The supreme court oí Michigan, in its decision in this case, reported in 88 Mich. 308, 50 N. W. 254, affirmed the judgment of the state circuit court only because the declaration did not aver either that the sidewalk upon Maple street was open to public travel at the time of the accident, or that the street had been in use as a highway for 10 years. In the case of Fuller v. Oity of Jackson, 92 Mich. 197, 52 N. W. 1075, the supreme court of the state decided that the proviso in the fourth section of the statute of 1887, with respect to 10 years’ use of the street, applied only to highways in townships, and not to highways in villages and cities, and to this extent the decision in Clark v. Village of North Muskegon, 88 Mich. 308, 50 N. W. 254, was overruled.</p> <p>The circuit court held that the judgment in the state court was no bar to a recovery in this action, and upon a trial a judgment and verdict for plaintiff was rendered in the sum of $2,500.</p> <p>The only assignments of error relate to the ruling of the court with reference to the effect of the action in the state court and the judgment therein.</p>

This was an action brought by the Pauly Jail Building & Manufacturing Company, of St. Louis, Mo., against the county of Hemphill, state of Texas, upon a contract entered into June 22, J888, whereby the plaintiff contracted to build for defendant count}', at the county seat, the town of Canadian, a jail and cells, according-to certain specifications agreed upon, and llio defendant county agreed, upon the completion of said jail building, to pay to the plaintiff $18,0011 in U…

This was an action by O. T>. Vincent against Lincoln county on a judgment against the county. The case was submitted to the court, on an agreed statement of facts, and a jury was waived.

These were two actions — one by Charles Sutro, ‘the other by the Luning Company — against Lincoln county, each on a judgment against the county. Each ease was submitted to the court on an agreed statement o£ facts, and a jury was waived.

<p>In Error to the Circuit Court of the United States for the Western District of Texas.</p> <p>This was an action of trespass to try title to land, brought by Francis Smith against James W. Henderson and others. On trial by the court without a jury, judgment was rendered for plaintiff. Defendants brought error.</p>

<p>In Error to Circuit Court of the United States for the Northern District of Texas, at Dallas.</p> <p>This was an action by J. W. Chenoweth against John Caskey and W. J. Wilkes for damages for breach of contract, brought in a court of the state of Texas, and removed therefrom by defendants. At the trial in the circuit court, the judge directed the jury to find for plaintiff. Judgment for plaintiff was entered on the verdict. Defendants brought error.</p> <p>On September 24, 1891, the plaintiffs in error, John Caskey and W. J. Wilkes, composing the firm of Caskey & Wilkes, then engaged in mercantile business in Ft. Worth, Tex., contracted in writing with defendant in error, J. W. Chenoweth, to' sell him their stock of merchandise at invoice prices, wdth 5 per cent, added, and Chenoweth agreed to pay for same as follows: $1,000 cash when stock was tendered for invoice; “also, to convey, by good and sufficient warranty deed, sections 13, 15, 23, 53, and the north 229 acres of section 55, all in block 10, Texas & Pacific reservation lands in Taylor county, Texas.” The contract also provided: “Said Chenoweth also represents that he has good title to- said land, and that the same is clear and free from any lien or incumbrance whatever, except a lien of $3,746.20, and that at least 60- per cent, of said land is substantially free from breaks and gravel; and said Chenoweth agrees to furnish complete abstracts of title to said land, bringing title down to- time of conveyance herein agreed to be made.” It was provided in contract that Caskey & Wilkes should take the land hereinbefore described, as a payment upon the stock of goods, at the sum of $8,094, and subject to the lien of $3,740.20. It was further provided that the invoice should be commenced September 28, 1891. Detailed provision was also made as to (he execution of notes for the balance of the amount for which stock should invoice, bat this is not deemed material here. Chenoweth not being ready on the ¿Nth. invoice was not commenced nntil October 1st, at which time he paid the $1,000 cash provided in the contract. The invoice was completed October 9th, and the amount was found to be S22.116.65. Both ijariios assisted in the invoice, and both were at considerable expense therein, which fully appears in the evidence. At the close of the invoice, Chenoweth handed Caskey &. Wilkes five abstracts of title, one for each of the tracts named in the conduct. They were certified, of date September 21, 1891, as bein'? complete abstracts of the records of Taylor county, Tex.. affecting the title to said lands. These abstracts (except for missing deeds, patents, and other matters hereinafter specified) brought the title down to the Interstate Railway & Construction Company, subject to a vendor’s lien on each tract in favor of the Franeo-Texan Land Company. At the same time, Chenoweth handed to Caskey & Willies five instruments, not recorded, and not shown in the abstract, releasing the liens of the Franeo-Texan Band Company; also, five warranty deeds from the Interstate Railway & Construction Company to Chenoweth, dated in .Bine, 1891, hut not recorded. and not shown in the abstracts. It appears from Ohenoweih’s evidence that liiese deeds were delivered to him in June, 1891. The abstracts were in the usual form, but contained no abstract of the patents to these-lands, the patents not having been recorded. One of the instruments shown in each of said abstracts was a decid of trust from the Texas & Pacific Railway Company to the Fidelity Insurance, Trust & Safe-Deposit Company, dated prior to the date of the patents. In I his decid of trust it apears that said railway company had, for one dollar and other considerations (not named in the abstract), conveyed to the Fidelity, etc., Company all lands said railway company had or should acquire from the state of Texas for building the Rio Grande division of said road; the abstracts stating “that the conditions and stipulations of said trust deed coyer twelve page's, and are too voluminous to set out." The abstracts also showed that there were two deeds missing to complete the chain of title, even down to the Interstate, etc., Company. One of the lacking deeds was from the Fidelity, etc., Company to Duncan Sherman & Grain, and this Chenoweth handed to defendants next day. This deed, though not appearing in the “complete abstracts,” showed that it had been recorded prior to September 21, 1891, the date abstracts were certified. Tho other lacking deed, which had not been recorded, and did not appear in the abstraéis, was from Duncan Sherman & Grain to the Franeo-Texan Band Company. This latter deed, Chenoweth informed defendants, was in possession of Robertson & Coke, attorneys at Dallas, to be used as evidence in a suit in the federal court, hut Chenoweth furnished no proof or statement showing that said suit, did not affect the title to said lands. Chenoweth procured ibis deed on October 13th. On October 14th, Chenoweth made another tender to defendants, tendering them the following: (1) The five abstracts already described; (2) the five patents from the state to the Fidelity, etc., Company for 1lie lauds in contract, “as assignee for the Texas & Pacific Railway Company;” (3) the five releases of liens by the Franeo-Texan Baud Company; (4) the live deeds from the interstate Railway & Consmiction Company to Chenoweth; (5) the deed from Duncan Sherman & Grain to the Franeo-Texan Rand Company; (6) the deed from the Fidelity Insurance, etc., Co. to Duncan Sherman & Grain; (7) warranty deed from Chenoweth to lands in contract; (8) notos according to contract, and money enough to pay for recording instruments not recorded. Caskey and Wilkes declined to accept the tender, and did not pay back to Chenoweth the $1,000 cash he had paid on the contract About 200 acres of the land was not in Taylor but in Jones county, and Chenoweth furnished no abstract from Jones county records. It appears from the evidence of Wilkes that defendants requested Chenoweth to procure from Robertson & Colic a certificate concerning the unrecorded deed held by them for use as evidence in a lawsuit, showing that titles to lands in contract were not affected by said suit, but this Chenoweth failed to do.</p> <p>In December, 1891, Chenoweth brought suit on the contract in the district court of Wise county. Tex., alleging performance on his part and breach by defendants, and claiming $6,158 damages, and caused a large amount of defendants’ property to be levied on nndor writ of- attachment. The attachment was based upon the fact that defendants were nonresidents of the state of Texas. On February 1, 1802, Caskey & Wilkes filed a petition in the district court of Wise county, and therein, asserting that they specially appear for the purposes set forth in the petition, alleged as follows: “That the controversy in said suit is between citizens of different states, and that the petitioners, being all the defendants in above-entitled suits, were at the time of the commencement of said suit, and still arc, citizens of the state of Missouri, and nonresidents of the state of Texas, and the plaintiff in the suit was at the time of the commencement of said suit, and still is, a citizen of the state of Texas; and, tendering bond and security, prayed for an order of removal of the said cause into the circuit court of the United States for the northern district, at Dallas.” On the same day the state court, on the petition, and on an agreement between the parties, in writing, that the cause might be transferred, ordered the- same to be transferred to the United States court at Dallas. It seems, upon this order of removal, the transcript of the record was filed in the circuit court for the northern district of Texas, at Graham, Graham being the place where the next term of the circuit court 'for the northern district of Texas was to be held. On the 15th day of March, 1892, the following- entry was made at Graham: “This cause coming on to be heard on motion to transfer to Dallas, it is ordered that the same be and is hereby transferred to Dallas by agreement filed.” On the 17th of May, Caskey & Wilkes filed in the circuit court for the northern district of Texas, at Dallas, defendants’ original answer, in which, after preamble as follows: “Now come the defendants, reserving their rights as nonresidents of this state, and not submitting themselves to the jurisdiction of the court, but appearing only for the purpose hereinafter set out,” — they specially and generally demurred and excepted to the sufficiency of the plaintiff’s original petition, and on such demurrers prayed the judgment of the court. On the same day, Caskey & Wilkes filed a motion to quash the attachment on various grounds assigned, and therein again asserted an appearance for the pin-pose of the motion only, and denying the jurisdiction of the court over their persons. On January 16, 1893, the cause came on to be hoard before the circuit court on motion to quash the attachment, and the same on argument was granted, and thereupon it was ordered that the attachment be quashed and set aside, and held for naught. On the 17th day of January, 1893, again came the defendants, by counsel, “for the purpose alone of resisting the jurisdiction of the court herein, and no other, and say that this court cannot exercise jurisdiction over these defendants in this cause, for that both of these defendants reside now, and did reside, in the state of Missouri, at the time of the institution of this suit, and that no> citation in this case was ever served upon them, except in the state of Missouri, and by a private person therein, who delivered to these defendants, in said state, certified copies of plaintiff’s petition; that writs of attachment were sued out in this state, and levied upon property of these defendants; that these defendants appeared specially, as appears by motion to quash, filed May 17, 1892; and that said motion to quash said attachment has this day been sustained, and said attachment proceedings quashed and held for naught; wherefore, they pray the judgment of the court whether they ought further to answer therein.” At the time of filing- this motion the counsel for Oaskey & Wilkes, reciting the special appearances thereinbefore made in the case, asked leave to withdraw their answer, and for leave to file plea to the jurisdiction, whereupon the court refused' to grant defendants leave to' withdraw their answer, to which the defendants excepted. Defendants below then filed their first amended original answer, alleging nonperformance on the part of plaintiff, and claiming damages therefor.</p> <p>On the trial of the case, after the conclusion of the evidence, the court charged the jury as follows: “In this case the jury are instructed that the plaintiff has failed to show title in himself in October, 1891, to the lands he was to put in trade with defendants. You will therefore find for plaintiff one thousand dollars, the amount he paid defendants, with 6 per cent, interest per annum from the date it was paid,” the same being the only instruction given by the court) to the jury; and the defendants, then and there, before the jury retired, duly excepted to the giving of that part of said charge which read as follows: “You will therefore find for plaintiff one thousand dollars, the amount lie paid defendants, witli 0 per cent, interest per annum from the date it was paid,” — and defendants then and there stated the grounds of their said exceptions to be as follows: “(1) Plaintiff’s failure to prove title was in itself a breach of the contract, such as to prevent him from any recovery on the case made by his petition. (2) Because, under the undisputed evidence, plaintiff had failed to comply with the contract sued on: lienee., defendaius were entitled to have their e.laim Cor damages submitted to the jury. (.3) Because the abstracts of title were not complete,— they not showing- the condition of -Tones county records as to lands in Jones county; not fully showing the deed of trust to tlie fidelity Company; not being brought down to date; not showing any of the seventeenoinstruments referred to in plaintiff’s testimony. (4) Because of the grave doubt left upon, the title in the matter of the deed 'in the hands of Robertson & Coke, without any explanation whatever. (5) Because plaintiff was not ready to comply at the close of the invoice, and it was not shown that he could not, by the use of diligence, have been ready at that time, (6) Because, contract contemplated performance at the close of the invoice', and plaintiff, by his own acts, had thus construed it, and had used no diligence; and having failed, and shown no legal excuse, lie must be held to have broken the contract. (7) Because the court should have instructed the jury as to what constituted compliance by the respective parties, and left the question of compliance and damages to the jury. (SI Because, even though defendants may have declared the contract off on October 12th, and though it should be held that they had not wailed a reasonable time, yet as plaintiff afterwards demanded compliance, and himself attempted to comply, such declaration was no waiver on the part of defendants, and gave plaintiff no rights as against defendants; and, the plaintiff having failed to fully comply on tlie 11th of October, he committed a. breach of the contract, which entitled defendants to have their claim for damages submitted on the evidence introduced.” In the bill showing these facts the court said: “la this case it was the opinion of the court that: the defendants had repudiated the contract, and kept 1he $1,000, when the plaintiff: was hying to carry it; out, and that too after lie had substantially furnished abstracts of his title. But the plaintiff failed on trial to show title to himself, at the date of the contract, to the lands he was to convey, from the sovereignty of the soil; hence the above instruction. With this explanation the above exception is approved and allowed, this March 23, And it further appears that the following ins I ruction was' asked by the defendants: “If the jury believe from the evidence, under the instructions given, that the plaintiff failed to comply- with llie contract on his part, and it’ .you further believe from 1he evidence that the defendants were ready, able, and willing to comply with the contract at any one time when plaintiff should comply- with (he contract on his part, then your verdict must be for the defendants,” — which instruedon was refused by the court, to which refusal the defendants then and títere duly excepted.</p>

<p>Railroad Companies — Municipal Aid — Constitutional Restrictions.</p> <p>Laws Oliio 1880, p. 157, which authorizes any township having a population of 3,683 to issue bonds in the sum of $10,000 to construct a line of railway, seven miles in length, between termini to be determined by the township trustees, in view of the limited amount to be appropriated, and the failure to prescribe location or termini, on its face contemplates, not a constructed and equipped railroad, but a mingling of public aid with private capital, and therefore violates Const. Ohio, art. 8, § 6, which forbids the general assembly to authorize a township to raise money for, or loan its credit to or in aid of, any joint-stock company, corporation, or association. 11 Sup. Ct. 215, 138 IT. S. '67, followed. 53 Eed. 214 affirmed. ⅝</p>

<p>Error to the Circuit Court of the United States for the Northern District of Florida.</p> <p>This was an action of ejectment by William E. Yail against George W. Richards. The parties agreed to waive a trial by jury, and submitted the case on an 'agreed statement of facts. . The circuit court rendered judgment for defendant. Plaintiff brought error.</p> <p>The waiver and agreed statement of facts were as follows:</p> <p>The parties to the above-entitled action hereby agree to waive a trial by jury herein, and to submit this case to any judge or judges of said court for finding, verdict, and judgment, upon the following agreed statement of facts, which are hereby admitted to be true:</p> <p>(1) William if Tail, the plaintiff, is a citizen aud resident of the state of New York, and was such at the beginning of this action.</p> <p>(2) George W. Richards, the defendant, is a citizen and resident of the stale of Pennsylvania, and was such at tile beginning of this action.</p> <p>(3) The lands in controversy are correctly described in the plaintiff’s declaration.</p> <p>(4) The lands in controversy are worth more than six thousand dollars ($0,000.00), and the sum, amount, or value in controversy in this action exceeds, exclusive of interest and costs, said amount of $(>,000.</p> <p>(!>) The lands in controversy were' owned by Frank ,T. Ilinson on January 1, 1888, ho then holding the same by a good and valid title in fee simple. The plaintiff herein holds a, deed to said lands from a master in chancery, passed upon a valid proceeding of foreclosure' of a. valid mortgage, executed by the said Hinson to the plaintiff, hut the defendant herein was not a party either to the said mortgage or to the said foreclosure proceeding.</p> <p>(<fl On August 4, 1889, the said lands were sold by the tax collector of Hake county, Florida, for the unpaid faxes thereon for the year 18S8, and said lands were bought at said tax sale by one U. H. Ramsey, to whom there issued a certain tax certificate, in which it was certified that the said Ramsey had bought the said lands at such tax sale, the said certificate being number 33. This certificate was on October .1(5, 1890, assigned by said Ramsey to the defendant, Richards. On June 1, 1891, said Richards presented said certificate to the clerk of the circuit court of Lake county. Florida, that being the county and state in which said lands were situated, and said clerk issued a tax deed to said Richards conveying said lands to him. All tile proceedings relative to the assessment of the said lands for taxes, Oie advertising of same for salo, because of nonpayment of taxes, and the sale of said lands at tax sale aforesaid for taxes, and the issuance of said certificate of purchase at the said tax sale to the said Ramsey, and the assignment of such certificate by said Ramsey to said Richards, and the issuing and delivery of the said la.x deed, were proper and legal and regular. and in due form as required by law. The said taxes on the said lands had not boon paid at or before the said tax sale look placo, and the said lands were never redeemed from said sale. The said tax deed was by said Richards duly filed for record and properly and regularly recorded on The 12th day of June, 1891, at page 389 of Book No. i of Tax Deeds, in the office of the clerk of the circuit court of the said county of Lake, state of Florida.</p> <p>(7) On October 1, 1893, the defendant-, by his agents, went to the lands In controversy, and, finding no one in possession of said lands, or any part thereof, he entered upon the said lands peaceably, openly, and quietly, and then and there took actual, open, notorious, and adverse possession thereof, and remained in such possession up to Hie time of the commencement of this action, and is at the present time still in possession of the said lands.</p> <p>(8) Chapter 3681 of the Laws of Florida is entitled “An act for the assessment and collection of revenue,” and took effect August 4, 1887; and chap-rer 4115 of the Laws of Florida is also entitled “An act for the assessment and collection of revenue,” and took effect August 1, 1893, having been passed June 2, 1893. :</p> <p>(9) It is further agreed that, at the trial or hearing of this cause, each and every part of the constitution of the United Slates and of the constitution of the state of Florida (adopted and ratified by tlio people of Florida in the year 1885), and all the laws and parts of laws of the state of Florida relative to the assessment and collection of taxes, the sale of lands for unpaid taxes, and all the proceedings leading up .to, or in any way connected with, tax sales or tax titles wiiliin the state of Florida, so far as same may be applicable or relevant, are to be considered by the court, and. if necessary or advisable, may be offered in evidence at the trial.</p> <p>If, upon the foregoing facts, it shall be found that the plaintiff is entitled to maintain this action, a judgment shall be entered in favor of the plaintiff for the recovery of the possession of the' lands described in the plaintiff's declaration, and also damages in the sum of two thousand five hundred dollars ($2,500); but, if the court shall be of opinion that the plaintiff is not entitled to recover, judgment shall be entered for the defendant against the plaintiff on the merits, and for the costs of the action.</p> <p>No right of appeal or other rights are to be waived by either of the parties, except as herein expressly stipulated.</p> <p>Laws Fla. c. 4115, mentioned in the foregoing agreed statement, contained the following provision:</p> <p>• Sec. 65. When the purchaser of land at a tax sale goes into actual possession of such land, no suit for the recovery of the possession thereof shall be brought by the former owner or claimant, his heirs or assigns, or his or their legal representatives for the recovery of the possession of such land, unless such suit be commenced within four years after the purchaser of such tax sale goes into possession of the land so bought; and the purchaser at such tax sale, when said real estate is in the adverse actual possession of any person or persons, shall not be entitled to recover possession of such real estate bought at such tax sale, unless suit for such recovery shall be brought within one year from the date of acquiring a right to such tax title; and where any purchaser of any real estate situated in this state, prior to the passage of this act, has not entered into and taken actual possession of the same, he shall, within one year from the passage of this act, bring suit for the recovery of actual possession of the real estate described in such tax title, and in default thereof such tax title shall become void and of no effect.</p> <p>Upon the record in this case, including the agreed statement of facts, but two questions are presented for determination by the court:</p> <p>First. The constitutionality of that part of section 65, c. 4115, Laws Fla. (Acts of 1893), which reads as follows: “And where any purchaser of real estate, situated in this state, prior to the passage of this act, has not entered into and taken possession of the same, he shall, within one year from the passage of this act, bring suit for the recovery of actual possession of the real estate described in such tax title, and in default thereof such tax title shall become void and of no effect."■</p> <p>Second. Has. the holder of such tax deed any remedy for the enforcement of his right, other than by suit, within one year from the passage of the act in question?</p> <p>The plaintiff in error contends that the provisions of the act in question referred to are constitutional, and that the defendant in error had no right under the law to possession of the lands in question except upon judgment in his behalf upon suit filed within one year from the passage of the act.</p> <p>Upon the agreed statement of facts in this case, under the law of Florida defendant in error was, on June 1, 1891, and ever since has been, the absolute owner of the lands in controversy, under and by virtue of the certain tax deed above referred to, and entitled.to the possession thereof, and constructively presumed to be in possession thereof, unless by a subsequently enacted law (hereinafter quoted) such ownership and possession and right of possession have all been taken away from him by legislative enactment. # The law referred to is a part of section 65, c. 4115, Laws Fla., and was * passed June 2, 1893, and, so far as is applicable to this case, is as follows: “And where any purchaser of any real estate situated in this state, prior to the passage of this act, has not entered into the actual possession of the same, he shall, within one year from the passage of this act, bring suit for the recovery of actual possession of the real estate described in such tax title, and in default thereof such,tax title shall become void and of no effect. * * * ”</p> <p>It is alone upon this provision that the plaintiff in error bases his right to the possession of the property in controversy, claiming that the defendant in error must sue for possession within one year from August 1, Í 893, or lose all; and claiming-, further, that this statute prevents the defendant in error from taking possession after August 1, 1893, except by and through such suit, and that if the defendant in error took possession after August 1, 1893,— the time when such law took effect, — such taking- of possession was so unlawful as that ejectment would lie against him. Notwithstanding the fact that the land was, prior to the 1st day of October, 1893, vacant and unoccupied, and the further fact that under the prior laws of Florida, to wit, sections 1287-1289, Itev. St. Fla., existing and in full force at the time of the execution of said tax deed, said lands were then, and for over two years had been, constructively in tiie possession of the defendant in error, who held title through and from the state of Florida, the plaintiff in error now claims that this new law of June 2, 1893, so changed tin. rights of the parties as to make unlawful the entry of the flefenda it in eu-or upon the real estate, and the taking- of actual possession thereof, afitei- August 1, 1893.</p> <p>The defendant in error contends that this statute is unconstitutional, anil therefore void and of no force or effect, for the following reasons:</p> <p>First. It impairs the obligation of contracts.</p> <p>Second. It deprives persons of properly without due pyo.-ess o' law.</p> <p>Third. It lessons the time within which a civil action may be commenced on a cause of action existing a.t the time of its passage.</p> <p>Fourth. Chapter 4115 of the Laws of 1893 of the state of Afórate embraces more than one subject.</p>

<p>Action for damages for deceit by Wilson against Etigbee. Judgment for plaintiff.</p>

<p>MaSTBK AND SERVANT — INJURIES TO SmiVANT- — CONTIUBTJTOBY NjSGLTGKNCE.</p> <p>In an action against a railway company for personal injuries to an employe, his evidence showed that, when he was at work in defendant’s sheds, and was kneeling to look for marks on a bale of cotton, moved from the wall on a truck, its weight depressed the ends of loose boards in the floor, causing a bale standing at their other ends to fall on and injure him; that the floor had been in bad r'epair for several years; but he denied that he knew of the defects in the floor, and, on his testimony, his ignorance of its condition was possible and reasonable. Held, that he had the right to submit to the jury the issue whether he was negligent or not.</p>

<p>In Error to tte Circuit Court of the United States for the Eastern District of Texas.</p> <p>This was an action by P. A. Scoville against the Texas & Pacific Railway Company for damages for personal injuries. The circuit court overruled a demurrer to the petition, and rendered judgment for plaintiff. Defendant brought error.</p>

Action by Julia Craft, administratrix of the estate of Benjamin P. Craft, deceased, against the Northern Pacific Railroad Company. There was a verdict for plaintiff, and defendant moves for a new trial. Denied.

<p>Post Office — Use of Mails to Defraud — Indictment.</p> <p>In an indictment under Rev. St. § 5480, as amended by Act-March' 2, 1889, for sending by mail a letter in execution of a scheme to defraud, it is sufficient to allege facts showing that defendant, having devised a scheme to defraud, in the execution of that scheme, and as a necessary or convenient step therein, transmitted through the post office a letter used, or designed to be used, to carry that scheme into effect. It is immaterial that such use of the mails did not result as intended, and was not likely so to result, or that it was only one step in a series of acts intended to accomplish the fraudulent scheme.</p>

<p>This was a suit by Daniel Fuller Appleton and others against Frederic Eeaubert for cancellation of a patent.</p> <p>On the 31st day of December, 1SS7, Adolph W. Hofmann, the assignor of Appleton et al., filed in the United States patent office an application for a patent for an improved method of ornamenting watch-case centers and other like articles, which application was, on the 11th day of January, 1889, put in interference with an application of Frederic Eeaubert, filed February 13, 1888, for a similar invention. Testimony was taken at large in the interference, and on the 2d day of August, 1890, final judgment of priority was rendered in favor of Hofmann by the commissioner of patents. While the interference was still pending, undetermined, Eeaubert filed a second application, covering the subject-matter at issue in the interference, which aiiplication was allowed to go to patent by the examiner after the decision in. the interference case, and resulted in letters patent No. 434,539, dated August 19, 1890. On September 2,1890, patent No. 435,835 issued upon the Hofmann application, and, on the 10th of September following, Appleton et al., as owners of the Hofmann patent, filed a bill in the eastern district of New York, under section 4898, Rev. St., against Eeaubert, as the owner of' tlie Eeaubert patent, praying the cancellation of the latter patent. Eeaubert answered the bill, and filed a cross bill praying in turn the cancellation of the Hofmann patent.</p> <p>,The opinion of the commissioner of patents on appeal from the decision of the examiners in chief in the interference proceedings between Eeaubert and Hofmann was as follows:</p> <p>Mitchell, Commissioner. This controversy relates to an improved method of ornamenting the peripheries of watch-case centers and other like articles; including also, as stated in the letter declaring the interference, the claims of the respective parties for combinations to carry into effect said method of ornamenting. Prior to the invention of the method in controversy watch-case centers had been ornamented by hand engraving. They had also been ornamented by a knurling process, in practicing which an engraved knurl or die roll was continuously rotated in contact with the outer face of the watch-case center, the latter being mounted upon a rotating chuck. Another process was known as the “spinning- process.” The spinning process was invented and patented by Kcau.bort, one oí the parties to lids controversy. In practicing it a mairix die was used, having a design or pattern upon its inner circumference. Into this matrix the watch-case center was placed, and then, by a small pressure toller revolving upon the inner face of the center, the latter was spun or expanded outward, so as to sake the impression from the pattern on the inner circumference of the die. The matrix (lie was made in parts, so that it could be removed after the ornamentation was produced. The last method won somewhat expensive; the second, difficult to employ, and oí restricted utility; and it is Inferred from the testimony that the first method was the one more commonly in use when the present invention was introduced. The present method is expressed in the language of the issue as follow.-»: “The improved method hereinbefore described of ornamenting tlie peripheries of watch-case centers or other like articles; the same consisting in holding the surface of an eni-bossing die in contact with the surface of the article to be ornamented, tnrparttng a reciprocating or reversing rotary movement to one of said surfaces, and at the, same time laterally moving the point of contact of the die with the surface being ornamented, as set forth.” 'The examiner, in declaring the interference, stated Unit the Issue was covered by Ecaubert’s first, second, and third claims, by Hofmann’s first and second claims in Case A, and by Hofmann’s single claim in Case B. Ecnubcrtfs claims, 11ms declared to be in interference, are as follows: “(1) 'file combination, with the knurl or ornamenting whe< I, and the mandrel and chuck or tool for holding Hie watch-case center or other article to be ornamented, of a shaft, and adjustable crank pin. and a rod from the crank pin. connected with the mandrel, for turning the mandrel first in one direction and then in the other direction, substantially as set forth. (2) ’The combination, with the knurling tool and its holder, of a slide for supporting ihe same, a rack bar connected with the-holder of (he knurling tool, a pivot stud for connecting the holder and rack bar to the slide, a slide rest for supporting the slide, a base upon which the slide.rest is supported, and a pinion at: the center of the base, with which the rack bar comes into contact, substantially as set forth. (3) The combination, with the knurling tool and its holder, of a slide and slide rest, and a base upon which the knurling tool and its holder are supported, and a i>ivot at right; angles to the axis of the knurling iool, connecting the holder to the slide, to allow the holder to be swung as the said knurling tool acts upon the convex surface of the watch-case comer or other article perpendicularly, and without lacera] slip, substantially as set forth.” Hofmann’s claims are as follows: “(’ase A. (1) The combination of a rotary embossing roll or die having an engraved periphery, a pivoted holder whereby said die may be inclined or moved laterally, a work holder or chuck, and means for imparting to said chuck reversing rotary movements of predetermined length, and thereby keeping- the relief linos of the die in operative engagement with the• impressions made by it in ¡lie case center or other article held b,v the chuck, as sot forth. (2) The combination, with the embossing roll, its holding devices, and the chuck, b. of the gear, q, affixed ro the shaft; carrying said chuck, the rack. r. engaged with said gear, the countershaft, v, and the pitman, s, connect ing said rack with an eccentric wrist pin on a crank wheel on flu- shaft, as set forth. Case I!. The improved method hereinbefore described of ornamenting the peripheries of watch-ease centers or other like articles; the same consisting in holding a portion of the surface of an embossing die in contact with the surface, of -the article to bo ornamented, said portion being less in width than the entire width of the ornamenting surface of the die, imparting a reciprocating or reversing rotary movement to one of said surfaces, and at the same time laterally moving the xioint of contact of the die with the surface being ornamented, thereby laterally extending- or widening the area of ornamentation, as set forth.”</p> <p>It will be noted that; in declaring this interference (he fact that a process is necessarily a different invention from a machine or ax>paratus (Ex parte Atwood, Com’rs’ Dec. 1SKS, 74; Crane v. Merriam, 51 O. G. 1783) was ignored. But that fact may now be disregarded, as, in the (-vent, that Ecaubert should be found to be the iirst inventor of the process, his equal right with Hof-mann to make a claim therefor would be undoubted, in view oí the history of the proceedings in the case. Hofmann’s applications were first in the office, and the burden of proof is upon Ecaubert, under rule 116. In Bruce v. Traver, 43 MS. Dec. 260, the present commissioner said: “When the rule places the burden of proof upon the last applicant, it means precisely what it says. It announces to parties before the office that the last applicant must prove his case or fail. Nor is the rule an arbitrary one. It has its foundation in the same legal principle, which finds expression in the maxim ‘prior tempore potior jure.’ The senior party litigant has a right to expect that the rule will be applied, and that he may be absolutely silent until a prima facie case is made out against him.” Has, then, Ecaubert proved that he was the first, inventor (1) of the apparatus for practicing the process, and (2) of the process itself?</p> <p>As to the apparatus for practicing the process:</p> <p>Ecaubert testifies that in the year 1879 he made an ordinary watch-case maker’s lathe, with a “gear wheel on the spindle, and a rack and an adjustable crank and countershaft,” to make the spindle go backward and forward; that he intended to ornament watch-case bezels and watch-case centers by means of engraved rollers to be pressed against the article to be ornamented; that he used the common knurling quadrant which was in use at that date to support the engraved roller, or milling wheel; that the apparatus was tried, and seemed to work satisfactorily, as far as concerned the reciprocating motion, but the milling wheel slipped sidewise, and injured the looks of the ornaments; that after this trial the parts, other than those constituting it “an ordinary watch-case maker’s lathe,” were taken off and stored away; and that he has since tried to get hold of thorn, but they could not be found. If all the testimony as to what was done in 1879 be credited, it must still be considered that this effort on the part of Ecaubert was nothing more than an abandoned experiment. Ecaubert himself testifies that the machine “was done away with, and did not remain in use,” on account of the milling-wheel slipping over the article sidewise. Indeed, what was done is referred to by counsel for Ecaubert, in his brief, as “this experiment;” and, in the summing up of Ecaubert’s argument at the close of the brief, it is only claimed that it constitutes evidence “that Ecaubert conceived the invention now in controversy in 1879.” It does not appear, so far as 1 can ascertain from the record, that, from 1879 to the present time, Ecaubert has ever made or tried to make a machine containing the elements specified in his first claim — that is to say, the elements necessary to practice the process of the issue — without producing the backward and forward motion by hand. Nor did he make a model or a drawing, or even a sketch, until he came to apply for a patent. Meanwhile, in the early part of December, 1887, Hofmann conceived of the invention in controversy, applied for a patent on the 31st day of December, 1887, and before that time had a machine in operation for the practical knurling of gold watch-case centers for the market, which machine contained all the mechanical elements of the first claim of Ecaubert, and both claims of Hofmann’s application, Case A. Subsequently, other machines were built, and a considerable industry came into being, based upon Hofmann’s invention. I have not overlooked what was done by Ecaubert in 1885. It is not claimed on his behalf that he at that time built a machine capable of transforming the rotary motion of the countershaft into the backward andforward motion of the spindle. The bearing of what was done in 1885 upon the question of priority, as relates to the process, will be considered hereinafter. So far as the machine or apparatus is concerned, the question is simply whether Hofmann’s prima facie case, based upon his earlier applications, preceded by actual reduction to practice, is overcome by an abandoned experiment of Ecaubert in 1879. Of course, there is but one answer to that question, which is that Ecaubert, not having proven either that he was the first to reduce to practice, or that he followed up his conception with diligence, has failed to discharge the obligation which the burden of proof placed upon him.</p> <p>(2) As to the process:</p> <p>The principal difference between Ecaubert’s case, as it stands related to the process, from his case as it stands related to the apparatus or mechanism, arises upon the testimony relative to what was done in 1S83 in the way of knurling watch-case centers uppn a machine operated by pulling the belt up and down by hand. It appears that in May, 3885, Ecaubert made a tool like that introduced in evidence, and marked “Ecaubert’g Exhibit A,” some of the parts of that exhibit being parts of the tool made at that time. Ecaubert says that lie succeeded by means of this tool in “overcoming the slipping sidewise of the knurl on the articles to be ornamented.” He further states that he knows lie made this tool in 1885, for he says he delivered to Alfred Humbert, of Philadelphia, on May 20, 1885, a center-turning lathe combined with a pendent-turning lathe; that “this particular part that makes the knurl move sidewise, and holds the knurl in position, was made to.be delivered with that center-turning lathe to the said Alfred Humbert;” that, after considering that he did not want this invention to become public property, he “took these particular parís off from the lathe, and substituted a regular knurling quadrant, of ihe ordinary kind;” that these “particular parts” remained in his shop from the time they were made, in 1885; that the knurling-tool, the stock that holds it, the V-slido, the rack connected to the stock, the stationary pinion, and the block below the bed, are the parts of the exhibit that wore made in 1885. and that the other parts — the quadrant, piafe, and stud, the handles, and the V-shaped-groovc stock — were made in 1889, or, as he states it, “I made them only this year. 1889, simply because I wanted to show liow it «'as to work.” It is to be borne in mind that this machine made for Humbert was a machine having a continuous rotary moiion, and desigiied to ornament watch-case centers by the second process already alluded to. It is to be borne in mind that Ecaubert testifies that the Exhibit A was “made to be delivered with 1hal center-turning lathe to ilxe said Alfred Humbert.” Ecaubert’s Itecord, Q. 19, p. 9. Exhibit A, therefore, was not made with special reference 1<> the difficulty developed by the 1879 experiments in knurling by a backward and forward movement; but it was made to be used in knurling by the old and -well-known rotary process; and any use, experimental or otherwise, of Exhibit A, in practicing the process of tile, issue, must have been incidental to the main purpose for which it was built.</p> <p>All the testimony as to the practicing of rlie process in controversy in 1885 relates to the use of this Exhibit A 111 connection with the Humbert machine designed to practice Ihe continuous rotation process. It should be remembered that after the Humbert machine was sent, away the original of Exhibit A was in a dismantled condition, parts of it having been used in making ihe ordinary quadrant with which the machine was finally equipped. To be sure, some testimony is found in the record as to the use of xiarts of Exhibit A after the Humbert machine was shipped away; but, as will be seen hereinafter, it does not relate to the practicing of the present process. Wilhelm, who worked for Ecaubert continuously after 1880, testifies io the use of Exhibit A on the Humbert machine. He says, “By pulling the belt backward and forward, we rotated the spindle.” This certainly looks like practicing the process. On cross-examination it distinctly appears that llie backward and forward motion was to get. “(lie impression all round,” and that he “did rotate the work continuously” after he got “the impression all round.” Now, a single complete rotation would be disastrous to the process in controversy. Wilhelm’s testimony not only fails to show the practice of the process, but, so Car as it goes, shows the contrary. A preliminary backward and forward motion is necessary to the continuous rotary process, but a single, complete rotation would be fatal to the forward and back process. As to what was done after Humbert’s lathe was sent away, Wilhelm testifies as follows: “Question 17. Has any portion of Exhibit A been made use of, to your knowledge, in Mr. Ecaubert’s shop, since the lathe wa.s sent to Sir. Humbert’s? Answer. Yes, sir. Q. 18. What was done with these parts? A. 1 used it for making barley-corn knurls to make dies with. Q. 19. About when was this? A. This was in the shop in which we are now. I could not state exactly when it was. May have been three years, or probably four years ago. Q. 20. Can you produce any such barley-corn knurl so made as referred to in your answer 18? A. I can. This is one of them. Q. 23. In making this knurl (Exhibit G), was there a rotary motion given to the same, or a backward and forward alternating motion? A. A rotary motion.” This testimony shows that the use to which the remaining portion of Exhibit A was put after the lathe went to Humbert did not involve tbe present process, nor anything like it. Ecaubert testifies as follows as to what was done after the lathe was sent away: “Question 26. Have you used any of the parts of Exhibit A that were made in 1886 for any purpose since the lathe was delivered to Mr. Humbert? Answer. Yes. Q. 27. What for, how, and where? A. In my own shop, fdr making fancy knurls. Q. 28. What were these fancy knurls for? A. I was making dies to spin watch-case centers in, and I was using the knurls. Q. 29. Have you, or not, at any time since 18S-3, made any watch-case centers, or similar article, by the use of any portion of Exhibit A, or experimented in that direction? A. Yes. Q. 30. Tell us, generally, what you did. A. I am not a watch-case maker myself; so, therefore, the work done with that device is limited to experimenting on brass watch-case centers to find out results.” Undoubtedly, this testimony relates to the use of Exhibit A in making the knurls by rotary motion, as testified to by Wilhelm, and it is certainly probable that the brass watch-ease centers were operated on, as Wilhelm testifies, by a back and forth motion, followed by a continuous rotary motion, — -the old process. All that Ecaubert says is that Exhibit A was used in, making “fancy knurls” and “brass watch-case centers” by some process, and that the work done by that device was “limited to experimenting on brass watch-case centers to find out results.” I find nothing in Eeaubert’s testimony unmistakably relating to the practice of the present process upon the Humbert lathe; and it may be said, generally, that, taking into consideration the testimony of the remaining witnesses for Ecaubert, I am unable to find credible evidence of the reduction to practice by Ecaubert of the iwocess in controversy in 1885. Ecaubert distinctly states that what was done after the Humbert machine was sent away was experimental, which could hardly have been the case if there had been previous reduction to practice; and, although some of the witnesses may go further than Ecaubert, yet, upon the whole testimony, I cannot accept the theory that in connection with Exhibit A. which was made to go with a continuous rotary machine, the reciprocating process was carried to the point of reduction to practice as a completed invention. The principle applicable to the kind of testimony introduced by’ Ecaubert is laid down in the case of Thayer v. Hart, 28 O. G. 542, as follows: “The evidence of prior-invention is usually entirely within the control of the party asserting it, and, so wide is the opportunity for deception or mistake, that the authorities are almost unanimous in holding that it must be established by proof clear, positive, and unequivocal. Nothing must be left to speculation or conjecture.” Syllabus.</p> <p>The only remaining question is whether reasonable diligence is proved on the part of Ecaubert, in reducing his process to practice. Reasonable diligence is established by satisfactory proof of affirmative action, and, within limits, by excuses for inaction. No attempt is made to prove affirmative action on the part of Ecaubert between 1885 and 1888, when he applied for a patent. The passage quoted herein from the testimony of Wilhelm (see answer to question 19) shows that what was done on Exhibit A after the lathe went to Humbert was “probably four years ago.” His testimony was given in 1889, so that the barley-corn knurls were ornamented by Exhibit A in 1885. Besides, as has been seen, the process in controversy was not practiced in ornamenting the knurls. No attempt was made even to enlist the favorable interest of watch-ease makers in the invention, although, at the same time, EcaulTert was endeavoring to have them adopt the spinning process. Nor are his excuses sufficient, in view of his continued inaction. He was not poor, his situation was favorable, and his opportunities were, almost literally speaking, daily. He obtained six patents between 1879 and 1887, — some of them relating to improvements in ornamenting watch-case centers, — and it is probable that he would have patented the present invention if he had perfected it. The excuse that prior to 1885 he had no knurling quadrant which would prevent the knurl from slipping' sidewise must be held to be unavailing, in view of the fact tliat the quadrant made in 1885 was taken apart in the same year only to be reorganized in the year 1889. in connection with the taking of the testimony. The excuse that there was no known, satisfactory process of preventing the discoloration of the work resulting from- the action of fire in the joining of the backs and caps indicates rather that he did not think it worth while to patent 1he invention than that there was any uncontrollable obstacle in the way. Besides, this objection was equally applicable to ilie spinning process and to all mechanical processes, yet'it did not prevent Eca.ubert from displaying considerable, not to say great, energy in perfecting- the spinning process, and in obtaining protection therefor. In Agawam Go. v. Jordan, 7 Wall. 5S3, the supreme court laid down 1he settled rule of law, stating that rule as follows: “The settled rule of law is that whoever first perfects a machine is entitled to the patent, and is the real inventor, although others may have previously had the idea, and ma.de some experiments towards putting it in practice.” To this settled rule a single exception is recognized, to wit, that, if the one first to conceive the invention was at the time using reasonable diligence in adapting and perfecting the same, ho is to be recognized as the first inventor, although the second to conceive may have been the first to reduce to practice. Reed v. Cutter, 1 Story, 590, Fed. Cas. No. 31,(515.</p> <p>For reasons already given, I cannot find that Ecaubort first perfected the maoiline or the process, so as to come \v51hin the rule, or that he used reasonable diligence in adapting and perfecting the invention, so as to come within the exception. At the time when Hofmann entered the field, Ecaubort was not using reasonable diligence in adapting and perfecting his Invention; but the indifference towards it which he had manifested for a long period prior thereto continued, so far as the record discloses, down to a period subsequent to the time when Hofmann had completed his machine, and applied for a patent. Effort is made to show that Hofmann derived his knowledge of the invention from Ecaubort. The burden is heavily upon Ecaubort to prove that, such was the case. Hofmann denies that Eeaubort at any time spoke to him of any way of ornamenting the centers, except by the spinning process, and his denial is coextensive with the allegation. Hofmann also insists that, it was knowledge of what he had done and was doing that prompted Hcnnbert to apply for a patent. If Ecaubort had obtained such knowledge, it would certainly explain why sudden action supervened upon years of inaction, delay, and indifference; but, in the view which I have taken of the tase, it is not necessary to determine whether Ecaubert's applying for a pa bait when lie did may not be otherwise explained, The decision of the examiners m chief is reversed, and adjudication of priority must be made in favor of Hofmann.</p>

<p>This was a suit by Frederic Ecaubert against Daniel»Fuller Appleton and others for infringement of the patent to complainant, No. 434,539, brought after the commencement of a suit against him by defendants herein to cancel said patent (62 Fed. 742). The two causes were heard together. Complainant moved to strike out certain testimony taken by defendants.</p>

<p>1. Whauves — Dues—Vessels “Abbiving from Sea.”</p> <p>Under the ordinance of the city of New Orleans of 1875, as amended in 1881, for collection of wharf dues, requiring ocean steamships “arriving from sea.” and landing at any wharf in the city to pay a certain rale per ton for the first iwo months or less, and extra charges if remaining longer, such a vessel, so arriving and landing, and then departing for a coastwise port for part of her cargo, is liable for additional wharf dues on returning to New Orleans to finish loading and again departing, all within two months; the intention being apparent from other provisions of the ordinance that dues should be charged on each entry or trip of a vessel.</p> <p>2. Same — Tonnage.</p> <p>Such wharfage is to be computed on gross tonnage, as contemplated at the time of the ordinance and its amendments, not on the net tonnage basis subsequently adopted by act of congress (Act Aug. 5, 1882).</p>

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana.</p> <p>This was a lihel by the Louisiana Construction & Improvement Company against the Tiverton (William Melburn and others, claimants), for wharfage. The district court rendered a decree for libelant. Claimants appealed.</p>

This was a libel hy the Louisiana Construction & Improvement Company against, the Angerton (William Melburn and others, claimants), for wharf-age. The district court rendered a decree for libelant. Claimants appealed.

- This was a libel by Andrew «T. Hubbard, master of the schooner Percy W. Schall, against Richard Wood, George Wood, Walter Wood, and Stuart Wood, trading as E. D. Wood & Co., for freight and damages. The district court' rendered a decree for libelant. Respondents appealed. ■ The following opinion was rendered in the district court, November 10, 1893, on the hearing upon exceptions to the report of the special commissioner in the case: Butler, District Judge.

<p>CoUiTSiosr — Steam Vessels Crossing — Rule op the Starboard Hand.</p> <p>Where a ferryboat, approaching her slip in the East river, saw a tug and. tow coming up on her port hand, and blew them one whistle, thereby notifying the tug of her intention to insist on her right of way, and pass ahead, and there was then time and space for the tug to have avoided her by going astern or stopping, but the tug' blew two whistles, and kept on until too late to avoid collision, held, that the tug was solely liable.</p>

<p>Sauvagm — Amount or Compensation.</p> <p>While a steamship was at anchor, loading with cotton, fire broke out in cotton already stowed. There being some delay in putting into service tiie steamship’s hose a,nd pipes provided for using steam to suppress fire, she accepted the assistance of a tug lying near, and in about three hours, by the use of the tug’s pumps and the labor of her officers and cretv, participating with the steamship’s appliances and crew and stevedores employed on her, the fire was extinguished. No serious risk was incurred by (he 1ug, her officers, or crew, and the services rendered required no greater skill than her ordinary business. The value of the steamship and cargo was about (5191,000. The tug was worth about $13,000, and had seven men, including officers, in her crew, who were paid $480 per month. Held, that an award of §1,500 to the tug and an equal amount to her crew was sufficient.</p>

This was a libel by Lamb against the steamer Ida B. Cotholl for personal injuries. The district court rendered a decree for libel-ant. Claimant appealed. This was an appeal from a decree of the district court of the eastern district of Louisiana for personal injuries. It appears from the testimony in the case that the libelant, appellee herein, was serving upon appellant’s steamer, the Ida B. Gothell, during the month of .Tuly, 1892, in the capacity of a fireman.

Tliis action ivas commenced in a state court by William Waite against the Phoenix Insurance Company, -and was removed by defendant to this court. Plaintiff moved to remand the case to the state court.

<p>I. RECEIVERS — EXPENSE OF OPERATING BRANCH OF CONSOLIDATED IÍOAD.</p> <p>Where a railroad company manages and controls another as part oí its system, not through any contractual relation, but solely by virtue of its control oí the voting power of the latter, which it absorbs by virtue of such power, and the latter Is operated, not in the interest of Its stockholders and creditors, hut for the former’s benefit, a receiver into whose hands both roads have passed, the latter as a part of the former, by virtue of such absorption, cannot recover from the latter expenses incurred in operating it.</p> <p>8. Same — Improvements.</p> <p>Where, however, the receiver incurs expense in making the roadbed of a branch of the subordinate railroad company secure, such expense becomes a charge on the entire road of such company, for which the receiver is entitled to reimbursement.</p> <p>8. Same — Improvements—Subordination' to Lien of Mortgage.</p> <p>There being a mortgage on the branch thus improved, the receiver's right to reimbursement is subordinate to the lien of the mortgage.</p> <p>4. Same — Interest on Mortgage Bonus.</p> <p>As the roads forming the subordinate company, on consolidation, took and held such branch subject to the mortgage, and by statute (Gen. St S. C. § 1428) assumed liability for the debt, the receiver’s claim for interest paid on such mortgage bonds is subordinate to the lien of the mortgage.</p>

This was an action on overdue coupons on bonds issued by the .city of Columbus, Miss., to the Columbus, Fayette & Decatur Railroad Company, but delivered to the Georgia Pacific Railway Company, and afterwards transferred to plaintiffs. Defendant demurs to the declaration, and plaintiffs demur to defendant’s special pleas. Defendant’s demurrer overruled. Plaintiffs’ demurrer sustained.

The National Life Insurance Company of Montpelier, Vt., the plaintiff in error, brought an action in the court below against the board of… Held: members of the board were elected, and it is stipulated that the members so elected, and their successors in office, continued to act as the board of education of the city of Huron, to carry on the schools, and to exercise all the functions of the board of education of that city, from September 22, Ü890, until the month of April,…

<p>This was a petition by John Booth and 14 others to be reinstated in their former positions as engineers and trainmen on the Seattle, Lake Shore & Eastern Railroad, which they had vacated by joining in the general strike of railway employés instigated by the American Railway Union.</p>

<p>Suit by the Southern California Bailway Company, a corporation of the state of California, against C. C. Butherford and others for injunction.</p>

W. H. Clune, C. T. Buchanan, and others move to set aside indictments against them for obstruction of mail and commerce. Denied.

This was a suit by the United States against M. J. Elliott, George B. Kem, Eugene Y. Debs, George W. Howard, L. 11. Rogers, Sylvester Kelliher, the American Railway Union, and others, to restrain violations of the act of July 2, 1890 (26 Stat. 209). Complainants moved for a preliminary injunction.

This was a suit by Samuel Thomas against the Cincinnati, New Orleans & Texas Pacific Eailway Company, in which Samuel M. Felton was appointed receiver. The receiver filed a petition for the commitment of F. W. Phelan for contempt, and for an injunction against him.

<p>This was an information against Hiram Agler for contempt of eoprt in disobeying an injunction. Defendant moved to quash the information.</p>

<p>1. Insurrection — What Constitutes.</p> <p>The open and. active opposition, of a number of persons to the execution of the laws of the United States, of so formidable a nature as to defy for the time beiDg the authority of the government, constitutes an insurrection, even though not accompanied by bloodshed, and not of sufficient magnitude to render success probable.</p> <p>S. Criminal Conspiracy — Obstructing Mails and Interstate Commerce.</p> <p>A corrupt or wrongful agreement between two or more persons that the employes of railroads carrying the mails and conducting interstate commerce should quit, and that all others should, by threats or violence, be prevented from talcing their places, constitutes a criminal conspiracy to hinder or obstruct the mails and interstate commerce.</p> <p>8. Same — Labor Organization.</p> <p>Where two or more leaders of a labor association, for the purpose of advancing personal ambition or satisfying private malice, l>y concert, insist or demand, under effective penalties and threats, upon the members of 'the association quitting their employment, to the obstruction of the mails or of interstate commerce, they are guilty of criminal conspiracy.</p>

<p>1. Conspiracy— Obstruction op Interstate Commerce.</p> <p>A railroad which is a link in a through line of road by which passengers and freight are carried into a state from other states and thence to other states, is engaged in' interstate commerce, within the statute declaring every combination or conspiracy in restraint of such commerce to be an offense.</p> <p>2. Same — Running op Trains.</p> <p>Though a railroad company engaged in interstate commerce must, unless prevented by circumstances beyond its control, run trains in a reasonable manner, and, as <>ften as the ordinary business of commerce requires, yet, where the composition of its trains, as ordinarily made up, is reasonable and appropriate to the service required, it is not obliged, on the refusal of its employés to move the trains so long as certain cars are thereon, to leave off such cars, and run the rest of the train.</p> <p>8. Mail — Duty op Railroad Company.</p> <p>Where the regular passenger trains of a railroad have, been designated for the carrying of mail, failure of the railroad to run other trains for that purpose is not in violation of the statute against obstruction and interruption of the mail.</p>

<p>1. Conspiracy— Obstruction op Interstate Commerce.</p> <p>Any combination or conspiracy on tlie part of any class of men who by violence and intimidation prevent the passage of railroad trains engaged in interstate commerce is in violation of Act July 2, 1890, declaring illegal every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the states.</p> <p>2. Mail — Obstructing Passa&e.</p> <p>It is a violation of Rev. St. § 995, declaring it an offense to knowingly and willfully obstruct or retard the passage of the mail, for one to prevent the running of a mail train as made up, though he is willing that the mail car shall go on, and his purpose is other than to retard the mails.</p> <p>8. Same.</p> <p>The railway is a great public highway, and the duty of the railroad company as a common earlier is first to the public. The road must be kept in operation for the accommodation of the public, if it is possible to do so With the force and appliances within reach. Any negligence in this respect is not excused by temporary difficulties capable of being promptly removed.</p> <p>4. Same.</p> <p>Where the transportation of the mails and interstate commerce has long been interrupted by the refusal of the employes of the railway company to move trains carrying Pullman cars, it is the duty of the railway company ’to use every effort to move the mails and interstate commerce, without regard to the make-up of regular trains; and any willful failure to perform this duty is a violation of the statute.</p> <p>5. Grand Jury — Finding—Indictment.</p> <p>An indictment should only be found where the grand jury believe that the evidence before them would warrant a conviction.</p>

<p>CoimstoN — Steam Yessei.s Gkopsing — -Duty to Maintain Sfeed.</p> <p>A steamtug gave two whistles to a steamboat on her starboard hand, and on a crossing course, and then slowed her engines. Held in fault for the collision which ensued, because of such slowing; it being directly contrary to the meaning of her signal, and a thwarting of the other vessel’s attempt to obey.</p>

This was an action in a state court by Campbell & Macomber against John E. Collins. Petition for a removal of the cause to this court, on the ground of prejudice and local influence.

<p>Removal of Causes — Local Prejudice — Sufficiency of Petition and Affidavit.</p> <p>It is not sufficient to merely allege in the petition and affidavit that petitioner “has reason to believe, and does believe,” that, from prejudice and local influence, he will be unable to obtain justice in the state courts. The existence of prejudice and local influence must be alleged as matter of fact. Short v. Railway Co., 33 Fed. 114, followed.</p>

This was a libel by B. B. Inman against the steam tug Lindrup. The claimants of the tug moved to quash the proceedings for want of jurisdiction.

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri.</p> <p>This was a suit by the National Waterworks Company of Kew York against Kansas City, Mo., to enforce a contract for the construction and operation of waterworks for that city. The circuit court rendered a decree for performance of the contract. Both parties appealed.</p> <p>The contract sought to be enforced was created nnder an ordinance of the defendant city passed pursuant to provisions of an act of the general assembly of Missouri apiu'oved March 24, 1873 (Laws Mo. 1873, p. 280, §§ 1, 22), as follows:</p> <p>“Section 1. The city of Kansas is hereby empowered to construct water works, to take and convey into and throughout the city, for the use of the same and others therein, water of the Missouri river, Blue river or Kaw river, or all, from any point or points, and to that end to acquire, hold, use, control and dispose of real estate and personal property within and without the corporate limits of the city, and also in the state of Kansas, necessary for laying pipes, constructing reservoirs, aqueducts, appliances and means, and erecting buildings and machinery proper and convenient for such water works, and for operating and repairing the same; to receive, take, purify, store, conduct and distribute in and throughout the city such water, and in general to do all things necessary and proper to carry this act into effect and accomplish the object thereof.”</p> <p>“Sec. 22. The city of Kansas is hereby empowered to grant to any person or persons, or any corporation, the right to erect and operate such water works as the first section of this act provides for, and to accomplish the purpose therein mentioned on such terms and conditions as may he agreed on in a contract therefor: provided, that such grant shall only be made by or in all respects pursuant to ordinance, which shall not be valid till tbe same be approved by two-1 birds of the qualified electors of ihe city voting on Ihe matter at a general election, or special election ordered and held for ihe purpose, when the matter of the approval of such ordinance shall be submitted to such electors; ihe power to order, hold and declare the result of any election requisite being' hereby conferred on the city, to be exorcised by or pursuant to ordinance; and, provided further, that no grant so made shall con-fín1 the right to operate the water works for any period beyond twenty years from the time of approval of the ordinance as aforesaid; but the grant may be renewed by or pursuant to ordinance, approved as aforesaid, during the last of such twenty years, for another term not exceeding twenty years, on terms and conditions specified in the ordinance for the renewal of the grant; and, provided further, that in making such grant or renewing the same, the city shall reserve to itself the right, at its option, and at any time, to acquire and become sole owner of such water works, including all extensions and enlargements thereof, and everything of every nature and description belonging and pertaining thereto, on such -terms as may be provided and agreed on between the parties at the lime the grant is made; or if no right is expressly reserved, or the city cannot, according to any reservation, purchase ami become sole owner as aforesaid, then the city may, at any time, at its option, acquire and become sole owner of such wafer works, including all enlargements and extensions thereof, and everything of every nature and de-itie.n belonging or pertaining thereto, on paying therefor the fair and equitable value thereof, to be ascertained, if the parties cannot agree thereon, by the circuit court of said county, on tlie petition of the city; the property and subject of purchase to be transferred and belong to tlie city on payment therefor; and, jirovided further, that at the expiration of the twenty years, if the grant be not renewed, the ci1y shall purchase and become sole owner of such water works as aforesaid, and p>ay therefor a price agreed upon by the parties or ascertained as they may agree, or, if tlie price cannot be thus fixed, then rlu: city shall pay tlie fair and equitable value of the whole works, to be ascertained by said court on the petition of either party filed for the purpose; and, provided further, that the city may furnish any party to whom such grant may be made real estate and right of way for use in constructing and operating such water works, according to such agreements as may be made in tlie premise's, and guarantee that the works shall earn a certain amount annually, to be specified in the grant, and guarantee, clear, over and above current, expenses, taxes and assessments; and may secure by a proper deed or agreement for the purpose, to the party to whom such grant is made, the control sunt possession of any real estate and right of any I way] condemned or acquired in Tlie exercise of the right of eminent domain, for use during the time such party may need the same under any such grant.”</p> <p>Under authority granted by this law, the city, by an ordinance approved October 27. 1873, and ratified by a vote of the people on November 13, 1873, and taking effect on the latter date, granted to the National Waterworks Company a right to erect and operate waterworks. Tlie ordinance contained the following provisions:</p> <p>“Section 1. That the National Water Works Company of New York, a corporation duly organized under the laws of the state of New York, be and it is hereby authorized, subject to tlie limitations hereinafter or by law provided, to establish, construct, maintain and operate' water works, in or adjacent to the city of Kansas, in the state of Missouri, to receive, take, purify, store, conduct, and distribute in and throughout the said city of Kansas, pure, well-settled, and wholesome water; to lay down pipes and extend aqueducts and conductors'through the streets, avenues, lanes, alleys or public grounds of the said city of Kansas; to erect and maintain all necessary buildings, machinery and attachments, of any description, necessary and proper and suitable for such works, and to supply to said city and the inhabitants thereof such water by said water works. * * Tlie rights hereby granted to continue for twenty years from the date of the approval of this ordinance by a vote of the qualified voters of the city of Kansas. ⅛ ⅜ *</p> <p>“Sec. 4. The city of Kansas hereby reserves to itself the right at its option, and at any time, to acquire and become sole owner of said water works, including all extensions and enlargements thereof and everything of every nature and description belonging and pertaining thereto, on paying therefor the fair and equitable value thereof, to be ascertained, if the parties cannot agree thereon, by the circuit court, or other court of record of the county of Jackson, at Kansas City, upon the petition of the city, and in such manner as the court may determine; provided, that a copy of such petition shall be served upon said company, at least fifteen days before the same shall be presented to said court. If, at the expiration of twenty years from the time this grant shall take effect the same shall not have been renewed, or the city shall not have become owner of said works, the city shall then be required to purchase and become sole owner of said water works as aforesaid, and pay therefor a price agreed upon by the parties, or ascertained as they may agree; or, if the price cannot be thus agreed upon, then the city shall pay the fair and equitable value of the whole works, to be ascertained by said circuit or other court of record as aforesaid, in such manner as said court shall determine on the petition of either party for the purpose; provided, that the party presenting such petition shall have served a copy thereof upon the Other party, at least fifteen days before the day of presentation; and, provided also, that if upon examination it be found that such works are not in all respects in good condition’ and of first-class and sound materials, and in every way efficient, then the city shall not be required to purchase the same at any time nor at any price.”</p> <p>The company’s bill, filed December 26, 1891, recited said act and ordinance, and alleged that under the contract thereby created the company completed the works for operation as required, and that they were duly accepted by the city; that the city adopted another ordinance in February, 18T7, whereby certain litigation between it and the company was settled, and certain changes were made in the original ordinance; that on the 25th day of Hay, 1878, the city, by a certificate signed by its mayor and the president of the common council, did certify that said company was operating its works to the satisfaction of the city; that the city adopted another ordinance in August, 1881, whereby the contract was further changed; that the company had kept and performed all the conditions, covenants, premises, and agreements on its part, and that it would at all times be ready, able, and willing to do so; that the company had expended large sums of money in building the works; and that in order to do so it has issued its bonds in the aggregate of $3,000,000, secured by mortgages covering the waterworks plant; that the defendant city, disregarding its duty and obligations to the company under the ordinances aforesaid, and contrary to equity and good conscience, and with the intent and purpose to wreck the company’s said waterworks in said city, te destroy the value thereof, and to render valueless to the bondholders of said bonds the security therefor mentioned in the mortgages referred to, and to impair the obligations of said city under said several contracts so entered into by it as aforesaid, and that with this intent and purpose, the said city falsely pretended that the ordinances aforesaid and the contract embodied therein, were not in force, and were no longer binding and obligatory upon said defendant, and particularly that said defendant was not and would not be bound either to purchase said waterworks, as by said ordinance was provided and agreed, or to renew the company’s said grant; that the mayor and common council, law officers, and legal advisers of the city had publicly declared and represented that said ordinances and contract were not binding and obligatory upon the city, and had threatened and did threaten and intend to repudiate the same, and refuse to keep and perform the covenants, agreements, and promises therein contained and expressed to be kept and performed on the part of the city with respect to the renewal of said contract, and the purchase of and payment for said waterworks; that in furtherance of said unlawful intent, purpose, and threats, the city had adopted certain charter amendments, and had passed ordinances providing for constructing and operating watenvorks in the city, and for issuing bonds for the purpose, and authorizing plans, specifications, and details for the work to be prepared, and had publicly advertised for sealed bids for the purchase of said bonds. The bill prayed a decree “that the several ordinances accepted by your orator, hereinbefore sot forth, as they are taken together, are in full force and effect, and that the contract embodied therein is a valid and subsisting contract, binding and obligatory upon your orator and the defendant, and that the defendant keep and abide by the same; and that, upon your orator’s duly and faithfully doing and performing all things yet remaining to be done upon its part, the defendant, its officers and agents, keep and perform the covenants, promises, and agreements on its part, so far as they are executory and unperformed; and that your orator may have such other and further relief as the ease may require, and as may be conformable to equity, and to your honors may seem meet, and the defendant, its mayor, common council, officers, and agents, may he perpetually enjoined and restrained by the decree of this court from proceeding to construct and maintain said separate and distinct system of waterworks, and from taking or appropriating to its own use, except under and in pursuance of its contract with your orator, any portion of your orator’s said system of waterworks; and that your orator may have such other and further relief as the equity of the case may require, and as to the court may seem meet.”</p> <p>The answer of the city, filed December 6, 1892, admitted the act of the general assembly and the ordinances referred to, the construction and operation of the waterworks by the company, and the fact, as alleged, that the city had availed itself of the rights and privileges stipulated for under the contract, so far as the company had been able to furnish them, but denied that the company had complied with its contract by making a complete and sufficient system of waterworks for the city, as provided for in the ordinance. The answer set up the provision of the contract which required the company, during the year 1874, to construct such a complete and efficient system, and to have and to hold the same, at all times during the period of the franchise, subject to the option and right of the city to purchase and become the sole owner of the works, in the manner therein provided; and alleged a breach on the part of the company of that provision, in that in many respects the company had failed to construct and have the kind of waterworks required by the contract, or to have any complete system of waterworks, specifying various particulars in which the company’s system was alleged to he inefficient and incomplete; alleged that by reason of such failure on the company's part the city was relieved from any obligation to purchase the company’s system, or any part thereof; and admitted the purpose and intent of the city, in the immediate future, to acquire the ownership and control of a system of waterworks of its own. The company filed a reply specially denying all the substantial allegations of the answer, and alleging the company's readiness and willingness, when required, to convey its complete system of works to the city. The city, also, at Ihe time of filing its answer, December 6, 1892, filed a cross bill which sot up the various broaches of the contract on the part of the company alleged in the answer, and alleged that tlie city had been and was by those breaches released from all obligations to the company; that the company, by its proceeding in this case, and by many other means and practices, was preventing the city from exercising its unquestioned right to provide itself with a new system of waterworks; and that the company had threatened, and was then threatening, to cut off the water supply from the city and its inhabitants, as an illegitimate means of forcing the city to comply with its demands, and to desist from its purpose of building its own waterworks, — and accordingly prayed a decree the opposite of that prayed for by the company, declaring the city released and absolved from all obligations under the contract to purchase its system of waterworks, or any part thereof, and enjoining and restraining the company from interfering in any way with the city’s proceedings to sell its bonds and construct its own waterworks, and also for the payment of damages on account of the failure of the company to furnish the degree of fire pressure stipulated for in the contract, which liad been paid for for years at the contract rates, and further restraining the company from carrying out its threat of cutting off the water supply pending the suit, and also that a receiver be appointed for the company.</p> <p>The answer of the company to this cross bill, filed February 28, 1892, contained, in addition ⅛. some of the matters stated in its original bill, the same denials and allegations contained in its reply to the answer, and asserted its complete and perfect ownership of its plant, and its ability to convey and deliver the same to the city whenever required, and its readiness to do so on the 15th day of November, 1893, "when the obligation of said city to purchase shall become absolute.”</p> <p>To this answer the city filed a replication.</p> <p>After the expiration of the franchise, on the 15th day of November, 1893, the city, on the 29th day of November, 1893, filed a supplemental cross bill setting up the expiration of the contract on the preceding 15th day of November; that the city had not renewed its grant to the company; that no terms of agreement could be entered into between the city and the company with reference to the matter; and that the company had failed to have such works as the city was bound to purchase. It alleged that since November 15, 1893, the time of the expiration of said grant, the company had had no interest in or title to that portion of the plant within the limits of the city, and was wrongfully claiming to own the same, and to uso the water mains, pipes, and works for the purpose of furnishing water to private consumers in the city, and had already acted and coerced private consumers into paying water rentals in advance up to the 1st day of April, 1894, and had succeeded in collecting from such private customers an amount of money equal to at least $200,000; that the collection of such rental was to cover the use of water after the expiration of the franchise aforesaid, and that the company proposed to continue in the future to make such exactions from such private consumers without making any allowance to the city for the use of its streets and property; that the city was desirous of having its rights in the premises ascertained and determined; that, if the company had any interest in the pipes and works within the city, the city desired to have such interest ascertained and determined and adjudicated by the court, and that the city be permitted to acquire that interest by the exercise of the right of eminent domain. It further alleged that under the contract the necessary real estate and rights of way for the erection of the works was purchased and had been paid for by the city, but that the company was wrongfully withholding the title to the same from the city, and keeping it in itself, subject to its móTtgages; that the city had been largely damaged by the want of the fire pressure guarantied by the contract. — and asked that those damages might be ascertained and determined. It further alleged great damages by reason of the failure of the company to construct and have for its use, at the termination of the franchise, a complete system of waterworks, and asked damages in that respect. It also alleged the threat of the company to cut off the supply of water to the city for public purposes, and the great danger that would arise in ease this threat should be executed, and offered to pay, if required, a reasonable sum for water furnished for public purposes. It therefore prayed a decree declaring that the company's right and title to the works, within the limits of the city, had expired, and that the same belong to the city; that the court ascertain and determine the interest of the company in the works described by the pleadings, and that the city be permitted to obtain the same upon making just compensation, to be determined by the court in such manner as the court may provide; that the company be required to convey the real estate standing in its name to the city; that the damages which the city had suffered by reason of the failure of the company to furnish the required fire pressure in the past be determined and adjudged in favor of the city; that the sum, if anything, which the city ought to pay to the company for furnishing water for public use, pending the litigation, be determined; that the company be enjoined from cutting off the supply of water to the city for public purposes; that, if necessary, a receiver be appointed to take and operate the works.</p> <p>The answer of the company to the supplemental cross bill set up:</p> <p>“That the said city is without authority or power to purchase said system of waterworks for the following reasons and because of the following facts, to-wit:</p> <p>“(a) The constitution of the state of Missouri, of 1875, withdrew from said city the power-to become indebted to an amount sufficiently large to purchase said system of waterworks, and said city has no means to apply to such purpose, and could only accomplish the same by becoming indebted to an amount which would make its indebtedness exceed tins limitations in said constitution contained, and the annual interest on such indebtedness larger than could be paid out of the taxi's authorized to be levied for that purpose.</p> <p>“(b) By section 17 of article 18 of the charter of said city, adopted in 1889, it is expressly provided, referring to the contract with this defendant embodied in said Ordinances Nos. 10,524 and 14,776, that ‘the city can purchase such works, or renew the franchise thereof only by ordinance passed by a majority vote of tlie members elect of each house of tlie common council; and only then in the event that said ordinance shall be approved by a vote of two-thirds of the qualified voters of the city voting at an election held for such purpose.’ And the defendant states that no such ordinance has been passed, nor lias any election been held, as provided in said charter.</p> <p>“(c) Under Ordinance No. 2,208 of said city, approved August 21, 1890, an amendment to the charter of said city was adopted, the same being mentioned in tlie seventeenth paragraph, of the original bill of complaint, and a copy thereof annexed to said bill as Schedule K; and in and by such amendment the said city expressly, and for the precise purpose of disabling itself from carrying out its contractual obligations to this defendant, limited its power to hold property for waterworks purposes to such property as might be So cated in the state of Missouri.</p> <p>“(dj Questions having been made as to the validity of said charter amendments, the complainant caused the general assembly of the state of Missouri to enact ‘An act concerning -waterworks, and a supply of water for cities now having or that may hereafter have a population of more than one hundred thousand (100,000) and less than three hundred thousand (800,000) inhabitants, whether organized under general law or special charters, or under section sixteen (10) of article nine (9) of the constitution of this state, and to issue bonds for acquiring waierworks, and to make contracts for supplying water to such cities, approved March 6, 1898, which is in substance the same, and contains the same limitations and restrictions upon the powers of the complainant as it imposed upon itself by Its charter amendment, namely, to acquire only such property as is situated within the state of Missouri. The complainant is the only city to which said act has or can have application, and the same was caused to be enacted by said complainant for the same purpose which moved the adoption of said charter amendments, as hereinbe-fore stated.</p> <p>"(e) Under section four of said Contract Ordinance No. 10,524, the said city could only become tlie owner of said system of waterworks by exercising its option to purchase the same oti or before November 15. 1898; and the said city, until long after that date, adhered to the election made and purposes expressed in its original cross bill herein. And tlie defendant shows that un-'<ier the charter of said city the authority to act for said complainant in the promises is vested in its common council by the passage of a proper ordinance; that no action whatever has been taken by such body, or by an officer or persou authorized to act for said city, relative to tlie matter; and that the only step taken in the premise's has been through tlie solicitors in this cause, upon their own motion, by tlie filing of tlie so-called ‘Supplementary Cross Bill’ herein.</p> <p>‘•(f) Bor more than four years prior to the filing of the said supplementary cross bill, the city has claimed and contended that it was absolved and released from the contract with this defendant, and that it did not propose to, and would not, purchase the defendant’s system of waterworks, or any part thereof, although said company has always denied, and does still deny, said claim.</p> <p>"By reason of which facts this defendant avers that said city is disabled, debarred, and prohibited from purchasing its said system of waterworks, and that said city waived any and all right to do so.”</p> <p>Tins answer also contained allegations as to the title to the property constituting the company’s system, and the company’s ability to convey, and denied the allegations of the supplemental cross bill as to Insufficiency of the company's system, and damage's ü> the city therefrom.</p> <p>On the hearing of the cause, on March 22, 1894, the city filed an amendment to its supplementary cross bill, as follows:</p> <p>“If, as defendant in its various pleadings avers, it now has such a system of waterworks as hy the act of March 2⅞, 1873, and Ordinance 10,524, provided for, then your orator is ready and willing, and now offers, to pay for same a fair and equitable value thereof. Your orator has at all times performed all the duties and obligations on its part, and is ready and willing to abide by and perform all obligations still remaining, if any, including the payment of, any money that ought to be paid by virtue of said law and ordinance; but it respectfully shows that, if the court should decree that the contract be specifically enforced, such decree ought to be accompanied with conditions requiring the company to furnish a complete, efficient, and unincumbered supply smd distribution system, and requiring the company, until possession is-obtained by your orator, to furnish water free of charge, and to account and pay over to your orator all income received since November 15, 1893. Your orator therefore asks the court to ascertain and determine the rights of the parties under and by virtue of the said law and ordinance, and as they existed on and after November 15,1893, and, when so ascertained and determined, to enforce the same by a proper decree in the premises.”</p> <p>The answer of the company to this amendment was as follows:</p> <p>“Answering the amendment made to the supplementary cross bill on March 22, 1894, and numbered paragraph 12 thereof, the defendant says that it is not true that the said Kansas Oity has at all times, or at any time, performed its duties or obligations in the premises, or that it can or will do so in the future. A distinct breach of duty is the wrongful refusal to pay to this defendant money earned by it under the contract, and adjudged to it by this court. The defendant adopts its answer heretofore filed to the supplementary cross bill as an answer to said amended pleading, and prays as in said answer it has already prayed.”</p> <p>After the testimony in the case was taken, the court appointed two commissioners to make personal inspection of the system of waterworks, and to estimate and fix the value of the works and system as a whole, to be predicated on the actual value of the works, and not upon the stock of the company, and to be the fair and equitable value of the whole works at the time; to estimate and fix, also, in like manner, the proportionate value of that part of the system, lying in the state of Missouri; and to inquire and report on other matters. Upon the pleadings, the evidence in the case, and the report of the commissioners, the cause came on for hearing on March 23, 1894, and on April 20, 1894, a decree was rendered, by which it was ordered, adjudged, and decreed as follows:</p> <p>“First. That under the act of the legislature and the contract between the National Waterworks Company of New York and the city of Kansas City, set out in the pleadings in this case, the said city is legally bound to purchase from said company, and said company is legally bound to sell to the said city, the full, complete, and entire waterworks plant by which the said city and its-inhabitants are now supplied with water, including all portions of said plant, as well that portion in the state of Kansas, and commonly known as the ‘Quindaro Supply Works and Flow Pipe’ as that portion situated in the state of Missouri, together with all lots and lands belonging to or in any wise used as part of said plant, with the exceptions mentioned in the eleventh paragraph of this decree, and everything of every nature belonging or pertaining to said waterworks plant'.</p> <p>“Second. That said city, under the said contract, is bound to pay for said complete or whole waterworks plant, and the said company is bound to receive in full payment therefor ‘the fair and equitable value of the whole works,’ as provided in said contract.</p> <p>“Third. The court finds that the fair and equitable value of the said complete and whole waterworks plant is two million seven hundred and fourteen thousand dollars ($2,714,000).</p> <p>“Fourth. That said city is entitled to the possession, use, and control of said whole and complete waterworks plant, and said company shall, on the 30th day of April, 1894, surrender and deliver to the said city the said whole and complete waterworks plant, and everything pertaining thereto, and all rights, leases, or contracts relating thereto, and necessary or essential to the full enjoyment of said waterworks as they are now enjoyed and operated by the said company; and the said company is hereby enjoined from using or operat-Eng said works, or retaining possession or control of any part thereof, after the said 30th day of April, 1894, and is enjoined from refusing or denying to said city the complete and peaceable possession of said works on that day; and said city is enjoined from refusing or neglecting to demand and accept the possession of said works on that day, and no appeal of this cause by either or both of tlie parties thereto shall operate to suspend these injunctions.</p> <p>“Fifth. In the event that said company is unable to deliver the possession of the whole and complete waterworks plant, including the Quindaro Supply Works, then said company shall deliver and the city shall receive on or before said 30th day of April, 1894, that part of the plant in the stale of Missouri; and said company is hereby enjoined from interfering with the possession of said city to that part of said works situated in the state of Missouri; and this injunction shall remain in force pending any appeal in this case.</p> <p>••Sixth. The said company, within six months from the date of this decree, shall make, execute, and deliver to the city a good and sufficient assignment and conveyance of said whole and complete waterworks plant mentioned in the first paragraph of tins decree, acceptable to the city or approved by this court, and when such conveyance is accepted by the city, or approved by this court, the city shall become bound to pay to the said company the sum of two million seven hundred and fourteen thousand dollars (§2,714,000), being the fair and equitable value of said works in the manner following, that is to say: The city shall agree and assume to pay on the incumbrances and liens on said waterworks plant, to the holder or holders thereof, as their several rights and interests and priority thereto shall appear, an. amount of said lien equal to said sum of two million seven hundred and fourteen thousand dollars (§2,714.000), and shall become bound to save said company harmless as to that amount of said lien. When said sale and transfer of said waterworks plant is made as provided in this paragraph, the liability of the city to pay therefor as herein provided shall relate back to tin; 30th day of April, 1894.</p> <p>“Seventh.. If the waterworks company shall fail to make and tender a sufficient conveyance of said whole and compíete waterworks plant within said six months from the date of this decree, then the city shall not be required to pay the price fixed for the complete and whole plant; and the question whether the city shall pay, or is liable to pay, any sum whatever, for that part or fraction of the plant in Missouri which does not include the source of supply, is reserved.</p> <p>“Eighth. That said city is not entitled to recover from said company any sum for or on account of any of the "several claims for damages set up in its cross bill.</p> <p>“Ninth. The said city shall pay to said company the contract price for hydrant reñíais down to and including the 30th day of April, 1894, amounting, principal and interest, after deducting ail payments made thereon, to the sum of one hundred and thirty-nine thousand four hundred and fifty-two dollars and eighty-two cents (§139.452.82), to be paid in the time and manner following, viz.: One-third of said sum shall be paid upon delivery by said company to the city of the possession of the whole and complete waterworks plant as required in the fourth paragraph oí this decree, one-third when said company shall deliver to the city a sufficient conveyance or transfer of the whole and complete waterworks plant, and the remaining third six months thereafter; each of said installments to bear interest at 6 per centum per annum from April 30, 1894.</p> <p>“Tenth. That said company shall have the right to collect and retain all water rentals which were due prior to the 30th day of April, 1894, and no claim therefor shall be made by the city against the company or the consumers; and the city shall collect and appropriate to its own use all water rentals which may accrue after the 30th day of April, 1894, and said company shall have no claim against the city or the consumers therefor.</p> <p>“Eleventh. That, conformably to the consent expressed by counsel for both parties at the hearing, the property described in the pleadings as the ‘Kaw Point Pumping Station,’ and the six or ten acres of land, more or less, connected therewith, and now owned by said company, shall remain its property, and shall not be conveyed to said city as pan. of said waterworks plant. The value of said Kaw Point, pumping station has been deducted from the price to be paid for the complete works.</p> <p>“Twelfth. That each party shall pay one-half of the costs of these suits.</p> <p>“Thirteenth. That this case is reserved for the purpose of making such other and further orders as may he found necessary to carry this decree into effect, and as may he equitable and just.”</p>

This is a bill in equity brought by Louis Krohn, a citizen of Ohio, to compel R. W. Kelson and John A. Williamson, citizens of Kentucky, to assign to him |48,000 of the capital stock of the Central Railway & Bridge Company. The Central Railway Sc Bridge Company, averred to be a citizen of Kentucky, is made a party to the bill, for the purpose of securing a register by it of the transfer of the stock.

<p>This was an action by M. Wunscb & Company against tbe Northern Pacific Railroad Company for the loss of certain goods delivered to defendant for transportation.</p>

This Avas an action by the Berlin Iron Bridge Company against the city of Ban Antonio on a contract for tlie erection of a bridge. Plain tilt’s petition contained the following allegations: First. Held: maintained, and being used by said city. Kighth.

Action by David B. Lyman against the Northern Pacific Elevator Company. Thomas Oulliford, holder of a note executed by defendant, intervenes, claiming the right to be placed on the footing of a general creditor, and as such to be entitled to share in future dividends. Claim disallowed.

<p>This was an action by James M. Hendrick against the Employers" liability Assurance Corporation on an insurance policy.</p> <p>This was an action brought upon a policy of accident insurance issued September 21, 1893, the material portion of which is as follows: “For and in consideration of a premium of $1.00, this policy hereby insures James M. Hen-drick. of Louisiana, Missouri, for the under-mentioned beneiits, and .always subject to the conditions on the back thereof (which are made a part of this contract), fro-m one o’clock a. m. on September 21, 1893, as a passenger in a public conveyance provided by a common carrier within the limits of the 1 nited States or dominion of Canada, and also insures within the limits of the city of Chicago, Illinois, during the progress of the World’s Fair. This insurance shall cease when the Insured shall have returned to his residence, but shall in no event extend beyond a period of seven days (expiring- at one o’clock a. m.) from date of register above. Beneiits: $3,000 at death, or for the loss or actual separation of two entire feet, or two entire hands, or one entire foot, and one entire hand, or of the completo and irretrievable loss of the sight of both eyes; $1,500 for loss, by actual separation, of one entire hand or one entire foot.”</p> <p>The facts in the case were undisputed, and were as follows: The plaintiff purchased the two accident policies on September 21,1893, at that time residing in Bowling Green, Mo. On September 23,1893, he stalled from Bowling Green, Mo., intending to go to Chicago, for the purpose of attending the World’s Fair. He had passes over the Chicago & Alton Railroad from Louisiana, Mo., to Chicago, and had left them at the hotel at Louisiana. Mo. He started from Bowling Green late on the night ol' September 23d, and arrived at Louisiana, Mo., about 2 o’clock on tbe morning of tbe 24th. Tbe plaintiff paid bis fare from Bowling Green to Louisiana. When tbe train reached Louisiana, tbe plaintiff got off tbe train, for tbe purpose of going to bis hotel and getting his passes, and continuing bis journey to Chicago at 3 o’clock in tbe afternoon of tbe same day. After alighting upon tbe platform, tbe plaintiff, who bad just resigned bis position as locomotive fireman for tbe Chicago & Alton Railroad Company, started forward, towards tbe bead end of tbe train, for tbe purpose of' seeing the engineer, and advising him that be bad left tbe service of tbe railroad company, and that some other person — a mutual friend — could now apply for tbe position made vacant by bis resignation. Tbe track upon which tbe train was standing ran east and, west, tbe engine being to tbe east. Tbe plaintiff bad gotten off on tbe north or left-hand side of tbe train, and, as be started forward towards tbe engine, be was prevented from reaching the engine upon that side of tbe train by a large truck load of .baggage, which stood in bis way, and prevented him from getting by. He thereupon crossed over to tbe south or right-hand side of the train, passing over the platform of the smoking car. Plaintiff then started forward, towards the engine, but, when within a few feet of tbe tender, tbe bell upon tbe engine began to ring, indicating that the train was about to start.- Seeing that be would be unable to have a conference with the engineer before the train should start, be retraced bis steps to tbe west end of the baggage car, and there started to cross over tbe platform of that car. After be bad gotten upon tbe steps of tbe platform, be stumbled upon a large box which was lying upon tbe platform of tbe baggage car, and fell backwards. In falling, bis foot became entangled in a rope attached to tbe box, and be was dragged quite a distance, and tbe wheels of tbe train passed over bis left arm, necessitating its amputation.</p>

<p>Action by Hall I. Graham against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. There was a verdict for plaintiff, and defendant moved for a new trial.</p> <p>Motion by defendant for new trial. The plaintiff, a brakeman in the service of the defendant company for more than six years, suffered personal injuries on February 25, 1892, in attempting to alight from a coal car. He was precipitated under the moving cars, and his right arm badly crushed, necessitating amputation. It was the duty of the plaintiff to aid in distributing freight cars and making up a mixed train at Kasota Junction, on defendant’s road, in this district. There was a grade at or near the station at this junction, and a part of plaintiff’s duty was to mount moving cars coming down this grade, and set the brakes to stop them, so they would not run into and injure stationary cars farther down on the track. In pursuance of his duty, the plaintiff had mounted a string of moving cars, and, in alighting from a coal car in this string, was injured. This car was called a “Gondola,” which usually has hand holds at each end, to aid brakemen in ascending and descending therefrom, and also end gates or end boards hinged to the floor of the car, and so made that they could be fastened upright or perpendicular to the floor by hooks and staples, or laid down inward on the floor. In attempting to alight from this car, the plaintiff took hold of the top of one of the end gates, which was upright, and, as he gave a spring to jump off, it fell inward, and he was thrown with his arm on the track. On the trial, the jury found a verdict for the plaintiff. A motion is now made for a new trial, for errors apparent on the record.</p>

This was an action by the Hemingway Manufacturing Company against the Council Bluffs Canning Company to recover damages for breach of a contract of sale of machines by plaintiff to defendant. Finding- of Pacts.

<p>This was a libel by Harold W. Nickerson, administrator of the estate of Erik Anderson, to recover damages for death caused by collision.</p>

<p>Action by the G-ottschalk Company against the Distilling & Cattle-Feeding Company. Judgment for plaintiff.</p>

<p>1. Leases — Exemptions op Lessor for Negligence — State Decision — Rule or Property.</p> <p>The provision in a lease that the lessor shall , not be liable for destruction, through his negligence, of the building on the leased land,- does not affect title to real estate; and therefore the question as to its validity is not within the rule that decisions of state courts constituting a rule of property will be followed by the federal courts.</p> <p>2. Railroad Companies — Leases — Questions Affecting Interstate Commerce.</p> <p>The facts that a lease exempting the lessor from liability for destruction of the buildings on the leased land is of part of a railroad conrpany’s depot grounds, and that it is to be used for a cold-storage warehouse, do not render the question of the validity of the exemx>tion one affecting interstate commerce, — -a matter of federal control.</p> <p>8. Same — Liability for Fires — State Control.</p> <p>Defining the extent of the liability of railroad companies for destruction of property by fires in the operation of the road is within the control of the state; therefore a federal court will hold valid the exemption in a lease of the lessor, a railroad, for the burning of the buildings on the leased property, through the negligence of the road, it not being against the public policy of the state.</p> <p>4. Public Policy — Change—Effect on Contracts.</p> <p>If at the time a court determines the validity of an exemption in a lease of the lessor from liability for destruction, through his negligence; of buildings on the leased land, such exemption is not against the public policy of the state, it is of no consequence what the public policy was at the time the lease was executed, as a change would not impair the obligation of contracts, but merely affect the remedy.</p>

Action on interest coupons belonging to bonds issued by the independent school district of Riverside. By consent of parties a jury was waived, and the issues of fact and law were submitted to the court. Finding of Facts.

<p>Chinese — Exclusion—“McCreary Act” defining “Merchants.”</p> <p>To except a Chinaman from the operation of the “Geary Act,’.’ as a merchant within the definition of section 2 of the “McCreary Act,” his interest must he real, and appear in the business and partnership articles in his own name. It is not necessary that his name appear in the firm designation.</p>

This was a suit by George H. Stahl against the Victor Incubator Company and others for infringement of patents, in which injunctions were granted against defendants. Complainant moved for an attachment against George Ertel and A. L. Chase for contempt in violating the injunctions.

These were two suits by Henry J. Miller, one against George W. Murray, the other against J. Donovan and another defendant, for infringement of patents.

<p>1. Patents — Prior Use — Evidence to Establish.</p> <p>The defense of prior use and sale must he established beyond a reasonable doubt, and a patent will not be overthrown when the evidence is so uncertain, conflicting, and unreliable that it is impossible to say which of the rival devices first saw the light.</p> <p>2. Same — Infringement—Improvements.</p> <p>The fact that defendant’s machine may be an improvement on the patent, and has introduced some novelties, does not avoid infringement, when the principal features of complainant’s invention have been appropriated.</p> <p>3. Same — Barrel-Hooping Machines.</p> <p>The Glankler patent, No. 439,142, for an improvement in barrel-hooping machines, whereby the end or chine hoop may be put on without bending or crinkling, iheld valid; and its claims entitled to liberal construction, and infringed by machines appropriating the salient operative features of the patented device.</p>

<p>This was a bill by Adelbert Lee Traver against Eugene H. Brown for infringement of a patent.</p>

<p>Mabitisik Limns — Contract—Raising Sunkkn Versmt,.</p> <p>A subcontract to furnish'materials and do certain work in the raising of a vessel sunk in the St. Lawrence river for a stated sum held, in view of all the circumstances, and especially the absence of any reference to the credit of the vessel, to have been made upon the credit of the principal contractors alone, and to have given the subcontractors no lieu.</p>

This was a libel by John O. Sundstrom against the bark Nikita, formerly named the Duca di G-alliera, to enforce claims for repairs and supplies. The district court dismissed the libel. Libelant appealed.

This was a libel by Hugh McCaffrey against the steamer J. G-. Chapman for wages. The claimant moved to dismiss for want of Jurisdiction.

<p>This was a libel by the National Steamship Company, Limited, against tlie steamship Hekla, her cargo and freight money, to recover for salvage services. The owner of cattle forming part of the cargo of the vessel rendering the services intervened, claiming to be entitled to share in the salvage award.</p>

<p>Salvage — Distkiutitiok.</p> <p>A schooner, broken from her moorings, and drifting through Hell Gate, was boarded by men in a rowboat, wbo carried a hawser to the shore» and made it fast. Afterwards, a tag came and lay toy the sctoooner for some hours, and then towed her hack to her dock. Held, that the men in the rowboat were the principal salvors, and should have the largest part of the salvage.</p>

<p>. Res Judicata — Judgment in State Court.</p> <p>A judgment of a state court, within and responsive to the issues made by the pleadings, directly upon a point, is, as a plea in bar and as evidence, conclusive between the same parties on the same matter in another action in the federal court.</p> <p>Si Same — Federad Courts — Jurisdiction.</p> <p>The fact that a judgment in the state court in an action involving a contest between mining claims is res judicata of the questions litigated in an action removed to the federal court does not deprive such court of jurisdiction, as a contest between mining claims necessarily involves a consideration of the laws of the United States as to the location and the effect of end lines and side lines on the rights to the mineral veins and lodes, and as the evidence whereby those things are proved, whether direct or through estoppel by some act of the party, or by a judgment of a court, does not remove consideration of the laws as elements of decision.</p>

On May 5, 1891, the Chattanooga, Rome & Columbus Railroad Company was sold to the Savannah & Western Railroad Company. At that time all the stock of the Savannah & Western Railroad Company belonged to the Central Railroad Company, which was in possession, operation, and control of the Savannah & Western, as its property, and so took and operated the Chattanooga, Rome & Columbus Railroad thereafter as a part of the Savannah & Western Railroad.

<p>Suit by the Municipal Investment Company and another against J. M. Gardiner and another. Defendants move to dismiss. Motion granted.</p>

<p>Suit by J. R. Massey & Son against Benjamin F. Fisher, receiver of the Spring Garden National Bank. Decree for complainants. •</p>

<p>1. Accommodation- Indorser — Extension—Release.</p> <p>Where a note secured by a mortgage is signed by one of the makers as an accommodation maker, and the payee, with the knowledge of the fact, extends the time for the principal obligor, the extension of time works his discharge from liability.</p> <p>2. Parol Evidence.</p> <p>The liability of the accommodation signer as a surety may be shown by parol in an action by the payee to foreclose the mortgage.</p> <p>8. Cross Bill — Dismissal.</p> <p>A cross bill seeking no discovery, and setting up no defense which might not as well have been taken by answer, will be dismissed.</p>

Applications for the extradition of Antonio Ezeta, Leon Bolanos, Jacinto Colocho, Juan Cienfuegos, and Florencio Bustamante, under the treaty between the TJnited States of America and the republic of Salvador. Plea to jurisdiction. Plea overruled. The defendants in the above cases sought refuge on June 6, 1894, on board the United States steamer Bennington, at the port of La Libertad, Salvador.

Applications by the republic of Salvador for the extradition of five persons, upon the following charges: (1) In re No. 11,095, Leon Solanos and Florencio Bustamante, for the crime of murder of lour persons, names unknown; (2) In re No. 11,096, Juan Cien-fuegos, for an attempt to murder one Andres Amaya; (3) In re No. 11,097, Antonio Ezeta, Leon Bolanos, Jacinto Colocho, Juan Cienfuegos, and Florencio Bustamante, for the murder of one Casimiro Henriquez; (4) In re No.…

Proceedings hy the United States against Wong Ah TTung to deport the defendant under the provisions of the act of November 3, 1893, entitled “An act to amend an act entitled ‘An act to prohibit the coming of Chinese persons into the United States,’ approved May 5th, 1892.” Defendant, ordered to be deported.

This was a libel by II. A. Hogue and Henry Young against the Gity of Frankfort to enforce a maritime lien. The claimant, C. H. Chase, moved to dismiss the libel.