Volume 63 — Federal Reporter

<p>1. SUPPHEITENTAL BlLT,—WlIKS ALLOWED.</p> <p>A supplemental bill, in tlie nature of a bill of review, to obtain a modification of a decree on account of newly-discovered facts, cannot be entertained when it appears that the new facts or circumstances were well known to tile complainant prior to the entry of the original decree.</p> <p>2. Same.</p> <p>A hill was filed by R. to vacate a deed by which lie liad convoyed a strip of land to tlie city of O., on the ground that tlie deed had been executed by him under a mistake of fact. The original bill and answer disclosed ihat the city had improved the strip of land as a street, at great expense, before the original bill was filed. A decree was entered on the original bill which adjudged, in the alternative, that, unless tlie city jiaid into court the assessed value of tlie strip of land within 90 days, the deed therefor, executed by R., he canceled ami annulled. At a subsequent term, the city not having paid tlie assessed value of the land, the complainant filed a supplemental bill with a view of obtaining such a modification of tlie decree as would compel tlie city to pay such assessed value. No fact or circumstance was stated in the supplemental bill, as ground for such modification of the decree, other than the fact that tlie complainant liad no correct knowledge, at the date of the original decree, of tlie amount that had been expended by the city in converting the land into a street, and tlie further fact that he would be embarrassed by the intervention of property owners whose land abutted on the street, if he attempted to recover possession of the same. Held, (1) that the supplemental hill stated no facts entitling the court to modify its original decree; (2) that, if the sum of money expended by tlie city in converting the strip of land into a street had any bearing on tlie relief to which the complainant was entitled, he should have obtained information as to tlie amount of such expenditures before submitting to the original decree; (3) that if the original hill liad been framed with a view of recovering a judgment for the value of the land, such as ivas asked by tlie supplemental bill, it would have stated a cause of action at law, and could not have been maintained in equity.</p>

This was a bill hy Charles H. Hayden and Harvey S. Hayden, copartners as Hayden Bros., against Herbert D. Wellington, Earl M. Cranston, and the Union National Bank of Denver, to establish a trust, and for an accounting. In the circuit court this case was disposed of by a demurrer to the bill of complaint.

<p>Mechanics’ Liens—Construction of Railroad.</p> <p>Acts Mich. 1885, p. 293, § 1, giving one who builds any house, building, machinery, wharf, or structure a lien thereon, and on the lot or piece of land, not exceeding a quarter section, or, if in an incorporated village, not exceeding the lot oil which the improvement is made, does not give a lien for the materials used in the construction of a railroad.</p>

This was a petition by J. M. Donglass and others against J. D. Brynes and others for the condemnation of a right of way for the construction of a mining tunnel.

<p>Railroad Recistykks—Leased Lines—Diversion oe Money—Taxes.</p> <p>Receivers Who take possession of and operate leased lines for more than a year, and receive ilie earnings thereof, a',re hound to disburse the same in accordance with the terms of the lease; and where they apply such earnings to the payment of interest, on the bonds, when the lease requires that the taxes shall be first paid, tlie court will require them, oven after the leased roads have been surrendered, to restore the diverted money by paying the taxes in question.</p>

<p>Railroads—Insolvency—Allowance of President’s Salary.</p> <p>Where a railroad goes into the hands of a receiver without funds, and the earnings under the receiver are barely enough to pay current operating expenses, arrears of salary of the president will not be paid in preference to the mortgage debt out of the proceeds of the road, the mortgage giving the debt, secured a first lien.</p>

<p>1. Note—Consideration—Evidence.</p> <p>On an issue as to whether a note for $8,000 executed by C. to his own order, indorsed by him in blank, and held by a bank, was for a consideration, or, as claimed by him, was an accommodation for the bank, C. testified that having'money in the bank, drawing no interest, A., the cashier, said “I” or “we” (by which C. said he understood reference was made to the bank) “can use” it, and that a loan of $8,000 was made accordingly; that, on his asking repayment, A. told him to draw on the bank, which he did June 26th; that, three days later, A. asked him to execute an accommodation note of $8,000 for the bank, antedated June 20th, which he did, the note in question being the last of the renewals of it. It was not claimed, however, that he thought the bank was using his name to borrow money. A., who was discredited as a witness by reason of misappropriation of the bank’s money, testified that C. made his loan expressly to him and S., partners in a coal-land speculation, and that when C.' demanded repayment he said he had not the money, but could procure it for C. from the bank on C.’s note, he agreeing that he and S. would take care of it, and pay the interest on it, and that accordingly, on June 26th, O. executed the note for $8,000, and A., as cashier, discounted it, and placed the proceeds to the account of C. A. used in the coal-land speculation the $8,000 loaned by O., and at the same time executed the note of himself and S. to 0., and placed it in an envelope in the hank vault, where G. kept his private papers. A. testified that 0. knew of it at the time. C. denied any knowledge of it till two years later. 0. knew of the speculation of A. and S., and S. testified that, a few days after the loan, G. asked him how it was coming on, and remarked to him that they were using $8,000 of his, O.’s, money in the enterprise. O.’s pass hook showed a charge to his account at that time, “Note $8,000.” ' G. produced the hank’s vouchers for every other charge against him, covering a period of several years, ' excel» t this one. Where the word “note” was used in other charges, the voucher was a check drawn as a loan on a note. Not only did C.’s pass hook show a discount hy the bank of his note for $8,000 on June 26th, but the bank’s books showed such an entry between entries of the same date made’ by derlas whose integrity was not. questioned. A. also placed in C.'s private envelope in the bank, as collateral security for the note of himself and S., notes secured by mortgage on the coal land. (1. denied knowledge of their existence. O. was slipshod in business, his pass hook lay at the bank nearly all the time, and it was claimed that he was a child in A.'s hands. Held, that the evidence sustained the statement of A., and showed that the ttote was for a consideration.</p> <p>2. Banks—Special Deposit—Failure to Protest.</p> <p>Where a cashier of a bank places his indorsed note in the private envelope of a depositor, in the vault of the bank, as collateral security for his individual note to the deposiior, the bank is not liable for release of the indorser by failure to present the note for payment, and to notify the indorser of'nonpayment; the note being merely a special deposit with the bank, and constructively in the depositor’s possession.</p> <p>3. Same—Estoppel—Opinion of Officers.</p> <p>The fact that the officers of a hank whose cashier had recently absconded, believing the statement of one whose note it held that it was merely a note given at the cashier's request for the accommodation of the bank," expressed an opinion to O. that the note was without consideration, will not estop the bank from showing that there was a consideration, and enforcing the note.</p> <p>4. Same—Use of Collateral. •</p> <p>Nor is the bank est.opped from enforcing the note by reason of the fact that on the statement of G. that the note was without consideration, and that he had no interest in a mortgage in his private envelope in the bank’s vault, executed by the cashier, and purporting to be collateral security to a note of the cashier to O., the bank assumed ownership over it, though, on its being shown that it was G.’s property, he is entitled to a credit for the amount realized by the bank from it.</p> <p>5. Same--Credits.</p> <p>Whore a bank cashier sent money of his to G., to be applied on his note to O., and G., claiming that neither the cashier owed him, nor he the bank, turned the money over to the bank, he should, on its being shown that he owed the bank and the cashier owed him, be allowed credit on his debt to the bank for the amount, with interest from its receipt by the bank.</p>

<p>1. Insurance Company—-Subrogation—Assignment op Cause op Action.</p> <p>On payment by insurance companies of policies on goods destroyed^ in transit they become subrogated pro tanto to the equitable right of action against the railroad, but the full legal title to the cause of action remains in the owner and is not assignable.</p> <p>3. Removal op Causes.</p> <p>Where, in an action against a railroad company for goods destroyed in transit, the insurance companies, which have become subrogated to the equitable rights, are joined with the owner, who has the full legal title, so as to defeat the right of the railroad to a removal of the legal cause of action to the federal court on grounds of diverse citizenship, the federal court will separate the legal cause of action, and will not allow the joinder of parties having only equitable claims to defeat the right of removal.</p>

<p>In Error to tlie Circuit Court of the United States for the District of Minnesota.</p> <p>Action by Thomas C. Power against Roger S. Hunger to recover the amount of a decree rendered against plaintiff in an admiralty suit. Defendant had judgment, and plaintiff brings error.</p> <p>In the month of November, 1879, the firm of G. S. Weaver & Co., which was composed of C. S. Weaver and Roger S. Hunger (the latter of whom is the defendant in error), were in charge of and were operating certain marine ways at Bismarck, in the then territory of Dakota. On tlie 17th day of November, 1879, the firm entered into two contracts with the respective owners of the steamers Butte and Colonel McLeod to haul the said steamers out of the Missouri river, and to furnish room for the same on the marine ways in question, until tlie opening of navigation in the spring of tho year 18S0. In the execution of these contracts, the steamer Butte was first lmnled out of the water, and partially up tlie ways, when work was suspended on her for the time being, and the steamer Colonel McLeod was moved to the foot of the ways for the purpose of being drawn out of the water before ice had formed in the river. While the steamers were in this situation, the Butte slid down the ways, because it was not securely blocked and stayed. It collided with the Colonel McLeod, and caused the latter to sink. Subsequently, in the month of July, 1881, John Baker and others, who were the owners of the steamer Colonel McLeod, filed a libel in personam in the United States district court for the district of Minnesota against Tilomas C. Power, the present plaintiff in error, and also against other persons who were at the date of the collision the owners of the steamer Butte, for the damage that had been sustained by tho sinking of the steamer Colonel McLeod in tlie aforesaid collision. This suit in admiralty eventually resulted in a decree against Thomas C. Power for the sum of $9,572, from which decree he took an axipeal to the United States suxiremo court. While tho latter suit was pending and as yet undetermined, to wit, in the month of August, 1888, Baker and others also brought a suit at common law against C. S. Weaver & Co., in the district court for St. Louis county, in the state of Minnesota, to recover the damages sustained by the aforesaid collision, which latter suit was grounded on the alleged negligence of Weaver & Co. on failing to properly stay and block the steamer Butte while it was resting on the marino ways and was in their charge. The trial of this latter action at common law resulted in a verdict against C. S. Weaver & Co. in the sum of $1,300, which was rendered on the 21 tlx day of August, 1884. Weaver & Oo. obtained a stay of proceedings on this verdict, with leave to die a motion for a now trial, and such motion Cor a new trial had been filed and was pending and undetermined on the 5th day of March, 1885. In the meantime the suit in admiralty against Power and others had been tried and determined, and on the 5th day of March, 1885, that case was pending on appeal from the decree against Power in the supreme court of the United States. In this posture of affairs, and on the 5th day of March, 1885. Roger S. Munger, the defendant in error, for himself and in behalf of the firm of C. S. Weaver & Co-entered into an agreement with Thomas C. Power, the plaintiff in error, which agreement, after reciting substantially all of the facts aforesaid, contained the following stipulations, to wit: “Therefore It is agreed by and between them that said C. S. Weaver and Roger S. Munger shall discharge the stay of proceedings entered in the ease against them, and allow judgment to be entered therein oil the verdict; and, when judgment is so entered, the said Thomas 0. Power shall contribute and pay one-half the amount of said judgment to the said O. S. Weaver and Company, to be by them used in paying said judgment, which they agree to do at once upon receipt of the same from said Power, and cause said judgment against them to be discharged and satisfied of record. And it is further agreed that, immediately upon the judgment against said C. S. Weaver and Company being discharged of record, the said Thomas C. Power shall commence proceedings to liave the said judgment against him discharged and satisfied; and, to accomplish that end, he agrees to exhaust all means known to the law in all courts having jurisdiction, original or appellate, at his own proper costs and expense; and If, after making such efforts (o have said judgment against him satisfied of record, he fails, and is compelled to pay the same, then and in that event 1hc said Roger S. Munger and Charles S. Weaver agree to refund and pay over to him the said amount paid by him and used towards paying the said judgment against said C. >8. Weaver and Company. And, if the said Power shall succeed in getting the said judgment against him satisfied, the money so paid by him towards satisfying the said judgment against C. S. Weaver and Company shall not be refunded or paid to said Power, nor shall the said Power have any claim or demand against them for or on account therefor.” In compliance with the provisions of the foregoing contract, the pending- motion for a new trial which had been filed by Weaver & Co. in the suit against that firm in the state court was withdrawn. Judgment was entered on the verdict therein, and the amount of such judgment was paid into court for the use of the plaintiffs. This judgment was by the state court ordered to bo entered as satisfied on July 20, 1885. Power did not succeed in obtaining a reversal of the decree in the admiralty stilt, but was subsequently compelled to pay the same. The present suit was brought by Thomas O. Power against Roger tí. Munger to recover the full amount of the decree rendered against him in the admiralty suit. The action was brought upon the theory that the firm of Charles S. Weaver & Co. was liable to Power for the damages resulting from the collision, which he had been eomiielled to i>ay to the owners of the steamer Colonel McLeod, because the firm of C. tí. Weaver & Co. became the agents of Power and the other owners of the Butte, by virtue of the contract made to draw the steamer Butte out of the river, and that they were liable to their principals for a negligent performance of that duty. On the trial of the suit in the circuit court, that court appeal's to have held that the contract entered into between Thomas 0. Power and C. S. Weaver & Co. on the 5th day of‘March, 1885, was in effect a release of the liability sought to be enforced in this suit.</p>

<p>Injury to Wipe—Action by Husband—Negligence op Wipe.</p> <p>Notwithstanding the provision of McClain’s Code Iowa, § 3396, that a husband shall not be responsible for civil injuries committed by his wife, and other provisions enabling a wife to hold property, contract, and sue in her own name, a husband, in an action for loss of his wife’s services, occasioned by the negligence of another, will be charged with her contributory negligence.</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by J. E. Blake against the Northern Pacific Railroad Company for injury received by plaintiff as a brakeman. Judgment for plaintiff. Defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>This was an action by the Supreme Council Catholic Knights of America against the Fidelity & Casualty Company of New York on a bond. At the trial the jury found for plaintiff.</p>

This was an action at law by McDonald against the city of Toledo and others to recover damages for personal injuries sustained in driving upon the streets. The city demurred to the petition for want of facts sufficient to constitute a cause of action.

<p>In Error to the Circuit Court of the United States for the Western District of Michigan.</p> <p>This was an action by Ida A. Lawrence and Frank Lawrence, administrators of the estate of Lorenzo J. Bovee, deceased, against William T. Porter, Charles L. Ames, and Abel H. Frost. At the trial the court directed the jury to find for defendants.</p>

<p>1. Municipal Corporations—Operation of Ordinance as Contract—Erection of Telegraph Poles in Street.</p> <p>A city ordinance, authorizing tlio erection of telegraph poles in the streets, required any company erecting poles under its provision to file an agreement permitting the city to use “the top cross arm of any pole erected, or which is now erected,” for telegraph purposes, free of charge. A company which had previously erected its polos in the streets filed the agreement required, and thereafter acquired and erected additional poles, and the city used many of the old and new poles. Held, that the ordinance, so accepted by the company, constituted a contract between the city and the company, which became executed when the city toot the benefit thereof by using the polos; and the subsequent imposition by the city of a certain charge per polo for the use of the streets was a violation of the contract.</p> <p>2. Same—Mutuality of Contract.</p> <p>Such ordinance reserved to the city the right to presen ne any other mode of conducting the wires over or under its thoroughfares. Held, that this did not destroy the mutuality of the contract.</p> <p>3. Same—Rental Value of Use of Streets for Poi.es.</p> <p>A city ordinance required a payment, in the nature of a rental, for the use of its streets by a telegraph company’s poles, of five dollars per pole. Held that, although such ordinance was prima facie reasonable, that was no presumption that the amount of the charge was reasonable; and such sum, being enormously greater than the value of the average adjoining property, was unreasonable to exorbitancy.</p>

<p>1., Towns—Aiding Railroad Construction—Corporate Purposes.</p> <p>Act S. C. 1889 (20 St. 503), authorizing a town to issue bonds in aid of the construction of a railroad, is not in conflict with Const. S. O. art 9, § 8, permitting the legislature to authorize municipal corporations to collect taxes for corporate purposes only.</p> <p>2. Same—Construction of Statute.</p> <p>Act S, C. 1889 (20 St. 503), authorizing a town to issue bonds “in any amount” in aid of the construction of a railroad, will be construed to mean any amount within the constitutional limit of 8 per cent, of the assessed value of its taxable property (Const. S. C. art. 9, § 17), and therefore not in conflict with it.</p> <p>3. Same—Validity of Assessment.</p> <p>In determining whether 'an issue of bonds by a town was in violation of Const. S. C. art. 9, § 17, providing that it shall not exceed 8 per cent, of the assessed value of its taxable property, .the assessment prior thereto will be considered valid, though the assessors did not file a report thereof within 10 days, as directed by the town charter, where it was filed soon after, accepted, and acted on, the taxes being collected thereunder.</p> <p>4. Same—Assessed Value of Property.</p> <p>Property of a manufacturing company, not being within the classes of properly which may be exempted from taxation under Const. S. C. art. 9, § 8, is to be considered in determining the assessed value of the property of a town, within article 9, § 17, prohibiting any issue of bonds by a town in excess of 8 per cent, of the assessed value of its taxable property.</p> <p>5. Same—Issue of Bonds at Par.</p> <p>Where a town agrees to give a certain amount to aid in the construe' tion of a railroad, and such amount is expended in the construction of the road, and the town pays its subscription in its bonds, of the face value of tlie amount of its subscription, it does not violate the provision of Act $. C. 13S9 (20 St. 503), permitting- it to issue bonds in aid of railroad construction,—that no bond shall bo sold for loss than its par value,— though in return it is given stock in the road, of no marketable value.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>Action by William Martindale and Thomas J. Price against the Cresswell Ranch & Cattle Company, Limited, for a breach of contract to deliver cattle. The district court rendered a decree for the plaintiffs. Defendant appeals.</p>

<p>Assignment for Benefit of Creditors — Reservations — Mistake of Assignor.</p> <p>The reservation, by the assignor in a general assignment, to himself, as exempt, by mistake, of property which he does not own or control, does not make the assignment partial, if it in fact conveys, regardless of such reservation, all the property of the debtor not exempt from' execution sale; and the assignee may plead and prove the ownership of the property described in the assignment, to establish this fact, and to-maintain his right to the property assigned.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>Action by Charlotte A. Hamilton against the Kentucky Life & Accident Insurance Company. Judgment for plaintiff. Defendant brings error.</p>

<p>In Error to the Circuit Court of tlie United States for the District of Minnesota.</p> <p>Action by Cornelius Hogan against the Northern Pacific Railroad Company for injuries received in its employment as a brakeman. Judgment for plaintiff. Defendant brings error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>This was an action by Mrs. D. L, Needham and T. B. T. Williams, a minor, by his next friend, said Mrs. Needham, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for the death of D. L. Needham. At the trial the jury found for plaintiffs.</p> <p>For report of the decision on writ of error to review a previous judgment for plaintiffs, reversing that judgment, and granting a new trial, see 3 C. C. A. 129, 52 Fed. 371.</p>

<p>In Error to the Circuit Court of the United States, for the District of Minnesota.</p> <p>This was an action by Clara Mase, administratrix of Frank B. Mase, deceased, against the Northern Pacific Railroad Company, to recover damages for the death of said Frank B. Mase. A trial by jury was waived, and the case was submitted on an agreed statement of facts.</p>

<p>1. Garnishment—Priority—Fraudulent Conveyance.</p> <p>Under Gen. St. Kan. § 4296, authorizing the garnishment of property held under a conveyance void as to creditors, the fact. 1hat after the garnishment of such property by a creditor, another creditor, on behalf of himself and other creditors, has commenced a suit to set aside the conveyance, and for an accounting by the garnishee, docs not affect the right of flic former under his prior garnishment.</p> <p>2. Same—Sufficiency of Findings.</p> <p>In garnishment, findings by the court, a jury being waived, that the garnishee took possession of certain property under a mortgage void as to the creditors of the mortgagor, and purchased the same at the sale thereunder, and converted it to ids own use, and that its value was a certain amount, are suiiicieiii to sustain a judgment against the garnishee for any amount less than the value so found.</p> <p>3. Writ of Error—Rea iew of Findings.</p> <p>Under Itev. St. § 1011. providing that there shall be no reversal on a writ of error for any error in fact, the sufficiency of the evidence to sustain the findings of the court can only be presented for review by a request for a peremptory holding that on the, undisputed facts the finding must he otherwise.</p>

<p>L Patents — Preliminary Injunction — Public Acquiescence — Electric Welding.</p> <p>Where a new art and apparatus, such as that of electric welding, is widely accepted by the scientific world and the public generally as novel and important, and is speedily put in operation, and the machines and rights under the patent are eagerly sought for by manufacturers, thus supplanting to a large extent the older methods,—all with no question as to the validity of the patent, except in the case of the defendant,—this is sufficient evidence of acquiescence to justify the issuance of a preliminary injunction, unless defendant can clearly show that the patent is invalid.</p> <p>8. Same.</p> <p>The Thomson patents, Nos. 347,140 and 347,141, for inventions relating to the art of electric welding, held, valid and infringed, on motion for preliminary injunction, and injunction granted.</p>

This was a bill in equity by Edward P. Paynter and John K. Moore against Thomas Devlin and others, trading as Thomas Devlin & Co., for infringement of a patent. On final hearing.

This was a bill in equity by George Maitland against Alfred 0. Gibson for infringement of certain patents for electric-light fixtures. On final hearing.

This was a libel by B. D. Chandler against the steamship Willamette Valley, of which Charles Clark, receiver of the Oregon Pacific Railway, was claimant. Libelant petitioned for a sale of the ship, pendente lite, on the ground of expense and deterioration in the hands of the marshal.

This was a petition by Edivard M. Paxson and others, receivers of the Philadelphia & Reading Railroad Company, for an injunction against Milford T. .Cunningham, to restrain the prosecution of a libel in admiralty. The circuit court sustained a demurrer to the petition, and a decree dismissing the petition was entered thereon. The petitioners appealed.

Three libels,—one by John Scully, owner of the barges Blackstone and Condor, against the steam tugs Taurus and Kate Jones, etc., to recover damages for injuries to such barges caused by-stranding while in tow by libelees; one by Ihe Boston Steamboat Company against John Scully, owner of the barges Blaekstone and, Condor, for towage; and one by the same libelant against John Scully, owner of the barge Condor, to recover salvage compensation.

<p>On Report of Commissioner. Libel by tbe American Sugar-Refining Company against tbe steamship Euripides for damages to sugar.</p>

<p>Maritime Liens—Advances—By Ship’s Agent.</p> <p>Wlion hankers, acting as agents for a line of steamers in a foreign port, are used to advance tlie steamers sueli moneys as they may need on leaving, and to render an account monthly for such advances and their commissions, and to draw on the steamship company for the amount due, they are giving credit to the company, and have no lien on the ships for their advances.</p>

This was a libel by W. W. De Laño and others against the steamer Alvira, J. R. Rideout and others, claimants, claiming a lien for materials furnished and services rendered to the steamer. Interventions were filed by W. H. Batchelder and others to enforce liens alleged to have accrued for services rendered in navigating the vessel, and for materials furnished and work done in repairing the same.

<p>1. Shipping—Injuries to Stevedore— Unsafe Decks.</p> <p>A laboring stevedore,' being’ ordered into the forward hold of a steamship to stow cargo, in passing down the forward hatch got off on the orlop deck, immediately above the hold, and, going forward about twelve feet in the dark to strip, and leave his clothes, stepped into an unguarded hole four to six feet long and four to six inches wide, and was injured. It is the custom of such workmen to leave their clothes on the deck above which they work. JTel>i that, in view of the custom, it was the duty of the steamship to keep the deck in a safe condition, and, the hole being an unusual one in such ships, she was liable for the injury.</p> <p>• 3. Same—Contributory Negligence.</p> <p>The stevedore was not guilty of contributory negligence, for he had a right to assume that the deck was safe, and was not bound to get a light, or to wait until his eyes became accustomed to the darkness.</p>

<p>Coi.lisiox—Sail Vessels—Right of Way—Lookout—Luff ix Extrf.mis.</p> <p>Tlio night was moonlight; the wind, N.' N. W. The bark R., deeply laden, headed east, and ilie schooner S., sailing light, headed each a point free of the wind, and making iiye to six knots, were approaching one another. Each had seen the other’s sails two miles off on the lee bow. The bark’s pilot could not see ahead, and 1he watch noticed no more of the schooner until her red light was close aboard, though It must hare been steadily visible for five to seven minutes. There was evidence that the officer of the watch was busy with other things. Both vessels then ported hard, and the schooner luffed two points, and received a glancing blow. Held, that since the bark was on the port tack, with a free wind, it was her duty to keep out of the way, and that she had failed in this by reason of neglect to keep a proper, continuous lookout</p>

<p>1. Collision—Sailing Vessels—Holding Course—Lookouts.</p> <p>A vessel sailing free is bound to keep out of the way of one sailing dose-hauled, and if she fails to change her course, or, after changing it, fails, through the inexcusable absence of her lookout, to maintain it steadily, and thus causes a collision, she is liable.</p> <p>8. Same—Absence on Light.</p> <p>The alleged absence of a green light is immaterial, when, from the situation, its presence could not have averted, or its absence contributed to, the collision.</p>

<p>This was a libel by Henry T. Graddick against the steam tug Relief to recover damages for a collision with the sloop Shamrock.</p>

Libel by Mary Killien, administratrix of Martin Killien, against the owhers of two vessels, alleging negligent collision by which intestate lost his life.

This was an action by George W. Fergason against the Chicago, Milwaukee & St. Paul Railway Company, John Smith, and D. W. Pollard for personal injuries. Plaintiff moved to remand the case to the state court, where it originated.

<p>1. Appeal—Assignments of Error—Time of Filing—Extension of Time.</p> <p>Assignments of error not filed in the trial court by plaintiff in error or appellant at the time he files his petition for writ of error or appeal, as required by rule 11 of the circuit court of appeals, will not be considered on appeal, though the trial court, at the time such petition is filed and the writ or appeal is allowed, grants additional time for filing assignments of error, and they are filed within the time granted.</p> <p>2. Same—Review.</p> <p>Questions of law depending on facts which have not been certified in a bill of exceptions will not be disposed of in this court.</p>

<p>Appeal from the District Court of the United States for the District of Maryland.</p> <p>This was a petition on behalf of the steamship Dago to rescind a decree reversing a decree of a district court dismissing a libel by the United States against the vessel. 61 Fed. 986. The libel was filed to enforce a forfeiture, under the act of February 15, 1893, for entering a port of the United States without having obtained a bill of health from the consul, vice consul, or other consular officer of the United States at the port of departure, as required by section 2 of the act.</p> <p>The petition was as follows:</p> <p>The petition of the steamship Dago and William Scroggie, her master, humbly shows unto your honors that by the third section of the Acts of Congress of 1893 (chapter 114),—the act construed in the opinion of this cause,—it is provided: “None of the penalties herein imposed shall attach to any vessel or owner, or the officer thereof, until a copy of this act with the rules and regulations made in pursuance thereof, has been posted up in the office of the consul or other consular officer of the United States for ten days in the xiort from which said vessel sailed; and the certificate of such consul or consular officer over his official signature, shall be competent evidence of such posting in any court of the United States.” By the Revised Statutes of the United States (section 1674), the following definitions are given: “Consul general, consul and commercial agent, shall be deemed to denote full, principal and permanent consular officers, as distinguished from subordinates and substitutes. * * * Consular officers shall be deemed to include consuls general, consuls, commercial agents, deputy consuls, vice consuls, vice commercial agents and consular agents and none others.” The certificate of posting of the act of February 15, 1893, and the regulations of the treasury department, was made February 24, 1893, and signed by “Gerald Moseley, Acting U. S. Consul for Bristol” (Record, 7). The signer, according to his signature, was not a full, principal, and permanent consular officer, as distinguished from-a subordinate and a substitute, which is defined to be (lie meaning of the word “consul” by section 1674. Hence, his certificate of the posting was not such a posting as is contemplated by the act now under construction. Hence, there is no proof of the posting, and none of the penalties of the act can be visited on the Dasto under section 3, supra. The provision which allows a certificate of the doing of some act as evidence in a criminal proceeding ma.y perhaps be of doubtful constitutional validity, as every man is entitled to be confronted with the witnesses who testify to the facts which are necessary to make out a criminal charge against him, but certainly no latitudinarian construction can be permitted to supplement or cite out the inadmissible proof offered. “Statutes Prescribing Forms of Proceeding or Modes of Proof. In regard to these the maxim holds good, 'Non obsérvala forma, inferior adnullatio actus.’ In these cases the iiroof or procedure required by law is rigidly exacted, the restriction rigidly insisted, without regard to the facts or the hardship of the case, and litis with abundant reason, for it is the evident intention of these statutes to prescribe fixed forms or rules to guard against certain abuses likely to occur from the absence of an arbitrary and peremptory provision.” Kedg. St. Const. 275, 27(5. It is therefore submitted that there is no proof in the record of a posting of the law as is required by se.ction 55 of the act, and that, therefore, the steamship cannot be visited with any of the penalties mentioned in the act. The appellee therefore respectfully moves the court to rescind the decree heretofore passed, and t.o affirm the decree of the district court, because of the insufficiency of Ute proof upon the point mentioned.</p>

This was an action in equity by Hermann Duden against Michael Francis Maloy for an accounting of the partnership affairs of the firm of Duden & Co. There was: a decree in favor of complainant, and defendant appeals.

This was a bill by the Edinburgh American Land Mortgage Company, Limited, against Patrick Bogan, to compel defendant to convey certain land to complainant. There was a decree for complainant, and defendant appeals.

<p>1. Conflict of Laws—Limiting Liability of Carriers.</p> <p>St. Ill. March 27, 1874, provides that, whenever any property is received by a carrier to be transported from one place to another within or without the state, the carrier cannot limit his common-law liability safely to deliver such property by any stipulation in the receipt given for such property. Held, not to affect a contract made in Tennessee for the through shipment of cotton to Massachusetts, although the charter of the carrier so contracting was granted in Illinois.</p> <p>3. Carriers—Limiting Liability.</p> <p>A carrier cannot limit his common-law liability to the extent of exemption from loss of goods intrusted to him for transportation, and injured or destroyed through his own negligence.</p> <p>8. Same—Negligence—Loss of Freight.</p> <p>When cotton is delivered to a carrier for shipment, and, after transportation for part of the distance, is left on a barge, constantly exposed to fire from boats and engines, for 18 days, the delay and exposure constitute such negligence as to render the carrier liable for tbe loss.</p> <p>4. Same—Delay in Transportation.</p> <p>A carrier is bound to know, when he accepts property for shipment, that he has or can obtain facilities for its transportation within a reasonable time.</p> <p>5. Same—Rebate to Shipper.</p> <p>Where the evidence was conflicting as to whether money paid by tbe carrier to the shipper -was the consideration for the assumption by the shipper of all risk by fire or a rebate to obtain tbe shipment, the presumption that it was for the customary rebate controls.</p>

<p>Appeal from the Circuit Court of the United States for the Southern .District of Iowa.</p> <p>In Equity. Bill by James II. Walker, Columbus B. Cummings, and William B. Howard against Anna L. Brown, Willis S. Brown, and Edward L. Marsh, administrators of the estate of Tallmadge E. Brown, deceased.</p> <p>This is a bill which was preferred by the appellants, composing the firm of James H. Walker & Go., of the city of Chicago, against the appellees, as administratrix a.nd administrators, respectively, of the estate of Tallmadge E. Brown, deceased, to enforce an alleged equitable lien upon certain bonds of the city of Memphis, Tenn., aggregating in amount the sum of $15,000. The bill charged that prior to May 9, 1889, the deceased, Tallmadge E. Brown, was a stockholder of the Lloyd Mercantile Company, he having theretofore transferred the bonds now in controversy to said corporation in payment for stock therein by him purchased; that on the 1st day of August, 1889, Brown became anxious to withdraw his capital from the Lloyd Mercantile Company, whereupon a qiartnershij) was formed by .1. Collins Lloyd and Copley Lloyd, under the name of Lloyd & Go., which hitter firm bought all of the assets of the Lloyd Mercantile Company, except the Memphis bonds aforesaid, which were at that time surrendered to said Brown, and also assumed to pay all of its debts, including a debt in the sum of $ 1,521, which was then due from the Lloyd Mercantile Company to the appellants. The bill further charged: That on the 20th day of September, 1889, the firm of Lloyd & Co. applied to the firm of ilames H. Walker & Co. to make a purchase of merchandise on credit, whereupon said Tallmadge B. Brown, for the purpose of inducing the appellants to extend such credit, executed the following agreement, in the form of a letter, to wit: „</p> <p>“Chicago, September 21, 1889.</p> <p>“Messrs. James H. Walker & Co., Chicago, 111.—Gentlemen: I beg to advise you that the loan of fifteen thousand dollars, Memphis bonds, made by me to Mr. J. C. Lloyd for the use of Messrs. Lloyd and Company, Ellensburg, Wash. Ter., is with the understanding that any indebtedness they may bo owing you at any time shall be paid before the return to me of these bonds, or the value thereof,, or that these bonds, or the value thereof, are at the risk of the business of Lloyd and Company, so far as any claim you may have against said Lloyd and Company is concerned.</p> <p>“Yours, truly, T. E. Brown.”</p> <p>That, in reliance on the agreement evidenced by the aforesaid letter, Walker & Co. thereafter extended credit to Lloyd & Co. in the sum of about $13,000, between August 20 and December 11, 1889. The bill further alleged in substance that Lloyd & Co. failed on December 25,'1889, owing Walker & Co. at the time about $13,000, no part of which has yet been paid; that prior to said failure Lloyd & Co. surrendered and returned to said Brown, without consideration, the Memphis bonds aforesaid; and that on the death of Brown, in the month of May, .1891, they passed into the custody of his administrators, as assets of his estate.</p> <p>The answer of the defendants denied, among other things, that Tallmadge E. Brown, in his lifetime, was a stockholder of the Lloyd Mercantile Company, or that he had transferred the Memphis bonds in question to that corporation in payment for stock, as was alleged in the hill, or that he was in any wise responsible for any of the debts of the mercantile company when it ceased to do business, and when the firm of Lloyd & Co. was formed. It averred in substance that prior to the 9th day oí May, 1889, Brown loaned the bonds now in controversy to the Lloyd Mercantile Company to enable it to raise money, and that said compans', prior to May 9, 1S89, pledged said bonds to secure a debt which it then owed in the city of Chicago; that the bonds remained pledged to secure said indebtedness of the mercantile company on the 21st day of September, 1889, when the aforesaid letter was written by Brown to .James H. Walker & Co.; that Lloyd & Co. failed to pay this indebtedness when they were called upon to pay it, and that Brown paid the same in the month of November. 18S9, and received said bonds from the pledgee: and that he after-wards, before his death, made a valid gift and delivery of the bonds to his wife, Anna L. Brown, one of the appellees, who was the owner of the same in her own right when the hill was filed. On the filing of the answer, which disclosed the fact that Anna L. Brown had become the owner of the bonds by a gift made in the lifetime of her husband, the appellants amended» their bill of complaint by making the said Anna L. Brown a defendant in her own right.</p> <p>The circuit court appears to have dismissed the appellants’ hill of complaint upon the ground that the aforesaid agreement of September 21, 1889, did not create an equitable lien upon the bonds, and that no other matters were stated in the hill or proven on the trial which rendered the case one of equitable cognizance. Vide Walker v. Brown, 58 Fed. 23.</p>

<p>Action by the president and trustees of the Bowdoin College, and others, against James I\ Merritt, Frederick A. Merritt, and others, to remove a cloud from title. A demurrer to the bill was overruled (54 Fed. 55), and the cause was then heard on application to file a supplemental bill, and for an injunction.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Suit by Louis H. Bristol and others against William W. Scranton and another, for an accounting. Prom a decree for defendants (57 Ped. 70), plaintiffs appeal.</p>

This was a bill by W. S. O’B. Robinson, receiver of the First National Bank of Wilmington, N. C., against B. F. Hall, James Sprunt, D. G. Worth, G. Herbert Smith, and James H. Chadbourn, directors of said bank, to charge them with personal liability for certain losses caused by their negligence. A demurrer to the bill was sustained. Complainant appeals.

<p>Error to the Circuit Court of the United States for the Western District of North Carolina.</p> <p>This was an action by J. S. Finley against the Bichmond & Dan-ville Bailroad Company to recover damages for personal injuries. There was a verdict and judgment for plaintiff, and defendant brings error.</p> <p>This case comes up by writ of error to the circuit court of the United States for the western district of Xorth Carolina. The action is for damages against a railroad corporation for injuries sustained by its employii from one of its trains. The plaintiff was a brakeman on the train which injured him. Upon entering his employment as brakeman, he signed the following statement and contract, in the presence of a witness:</p> <p>“Richmond and Danville Railroad Oo., W. X. C. Division.</p> <p>“October 2(5tli, 1889.</p> <p>“I fully understand that the rules of the Richmond and Danville Railroad Company positively prohibit brakemen from coupling or uncoupling cars except with a stick,, and that brakemen or others must not gO' between the ears under any circumstances for the purpose of coupling or uncoupling, or for adjusting pins, etc., when an engine is attached to such cars or train; and, in consideration of being employed by the said company, I hereby agree to be bound by said rule, and waive all or any liability of said company to me for any results of disobedience or infraction thereof. I hat e read the above carefully, and fully understand it.”</p> <p>A paper to this effect must be signed by every one entering the service of this company as brakeman, fireman, switchman, or flagman, before ho is allowed to enter on his service. On 14th May, 1890, the train to which plaintiff was attached was employed at Asheville, N. 0., in taking out cars loaded with coal from the yard, and putting them on a coal shute. The regular conductor of the train was absent. He had appointed another, however, in liis stead. At the time of the accident, this substitute was at the coal shute, about one-fourth of a mile from the train, which was in the yard. With the train were the engineer and two train hands, the plaintiff and one Lyerly, and the tire-man. The work on which they were engaged was this: The engine and tender would take the loaded cars one by one up the shute, discharge cargo, and come back for another load. From the testimony in the record there is some doubt who was in charge of the train when it would return to the yard for a loaded car. The learned judge who tried the case below left that question to the jury, and, as they found for the plaintiff, we will assume that the engineer was in charge of the train during the temporary absence of the conductor’s substitute. The brake of the driving wheel of the locomotive was not in order; but the locomotive was supplied with other brakes. The brake on the driving wheel is not. in universal use. The train having been returned to the yard for another loaded car, the plaintiff told the engineer that the link of the car was bent down so much that he could not get it up with a stick. He told him to raise it with his hand, and turn the link over. While he was doing this, the cars came together, and mashed his fingers, making amputation necessary. For this he brought his action.</p>

Action by Thompson Bros, against Beckwith & Quaekenbush for work done and breach of contract. Judgment for plaintiffs. Defendants bring error. Beckwith & Quaekenbush wore under contract with the Norfolk & Western Bailroad Company for doing the grading and masonry on 30 miles of the Ohio extension of said company’s railroad.

<p>1. Libel—What Constitutes—Question for Jury.</p> <p>Defendant published a dispatch reading: “Missing Millionaire [plaintiff] Located. * * * [Plaintiff], Southern Ohio manager of the Standard Oil Con.pany until six months ago, when he strangely disappeared, has been located living in luxury” in Canada. Held that, since some of our countrymen who reside in Canada are fugitives from justice, of which courts may take judicial notice, whether the dispatch was libelous was a question for th.e jury. McDonald v. Press Pub. Co., 55 Fed. 264, affirmed.</p> <p>3. Same—Evidence—Plaintiff’s Social Standing.</p> <p>In a piidl action for libel, plaintiff’s general social standing may be shown in the evidence in chief, as bearing on the question of damages.</p> <p>8. Same—Punitory Damages.</p> <p>Where defendant imblished an out of town dispatch, which was rendered libelous by an error in transmission, without having the same repeated to insure accuracy, punitory damages are justified on the ground of a wanton disregard of the rights of others, though repeating the dispatch would have involved extra expense and loss of time.</p> <p>4. Same—Trial—Reading to Jury Opinion of Another Judge.</p> <p>In an action for libel, where the question as to whether the article was libelous is for the jury, permitting counsel to read to the jury from the decision of another judge in overruling a demurrer to the complaint, wherein the opinion is expressed that “the first impression on reading- a paragraph like this would be that the person referred to had been guilty of some breach of trust,” is error.</p>

<p>Execution—Property Subject to Levy—Patents—Insolvent Corporation. Under the special execution process (fieri facias) against an insolvent corporation authorized by the Pennsylvania act of April 7,1870, the sheriff can make a valid sale of a patent right belonging to the corporation.</p>

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p> <p>Application of Samuel H. Hart for discharge under writ of habeas corpus. Writ denied (59 Fed. 894), and .petitioner appeals.</p>

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p> <p>Application of Frank A. Dimanare for discharge under writ of habeas corpus. Writ denied, and petitioner appeals.</p>

<p>A judgment was rendered by a United States commissioner for the deportation of Chung Fung Sun and Chin Kong Pock to the empire of China, and they appeal.</p>

<p>Í. Immigration — Contract Laborer—’“Personal or Domestic Servant” — What Constitutes—'Undercoaciiman.</p> <p>An “undereoacliman,” whose duties are, partly, to assist in keeping-stables, horses, and carriages in good order, but principally to drive the horses when his employer or any of his family go out in carriages, and to accompany on horseback the younger members of the family when they go out on horseback, and who boards with his employer’s coachman, and sleeps in a room over the coach house, is a “personal or domestic servant,” within the meaning of St. 1885, c. 164, prohibiting the immigration of aliens under contracts for labor, and providing that the provisions of the act shall not apply to “persons employed strictly as personal or domestic servants.”</p> <p>S. Same—Prohibited Person—Decision ok Secretary ok tiie Treasury— When Conclusive.</p> <p>Under St. 1888, c. 1210 (amending St. 1883, c. 1G4, as amended by St. 1887, c. 220), which authorizes the secretary of the treasury, “in case he shall bo satisfied” that an immigrant “has” landed contrary to the prohibition of St. 1885, c. 161, as amended, to cause him, within a year after landing, to bo taken into custody and deported, the determination of the secretary of the treasury as to whether or not the immigrant is a prohibited person is conclusive, and will uot be reviewed by the courts.</p>

<p>Actions by Josephine W. Wupperman, Clifford E. Middleton and others, Manuel Cadenas and ano (her, and William Gillespie and others against the steamship Carib Prince for damages to merchandise.</p>

<p>L Witnesses—Improper Influences—Threats of Criminal Prosecution.</p> <p>The conduct of claimant’s agent, in causing it co be made known to a witness who had given damaging testimony that he was in danger of prosecution for a criminal offense, whereby the. witness was moved to offer himself as a witness for claimant, and thereupon gave a deposition contradicting many of his previous statements, strongly disapproved by the court, and considered to cast a doubt upon the testimony of another, witness produced from the same source.</p> <p>2. Towage—Loss of Tow in Storm.</p> <p>Tug held in fault for taking barges out of the protection of the Delaware breakwater, and starting on a voyage to Boston, in the face of strong indications of an approaching storm, contrary to the Judgment of other tugboat captains in the breakwater at the time, and for refusing to turn back until it became impossible to proceed, and until one of the barges had sprung a leak, from which she sank.</p>

<p>Appeal from the District Court of the United States for the District of Maryland.</p> <p>This was a libel by the American Towing & Lightering Company against the barge Alfred J. Murray, in which Edward Tunison and Eichard Eoser, material'men, intervened, and claimed liens. There was a judgment for libelants and inteiweners, and Engle & Co., claimants of the barge, appeal.</p>

This was a libel by Anson W. Hard and George C. Rand against the steamer Enchantress to recover for short delivery of coffee. The district court dismissed the libel (58 Fed. 910), and libelants appealed.

<p>1. Towage—Taking Leaking Tow into Post of Safety.</p> <p>A propeller, towing a barge on Lake Erie in heavy weather at the request of the barge, which was leaking badly, changed her course to Cleveland,—the nearest port On arriving at the breakwater, finding no tug to take the barge, as was customary, the propeller signaled for a tug. and stood out into the lake until one came. If she had carried her tow inside,, the length and draught of the propeller would have compelled her to keep the narrow channel. Nothing in the contract of towage required her to take the barge to a dock, and there was no apparent peril in waiting for a tug. J/VW. that the propeller was not in fault for failing to tow the barge inside the breakwater on their arrival.</p> <p>2. Same.</p> <p>A tug having come alongside (lie barge, it was agreed between them that the propeller should tow the barge in, the tug to follow and help as far as necessary or possible, and to take the barge as soon as she was. towed inside the breakwater. The propeller headed for the entrance, but the barge, after getting substantially in line behind her, took a sudden, heavy sheer towards the east breakwater. The propeller pulled strongly towards the west breakwater, until she was about a boat’s length from it, without breaking the sheer of the barge, and then let go the towline to avoid pulling her on the east breakwater. The barge put down her anchor, and the tug made ineffectual efforts to get a line to her, but she drifted across the entrance, and went to pieces on the west breakwater. Sold, that the propeller was not in fault for casting off the line, in the emergency then existing.</p>

This was a libel by ,B. Frank Aeally and others, owners of the schooner John Holland, against the steamship Michigan, for collision. There was a judgment for libelee (63 Fed. 295), and libel-ants appeal. On the 10th June, 1893, at about 3:35 in the morning, the four-masted schooner John Holland and the British steamer Michigan were in collision, about nine miles eastward of Gape Henry, Va., in the Atlantic ocean.

This was a libel by Henry Wineman, Jr., against the steamer the Iron Chief (the Detroit Transportation Company, claimant), for damages by collision to libelant’s schooner the J. E. Card.

<p>For opinion on appeal, see 63 Fed. 280.</p>

<p>In Admiralty. Libel by Robert W. Workman against (lie mayor and aldermen of the city of New York, the fire department of said city, and Janies A. Gallagher, for damages caused by a collision.</p>

Suit by George Shannon and others against Temaye Cornells, judge, and others, to declare a judgment void. Decree for.plaintiffs. Defendants appeal.

<p>Jurisdiction—Disbarment in State Courts.</p> <p>A federal court has no jurisdiction of an action for damages for conspiracy to disbar an attorney from practice in state courts, his right to practice in federal courts not being affected thereby, though the disbarment was for statements made in a federal court.</p>

<p>1. Railroad Employes—Quitting Service without Cause—Liabilities.</p> <p>If an employe of a railroad company quits without cause, and in violation of an exxiress contract to serve for a stated time, then his quitting would not be of right, and he would be liable for any damages resulting from a breach of his agreement, and, perhaps, in some states of case, to criminal prosecution for loss of life or limb by passengers or others, directly resulting from his abandoning his post at a time when care and watchfulness was required upon his part in the discharge of a duty he had undertaken to perform.</p> <p>,2. Same—Involuntary Servitude.</p> <p>It would be an invasion of one’s natural liberty to compel him to work for, or to remain in the personal service of, another. One who is placed under such restraint is in a condition of involuntary servitude,—a condition which the supreme law of the land declares shall not exist within the United States, or in any place subject to their jurisdiction.</p> <p>3. Same—Contract of Employment—Remedies for Breach.</p> <p>The rule, we think, is without exception that equity will not compel the actual, affirmative performance by an employe of merely personal services, any more than it will cofnpel an employer to retain in his personal service one who, no matter for what cause, is not acceptable to him for service of that character. The right of an employe, engaged to perform personal service, to quit that service, rests upon the same basis as the right of his employer to discharge him from further personal service. If the quitting in the one case, or the discharging in the other, is in violation of the contract between the parties, the one injured by the breach has his action for damages; and a court of equity will not, indirectly or negatively, by means of an injunction restraining the violation of the contract, compel the affirmative performance from day to day, or the affirmative acceptance, of merely personal services. Relief of that character has always been regarded as impracticable.</p> <p>4. Same.</p> <p>Undoubtedly, the simultaneous cessation of work by any considerable number of the employes of a railroad corporation without previous notice will have an injurious effect, and for a time inconvenience the public. But these evils, great as they are, and although arising in many cases from the inconsiderate conduct of employes and employers, both equally indiiferent to the general welfare, are to be met and remedied by legislation restraining alike employes and employers, so far as necessary adequately to guard the rights of the public as involved in the existence, maintenance, and safe management of public highways. In the absence of legislation to the contrary, the right of one in the service of a quasi public corporation to withdraw therefrom at such time as he sees fit, and the right of the managers of such a corporation to discharge an employs from service whenever they see fit, must be deemed so far absolute that no court of equity will compel him, against his will, to remain in such service or actually to perform the personal acts required in such employments, or compel such managers, against their will, to keep a particular employe in their service.</p> <p>5. Same—Equity Jurisdiction—Performance of Contract.</p> <p>The fiict that employes of railroads may quit under circumstances that would show bad faith upon their part, or a reckless disregard of their contract or of the convenience and interests of both employer and the public, does not justify a departure from the general rule that equity will not compel the actual, affirmative performance of merely personal services, or (which is the same thing) require employes, against their will, to remain in the personal service of their employer.</p> <p>6. Kait/road Employes—Quitting Service of Kkoktver.</p> <p>Those employés having taken service first with the company, and after-wards with the receivers, under a general contract of employment which did not limit the exercise of the right to quit the service, their peaceable co-operation, as the result of friendly argument, persuasion, or conference among themselves, in asserting the right of each and all to refuse further service under a schedule of reduced wages, would not have been illegal or criminal, although they may have so acted in the firm belief and expectation that a simultaneous quitting" without notice would temporarily inconvenience the receivers and the public. If in good faith, and peaceably, they exercise iheir light of quitting the service, intending thereby only to better their condition by securing such wages as they deem just, but not to injure or interfere with the free action of others, they cannot be legally charged with any loss to the trust property resulting from their cessation of work in consequence of the refusal of the receivers to accede to the terms upon which they were willing to remain in the service. Such a loss, under the circumstances stated, would be incidental to the situation, and could not be attributed to employés exercising their lawful rights in orderly ways, or to the receivers when, in good faith and in fidelity to Iheir trust, they declare a reduction of wages, and thereby cause dissatisfaction among employés, and their withdrawal from service.</p> <p>7. Conspiracy—When Illegal.</p> <p>According to the principles of the common law, a conspiracy upon the part of two or more persons, with the intent, by their combined power, to wrong- others or to prejudice the rights of the public, is in itself illegal, although nothing be actually done in execution of such conspiracy. This is fundamental in our jurisprudence. So, a combination or conspiracy to procure an employe» or body of employés to quit service in violation of the contract of service would be unlawful, and ill a proper case; might bo enjoined, if the injury threatened would be irremediable at law.</p> <p>8. Same.</p> <p>An inient, upon the part of a single person, to injure the rights of others or of the public, is not in itself a wrong- of which the law will take cognizance, unless some injurious act be clone in execution of the unlawful intent; but a combination of two or more persons with such an intent, and under circumstances iliat give them, when so combined, a power to do an injury they would not possess as individuals acting singly, has always been recognized as in itself wrongful and illegal.</p> <p>9. Unlawful Combination of Employes.</p> <p>It seems entirely clear, upon authority, that any combination or conspiracy upon the part of these employés would be illegal which has for its object to cripple tile property in the hands of the receivers, and to embarrass the operation of the railroads under their management, either by disabling or rendering unfit for use engines, cars, or other property in their hands,-or by interfering with their possession, or by actually obstructing their control a.nd management of the properly, or by using force, intimidation, threats, or other wrongful methods against the receivers or their agents, or against employés remaining in their service, or by using like methods to cause employés to quit, or prevent or deter others from entering the service in place of those leaving it.</p> <p>10. Same.</p> <p>The act of congress of June 29, 1880, legalizing the incorporation of national trade unions (21 Stat. 86, c. 567), does not sanction illegal combinations.</p> <p>11. Strike—When Illegal.</p> <p>In the absence of evidence, it cannot be held, as a matter of law, that a combination among employés, having for its object their orderly withdrawal in large numbers, or in a body, from the service of their employers, on account simply of a reduction in their wages, is not a “strike,” within the meaning of that word as commonly used. Such a withdrawal, although amounting to a strike, is not illegal or criminal.</p> <p>12. Same—Interference by Equity.</p> <p>Circumstances stated under wliicla a court of equity may interfere to prevent strikes or illegal interference with property.</p>

<p>Bes Judtcata—Identity of Issues.</p> <p>Where, in a suit to set aside a sale of lands as in fraud of the rights of complainants therein, who claim the land under a prior contract of purchase, a state court decides that they have lost all rights under their contract, and hence cannot attack the sale, such decision is conclusive of complainants’ rights in a subsequent suit by them in a federal court against the same defendants to recover, on the strength' of the same contract of purchase, the profits made by the vendee in the fraudulent sale on a resale of the land.</p>

<p>1. Boundary—County Iunis--Evidence.</p> <p>Acts Yn. 1845, pp. 37, 38, provide! that the surveyors of the counties out of which any new county shall be formed, together with the surveyor of such new county, shall act as commissioners for running and marking ilie boundary lines designated in the act creating such county; that said lines, when so run and marked, shall be the dividing lines between such counties; that the commissioners shall report their doings, accompanied by a plat showing courses, distances, streams, etc., to the county court of each county interested therein; and that such “plat” shall he “conclusive evidence in all controversies” which may arise touching said lines. Held, that a plat made pursuant to such statute of ilie line between Mercer county, on one side, and Giles and Tazewell counties, Ya., on the other, and which is now part of the line between the states of Virginia and West Virginia, is in all cases conclusive evidence of the location of such line, however crooked or erroneous ii may be. and of the location, with regañí to such line, of a natural object shown by such plat.</p> <p>3. Courts—Jr itrsmoTioN—Residen»'!-; of IJkfkndants—Process.</p> <p>In an action in Virginia against a corporation of West Virginia, and other nonresidents, to enjoin the diversion of waters of a stream, it appeared that defendants were laying pipes and constructing waterworks on ground most of which plaintiff conceded, and all of which defendants claimed, to be in West Virginia; and that process was served on defendants on a few feet only of such ground which plaintiff claimed to be in Virginia. Held, that the court would hesitate to violate the privilege a citizen has of being sued in the jurisdiction of his residence, and wotild earnestly scrutinize the steps taken in the institution of an action against a defendant unwittingly in its jurisdiction.</p>

This was a suit in equity by the International Trust Company against the Cartersville Improvement, Gas & Water Company, to foreclose a mortgage. The city of Cartersville was afterwards made a party, by amendments, and it demurred to the amended or supplemental bill.

<p>Corporations—Officers—Kaii.uoad Bo.vds— Pledoe.</p> <p>A railroad company, being the owner of 247 'bonds of another company, pledged 125 of them to cross complainants, ¡VI. 1*. Ayers & Co. At or before that time the president of the company pledged the remaining 122 bonds to a syndicate, composed of himself, two of the cross complainants, and others, for a debt due by the company; and this with tlie knowledge of the cross complainants. Having subsequently acquired the interests of his associates in the syndicate, the president undertook to take title absolute to the bonds by crediting a certain amount upon the debt of the railroad company. Held, that the transaction was a.t most voidable at the suit of the railroad company, its shareholders or creditors, and could not be attacked by the pledgee of the other bonds.</p>

<p>Municipal Corporations—Execution of Contracts—Orre Comptroller.</p> <p>In that chapter of a city charier which defined the powers and duties of the city comptroller it uas provided that; he should “countersign all contracts made with the city, if the necessary funds shall have been provided to pay the liability that may bo incurred against the city under such contracts, and no such contract shall he valid until so countersigned;” while the chapter defining the powers and duties of the hoard of public works declared that “all contracts shall be signed by the mayor and clerk, unless o-tlierwise provided by resolution or ordinance, provided, however, that no contract, shall be executed on the part of the city until the c-ity comptroller shall have executed the same and made an indorsement thereon showing that sufficient funds are in the city treasury, or that provision has been made to pay the liability that may accrue under such contract.” ,Held, that a contrata of the city, imposing pecuniary obligation payable out of lite revenue of the current year, not countersigned by the comptroller, was invalid, although the. contract, was made by another department of the city government, than the board of public works.</p>

This was a bill by the Wachusett National Bank, filed in proceedings for the appointment of a receiver of the Sioux City Stove Works, in which E. H. Hubbard, assignee for benefit of creditors of the Union Loan & Trust Company, Avas appointed such receiver, to settle priority of liens, and attacking the validity of certain chattel mortgages executed by the stove works to the trust company.

<p>1. Negotiable Instruments—Plea—Ultra Vires—Corporations.</p> <p>In an action upon a note payable to an insurance company, a plea that the taking of such a note was an ultra vires act is not good.</p> <p>2. Same—Paroi, Evidence to Vary’ Note.</p> <p>Oral evidence is not admissible to show that a note absolute in its terms is payable o-nly out of a particular fund.</p> <p>3. Same— Evidence—Letter.</p> <p>A note by which the maker agreed to pay a certain sum of money, and to allow certain commissions accruing to him to be retained by the payee on account of the note, was sent by rhe payee to ihe maker for signature in a letter in which the payee wrote that the note, “as you will see, we have made payable from your commissions.” Meld, that the letter merely called attention to the provisions of the note, and did not make it payable-only out. of the commissions.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Assumpsit by Harriet A. Wilson against William. A. Hreyfogle. Defendant obtained judgment. Plaintiff brings error.</p> <p>The plaintiff in error, the wife of William G. AVilson, sued in assumpsit to recover damages for the failure of the defendant to convey to hor by good and sufficient title 30,000 acres of laud in Tennessee. The plaintiff and her husband were possessed of certain real estate in Cook county, 111., known as the ■‘Grand Grossing Property,” which they agreed to convey io the defendant, at the price of 8200,000, receiving in payment therefor, to tiie husband, $2(),u()0 in cash; 8105,000 in deferred payments, secured by mortgage upon the property to be conveyed; the balance, $75,000, to S><> paid by the conveyance by good and sufficient title to the plaintiff of 30,000 acres of land in (’umbei-land county, Tenn., of which it is charged the defendant represented him self to bo the owner.</p> <p>The defendant iileaded the general issue and three special "pleas: (1) The statute of frauds; (2) a conteyance by warranty deed to the plaintiff by the Cumberland Lumber As Transportation Company of the Tennessee lands described, dated October 21, 1SSÍ), accepted and received by the plaintiff in full performance of the agreement; (3) an oral agreement to convey as stated, except that the Tennessee lands should be conveyed by the Cumberland Lumber & Transportation Company by warranty deed, and the defendant and wife should execute and deliver a quitclaim deed, and alleging performance by the defendant, and acceptance by the plaintiff of the deeds. To these pleas there were replications, upon which the defendant joined issue. The cause was tried before the court without, a. jury. The evidence disclosed that the partías met at Chicago on August 15, 1889, to consummate the arrangement. The plaintiff and her husband executed and delivered to the defendant a deed of the Grand Crossing proper!j, which was accepted, and he in turn made tiie cash payment, and executed the mortgage upon that property to the satisfaction of Air. and Airs. Wilson. It is charged that he faffed to convey to the plaintiff the 50,000 acres of Tennessee laud by good and sufficient title, as agreed. The defendant at the time produced a warranty deed of the laiids executed by the Cumberland Lumber & Transportation Company, which contained an error in the description, which error was, at ihe request of the plaintiff, subsequently recúüed, and the deed sent to ihe plaintiff, and by her sent for record. There was also produced a quitclaim deed from the defendant and his wife, which was not at the time handed over to the plaintiff because of a want of, or a defective, acknowledgment, which was subsequently supplied, and the deed sent to the plaintiff.</p> <p>The case below turned largely upon the question whether and under what cireumstanees the deeds of the Tennessee lands had been accepted by tiie plaintiff as a. fnliillment of the contract. It appeared that certain papers for which the defendant had sent to assure Mr. Wilson of the title to the land had not reached him. Mr. Wilson thus states the occurrence: “He [Breyfogle] said at the time that, inasmuch as the papers had not arrived that he sent for at Louisville to be sent to' me, to be examined by my attorney, as to the title of this property, that if I would go ahead, and conclude the contract, why he was willing to do it, and I could rely implicitly upon his statement that he had a good title, and that he had investigated the matter very thoroughly through attorneys, and that he would not have taken the property at all unless he was satisfied that his title was good, and he could assure me on his honor that his title was perfect; and, inasmuch .as these papers were locked up in somebody’s desk in .Louisville, and he could not bo here, and my wife was going away, that the trade may as well be concluded then, and that I need not fear nothing about the title, and that ho would certify to the abstract that he had already furnished me—which had not been accepted—as a proper abstract of title, and that he would certify to it, and guaranty to the best of his ability, in writing, that that title was all right; and I said to him, and also to Judge Learning, that inasmuch as the doctor [the defendant] was responsible, and that his assurance that he had the title and could convey a good title, that I would accept the deed under the circumstances. The Court: In other words, you accepted the deed on the faith of what he said to you? A. Yes, sir. Q. Relying on it? A. Yes, sir.”</p> <p>The record does not state the consideration expressed in the warranty deed of the Cumberland Lumber & Transportation Company which the plaintiff first had. In October following, Mr. Wilson, upon attempting to have the deed recorded, ascertained that the recording foe was graduated by the consideration expiressed in the deed,—in this case, presumably, $75,-000. He thereupon sent the deed to the defendant, requesting him to have the consideration changed to $1, to avoid payment of a large recording fee, and a new warranty deed executed by the conqxany was sent him in accordance with his request, which was recorded. Afterwards, and during the year 1890, the Wilsons dealt with the Tennessee lands as their own, and sought to sell the same. There was evidence tending to show that the title to the Tennessee lands was not good in the defendant or the Cumberland Lumber & Transportation Company; that the lands were known as wild lands, and were in part occupied adversely to the grantors of the Wilsons. There had never been any reconveyance by the Wilsons to either the Cumberland Transportation Company or to the defendant of the lands in question, or any offer so to do, or any tender of a deed. At the conclusion of the plaintiff’s evidence the defendant moved the court to rule out and exclude all the evidence introduced by the plaintiff, upon the following grounds: First. That sufficient evidence had not been offered showing ox-tending to establish a written contract for the sale of the lands. Second. That the plaintiff had not shown her right by any of the testimony offered on her behalf to bring this suit. Third. That the evidence offered by the xxlaintiff disproves her right to maintain any action on the contract sued on, because it appears from the deeds offered by her in evidence that they were delivered to her by the defendant in consummation and execution of the supposed contract sued on, and that no action could be maintained upon said supposed contract, but could only be maintained upon said deeds so delivered by said defendant, as alleged in his plea for breach of covenant of title or seisin. And “thereupon, and upon said motion, said defendant asked the ruling of the court before being required to tender or offer any evidence on his behalf, and, said motion having been duly argued by counsel, and the court having duly and fully considered the same, it is adjudged by the court that said motion be, and the same is hereby, sustained, and that the evidence so offered and introduced by the plaintiff be, and the same hereby is, excluded, and, said plaintiff having failed to offer or introduce any other or further evidence in the premises, and to maintain her issues in the cause, the court makes this its general finding of the issues in said cause against the plaintiff and in favor of the' defendant upon his pleas, and thereon it is adjudged by the court that said defendant be discharged, and go hence without day, and that he' have and recover of the plaintiff herein his costs to be taxed, and that execution issue therefor.”</p>

<p>1. Eire Insurance—Yerbal Contract—Issuance of Policy.</p> <p>Tlie issuance oí a policy is not necessary to a valid contract of insurance; and if a verbal contract to issue is made with an authorized agent of the company, without mentioning any date for the insurance to take effect, the risk commences immediately. ^</p> <p>2. Same—Waiver of Immediate Payment of Premiums—Custom.</p> <p>A custom existing between the agents of the parties, respectively, of collecting premiums on the 1st of each month for insurance effected “during the previous month, operates as a waiver of immediate payment, when no special demand is made.</p> <p>■3. Interpretation of Contract—Words Used in Special Sense—Custom.,</p> <p>Plain, ordinary, unambiguous words used in a conversation, by which one party claims that, a contract was effected, must, as a general rule, be applied according to their ordinary signification; and if it is claimed that they had acquired a special and technical meaning in the particular locality, and among the class of business men concerned, this fact must he established by a preponderance of the evidence, and it must further be made to appear the person using them understood, and intended to use them in, the technical sense. But the fact of his knowledge may be presumed from the generality of the understanding among men engaged in the same business.</p> <p>•4. Same—Evidence—Subsequent Conduct and Statements.</p> <p>Statements and conduct of the parties subsequent to a conversation during which it is claimed that a contract was made are competent only as they tend to show what was their real understanding as to that transaction, and not for the purpose of controlling or in any way changing the effect of the conversation.</p> <p>5. Eire Insurance—Authority of Agents—Presumptions.</p> <p>When an insurance company appoints an agent in a large city, ana sends a commission to him to solicit applications, the public is warranted, in the absence of any notice of limitations on his authority, in assuming that he is clothed with power to receive and act on applications, and bind the company.</p> <p>6. Same.</p> <p>An agent-doing business in Kansas City, Mo., was asked to insure property located in the state of Kansas. It is the statutory policy of Kansas to require foreign companies desiring to do business in the state to have established agents therein, who must comply with certain conditions, and to prevent other agents from taking any insurance there. The company whose agent received the application in Kansas City had an established agent in Kansas, which tact was known to both parties. Iltld that, if the applicant knew of the statutory policy of Kansas, there could he no presumption in his favor that the agent -was authorized to insure property in that state.</p>

TMs was a suit by William T. Walters and others against the Western & Atlantic Railroad Company, in which the Capital City Bank intervened. The receivers of defendant excepted to" the master’s report.

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>This was an action by Fred. Sutton against the Chicago, Bock Island & Pacific Railway Company to recover damages for personal injuries.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>This was an action by John J. Caulfield, by his next friend, Michael J. Caulfield, against the Chicago, Bock Island & Pacific Bail-way Company, to recover damages for personal injuries.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Action on the case by the Goodlander Mill Company against the Standard Oil Company.</p> <p>In November, 1887, the defendant shipped in a tank car from Lima, Ohio, to the Ft Scott Gas Company, at Ft. Scott, Kan., some 6,000 gallons of crude petroleum, deliverable to that company at .East St Louis. The tank car had a discharge pipe in the bottom and about the center of the tank, some four inches in diameter, and projecting about six inches below the bottom. The projection was threaded to receive a heavy cap screw. Within the tank the discharge pipe is fitted with a heavy valve to prevent the escape of oil. The valve rests upon a shoulder in the upper part of the discharge pipe. Below the shoulder there are four concaves made in the valve, to permit the flow of oil upon raising the valve. An inflexible iron rod is attached to the valve, extending through the dome on the top of the tank, and projecting a foot or more above it. Within the tank at the top there is a coiled wire spring, arranged to hold the rod down, and keep the valve in position, closing the outlet. To discharge the-contents of the car through the lower discharge pipe, the cap is unscrewed and the pipe coupling attached. The valve, by means of the rod, is then lifted, and the oil permitted to flow through the outlet into the pipe, and conducted to the reservoir provided for its reception. The tank car arrived at Ft. Scott on the 17th of November, and was, received by the consignee on the next day. The gas company caused the car to be removed from the yard of the railroad company, where it was delivered, and to be placed upon the switch track of another company located in a street a half mile away, between the property of the gas company and the steam flour mill of the plaintiff in error. This was done for the purpose of piping the petroleum contained in the tank into the reservoir of the gas company, located beyond the mill, and upon the further side of an intercepting street. The railroad track upon which the tank car stood was three feet distant from, the furnace room of the mill, the latter being three feet below the level of the railroad track at that point The car was placed directly opposite the window of the furnace room of the mill. On the afternoon of the 18th of November, and before or at the time of the removal of the car on that day it was observed by the engineer of the switch engine that the tank was leaking, the oil dripping at the outlet under the car, and forming a pool upon the ground. On the morning of the 19th of November, two servants of the gas company undertook to discharge the oil into the reservoir of the gas company, through a pipe laid from the reservoir to the tank car. One of them examined the rod at the top of the car, and reported to the other that it was pushed down, indicating the valve to be in proper position. The other went under the car with a wrench to remove the cap, and attach the pipe leading to the reservoir. He observed that the cap was loose, and removed it with his hand; and it is stated in the brief of counsel for plaintiff in error—without reference to the record for verification of the statement— that this man observed, as he went under the car for the purpose of removing the cap and attaching- the coupling, that the oil was leaking some, but that he did not deem the fact of moment, supposing that the valve was in its proper position, and would prevent the discharge of the petroleum until it was raised. Upon removing the cap, the oil flowed out before the coupling could he attached; and despite the efforts made to prevent, and before the car could he removed from its position, the oil flowed down the descent, through an open window, into the boiler room, and also upon some hot ashes located at the rear of the engine room and boiler house, and some eight feet distant from the car, and caught fire, whereby the mill and its contents were destroyed, and property of the value of about $107,000 consumed. After the tire and upon examination of the tank, it ivas discovered that it contained no valve; that it had been removed, but how or when is not disclosed by the evidence, hut presumably before the tank car was filled with the oil for shipment. The evidence established that crude petroleum oil will give off a vapor or gas which will flash at a temperature of 90”, Igniting by contact with fix-e, and explosive in its ignition; that it is in common use for fuel 'purposes; and that it is about as volatile as turpentine. The action against the Standard Oil Company by the mill owner is predicated upon negligence in omitting to have a proper valve iu the outlet of the tank. At the trial of the cause, and upon the conclusion of the evidence for the plaintiff, the court directed the jury to find a verdict in favor of the defendant.</p>

<p>1. Master and Servant—Negligence-Risks of Employment.</p> <p>In an action by a brakemau against a railroad company for injuries received by him while coupling cars in its service, an instruction to the effect that if tlie plaintiff knew that the cars wore out of repair, that there wore holes in the roadbed, and that tlie fireman in charge of the engine was incompetent, and, if lie made no objection on that account, he was not entitled to relief, held properly refused.</p> <p>2. Same—Negligence tn Selecting Fellow Hervants—Instrcctions.</p> <p>An instruction that in determining whether the fireman in charge of the engine was competent to handle it die jury should consider “that firemen, after a certain period of service as firemen, are promoted to engineers,” is objectionable, as assuming that promotion of firemen to be engineers takes place as a matter of course, regardless of the capacity, habits, or temper of particular individuals.</p> <p>3. Same.</p> <p>It was error to refuse to instruct (lie jury that the fireman and brakeman were fellow servants, and ilmt, if the latter was injured by the carelessness or unskillfulness of the former, tlie company was not liable if it had used due care in employing the fireman, and did not know, and could not by ordinary diligence have learned, of his incompetency or want of skill.</p> <p>4. Same—Dangerous Machinery.</p> <p>It was error to refuse to instruct tlie jury to the effect that if the cars were reasonably and ordinarily safe, and the plaintiff was injured by reason of the deadwoods on them, he cannot recover.</p> <p>6. Vitnkss—Crudi bility—Imtoiachmunt—Instructions.</p> <p>A request for an instruction that if a witness “has been successfully contradicted or impeached his entire testimony, except as corroborated, may be disregarded,” was objectionable, since even the truthful testimony of an honest witness may be successfully contradicted'.</p>

<p>Landlord and Tenant—Action for Rent—Set-Off—Recoupment.</p> <p>Damages for malicious prosecution of suits for unlawful detainer cannot be set off or recouped in an action for rent, since such damages do not arise out. of contract, and are not connected with the subject-matter of the suit.</p>

<p>1. Demurrer—Waives by Answer.</p> <p>A demurrer to a complaint as not stating sufficient facts to constitute a cause of action is waived if, after it is overruled, an answer is filed to the merits.</p> <p>2. Answer—Admissions.</p> <p>An answer to a complaint against a town on a contract, admitting that: the town made the contract, and not suggesting want of authority to make it, admits its power t.o make it.</p> <p>3. Complaint—Cure by Yerdtct.</p> <p>Failure of the complaint in an action against a town on a contract, which it had authority to make only on petition of taxpayers, to allege presentation of the petition, is cared by the verdict, even if the complaint should make such allegation.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>This was an action by the Atlantic & Pacific Railroad Company and the St. Louis & San Francisco Railway Company against L. B. Bell and H. H. Trott to recover possession of certain real estate. There was a judgment for plaintiffs, and defendants bring error.</p>

In an action by Samuel Tliomas and others against the East Tennessee, Virginia & Georgia Railway Company, Frances and Joseph August intervened, anc claimed to be entitled to recover against tlie receivers of the railroad for the death of Moses August while a passenger on defendant’s road, and caused by its negligence, and the ease was referred to Benj. H. Hill, Esq., special masier. The receivers excepted to the master’s report.

<p>Clerk or Court—Fees.</p> <p>Clerks of district courts are not entitled to fees for filing certificates of discharge of witnesses, nor for filing duplicate abstracts and vouchers; but they are entitled to fees for entering orders of court for the marshal to pay witnesses and jurors, for making certificates to such orders, and for taking and entering of record separate recognizances of witnesses where it is shown that the witnesses could not recognize together without hardship.</p>

<p>1. Criminal Law—Appeal and Error—Review—Indictment.</p> <p>Where an indictment contains three counts, to the first of which a motion to quash is overruled, and afterwards a hill of particulars is filed with the first count, which practically confines the prosecution to the more specific charges contained in the other counts, overruling the motion cannot be assigned as error.</p> <p>2. Same—Exceptions to Charge.</p> <p>If a bill of exceptions states that an exception to the court’s charge was taken when the charge was given, but discloses that it was not in fact taken until afterwards, the exception is not available.</p> <p>3. Same.</p> <p>Where the court instructs the jury that the issue is not whether the defendants’ business was a cheat, but whether it was a lottery, the fact that the charge also states that the defendants’ business was a cheat no better than highway robbery is not ground for reversal.</p> <p>4 Same—Sentence—Joint Assignment op Errors.</p> <p>Where three defendants, who are jointly indicted, hut separately sentenced to different punishments, join in a writ of error, and assign as error that “the court erred in the sentence which it passed upon the defendants,” the assignment is too indefinite to present any question.</p> <p>5. Offenses against Postal Laws—Lottery—Indictment—Evidence.</p> <p>Where an indictment charges the defendants with sending through the mails circulars concerning a lottery, the prosecution may show by evidence outside the circulars that 'the business advertised therein was in effect a lottery.</p> <p>6. Lotteries—Guaranty Investment Companies.</p> <p>■Where the value of bonds in an investment company depends upon their number, and the numbering is done by the secretary according to the order in which the applications happen to reach him, the result of a purchase of such bonds is so dependent on chance as to render their sale a lottery.</p>

<p>1. District Courts—Criminal Cases—Time and Place of Trial.</p> <p>Rev. St. § 5G,‘i, provides that the district courts shall have jurisdiction of all crimes cognizable under the authority of the United States, committed within their respective districts. Section 581 provides that a special term of any district court may be held at a place where any regular term is held, or at suclx other place in (lie district as the nature of the business may require, and any business may be transacted at such special term which might be transacted at a regular term. Act Cong. July 20, 1882 (22 Stat. p. 172), creating the northern district of Iowa, and Act Cong. Feb. 24, 1891 (20 Stat. p. 7G7), amendatory thereof, and creating the Cedar Rapids division, contain no provision in regard to the place of trial of criminal actions, nor any limitations of the power conferred by Rev. St. § 503. Held, that the district court of the northern district of Io-wa may name the time and place of trial of criminal cases, whether at a regular or special term, or at the usual places for holding court or otherwise, subject only to the right of defendant to a speedy trial within the district in which the offense was committed.</p> <p>2. Same—Transfer from Cedar Rapids to Dubuque—When Ordered.</p> <p>Several indictments against the same person, relumed at Cedar Rapids, charged the commission of offenses in the eastern division of the northern district of Iowa, in which division defendant resided. Held, that a motion by the distinct attorney to transfer the cases to Dubuque for tidal, to save expense, should be granted, in the absence of any showing that defendant would bo prejudiced thereby.</p>

<p>Supplemental charge to grand jury. For original charge, see 62 Fed. 828.</p>

<p>Annex Immigrants—Exclusion Acts.</p> <p>The acts regulating immigration, existing when Act March 3, 1891, was Iiosscd, refer to aliens who are imported into or who migrate to this country, and do not exclude a person already resident here, though not naturalized, who temporarily departs, with the intention to return.</p>

<p>1. Trade-Marks—Rights Defined by Contract.</p> <p>Where two parties have been using similar trade-marks, a contract between them whereby one party is to use one form of the trade-mark in connection with certain words, and -(he other is to use another form of it in connection with other words, followed by the use of such trademarks for several years in accordance with, the terms of the contract, establishes the rights of the parties, and is binding upon their assigns and successors in business.</p> <p>%. Same—Contract—Record in Patent Office.</p> <p>Such contract is not recordable in the patent office, since it is not a transfer of a right to use a trade-mark.</p>

<p>Trade-Marks—'Wiiat Constitutes Ineringemknt.</p> <p>Defendant liad the right to use the words “Waukesha Hygeia Mineral Springs” as a- trade-mark, and complainant had the exclusive right to the use of the word “Hygeia” as a trade-mark, except in the form used by defendant. Held, that the fact iliat defendant made the word “Hygeia” more conspicuous than the rest of his trade-mark did not constitute an infringement of complainant’s rights.</p>

<p>Suit by Emil Werckmeister against the Pierce & Bushnell Manufacturing Company for infringement of a copyrighted painting. Decree for complainant.</p>

This was an action by William II. Burke against Frank L. Davis to compel defendant to assign to plaintiff certain judgments obtained by plaintiff, in defendant’s name, against a revenue collector,, for an excess of duties collected on goods imported by plaintiff in defendant’s name. Heard on demurrer to the bill.

<p>1. Patents—Infringement—Toy Banks.</p> <p>In the case of a toy bank having a discharging aperture secured by a - spring latch, which is opened from within by the weight of accumulated coin, infringement is not avoided by merely strengthening the spring so that when the last coin is inserted some additional pressure thereon is required to open the bank.</p> <p>3. Same.</p> <p>The Colby patent, No. 373,223, for an improvement in toy banks, held valid and infringed.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>Suit by Gardiner Campbell and George G. Campbell against James E. Bayley, Arthur J. Bayley, and Harry F. Bayley for injunction and accounting. Defendants obtained a decree. 45 Fed, 564. Complainants appeal.</p> <p>Suit by the appellants against the appellees for an accounting, and to enjoin infringement of the first claim of letters patent No. 201,882, issued Juno 38, 1878, to George G. Campbell, one of the appellants, for certain improvements in catch-basin covers. The specification and claims of the patent are of the following tenor:</p> <p>“My invention has for its object the providing of a catch-basin for the corner of streets, which the following description will more fully show: Fig. 1 is a perspective view of my invention, and Fig. 2 a sectional view of the same. In the drawings, A is the body of the catch-basin cover; B, the base of the same; G, C, flanges secured to the base and body for the purpose of holding the stone or other material back to the sidewalk which may be used in setting the cover; D, strips of metal standing obliquely over the opening, to keep rubbish out of the basin as the water flows into the same; E, a raised stop or partition in front of the strips, b, for the pavement to face up against; F, a flange projecting below on the under side of the cover to keep the water from wearing away the mortar between the bricks or stones which the basin may be made of: G, an opening, with cover to the same, for access to the basin. This device is calculated to stand at the corner of a street and jut back into the sidewalk, and the front stands slanting, the bottom part of it projecting to the bottom of the gutter, so that a team in passing, if it hugs too close to the sidewalk, the wheels will strike on the strips of metal. D, and slide down off the same, and the base, B, will be under the sidewalk and paving, so that the basin cover will be held firmly in place. Wliat I claim as new, and desire to secure by letters patent, is: (1) A catch-basin cover constructed with slanting' front, with striijs, D, base, B, and raised partition, E, substantially as specified. (2) A catch-basin cover, with body, A, flanges, C, C, and flange, P, substantially as specified.” The drawing's referred to are as follows:</p> <p> </p> <p> </p> <p>The defense relied upon is lack of invention or pat.entable novelty, and in support thereof the following references are made to the prior art: “No. 32,008, granted to William H. Short, for an improved inlet to sewers, April 9, 1861. No. 109,067, granted to Henry Smith, Jr., for sewer catch-basin covers, November 8, 1870: No. 124,061, granted to Abel G. Hodgman, for water courses across roadways, February 27, 1872. No. 125,118, granted to AVilliam H. Chase and George AVhite, for cover and trap for sewer basins, April 2, 1872. No. 132,757, granted to Edward L. Dyer, for sewer basins, November 5, 1872. No. 134,978, granted to Henry AV. Clapp, for grating for sewer inlet, January 21, 1873. No. 149,373, granted to Henry AV. Clapp, for grating for sewer inlet, April 7, 1874. No. 150,072, „ granted to Ernest L. Meyer, for sewer basins, April 27, 1874. No. 153,425, granted to Ephraim B. Culver, for removable trays for sewer traps, July 28, 1874. No. 107,444, granted to Daniel H. Fernald, for manhole cover for sewers, September 7, 1875. ,No. 169,551, granted to Louis Johnes, Jr., for sinks, November 2, 1875. British patent No. 255, of 1874, to AArellington Henry Synge, dated January 20, 1874.”</p> <p>The opinion of the court below is reported in 45 Fed. 564.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>Suit by Isaac C. Walker against the city of Ft. Wayne to restrain the alleged infringement of a patent. Nathan Ó. Eoss was substituted as plaintiff, and filed a supplemental bill.</p> <p>On the 21st of April, 1892, Isaac C. Walker brought in the court below his bill of complaint against the city of Ft. Wayne, Ind., alleging infringement of reissued letters patent No. 6,831, issued January 4, 1876, in lieu of original letters No. 165,438, granted July 13, 1875, to Robert Bragg, showing adjudications of the validity of the patent, and praying a discovery, injunction, and damages. At the ensuing May term of the court, on May 5, 1892, the defendant filed a plea, which, besides the special matters alleged, contained tlie averment, equivalent to tlie general issue, “that said city has never caused to be made, used, or sold, or contemplated the making, use, or sale of any such device as set forth in plaintiffs bill, or its plea herein, nor any device similar to that in filaintiff’s bill;” and for a second plea It was alleged “that at the commencement of this suit the patent in the bill set forth was not owned and held by the complainant alone, but was owned and held jointly by the complainant, the Hon. N. O. Ross, of Logansport, Ind., Edward 0. Egan, and Atwater J. Treat of Indianapolis, Ind., and others to defendant unknown, 5u and of the state of Indiana.” No further step was taken until the ensuing term of court, when, on November 4, 1892, the appellant, Nathan O. Ross, moved in writing, supported by affidavit, “for leave to file herein the bill, in the nature of a supplemental bill, herewith exhibited,” and that he be substituted as complainant, with leave to prosecute the cause in his own behalf arid in behalf of the equitable interests recited in the bill, and have the benefit of all proceedings theretofore had in tlie case. By that affidavit, as well as by the averments of the proffered bill, it appears that, when the suit was commenced, Walker held the legal title of the letters patent in trust for himself, Ross, and three others, and that afterwards, September 14, 1892, with the consent of all of tlie beneficiaries, Walker transferred liis entire right, title, and interest in the patent, and in all rights of action for infringement thereof, and in all rights of whatsoever kind in respect thereto, held by him, to Ross, who thereby acquired the legal title and all rights of action; taking for himself a. five-eighths beneficial interest, and for each of the other beneficiaries (Shirk, Egan, and Treat) a one-eighth interest. Over objection by the defendant, Ross was substituted for Walker as plaintiff, and leave given him to fill', as it is called in the order, “An Amended ami Supplemental Bill,” and the bill proposed was then filed. It contains the substance of an original bill in the nature of a supplemental bill. Ten days later the defendant moved the court to set aside this order, and to strike the bill from the files, and, that motion having been overruled, demurred. The court sustained the demurrer on the ground that, the term of the patent having expired, the assignment by Walker to Ross vested the latter only with the right to recover damages for past infringements in a suit at law, and gave him no standing to prosecute the pending suit in equity. Upon this point the opinion of the court, reported in 58 Fed. 404, 407, is as follows:</p> <p>“The important and difficult question is whether the present plaintiff can maintain his hill on the equity side of the court. It is elementary that a party who has a plain, adequate, and complete remedy at law cannot successfully invoke the jurisdiction of a court of equity. The original plaintiff brought suit about two and a half months before the term oil his patent, expired. He prayed for an injunction in his bill, but took no steps to procure a, temporary restraining order or to bring the suit to a hearing while-lie remained the party of record. While an application for a. temporary restraining order might have been made before tlie term of his patent expired,, yet, according to the course of procedure of the court, it would have been impracticable to have prosecuted the suit to final hearing and decree within that time. When the patent has expired, and the entire claim of tlie plaintiff against the defendant rests upon the infringing acts performed during the term, an action on the case for the recovery of damages generally affords a complete redress, and the only one to which the plaintiff is- entitled. Consolidated Safety-Valve Co. v. Ashton Valve Co., 26 Fed. 319; 3 Rob, Pat. § 1092. An adequate remedy at law exists in favor of the owner of the patent, against the infringer, whenever the sole relief required is compensation for past injury, provided the remedy can be afforded without equitable aid. When the plaintiff lias chosen to seek liis recompense for the enjoyment of his invention through an established license fee, and tlie infringing acts raise an implied acceptance of the offer, the sum which the plaintiff is entitled to recover is certain and fixed, and the remedy at law is adequate, and a court of equity is without jurisdiction; and, where the plaintiff has a mere right to the recovery of damages for past infringements, equity is without jurisdiction. Ulman v. Chickering, 33 Fed. 582; Burdell v. Comstock, 15 Fed. 395; Root v. Railroad Co., 105 U. S. 189; Spring v. Sewing-Mach. Co., 13 Fed. 446; Jenkins v. Greenwald, 2 Fish. Pat. Cas. 37, Fed. Cas. No. 7,270; Hayward v. Andrews, 12 Fed. 786. Where the bill is filed too late for a temporary injunction to issue before the expiration of the term secured by the patent, and the recovery of damages would afford adequate relief, jurisdiction in equity does not exist. Clark v. Wooster, 119 U. S. 322, 7 Sup. Ct. 217; Mershon v. Furnace Co., 24 Fed. 741; Davis v. Smith, 19 Fed. 823; Burdell v. Comstock, 15 Fed. 395; Racine Seeder Co. v. Joliet Wire Check Rower Co., 27 Fed. 367. It has been held that a bill filed four days before the patent expired should be dismissed. Mershon v. Furnace Co., supra. Where a bill is filed five days before the expiration of the term, and no effort is made to obtain an injunction, the prayer for injunction will be held as a mere pretext, and the case not of equitable cognizance. Burdell v. Comstock, supra. In Racine Seeder Co. v. Joliet Wire Check Rower Co., supra, where the bill was filed about two months before the patent expired, the court expressed grave doubt whether, under the rule in Root v. Railroad Co., 105 TJ. S. 189, jurisdiction in equity-existed, and resolved the doubt by dismissing the bill without prejudice to an action at law. While it is certainly true that, if a bill in equity to restrain the infringement of letters patent is properly filed before the expiration of the term, the jurisdiction of the court is not defeated by the mere expiration of the patent by lapse of time before the final decree (Beedle v. Bennett, 122 U. S. 71, 7 Sup. Ct. 1090), yet where a bill is filed shortly before the expiration of the patent, and no application for a restraining order is made, and from the nature of the infringing acts complained of it is apparent that an action on the case would afford adequate relief, the bill ought to be dismissed. It is not necessary to determine whether the bill filed by Walker ought to have been dismissed, in the view that is taken of the rights of the present plaintiff. His rights were acquired by an assignment two months after the patent had expired. It is true that the bill states that the improvement secured by the patent was transferred, but, as the patent had already expired, nothing remained capable of assignment, except the mere right of action for the recovery of damages for past infringements. If the present plaintiff had filed an original bill to enforce his rights acquired under the assignment, made, as it was, after the expiration of the patent, a court of equity could not have entertained jurisdiction. He filed, nearly four months after the patent had expired, an original bill in the nature of a supplemental bill, exhibiting a right to recover damages for past infringing acts acquired under an assignment made two months after the expiration of the patent. By such assignment- the plaintiff acquired the right to recover damages only for past infringements, because the patent right—the franchise— was incapable of transfer, since it had ceased to exist. Walker had no vested right in the remedy, which he could sell and assign to the present plaintiff. For the recovery of damages for past infringements, which alone passed to the assignee, an action at law afforded the plaintiff adequate redress, and, in my judgment, the only redress to which he is entitled.”</p>

This was a suit by the United States against Hudson Gr. Hall and others to compel removal of an obstruction to navigation. The circuit court dismissed the bill, and a decree for defendants was entered thereon. The United States appealed.

<p>Appeal from a decree of the circuit court, northern district of .’New York, dismissing a bill in equity for alleged infringement of letters patent No. 268,972, dated December 12,1882, to Henry Julian Allen, for “preserved compound for mince pies.”</p>

3, and bolding tbe Empire liable in solido for damages sustained by libelant’s schooner Thos. Potter in collision with a car"float lashed to the starboard side of tbe Transfer. Tbe schooner was lashed to the port side of the Empire, which had another schooner in tow on a hawser of 50 fathoms.

716) holding the steamship Saale liable to the libelants, owners of the cargo laden on ihe bark Tordenskjold, which was sunk by a collision with said steamship on August 4,1892, about 7 p. m., in 43° 31' north latitude, and 56° 4' west longitude. The bark was struck on the port side between the fore and main rigging, the angle of collision being about seven points between the bows of the two vessels.

<p>JUBTSDICTION OP UeDEBAU COURTS—SlIITS BY UNITED STATES TO QUIET Tl'l'IJj —N ON RESIDENT D EEENDANTS.</p> <p>A suit by tlie United States to quiet title is within tlie jurisdiction of the circuit court of the district where the land lies, although defendants may not be inhabitants of that district, for such a suit is “substantially a suit in rem,” within the doctrine of cases like Pennoyer v. Neff, 95 U. S. 714, and Arndt v. Griggs, 10 Sup. Ct. 557, 134 U. S. 316, and therefore falls within the provisions of section 8 of the judiciary act of 1875, relating to service by publication in certain cases affecting- real estate, which section was expressly continued in force by the act of 1887-88.</p>

<p>Removal oe Causes—Motion to Remand—When too Late.</p> <p>A motion to remaud on file ground that tlie removal was made after the case was to be treated as on trial under the state practice comes too late after more than a year has elapsed, and after the case has been transferred by consent to the equity docket, -treated as an intervention in a pending receivership case, and referred to a special master therein; there being no question as to the jurisdiction of the federal court.</p>

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

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

This was a petition of intervention, filed by George W. Morse in the foreclosure suit brought by the Central Trust Company of New York and the Boston Safe-Deposit & Trust Company against the Marietta & North Georgia Railroad Company and others.

This was an action by Maria E. Johnson against the Richmond Beach Improvement Company to redeem land sold on foreclosure of a mortgage. Heard on demurrer to the amended complaint.

<p>1. Corporations—Insolvency—Sale of Assets.</p> <p>Although the property of a private -corporation is not charged by law with any direct trust or specific lien in favor of general creditors, and although such a corporation, so long as it is in the active exercise of its functions, may, if not restrained by its charter or by statute, exercise as full dominion and control over its property, having due regard to the objects of its creation, as an individual may exercise over his property, when it becomes insolvent, and has no purpose of continuing business, the power to sell, dispose of, and transfer its estate is not altogether without limitation.</p> <p>2. Same—Lien of Creditors—Trust.</p> <p>When a private corporation is dissolved, or becomes insolvent, and determines to discontinue the prosecution of business, its property is thereafter affected by an equitable lien or trust for the benefit of creditors. The duty, in such cases, of preserving it for creditors, rests upon the directors or officers to whom has been committed the authority to control and manage its affairs. Although such directors and officers are not technical trustees, they hold, in respect of the property under their control, a fiduciary relation to creditors; and necessarily, in the disposition of the property of an insolvent corporation, all creditors are equal in right, unless preference or priority has been legally given by statute or by the act of the corporation to particular creditors.</p> <p>8. Same—Duty to Suspend Business.</p> <p>A corporation is not required, by any duty it owes to creditors, to suspend operations the moment it becomes financially embarrassed, or because it may be doubtful whether the objects of its creation cun be attained by further effort upon its part. It is in 1he line of right and of duty when attempting, in good faith, by the exercise of its lawful powers and by the use of all legitimate moans, to preserve its active existence, and thereby accomplish the objects for which it was created. In such a crisis in its affairs, and to those ends, it may accept financial assistance from one of its directors, and, by a mortgage upon its property, secure the payment of money then loaned or advanced by him, or in that mode protect him against liability then incurred in its behalf by him.</p> <p>4. Same—Distribution of Assets-Bights of Directors.</p> <p>But when a corporation becomes insolvent, and intends not to prosecute its business, or does not expect to make further effort to accomplish the objects of its creation, its managing officers or directors come under a duty to distributo its property or its proceeds ratably among all creditors, having regard, of course, to valid liens or charges previously placed upon it. Their duty is “to act up to- the end or design” for which the corporation was created (1 Bl. Comm. 480); and, when they can no longer do so, their function is to hold or distribute the property in their hands for the equal benefit of those entitled to it. Because of the'existence of this duty in respect to a common fund in their hands to be administered, the law will not permit them, being creditors, to obtain any particular advantage for themselves to the prejudice of other creditors.</p> <p>5. Same—Mortgage to Create Preference-Validity.</p> <p>Rev. St. Ind. 1881, §§ 4920, 4924 (Rev. St. 1894, §§ 6045, 6649), do not cover every case of an insolvent private corporation which mortgages its property to secure an antecedent debt due to one of its creditors. The statute was aimed at conveyances or assignments of property made with the intent to hinder, delay, or defraud creditors or other persons of their lawful demands. It leaves the quesii.on of the validity of a conveyance, not made with the forbidden intent, but simply for the purpose of preferring a particular creditor, to be solved by any general recognized principles that are applicable- to such a case.</p>

iTMs was a bill by tbe North. British & Mercantile Insurance Company against Kate M. Lathrop, trading, etc., and others, to enjoin defendants from bringing an action on an award of appraisers of lo'ss sustained by fire, under a fire insurance policy issued by complainant, etc. Defendant Lathrop filed a cross bill to enforce payment of the award, to which complainant demurred.

The following opinion was rendered upon a rehearing in this ease. The former opinion in the case will be found fully reported in 57 Fed. 873.

This was a petition of intervention filed by the Postal Telegraph Cable Company in the suit brought by the Mercantile Trust Company against the Atlantic & Pacific Railroad Company, the object of the intervention being to enforce an alleged right of the telegraph company to erect a line of telegraph upon the railroad company’s right of way. Heard on demurrer to the petition of intervention.

Lee Yung was charged with unlawful entry into the United States. From an order of a United States commissioner directing, him to be deported to China, he appeals. Reversed.

This is a proceeding by Rebecca Lena Graham to establish her right as a child and heir at. law oí Franklin Matthias, deceased, and to receive from his administrator the property in his hands for distribution, as against C. Matthias and others, his collateral heirs.

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

This was an action by Andrew Mortenson against tbe Northern Pacific Railroad Company to recover damages for personal injuries. Verdict and judgment were given for plaintiff, and defendant sued out this writ of error.

<p>1. Appeal—Review—Weight of Evidence.</p> <p>In an action for personal injuries, the appellate court will not weigh conflicting evidence, pass upon the veracity of witnesses, and determine the case according to what it thinks to be the weight of the evidence appearing in the record, but will resolve all conflict in the evidence in favor of the party for whom’ the verdict was rendered.</p> <p>2. Railroad Companies—Accident at Crossing—Negligence.</p> <p>A railroad company is bound, independently of statute, to take reasonable and proper means of notifying the public of the approach of its trains to a public crossing after night; and it is a breach of this duty to back a train of flat cars over a crossing in the suburbs of a city, without having on it any brakeman, or any light or other signal of its approach.</p> <p>8. Same—Duty of Traveler—Contributory Negligence.</p> <p>One who, on approaching the crossing, looks and listens, but hears nothing except a locomotive, which is so far off that he can easily pass before it, is not negligent in failing to surmise that the company would attempt to back a train of flat cars, which makes little noise, over the crossing, on a dark night, without any lights or signal to warn the public.</p>

A judgment in an action against a husband only, to determine adverso claims to land, is a bar to a subsequent action by such husband .and his wil'e against the plaintiff: in the former action, involving tlie same questions adjudicated in the first action, though the land is community property. This was an action of ejectment by Harvey M. Lichty a,nd wife against Joseph R. Lewis and wife. Heard on demurrer to answer.

<p>1. Promissory Note—Failure of Consideration.</p> <p>Plaintiff delivered to defendants certain machinery, and took notes and a contract which provided that, on the payment of the notes at maturity, plaintiff would sell and transfer the machinery to defendants, and that the title thereto should remain in plaintiff until the notes wore paid. HuW, that if such machinery was destroyed by fire, without defendants’ fault, while in their possession, and before the notes were paid or tho title transferred, tho consideration for the notes failed.</p> <p>2, Contract—Construction.</p> <p>A provision in such contract that the iiroperty should “be kept insured by” plaintiff, in its favor, “at the expense of” defendants, did not obligate plaintiff to protect defendants by having tho property insured.</p>

At Law. Action to recover damages for a personal injury caused by negligence. Heard on motion to require plaintiff to give security for costs, and counter motion by the plaintiff for leave to prosecute this action in forma pauperis.

<p>1. Mining Veins.</p> <p>To constitute a vein it is not necessary that there be a clean fissure, filled with mineral, as it may exist when filled in places with other matter, hut the fissure must have form, and be well-defined, with hanging and foot walls.</p> <p>2. Same—Union of Veins—Evidence.</p> <p>On the question of whether two veins unite in disputed ground it may he shown that their directions outside of as well as within the disputed ground are such that, if continuous, they would meet.</p> <p>3. Same—Extralateral Rights.</p> <p>Whore a vein enters an end line of a claim, and continues nearly parallel with 1he side lines for the greater part of the length of the claim, the owner of the claim is not deprived of the extralateral rights attached to the vein, under St. 1872 (Rev. St. § 2322), because the vein crosses a side line before reaching the other end line, hut his extralateral rights will extend from the end at which the vein enters to the point at- which it crosses the side line.</p> <p>4. Same—Burden of Proof.</p> <p>Under St. 1872 (Rev. St. § 2322), giving a locator the right to all veins throughout their entire depth, the apexes of which lie within the surface lines of his claim, though in their course downward they extend outside the vertical side linos of the claim, a, locator cannot take mineral from the claim of another without showing by a preponderance of evidence that it is part of a vein having its apex in his own claim.</p> <p>5. Same—Location or Vein—Patent.</p> <p>Extralateral rights of a locator are determined by tbo actual location of a vein, and not its location as marked on the patent of a claim.</p> <p>6. Injunct n > x—Accousti ng.</p> <p>In case of trespass on a mining claim it is not necessary to bring separate actions Cor injunction and an accounting', but both may be had in the same suit.</p>

<p>1. Mining—Extralateral Rights—End Lines.</p> <p>. Under Act 1872 (Rev. St. § 2322), giving one wbo had theretofore located a vein and received a patent therefor, by which he obtained a right only to that particular vein, and to the surface ground as surveyed as incident merely to the vein, all other veins throughout their entire depth, the apexes of -which lay within such surface lines extended downward, his extralateral rights as to such other veins are determined by the original end linos of the location.</p> <p>2. Same—Estoppel—Statement in Relocation.</p> <p>Where, by reason of an overlap in the N. claim onto the P. claim, a relocation of the N. claim is made, the designation, in the relocation, of a certain line as the north end line of the P. claim, and the express abandonment of all that portion of the N. claim, for surface and lode, lying south of such line, do not estop the owner of the N. claim to denjr that such line is an end line of the P. claim for the purpose of extralateral rights.</p> <p>8. Same—Abandonment.</p> <p>The abandonment by the relocation of the N. claim was to any and alS lodes within the surface boundaries of the P. location and survey, and it did not give to the P. claim any greater rights than it previously had by virtue of its location and survey.</p> <p>4. Same—Statements oe Superintendent.</p> <p>A statement by the superintendent of a mining corporation, made without. the scope of Ms authority, that he would not interfere with or cross a line between its claim and another, is not binding on the corporation.</p>

Under the head of “Examiners' Fees” the complainants presented the following items for taxation, yiz.: Examiners’ fees: (5 days occupied (a] if3.................... 18 00 8 exhibits filed &.identified @ 25 cents......................' 2 00 (5 witnesses sworn @ 10 cents....................'.......... 00 412 fol. evidence taken @ 20c.............................. 88 40 Examiners’ & typewriters’ fees for do...................... 84 00 192 60 The clerk taxed the bill as follows,…

<p>Motion for Rehearing.</p> <p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p>

<p>1. Taxable Costs—Expense of Affidavits on Motion foe Preliminary Injunction.</p> <p>A respondent wlio succeeds in defeating, an application for preliminary injunction is entitled to liave taxed the cost of the notarial certificates and seals attached to the affidavits used by him on the hearing, but not the expense oí writing the affidavits in the form of depositions.</p> <p>2. Same—Printing Evidence and Abstract of Record.</p> <p>The expense oí printing evidence and abstract of record is not taxable in the circuit court, in the absence of any rulo of court or special order requiring such printing to be done.</p> <p>8. Same—Coimes of Testimony.</p> <p>Payments to stenographer for making carbon copies of testimony for use of the party or liis counsel is not taxable.</p>

<p>Action by Ewers’ administrator against the National Improvement Company. The verdict was rendered for the plaintiff, and defendant moves for a new trial.</p>

<p>1. Witness—Privileged Communications—Messages in Hands of Telegraph Companies.</p> <p>Telegraphic messages in the hands of telegraph companies are not privileged communications, so far as the companies are concerned, and their production will be compelled by subpoena duces tecum, in aid of an investigation by a grand jury of supposed criminal acts of the senders and receivers of the messages, with which such companies and their officers are in no way connected.</p> <p>2. Subpoena Duces Tecum for Production of Telegrams—Sufficiency.</p> <p>By the petition of the United States attorney for a subpoena duces tecum, directed to, and to' be served on, the superintendent of a telegraph company, requiring him to appear as a witness before the United States grand jury, and produce certain telegrams, it appeared that such jury was investigating certain alleged violations of the laws of the United States relating to the obstruction of the mails and carriers of the same, and relating to conspiracies in restraint of interstate trade and commerce, during the recent strike on the Southern Pacific Railroad, directed by the American Railway Union, which is a matter of general public notoriety. Held, that such subpoena ivas not defective because it called for telegrams between a number of parties, without describing the messages, by date or otherwise, so as to identify the particular messages required, where the facts and circumstances of the case indicated that telegrams had passed between tlie parties, and their general character, and where tlie subpoena described them with such particularity as appeared to be practicable. Ex parte Jaynes, 12 Pac. 117, 70 Oal. 639, distinguished.</p> <p>3 Same—Witness—Right to Compensation in Advance.</p> <p>It is no cause for quashing a subpoena duces tecum, requiring a witness to appear before the United States grand jury, that no compensation has been tendered the witness for his outlay in making the necessary search for telegrams which he is required to produce, since the United States is not required to tender witness fees in advance.</p>

<p>Bail in Criminal Oases—Defense to Recognizance—Estoppel.</p> <p>It is no defense to a recognizance that it was taken and acknowledged before the clerk of the district court, where this was done by order of the district judge, made at the request of the accused, and to secure his speedy discharge.</p>

<p>This was a suit in equity by the McEwan Bros.. Company against George L. White for infringement of a patent.</p>

<p>1. Patents- Extent of Claims—Pioneer Invention — Dredging Machines.</p> <p>Tlie Bowers patents, No. 318,859, for dredging machine, and No. 355,-251, for hydraulic dredging apparatus, are valid, and cover inventions of a pioneer' character, and the claims are entitled to a broad construction.</p> <p>2. Same—Center of Oscillation.</p> <p>Two forms of centers of oscillation are described in the Bowers patents, viz. one consisting of a turntable rotating in a circular well in combination with two spuds or vertical anchors passing through apertures in the turntable; the other consisting of a single spud when the turntable is made stationary. The claims which specify, as one of the elements, “a center of oscillation,” include and cover both forms, and are not limited to the first form, and Bowers was not anticipated in the latter form by Angelí or the defendant</p> <p>8. Same—Functional Claims.</p> <p>The element designated in the Bowers claims as “a rotary excavator with inward delivery” is not functional in form, but means a rotary excavator of such construction as will produce an inward delivery.</p> <p>A Same—Rotary Excavator with Inward Delivery.</p> <p>Two forms of rotary excavators with inward delivery are described in the Bowers patents,—one containing an inner chamber or shield, within the cutter head, having an opening in the top for admission of the spoils; the other with said inner chamber or shield cut away until only enough remains to support the excavator and shaft. The claims containing the element, “a rotary excavator with inward delivery,” include and cover both forms, and are not limited to the first form.</p> <p>5. Same—Amendment of Specification in Patent Office.</p> <p>Where an applicant for a patent is the original and first inventor of a form of device, but his original specification does not sufficiently describe it, so as to entitle it to be claimed therein, it is competent for him to amend, his specification so as to include it, at any time prior to issuance of his patent, even though such amendment be made in reference to another patent, applied for and issued prior to the issuance of the applicant’s patent, but subsequent to his invention.</p> <p>6. Same—Anticipation—Early Models and Drawings.</p> <p>An apparent anticipation may be avoided by a complainant by proving priority of invention over the alleged anticipation, and models or drawings, if sufficiently plain to enable those skilled in the art to understand them, are competent proof of such priority.</p> <p>7. - Same—Infringement.</p> <p>The excavator shown in the Von Schmidt patents, Nos. 277,177, 300,333, and 306,368, though differing in the mode of mounting and in the shape of the cutting blades, is essentially the same, and operates in substantially the same way, producing the same result, as the B.owers excavator.</p> <p>8. Same—Subsequent Patent.</p> <p>A subsequent device may be an infringement of a prior patent notwithstanding the fact that such subsequent device is in itself an invention, and patented.</p> <p>9. Same—Aggregation and Combination.</p> <p>A combination, to be patentable, must produce a different force or effect or result, in the combined forces or processes, from that given by their separate parts. There must be a new result by their union. If not so, it is only an aggregation of separate elements. The Bowers claims bear the test of all the definitions. They are true combinations, and not aggregations.</p>

<p>1. Patents—Construction of Claims—Infringement—Cross Cut Saws.</p> <p>Tlie Simonds patent No. 269,728, for a cross-cut saw, as an article of manufacture, if valid at all, is limited to a saw formed by curvilinear grinding along lines parallel with, its cutting edge, so as to be of substantially tbe same thickness throughout the length of its curved cutting edge, and of gradually diminishing thickness in the direction of its width from cutting edge to back; and the patent is not infringed by a saw having a curved cutting edge and straight back, and made from a plate of steel rolled so as to have a gradually diminishing thickness from cutting edge to back, and ground on straight lines, so that it has a slightly greater thickness along the central part of the cutting edge than at the ends, and a uniform thickness along the back from end to end.</p> <p>2. Same—Patentable Invention—Ciiange in Size.</p> <p>It would seem that a patent for a special form of cross-cut saw as an article of manufacture cannot be sustained when it appears that there previously existed a small saw for cutting Are wood, of substantially the same form; for the change is one merely of size or proportion, which is not patentable.</p>

<p>1, Patents—Limitation of Claims—“Substantially as Set Forth.”</p> <p>Matters which are only incidentally referred to in the specifications, and not described, cannot be read into the claims by means of the words “substantially as set forth,” especially when the claims themselves are unambiguous and exact.</p> <p>2. Same—Combination Claims—Separate Elements.</p> <p>A claim fór a combination carries with it an implication that the separate elements are old. The Oom-I’lantor Patent, 23 Wall. 181, followed.</p> <p>3. Same—Patentable Invention—Prior Art-- Electric Ligiitino Circuits.</p> <p>The Edison patent, No. 201,612, for preventing the drop in tension upon electric light wires by combining a. feeding circuit with a consumption circuit, tlie main conductors of which are so proportioned as to maintain such uniformity of pressure upon Them that there is practically no variance in the candle power of the lamps connected therewith, is void as to the first three claims, as showing merely the application of mechanical and engineering skill to solve the difficulty as soon as it was made to appear by the production of a practicable incandescent electric lamp. The lack of invention is especially apparent in view of the prior state of the art as shown by the French patent to Khotinsky, of 1875. 55 Fed. 190, reversed.</p>

This was a suit in equity by Fred II. Beach against the American Box-Machine. Company and Horace Inman and others for the infringement of a pa tent. On final hearing.

This was a suit by Frank A. Babcock and others against Joseph T. Clarkson and others for infringement of a patent. The patent was No. 300,847, issued June 24, 1884, to defendant Clarkson, for an improvement in jump seats. Complainants claimed title under' assignments from Clarkson. The circuit court dismissed the bill, and a decree for defendants was entered thereon. 58 Fed. 583. Complainants appealed.

This was a petition by Erastus Woodward and others, appellants, for a rehearing of their appeal, after a decision affirming the decree of the circuit court. 8 O. 0. A. 622, 60 Fed. 283. Leave to file briefs was granted to both parties.

This was an action by Joseph F. De Loriea and Griffin Place, executors of James W. McDonald, against Arthur E. Whitney, for damages for infringement of leiters patent No. 210,797, issued December 10, 1878, for a machine for unhairing and scouring hides and skins. On trial in the circuit court the judge instructed the jury to find for defendant.

<p>Unpublished Opera—Unauthorized Production- -Accounting for Profits.</p> <p>One who produces an opera without authority from the author must account to him fox the proñts, where such opera has never been circulated or published, though copies liad been printed for the private convenience of performers, in learning their parts.</p>

<p>1. Copyright op Photograph — Equity Jurisdiction' — Suit for Penalties and Forfeitures.</p> <p>Complainant filed a bill to recover penalties and enforce forfeitures, under Rev. St. §§ 1963, 4903, for infringement of copyright oai a photograph, and also prayed an injunction, and that defendants be required particularly to answer iiow many copies they hart sold. Held, that there was an adequate remedy by action at law, and equity had no jurisdiction.</p> <p>2. Same—Discovery.</p> <p>Under Rev. St. § 860, an alleged infringer of a copyright on a photograph cannot be required, by answer or otherwise, to disclose any fact npon which a claim against him for penalties and forfeitures accruing under Rev. St. §§ 4963, 4965, may depend.</p>

<p>Shipping—Personal Injury—Hoisting Cargo—Negligence—Fellow Servants.</p> <p>. Where the libelant, a longshoreman, was injured by the fall of a draft of boards which were being hoisted aboard a steamer, and the evidence showed that the cause of the accident was the improper fastening of the draft, so that the draft did not tauten as it should have done when the draft went up, held, that it was immaterial by whose fault this occurred, since it was certainly done by one of the several workmen engaged in the same common employment, which would prevent any recovery by the libelant.</p>

<p>On Appeal from the District Court of the United States for the Northern District of Illinois.</p> <p>Libel by Thomas Wilson, R. McLaughlin, Mary P. Wilson, D. Morris, 'Wilson D. Morris, Thomas E. Quayle, William H. Quayle, George L. Quayle, Alvira Scott, Luther T. Lyman, William Wilson, 1he Maritime Insurance Company, and the Insurance Company of Philadelphia against the city of Chicago, the North Chicago Street-Railroad Company, the Vessel Owners’ Towing Company, and the Fitz Simons & Connell Company. Libelants obtained a decree against the Vessel Owners’ Towing Company and the Filz Simons & Connell Company, and the latter appeal.</p> <p>This was a libel by tlie owners of the steamship Wallula and by the owners and insurers of her cargo for injuries sustained by the vessel and cargo in collision with the south abutment of the Wells street bridge over the Chicago river in tlie city of Chicago during an attempt to pass down the river and through the south draw of the bridge, under the following circumstances: The piers of the Wells street bridge were constructed some 25 years ago. Above the surface of the water they presented a smooth face of masonry; below the surface they were built in footing courses extending from a. point five feet below die surface some six feet into the river, in irregular projections,of steps, to the bottom of the river. A row of spiles was maintained by the city of Chicago in the river along the face of the abutment, driven close to the abutment, at its base, and standing some six feet from its face above the water, serving to ward off vessels from contact with the abutment. The other and more modem abutments of other bridges over the river were not so constructed, but present a smooth batter face to the bottom of tlie river, and, while'not perpendicular, were constructed at a very slight incline, the projecting spiles being only some two feet from the face of the abutment above the water. A street-railway company, under an arrangement with the city, undertook to construct new abutments and a new bridge at Wells street. The appellant Fitz Simons & Connell Company became the contractor for the erection of the substructure. The piers or abutments were to be taken out and removed some 10 feet nearer tlie shore, increasing the width of the draws of the bridge, then some Mi feet. By its contract it agreed to erect and maintain such guards, and during the nighttime such lights, as would prevent the happening of accidents or harm to life or property in consequence of the digging up, use. or occupancy of any highway, and covenanted for liability for all damages occasioned by the digging up or use or occupancy of any highway, or which might result therefrom, or from the carelessness of any servant, of the company. Work was first begun in the north draw, and was completed early in the month of April, 1888, so that it was free for the passage of vessels before the commencement of work in tlie south draw, except that several schooners were lying at their winter berth, about 150 feet east of the draw, rendering it. impassable for large vessels. The company thereupon, and a day or two prior to The collision iu question, removed all tlie protecting piles iu the south draw by means of block and fall purchase operated in a. pile driver mounted on a scow. Just prior to the time of the accident its servants were engaged upon the scow in removing a group of spring piles at the northeast corner of the pier. At the time of the collision, opposite the south draw and from 150 to 300 feet west of the west end of the central projecting piling supporting the bridge, the Palmer, a large steam barge, lay aground, her bow pointing eastwardly to the lake, and had so been lying for 21 hours be fore the collision. About noon of the 9th of April, 1888, the steamship Wallula, laden with a cargo of 06,000 bushels of oats consigned to Buffalo, was proceeding down the river in tow of two tugs, owned and operated by tlie appellant the Vessel Owners’ Towing Company.. the Carpenter ahead and the Van Schaiek astern. The Wallula had no steam up, and had no control of her own movements, her tiller being lashed amidships by direction of the tugs. She passed to the north of the Palmer, stopping when opposite to that vessel,—in the opinion of some of the witnesses, because she grounded alongside of the Palmer. Whether that were so or not, the head tug started up suddenly and “wide open,” giving the Wallula a headway of from two to three miles an hour, not in a direct line through the draw, but swinging to starboard towards the abutment. As the Wallula bore down upon the abutment, and when from 20 to 60 feet distant therefrom, the tug Carpenter swung off to port, working with full steam to check the steamer on her course, and endeavored to pull the stem of the Wallula around, to avoid collision with the abutment. The maneuver was too late, and the Wallula crashed into the abutment at an angle of about three points, coming in contact with the salient of one of the footing courses of the abutment, about five feet below the surface of the water. Under the guidance of the tugs she proceeded down the river to the Central elevator. Upon examination of her bow and side above the water no fractures were found, and it was supposed that no injury had been received. Upon sounding the next morning, four feet of water were found to be in her hold, and upon removing the hatches the water could be heard running in. Pumps wére then applied, the uninjured grain removed, and the injured grain taken out and sold. The vessel was placed in dry dock, where it was discovered that an irregular hole had been made in the bluff of her bow below the water line on her starboard side from 10 to 15 feet from the stem. It was of the character of a heavy gouge, breaking and shredding a plank 5 inches thick. The district judge held that the injury was sustained by the joint negligence of the appellants, and decreed that each should pay one-half the damages sustained. The opinion of the court is reported under the title of Wilson v. City of Chicago, 42 Ifed. 506.</p>

<p>1. Colltstox—Rules as to Passing—Coast Watejis.</p> <p>Tide waters, navigable from the ocean, by ocean craft, are “coast waters,” within Act March 3, 1885 (23 Stat. 438 et. scq.), adopting the revised international rales and regulations for preventing collisions at sea (article 21 of which embodies the rale “Keep to the right”), and declaring that they shall be the rules for navigation on the high seas and in all coast waters, except as are otherwise provided for; the exception being defined by the further provision that “nothing in those rules shall interfere with the operation of a special rule duly made by local authority, relative to the navigation of any harbor, river, or inland navigation.”</p> <p>2. Same—Rivers—Harbor Rules.</p> <p>Part of a river not within the territorial limits of a city, though part of its harbor is not affected by a rule of navigation for the harbor ordained by the city, under provision of Act March 3, 18S5, that a special rule, duly made by local authority, relative to the navigation of any harbor, shall not be interfered with by the international rules of navigation.</p> <p>3.. Same—Keeping to the Right.</p> <p>When the steamers P. and V., the former going 4 miles and the latter 6 miles an hour, were at a distance of 1% miles, approaching each other, in clear daylight, along a narrow channel, which was in full sight, and governed by international rule 21 (“Keep to the right”), the X'., which was obeying the rule, signaled the V., which was not obeying it, that they should pass port to port. When over 1,000 yards distant, the Y. answered with a cross signal, that they should pass starboard to starboard, without there being any cause 'therefor, and without giving any signal to indicate that there was such cause. The P. thereupon repeated its signal, which the V. promptly answered with its cross signal, whereupon both gave alarm signals and backed, without, however, preventing a collision. Held, that the V. was liable therefor, and the fact that, shortly before the collision, she had a schooner under her starboard side, and that this and two other schooners, which she had met shortly before, passed on her starboard, was no excuse.</p> <p>4. Same—Absence on Lookout in Bows.</p> <p>The fact that a steamer had no lookout forward at the time of a collision will not render her liable for the cargo, as having contributed to the. collision, she being navigated at the time by a pilot, with her master on the main bridge acting as lookout, and she having omitted nothing'which she ought to have done, or which she would have done had there been a lookout in her bows.</p>

This was a motion for a preliminary injunction. The bill was filed by the Home Insurance Company of New York against Milton A. Nobles, Edward F. McMenemin, Phineas Tolman, and Gustav E. Kress for an injunction restraining them from further issuing a certain circular, and from in any way interfering with complainant’s business by threatening complainant’s policy holders, or those intending to become such, with prosecution for an infringement of alleged copyrights, or from in…

<p>In Equity." On motion for preliminary injunction. The facts appear in the preceding case, 63 Fed. 641.</p>

In Equity. This was a motion by the city of St. Paul to vacate a final decree rendered against it upon a bill by Peter Stuart and others, charging infringement of a patent, and to permit the defendant to answer.

<p>1. Deed—Construction.</p> <p>Where land is conveyed to a trustee for the sole and separate use of a married woman, giving her full power to sell and convey the property, and it is provided that, in case she dies without disposing of the property by deed or will, the trust shall cease and determine, and the property shall revert to and vest in her husband, held that, on the death of the wife, the property being undisposed of, an equitable fee-simple title to tho land vested in the husband.</p> <p>2. Same—Statute of LnirT-VTioxs.</p> <p>Where land is conveyed to trustee for the sole and separate use of a married woman, in trust to pay over to her the rents during her natural life, and no longer, with power on her part to dispose of the property, and it is provided therein that, in case of her death without disposing of the property, then that tho same shall be held by tho trustee for the use and benefit of her children, held that, upon her death, the title 1o the property vested in the children; and the husband having entered into possession of the premises, claiming them as his own, and having' held them continuously for a period of more than 10 years after the death of tlie wife,- the right of entry of tlie children as remainder-men was barred.</p>

'The Western Mortgage & Investment Company, Limited, instituted this suit in the court below, praying for judgment against the appellee Ferdinand Ganzer on the latter’s notes for $4,200, interest thereon, attorney’s fees, and costs, and for foreclosure of deed of trust lien on certain lots in the city of Dallas, Tex., alleging that, on the written application of Ferdinand Ganzer, complainant had loaned him $4,200 on April 17, 1889, payable April 17, 1892, which loan .was…

<p>This was a petition to test the question whether under section 2, subdivision “Judicial,” of the appropriation act of 1894, the clerk of the circuit court for the southern district of New York could hold the office of commissioner of the circuit court in such district.</p>

<p>Appeal from tlie Circuit Court of tbe United States for the Eastern District of Pennsylvania.</p> <p>This was an action by Josiah R. Adams, receiver of the Penn Safe’ Deposit & Trust Company, and others, against Benjamin E. Fisher, as receiver of the Spring Garden National Bank, and against the hank itself, to establish a liability on the part of the bank for certain funds of the trust and deposit company, which were used for its benefit. The circuit court entered a decree for complainants, and respondents appealed.</p>

<p>This was an action by the American 'Wooden- Ware Company against Arthur Stem and the Oval Wood-Dish Company. Motion to-vacate service of summons. The papers on this motion disclosed substantially the following sta te of facts:</p> <p>The action was originally commenced in the supreme court for the city and county of New York by the service of a summons upon defendant company’s treasurer while temporarily within the state in attendance on United States court in charge of one of the company’s causes, and in expectation of testifying as a witness. Defendant company appeared on motion to vacate said service on the circumstances stated, but said motion was denied. • Thereafter defendant company removed the cause to the United States circuit court, and there renewed the motion upon additional facts. The papers before the court disclosed that prior to the action the defendant company had bought in, on execution sale, a stock of goods belonging to its judgment debtor, and sold the same to various customers, in the regular course of business, through an agent especially appointed for that purpose, and residing in the state of New York. Also that the defendant company had Cor many years previously obtained in said state orders for its goods through a traveling salesman resident in Ohio, but that the company had no oiiice or regular place of business, not did it transact business within the state of New York, except as aforesaid.</p> <p>Cited Good Hope Co. v. Railway Barb-Fencing Co., 22 Fed. 635, 637; Golden v. Morning News, 42 Fed. 112; Atchison v. Morris, 11 Fed. 582; McGillin v. Claflin, 52 Fed. 657; Ahlhauser v. Butler, 50 Fed. 705; Bentlif v. Finance Corp., 44 Fed. 667.</p> <p>Cited Bryant v. Thompson, 27 Fed. 881, 883; Duncan v. Gegan, 101 U. S. 812; Estes v. Belford, 22 Fed. 275; Davis v. Railway Co., 25 Fed. 788; Carrington v. Railroad Co., 9 Blatchf. 468, 469, Fed. Cas. No. 2,448; Sweeney v. Coffin, 3 Am. Law T. Rep. U. S. Cts. 18, Fed. Cas. No. 13,686; Jones v. Andrews, 10 Wall. 327; Pope v. Manufacturing Co., 87 N. Y. 137; Ex parte Schollenberger, 96 U. S. 377.</p>

<p>PLEADING—SUFFICIENCY 03? ANSWER -ACTION ON GUARANTY.</p> <p>An answer to a complaint upon an alleged contract of guaranty, though loosely and inartificially drawn, and pleading the evidential instead of the ultimate facts, held to be sufficient, in substance, where the allegations and denials led to the conclusion that it denied that the written contract of guaranty was ever completely executed, so that it became an existing agreement, and that it averred that the loans set forth in the complaint were negotiated tinder a conditional guaranty, the terms' of which had not been complied with by the plaintiffs.</p>

<p>1. Auction—Sale of Corporation’s Real Estate—Manager as Auctioneer.</p> <p>The fact that tbe auctioneer wbo sells real estate of a corporation at public auction is a stockholder, director, secretary, treasurer, and a general manager of such corporation, does not affect the validity of the sale. Kearney v. Taylor, 15 How. 491, distinguished.</p> <p>2. Same—Prior Agreement between Auctioneer and Purchaser—Effect.</p> <p>Where the conditions of such sale are that the land shall be paid for with stock in such corporation at 80 cents of the par value, an agreement by. the auctioneer, made before the. sale, to let the purchaser have sufficient stock to make such payment, does not affect the validity of the sale.</p> <p>3 Sale of Real Estate—Statute of Frauds.</p> <p>Code Va. § 2840, which x>rovides that no action shall be brought on a contract for the sale of real estate unless the contract, or some memorandum or note thereof, is in writing, and signed by the party to be charged thereby, or his agent, renders a parol contract for the sale of real estate voidable only, and not void.</p> <p>4. Fire Insurance—Insurable Interest.</p> <p>A purchaser in possession of real estate under a parol contract of sale has an insurable interest therein, though the contract x>rovides that the vendee shall complete a building thereon within six months, and the title shall not pass until such building is comx>leted, and the building burns before it is completed; the purchase price being paid and deed executed after the loss occurs, and the loss occurring before the expiration of the six months.</p> <p>5. Same—Conditions—False Statement of Assured’s Interest.</p> <p>Where a fire insurance agent lias full knowledge of assured’s interest in property at the time he issues a policy on it which misstates assured’» interest, and he issues the policy on his own knowledge, without any statement or representation by the assured, the policy is not rendered void by a condition that it shall be void if such interest be not truly stated.</p> <p>6. Same—Vacancy of Property—Negligence of Agent.</p> <p>In an action on a policy issued on a building not yet completed or fit for occupancy, it appeared that a vacancy permit for 30 days was indorsed on the policy, and defendant’s agent promised assured iliat he would indorse such a permit on the policy every 30 days until the work of completing the building' should bo commenced, or until assured was otherwise notified; that after indorsing such permit twice the agent failed to again indorse it at the proper time, by inadvertence; and that the property burned more than 10 days after the permit expired. Held, that the condition in the policy declaring it void if the building remained vacant for 10 days was waived.</p> <p>7. Same—Conditions in Policy—Manner of Printing—Statutory Requirements.</p> <p>Code Va. § 3252, provides that a failure to perform any condition of aw insurance policy issued after the statute takes effect shall not be a valid defense to an action on such policy, unless such condition is printed in type as large or larger than that known as “long primer,” or is written with pen and ink in or on the policy. Held, that such statute is not in conflict with any provision of the constitution of the United States or of the state of Virginia, and is valid.</p>

This was an action by Patrick Henry Winston against the United States to recover compensation alleged to be due him for services rendered defendant as United States district attorney.

<p>This was a writ of habeas corpus to procure the release of O. H. Schechter from imprisonment under commitment of a justice of the peace.</p>

<p>Patents—Limitation of Claims—Infringement—Gasoline Stoves.</p> <p>Tbe Wbittingbam patent, No. 235,600, for 'a gasoline stove, if va’id, is strictly limited by tbe terms of its specifications, and by tbe prior-state of tbe art, to a stove having a burner plate with tbe vaporizing and “fixing” chambers projecting laterally therefrom, and connected by a conduit extending across the under side thereof, and is not infringed by a stove in which tbe fixing chamber is located on tbe under side of tbe burner plate.</p>

<p>This was a suit by John M. Klein against the city of Seattle for infringement of a patent.</p>

<p>In Admiralty. Claims of surplus. Mortgagee and receiver.</p>

<p>In Admiralty. Competing claims upon the freights of five steamers chartered by the United States & Brazil Mail Steamship Company.</p>

<p>1. Maritime Liens—Letters of Credit—Hypothecation of Freights—Agreement for Further Security.</p> <p>A steamship company in New York, in order to obtain, letters of credit to disburse their ships in Brazil, hypothecated all freights, and agreed to give “further security when required:” Held, that the agreement for further security was too indefinite to constitute any lien on ihe vessels themselves, or iheir proceeds; and that no such lien could be allowed upon the insufficiency of the freights to pay the drafts drawn upon the letters of credit.</p> <p>2. Same — Treasurer's Authority to Pledge Vessels—Dealings with the Owner A lone—Subrogation".</p> <p>Upon a claim by the personal guarantors of letters of credit, that the treasurer of the steamship company, owner, had pledged both vessels and freight to them for their security: Held, upon conflicting evidence, (1) that tiie pledge was only proved as respects the freights, which 1lie treasurer had been previously accustomed to pledge in writing for similar purpose's; (2) the treasurer’s authority to pledge the vessels, without the action of the board of directors, questionable; (3) that as the dealings of the guarantors were wholly with the owner in New York, they had no direct implied li('n upon the vessels for the" moneys obtained by the' sale of elraffs drawn against the letters of credit in Brazil and applied to disburse the ships there in tlie> absence of any agreement f<>r such a lien; (1) for the same reason, and also because» the moneys obtained on the drafts were the company's moneys, and because the purchasers of the drafts had no lien, the guarantors could have none by subrogation to any liens of material men in Brazil in the absence of any intent or contract to that effect in the original transaction.</p> <p>3. Same— Kkmnants and Surplus of Salí;—Mortgagee's Claims.</p> <p>There being no liens arising out of the: letters of credit, either general or specific, upon the vessels, or their proceeds: Held, that ihe mortgagee was entitled to the surplus after satisfying the maritime liens already decreed.</p>

<p>In Admiralty. Lions upon freights.</p>

<p>Apportionment of the Proceeds of the Sale of the Vessel.</p>

This was a suit by the United States Trust Company of New York against the Omaha & St. Louis Railway Company, in which J. F. Barnard was appointed receiver. He thereafter petitioned foi the reduction of wages of employés, and the matter was referred to a.master in chancery, who recommended such reduction. The matter now comes before the court on exceptions to the master’s report.

<p>This was a suit by the American Freehold Land Mortgage Company of London, Limited, against J. J. Whaley and P. W. Farrell, for foreclosure of a mortgage.</p>

<p>1. ConroiiATiONS—Rights or Stjbscpjbebs to Stock.</p> <p>Complainants and defendant W. entered into an agreement by which W. was to purchase the T. newspaper, lie furnishing seven-tenths and complainants three-tenths oí the purchase price; and a corporation was to lie organized to imblish the paper, stock in which was to be issued to the parties in proportion to their contributions to the purchase; price. Complainants advanced their proportion in cash, W. purchased the newspaper property, and transferred same to the corporation upon its organization, and became president and general manager. Upon a bill alleging that W. had falsely represented to complainants that he was financially able to carry out his part of the agreement, whereas he was insolvent; that the only cash used in the purchase was Unit furnished by complainants; that W. had obtained credit for the balance oí the purchase money upon his noles, which he afterwards paid vvitli funds of the corporation misappropriated by him as president; that lie had caused stock, to be illegally issued, and had apxiropriated stock without paying for i he same; and praying for cancellation of the stock illegally issued, and for a declaration that complainants were the only purchasers of the newspaper property, and the only owners of tlie stock of the corporation,—-fteM, that W.’s misrepresentation of the value of his property could not affect the validity or ownership of the stock; that it was no objection to W.'s title to tlie stock issued for the newspaper property that he had obtained the property on credit, and not paid for it; that complainants did not. become the sole owners of the stock, or their shares the only valid shares, because they alone paid what was paid for the property; that there should be a reference to a master to ascertain the exact rights of the parties, arising from W.’s issue of illegal stock or otherwise; and that upon proper findings there might he a decree canceling shares standing in W.’s name, but not upon the ground merely of his misappropriation of money or credits of the company.</p> <p>2. Fraud—Sufficiency of Proof.</p> <p>The bill also alleged that a piece of real estate bought by W. with the newspaper property, but forming no part of it, had been retained by him. No fraud, misrepresentation, mistake, concealment, or breach of trust was alleged or proved, and it appeared that complainants knew of W.’s retention of the lot. Seld insufficient to sustain a decree in complainants’ favor against W. for three-tenths of the value of the lot.</p>

<p>Appeal—Trial by Refkrf.xce.</p> <p>An oral consent in open court to an order of reference, made pursuant to a state statute (Code Civ. Proc. Neb. § 298) will not enable the circuit court of appeals (eighth circuit) to review the action of the circuit court on exceptions to the leferoe’s rexiort, where there was no bill of exceptions malting that rexiort, or the evidence upon which it was founded, a part of the record. Dietz v. Lymer, 10 C. C. A. 71, 01 Fed. 792, affirmed.</p>

<p>1. Process—What Constitutes—Notice of Garnishment.</p> <p>Ret. Si. § 915, gives plaintiff, in common-law causes in the United States circuit court, remedies by attachment or other process against; defendant's properly, similar to those piovided by the state statutes. Code Iowa, 3 2902, provides that the clerk shall issue the writ of attachment. Section 2.907 provides time property of defendant held by a third person may be attached by giving die latter notice of attachment. Section 2975, as amended by Laws 18th Gen. Assem. c. 58, provides that garnishment is effected by informing the supposed debtor (hat he is attached as garnishee, and leaving written notice not to pay any sum due, or deliver t.ho property, to defendant, etc. There is no provision in the Revised Statutes or Iowa Code requiring either of such notices to proceed from the clerk. Held, that a notice to the garnishee is not a ‘‘process,'" within Rev. St. S 9U, relating to process, and that such notice in actions in the United State's circuit, court in Iowa is properly signed by the marshal, and need not bear the seal of such court or the teste of the chief justice of the United ¡States.</p> <p>2. Garnishment in State Court—Vamoity.</p> <p>Where, in an action pending in a United Stales court, in Iowa, it appeared that in certain actions, aided by live writs of attachment, lately pending in an Iowa state court, the main defendant had been duly notified of pendency of such actions, and also of garnishment proceedings thereunder, and judgments had been rendered against him therein, and that the garnishee had appeared in such actions, and filed his answers therein, submitting himself and the goods in his hands to the jurisdiction of the Iowa court, and judgments were rendered, according to the form of die Iowa statutes, against said garnishee, and condemning to sale property in lfis hands as belonging to such main defendant, held, that irregularities in the garnishment notice served on the garnishee do not affect tin; validity of the judgments thus rendered against him.</p> <p>8. Same.</p> <p>In garnishment in a United States court in Iowa, against a bank of which .T. was cashier, it appeared that .Í. took possession of defendant’s (mortgagor’s) stock of goods under a mortgage to the bank, and sold sufficient goods to' pay the Indebtedness held by the bank, which said mortgage had been given to secure; that, while J. was thus in possession of said goods, attachments issued out of an Iowa state court against the property of the mortgagor, and garnishment notices were served on J., and notices thereof also served on main defendant; that such garnishee appeared in the Iowa court, and filed his answers therein. .Held, that ■judgments in such Iowa courts condemning to sale the property so in the garnishee’s hands were not void because the notice to garnishee required him to appear at a date prior to the first day of the next term of court, instead of on such first day, as required by Code Iowa, § 2979. Padden v. Moore, 12 N. W. 724, 58 Iowa, 703, distinguished. Panning v. Railroad Co., 37 Iowa, 309, applied.</p> <p>4. Same—Notice'to Cashiee op Bank instead op Bank—Effect.</p> <p>Nor do the facts that .the garnishment notice in the Iowa court was served on the cashier individually, and that the judgment therein was against him, render the bank liable to a subsequent garnishment in the federal court. ¡</p>

This action was brought by Aline M. Smith against the New England Mutual Life Insurance Company on a policy of insurance for 810,000 issued on the life of Zant Mc-D. Smith. Another action was brought at the same time on another policy, like, in all respects, to the one in this action, and the two cases were tried together.

<p>Banks—Action for Overdrafts Paid—Evidence.</p> <p>In an action by tbe receiver of a bank against a customer to recover $6,784.94, paid on alleged overdrafts, tbe bookkeeper of tbe bank testified that tbe ledger showed $2,995.78 overdrafts at tbe close of 1888, and that (be leaves in tbe ledger of 1889 containing defendant’s account bad been destroyed, before the bank suspended, by some unknown person, but that tbe witness’ recollection was that the ledger showed overdrafts by defendant of about $6,000. The cashier testified that checks amounting to $B,619.16 of defendant were paid in 1889. There was no evidence of tbe amount of deposits in 1889 made with'the receiving teller, or that none bad been made. No deposit slips were produced, nor was it shown that there were no such slips. Tbe accuracy of tbe ledger accounts was not proved. Meld, that tbe court properly directed a verdict for defendant.</p>

Appeals from and Writs of Error to the Circuit Court of the United States for the Eastern District of Arkansas. These were six suits which were brought, by the Little Rock & Memphis Railroad Company against the St. Louis Southwestern Railway Company, the St. Louis, Iron Mountain & Southern Railway Company, and the Little Rock & Ft. Smith Railway Company, for alleged violations of the third section of the interstate commerce law (24 Stat. 379, 380).

<p>Error to the Circuit Court for the Northern District of California.</p> <p>This was an action by J. E. Barnard against Henry T. Noyes and John S. Noyes. The complaint, sworn to and filed May 22, 1891, alleged that on June 5, 1882, defendants and Delevan F. Clark and M. P. Filmore entered into an agreement with plaintiff and one Charles G. Noyes whereby the latter agreed to purchase for the former certain redwood timber lands, and to receive therefor 15 per cent of the net profits to be derived from the sale of such lands or from stumpage, after adding to the sum of money expended in the purchase thereof the annual taxes and 7 per cent interest per annum; “stumpage” to mean the value of the timber scaled on the land if cut by defendants, or the amount received from the sales, defendants “to determine the times and terms of sales of either, the market value of stumpage there- obtaining.” That plaintiff and said Noyes, immediately after the execution of said contract, purchased at divers times from June 5, 1882, to February 17, 18S3, 5,198.44 acres of redwood timber lands for defendants and their associates, the total cost of which, under the terms of the contract, amounted on August 6, 1883, to $32,550.64. That, on such day, defendants and their associates were offered by a responsible person, willing and able to purchase said lands, the sum of $25 per acre for all of said lands, and that such person, if such offer had been accepted, would have paid defendants therefor the sum of $129,963.25, but that defendants declined such offer. That the net profits of the purchase of such lands amounted on August 6, 1883, to $97,416.61, and that plaintiff, in September, 1883, demanded of defendants his commissions of 7% per cent upon such net profits, which ihcy refused to pay. That Delevan F. Clark and Millard P. Filmore, defendants’ associates, owned three-eighths of all of said lands, and subsequently to August 6, 1883, sold all tbeir interest to defendant John S. Noyes; and that John S. Noyes sold one-quarter interest to It. A. Alger, aud defendants paid plaintiff his commissions on said sale of one-quarter interest. That defendants have not paid plaintiff his commissions of 7% per cent, upon the remaining three-fourths of the net profits of sa.id purchase, amounting to $73-059.46. That defendants were at the date of the contract, and ever since have been, and now are, nonresidents of the stale of California, and are residents of the state of New York. That defendants have been continuously absent from the state, etc. That Charles G. Noyes departed this life in San Francisco, April 1,1890. Wherefore plaintiff demanded judgment for $5,479.46, with interest from August 6, 1893. An attachment was issued against such timber lands aud levied upon defendants’ interest therein. Xhesummonswasserved by publication. Defendants appeared, and bad the cause removed to the circuit court, for the northern district of California. Defendants demurred to the complaint, on the ground “that the said complaint and the matters therein contained, in manner and form as Rio same are thei’ein stated and set forth, are not sufficient in law for the said plaintiff to have or maintain his aforesaid action therefor against said defendants, and that said defendants are not bound by law to answer the same, for tha.t said complaint does not upon its face state facts sufficient to constitute a cause of action. And, for a. second and further ground of demurrer, said defendants aver that the supposed promises and undertakings mentioned in said complaint (if any were so made) were, and each of them, made, as appears upon the face of the said complaint, jointly with one Charles G. Noyes, and not by plaintiff alone. And, for a third and further ground of demurrer, said defendants aver that the said supposed promises and undertakings mentioned in said complaint (if any were so made) were, and each of them, made, as appears upon the face of said complaint, by Delevan F. Clark and one M. P. Filmore, together with defendants, and such supposed contracts or undertakings were not made by defendants alone. And defendants further say that, by reason of the facts averred as aforesaid, the defendants pray judgment (1) that the said plaintiff may be barred from having or maintaining bis aforesaid action thereof against said defendants; (2) that, by reason of the fact that Uto said Citarles G. Noyes is not joined in said action as plaintiff, tlio defendants pray judgment. that the said complaint herein may be dismissed; (3) that by reason of the fact that the said Delevan F. Clark and M. P. Filmore are not made parties defendant in this action, together with said defendants, they pray judgment that the said complaint herein may be dismissed, with costs.” The demurrer was overruled, and an answer filed. The. trial resulted in a verdict for plaintiff for $8,090. Defendants sued out a writ of error, specifying, inter alia, as error, the action of the court in overruling the first ground contained in the demurrer, in that the complaint does not state facts sufficient to constitute a cause of action.</p>

<p>TvTAI,—PROVINCE OB' COURT AND Jl'iiT—RkLKASK AND DISCHARGE — BlI.DS OP Exceptions.</p> <p>In an action Cor damages, the exclusion of a release which was pleaded, and which plain tiffs alleged was obtained by fraud, held error, which was not cured by the court’s suggesting that defendant incorporate info its bill of exceptions evidence admitted at a former trial on ihe issue as to the validity of the release, defendant, having declined to adopt the suggestion.</p>

<p>Review on Appeal—Attorney and Client—Negligence.</p> <p>Whether an attorney is guilty of negligence in his management of a suit is a question of fact, not roviewable on appeal.</p>

This was an action on the case by William Myers against the Atchison, Topeka & Santa Fd Railroad Company. Plaintiff obtained judgment. Defendant brings error. This action was begun by William Myers in the circuit court of Hancock -county, 111., and was removed by the plaintiff in error into the circuit court of the United States for the southern district of Illinois on account of the diverse citizenship of the parties.

<p>In Error to the Circuit Court of the United ¡States for the District of Colorado. ■-></p>

Action by the Sioux National Bank against the Cudahy Packing Company on a voucher. This action was tried to the court, a jury being waived, and tlio facts developed in the evidence were as follows: The Cudahy Packing •Company had established a branch establishment at Sioux City, Iowa.

<p>1. Copyright—Notioe—Name of Party.</p> <p>Tlie name “Photographische Gesellscbaft” (Pliotograpliie Company), being the trade-name created by tlie owner of a copyright, and extensively used by bim for many years in bis business, is a sufficient designation of tbe party by whom the copyright is taken out.</p> <p>Ü. Same—Residence.</p> <p>The residence of the party taking out a copyright, though a foreigner, need not he stated in the notice.</p> <p>3. Same—Sale of Painting—Reserving Copyright.</p> <p>A sale by an author of his painting, reserving the right of reproduction, does not destroy his right of copyright. The purchaser in such case is not a “proprietor,” within the copyright law.</p> <p>4. Same—Publication—Sale of Replica.</p> <p>The right of copyright of a painting is not destroyed by a sale of a replica, or original study or model, differing from the painting in size and. style, especially where the right of reproduction is reserved on such sale.</p> <p>5. Same—Catalogue Copy.</p> <p>The printing in a salon catalogue, without notice of copyright, of a mere crayon sketch of a painting exhibited in the salon, not intended in any way to serve as a copy of the painting, is not a publication which will work a forfeiture of the right to copyright.</p> <p>6. Same—Public" Exhibit.</p> <p>Au exhibition of a painting in a public salon is not a publication working a forfeiture of the right of copyright unless the general public is permitted to make copies at pleasure, and such iiermission will not be assumed in the absence of direct evidence.</p>

<p>1. Alikxs— Naturalization Prookkdi.ngs.</p> <p>An aivplieant for naturalization is a suitor who, by his petition, institutes a proceeding in a court of justice for the judicial determination of an asserted right, and such pet 11 ion must allege the existence of all the facts, and the fulfillment of all the conditions upon which the statutes (Itev. St. 2163. 2167) make (lie right dependent, and must be supported by legal proofs of the facts on which the petition rests.</p> <p>2. Same—Examination.</p> <p>The applicant's oath to support the constitution of the United States will not be accepted if, upon examination, it appear that he does not understand its significance, or is without such knowledge of the constitution as is essential to the rational assumption of an undertaking to support it; and the court will not admit the applicant to citizenship without being' satisfied that he has at least some general comprehension of what the constitution is, and of the principles which it affirms.</p> <p>¡5. Same—Moral Character—Evidence.</p> <p>The requirements as to moral character and a disposition to good order must be shown by competent evidence.</p> <p>4. Same—Declaration ora Intention—Minors.</p> <p>Where the oatlv declaring' the previous intention in the case of an alien coming to this country before majority is made under Itev. St. § 2167, it must be supplemented by proof that the applicant has, for the designated period, actually intended to become a citizen.</p> <p>5. Same-Time ora Filing Petitions—Adjudication.</p> <p>Petitions for naturalizations must be filed at or before the time of their presentation, and judgments upon them, whether adverse or favorable to the petitioners, should be formally entered.</p>

Actions toy Henry L. Hallett against tlie United States for fees as commissioner. These cases were heard upon the following agreed statement of facts: It is hereby agreed by and between the parties to tbe above-entitled cases, wbieb, by a previous agreement duly filed in said court, are to be consolidated and beard and tried together, that said cases may be and hereby are submitted to said court for its decision upon the following facts, which are to be taken as true: First.

This was a petition by Victor Maldonado and Francisco Maldonado for a writ of habeas corpus, alleging that they were unlawfully restrained of their liberty by the sheriff of Los Angeles county, in the state of California, on a judgment based upon a verdict of acquittal.

<p>These were three actions at law brought by Edward M. Lang and others, surviving partners of the firm of McMurray, Lang & Burnham, against Clinton L. Baxter and others, to recover damages for alleged infringement of certain patents. A jury was waived, and the cases tried to the court without a jury.</p>

<p>This was a libel in admiralty.</p>

<p>Patents—Stitch-Bkeaking Machine—Anticipation.</p> <p>Tbe Travel patent, No. 431,957, for a “stitch-breaking and raveling attachment for machines for sowing looped fabrics,” which operates by wedging the threads apart, was not anticipated by the prior Congdon invention, which operated by seizing and pulling the threads; and defendant’s machine, which operates in part, at least, by wedging the threads apart, is an infringement</p>

This was a suit in equity by the Bonsack Machine Company against Henry C. Elliot for infringement of certain patents for cigarette machines.

<p>1. Patents—Combination—Electric Light Fixtures.</p> <p>In view of the prior state of the art, there is no invention in a combination comprising an electric light fixture supported from the piping of a house, and electrically insulated therefrom by an insulating joint. 63 Fed. 120, affirmed.</p> <p>2. Same.</p> <p>The Stieringer patent, No. 259,233, for an “electrical fixture,” held to be without patentable combination, as respects claims 1, 7, 8, and 9. 63 Fed. 126, affirmed.</p> <p>3. Same—Mechanical Union of Parts.</p> <p>The Stieringer patent, No. 294,697, for a combined gas and electric light fixture, held void as to claims 1, 2, 8, and 9, as showing a mere mechanical union of parts, without patentable combination. 63 Fed. 126, affirmed.</p>

<p>This was a suit in equity by the Peter White Sanitary Company against the N. 0. Nelson Manufacturing Company for infringement of three patents granted to Peter White for inventions relating to tank water-closets. The patents were No. 354,285, dated December 14, 1886; 363,566, dated May 24, 1877; and No. 425,921, dated April 15, 1890.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>Suit by James B. McClery against George E. Baker, William A. Vawter, and Frank M. Vawter to restrain the alleged infringement of a patent. Defendants obtained a decree. Complainant appeals.</p>

This was an action by the Homer Ramsdell Transportation Company against the Compagnie Generate Transatlantique, owner of the steamship La Bretagne, for damages to a pier, tried before a referee.

<p>• Collision between Steam and Sail—Tugs—Negligence.</p> <p>Two tugs started at the same time to go to a schooner in order to tow her into the harbor. Both tugs approached, the schooner at full speed, and, in attempting to turn so as to catch the towline, one of the tugs forced the other so near the schooner that it collided with th'e schooner. Meld, that both tugs were guilty of negligence, and were responsible for the injury. 50 B’ed. 583, reversed</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>This is a suit in equity commenced in the United States circuit court for ihe district of Nebraska by Jacob Willoughby and six others against Henry H. Frey and 20 others. In substance, the bill avers that the seven complainants and Isabella Willoughby (now Isabella Adams) are the only and equal heirs at law of James II. Willoughby, who died, intestate, on the 9th day of July, 1882, seised in fee of the 10 acres of land, described in the bill, which descended in fee simple to the complainants and Isabella Adams, as his only heirs, in equal parts, each heir being entitled to oho-eighth of ¡lie land; that Isabella, claiming to he the sole and only heir of James D., on the 24th of November, 1884, sold and conveyed the land to Williaip Lang, who sold and conveyed it to the defendant Henry H. Frey; and that Frey and one of his grantees laid out and platted the 10 acres into lots, blocks, streets, and alleys as an addition to the city of Lincoln, Neb.; and that the other defendants had purchased lots in the addition from Frey and his grantees. The prayer of the hill is “that a decree of this court may be entered establishing and quieting the title of your orators in and to the said premises according to their respective rights, as alleged in this bill; and that it may be decreed That each of your orators is an equal and joint heir in the estate of James I). Willoughby, with equal interests and rights in and to the said premises with the said Isabella Adams; and that the deed of said Isabella Adams and all other conveyances which have been executed, conveying the said premises, or any portion thereof, be canceled and decreed to be null and void as against the seven-eigliths interests of your orators in and to ihe said premises. Your orators further pray that judgment and decree may he mitered confirming ihe shares of the parties as above set forth, and for a partition of said real estate according to the respective rights of the parties interested therein.” The answer denied that the complainants were heirs of James D.; averred that Isabella was his only heir, and that the complainants had no interest whatever in the land; that the defendants were in the actual possession of the land, and had made valuable improvements thereon; and that they and their grantors had paid the taxes thereon since tlio year 1882. The defendants, in their answer, and by special plea, objected to the jurisdiction of the court, upon the ground that the bill did not state a case of equitable cognizance, but showed tlia.1 the complainants’ remedy was at law. The parties stipulated that the defendants were purchasers in good faith, and for value, without notice of the complainants’ claim, and that they “took possession under their deeds at the date thereof, and are still in possession.” The circuit court overruled the defendants’ objection to its jurisdiction, and found and decreed that the complainants were heirs of James D., and as such severally inherited one-eighth of the land in controversy, and that tlieir title thereto was not affected by the conveyance made by Isabella, whose deed and all subsequent deeds executed by her grantees only passed the title to- one-eighth of the land, and were null and void as to the remaining seven-eighths. From this decree the defendants appealed to this court.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>This was a bill which was fill'd by the appellant, the St. Joseph & Grand Island Railroad Company, against, R. II. Steele, in his official capacity, as sheriff of Doniphan county, Kan., to restrain him from selling a portion of a bridge across the Missouri rivet* under a warrant that had boon issued by the treasurer of Doniphan county, Kan., to enforce the collection of certain taxes theretofore assessed against the bridge by the local authorities of Doniphan county. The eastern terminus of (lie bridge is in the city of St. Joseph, Mo. The western terminus and the western 926 feet of the structure are situated in Washington township, Doniphan county, Kan. The residue or eastern portion of the structure lies within the boundaries of the state of Missouri. In May, 1892, the local authorities of Doniphan county, Kan., assessed that portion oí the bridge which is situated in Kansas, for taxation for that year, at a valuation of $200,000, upon the theory that it was a toll bridge, and that as such it was subject to valuation and assessment by the local township assessor. A tax of $8,100 on such valuation was subsequently imposed, and duly extended on the tax books of the county. This tax not having been paid, a warrant was issued for its collection;’ and the appellee, R. M. Steele, as sheriff of the county of Doniphan, was proceeding to enforce the collection of the tax by a sale of that portion of the bridge lying within the state of Kansas, when the present suit was instituted by the appellant to restrain the sale, and to prevent the collection of the aforesaid tax. The laws of Kansas do not authorize local township or city assessors to assess railroad property within their jurisdiction for the purpose of taxation. They require all railroad property to be valued as an entirety, by a board of railroad assessors, and the amount of the aggregate valuation to be apportioned for taxation among the various townships through which the road runs. In this behalf the statutes of that state provide, in substance, as follows: That the lieutenant governor, secretary of state, state treasurer, state auditor’, and attorney general shall constitute a board for the valuation and assessment of all railroad property in that state. It is made the duty of said board to ascertain all the railroad property owned and operated within the state by every railroad company, and to appraise and assess such property, as an entirety, at its actual value in money. To aid the board in thus ascertaining and assessing railroad property, each railroad company owning or operating a road within the state is required to make a return of all its property to the state auditor on or before March 20th in each year. The laws of Kansas further provide that, when the board of railroad assessors have valued and assessed the property of a railroad, it shall cause the state auditor to make a return to the county clerk of every county in the state in which any part of the road is located, which return shall show, among other things, the number of miles of track located in each township of the county, the average valuation per mile, and the amount of the aggregate valuation for the purpose of taxation that shall be placed to the credit of each city and township in the county through which the road runs. Gen. St. Kan. 1889, §§ 6871-6873, 6875, 6879-6881. G884. With reference to the allegations of the bill of complaint which was filed by the appellant, it is sufficient to say that it averred, in substance, that the aforesaid bridge had been owned by the appellant company since June, 1885, and that in the meantime it had formed an integral part of its railroad, which extended from St. Joseph, Mo., to the city of Grand Island, Neb.; that during said period it had been used continuously for the passage of its trains over the Missouri river; that in the month'of May, 1892, the appellant had duly made a return to the state auditor, as required by law, of all its property located in Kansas, including that part of said bridge which was situated within the state; that the state board of railroad assessors had subsequently valued all of its property so returned for the purpose of taxation; and that the board had likewise certified to the county clerk of Doniphan county, as required by law, the amount of the aggregate valuation that had been apportioned to Doniphan county for the purpose of taxation therein. The bill further averred that the board of county commissioners of Doniphan county ’ had subsequently caused taxes for the year 1892 to be levied and extended upon the valuation of the appellant’s property within Doniphan county that had been fixed and certified by the state board of railroad assessors, and that the tax so levied and extended had been duly paid to the proper officers of the county on December 19, 1892. In view of the premises, the bill charged that the taxes levied upon said bridge, as a toll bridge, under the assessment made in May, 1892, by the local township assessor, was an illegal tax, and that the warrant under which the appellee was' proceeding to sell said bridge was utterly void and of no effect. In his answer to the bill of complaint, the appellee pleaded, in substance, that-the said bridge referred to in the bill was an independent structure, to wit, a toll bridge; that it was not constructed as a part of any railroad, and had never been used exclusively as a railroad bridge; that, being a toll bridge, the power to assess the same for the purpose of taxation, or to assess so much thereof as was located in Kansas, was vested exclusively in the local township assessor; and that it had been erroneously returned as railroad property to the state auditor, and had been unlawfully assessed l)y the slate board of railroad assessors. The defendant also pleaded specially that the right of the local township assessor to assess the bride as a toll bridge had been previously litigated, in a suit brought by the appellant against John Devereux, a former sheriff of Doniphan county, Kan., in which suit it had been finally adjudged and determined that the right to assess said bridge for the purpose of taxation was vested by the laws of Kansas in the local township assessor, and not in the board of railroad assessors. Railroad Go. v. Devereux, 41 Fed. 14. The circuit court, on final hearing, dismissed the bill of complaint, whereupon the complainant appealed. .</p>

Tn Error to the Circuit Court of the United States for the Western District of Virginia. This was an action by John C. Haskell against John M. Bailey for a libel under Code Va. 3887, § 2897, in procuring the publication of alleged libelous words in certain newspaper articles published in the Bristol Courier, a newspaper printed in the state of Tennessee, September 9, 1890, and June 5, 3891.

<p>This was a suit by Edwin Parsons against O. A. Slaughter, treasurer of the city of Petersburg, Va., to compel the acceptance of the coupons of certain bonds of the state of Virginia in payment of taxes.</p>

This was a motion to strike a bill of revivor from the record.. The original suit was begun on January 4, 1881, by the filing of a bill in equity. On January 28, 1882, an opinion was filed by BUTLER, District Judge (McKE>I'NAN, Circuit Judge, concurring) dismissing the bill, with costs. There was no formal decree made. The next proceeding in the case was on October 12,1894, when the bill of revivor in question was filed.

This was a libel by Charles McWilliams and Daniel McWilliams against the canal boat Mary Lenalian, her tackle, etc. (Patrick Doherty, claimant), for materials used and labor expended in making certain repairs. The district court rendered a decree for libelants, GREEN, District Judge, delivering tlie following opinion, January 23, 1894: “The evidence in this-t-ause is very conflicting, the only undisputed fact being that the libelants did repair the boat in question.

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>This was a bill by the city of Trinidad, Colo., against the Milwaukee & Trinidad Smelting & Refining Company, to establish and enforce a lien on land donated to defendant, and paid for by an appropriation of the funds of such city. From a decree of the circuit court dismissing the bill, complainant appeals.</p>

<p>Petition by Elizabeth Garnett for the removal of Samuel M. Jarvis and Boland E. Conklin as receivers of defendant in a suit by Benjamin M. Fowler, J. G. Zachry, and Elizabeth Garnett against the Jnrvis-Conklin Mortgage Company.</p>

<p>1. Practice—Assignment of Efmon.</p> <p>Under the eleventh rule of the circuit court of appeals for the seventh circuit (1 O. 0. A. xlv., 17 Fed. vi.), requiring the error urged to be set out separately and particularly, an assignment of error cannot be good if it is necessary to look beyond its terms to the brief for a specific statement of the question to be presented.</p> <p>2. Foreclosure—Amount» Unpaid but not Due.</p> <p>Upon foreclosure of a mortgage for nonpayment of interest, when the principal is not due, and is not, by the terms of the mortgage, to become due upon default in payment of interest, it is both proper and necessary for the court to find the amount of principal unpaid, and decree its payment out of tlie proceeds when the property is to be sold as an entirety.</p> <p>3. Same—Where Principal not Due—Redemption.</p> <p>A mortgage securing an issue of bonds provided—First, that if the interest should be in arrear for six months, or .if the principal should not be paid at maturity, or if a stipulated payment to a sinking fund should not be made, the trustee should take possession, manage the property, pay the interest in default, and coupons maturing from time to time, and apply tlie remaining income upon the principal of the .bonds; second, that after six months’ default in payment of principal or interest the trustee should sell the property as an entirety, and ai>ply the proceeds to the payment of principal and interest, “whether the principal is then due or not;” and, third, that in case of the trustee’s taking possession, or proceeding to sell, if the mortgagor, before the bonds became due, and before sale, should pay all arrears of interest, with costs, etc., the proceedings should be discontinued by the trustee, and the property restored to the mortgagor. Held, upon a bill to foreclose for default in payment of interest, that a power to decree the whole debt due could not be inferred from tlie foregoing provisions, and though it was proper to direct payment of the whole debt from the proceeds of’ the property, when sold ’ as an entirety, the mortgagor should be permitted by the decree to redeem before sale, upon payment of the overdue interest and costs only.</p> <p>4. Same—Harmful Error.</p> <p>The provisions of tlie mortgage permitting the mortgagor to stay proceedings by paying the overdue inteiest does not render harmless the error in a decree adjudging the whole debt due, since, until modified in some lawful way, such decree is conclusive for every purpose of the amount due.</p> <p>5. Same—Sale Pending Appeal.</p> <p>The fact that a sale had actually been made pursuant to a decree erroneous in adjudging the whole debt due, should not prevent its reversal; tlie error being substantial, and the appellate court not being in a position to determine the bona fide» of the sale.</p> <p>6. Foreclosure—Cost—Amount not Fixed.</p> <p>It is no objection to a decree for foreclosure that it leaves uncertain the amount of costs, counsel fees, etc., to be paid in order to redeem before sale; it being common practice to leave such amounts unfixed, and it being in tlie power of any party tb move to have them fixed.</p> <p>7. Mortgage—Lien upon After-Acquired Property.</p> <p>Courts of equity extend tlie lien of a mortgage to after-acquired property upon the theory that, though ineffective' as a conveyance, it operates as "an executory agreement attaching to the property when acquired. It seems, therefore, that a mortgage, purporting to convey all after-acquired lands in V. county, but containing covenants for further conveyance and assurance of property afterwards acquired for the business of the mortgagor, would cover the latter only.</p>

<p>1. Res Judicata—Damages for Infringement of a Patent.</p> <p>The owner of a patent obtained a decree for a perpetual injunction against infringement, and was awarded damages and profits for infringements occurring prior to a certain time. Held, that, he could not maintain a second suit against the same defendant to recover damages and profits arising from other acts of infringement committed dining the same period, but of which no evidence was given in the former suit, and no recovery asked.</p> <p>2. Patents •— Infringement — Injunction — Second Suit against Same Defendant.</p> <p>Complainant in a bill to recover damages and profits accruing from acts of infringement committed by defendant subsequent to a former decree prayed for an injunction as well as for an account. Held, notwithstanding an injunction was unnecessary, that a decree for an injunction as well as for an accounting would he granted.</p>

<p>Appeal from tbe Circuit Court of tbe United States for tbe Eastern District of Arkansas.</p> <p>Action by tbe Bank of Commerce against tbe Bank of Newport to compel defendant to transfer to plaintiff, on defendant’s corporate books, certain shares of its stock.</p>

<p>1. Interstate Commerce Act—Reasonable Rate—Undue Prevbkence.</p> <p>Two connecting carriers united in pul ting in force a joint through tariff between given points. Held, under sections 3 and 4 of the interstate commerce act, that such joint, tariff was not the standard by which the reasonableness, of the local tariff on either line was to be determined, and that the fact that a railroad company charged a local shipper more for transporting property between two points on its road than it charged for the same services when the property transported was received from a connecting railroad, and was carried under a joint tariff established by the' connecting carriers, did not establish the charge, of an undue preference or discrimination. Railway Go. v. Osborne, 3 O. 0. A. 347, 52 Fed. 912, 10 U. S. App. 430, and Tozer v. U. S., 52 Fed. 917, followed. ,</p> <p>2. Same—Sufficiency of Complaint.</p> <p>The G. &N. W. Ry. Co. operated a line of railroad from Chicago to a point in Iowa at which it connected with two roads controlled by it, extending to points in Nebraska. Said company issued a freight tariff headed “Joint Tariff on Corn and Oats in Car Roads to R., Illinois, When Destined to New York, Boston, &e.,” giving certain rates from points in Nebraska, and referring, for rates from R. to New York, etc., to a previous tariff. P. sued the railway company for damages, alleging that while this tariff was in force ho vas required to pay a higher rate for shipments over defendant's road from points in Iowa to Chicago than the rate given from Nebraska points to It., though for a shorter distance; that the Using of R. as a terminus was a device to evade the law, R. not being a grain market, and the grain bring in fact transported to Chicago; (hat a brother of defendant’s freight, agent, was interested in the grain business in Nebraska; that the tariff for Nebraska points was not, made known in Iowa, and the tariff sheet was not filed with the interstate commerce commission; and that this charge to plaintiff ivas unlawful because an undue preference was given to Nebraska, shippers, and a larger charge made for a shorter than a longer haul: also, that defendant, in combination with other companies, had made a through rate from Nebraska points to eastern ports, less than plaintiff, paying local rates to Chicago, a.nd thence to the East, was obliged to pay, no through rates from Iowa points being made; and that an unlawful discrimination was thereby made against Iowa shippers, and the long and short haul clause violated. Held, on demurrer, that no cause of action was stated, since the freight tariff pleaded showed that it was part of a. joint through rate, and such a rate is not the standard of reasonableness of a local rate, while the other allegations were either immaterial, or insufficient to establish the unreasonableness of the rates or a violation of law.</p>

<p>Intervention by the Postal Telegraph Cable Company in the suit of the Mercantile Trust Company against the Atlantic & Pacific Railroad Company.</p>

This was au action by E. F. Joyce against the Charleston Ice Manufacturing Company to recover an amount claimed to be due him from defendant for drilling an artesian well. .There was a verdict and judgment for plaintiff, and defendant brings error.

Bui Is by Charles H. Phinizy and Alfred Baker, trustees, against (he August a, & Knoxville Railroad Company and the Port Royal & Western Carolina Railway Company, and by the Central Trust: Company of New York against the Port Royal & Western Carolina Railway Company, for foreclosure of mortgage's and appointment of receiver. 56 Red. 27.3; 62 Fed. (57!), 771. Dora Madden petitions for payment of a judgment by the receiver therein appointed.

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>Action by Shepherd H. King against Charles W. Mosher and others, commenced in the district court of Lancaster county, Neb., and removed on petition of defendants into the circuit court of the United States for the district of Nebraska. There was an order overruling' a motion to remand the cause to the state court and sustaining a demurrer to the complaint, and a final judgment for defendants. Plaintiff brings error.</p>

<p>1, Fire Insurance—Mortgage Clause—Additional Insurance—Prorating.</p> <p>The provision, in a mortgage clause of a fire policy, that the insurer “shall not be liable under this policy for a greater portion of any loss than the sum hereby insured bears to the whole amount of insurance on said property, issued to or held by any party or parties haying an insurable interest therein,” requires the mortgagee to prorate with all policies on tiie property, and is not limited to policies covering his interest, notwithstanding a prior general provision in the mortgage clause that “this insurance, as to the interest of the mortgagee, shall not be invalidated by any act or neglect of the mortgagor or owner.”</p> <p>3. Same—Destruction by Mortgagor.</p> <p>Under the provision in the mortgage clause of a fire policy that the insurance as to the interest of the mortgagee shall not be invalidated by* any act or neglect of the mortgagor or owner, voluntary destruction by the owner will- not prevent recovery by the mortgagee.</p>

<p>1. Writ op Error—When Libs — Judgment Vacating Award op Arbitrators—Bill op Exceptions.</p> <p>A writ of error will lie in the federal courts to review a judgment setting aside an award of arbitrators made and returned pursuant to a rule or order of court; and a bill of exceptions may be employed to bring upon the record facts that were adduced in the trial court either to support or overthrow- exceptions to the award.</p> <p>2. Same—Extent op Review—Questions op Fact.</p> <p>The appellate court will not, however, weigh or examine testimony adduced either to sustain or impeach the award, but will confine its rulings to questions of law arising upon the facts shown; and hence, to obtain a review, the ultimate facts must be found, and reported in the bill of exceptions, and merely to report the testimony and affidavits considered below is insufficient.</p> <p>3. Same—Bill op Exceptions—Interpretation Thereof.</p> <p>An exception to an arbitrators’ award charged as ground for vacating it that the arbitrators had been unduly prejudiced and biased against the defendant by untrue statements made to them by the plaintiffs’ attorney. A bill of exceptions, containing the testimony offered in support of said exception,. in its concluding paragraph stated that the court sustained the exception to the award on the sole ground that an attempted revocation of the submission by defendants was improper; that a communication made by the plaintiffs to the arbitrators to the effect that defendants had charged them with misconduct was improperly made; that the subsequent investigation before the court touching the same matter was irregular and improper; and that the taking of affidavits from the arbitrators concerning their, conduct in office ponding the hearing was also improper,—for all of which the award was set aside. Held, that it did, not appear from the foregoing statements that the court intended to declare as a master of law that the doing and saying of certain things which it characterized as improper had vitiated the award, without reference to the effect of those acts and utterances upon the minds of the arbitrators, and without reference to their influence upon the fairness of the award; that the statement in question was in the nature of a commentary on certain evidence offered to sustain the exception; that the said statement in the bill of exceptions must be read in connection with the exception to the award which had been tried and determined; that the .court evidently intended to say that the charge contained in the exception to the award, or the substance of it, had been proven; and that the bill of exceptions, taken as a whole, simply disclosed a general finding on an issue of-fact raised by the exception to the award, which finding could not be reviewed on a writ of error; that the only questions oi' law presented by the bill of exceptions were- - First, whether the award was one whim the court had power to vacate: and, second, whether the charge contained in the exception to the nwirtl, if true, was sufficient to justify the court’s action in vacating the award.</p> <p>4 Award of Arbitrators—Power of Court to Bet Aside—Prejudice and Partiality.</p> <p>An award made pursuant to a rule of court may he set aside by the court when it is satisfied that by reason of a communication made to the arbitrators, pending the arbitration, by one of the parties, a, feeling of hostility to the opposite party has been engendered, rendering one or more members of the board partial and prejudiced and has very likely affected the fairness of the award.</p>

<p>Contract—Ntjdum Pactum.</p> <p>A contract relating to an agency for the sale of books held not to be nudum pactum.</p>

<p>In Error to the Circuit Court of the United States for the District of North Dakota.</p> <p>Action by the Capital Bank of St. Paul, Minn., against school district No. 26, Barnes county, N. D. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Negligence—Obstruction of Passageway.</p> <p>One who negligently places obstructions in the hall of a building is liable to an employe of a tenant of the building who is injured thereby, Since such obstruction constitutes a breach of the duty of the owner to keep such hallway open to the use of the tenants.</p> <p>3. Same—Contributory Negligence—Question for Jury.</p> <p>A boy while walking slowly through an unlighted hall, in the dark, stumbled over an obstruction, and was injured. He could not see the obstruction, but he knew it was there, and he tried to go around it, hut miscalculated the distance. Held, that the question of contributory negligence was for the jury.</p> <p>8. Same—Remote and Proximate Cause—Injury to Diseased Person.</p> <p>Where a person, at the time of receiving a personal injury, has microbes in his system, which aggravate the injury, that fact does not relieve from responsibility the person whose negligence caused the injury, where it does not' appear that the microbes would have done harm by themselves.</p>

<p>This was a suit by Caroline (1. Jlirschbeck, as administratrix of Joseph G-. Hirschbeck against the United States, to recover fees alleged to have been earned by the decedent as a, United States commissioner.</p> <p>Joseph (i. Hirschbeck was a circuit court commissioner for the Northern disirict of New York. • The plaintiff, as his administratrix, brings this suit to recover various items which wore stricken from Ills accounts by the accounting officers of the treasury department. In making up the accounts of special deputy marshals ho liad charged for triplicate affidavits and triplicate orders for payment. He had also charged for two oaths in cases where ho was required to take an oath and a. duplicate thereof. lie had made charges also for arraigning' parties brought before him charged with crime. In drawing recognizances lie had charged by the folio, insisting that he was not limited to two or three folios, but might charge for the number of folios actually employed. The United States insists that the commissioner might lawfully have charged for duplicate affidavits and orders in making uj) the accounts of special deputy marshals, hut not for triplicates; that when required to take duplicate oaths he could charge for but one oath; that he had no authority to arraign a defendant brought before him in his official capacity and that in preparing recognizances his charge should be confined to three folios. The issues thus raised were the principal matters in dis-. pute between the parties. The other questions are settled in favor of the plaintiff by the authorities cited in the opinion.</p>

This was a proceeding against Tilomas Jose .for an alleged contempt in interfering with property in the possession of the court’s receivers.

This was a suit in equity by David Gessner against' F. Stanhope Philips and others for infringement of certain patents granted to complainant for improvements in cloth-pressing machines.

This was a suit in equity by David Gessner against the Globe Woolen Company and others Cor infringement of certain patents issued to complainant for improvements in olotliqiressing machines. The patents and claims in controversy were as follows: No. 387,292, claims 3 and 10; No. 387,297, claim 2; No. 469,372, claims 1 and 3.

These were suits by the Westinghouse Air-Brake Company against the New York Air-Brake Company and others, and by George Westinghouse, Jr., and the Westinghouse Air-Brake Company against the New York Air-Brake Company and others, for the infringement of certain patents for improvements in railroad brakes. The bills were dismissed as to some of the patents, and decrees granted as to certain specific claims in the rest of the patents. 59 Fed. 581.

<p>3. Patents—Process and Product—Infrinokment— Secondary Batteries.</p> <p>Reissue No. 11,047, of the Swan patent for a secondary battery, in which the active material is packed in and confined to perforations extending ihrough the plate, is a patent for a product and not for a process: and hence infringement is not avoided by arranging pastilles or buttons of the material in molds, and then casting the plate around them, instead of first making the plate, and then packing the material in the perforations.</p> <p>2. Same—Infringement Suits—Laches—Excuse for Delay.</p> <p>Delay in suing an infringer may be excused on the ground that the infringing article, as at first constructed by defendant, was not believed by complainant to be commercially harmful, the grounds for such belief being reasonable.</p>

<p>This was a suit in equity by the Whitcomb Envelope Company against the Logan, Swift & Brigham Envelope Company and others for infringement of a patent.</p>

<p>Two actions in equity by the Diamond Match Company against the Oshkosh Match Works and others for infringement of a certain patent. Heard on complainant’s motion for an order requiring, the production of certain drawings by the defendants.</p>

<p>1. Patents—Invention—Electric Street Car Motors.</p> <p>Making changes in the method of communicating power from the armature of an electric motor to a street-car axle, as between well-known devices, such as friction bearings, cog gearing, and pulleys, involves no invention.</p> <p>2. Same—Changes in Form, Etc.</p> <p>Changing the form, proportion, and size of an electric motor, so as to admit of putting it under an ordinary street car, in conjunction with the axle thereof, involves no invention.</p> <p>3. Same.</p> <p>There is no invention in so mounting an electric motor upon a streetcar truck that it has a positive connection with the driven axle only, and merely a spiring connection, through the truck frame, with the other axle, thus permitting a torque movement of the motor in starting and stopping the car, and allowing the wheels to pass over curves and inequalities with greater facility.</p> <p>4. Same.</p> <p>The Adams patent, No. 300,828, relating to improvements in electric street car motors and trucks, is void for anticipation and want of invention.</p>

<p>Patents—Anticipation—Harness Trimmings.</p> <p>The Zeller patent, No. 207,791, for a.n improvement in harness trimmings, is not anticipated by the Hinman patent of February 25, 1868, or the Zeller patent of September 15, 1874.</p>

<p>This was a bill by Charles M. Levy against Dattlebaum & Friedman for infringement of a patent.</p>

<p>This was a suit in equity by the Front Rank Steel Furnace Company against the Wrought Iron Range Company for infringement of a patent for hot-air furnaces.</p>

This was a suit in equity by the Consolidated Vapor-Stove Company against the National Vapor-Stove & Manufacturing Company for infringement of letters patent No. 235,600, issued December 14, 1880, to Charles and Joseph Whittingham. A full description of this patent will be found in Consolidated Vapor-Stove Co. v. Ellwood Gas-Stove & Stamping Co., 63 Fed. 698.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a hill by John H. Sessions against William B. Gould and others for infringement of letters patent. A preliminary injunction was obtained (49 Fed. 855), and, on motion to have defendants punished for contempt for violating the same, defendants were ordered to pay a fine of $500. From such order defendants appealed to this court.</p>

<p>Appeal from the Circuit, Court of the United States for the Southern District of New York.</p> <p>This was a bill by John H. Sessions against William B. Could and others for infringement of letters patent No. 203,860, issued May 21, 1878, to Charles A. Taylor, for an “improvement in trunk fixtures,” assigned to complainant June 1, 1878; and letters patent No. 255,122, issued March 1, 1882, to John H. Sessions, Jr., “for trunk fasteners,” assigned to complainant July 1, 1888. The case was heard on motion for a preliminary injunction before Judge Lacombe, who granted an injunction under claim 2 of the Taylor patent of 1878, and the Sessions patent of 1882. 49 Fed. 855. On final hearing, the case was heard before Judge Ooxe, who found the Sessions patent of 1882 invalid, aud sustained the Taylor patent, allowing a decree on claim 2. 60 Fed. 753. From the interlocutory decree granting a permanent injunction under claim 2 of the Taylor patent, defendants appealed to this court.</p>

This was a suit by G. Garcia Cuervo against Julius Landauer and others to enjoin the infringement of a trade-mark in certain cigar-box labels. Heard on motion for preliminary injunction.

• This was an action by Joseph Birtwell against Leverett Salton-■stall, collector of the port of Boston, to recover duties paid under protest. There was originally a judgment for plaintiff (39 Bed. 383), but this was reversed, on defendant’s appeal, by the supreme court (150 U. S. 417, 14. Sup. Ct. 169), and a new trial ordered. A new trial having been accordingly had, the opinion below was filed.

<p>1. Aomtr viyty—Jurisdiction—Injury on Wharf.</p> <p>Admiralty has no jurisdiction of an action for injury to a person on a wharf, caused by negligence originating on a ship; and it makes no difference that the person ivas employed as a seaman on the ship.</p> <p>2. Same—Wages.</p> <p>The fact that libelant claims', as part of his damages for the tort, loss of his wages as seaman, does not aid the jurisdiction of admiralty.</p>

<p>Shipping—Tug and Tow—Collision—Piers and Slips—Obstruction—Usage.</p> <p>The tug M., about noon of July 1st, tied up a fleet of canal boats, consisting of several tiers • of -three or four boats in a tier, at the end of the Bed Star Line pier, Jersey City, in the ebb tide, for the purposes of removal and distribution to tbeir various destinations, in accordance with tiié usage of many years; and no city ordinance forbade this practice. That pier is about 108 feet longer than the piers below it. The day was mild, and the westerly wind set the end of the tow still further away from the piers below. The steamtug Idlewild soon after-wards, in removing another vessel from the end of one of the piers below the Bed Star pier, collided with and damaged two boats in the end tow. Held, that thus tying up at the pier above under circumstances and for tlie purposes stated was not an unlawful obstruction of tlie slips below; and the Medea was acquitted of fault, and the Idlewild held for lack of sufficient care.</p>

<p>Shipping—N oxdelivejiy oe Eheight—Oonvhusion.</p> <p>Tlio steamer H. P., making daily trips between New York and New Roclielle, took some barrels of freight for delivery at City Island. On touching there, no person being in readiness to receive, tho barrels as-usual, or to pay freight, the steamer retained the goods on board, and sent word to the consignee, whose place of business was about 200 yards from the landing, to come for them the next day, which notice was received by the consignee. The next (lay, no one appearing, the goods were still retained on board, and on the following day the steamer was arrested on this libel for conversion. Tbe wliarf was not a safe place to leave the goods unattended, and the vessel was always ready to deliver the goods on payment of freight. Held, no conversion, and the libel dismissed, with costs.</p>

<p>1. Salvage—Rights ov Charterer—Waiver.</p> <p>A provision inserted in a charter party for the charterer’s benefit, forbidding the ship 1o stop to pick up any wreck, or in any way assist or tow any vessel, without an exception even for saving' life, amounts to a waiver by the charterer of any claim for salvage earned by the ship by towing in a derelict.</p> <p>2. S a me— Compensat ion—Derelict.</p> <p>Three thousand dollars, upon a valuation of $8,108.70, allowed to the owners of a steamer for towing into New York, her port of destination, a dangerous derelict found 40 miles at sea, in fair weather, and with a delay of 24 hours.</p>

The libelant, Frederick Bradley, was employed as mate of the steamer Idlehour during the summer of 1894. The steamer made excursion trips from Buffalo to points on the Niagara river. The libelant was employed May 8, 1894. He was discharged July 15, 1894. Both sides agree that he was to be boarded by the claimant, but there-is a dispute as to the date when this agreement took effect. The steamer did not begin her regular trips until June 9, 1894.

<p>Collision — Tow and Anchored Vessel —Negligence oe Anchor Watch— Tug and Helper.</p> <p>■ A tug going up tlie Hudson river witli a flood tide, at niglit, witli a tow consisting of 9 tiers of canal boats, with 4 boats in most of the tiers, and making a flotilla about 1,600 feet long, discovered a vessel half a mile ahead, lying at anchor outside the boundaries prescribed by the regulations of the secretary of ¿he treasury. The tug and her helper undertook to draw to the opposite side of the river, but the last tier of the tow was swung by the force of the tide beyond the line of the tug, and libelants’ boat, which was in such tier, struck the anchored vessel, and was sunk. The anchor watch on the anchored vessel saw the flotilla approaching when some distance away, and, if he had given his vessel chain, the tide would have carried her back and out of danger. He testified he attempted to let out the chain, but failed. Meld, that both the tug and anchored vessel were in fault, and properly condemned to pay libelants damages. 56 Fed. 619, affirmed.</p>

J. Driscoll and steamship Concho both responsible for damages sustained by the schooner William Johnson (in tow of the J. J. Driscoll on a hawser) from collision with the Concho, between Covernor’s Island and the Battery, March 1, 1893. See 58 Fed. 811.