Volume 64 — Federal Reporter

Bill bv William Palmer Smith, a citizen oí New Jersey, against the Atchison, Topeka & Santa Fe Railroad Company, a Kansas corporation, Edward Wilder and others, citizens and residents of Kansas, B. P. Cheney and others, citizens and residents of Massachusetts, J. A. Blair, a citizen and resident of New York, and D. B. Robinson, a citizen and resident of Illinois. The Kansas defendants and defendants Cheney, Blair, and Robinson move to dismiss for want of jurisdiction.

<p>Circuit Court op Appeals — Jurisdiction.</p> <p>The United States have a right to appeal to the circuit court of appeals from an adverse judgment in the circuit court in a suit by a clerk of a district court to recover Ms fees under act March 3, 1887.</p>

In re application for the removal of the prisoner, Louis Green-wald, from the state penitentiary at San Quentin, Cal., to a county jail.

This is a suit by Edwin J. Hulbert against Mario Russo and Giovanni Zanardo, instituíed in the state court, and was removed to this court by defendants.

Separate bills by the Western Union Telegraph Company and the Adams Express Company against Ebenezer Poe, auditor of the state of Ohio, and others, for injunctions, in which there were decrees pro confesso. Defendants move to set aside the decrees, for a rehearing of demurrers to the bills, and to dissolve the temporary injunctions.

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.</p> <p>Suit by Camille Poirier and others, executors of John J. Costello, against Francis A. Barnes, to quiet title. Decree for plaintiffs. 57 Fed. 956. Defendant appeals.</p>

<p>On Two Demurrers to the Bill of Complaint.</p>

This was a Mil by John Greenough against tbe Alabama Great Southern Railroad Company and others for an injunction restraining the election by defendants of certain persons as directors of such company, in which a temporary restraining order was issued. Defendants move to dissolve such order.

This was a suit in equity by Henry D, Laughlin and others against the United States Rolling-Stock Company, and is now heard on exceptions to the master’s report.

<p>Bill by the United States against M. J. Elliott and others to restrain a conspiracy to obstruct and destroy interstate commerce- in violation of Act July 2,1890 (26 Stat. 209). A preliminary injunction was granted. 62 Fed. 801. Defendants demurred to the bill.</p>

<p>Appeal from tbe Circuit Court of tbe United States for tbe District of Indiana.</p> <p>Suit by tbe Cincinnati, Hamilton & Dayton Railroad Company against William R. McKeen. Defendant obtained a decree. Complainant appeals.</p> <p>This suit was brought to obtain a decree declaring tbe defendant, William R. McKeen, a trustee for tbe plaintiff, tbe Cincinnati, Hamilton & Dayton Railroad Company and its stockholders, in respect of certain moneys aggregating $889,500 received by him from one Henry S. Ives, and also cancelling, as against that corporation, an agreement in writing of June 1, 1887, signed by McKeen individually, and by Ives, “trustee,” and a note of June 4, 1887, given to McKeen by Ives as “trustee,” for $669,150, and payable six months after date.</p> <p>The circuit court held by Judge Jenkins when district judge dismissed tbe bill for want of equity.</p> <p>Tbe case made by the pleadings and evidence is as follows:</p> <p>Prior to May 30, 1887, Henry S. Ives, a vice president of tbe Cincinnati, Hamilton & Dayton Railroad Company, an Ohio corporation, entered upon negotiations with the defendant, William E. McKeen, who at the time was the president and a stockholder of the Terre límite & Indianapolis Eailroad Company, an Indiana corporation, for the purchase of a majority of the shares of stock of the last-named company. McKeen did not at that time, as Ives knew, own a majority of such shares, although those held by him had been sufficient to give him practically the control of that company. He also owned 4,44-6 shares of stock in the Terre Haute & Logansport Eailroad Company, an Indiana corporation then under lease to the Terre Haute & Indianapolis Eailroad Company. During the negotiations between Ives and McKeen, the latter distinctly stated to the former that some modifications must be made in that lease before he would sell his stock in the Terre Haute & Indianapolis Eailroad Company, unless Ives also purchased his stock in the Terre Haute & Logans-port Eailroad Company.</p> <p>On the 30th day of May, 1887, the directors of the Cincinnati, Hamilton & Dayton Eailroad Company, at a special meeting held in Cincinnati, adopted the following resolutions:</p> <p>“Eesolvod, that Vico President Ives is authorized to purchase 20,000 shares (par value $50 each) of the total outstanding issue of the 39,762 shares of the Terre Haute and Indianapolis Eailroad Company at a price not exceeding .$100 per share, and that the same shall be submitted to the stockholders of this company for ratification at the annual meeting, June 21st proximo; and, to provide for die payment of the same, it is further</p> <p>“Resolved, that it is expedient that the guarantied common stock of the Dayton and Michigan Eailroad Company, now owned by and held in the treasury of this company, be sold for the benefit of this company, provided that not less than one million dollars par value thereof can be sold at the present time; and that, therefore, C. C. Waite, the vice president and general manager, and i\ II. Short, the assistant secretary, of this company, be, and are hereby, authorized and directed to cause the same to be sold at thirty-five dollars per share, being seventy por cent, of the par value thereof, and that the proceeds of such sale or sales be deposited in the treasury of this company,” etc.</p> <p>Pursuant to these resolutions, 20,500 shares of the guarantied stock of ihe Dayton & Michigan Eailroad Company, of the par value of $1,025,000, Avere sold May 31, 1887, and certificates therefor were duly delivered to the purchasers.</p> <p>It may be here stated that at this time the Terre Haute & Indianapolis Eailroad Company, Avhose road extended from Indianapolis to Terre Haute, operated, under lease, a railroad extending from Terre Haute to East St. Louis, known as ihe; “'Vandalia Line;” and the Cincinnati, Hamilton & Dayton Eailroad Company, Avhose road extended from Cincinnati, by Avay of Hamilton, to Dayton, owned the entire capital stock of the Cincinnati, Hamilton & Indianapolis Eail-road Company, whose road extended from Hamilton, Ohio, to Indianapolis, and was connected at Indianapolis ayíüi the Terre Haute & Indianapolis Eailroad by Avay of the Belt and Union Eailway tracks. The object, therefore, of the directors of the Cincinnati, Hamilton & Dayton Eailroad Company in authorizing the purchase of 20,000 shares of the stock of the Terre Haute & Indianapolis Eailroad Company, must have been io obtain the control of a continuous line of railroad from Cincinnati to St. Louis.</p> <p>On the 1st day of June, 188T, Ives and McKeen, pursuant to previous arrangement, met in Terre Haute for the purpose of closing up the business, about which they had been negotiating for some weeks. Ives was attended on that occasion by Mr. Ramsey, who at the time held the position of general counsel of the Cincinnati, Hamilton & Dayton Railroad Company, by Mr. Waite, vice president and general manager of that company, and by Mr. Short, a director and the secretary and assistant treasurer of the same company. McKeen was attended by his counsel, Mr. Williams. At this meeting the written agreement which the bill prays may be canceled was signed by McKeen and by Ives, after having been examined by the respective counsel of the contracting parties. That agreement was as follows:</p> <p>“This agreement, made and entered into this 1st day of June, A. D. 1887, by and between William R. McKeen, of the county of Yigo and state of Indiana, and Henry S. Ives, trustee,</p> <p>“Witnesseth, that the said McKeen hereby agrees to soil, assign, and transfer unto said 'Ives 11,160 shares of the capital stock of ihe Torre Haute and Indianapolis Railroad Company and 4,440 shares of the capital stock of the Terre Haute and Logansport Railroad Company, both corporations of the state of Indiana, and to deliver the certificates for such stock to said Ives, as'follows, to wit:</p> <p>“Certificates for 8,560 shares of said Terre Haute and Indianapolis stock and for 4,446 shares of said Terre Haute and Logansport stock on .Tune 4th, 1887, and the remainder of said Terre Haute and Indianapolis stock, to wii, 2,600 shares, on or before thirty days from this date.</p> <p>“In consideration of the premises, the said Ives has this day paid to said McKeen $250,000, and hereby agrees to pay him, on June 4th, 1887, upon delivery of the certificates of stock aforesaid, the further stun of $639,500, and also at the time last aforesaid the said Ives will execute and deliver to said McKeen a good and sufficient note for $669,150, dated June 4th, 1887, due on or before January 1st, 1888, bearing 6 per cent, interest from date, and providing for the salo and purchase of the collaterals hereinafter mentioned, in the form and upon the terms usually adopted in cases of notes secured by collateral security. The said Ives further agrees that, as collateral security for the payment of the note above described, ho will on said June 4th, 1887, assign and transfer unto said McKeen certificates for 8,560 shares of the capital stock of said Terre Haute and Indianapolis Railroad Company and 4,446 shares of the capital stock of the said Terre Haute and Logansport Railroad Company, and will also, from time to time, likewise transfer and assign to said McKeen, as such collateral, any or all of the certificates for the 2,600 shares of said Terre Haute and Indianapolis which said McKeen is to deliver to him within thirty days from this date, as hereinbefore provided.</p> <p>“It is agreed that, if said McKeen does not deliver any or all of said certificates for 2,600 shares within thirty days from this date as aforesaid, then the said McKeen shall pay or refund to said Ives the sum of $200 for each and every share of said Terz-e Haute and Indianapolis stock which he may fail to deliver within said thirty days, as liquidated damages.</p> <p>“Said Ives shall neither buy, directly or indirectly, nor offer to buy, any of said .stock from any other party or parties until said thirty days shall have expired.</p> <p>“William R. McKeen.</p> <p>“Henry S. Ives, Trustee.”</p> <p>At the time this agreement was executed, McKeen, as Ives had been informed, did not own as much as 11,160 shares of the stock of the Terre Haute & Indianapolis Railroad Company, and it was contemplated that he would supply the deficiency by purchase from others wit bin Hie time limited by .Hie contract; and the last clause was inserted in order to protect him against competition with Ives in the stock market.</p> <p>In part execution of the agreement, Ives paid $230,000 to McKeen on the 1st day of June, 1887. The parties, attended by the same persons, with perhaps one exception, met again in Terre Haute on the 4th day of June, 1887, on which day Ives paid to McKeen the additional sum of $630,500, and executed and delivered to the latter the note for which the above agreement provide.'!, and which the bill prayed may be canceled. Thai: note reads:</p> <p>“$(569,150. Terre Haute, lnd., 4th June, 1887.</p> <p>“Six months altor date, or before, at my option, I promise to pay to the order of \V. It. McKeen, at 25 Nassau street, New York, six hundred and sixty-nine thousand one hundred and fifty dollars, for value received, and without relief from valuation or appraisement laws, and with interest, at six per cent, per annum after this date until paid; and I hereby pledge, as security to the payment of this note, eleven thousand one hundred and sixiy shares Terre Haute and Indianapolis Railroad Company and 4,446 shares of Terr© Haute and .Logunsport Railroad Company, with power hereby conferred upon the holder of this note to sell said stock, after default in the payment of this note, in such manner and at such times as he or they may deem proper, either at public or private sale, without notice. Said AV. R. McKeen, or the then holder of this note, shall have the rigid to purchase said stock at such sale.</p> <p>“Henry S. Ives, Trustee.”</p> <p>On the occasion of the execution of this note the contracting parties signed a paper in duplicate, of which the following is a copy:</p> <p>“This is to certify that on this, the 4th day of June, 1887, pursuant to the contract of June 1st, 1887, by and between AV. K. Mcl-toen and Henry 8. Ives, trastee, the said McKeen has assigned, transferred, and delivered to said Ives 8,5(50 shares of the capital stock of the Terre Haute and Indianapolis Railroad Company and 4,-1 Í6 shares of tho capital stock of the Terre Haute and Ijog-anr.porc Railroad Company, and has received from said Ives ($639,-500) six hundred and thiriy-nine thousand live hundred dollars, and also the above-named shares of stock as collateral security for the payment of I he note for ($0(59,150) six hundred and sixty-nine thousand one hundred and fifty dollars provided for in said contract.</p> <p>“Henry 8. Ives, Trustee.</p> <p>“Win. R. McKeen.”</p> <p>¡Subsequently, June 13, 1887, McKeen tranuferml to Ives, trustee* one certificate calling for 2,5!M oilier shares: of the capital stock of the Terre Haute & Indianapolis Railroad Company; and 6 shares of stock in the same company were transferred to parties friendly to the Ives combination, in order that they might qualify as directors.</p> <p>On the 4th day of June, 1887, after the execution and delivery of the note for $669,150, and in order that the Terre liante & Indianapolis Railroad Company might pass under the control of Ives and his associates, the request mn made that the directors, except Me-Keen, resign, and their placer, be supplied by others, to be named by the new owners of the stock. The old. board was accordingly con-A'ened, when Mr. Ramsey, the legal adviser of Tves and his associates, prepared an additional by-law providing that the board of directors at any meeting might till any vacancies occasioned in the board by death, resignation, or otherwise.</p> <p>This by-law being adopted, Henry Eoss, a member of the old board, resigned, and in his place Frederick H. Short, a director and the secretary and assistant treasurer of the Cincinnati, Hamilton & Dayton Eailway Company, was elected to fill that vacancy. He immediately qualified and took his seat as a director. Mr: Williams, another member of the old board, also retired. Short thereupon presented a resolution ordering the sale to Henry S. lyes, trustee, for the price of $62.50 per share, of 8,840 shares of the stock of the Terre Haute & Indianapolis Eailroad Company, then in the treasury of the company, and standing in the name of McKeen, as its trustee. This resolution was adopted. Immediately thereafter Mr. Eamsey was elected a director, and entered upon the duties of the office. Three others of the old board then resigned, and their places were filled by the election of C. C. Waite, Henry S. Ives, and Christopher Meyer. The board consisted of Short, Eamsey, Waite, Ives, Meyer, Collett, and McKeen. To the board thus constituted, McKeen tendered his resignation as president, and, on motion of Mr. Eamsey, Ives was elected president, and immediately assumed the duties of that position.</p> <p>On the same day (June 4, 1887) certificates for the 8,840 shares of stock in the Terre Haute & Indianapolis Eailroad Company, in the treasury of that corporation, were, by order of the board of directors, issued to Henry S. Ives, trustee. The latter delivered the same to Short, secretary and treasurer of that company, as well as assistant treasurer of the Cincinnati, Hamilton & Dayton Eailroad Company. Ives, trustee, then made a draft upon Henry S. Ives & Co., of New York, payable to the order of the Terre Haute & Indianapolis Eailroad Company, for $552,500, — representing the price of the 8,840 shares at $62.50 per share, — and delivered it to Short or to the assistant treasurer of that company. By direction of Short, treasurer, the amount of that draft was simply credited to the payee on the books of Henry S. Ives & Co., of New York, who shortly thereafter failed in business. No part of the price agreed to be paid for the 8,840 shares was ever otherwise received by the Terre Haute & Indianapolis Eailroad Company, or by any one in its behalf.</p> <p>On the 21st day of June, 1887, at a meeting of the stockholders of the Cincinnati, Hamilton & Dayton Eailroad Company, the following resolutions, offered by Mr. Short, were unanimously adopted:</p> <p>“Whereas, the board of directors of this corporation, at a meeting duly held on May 30th, 1887, duly passed and adopted the following resolution, which is duly recorded in the minutes of said meeting, viz.: [Here follow the resolutions of May 30th, 1887, above referred to.] And whereas, under the foregoing resolution, the directors of the company did sell on May 31st. 1887, twenty thousand five hundred shares of said guarantied stock of the par value of §1,025,000, the certificates for which were duly delivered to purchasers thereof: ' Now, therefore, be it resolved, that we hereby ratify, approve, and confirm the said resolution, and the said sales of stock made thereunder, as well as all other acts done under said resolution.”</p> <p>The minutes of this stockholders’ meeting, at which 36,307 shares were represented, make no express reference to the purchase of the stock of the Terre Haute & Indianapolis Eailroad Company; but the evidence showed, beyond all question, that the stockholders present at that meeting, with few, if any, exceptions, were aware of the fact —-disclosed by the record of the meeting of tiie directors of the Cincinnati, Hamilton & Dayton .Railroad Company of May 30, 1887 — - that the guarantied stock of the Dayton & Michigan Railroad Company was directed to be sold “in order to provide for the payment” of the stock of the Terre Haute & Indianapolis Railroad Company, which Vice President Ives had been previously authorized to purchase. To supposition to the contrary could be justified by any reasonable view of the facts and circumstances.</p> <p>As bearing upon the inquiry whether the contract between Mc-Keen and Ives, trustee, was fully executed before the institution of the present suit, the following additional facts may be stated:</p> <p>Within a short time after the above meeting of stockholders it was ascertained that, under the Ives management, assets and securities belonging to the Terre Haute & Indianapolis Railroad Company of the value of nearly $2,000,000, as wrell as the 8,840 shares of treasury stock of the same corporation, had all disappeared. For what purposes they had been used is not shown. In consequence of disclosures of the dishonest practices of Ives, he was displaced as an officer of the Cincinnati, Hamilton & Dayton Railroad Company, and Julius Dexter became its-president.</p> <p>On the 3d day of December, 1887, the board of directors of the Cincinnati, Hamilton & Dayrton Railroad Comjiany passed a resolution “that all of the capital stock of the Terre Haute and Indianapolis Railroad Company purchased by this company in June, 1887, amounting to $1,000,000, par value, shall be transferred upon the books of the said company unto Julius Dexter, as trustee, and that said Dexter be requested to execute a certificate of trust as to said stock, as the same shall be transferred to him.” A copy of this resolution was furnished to McKeen on the 18th of January, 1888. And on the same day the Cincinnati, Hamilton & Dayton Railroad Company, by its general counsel, requested in writing that the dividend of July or August, 1887, and that to be declared February 1, 1888, “upon the shares of the stock transferred to Henry S. Ives, trustee, by the Terre Haute and Indianapolis Railroad Company, on or about June 4, 1887, amounting to 8,840 shares,” be withheld, “said Ives having transferred said shares, or a large part thereof, to various parties, without the authority of the Cincinnati, Hamilton and Dayton Railroad Company, whose trustee he was, and for whose benefit he held said shares.”</p> <p>The Cincinnati, Hamilton & Dayton Railroad Company, on the 8th day of December, 1887, commenced a suit against McKeen in the circuit court of the United States for the district of Indiana. The bill charged that prior to June 4, 1887, Wes, then vice president of the plaintiff, “was authorized by its board of directors to. purchase on behalf of your orator, and as trustee for it, 20,000 shares of the stock of the Terre Haute and Indianapolis Railroad Company, a corporation having a total capital stock of less than 40,000 shares, said shares being of the par value of $50 each, at a price not to exceed $100 per share. The defendant was advised of said action of the board of directors, and of the authority of said 1'ves thereunder, and thereupon sold to the said Ives, as trustee for your orator, 11,100 shares of the stock of said Terre Haute and Indianapolis Railroad Company, at the price of 200 per cent., or $100 per share, amounting to $1,116,000, and said lyes paid to the defendant on account of said purchase, out of the funds of your orator, as the defendant well knew, the sum of $889,500, leaving a balance due on account of the said purchase of $226,300.”</p> <p>The bill also charged that at or about the same time Ives purchased from the Terre Haute & Indianapolis Railroad Company 8,840 shares of its stock, standing in the name of McKeen, at the price of $552,500 (or $62.50 per share), and paid for the same out of the plaintiff’s funds; that, as part of the transaction, Ives, without the knowledge of the plaintiff, agreed to pay McKeen individually 75 per cent, of the amount of the stock, to wit, $331,500, and also to purchase from McKeen individually 4,446 shares, of the par value of $50 each, of the stock of the Terre Haute & Logansport Railroad Company at the price of $111,150; that, to cover the real transaction, Ives, as trustee, executed to McKeen the above note, dated June 4, 1887, for $669,150, with interest at 6 per cent., and delivered the 11,160 shares of the stock of the Terre Haute & Logansport Railroad Company as collateral security for that note, with authority to Mc-Keen or the then holder to sell the said stock, as indicated in the note, in case of default in meeting it. After stating that Ives had no authority to purchase the stock of the Terre Haute & Logans-port Railroad Company for or on account of the plaintiff, and that McKeen had always'pretended to plaintiff, and plaintiff until recently had believed, that all of the 11,160 and 8,840 shares had been purchased from him at $100 per share, the bill alleged that the real indebtedness of the Cincinnati, Hamilton & Dayton Railroad Company to McKeen was $226,500, the balance remaining after deducting .$889,500 paid by Ives from $1,116,000, the price of the 11,160 shares at $100 per share, which balance the plaintiff had offered and was willing to pay upon the return to it by McKeen of the 11,160 shares of the stock of the Terre Haute & Indianapolis Railroad Company.</p> <p>The relief asked was that McKeen be enjoined from selling or otherwise disposing of said, shares of stock, and that upon final hearing he be either required to accept $226,500, with interest, in full and final payment of all obligations of the plaintiff upon the said note for $669,150, to cancel that note against the plaintiff, and to deliver up the 11,160 shares of stock, or, in the alternative, that he be required to cancel that note as against the plaintiff, and return the sum of $889,500, with interest from June 4,1887.</p> <p>On the 31st day of December, 1888, while that suit was pending, the Cincinnati, Hamilton & Dayton Railroad Company brought a suit against the Terre Haute & Indianapolis Railroad Company, Ives, and McKeen, in which it alleged that it was the owner of 20,000 shares of the stock of the latter company, which had been paid for with its funds; that 11,160 shares stood in the name of Ives, as its trustee, and the certificates therefor were held by McKeen as collateral security for a sum due to him from Ives, trustee; that the amount of the balance due was in dispute;- and that Ives, “without the consent, authority, or knowledge of yotn* orator, has wrongfully caused the residue of said 30,000 shares of stock belonging to your orator, and which wore put in the name of your orator, viz. 8,840 shares, to be transferred to and unto the names of sundry persons, to your orator unknown, who are the clerks and agents of said Ives, but who nevertheless hold said stock, notwithstanding- said unlawful transfers, as trustee for your orator, to whom said stock rightfully belongs.” The hill in that suit also alleged that Ives was no longer an officer or stockholder of the Cincinnati, Hamilton & Dayton Railroad Company, and that Julius Dexter, its president, had been authorized to vote said stock of the Terre Haute & Indianapolis Railroad Company at its next meeting. The relief asked was a decree enjoining Ives and McKeen from voting upon said 20,000 shares of stock, and requiring the Terre Haute & Indianapolis Railroad Company to accept the vote cast thereon by Dexter for and on behalf of the plaintiff.</p> <p>On the 17th day of February, 1888, the Cincinnati, Hamilton & Dayton Railroad Company dismissed the first of the above suits, and on the same day brought the present suit. In the injunction suit brought December 31, 1887, the court denied the application for a preliminary injunction, and on the 3d day of March, 1888, the plaintiff dismissed that suit.</p> <p>In his answer in the present suit, McKeen denied every allegation of the bill imputing to him fraud or deception, or which implied that the sale by him to Ives was upon any other terms than those indicated in the written agreement of June 1, 1887, or under any other circumstances than we have stated. His denials have not been overthrown by the evidence in the cause.</p> <p>As already indicated, the relief sought by the Cincinnati, Hamilton <& Dayton Railroad Company is a decree declaring McKeen a trustee for that company and its stockholders in respect, to the sums paid to him by Ives, aggregating §889,300, and canceling, as against that corporation, the written agreement of June 1,1887, and the note for if669,150, of June 4,1887.</p>

This was a suit by Francis P. Furnald against John Glenn to restrain the prosecution of a suit at Jaw. From a decree dismissing the bill of complaint (56 Fed. 372), complainant appealed to this court.

<p>1. Sam op Chattel — Implied Wahkanty op Fitness.</p> <p>Defendant telegraphed and wrote plaintiff, requesting it to ship a G. mill, of same size and kind as one sold to the I?. Salt Co., stating that ho wanted the mill for grinding limestone. Plaintiff shipped a G. mill, of the size and kind described, which proved unsuccessful in defendant’s business, as he wished to grind wet limestone, for which the mill was not adapted. In a letter written subsequently, defendant told plaintiff that one E. (not connected with plaintiff) had recommended the mill, and he (defendant) thought he would try it. Held, that these facts failed to show that the purpose for which the article ordered was to be used was disclosed to the seller, and reliance placed on his judgment, so as to give rise to an implied warranty of fitness.</p> <p>2. Same — Statement in Catalogue.</p> <p>Two years before the sale of the mill, plaintiff’s agent had given defendant a catalogue advertising the G. mill, which stated that it would grind substances “as hard as flint and as soft as lime. s * * It will grind wet or dry,’’ — -but which showed, by other passages that “wet or dry” referred to alternative constructions or modes of operation of the mill, not to the nature of the substance ground. Held, that this statement was not misleading as to the fitness of the mill for grinding wet limestone, but that, if the catalogue had expressly stated it to be fit, and the mill been bought in reliance upon such statement, it would have constituted an express, not an imi>Iied, warranty.</p>

Action at law by Swiff, ami others against the Philadelphia & Reading Railroad Company. On motion for leave to withdraw pleas, and file demurrers to the declaration.

<p>1. Sale — Interpretation of Contract — “Guaranty” and Warranty.</p> <p>Plaintiff made written proposals to defendant, a street-car company, to furnish a trial car with electric storage batteries, to be operated by defendant for 60 days, and, if not then shown to be unsatisfactory, plaintiff was to furnish additional storage-battery equipments at specified prices. Accompanying these proposals was a letter wherein plaintiff agreed that in the event the equipments were furnished under the proposals “we will guaranty for á period of four years * * * that the cost of renewal of batteries * * * shall not exceed $2.50 per year,” on the cars at plaintiff’s factory, etc. Held, that this so-called “guaranty” was not an independent collateral undertaking, nor a mere guaranty of indemnity against loss which required defendant to operate the system four years before an action could be maintained for a breach, but, on the contrary, should be interpreted, under the circumstances of the sale, as a part of the contract, and as amounting to a warranty of the character and durability of the batteries.</p> <p>2. Same — “Conditions” and Warranties.</p> <p>A contract for furnishing storage-battery equipments for street cars, after specifying the machinery, terms of payment, and various stipulations, further provided that “the plant will be considered satisfactory if it fulfills the following conditions.” Among the conditions enumerated were that each car should run 12 miles an hour over a suitable track, carrying 50 passengers; that with additional battery cells it should draw a trailer, loaded to a given weight; that a set of batteries once fully charged should propel a car 25 miles, etc. Held, that those provisions were not merely conditions under which the vendor might compel the acceptance of the equipment, and which were waived by an acceptance, but were warranties for the breach of which damages could be recovered.</p> <p>3. Same — Defense of Breach op Warranties — Evidence.</p> <p>Plaintiff contracted to furnish defendant with one storage-battery street car, to be operated for 60 days on trial, and if it was not then' shown to- be unsatisfactory they were to furnish a number of storage-battery equipments for other ears, with certain warranties as to amount of work, durability, etc. The trial car was accordingly furnished, and was operated for 60 days. No complaint was made of its performance, ami plaintiff then furnished the other equipments, and afterwards sued for the price thereof. Defense was made on the ground of failure of the equipment to fulfill the warranties. Held, that as the warranties did not go into effect until the trial car had performed its functions, plaintiff was not entitled to show that that car failed in the same particulars as the equipments subsequently furnished.</p> <p>4. Same — Bkeacii op Wakkanties — Consequestial Damages.</p> <p>Expenses incurred by a street-car company in constructing shifting devices necessary for the installation of a storage-battery system are recoverable as damages against the vendor of the storage-battery plant, when the warranties contained in the contract of sale are broken to such an extent that the system is an utter failure, and the company is conrpelled to abandon it, and the shifting devices then become useless.</p>

<p>Bill of Exceptions — Time of Filing — Consent to Enlakgement.</p> <p>An indorsement on a bill of exceptions, “We agree upon the above and foregoing bill of exceptions,” signed by opposing counsel during- an extension of time for filing, made by an ex parte order in vacation, held binding as a consent to the enlargement of the time for settlement.</p>

<p>In Error to tbe Circuit Court of tbe United States for tbe District of Colorado.</p> <p>This ivas an action originally brought by Thomas H. Barnes against the Union Pacific Railway Company to recover for alleged false representations as to the ownership of land purchased by plaintiff of defendant. The case was first heard in the court below upon demurrer to the amended complaint. The judgment of the court below sustaining the demurrer was reversed upon error to this court (4 0. 0. A. 199, 51 Fed. 87), and defendant allowed to answer. Pending the action, Thomas IX. Barnes died, and S. Marcella P>arnes, administratrix, was substituted as jdaintiff. On a trial to the jury a verdict was directed for plaintiff, and defendant brought error.</p>

<p>1. Death by Wrongful Act — Limitations—Lex Fori or Lex Loci.</p> <p>An action for death by wrongful act, occasioned in a state which gives three years for suing therefor, may be maintained in another state, which gives only two years, at any time within three years.</p> <p>2, Limitations — How Raised — Motion for Judgment.</p> <p>The sufficiency of a complaint because it shows the cause of action to be barred should not be raised by motion for judgment, after an answer which does not plead the statute has been interposed, and not withdrawn.</p>

<p>Burglary of Post Office — Money Found on Burglar — Right of United States to Retain.</p> <p>A. pleaded guilty to the first court of an indictment in which, he was charged with breaking into a post office and stealing postage stamps. The second count charged the stealing of $50.00 in money, which was taken at the time of the burglary. When he was arrested and searched, $113.90 was found on his person, but no part of it was ever identified as the money stolen. $50.60 of such money was retained by the post-office inspector, and A. gave his attorney an order on the inspector therefor. Afterwards the inspector delivered the $50.60 to the United States. Held, that the United States had no right .to -the money as against such attorney.</p>

<p>In Error to the Circuit Court of the United States'for the Eastern District of Wisconsin.</p> <p>Action by the Flour City ¡National Bank against Julius Wechsel-.berg, Ernest S. Moe, and Charles H. Williams. Plaintiff obtained judgment. Defendant Wechselberg brings error.</p> <p>This is an action at law by the Flour City National Bank against Julius Wechselberg (plaintiff in error). Ernest S. Moe, and Charles H. Williams, as defendants below, for recovery of the amount due upon a promissory note for $3,000, dated September 18, 1889, made by the Northwestern Collection Company to the Northwestern Collection, Loan & Trust Association, and indorsed to said bank. The alleged liability of the defendants below is based upon their acts in the incorporation of the Northwestern Collection Company as a corporation under the laws of Wisconsin, and the transaction at large of business thereunder, without having capital paid in as required by statute, whereby it is asserted that they became personally obligated to pay ¡ndebiednoss so contracted. The complaint alleges facts to state a liability croaied by the statute of Wisconsin, viz. section 1773, c. 86, which is the act providing for incorporations; and also charges that tin; defendants are Bable “personally and as copartners in trade upon the obligations so contracted.” Demurrer to the complaint was overruled (43 Is’od. 547), and the defendants answered severally. The issues were tiled before the court upon stipulation waiving a jury, stud there were findings of fact and conclusions of law thereupon against all of the defendants; but Wechselberg alone sues out a writ of error.</p> <p>Tiie facts found, aside from jurisdictional and formal matters, may be summarized as follows (the iiortions to which exception is taken being placed in brackets), viz.:</p> <p>On April 6. 1888, the plaintiff in error, with the other two defendants below, executed articles of incorporation forming the Northwestern Collection Company of Milwaukee as a corporation to do a general collection and reporting business, with capital stock fixed at 85,000. divided into shares of 825 each. These articles were duly filed and recorded as required by the statute; contained the required provisions, named the general officers to be elected by and from a board of three directors, stated their duties, and provided that any person might become a member or stockholder by subscribing to and becoming the owner of one share of stock, and, further, that “the corporators should compose the first board of directors.” Certificate of incorporation ivas thereupon issued by the secretary of state, but no further steps were taken by any of the defendants to comply with the statutory requirements, no by-laws were adopted, no stock certifica tes issued or arranged for, and no stock was over subscribed for or paid in by (lie defendants or any other person, and the noncompliance was known by each of the defendants. The defendants Moo and Williams, assuming to be president and secretary, respectively, oí the corporation, immediately began to carry on a general collection business at Milwaukee, under this corporate name; and they, in the course of their said business, caused to be printed letter heads and business cards with statement of incorporation, and their names and offices as aforesaid, ieelremg therein the name of Julius Wechselberg as vice president, all of which were used and distributed during a year and a half of their operations. The plaintiff in error “knew all the time Hint Aloe and Williams were enriying on said business in the name of said corporation.” He took no part in the management |*‘but did not at any time, disavow his connection with the said corporation as incorporator, officer, or stockholder, until after the commencement of (his action”]. He never received any profit or emolument from it, and “the evidence does not establish flmt he had actual 'knowledge that his name was used upon the letter heads,” or that he was held out as an officer of tin' company; but I “under the circumstances, if he did not know it, he could have ascertained the fact by merely slight attention to the mailer, and was guilty of negligence in not knowing it, having become a party io the incorporation, and knowing that the business was being carried on in the name of the incorporation by the other defendants, and contenting thereto, when no capital stock had been subscribed or paid m io his knowledge or in fact, as lie was bound to know, he cannot shield himself from liability by reason of his negligent ignorance of the use of his name; and by uniting in the incorporation, and permitting and consenting to (he Iransacrion of business by and in the name of the incorporation without stock subscription or payment of any part of a stock subscription, he made Muiwlf liable for all debts lawfully contracted in the name of the incorporation”]. If is further found that the public representation of Wechsel-berg as vice president of this corporation was made known to the payee in the note in suit prior to the contracting of the debt for which it was given in renewal, but is not shown to have been known by plaintiff below until after the maturity of the renewal note. Also that the purported corporation made collections for and had active business connection with the corporation named as payee in said note, in which drafts were frequently drawn by the latter upon the former, and accepted and discounted through plaintiff bank. The note in suit was in renewal of one of those drafts so discounted, drawn September 11, 1889, and is a transaction of tills purported corporation. The corporation was wholly without capital or resources out of which to pay this debt Both the payee and its assignee were ignorant of this want of capital and of noncompliance with any of the statutory requirements. The exceptions and assignments of error are directed to the portions of the findings of fact which are above quoted in brackets, and to each of the conclusions of law and the judgment.</p>

<p>1. Writ or Kkhok — -JKmviww—Waivku or .Jury — Hi’koial Furomos.</p> <p>A jury was waived by stipulation, and the case referred to a referee for trial, who filed a, report containing liis findings of fact and conclusions of law. The court then adopted each ¡hiding of fact made by the referee ns findings of fact made by the court. Held that, on a writ of error to the judgment of the court, the questions for review were those only which might have been reviewed if the trial had actually taken place before the court under written stipulation waiving a Jury, and the court had made special findings of fact.</p> <p>2. Same — Demurrer—Waiver bt Answering Over.</p> <p>Answering over and going to trial on the merits after a demurrer is overruled waives the point raised by the demurrer, where there is not an utter failure to state a cause of action, but a mere incompleteness or uncertainty of averment, — a failure to state some fact w-hich should have been stated to make a technically good declaration or complaint.</p> <p>3. Same — Objections to Evidence — Indefiniteness.</p> <p>Objection made at the opening of the trial of an action at law, before a referee (a jury being waived), to the taking of any evidence, “for the reason that the petition failed to state facts sufficient to constitute a cause of action,” is too vague and- uncertain to be of any avail, as it fails to advise either the referee or the opposite party of the particular defect which rendered the petition insufficient. Sanborn, Circuit Judge, dissenting.</p> <p>4. Same — 'Validity of County Warrants — Itemized Accounts.</p> <p>Whether accounts for which county warrants sued on were issued were sufficiently itemized, as required by the statute (Gen. St. Kan. 1889, c. 25, § 28), to authorize the issuance of the warrants by the county commissioners, cannot be determined by a reviewing court, where the cause was tried without a jury, but the accounts or vouchers were not incorporated in the special findings, and the only findings in regard thereto were that the various vouchers were “itemized,” “duly itemized,” and, in some cases, “not very definitely itemized.”</p> <p>5. Same — Unverified Accounts.</p> <p>A county warrant issued by the board of county commissioners for an account which was not verified, though verification is required by the statute, is not utterly void; and a recovery may be had thereon unless it is shown to have been issued fraudulently, or without consideration, or for an indebtedness which the board was not authorized to contract.</p> <p>6. Same — Warrants for Clerk Hire — County Clerk’s Salary.</p> <p>County warrants issued to a person hired by a county clerk to make out the tax roll of the county, and for extra clerk hire, are void, where the statute provides that the salary allowed the clerk shall be “in full of all services whatsoever by law required to be performed in his office.” Gen. St. Kan. 1889, c. 39, § 12.</p> <p>7. Same — Warrants to Commissioners for Special Services.</p> <p>A county warrant issued to one of the county commissioners for special services rendered “in certain county seat contest cases ” is not rendered invalid by the mere fact that the services are found to have been rendered outside the county, nor can the court say that the county could in no event have such an interest in a county-seat contest that the commissioners would have authority to incur expenses in connection therewith.</p>

<p>1. Counterfeit Money — Possessing and Passing — Indictment — Failure to Set Out.</p> <p>An indictment under Rev.' St. §§ 5431, 5457, for possessing and passing counterfeit notes and obligations of the United States, sufficiently excuses tbe failure to set them out by alleging that the grand jury did not have them in tlioir possession or under their control, and did not know where they were, or that they were returned to defendant before the finding of the indictment, or that they were destroyed.</p> <p>2. Same — Sufficiency of Description.</p> <p>In such case it is sufficient, in connection with allegations as to the place, time, and person to whom passed, to allege that the counterfeit notes and obligations were “United States notos” (i. e. greenbacks) of a certain denomination.</p>

<p>This was a suit by John W. Mac K night against James McNiece for infringement of patents for artificial pavements.</p>

This was a suit by George A. Macbeth and George A. Macbeth & Co. against the Braddock Glass Company, Limited, and W. R. McCloy, for infringement of the Dietrich design patent for lamp chimney tops, No. 14,373, granted October 30, 1893, to George A. Macbeth, assignee of Henry Dietrich.

Tins was a suit by George II. Stahl against Albert F. Williams for infringement of certain patents for improvements in incubators. A preliminary injunction was heretofore denied. 52 Fed. 618.

<p>1. Equity — Rehearing—New Evidence.</p> <p>A rehearing will not be granted to allow the introduction of evidence which, by due diligence, could have been introduced at the original hearing, on the ground that the party and his counsel were misled as to the real issue by the arguments of the opposing counsel.</p> <p>S. Patents — Anticipation-—Aluminum by Electrolysis.</p> <p>The Hall process of making aluminum by electrolysis, after dissolution of alumina in fused cryolite (letters patent No. 400,766), is patentable, even if the solubility of alumina in fused cryolite was previously well known, alumina having never previously been disrupted by electrolysis into its constituent parts; 55 Fed. 301, affirmed.</p> <p>3. Same.</p> <p>Discovery of the fact that fused cryolite would freely dissolve alumina, which was essential to Hall’s process, was not anticipated by the discovery of Oe Yille that cryolite would dissolve or flux alumina to a slight extent, he having compared its power to dissolve alumina to that of fluoride of sodium and flúor spar, the former of which would, and the latter was supposed to, dissolve about 1 per cent, of alumina, though flúor spar has since been discovered tp dissolve about 25 per cent, of alumina. 55 Fed. 301, affirmed.</p>

This was a suit in equity by the Office Specialty Manufacturing Company against the Cooke & Cobb Company for the infringement of letters patent No. 217,909, granted to F. W. Smith and J. S. Shannon, July 29, 1879, for a paper holder; letters patent No. 312,080, granted to William H. Clague, February 10, 1885. for a paper file; and letters patent No. 331,259, granted to J. 8. Shannon, November 24. 1885, for an index for paper files.

<p>In Equity. Bill by the N. K. Fairbank Company against the Central Lard Company for an injunction to restrain the infringement of a trade-mark.</p>

<p>Appeal from the District Court of the United States for the West ern District of Pennsylvania.</p> <p>This was a libel by John Moren and Michael Munhall, owners of two coal boats, against ihe steamer Harry Brown, for damages sustained in a collision. A petition was filed by Harry Brown and. Samuel S. Brown, copartners trading as W. H. Brown Sons, claimants of the steamer Harry Brown, against the steamer Beaver, charging the lat ter with responsibility for damage to the coal boats and also to the steamer Harry Brown. The district court rendered a decree for libelants, apportioning the damages between the two steamers. The claimants of the steamer Harry Brown, and William J. Wood, Thomas J. Wood, Harry McDonald, and the Lysle Coal Company, claimants of the steamer Beaver, appeal.</p>

<p>1. Salvage Setivicbs — 'Wiiat Constitute.</p> <p>Where a barge, which was the only one of a tow of seven not stranded and sunk, was drifting in a severe storm, without motive power of any kind or an anchor suited to the occasion, and it is probable she would have sunk had she not been rescued by libelant, and conveyed to harbor, the service of libelant is a salvage service, though the barge was stanch and well constructed, and might have survived the storm, and it was possible, she would have been picked up by others if libelant had not rescued her.</p> <p>2. Salvage— Compensation.</p> <p>A tug rescued a barge adrift in a severe storm on Chesapeake Bay, off Et. Carroll, and conveyed her to Baltimore. The time occupied was brief, and the expenses to repair the damage sustained in the work were small. The value of the barge and cargo was about, $3,700. Held, that ?<SOO was a just compensation.</p>

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

<p>This was a libel in personam for collision, filed by John P. Webster against A. C. Calvin Disharoon.</p>

<p>Fbuejiai, Courts — Jurisdiction —Inon Seas.</p> <p>The district court of the Eastern district of Wisconsin has no jurisdiction of an indictment for an assault committed on a vessel on Take Huron within the boundary of the jurisdiction of the Eastern district of Michigan,</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Assumpsit by the National Bank of Denison against Daniel Dan-ahy. Plaintiff obtained judgment. Defendant brings error.</p>

.Appeal from the Circuit Court of the United States for the District of Massachusetts. This was a suit by Otto Thum and others against John A. Andrews and others for infringement of patents No. 278,294 and No. 305,118, issued to said Otto Thum, for fly paper.

<p>Bill by the Baltimore Trust & Guarantee Company, trustee, against •the mayor and city council of Baltimore. On final hearing.</p>

Three bills — one by Ames against tbe Union Pacific Railroad Company and others; one by Smith and others against the Chicago & Northwestern Railroad Company and others; and the other by ETig-gonson and others against the Chicago, Burlington & Quincy Railroad Company and others — for injunctions. Decrees for complainants.

<p>This was a proceeding by Trenor Luther Park against the New York, Lake Erie & Western Railroad Company for the appointment of receivers and for other relief. John King and John C. McCullough were duly appointed receivers, and in August, 1893, the Farmers’ Loan & Trust Company petitioned the court for leave to intervene as a party defendant, and an order was made to that effect. The cause is now before the court on petition by the Farmers’ Loan & Trust Company praying for an investigation by the court, and an order respecting the payment of certain demands against the railroad company by the receivers.</p>

<p>Insueawce — Prorating- Loss.</p> <p>Where property is covered by both a specific and a compound policy, each containing a provision that the company shall not be liable for a greater proportion of any loss than the amount insured bears to the whole insurance, the full amount of the compound policy .is available for its due proportion.</p>

This was a suit by Pierre De Chambrun, as administrator of Charles A. De Chambrun, against George J. Scbermerhorn, to establish and enforce a trust, and is now heard on defendant’s appeal from a decree of the circuit court in the Southern district of New York, sustaining the bill upon pleadings and proofs, and directing an accounting. 59 Fed. 504.

Action at law by O. F. Weber and others against the Spokane National Bank and its receiver, upon promissory notes. Judgment for defendants. 50 Fed. 735. Plaintiffs bring error.

<p>In Error to the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>Action by Margaret Austin against the Northern Pacific Railroad Company. Plaintiff obtained judgment. Defendant brings error.</p>

<p>Judicial Sale — Cash Bid.</p> <p>At a sale by a marshal under a decree directing him to sell for not less than $15,000, with power to accept a bid of $10,000 in cash, balance on credit, if there was no cash bid for the full amount, the property was knocked down to petitioner for a cash bid of $1G,050. It being past banking hours of a Saturday, and petitioner having' only a certified check of $10,000, he tendered it to the marshal as part payment, with the statement that he could keep it as forfeit if petitioner did not pay the balance Monday morning. The marshal, immediately after stating that this would be satisfactory, refused to accept it, rejected the bid, and made a private sale to the next lowest bidder. Held that, as a cash sale required payment on the same day, petitioner could not complain.</p>

<p>1. Patents for Combinations — Novelty and Invention — Infringement.</p> <p>Where a patent is for a combination, and such combination is new, and produces useful results, it is immaterial that the separate elements are found in different prior machines.</p> <p>2. Same — Anticipation—Estoppel.</p> <p>A combination claim cannot be invalidated by showing that certain original claims, containing all but one of the elements in the claim in controversy, were rejected on the citation of prior patents, and by then showing that there was no invention in adding the additional element.</p> <p>3. Same — Grain Press Drills.</p> <p>The Rhodes patents, Nos. 355,710 and 400,947, for press drills for sowing wheat and similar grain, held valid, and infringed; the first patent as to both its claims, and the second as to its third and fourth claims.</p>

<p>1. Patents — Damages for Infringement.</p> <p>An infringer cannot escape liability for actual profits made, on the ground that his superior skill and scientific methods In conducting the business enabled Mm to reap greater profits than others would have done by the infringement.</p> <p>2. Same — Test of Comparison.</p> <p>The essence-of complainant’s'invention consisted in the thorough crushing of the seed without grinding, by mullers, before it was pressed, to obtain the oil. The defendants, after they were enjoined, continued to thoroughly crush d he seed as before, but in addition put it under a small set of mullers, which had little, if any, appreciable effect; and in this way managed to produce the same high yield as the complainant’s process. The master adopted this subsequent practice as a test of comparison. Meld, that the adoption of this test was error.</p>

This was a suit by the Edison Electric Light Company and tlu-Edison General Electric Company against the Buckeye Electric Company and others to restrain the alleged infringement of letters patent No. 223.898, issued January 27, 1880, to Thomas A. Edison, for an incandescent electric lamp. A preliminary injunction was heretofore dissolved by the court (59 Fed. 691), but a motion for a preliminary injunction has again been made, supported by additional affidavits.

This was a suit by the Edison Electric Light Company and others against the Universal Electric Company and others to restrain the infringement of incandescent electric light patent. Defendants moved to dissolve a preliminary injunction.'

<p>This was a bill brought by the H. W. Johns Company against Henry M. Bobertson and others for infringement of a patent.</p>

This was a suit by William Goldie and others against the Diamond State Iron Company and others for infringement of certain patents. Heard upon motion for a preliminary injunction.

This Wits a suit by WilJiaiu Graver against Benjamin 0. Faurot to set aside, on the ground of fraud, a decree rendered in a court of the state of Illinois.

<p>FjSBÍSRAT, JURISDICTION — CONTEST OR WlI.T.S.</p> <p>Federal courts have no jurisdiction of a direct action to cancel a will.</p>

<p>Husband and Wife — Separate Estate.</p> <p>O. applied to I), for a lean, saying that lie wanted the money, and wished to get a loan upon his wife’s estate. D. having made out the application for the loan in her name, O. asked it' ho could sign it, and, upon D.’s telling him that he could, signed it with his wife’s name. O. afterwards told his wife, who had known nothing of it, of his application for a loan, and induced her to agree to sign the papers when prepared, but did not tell her the contents of the application, or of any use proposed to be made of the money. O.’s wife, under D.’s direction, signed, without reading, a note and mortgage upon property belonging to her, and D. thereupon, in the wife’s presence, but without any request from her, gave O. a check to Ids own order for the proceeds of the loan. Held, that the loan was made to O. for his own use, upon the security of his wife’s note and mortgage, and under tlio law of South Carolina as existing in 1S8G, where a married woman could only contract in reference to her separate estate, such note and mortgage were void.</p>

Creditors’ bill by J. B. McMullen and others against Samuel J. Ritchie and others. The complainants obtained a judgment on the law side of this court November, 1890, against the defendant Samuel J. Ritchie, for $265,370. Execution issued, and was returned nulla bona.

<p>1. Constitutional Law— Obligation of Contracts — Amendment of Charter — Territorial and State Governments.</p> <p>The charter of the defendant railroad corporation, granted in 1859, by a, special act of the legislature of the territory of Kansas, provided that, in elections of directors, cadi shareholder should have one vote for each share of stock held by him. The constitution of the state of Kansas, assented to by congress on the admission of that state, provides that all laws in force in the territory at the time of the acceptance of the constitution. not inconsistent with it, shall continue in force. It also provides (article 12, S .1) that (ho legislature shall pass no special act conferring corporate powers; that corporations may be created under general laws, but such laws may be amended or repealed; but it declares that all rights arising under the territorial government shall continue. The legislature of the state of Kansas,-by an act passed in 1876, and amended in 1 SSI, provided that, in all elections of directors of any incorporated company, each stockholder might cast for any one candidate as many votes as lie held shares of stock, multiplied by 1ho number of directors to be elected. Held, that no power was acquired by the legislature of the state', through the provisions of the constitution and its acceptance by congress, to amend the charter of defendant without its consent', and that the last-mentioned statute, accordingly, did not apply to its elections.</p> <p>3. Samis — Method of Voting on Stock.</p> <p>Held, further, that the right to amend the defendant’s charter in this respect was not reserved to the territory by an act passed before the charter, and providing that any charter thereafter granted might he amended, provided such amendment should not conflict with any right vested by the charter; since the right of each, shareholder to cast one voie for each share is a vested right</p> <p>8. Samio— Assent of Corporation.</p> <p>Held, further, that the corporation had not assented to or accepted the provisions of the act for cumulative voting by accepting and acting under sundry statutes providing that any railroad corporation should have certain rights, etc., but imposing no terms or conditions indicating an intention to abrogate rights or privileges already existing.</p>

<p>Equity Practice — Interventions—Receivership Suits — Corporations.</p> <p>In a suit in which a receiver has been appointed for a corporation, the court will not permit separate interventions by individual stockholders, with the consequent multiplication of papers and requests for separate allowances of costs and attorney’s fees; but, whore there are dissensions among the stockholders, each separate group will he secured a separate hearing.</p>

This was a suit by Emily A. Corliss and others to enjoin the E. W. Walker Company and others from inserting a portrait of George II. Corliss in a biographical sketch about to be published by them. An injunction was heretofore granted (57 Fed. 434), and defendants have moved to dissolve the same.

<p>Cities — Paving Contracts — Payment in Invalid Assessments.</p> <p>Where a ally having authority to pave its streets and pay therefor from its treasury, and supposing that it had authority also to assess the cost on abutting properly and transfer the assessments in payment for the work, contracts with a person, who also .supposed it had such authority in regard to assessments, to do such paving, and to pay him by assigning the assessments to him. the city, not having in fact any authority to make the assessments, will he liable on the contract for the work, though it is stipulated that the assessments shall be accepted in payment, and that the city shall not he otherwise liable under the contract, whether the assessments are collectible or not. 62 Fed. 565, reversed.</p>

<p>1. Telegraph Companies — Injuries by Broken Wire in Contact with Elec-trio Wire — Evidence.</p> <p>In an action against a telegraph company for injuries to a boy 10 years old, it appeared that the boy took hold of a broken call wire hanging from the crossbar on one of defendant’s poles, and received a severo electric shock; that there was an electric light wire on the pole, below the crossbar; that the electric light plant was not owned by defendant; and that soon after the accident the broken wire was repaired. Held, that evidence was admissible that nine months after the accident there was no guard or dead wire between the call wire and the electric light wire, as was usual in such cases, and that the call wire was then defective by reason of long use and rust.</p> <p>2.- Same — Negligence—Proximate Cause.</p> <p>There was evidence that the call win; had become weakened by long exposure, and that it had been mended and patched In several places, so that it was liable to bo broken from any slight cause, and that there was no guard or dead wire to prevent its falling across the electric wire and becoming dangerously charged. Held, that the questions of negligence and of proximate cause were properly left to the jury.</p> <p>8. Same.</p> <p>Where It was certain that plaintiff’s injuries were the result of the contact of the call wire and the electric wire, It was immaterial whether the contact was at the place ol' the accident or elsewhere, if such contact was caused by defendant's negligence.</p> <p>4. Appeal — Review—Objections Waived.</p> <p>Objection to the denial of defendant’s motion for nonsuit, made at the close of plaintiff’s evidence, is waived by the subsequent introduction of evidence by defendant.</p>

<p>In Error to the Circuit Court of the United Htates for the Northern Division of the Northern District of Illinois.</p> <p>Action on tlie case by Nellie E. Pierce against the Chicago, St. Paul & Kansas City Railway Company. Plaintiff obtained judgment. Defendant brings error.</p>

<p>Appeal from the Circuit Court of the United States, for the Southern District: of Illinois.</p> <p>Action by John Allen, administrator of the estafe; of Charles Allen, deceased, against B. R. Callaway, receiver of the Toledo & Kansas City Railroad Company. Plaintiff obtained judgment. Defendant appeals.</p> <p>This is an action for damages for negligently causing the death of Charles Allen, appellee's decedent. In an action to foreclose a mortgage against the railroad company in the circuit court, appellee intervened by petition for the allowance of a claim by the receiver of said railroad company Cor $5.000 on account of such death. On motion of petitioner, the cause was referred to a mast(>r to take testimony and report. Subsequently, tile case was sot down by the court for trial by a jury, trial had, and a verdict of $5,000 rendered in favor of the petitioner, and a decreí; entered by tile court. Objections were taken to the trial on the ground that no issue had been properly framed out of chancery, and that the trial was irregular; but as an appeal was taken from the decree, and, the cause has been argued here upon tlie merits, it will be considered and decided in the same way,- -that is, upon the merits, its they appear from the law and the testimony. The verdict of the jury, being advisory only, and for the information of the court, was not .conclusive upon the facts in the court below, and is not in this court.</p> <p>The ground of the action is the alleged negligence of the receiver in not furnishing safe and competent machinery and appliances for the decedent to work with, anti in not informing him of the defective and dangerous character of that furnished, whereby Hie accident resulting' in his death was caused.</p> <p>Charles Allen, the decedent, was killed while *in Ihe employment of the receiver, upon said railroad, on (he 1st day of .July, 3892, while at work with a gang of men in the construction of a bridge and trestle;work near a place called Ooffeen, in .Montgomery county, Ill. The receiver was at that time in general charge of, and was operating, the road. There was also a general superintendent, Arthur L. Mills, who had charge of the operating department, maintenance of way, including the bridge department, and transportation. The general superintendent was also purchasing agent, and had general charge of the purchase of supplies, tools, and machinery. There was under him one ,7. JR. Johnson, who was master of the bridge and building deitartment, as an independent department, fender Johnson were several gangs of men, — among others, the one where; decedent worked, — who worked under bridge foremen appointed for that purpose by the superintendent of bridge's. These foremien we're tinder the; eliree.tion of the master of bridges and buildings, anel aedeel as beess of the partieuilar work each had in charge for tlie time, in tlio absence of the master of bridges and buildings, lie employed his own men, subject to the approval of the master of bridges, and was authorized to discharge them for cause. In the absence of his superior, he controlled the mode and manner of work, subject to the supervision and approval of the same authority. The machinery, tools, and appliances deemed necessary for the work of the bridge department were purchased by the general superintendent, and furnished by him, through the master of bridges, to the foremen and their men. There is no complaint in the case that the machinery actually furnished by the superintendent for the work on this bridge was not safe and sufficient. The bridge and trestiework, several hundred feet in length and in the highest place about 40 feet above the ground, was being constructed over a ravine. Among the machinery and implements so furnished were certain push cars, being small flat ears propelled by hand; the men in charge walking behind or at the side, and pushing them with their hands. These were used by the men to carry timbers from one end of the trestiework out upon the bridge, for the purpose of being put into its construction, and, so far as anything appears, were safe and proper for such purpose. But it required hard labor to load and unload the timbers upon and from these cars by hand. Some two months before the accident, one Thompson, acting as a bridge foreman at another place, without the knowledge or authority of the receiver or the superintendent, or the superintendent of bridges and buildings, constructed from waste material a labor-saving addition to one of these push cars, which consisted in a V-shaxsed frame or platform with diagonal braces, designed to be placed upon and used with the car. Upon this platform was constructed a windlass, with rope and pulley, and at one end of the rope'a hook. This rope passed through the pulley and wound upon the windlass in such a manner that the free end of the rope hung out over the push car when the machine was in use. The device was designed to lift bridge timbers, transport them to the point upon the work where needed, and deposit them there. This was done by attaching a chain to the hook in the end of the rope, and encircling the timber with the other end, and lifting it by means of the pulley and windlass. The timber, when so raised, would be carried forward by pushing the car to the desired place, and then unloaded and put in place by releasing the cranks of the windlass, and lowering the timber by means of the rope and derrick. But these timbers, being suspended more upon one side, required something on the other side of the ear to counterbalance; otherwise, there was danger of unloading truck, frame, timbers, and all into the ravine below. Bor this purpose, the men were accustomed to pile timbers upon the other edge of the truck, or, more commonly, to seat men, as live weight, to counterbalance the load. On the occasion in question, the men, under charge of Charles Anderson, as foreman, loaded upon this instrument, and by these means, three large oak pieces, each IS feet long, 18 inches wide, and 7 inches in thickness, weighing nearly, but not quito, a ton, and carried them to the place of deposit. This was more than they had ever attempted to carry before. They had theretofore carried two such pieces of oak,' or three of pine. On that day, Allen was engaged and at work with other employés, ns a-bridge carpenter, at that place, not in transporting, but in framing, the timbers. The men engaged in loading them, having some difficulty in raising them by the device in question, called upon Allen to “give them a lift,” which he did. He got upon the platform on the push car, to assist in lifting the timbers, or to act as a counterbalance to their weight when raised, or both, perhaps, and remained upon the platform, with three other employes, while the car was being pushed to its place over the center of the depression. One end of the stringers extended diagonally across the track in the rear of the car, and the stringers were held steady by one of the gang until the car had reached the proper place for deposit. When the car stopped, the man who was steadying the timbers pushed one end of them out over the side of the car and trestle so that they hung suspended beyond the trestle, and about parallel with the track. At this moment, for some reason, — whether from so swinging the timbers out beyond the trestle, or from some change in the position of the men, who, with Allen, were performing the office of live weight to counterbalance the stringers, is not entirely clear, — tlie timbers proved too heavy for the counterbalance, and the car and platform began gradually to tilt, and finally upset, and fell with Allen to the bottom oí The gulf, the other men escaping by jumping off in time. A prior foreman, one Thompson, had constructed and used the platform and» windlass device at anouier place. It was brought to this trestle by Foreman Anderson, and used under his direction. Neither the receiver nor superintendent, nor< superintendent oí bridges and buildings, authorized its construction or use. On the contrary, whenever the attention of Johnson, the master of biidges, had been called to it, he had forbidden its use, and only a few days prior to the accident he told Anderson to throw it away. He did not put the prohibition of its use on the ground of its being dangerous, but on the ground that it retarded Hie work, and more could be accomplished without it than with it. 1</p>

Action on the case of Wilbur F. Davidson against the Illinois Central Railroad Company. Plaintiff obtained judgment. Defendant brings error. This is an action brought by Wilbur If. Davidson, the defendant in error and plaintiff below, against the Illinois Central Railroad Company, to recover damages for a personal injury to the plaintiff, the result of an accident happening upon defendant's road in the city of Chicago, on February 27. 1899.

At Law. Action by Isaac Sliellabarger against Mark J. Oliver. Heard on rule to show cause why defendant should not be attached for contempt in refusing to testify before an officer authorized to take depositions.

<p>1. Limited Partnership — Pennsylvania Statute — Husband and Wife as Members.</p> <p>An act (Pa.., .Tune 2, 1871) which requires not less than three persons to unite to form a limited partnership Is complied with where two of the persons uniting are married women, and. the others are their husbands.</p> <p>2. Same — “ Ltd. ” in Firm Signature.</p> <p>Whore an act (Pa.. June 2. 1874) providing for limited partnerships requires that the word “Limited’’ shall be the last word in the name of every such partnership, the contention that the use of the abbreviation “Ltd.” in a signature creates a general liability has no force.</p> <p>8. Same — Contract Signed by Only One Manager.</p> <p>Where an act relating to limited partnerships (Pa., June 2, 1874) provides that no liability exceeding $500 shall bind the iirm, except the person incurring it, unless reduced to writing, and signed by at least two managers, it is plain that the act of a single manager, in disregard of such provision, cannot extend the liability to the other members.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was an action by B. F. Fisher, receiver of the Spring Carden National Bank, against John F. Simons, Frederick AL Simons, and Edwin S. Simons, copartners, trading as Simons Bros. & Co., on a promissory note. The circuit court directed a verdict for plaintiff, whereupon the defendants brought error; and the judgment was reversed by the circuit court of appeals, and the cause remanded, with directions to grant a new trial. 5 C. C. A. 311, 55 Fed. 905. The new trial was had April 11, 1894; BUTLER, District Judge, charging the jury as follows:</p> <p>The plaintiff urges that the recent case of Bank v. Armstrong (just published in the Supreme Court Reporter for April 2, 1894) 14 Sup. Gt. 572, is in conflict with the decision of the circuit court of appeals of this circuit in this case, and sustains his position. I1‘ this were true (and I have not examined the subject with sufficient care to ascertain certainly whether it is or not), I would nevertheless he bound by the decision of the court of appeals, as it was made in this case. If the decision is to be reversed, it must-be done by the court that made it. As I understand the decision last named, it rests upon three distinct grounds: First. The note having been obtained fraudulently, the plaintiff was required to produce evidence that the bank gave value for it without knowledge of the fraud, and the evidence produced was not sufficient to establish these facts. Second. Kennedy, as president of the bank, had authority, by virtue of bis office^ to borrow the note in the bank’s name for its use, and the bank is therefore responsible for his acts and representations at the time he obtained it. Third. That, if the foregoing propositions were not correct, still the defendant might, prove, as he offered to do, that the president, Kennedy, was the general manager of the affairs of the bank, and in case he did so this woulci be, sufficient proof that the bank had invested him with special authority to borrow the paper. A's the testimony now Is substantially the same as was produced on the former trial, supplemented by what has been given under the offer then rejected, we instruct you that the defendant is entitled to a verdict, if the jury believes his evidence respecting the circumstances under which the note was obtained; and, as it is uncontradicted and undisputed, you will not hesitate to believe it</p> <p>And thereupon the counsel for the said plaintiff did request the learned judge who tried the cause to charge the jury as set forth in the first point of the said plaintiff, to wit:</p> <p>(1) The undisputed evidence in this case shows that F. W. Kennedy, president of the Spring Garden National Bank, had the original of the note in suit discounted by the bank, and applied the proceeds thereof to his own use; and, as there is no evidence of his authority to borrow the note for the use of the bank, the Verdict should be for the plaintiff.</p> <p>And thereupon the learned judge who tried the cause did answer the same as follows:</p> <p>In view of the decision of the circuit court of appeals in this ease, and the fact that the evidence is substantially the same now as before, the point must be disaffirmed.</p> <p>And thereupon the counsel for the said plaintiff did then and there except to the answer of the said judge to the said first point of the plaintiff, and the learned judge did then and there, at the request of the counsel for said plaintiff, seal his bill of exception thereto. And thereupon the counsel for the said plaintiff did further request the court to charge as set forth in the second point of the said plaintiff, which is as follows:</p> <p>(2) The undisputed evidence in this case shows that F. W. Kennedy, president of the Spring Garden National Bank, had the original of the note in suit discounted by the bank, and applied the proceeds thereof to his own use; and the evidence also shows affirmatively that said F. W. Kennedy, president, had no authority to borrow the note for the use of the bank, and therefore the verdict should be for the plaintiff.</p> <p>And thereupon the learned judge who tried the cause did answer the said second point of the said plaintiff as follows:</p> <p>I make the same answer to this point as I have already made to the first point, and, for further answer, refer to my general charge already made..</p> <p>And thereupon the counsel for the said plaintiff did then and there except to the said answer of the said court to the second point of the plaintiff, and the learned judge who tried the cause did then and there, at the request of counsel for the said plaintiff, seal his bill of exception thereto.</p> <p>Plaintiff brings error.</p>

<p>Evidence — Books of Account.</p> <p>A book in which one person sets down the total amount of logs scaled from memoranda furnished him by another person, who did the work, is not admissible to prove the amount of logs scaled, unless supplemented by the testimony of the person furnishing original data.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Ohio.</p> <p>Application by James Lennon for a writ of habeas corpus. The circuit court denied the application, and the petitioner appeals.</p> <p>This was a proceeding by habeas corpus instituted in the court below by the petitioner, James Lennon, to be relieved from imprisonment to ■which he was committed to enforce the payment of a fine imposed by that court upon him for the violation of an injunction ordered by it in a cause therein pending between the Toledo, Ann Arbor & North Michigan Railway Company, as complainant, and the Lake Shore & Michigan Southern Railway Coiupany and five other railroad companies and two managing officers of other companies, as defendants. The circumstances out of which the present proceedings grew were substantially these: The locomotive engineers of the first-named railway had, in current phrase, “gone out on a strike.” The. Associated Brotherhood of Locomotive Engineers, to which they belonged, and of which the engineers on the Lake Shore & Michigan Southern and the other railroad companies were members, had taken up their cause, and indicated their purpose to refuse to take from or deliver to the Toledo, Ann Arbor & North Michigan Railway Company cars of freight coming from or destined to points on the line of that road, the natural consequence of which would be to compel the other railroad companies to discontinue interstate freight-traffic relations with it. The Toledo, Ann Arbor & North Michigan Railway Company, finding itself in this situation, hampered and impeded in its business, filed its bill in the -court below against the several railroad companies and officers above mentioned, setting forth its employment and agency in interstate commerce, and its relations with the other railroad .companies in that business, and that these companies threatened to refuse and deny to it the rights and privileges accorded to it by law as an agency in such commerce,- by refraining from receiving from or delivering to it -freight which was in course of transportation from state to state, and praying for an injunction restraining the defendant companies, their officers, agents, servants, and employes, from refusing' to offer to the complainant all reasonable and proper and equal facilities for the interchange of traffic with it; from refusing to receive from the complainant, for transportation over their respective lines, any and all cars of freight which might be tendered to them by it; and from refusing to deliver to the complainant all cars of freight which might be billed over its line of railroad. Upon the filing of tills bill, the court awarded an injunction against the defendants therein, ordering and enjoining them, their officers, servants, agents, and employes, in the terms, substantially, as prayed In said bill. The injunction was issued accordingly, bearing date March 11, 1803. The petitioner was a locomotive engineer in the service of the Hake Shore & Michigan Southern Company, and a member of the association above mentioned. On the following 18th day of March, the complainant in that suit made an application to the court, staling that the petitioner and others having notice of the injunction had violated it, in that they had refused to haul certain cars laden with interstate .freí tilt, standing on the tracks and in the yards of the Lake Shore & Michigan Southern Kailway. destined to delivery at points along the line of the Toledo, Ann Arbor & North Michigan Kailway by the said last-named railway; that they had refused to obey the order and mandate of the court, and had deserted their locomotives and engines for the reason that they were required to haul the freight going to the Toledo, Ann Arbor <& North Michigan Railway Company, — and praying that they be arrested and punished for their contempt. Ail order of arrest was issued, and the petitioner and others were brought before the court. The petitioner pleaded not guilty. A hearing was had, and evidence was adduced by both sides upon the issue thus made. The court, upon hearing the evidence and arguments of counsel for the respective parties, found the petitioner guilty, and adjudged him to be in contempt, and that he pay a fine.of $50 and costs, and stand committed until the fine should bo paid. These proceedings, including the opinion of the court therein, are reported in Toledo, A. A. & N. M. By. Go. v. Pennsylvania. Co., 54 Fed. 740. The petitioner thereupon resorted to the same court for a, writ of habeas corpus, and. this being denied, he appealed to the supreme court of the United States. That court, holding that it had no appellate jurisdiction in the case, dismissed the appeal. In re Lennon, 150 U. S. 393, 14 Sup. Ot. 123. He then renewed his application to the circuit court for the writ, and, that being- denied, he brings his case here by appeal.</p>

This was a petition by William EL King, by Caleb Eaton, Ms next friend, for a writ of habeas corpus. The circuit court discharged the writ, and remanded petitioner to the custody of the McLean Asylum of the Massachusetts General Hospital. Petitioner appealed.

TMs was a petition by William H. King (by Caleb Eaton, Ms next friend) for a writ of babeas corpus. The circuit court discharged the writ, and remanded the prisoner to the custody of the McLean Asylum of the Massachusetts General Hospital. Petitioner appealed, pending which he petitioned for a process of contempt, on the ground that he had been removed to an asylum in another district.

<p>This is an action in equity, upon final hearing, to restrain the infringement of 507 copyrights covering that number of pamphlets, published by the complainant, containing reports of decided causes in the state and federal courts. A motion for an injunction pen-dente lite having been made (53 Fed. 265) the question of infringe-meiit was referred to a master (W. S. Doolittle) who filed a report (May 22,1893) finding infringement in 308 para graphs. The master also filed the following opinion, which sufficiently states the facts in controversy:</p> <p>‘•This is a reference to the master to hear and determine the issues raised on motion for injunction pendente lite in a copyright case and to report the portions of defendant’s publication that infringe the copyright of complainant. 'There is practically no dispute on the facts alleged in regard to publication and copyright, the question of piracy being the real issue. The complainant, the West Publishing Company, assumes to report decisions of all the courts of last resort (and some of the intermediate courts) in this country in what is called the National Reporter System. The system is made up of various parts or reporters, the United States being divided territorially into convenient and appropriate districts for the purpose, about a dozen in number. Each reporter is published weekly In pamphlet form, and contains the current opinions of the courts of its respective district, preceded by head-notes and preliminary statements. These opinions are obtained by complainant from official sources at great expense, and with few exceptions are by far the earliest publication thereof. Ninety per cent, at least of the opinions published are published for the first time in complainant’s system, and in some cases, as in this court, it is practically the only publication made. The original work of complainant in these weekly parts — that is, the head-notes and preliminary statements (excepting those prepared by llie courts or foreign reporters) — and all other matter therein, except the opinions, are copyrighted. Taking the headnotes of these weekly parts as a basis, complainant constructs and publishes a digest in monthly parts, which monthly parts, with additions of selected cases and references to oiiicial reports, go- to make up its Animal Digest — a single volume', called the ‘American Annual Digest.’ The volume for the year 1802 (with the monthly parts and reporters on which It is based) is the one in suit, the digest year being from September to September.</p> <p>“The defendant, the Lawyers’ Co-operative Publishing Company, publishes, among other publications, the General Digest of the United States, a work of the same purport as the American Annual Digest, and compiled in the main from parts which they publish semimonthly, the General Digest Annual for the year 1892 being the volume claimed by complainant to contain pirated matter in infringement of complainant’s copyright. The defendant is a subscriber to the various «reporters of complainant, and receives them in the usual weekly parts, and in these publications are found at least nine-tenths of the opinions used by them from which their digest paragraphs are claimed to be written. These weekly parts are distributed on their receipt among the defendant’s several editors who from these pamphlets write the digest paragraphs which appear first in the semimonthly parts of the General Digest and thereafter in the Animal. From the testimony of the defendant it appears that its digest paragraph writer, when using the reporter, has before him in his work the syllabus and preliminary statement prepared by complainant, the same being directly followed by the opinion, and that without referring' to the syllabus in any manner he constructs his digest paragraph from the opinion and that alone. Defendant’s publication is principally ihe work of eight editors, who have each been sworn and given similar testimony to the effect that they had instructions never to consult the head-notes of other publications, unless the same were made by the court; that they never used in any way the headnotes of complainant’s publication, and some of them that they never read the lieadnotes either before or after they liad finished their work, oven for comparison. One of the editors, however, Air. Coffin, in his deposition stated that he- invariably read the syllabi of complainant the first thing, but he made no use of them in his work; and Mr. Greenhoot that he sometimes did read them and sometimes not; but with two exceptions, whore he could not find different expressions, he never' made use of complainant’s headnotes. Another, Mr. Hill, testified that after he had formulated his headnotes he sometimes compared his work with complainant’s for curiosity merely. These editors, in reply to questions as to the average amount of wort they are capable of performing in a day in writing digest paragraphs from the opinions in complainant’s publications, state variously, but it is between twenty and forty cases in a day’s work; Mr. Greenlioot testifying 'that he averaged between eight and ten in an evening’s work; Mr. Kick and Mr. Herrick that they averaged between thirty and forty in a day, and Mr. Haviland between twenty and thirty in a day. In reply to this line of testimony complainant produces as many editors of its own staff, who testify to too impossibility of, doing in a day the amount of original paragraph writing claimed by defendant’s editors. Their testimony shows that from their experience the average is between four and seven cases a day, but that in preparing paragraphs from the head-notes of their own reporters for use in the digest they could then do between thirty and forty cases in a day. Mr. Appleton, one of complainant’s principal editors, testifies that defendant’s editor Greenhoot, who testified that his capacity was eight to ton cases in an evening’s work, when employed by complainant in 18S9 and. for several years prior, was unable to do more than three cases in a day’s work of eight hours. The only witness produced not in some way connected with the parties was Mr. Sickels, the New York court of appeals reporter, who was called by complainant. In a number of respects he substantiated the testimony of complainant’s editors. He testified mainly from his own extensive experience as a reporter, stating that he considered himself a rapid worker; that he averaged in reporting but little more than four cases a day; that if a digester had before him and utilized the headnotes of other writers it might be possible to do as many as twenty to thirty cases in a day’s work; otherwise, he did not deem it possible to average more than from four to six cases in a day.</p> <p>“With these facts set forth complainant introduces and points out to the master some five hundred paragraphs'taken from defendant’s General Digest with the corresponding paragraphs from complainant’s reporters and digests from which it is claimed defendant’s paragraphs are pirated. These represent, of course, but a small portion of the complete work, which consists of some thirty-eight thousand digest paragraphs, and complainant insists that many more can be presented, but that it is unable to do so within the time limited, and the examples furnished are sufficient to show for the purposes of this motion. The master has examined with much labor and care all the opinions from which these headnotes have boon taken and made comparison, with headnotes of the same cases wherever they have since been made by official reporters. The identity between the paragraphs of most of toe examples on first inspection is, indeed, remarkable. When taken in connection with the opinions, however, some are found to be simply direct quotations therefrom; some in which a portion are quotations from the opinion and the original work is entirely different, and some expressing in similar terms and phrases quite different ideas. Such cases where there is nothing else indicating piracy the master has first endeavored to eliminate. The cases in which •errors have been copied, of which there are a number, are, as a rule, sufficient unto themselves as a proof • of piracy. The cases in which clearly original language and construction are followed — not phrases and modes of expression common to every digester, but such original language or construction that it does not seem that two reporters separately digesting the same opinion, could possibly use with such marked similarity — these there has been no hesitancy in reporting. In a number of cases it seems as though defendant’s digester, after reading the headnote of the reporter, had gone through the opinion to see if the wording of the headnote was to bo found therein. If it were found there, even in disconnected phrases, he used it also, making use of the original labor of selection and arrangement. If the language were not there in hace verba, he employed synonyms, and, if necessary, resorted to rearrangement and transposition. In many instances reported the paragraphs are practically verbatim copies, and it seems as though rearrangement has been resorted to to make the paragraphs comply with the different theories on which the two digests are based, complainant using toe concrete method, endeavoring to express the actual point decided with reference to the actual facts, so as to distinguish a case from others, while defendant uses the abstract method, giving the principle of law decided and endeavoring to make it general. That this case is an anomaly in copyright litigation is in some respects true, hut iho contention that consequently the case of Myers v. Callaghan in no wise furnishes a producedent Cor its deiennination can hardly be sustained. In some respects the cases are analogous, and, in so far as they are, a precedent is certainly furnished. In both cases complainant’s publications are used by defendant in editing or digesting; in both defendant’s editors state their work to be independent; in both, in the majority of cases, there is the appearance of independent labor without regard to complainant’s work, yet in both it is apparent that complainant’s work has been used, and, in some instances, words and sentences copied without change; in others changed in form only. Judge Drummond, in his opinion (5 Fed. 720), afterwards concurred in by the supreme court (9 Sup. Ot. 177), says: ‘The conclusion is irresistible that, for a largo portion of the work performed in behalf of the defendants, the editors did not resort to original sources of information, but obtained that information from the volumes of Mr. Freeman (the complainant). Undoubtedly it was competent for an editor to take the opinions of the supreme court, and possibly from the volumes of Mr. Freeman, and make an independent work; but it is always attended with great risk for a person to sit down, and with the copyright of a volume of law reports before him, undertake to make an independent report of a case. It is not difficult to do this, going to the original sources of information — to the decisions of the court, the briefs of counsel, the records on file In the dork’s office — without regard to the regular volumes of reports. Any one who has tried it can easily understand the difference between the headnotes of two persons, equally good lawyers, and equally critical in the examination of an opinion, where they are made up independent of each other; and, bearing in mind this fact, it seems to be beyond controversy that, although in many, and perhaps most, instances there is a very considerable difference between the headnotes of the defendant's volumes and those of the plaintiff, the latter have been used in the preparation of those of Iho former.’</p> <p>“The simple question for the master is, are these digest paragraphs presented the work of independent labor or not? There is little doubt but that in almost every instance defendant’s digester read the opinion, and there is no testimony to the contrary, and it may be that defendant’s digesters are more rapid workers than complainant’s, or that one may construct more original digest paragraphs than syllabi in a given time; but that many of complainant's paragraphs have been more or less utilized by some of defendant’s digesters cannot be gainsaid. Neither can it be said that both parties have gone to the same sources of information in the same sense that ¡ho expression is generally list'd. No fair-minded person can compare the headnotes in pamphlet No. 12, of volume 29, Pacific lieporter (and there are other like cases), with the digest paragraphs made by defendant’s editor from the opinions in this number, and published hi the General Digest, and doubt for a moment piracy, and particularly when the digester had before him headnotes already prepared, even when his testimony goes to show that no use has been made of the headnotes. rt is claimed by defendant that its work is the result of independent labor, and that the resemblances are simply innocent coincidences. In some of the examples, perhaps, this is so; in others, certainly, it is not; and the master’s report sets out in detail such cases that seem to be from themselves, in connection with the various opinions, clearly cases of piracy. In some cases whero doubt has arisen as to the possibility of The work having been performed without reference to complainant’s headnotes, this being a preliminary and not a final hearing, defendant has been given the benefit of the doubt. It is the duty of the master to report Iho facts and to identify such of the paragraphs presented to him as appear to have infringed the copyright. It does not seem to be within the province of the master to go further than this, though the briefs suggest it, and it seems that the report presented herewith fulfills all the requirements.”</p>

<p>1. Patents — Validity Affirmed.</p> <p>Claims 2 and 13 of the Morley patent, No. 236,350, for a machine for sewing buttons on fabrics, sustained. Decree of the circuit court modi'fied so as to be limited, to these claims, and then affirmed. 62 Fed. 291.</p> <p>2. Same — Decree Broader than Findings — Costs on Appeal.</p> <p>The decree in a patent cause, which is broader than the findings, will be corrected by the appellate court of its own motion, and no costs will be allowed to either party, since it is the duty of complainant’s solicitor to draw out a proper decree.</p>

<p>Action by Thomas J. Kirkpatrick against the Pope Manufacturing Company for royalty on patents. Judgment for plaintiff.</p>

<p>This was an action by Vincent L\ Travers against the American Cordage Company for alleged infringement of certain letters patent, and is now before the court on final hearing.</p>

This was a suit in equity by Thomas Dalby against Alexander Lynes for alleged infringement of letters patent No. 357,068, issued February 1, 18,87, to complainant, for “improvements in undershirts or vests.” The invention is thus described in the specifications of tin* patent: “This invention consists, primarily, in constructing undershirts or vests so that they shall bo shaped or fashioned to the body without the employment of either a narrowing or a widening machine, or…

This was a bill in equity by E. & H. T. Anthony and others against George Murphy for infringement of the letters patent for improved photographic shutter contrivances.

This was a suit by Eoyal E. Eobbins and Thomas M. Avery against the Columbus Watch Company, David Green, and William J. Savage, for infringement of certain… Held: howei^er, that under section 7 of the judiciary act of March 3, 1891, its power was limited to determining the question whether the injunction was improvidently granted in the exercise of a legal discretion, and as to the other questions the cause was certified to the supreme court. 3 C. C. A. 103, 52 Fed. 337.

In Equity. Bill by Edward P. Paynter and John K. Moore against Thomas Devlin and others, trading as Thomas Devlin & Co., for infringement of a patent. Complainants had decree (63 Fed. 122), and defendants appeal.

Tbis was an action of ejectment, brought by the Lehigh Mining & Manufacturing Company against J. J. Kelly, Jr., and others. The ease was heard on defendants’ pleas to the jurisdiction.

This was a suit by the Security Company, as administrator de bonis non with the will annexed of Mancie Wells Hall, against Mary Ann Pratt, and Josiab J. White, as administrator of the estate of Eliza T. White, for the construction of the will of Mancie W. Hall. The suit was brought in a court of the state of Connecticut, and was removed by defendant J. J. White to this court Complainant moves to remand to the state court.

<p>Bill by the Davis & Rankin Building & Manufacturing Company against L. V. Dix and others to recover the contract price of a creamery, and foreclose an equitable lien on land on which it was erected. Decree for complainant.</p>

This was a suit by Charles A. Gregory against Frederick A. Pike and others to compel the surrender of certain notes, brought in the supreme judicial court of Massachusetts, and removed therefrom to the United States circuit court. In that court George W. Butterfield and John 0. Kemp Van Ee were brought in as defendants, and given leave by the court to file (29 Fed. 588), and did file, cross bills in the ease.

the Circuit Court of the United States for the District of Washington, Northern Division. Bill by Prank C. Ross against Edwin Eells, Indian agent, and others, officers of the United States army, for an injunction restraining defendants from interfering with the building of a railroad across lands within the Puyallup Indian reservation which have been allotted to Indians in severalty. Prom a judgment and decree for complainant, defendants appeal.

In Equity. Suit by the Pacific Gas Improvement Company against L. R. El-lert, mayor of the city and county of San Francisco, and others, for injunction. Order to show cause why injunction should not be continued, discharged.

<p>Huit in equity by the Youngstown Bridge Company against the Kentucky & Indiana Bridget Company and others. The treasurer of Floyd county, Tnd., filed an intervening petition, asking that the receivers of the defendant corporation he directed to pay certain taxes alleged to be due from such corporation. The receivers filed an answer to the petition. Upon exceptions to this answer</p>

<p>On Appeal from the Circuit Court of the United States for the Southern District of Illinois.</p> <p>Petition in the nature of a bill in equity by C. H. Bosworth and E. Ellery Anderson, receivers of the Chicago, Peoria & St. Louis Railway Company, against William S. Hoolc and Marcus Hook, to require defendants to pay petitioners certain money collected for transportation of mail. Petitioners obtained a decree. Defendants appeal.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of California.</p> <p>This was a suit by the Union Loan & Trust Company against the Southern California Motor-Road Company and others to foreclose a mortgage. Decisions were rendered respecting the payment of certain moneys for grading and macadamizing (49 Fed. 267), and, on motion of' defendant, for payment of its counsel fees (51 Fed. 106). On final hearing, a decree of foreclosure and sale was entered. 51 Fed. 840. The Southern California Motor-Road Company appeals.</p>

<p>lu Error to the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>This was an action by Oliver H. K. Rislev against the village of Howell on certain bonds and coupons. Judgment was given for the defendant. 57 Fed. 544. Plaintiff brings error.</p> <p>this case was brought here upon a writ of error to the circuit court for the Eastern district of Michigan. The facts were found by the court, a jury having been waived. Upon the facts thus found the conclusions of law7 were resolved against the plaintiff, and, judgment in conformity therewith having also been rendered against him, he sued out this wait, alleging that upon the facts found the judgment should have been for him. The action was brought to recover the amount claimed to be due upon certain bonds and coupons issued by the defendant.</p> <p>The legislature of the state of Michigan in 1885 passed an act (found in the I,ocal Acts of that year a,t page 16) authorizing the common council of the village of Howell to borrow money on Its faith and credit, and to issue its bonds therefor, to the amount of §20,000, which should be expended in making public improvements in the village, upon a vote of a majority of the electors of the village in favor of such loan, at a meeting called as provided in the act. This power was substantially conferred by the first section. Section 2 provided for the manner of taking the vote. Section 3 provided that: “If such loan shall be authorized by a majority of such electors, said bonds may be issued in such sums not exceeding the amount hereinbefore limited, and payable at such times with such rates of interest, not exceeding six per centum per annum, as the said common council shall direct, and shall be signed by the iiresident of said village and countersigned by the recorder of said village, and negotiated by or under tin; direction of said common council, and the money arising therefrom shall be appropriated in such manner as said common council shall determine for the purpose aforesaid, and the said common council shall have power, and it shall be their duty, to raise by tax upon the taxable property of said village, such sum or sums as shall be sufficient to pay the amount of said bonds and the interest thereon as fast as the same may become due.” This act ivas approved February 25, 18:-5. and ordered by the legislature to take immediate effect. On the following 5th day of March the common council of the village passed a resolution to submit to the electors the question whether money should be raised to the amount of $20,000, to be secured by the bonds of the village, for the purpose of making public improvements therein, and directing the manner of the submission. The election was held on the 23d day of March ensuing, in accordance with the provisions of the above resolution, and resulted in a vote of 437, in a total vote of 443, in favor of the proposition submitted. The vole was canvassed by the common council, and the result minuted in its records. No action was taken by the common council in reference to the subject until the 12th day of August, 1885, upon which day it adopted an ordinance reciting the above-mentioned act of the legislature and the vote of the electors in favoi; of the loan, resolving that the village borrow the said sum of $20,000, at per cent, interest, payable semiannually on the 1st days of June and December in each year until paid, for making public improvements in the village; and further resolving “that the Toledo, Ann Arbor & North Michigan Kailroad Company is a public improvement in the village of Howell.” The ordinance then proceeded to declare that bonds to the amount of $20,000, payable with interest at 6 per cent., at times and in amounts therein specified, be issued in aid of said railroad company, and payable, to James M. Ashley, Jr., the agent of the company, or bearer, but not to be delivered to him except in accordance with a contract between Ashley, the railroad company, and the village, of that date. The substance of the contract consisted of provisions relating to the conditions and time when tlie bonds should be delivered to the payee; the principal condition being that the company’s road should be built ready for the running of trains between certain specified localities, and a certificate to that effect of the state railroad commissioner be made and filed with the Fourth National Bank of New York, which was in the meantime to hold the bonds as depository. There was an attempt by one of the citizens of the village to prevent by legal measures the issuance of the bonds, but it was evaded by the common council, and the bonds were transmitted to the bank in New York. At the time of the making and depositing of the bonds in the bank they were not sealed, the village having no seal; but subsequently one was procured, and the president of the common council proceeded to New York, and there sealed the bonds.</p> <p>On or about the 25th day of September, 1880, the railroad commissioner of the state made the certificate required by the contract above mentioned, showing the performance of the conditions. It was filed with the bank in New York, and the bonds were thereupon delivered by it to the pajree, James M. Ashley, Jr. The bonds were all in the following form, except as to the number borne by each and the date of maturity thereof:</p> <p>No.-' $1,000.00.</p> <p>“The United States of America.</p> <p>“State of Michigan [Michigan coat of arms], Village of Howell.</p> <p>“Improvement Bond.</p> <p>“Know all men by these presents, that the village of Howell, in the state of Michigan, acknowledges to owe and promises to pay to J. M. Ashley, Jr., or bearer, one thousand dollars, lawful money of the United States of America, on the first day of--, in the year of our Lord one thousand eight hundred and-, at the Fourth National Bank, in the city of New York, with interest at the rate of six per centum per annum, payable semiannually on the first days of December ana .Tune in each year, on the surrender of the annexed coupons as they severally become due. This bond is issued under and by authority of a special act of the state of Michigan, entitled ‘An act to authorize the village of Howell to raise money to make public impr&ve-ments in the village of Howell, being No. 248 of the Local Acts of 1885 of the legislature of the state of Michigan,’ approved February 25, 1885, and also under the ordinance of the village of Howell passed August 12, 1885.</p> <p>“In testimony whereof, the said village of Howell has caused these presents to be signed by the iwesident and recorder of said. village, and to be sealed with the seal of said village, this twelfth day of August, A. D. 1885.</p> <p>“[Seal.] [Sgd.] Geo. H. Chapel.</p> <p>“[Sgd.] Jay Corson.”</p> <p>They were numbered from 1 to 20, and fell due at dates running from January i, 1888, to June 1, 1897, and boro interest coupons in usual form. The bonds and coupons were all disposed of by Ashley for the benefit of the railroad company. The plaintiff is the owner and holder of part of these bonds and coupons. Others he holds in trust for other persons. He and the other owners of the bonds in suit are bona fide purchasers for a valuable consideration, without notice of any infirmity in the bonds, unless they are charged with notice of what was contained in the ordinance above mentioned, and which is referred to on the face of the bonds.</p>

<p>This was an action by C. B. L. Findlay against the Western Union Telegraph Company to recover damages for failure to deliver telegraphic messages to him.</p>

<p>Error to the United States Circuit Court for the District of Washington, Northern Division.</p> <p>Action by E. M. Herrick against W. A. Harrington, surviving partner of the firm of Harrington & Smith, on promissory notes executed by such firm. There was an order sustaining a motion to strike defendant’s plea in abatement, and a judgment for plaintiff. Defendant brings error.</p> <p>Plaintiff in the court below brought his action against the defendant upon four promissory notes executed in the firm name of Harrington & Smith, averring that the defendant, W. A. Harrington, and one Andrew Smith were*, at the date of the execution of said notes, copartners doing business as merchants at the city of Seattle, in the state of Washington, and at the city of San Francisco, Oal., under the firm name and style of Harrington & Smith. The complaint also averred that' prior to the commencement of the action the said Andrew Smith died, in the state of California, and that the defendant, Harrington, was the only surviving member o£ the said firm of Harrington & Smith. To this action the defendant filed a pica, in abatement, to which the court below sustained a demurrer. The defendant thereupon filed an amended answer, which, after traversing certain of the allegations of the complaint, set forth certain affirmative defenses, and Concluded with the following plea in abatement:</p> <p>“Division X.</p> <p>“Further answering, and for plea in abatement heroin, defendant states:</p> <p>“(1) That there is a defect of parties defendant in this action, to wit, that the said action is based upon four separate and distinct obligations in writing, each of which is a joint obligation executed in the name of Harrington & Smith, a copartnership consisting of W. A. Harrington and Andrew Smith, and existing' at all the times in plaintiff’s complaint mentioned up to the 31st day of December, 1891, when the said Andrew Smith died.</p> <p>“(2) That under and by virtue of the laws of the state of Washington it is provided that in the case of the decease- of one of the members of a copartnership the executor or administrator of such deceased copartner shall include in the Inventory of such person’s estate, in a separate schedule, the whole of the property of such copartnership, and shall be entitled to the custody and control of all the copartnership property for the purpose of administration, and shall give bonds of double the value of the copart-nership property, and shall administer thereon in the same manner as provided for the administration of the estates of deceased persons, unless the surviving partner shall within five (5) days from the filing of said inventory, or such other time as the court may allow, apply for the administration of such copartnership estate, a,nd give bonds therefor in double the value of such property.</p> <p>“(3) That on the 13 th day of March, A. D. 3892, by the order' of the superior court of the state of Washington, county of King, sitting in probate. A. 13. MacOulsky and Frank Hanford were duly appointed such administrators of the estate of the said Andrew Smith, deceased, in the state of Washington; and this defendant, W. A. Harrington, having waived his right, to the administration of said copartnership estate, and consented thereto, the said A. E. MacOulsky and Frank Hanford were by the orders of said court upon said date duly appointed administrators of 'the entire estate of the said copartnership of said Harrington & Smith.</p> <p>“U) That the said administrators have duly qualified, and have given bonds for double the value of the said copartnership property in the manner provided l>y law, and have entered upon the discharge of their duties as such administrators, and taken into their possession, custody, and control the assets of the said copartnership, and are now proceeding to administer thereon in the manner provided by laws of the state of Washington.</p> <p>"(5) That tlie said copartnership property is within the state of Washington, and within the jurisdiction and control of the said superior court sitting in probate, and is now in process of administration as aforesaid.</p> <p>••((>) That by reason of the premises hereinbefore set forth this defendant has not possession of the copartnership jiroporty, and has no control thereof as the surviving partner of the said copartnership of Harrington & Smith or otherwise.</p> <p>“(7) That by reason of the premises aforesaid the said administrators of the estate of the late copartnership of Harrington & Smith aforesaid, to wit, A. E. MacOulsky and Frank Hanford, are necessary parties defendant herein, and are within the jurisdiction of this court, and the process of this court can he duly and legally served upon said administrators; and that defendant, avers that without the presence of the administrators heroin as parties defendant to this action all of the rights of the parties to this cannot be fully and finally determined. Wherefore defendant prays: First. That this cause he abated until the said A. E. MacOulsky and Frank Han-ford be brought in and made parties defendant to this action as administrators of the estate of the said copartnership and of the estate of the said Andrew Smith.”</p> <p>The said canse being called for trial on the 20th day of March, 1893, plaintiff moved the court to strike from defendant’s answer the foregoing plea in abatement, which motion was treated by the court and parties as a renewal of his demurrer. The court thereupon sustained said motion, and ordered said plea stricken from said answer, to which the defendant at the time duly excepted, and his exception was allowed. A judgment was thereafter rendered in favor of the plaintiff and against the defendant in the court below for the full amount of said notes with interest. From said judgment and the foregoing order striking out defendant’s plea in abatement the said defendant now appeals to this court.</p> <p>The following is the statute law of the state of Washington in relation to the administration of copartnership estates, contained in volume 2 of Hill’s Annotated Statutes and Code of Washington:</p> <p>“Sec. 917. (1435.) The executor or administrator of a deceased person who was a member of a copartnership shall include in the inventory of such person’s estate, in a separate schedule, the whole of the property of such partnership; and the appraisers shall estimate the value thereof, and also the value of such person’s individual interest in the partnership property, after the payment or satisfaction of all the debts and liabilities of the partnership.</p> <p>“Sec. 948. (1436.) After the inventory is taken, the partnership property shall be in the custody and control of the executor or administrator for the purposes of administration, unless the surviving partner shall within five days from the filing of the inventory, or such further time as the court may allow, apply for the administration thereof, and give the bond therefor hereinafter prescribed.</p> <p>“See. 949. (1437.) If the surviving partner apply therefor, as provided in the last section, he is entitled to the administration of the partnership estate, if he have the qualifications and competency required for a general administrator^ He is denominated an administrator of the partnership, and his powers and duties extend to the settlement of the partnershij) business generally, and the payment or transfer of the interest of the deceased in the partnership property remaining after the payments or satisfaction of the debts and liabilities of the partnership, to the executor or general administrator, within six months from the date of his appointment, or such further time, if necessary, as the court may allow. In the exercise of his powers and the performance of his duties, the administrator of the partnership is subject to the same limitations and liabilities, and control and jurisdiction of the court, as a general administrator.</p> <p>“Sec. 950. (1438.) The bond ,of the administrator of the partnership shall be in a sum not less than double the value of the partnership property, and shall be given in the same manner and be of the same effect as the bond of a general administrator.</p> <p>“Sec. 951. (1439.) In case the surviving partner is not appointed administrator of the partnership, the administration thereof devolves upon the executor or general administrator, but before entering upon the duties of such administration he shall give an additional bond in double the value of the partnership property.</p> <p>“Sec. 952. (1440.) Every surviving partner, on the demand of an executor or administrator of a deceased partner, shall exhibit and give information concerning the property of the partnership at the time of the death of the deceased partner, so that the same may be correctly inventoried and appraised; and in case the administration thereof shall devolve upon the executor or administrator, such survivor shall deliver or transfer to him, on demand, all the property of the partnership, including all books, papers, and documents ijertaining to the same, and shall afford him all reasonable information and facilities for the performance of the duties of his trust.</p> <p>“Sec. 953. (1441.) Any surviving partner who shall refuse or neglect to comply with the requirements of the last section may be cited to appear before the court; and unless he show cause to the contrary, the court shall require him to comply with such section in the particular complained of."</p> <p>The court overruled the demurrer to the complaint, and sustained the demurrer to the plea. These rulings are assigned as error.</p>

<p>1. Costs — Against the United States.</p> <p>In the absence of legislation by congress authorizing- costs against the government, they cannot be imposed in any suit to which it is a party; and neither the act of June 1, 1872 (Rev. St. § 914), conforming the practice of the federal courts to that of the states -where they are held, nor the act of August 1, 1888, authorizing condemnation proceedings, and making similar provision as to conformity to state practice, etc., gives such authority.,</p> <p>2. Same — Following State Practice.</p> <p>The secretary of the treasury, on behalf of the United States, instituted in the southern district of New York a suit to condemn certain lands, pursuant the act of congress of August 1, 1888, authorizing such proceedings, and conforming the practice, etc., to that in similar proceedings in state courts. After trial, appointment of commissioners, and appraisal, it appeared that the funds appropriated by congress were insufficient to pay the award, and the suit was thereupon discontinued. The court, following the provisions of the New York condemnation law, awarded costs to the several defendants, and an allowance to an attorney appointed to represent defendants not served. Held, that both were unauthorized, no statute having permitted the rendition of judgment for costs against- the United States in such cases, and the allowance being only recoverable in an action against the government brought conforma-bly with an act of congress authorizing such a recovery.</p>

Petition for Kevision of Orders of the District Court of the United States for the District of Massachusetts, in Bankruptcy, The petition was filed by James ELuntington, a creditor having proved his claim, in the matter of William A. Saunders, a bankrupt, and was as follows: (1) Respectfully represents .tames Huntington, of Cambridge, in said district, a creditor, having proved Ms claim in said bankruptcy, that on October 1, 1875, said Saunders was adjudged bankrupt by the…

<p>This was a petition by E. P„ Kearns, collector of internal revenue for the Twenty-Third district of Pennsylvania, praying for an attachment: against O. B. Clark for an alleged contempt in failing to comply with a summons issued to him by the collector, and requiring him to produce for inspection the books, etc., used by him as resident manager for the firm of Armour & Oo., wholesale dealers in oleomargarine.</p>

<p>This w as a motion to quash a, writ of habeas corpus.</p>

This was a suit by The Eastman Company against The Blair Camera Company for infringement of a patent. A decree was rendered for complainant; the circuit court holding that the defendant’s apparatus infringes the 3d, 26th, 29th, 30th, 31st, and 32d claims of letters patent No. 317,049, granted to Walker and Eastman, May 5, 1885. 62 Fed. 400. Defendant appeals.

<p>I. Patents — Infringement by User.</p> <p>The purchaser of a patented article is not liable as an infringer where he purchased it from one having a legal right to sell it. Adams v. Burke, 17 Wall. 483, and Ilobbie v. .Tennison, 13 Sup. Ct. 879, 149 U. S. 361, followed.</p> <p>8. Same — Preliminary Injunction — Decision in Another Circuit.</p> <p>A decision by another circuit court that the person from whom the present defendant purchased the alleged infringing articles had a legal right to sell them is sufficient ground for denying a motion for a preliminary injunction.</p>

This was a bill in equity by the Traut & Hine Manufacturing Company and George E. Adams against the Waterbury Buckle Company for infringement of a patent. Heard on motion for preliminary injunction.

This was a libel by Frederick Stebbins, Archibald Watt, Clement Doty, Frederick Hart, and Patrick O’Keefe against Mud Scows Numbers 18, 19, 21, 25, and 31, for salvage services performed by the steam lug Archibald Watt. A decree was rendered for libelants (50 Fed. 227), from which the Morris & Cummings Dredging Company, claimant, appeals.

<p>Maritime Liens — Home Port — Foreign Ownership.</p> <p>A maritime lien for necessary repairs and supplies, furnished in the port of enrollment, may be enforced against a vessel owned by a corporation created by another state.</p>

<p>Bill by the Wisconsin Marine & Fire Insurance Company's Bank against the Lehigh & Franklin Coal Company, in which the Molsons' Bank intervened. Complainant demurred to the intervening petition.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nevada. .</p> <p>This was a suit by Charles Moran and others against J. C. Hager-man, administrator, and others. Prom a final decree in favor of defendants, complainants appeal.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the District of Washington.</p> <p>This was a proceeding by the Northern Pacific Railroad Company against the city of Spokane and others to restrain the city from destroying a depot alleged to be an obstruction to a street crossing, and also from preventing the erection of a new depot. A temporary restraining order was dissolved in so far as it forbade the hindering of the railroad company in the erection of a new depot. 52 Fed. 428. On final hearing, the bill was dismissed, 56 Fed. 915. Complainant appeals.</p>

This was a suit in equity by Isaac L. Hewitt; against; Warren Story and 66 others to establish a right to certain waters for irrigation purposes. A motion to dismiss was denied (39 Fed. 158), and the cause was next heard on objections by certain of ibe defendants to tlie amended bill of complaint. The objections were disallowed. 39 Fed. 719. Subsequently, on further hearing, the bill was dismissed (51 Fed. 101), and complainant now appeals. This is a suit in equity.

<p>1. Appealable Judgment — Final Decree — What Constitutes.</p> <p>In an action against a railroad company, one W., and others, for a discovery, to redeem, etc., there was a decree dismissing the bill as to such company, and requiring W. to account for certain bonds. It provided that he was entitled to credit for such sum as might be rightfully due him; and that, it appearing that there was pending in a certain state court a suit in equity in which W. was defendant, touching such bonds, that an accounting had been had in respect to them, and that a special master had made a report, which liad not been acted on by such court, execution of the decree should be stayed until linal determination of such suit in the state court, or until further order of the court making the decree. Held, that ilie decree, as to AY., was interlocutory, and not linal, and was not appealable.</p> <p>2. Equity — Pleading—Original Bill — Construction.</p> <p>A bill by judgment creditors of the D. It. Company against such company, the ID. I. It. Company, and others alleged in substance, but in great detail, (lie execution by (he !> It. Company of various invalid mortgages and trust deeds, the void foreclosure and sale of the property, and the possession, under such sale and other illegal proceedings and transactions, of the ID. I. It. Company; that, the latter company acquired no title to such property; and that it was about to issue to the attorneys, officers, and stockholders of the D. It. Company certain bonds, in consideration of a collusive agreement by them to abandon a contest, being made by them for such property, etc. The bill prayed for a discovery and accounting; for an injunction restraining- the sale or delivery of such bonds; that all the property in possession of the 35. I. R. Company he decreed to he the property of the I). R. Company, subject only to the right of the former to hold it as mortgagees in possession under an unforeclosed mortgage; that the amount due the mortgagees he ascertained; that plaintiffs he allowed to redeem, and be subrogated to the rights of the mortgagees; and that they have general relief. Held, that such bill should be treated as a bill to redeem, and not as a creditors’ bill.</p> <p>3. Same — MuLTiFATtrouswEss—What Constitutes.</p> <p>A bill by a judgment creditor of a railroad company, against such company and another railroad company, to redeem property in possession of the latter company as mortgagee, on the ground that such possession was fraudulently acquired, and also to subject to payment of complainant's judgment certain bonds about to be issued by the latter company to the attorneys, officers, and stockholders of the former company, in order to confirm the title to such property, is self-contradictory and multifarious, and cannot be maintained.</p>

Action by the American Mortgage Company, of Scotland, Limited, against Thomas R. Hopper and others, to recover land. From a judgment dismissing the bill (56 Fed. 67), complainant appeals.

<p>Appeal from the Circuit Court of the United States for the District of Oregon.</p>

Action by the Hargadinc-MeKittrick Dry Goods Company against Janies E. 'Reynolds and others to recover damages for breach of contract, in which there was a judgment of nonsuit. Plaintiff moves to set aside the nonsuit.

<p>Error to tlie Circuit Court of the United States for the District of Montana.</p> <p>Action by Archie Beaton against the Northern Pacific Bailroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

This was an action by the Cherry Valley Iron Works against the Florence Iron River Company. Defendant had judgment, and plaintiff brings error. This action was brought by the plaintiff in error to recover a sum o£ money claimed to be due from the defendant by reason of an overpayment made by the plaintiff upon a contract of sale between the defendant, as seller, and the plaintiff, as buyer, of a quantity of ore from the defendant’s mines.

<p>Petition by Schoellopf, Hartford & Maclagan, Limited, for review under the customs administrative act of 1890. Heard on motion by the government to dismiss.</p>

Petition by Alansou W. Beard for review of the questions of law and fad involved in the decision of the board of United States general appraisers in respect to a duty imposed on merchandise imported by C. F. Hovey & Co. in 1892.

<p>This was a suit by John H. Russell against. John F. Kern for the infringement of certain patents, hereinafter enumerated in the opinion of the court.</p>

This was a suit by Henry H. Smith and Alvarado Richardson, copartners trading as Smith & Richardson and as the Diamond Iron Works, against the Union Iron Works, to restrain the infringement of certain' letters patent.

This was an action at Jaw by John W. Cassiday against the Hunt Brothers Fruit-Packing Company to recover damages for the infringement of certain letters patent. There was a judgment for plaintiff, which was reversed upon writ of error sued out by defendant, and (he cause remanded for further proceedings. 8 C. C. A. 525, 58 Fed. 257. At the second trial there was also judgment for plaintiff. Defendant brings error.

<p>1. P vreviv — Seeding Devices.</p> <p>Claims 2, 4, 0, and 7 of the Barnes patent, No. 230,601, and claim 2 of the Earles patent, No. 259,07 j, relating to machines for forming interlocking eyes in wire chains for operating the seeding- devices in check-row corn planters, held valid and infringed.</p> <p>2. Same — Valid Combination.</p> <p>The law is well-settled that a valid combination claim may be drawn including a less number of parts than are required for the complete operation of a machine.</p>

<p>Bill by Elias E. Pratt and E. 0. Stearns & Co. against the Wilcox Manufacturing Company.</p>

These were suits in equity brought by Nathan O. Ross, trustee, against the City of Minneapolis and the City of St. Raul, respectively, for infringement of letters patent granted to Robert Bragg for a device for releasing fire-engine horses.

<p>1. Patents — Construction of Claims — Limitation.</p> <p>A claim should be read and construed in the light of the description and drawings and of the state of the art, not to enlarge the claim, but to ascertain its true meaning’ and ilie extent of ilie invention asserted; and to such invention the patent must be restricted, although the actual invention made may have been of a broader scope.</p> <p>2. Kami-: — Limitation'—Inmuno km unt — Toy Banks.</p> <p>The Oolby patent, No. 373,223, for a “toy locomotive,” and which relates to a toy bank having" a discharging aperture controlled by a spring latch operated by the weight of tlie accumulated coin within, is limited by the language of the description and claim to (oys, and is not infringed by a coin container operated on the same principle, but which consists merely of a hollow tube not adapted to be used as a toy vehicle, and which is not in fact a toy. 03 Fed. 402, reversed.</p>

<p>1. Patent— Limitation op Claim.</p> <p>Patent to Gordon, No. 21-1.2.02, on an improved machine for crimping the heads of tin cans, should be construed narrowly, since it is not a pioneer in the art, and not sufficiently meritorious to induce practical men to mate any use of it. Derby v. Thompson, 13 Sup. Ct. 181, 146 IT. S. 470.</p> <p>2» Same.</p> <p>Claims 1, 2, 3, and 1 of the aforesaid patent construed as being limited to the specific structure shown and described, and not infringed by the patent to Jensen, No. 370,801, granted January 24, 1888, since the aforesaid specific structure is not found in the Jensen patent.</p> <p>3. Same — Later. Inventor.</p> <p>Where a later machine is not only dissimilar to an.earlier patented machine in details, but also in that it is a success where the earlier machine has failed of success, the later inventor is entitled to the award, which the patent laws design to confer upon success, rather than upon mere attempts.</p>

This was a libel by Jeremiab P. Robinson and others, as executors of Jeremiah Robinson, deceased, against the steamship Idlewild for wharfage. The district court rendered a decree for the libelants. 59 Fed. 628. Claimant appeals.

This was a libel by tbe Franklin Sugar-Refining Company against the steamship Silvia to recover damages for injury to a quantity of sugar consigned to libelant.

<p>This was a bill in equity by Lyiuau T. Ilicklin against Henry Marco and others for the redemption of a mortgage. Defendants in their answer, set up a claim for the value of permanent improve meats made by them while in possession of the premises, and the ease was heard upon exceptions to this part of the answer. The court allowed the defendants’ claim (id Red. 424). but otherwise gave judgment for plaintiff. Subsequently, on appeal by defendants as to the amount of the decree, the judgment, of the circuit conn was affirmed. 6 C. C. A. 10, 56 Fed. 549. Plaintiff prays an’ amendment of ihe decree in so far as it restricted his right of redemption to a one-fourth interest in the mortgaged premises.</p>

This was an action by Theodore W. Siddall against the Honorable F. Amedee Bregy. The plaintiff filed the following statement of claim, viz.: “F. Amedee Bregy, the defendant, is one of the judges of the court of common pleas of the commonwealth for the county of Philadelphia, sworn to obey and administer the laws of the United States and of the commonwealth of Pennsylvania without fear or favor.

<p>This was a suit by the Gormully & Jeffery Manufacturing Company against Jacob S. Bretz and others.</p> <p>The bill disclosed that the complainant, an Illinois corporation, was the owner of a number of letters patent relating to the manufacture of bicycles and tricycle structures; that the defendants, being copartners under the mime of Bretz, Curtis & Co., were desirous of using, selling, and importing, and selling to others to be sold and used, bicycles and tricycles,' employing in their construction and operation the inventions of one or more of the said letters patent, and securing a. license therefor from the complainant; that lipón certain considerations the complainant and defendants signed an agreement in which the complainant licensed the said letters patent to defendants, who thereupon covenanted not to thereafter engage in tin* manufacture of bicycles or tricycle structures, nor in the importation or sale of such structures (except two certain English machines), without the written consent of th(> complainant. The defendants further agreed to make monthly reports of the number of structures imported and sold, and to pay monthly to complainant. for the use of such structures upon the imported bicycles, the sum of five dollars each. The complainant was to have the privilege of examining the books of defendants, and to call for reports under oath. The defendants also agreed not to transfer the agreement. 'Flu1 sum to be paid complainant Was at no time» to be loss than $1,000 annually. The complainant agreed to defend the defendants from certain suits for patent infringements. The bill further averred that in October, 1800, a few months after signing tile sail! agreement, the said Bretz and Ourtis, together with three others, pretended to form a corporation under the laws of Pennsylvania, under the name of Bretz & Ourtis Manufacturing Company (since tlie. Onrtis-Ohild 'Manufacturing Company), for the purpose of manufacturing- and dealing in bicycles, etc., and similar articles. Corporate papers were issued to them on October 27, 1800. Of the 500 shares of capital stock, 240 shares were subscribed by Bretz, and the same number by Ourtis, the remaining 20 shares bring divided among The other three corporators (the law of Pennsylvania requiring at least five subscribers to an intended charter). The bill then averred that 200 shares each were issued to Bretz and Curtis as full paid, in consideration of the conveyance by them of certain bicycle goods, and certain contracts, licenses, and leases, and The business of Bretz, Curtis & Co., including the agreement above set forth: but whether or not there was a speciiie conveyance of said contract or license the complainant iivinvd ignorance, and jii-aycti discovery. Of the amount of stock in said corporation now owned by said Bretz and Curtis, the complainant also averied ignorance, because defendants have neglected to file their statement of such in the proper office, and prayed discovery thereof, averring also that the corporation is only a continuation of the partnership. The defendants have failed to make any report of bicycle or tricycle structures imported or sold, and have not paid any part, of the said royalty since October .‘51, ISiHt; and the 1)111 averred that the said corporation was engaged in the manufacture of bicycle and tricycle structures, and the Importation thereof, other than the two certain English machines, and that such manufacture, importation, and sale is that of said Bretz and Ourtis. The bill, after averring performance on the part of the complainant, prayed relief according t.o the facts set forth, and asked that defendants be perpetually enjoined from manufacturing, selling, and importing «tructures other than allowed by the agreement, and damages for the breach of same. Answers were also prayed for to the following interrogatories:</p> <p>“in What contracts, licenses, and leases relating to the importation or sale of bicycle or tricycle structures have Ja«b S. Bretz and George E. Ourtis convoyed or assigned to Bretz & Ourtis Manufacturing Company, and when? (2) Was the contract of license of March 18, 1890. between the Gormully &- Jeffery Manufacturing Company and Jacob S. Bretz and George E. Ourtis, trading as Bretz. Curds & Oo., at any time conveyed and assigned to Bretz & Ourtis Manufacturing Company? And. if so, whim? (3) What were, the terms of the conveyance of certain bicycles, tricycles, accessories, and goods, and certain contracts, licenses, and least's, and, the goodwill and business of ilie firm of Bretz. Ourtis & Co., referred to in clause eight of tlie charter of the Bretz & Curtis Manufacturing Company? (1) How many shares of stock of the Bretz <Sr Ourtis Manufacturing Company have been issued? (“>) What are the names of the stockholders of said company upon the date of die filing of this bill, and how many shares are held by -each? ((i) Has Jacob S. Bretz acquired or disposed of any stock of the Bretz & Ourtis Manufacturing Company since the organization thereof? And, if so, what amounts, and upon what dates? (7) Has George IS. Curtis acquired or disposed of any of the stock of the Bretz & Curtis Manufacturing Company since the organization thereof? And, if so, what amounts and upon what dates?</p> <p>“Note: The defendant Jacob S. Bretz is required to answer the interrogatories numbered, respectively, 1, 2, S, 4, 0. The defendant George E. Curtis is required to ansAver the interrogatories numbered, respectively, 1, 2, 3, 4, 7. The defendant Bretz & Curtis Manufacturing Company is required to answer the interrogatories numbered, respectively, 1, 2, 3, 4, 5, 6, 7."</p> <p>The answer of the Curtis-Child Manufacturing Company denied in detail the main allegations of the bill, averring that said agreement was in restraint of trade, and. making no response to the interrogatories propounded. The ansAver of Curtis admitted the agreement, but denied its effect in eqAiity, for several reasons, and made no answer to the interrogatories. The complainant thereupon took exception to the answers as insufficient. ’</p>

<p>1. Bill op Exchange — -Equitable Assignment — Appropriation op Funds.</p> <p>On September 12, 1893, the C. Railway Company drew two drafts In favor of the J. Bank, upon the R. Railway Company for a part of a fund In the hands of that company belonging to said O. Railway Company, which fund, however, would not be payable until September 25th. On September 21st, receivers of the C. Railway Company were appointed, and took possession of its property, including the fund in the hands of the R. Railway Company, which was subsequently paid to them. The J. Bank did not present the drafts for acceptance, or notify the R. Railway Company of their existence, until after the appointment of the receivers, nor did the R. Railway Company ever accept them. -Halil, that the drawing of the drafts did not, without their acceptance, constitute an appropriation of a part of the fund to the payment of the J. Bank, nor an equitable assignment to it of a part of the fund, but that the receivers became entitled to the fund upon their appointment, and it was rightly paid to them.</p> <p>3, Officers of Corporations — Duties towards Creditors — Illegal Preference.</p> <p>The drafts having been drawn and delivered to the bank in payment of a note of the C. Railway Company, on which H., its president and one of Its directors, was surety, and at a time when the railway company was in failing circumstances, held, that they constituted an illegal preference hi one who, as an officer'and member of the corporation, stood in a relation of trust towards its general creditors.</p>

This was a suit by the Cleveland, Canton & Southern Railroad Company against the Knickerbocker Trust Company, Clara Morgan Rotch and others, as executors of William J. Rotch, deceased, and the International Trust Company, to obtain the appointment of a receiver of the complainant company, and to marshal its assets and ascertain the several liens thereon, and obtain a decree enforcing the equities of all parties with reference to the complainant’s assets and liabilities.

<p>1. Demurrer to Bill op Discovery.</p> <p>A demurrer to a bill of discovery, being a refusal to answer certain allegations of tbe bill, for reasons appearing upon the face of the bill and pointed out by the demurrer, will not be sustained, where immateriality is the sole ground of demurrer, unless the facts clearly show that the discovery sought is immaterial to the purposes of the suit.</p> <p>2. Same — Unlawful Scheme.</p> <p>Where a bill of discovery charges the defendants with having united and combined in an unlawful scheme to the injury of the complainant,/ and he insists that it is essential to his relief that the acts of each of them in carrying that scheme into effect should be disclosed, and that full answers from all of them are requisite to that end, the court will grant the discovery asked for.</p>

Appeals from the Circuit Court of the United States for the Eastern District of Michigan.

<p>1 Rev. St. 1894. § 5450 et seq.</p> <p>This was a suit by the Citizens’ Street-Railroad Company against the City Railway Company to enjoin defendant from interfering with complainant’s use of certain streets in the city of Indianapolis, or with the operation and maintenance of complainant’s street-car lines in said city, and to establish complainant’s rights in the premises. A motion to dismiss the bill was denied (56 Fed. 746), and the cause was heard on the pleadings and proofs.</p> <p>An ordinance of the city of Indianapolis passed January 18, 1864, contained' the following provisions:</p> <p>“Section 1. Under and by virtue of an act of the general assembly of the state of Indiana, entitled ‘An act to provide for the incorporation of street railroad companies,’ approved June 4th, 1861, and by virtue of the powers and authority of the common council otherwise by law vested, consent, permission and authority are hereby given, granted and duly vested unto the company, organized with R. B. Oatherwood as president, a body politic and corporate, by the name of the ‘Citizens’ Street-Railway Company of Indianapolis,’ and their successors to lay a single or double track for passenger railway lines, with all the necessary and convenient tracks for turnouts, side tracks and switches, in, upon and along the course of the streets and, alleys of the city of Indianapolis, hereinafter mentioned; and to keep, maintain, use and' operate thereon railway cars and carriages, in the manner, and for the time, and upon the conditions, hereinafter prescribed.”</p> <p>“See. 16. The right to operate said railway shall extend to the full time of thirty years from the passage hereof; and the said city of Indianapolis shall not, during all the time to which the privileges hereby granted to said company shall extend, grant to, or confer upon any person or corporation, any privilege which will impair or destroy the rights and privileges herein granted to the said company.”</p> <p>A further ordinance, passed April 7, 1880, provided that section 15, quoted above, be so amended as to read “tliirty-seven” years instead of “thirty.”</p>

<p>On rehearing. For former opinion and statement of facts, see 63 Fed. 347.</p>

<p>Preliminary Injunction — Practice—Circuit Court of Appeals.</p> <p>N. brought suit against J. to restrain the infringement of patents belonging to N. Upon tbe bill, and affidavits supporting its material allegations, to which J. made no reply by answer or counter affidavits, N. obtained a preliminary injunction. On- appeal from the order granting such injunction, J. contended that, upon the showing of N.’s own papers, -the machine complained of did not infringe N.’s patents. Held, that the circuit court of appeals would not, in advance of a final hearing in the circuit court, attempt to determine, or express any opinion upon, the main 'question in the case, the complainant having made out a prima facie case entitling him to an injunction, within the rule as laid down in Blount v. Societe Anonyme, 3 C. C. A. 455, 53 Fed. 98.</p>

This was a petition by the Davis Pyrites Company for an order directing the receivers of the Walton & Whann Company to deliver to the petitioner a quantity of Small’s pyrites.

Action by the United States of America against John H. Stone to recover the value of certain timber cut and removed from public lands. There was a judgment for plaintiffs, and defendant brings error. This action was brought to recover the value of certain timber alleged to have been taken from the public lands of the United States, and converted by the defendant (plaintiff in error) to his own use.

<p>In Error to the Circuit Court of the United States for the District of iSfew Jersey.</p> <p>This was an. action by Abraham Smith against the Philadelphia & Reading Railroad Company to recover damages for a nuisance. On trial in the circuit court, the plaintiff had a verdict. A motion fey defendant for a new trial was granted, unless the verdict was in port remitted. S7 Fed. 903. Judgment was entered for plaintiff. Defendant brings error.</p>

This was a suit by the London & Ban Francisco Bank, Limited, against the Parke & Lacy Machine Company. The Budke Manufacturing Company claimed a lien on certain goods held by the receiver, and prayed for an order for the delivery of the same.

This was an action by Archilaus M. Woodson, executor of O. C. Kemper, deceased, against the North American Accident Association, upon a policy of insurance. On trial in the circuit court, the plaintiff had a verdict, and judgment was entered in his favor. Defendant brings error.

<p>Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>Action on the case by Michael Pfitzinger against Rudolph Dubs, August Haefele, and the Volksblatt Printing Company. • Defendants obtained judgment on demurrer to the declaration. Plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of New York.</p> <p>Judgment was entered in the district court of the Northern district of New York in favor of the United States, the defendant in error, against the savings bank, for |2,948.51, on June 23, 1890, the recovery being for tlie amount of two drafts, dated August 31, 1882, for $924.80 and $1,000, respectively, with the interest from August 31, 1882, aud costs. A writ of error was taken to the circuit court, which court modified the judgment by “deducting therefrom the sum of $241, to wit, the amount of the interest upon the drafts complained upon from August 81, 1882, the date thereof, until September 15, 1884, the date of demand of repayment.” As so modified, the judgment was affirmed, and the action of the circuit court now comes up for review.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an action by Benjamin F. Fisher, as receiver of the Spring Garden National Bank, against the Tradesmen’s National Bank, to recover a balance of deposit. Judgment was rendered in the circuit court for the defendant. Plaintiff brings error.</p>

This was an action by Benjamin F. Fisher, as receiver of the Spring Garden National Bank, against the Continental National Bank, to recover a balance of deposit. Judgment was rendered in the circuit court for the defendant. Plaintiff brings error.

<p>In error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an action by Benjamin F. Fisher, as receiver of the Spring Garden National Bank, against the United States National Bank, to recover a balance of deposit. Judgment was rendered in the circuit court in favor of the defendant, upon a counterclaim, in the sum of $24,042.59, with interest and costs. Plaintiff brings error.</p>

Aii action at law' to recover a balance of an account current duly rendered, alleged to be due plaintiff, as factor of defendants, for cash advancements and commissions on the sale of certain shipments of manufactured tobacco consigned to him by defendants for sale in the Australian provinces and New Zealand.

<p>Interstate Commerce Commission-Power of Court over Orders of COMMISSION — REHEAR I SO.</p> <p>Complainant moved for a rehearing, in proceedings to enforce an order of the interstate commerce commission, upon a certificate of the commission stating, in substance, that, in making the order which the court was asked to enforce, the commission did not design to make one so broad as its terms import. Held, that the court could "not substitute, for an order actually made, one such as the commission might or should have made, or such as the commission intended to, but failed to, make.</p>

<p>This was a proceeding, under section 16 of the act to regulate interstate commerce, by. petition to enforce compliance with an order of the interstate commerce commission which' directs that the railway carriers, the respondents, “wholly cease and desist and thenceforth abstain from charging, demanding, collecting, or receiving any greater compensation for the interstate transportation of window shades, plain or decorated, mounted or unmounted, when packed in boxes, than they or either of them contemporaneously charge or receive for like service rendered in the transportation of commodities enumerated as third-class articles in the classification of freight articles established and put in force by them upon their several lines of railroad.” The cause was heard upon the record of the proceedings before the interstate commerce commission at the complaint of Alanson S. Page and others, doing business at Minetto, N. Y., under the copartnership name of the Minetto Shade-Cloth Company, and upon depositions taken in the cause.</p>

Proceedings for contempt against Eugene V. Debs and others for violation of injunctions issued, one on complaint of the United States, and the other on petition of the receivers of the Atchison, Topeka & Santa Fé Railroad Company, appointed in a suit against that road by the Union Trust Company. These informations were filed July 17, 1891.

<p>This was a bill by Napoleon W. Williames and Warren Webster against Charles W. McNeely & Co. to restrain infringement of a patent.</p>

<p>Final Hearing in Equity. Tills was a suit by Richard F. M. Chase against Julius Gatlin and others for infringement of a patent.</p> <p>This action is based upon letters patent No. 240,5(59, granted April 26, 1885. to Robert H. Apxdeton for an improvement in undershirts. The specification says:</p> <p>“The object of my invention is to 1'nrnish an improved undershirt or vest which will re rain its original woven shape after washing and lit the form of the body in an easy and comí orí able manner. The invention consists of an undershirt in which plain knitting and tuck-knitting are combined in such a manner that especially the upper and lower parts are tuck-knitted, so as to become wider or more expanded, while the middle part is made of plain knitting so as to fit closer than the other parts. * * * For gentlemen’s undershirts it is preferable to make the waist and lower part of the body in plain stitchland the upper part only in tuck stitch or knitting, while for ladies’ use a plain middle or waist part and tuck-stitched or knitted upper and lower parts are preferable, as the same fit thereby better oyer the breast and hips and, closely at the middle part or waist * * * The tuck-knitting can be produced in any desired pattern, closer together or at some distance apart, as taste and fancy may direct. The goods are manufactured on the well-known circular-knitting machines or shirt-looms with a continuous thread or yarn, and may be woven either circular and seamless or sewed at the sides, as desired.”</p> <p>The claims involved are as follows:</p> <p>“(1) In an undershirt or vest, the combination of the middle part, made in plain stitch or knitting, and the upper part, made in tuck stitch or knitting, substantially as described.</p> <p>“(2) In an undershirt or vest, the combination of the middle part made in plain stitch or knitting, and the lower part, made in tuck stitch or knitting, substantially as described.</p> <p>“(3) In an undershirt or vest, the combination of the middle part, made in plain stitch or knitting, and the upper1 and the lower parts made in tuck stitch or knitting, substantially as described.”</p> <p>The defenses are lack of novelty and invention and nonirtfringement.</p>

<p>This was a suit in equity by Vincent P. Travers against the American Cordage Company for infringement of certain patents for improvements in the art of making hammocks.</p> <p>This suit is based upon two letters patent, granted to Albert O. Rood, as assignor to the complainant, for improvements in the art of making hammocks. The first of these, No. 277,161, relates to a 'new process of making hammock bodies. It is dated May 8, 1883. The application was filed July 15, 1882. The specification says: “This invention relates to hammocks and to the art or process of making the bodies of hammocks; and it consists in carrying the thread or cord used for the hammock body first through the loops of a selvage previously made, and then straight from one end of the frame to the other, and then looping it into the meshes already formed on its way back to the first end.” The only claim involved is the first, which is as follows: “The method herein described of producing the body of a hammock, which consists in first joining the threads for the body with the selvage, next forming them into interlocking body strands near the selvage, and in then running the thread for the rest of the body in a straight line from one end of the body to the other, and in interlooping it with the straight strands thus formed on the way back, substantially as herein shown and described."</p> <p>The second patent, No. 296,460, relates to a new method of making the ends of hammocks. It is dated April 8, 1884. The application was filed November 17, 1883. The. specification says: “This invention has for its object to simplify the mode of constructing hammocks, and particularly the ends thereof, which are the parts of hammocks containing the converging threads and the suspension eyes or loops. The invention consists, principally, in forming the hammock body with loops in the ends thereof in any known manner; in then forming each end of the hammock by drawing a cord, from which the converging strands are to be made, through the loops at the end of the hammock body in a straight line, and in then drawing this thread from between said loops, forming of it the converging strands of the hammock end, and finally uniting these strands into a terminal eye.” The claims are as follows: “(1) The art of making hammocks which consists in forming the hammock body with loops, b, b, in the ends thereof in any known manner, then forming each end of the hammock by drawing the cord, E, from which the hammock end is to be made, in a straight line through the end loops, b, b, of the hammock body, and in then drawing said cord from between said end loops, b, b, forming of it the converging strands of the hammock end, and in finally uniting these strands into a terminal eye, i, substantially as herein shown and described. (2) The art of making hammocks which consists in forming the hammock body with loops, b, b, in tlie ends thereof in any known manner, then forming each end of the hammock by drawing the cord, E, in a straight line through the loops, b, b, that are at the ends of the hammock body, D, in then drawing this cord out from between the end loops, b, b, and holding it temporarily, in then coiling or winding the outer part of this cord, and in then forming from this coiled or wound portion the eye, i, at the end of the hammock, substantially as herein shown and described.”</p>

Suit by the Brush Electric Company and others against the Electric Storage Battery Company and others for infringement of patent. Complainants move for a preliminary injunction.

<p>Bill by Elias E. Pratt and E. C. Stearns & Co. against S. S. Sencenbaugh and Albert J. Ives for infringement of a patent.</p>

This was a, suit in equity by tbe Campbell Printing-Press & Manufacturing Company against George A. Marden and others for infringement of certain patents for web-printing machines.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Two suite in equity by John C. Goebel, one against Philipp Goldman, the other against the American Railway Supply Company and others, for infringement of a patent granted to complainant for an improvement in' caps and hate. Decrees for plaintiff were granted in the court below, and defendants appealed. A motion for a preliminary injunction had been previously denied. 55 Fed. 828.</p>

This was a suit by the Corbin Cabinet Lock Company against the Eagle Lock Company for infringement of certain patents. The circuit court sustained the bill as to one of the claims (52 Fed. 980), and defendant appeals.

<p>This was a suit in equity by George Allen against R. W. Steele for infringement of a patent granted to complainant for a device for transmit ting motion in oil-pumping apparatus.</p>

<p>Patents — Infringement—Magneto-Electric Machines nob Firing Fuses,</p> <p>The Smith patent, No. 201,296, for improvement iñ magneto-electric machines for firing fuses in Wasting, is narrowed by its claims, as allowed, to the combination of an operating device with the switch of the condensing circuit in its path, and adapted to be opened by direct impingement of it, and is not therefore infringed by defendant’s device, in which the switch is not in the path of the operating device, and is not opened by the direct impingement of any of the parts constituting the operating device.</p>

<p>1. Patents — Linotype Machine — Infringement.</p> <p>Getters patent Nos. 318,224 and 317,828, issued, respectively, March 3. 1885, and May 12, 1885, to Ottmar Mergenthaler for “improvement in machines for producing printing bars,” consisting, in part, of a combination of a series of independent matrices representing characters, holders or magazines for said matrices, finger keys representing the respective characters, intermediate mechanism to assemble’ the matrices, and a casting machine to eo- operate with the assembled matrices, are for inventions of unusual merit, and, in view of the prior art, entitled to liberal construction, and are infringed by the Rogers machine, which, while in some respects an improvement, operates on the same principle, contains the same general features, and produces substantially the same results.</p> <p>2. Same — Fault in Original Machine.</p> <p>The fact that the machine, when first produced, failed to justify perfectly, which fault was remedied, and perfect justification produced by improved machines subsequently made, is no reason for denying relief to the original patentee.</p>

<p>Marine Insurance — Terms or Risk.</p> <p>A policy of marine insurance covered the vessel, a tugboat, while in the waters of New York harbor and sundry other inland waters “as far south as Norfolk, Va.” Some time after the issue of the policy, the ■ insured requested an extension of the risk to cover the boat while working in Charleston harbor, she being then at Norfolk, but refused to pay an additional premium. A rider was then attached to the policy, without payment of further premium, permitting the boat to use the port and harbor of Charleston, “but not to cover on trips either way between Norfolk and Charleston.” The boat having been lost, after sailing from Norfolk to Charleston, but whether or not within the waters of Chesapeake Bay being uncertain, held, that under the language of the rider, attached to the policy, the insurer was not liable for a loss occurring on a voyage from Norfolk to Charleston, even within the limits of the waters covered by the policy as originally written. 52 Eed. 170, affirmed.</p>

<p>Admiralty — Collision—Evidence.</p> <p>Testimony of experts as to the angle at which a collision between two vessels must have occurred, based upon examinations of the vessels made after the accident, is not sufficient to warrant a reversal of a finding of the trial judge based upon testimony of eyewitnesses of the collision.</p>

<p>Collision — Sail Vessels — Negligent Lookout os Both — -Wind Free — Conflict — Wrongful Luff by Each.</p> <p>The schooner W., sailing W., and the H., sailing E. Dy N. ?<.. came in collision about 10 p. m. in Long Island Sound in a fresli breeze, the wind being not far from N., and the night clear. The evidence showed that the lookout on the W. was very inattentive, and that the H. was not seen until a few lengths away oii the W.’s port bow, whereupon the W. luffed. The lookout of the H. testified to seeing the W.’s green light a mile distant, from one and a half to two points on his starboard how, which continued until near, when the AY. luffed, and brought about col- ■ 1 liéion. The W.’s witnesses claim that the wind was AY. of N.; the TT-’s witnesses, that it was N. iS\ E., and that the IT. was sailing close to the wind: Held: (1) That though, considering the negligent lookout on the W-, the H.’s account of the collision would have been adopted, if credible; yet that story not being credible, nor giving a possible account of the collision, no superior credit could be given to the H.’s-story; (2) that the wind was nearly as given by the nearest weather bureau, viz. N.; (8) that both had the wind free, that both were negligent in lookout, and both wrongfully luffed, and damages were divided.</p>

<p>Appeal from the District Court of tbe United States for the Southern District of Hew York.</p> <p>This was a libel by the Inland & Seaboard Coasting Company against the steamship Gulf Stream (the XeAV York & Wilmington Steamship Company, claimant) for damages for ihe loss of libelant’s steamship E. C. Ivniglit and her cargo, by collision with the Gulf Stream. The district court found both vessels in fault, and rendered a decree for a division of the damages and costs. 48 Fed. 895, On a reference to compute the damages, exceptions to the commissioner’s report were filed by the OAvner of the Gulf Stream, hut were overruled by the district court. 58 Fed. 604. From tbe final decree entered thereon, the owner of the Gulf Stream appealed.</p>

This was a libel by the Cornell Steamboat Company against the steamship Portia, the New York, Newfoundland & Halifax Steamship Company, claimant, for damages for the sinking of canal boat No. 3037, while in tow of libelant’s steam tugs R. Gr. Townsend and S. L. Crosby, by collision with the steamship. The district court rendered a decree for libelant. Claimant appealed. .

<p>Collision — Dragging Anchors in Storm.</p> <p>During a. storm, whose approach was plainly visible, the defendant vessel dragged her anchor, and came in collision with libelant’s vessel, which was properly moored a safe distance away. The defendant vessel did not put out a second anchor until after the storm had increased to a hurricane, and after such anchor was put out she did not continue to drift. Held, that she was solely liable for the collision.</p>

This was a suit by Alvinus B. Wood and others against Thomas II. Perkins to establish a trust. A demurrer to the bill was overruled. 57 Fed. 258. Defendant answered and the cause was heard on bill, answer, and proofs.

<p>Monoi’Ome* — Suit by Private Individuar.</p> <p>The act “to protect trade and commerce against unlawful restraints and monopolies” (Act Cong. July 2, 1890) confers no right upon a private individual to sue in equiiy for the restraint of the acts forbidden by such statute, an action at law for damages being the only remedy provided for private persons, and tlie right to bring suits in equity being vested in the district attorneys of the United Stab's.</p>

<p>1. Death by Wrongful Act — Pleading— Negligence.</p> <p>In an action for death by wrongful act, an allegation that the deceased was killed by reason of defendant’s “gross and reckless ami wanton negligence” does not amount to a charge that the killing was willfully done.</p> <p>8. Railroad Companies — Injuries to Persons on Track — License.</p> <p>One who is killed by a train while walking along the track for his own convenience without any invitation from the railroad company, although it has permitted others to walk along it, is at most a mere licensee, for whose death no recovery can he had unless it was caused willfully, or by negligence so gross as to imply willfulness.</p> <p>8. Evidence — Ordinance—Proof of Publication.</p> <p>Under Starr & O. Ann. St. Ill. c. 24, § 66, which declares that “all ordinances and the date of publication thereof may be proven by the certificate of tlie clerk under the corporation seal,” a copy of an ordinance so certified to is admissible in evidence without proof of its publication. Lindsay v. City of Chicago, 3 N. ®. 443, 115 Ill. 120, followed.</p>

<p>Railroad Companies — Injuries to Persons on Track — Instructions—Infant.</p> <p>Where a bright, intelligent boy, eight years and seven months old, is killed by a train while walking along the tfack, it is reversible error to refuse to instruct the jury, in an action/ for his death, that if he entered the right of way for his own convenience, and walked along the track in a dangerous position, and did not use his faculties as a person of like age could, and failed to use ordinary prudence to learn if a train was approaching, when hy so doing he might have avoided injury, he was not exercising ordinary care, and the plaintiff could not recover unless the injury was willfully inflicted.</p>

<p>Set-Off — Maturity of Demands — Fractions of a Day.</p> <p>May 8, 1891, the H. Bant of New York was indebted to the S. Bank of ■ Philadelphia for a balance of deposit of $9,688.17, and held the S. Bank’s, demand note for $25,000. On that day, about 11 a. m., the II. Bank telegraphed the S. Bank, demanding payment of the note. On the same day, between 11 and 12 o’clock, the bank examiner took possession, of the S. Bank, ana closed its doors. Held, that the court should not be astute to divide the day into fractions, to deprive the solvent debtor of a just defense, and that the note might be set off against the deposit balance in an action to recover the latter.</p>

<p>1. Constitutional Law — Taxation—Patent Rights.</p> <p>The exclusive right to make, use, and vend an invention or discovery, granted by letters patent o£ the United States, cannot be taxed by a state.</p> <p>2. Same.</p> <p>A statute of Kentucky declared that all itinerant persons, vending patent rights, should be deemed peddlers, and imposed a license tax upon peddlers, which, for vendors of patent rights, was double the amount required of others. Meld, that this was a taxation of patent rights granted by the United States, and so unconstitutional and void.</p>

Tliis was a bill by the Enterprise Savings Association against John Zumstein, postmaster of the city of Cincinnati, Ohio, for an injunction. Defendant demurred to the bill.

<p>1. Unfair Competition — Oolorablio Imitation of Brand.</p> <p>C. A. P. <fc Co. had for many years been engaged in manufacturing and Sidling flour which liad acquired a high reputation and extensive sale. In 1872 they adopted a mark or brand which they applied to the packages containing their flour, consisting of the name P., the name of the place of manufacture, “M., Minn..” the letters “XXXX,” and the word "Best.” in large letters of a peculiar design, all arranged in a circular form, surrounded by two lines of dots, with the name P. in a vertical line at each side, the whole being printed in blue, except the word “Best,” which was printed in red. The business of O. A. P. & Co., and the right to uso such mark or brand, were sold in 1889 to complainant, a corporation organized and managed by the members of the firm, which continued the manufacture and sale of the flour and the use of the mark or brand. In 1893 defendant L. F. P. commenced, at a small town in Illinois, the business of buying flour and putting it up and selling it in packages on which he placed a mark or brand of similar form to that of complainant, in which the name L. F. P. was substituted for ,the name P. alone, in the same part of the circular device and in the vertical lines, the word “Minnesota” was substituted for “M., Minn.,” the letters “XXXX” were placed above instead of below the word “Best,” which was printed in letters of the same size but slightly different design from those on complainant’s brand, the word “Patent” was added, and the lines of dots surrounding the circular device wore increased to three; the whole, except the word “Best.” being printed in blue, and the word “Best” in red. Held, that defendant's mark constituted a colorable imitation of complainant’s mark, manifestly intended to dress up defendant’s goods in the appearance of complainant’s goods, and mislead the public into buying them as such, and that its use should he enjoined.</p> <p>2. Same — Coming into Equity with Or,ban Hands.</p> <p>Held, further, that even if the use of 1he mark by a corporation actually managed by a member of the firm which originally manufactured the flour and devised the mark could be considered a false representation as to the-actual makers of the flour, the fact that prior to defendant’s commencing business the corporation had begun to stamp all its packages with its own name, as “successor” to the former firm, obviated any objection on this ground to complainant’s right to an injunction.</p>

<p>Patents — Workmen’s Time Recorder — Infringement.</p> <p>The Bundy patent, No. 482,293, for a workmen’s time recorder, in which the impression platen is operated by a check in the hands of the workmen, is not entitled to a broad construction as a primary invention, and is not infringed by the English machine, in which the platen is operated by clockwork previously wound up.</p>

Final Rearing in equity. This was a suit by Anna A. Carrington against Silver & Có., a corporation, for infringement of letters patent. The complainant is the owner of two letters patent, granted to James H. Carrington, for improvements in gas stoves. The first of these, No. 419,-827, was granted January 21, 1890. The application was filed November 1, 1889.

<p>Patents — Injunction against Infringement — Motion to Punish for Contempt.</p> <p>•The question whether defendant infringes by making a machine differing in some respects from one previously held by the court to be an infringement cannot be tried on a motion to punish for contempt, when the new machine is made under a patent issued after the injunction was granted.</p>

This wna a bill in equity by the .New Departure Bell Company against the Bevin Bros. Manufacturing’ Company to restrain the infringement of certain letters patent, and for an accounting.

This was a libel by Paul Schulze-Berge and others against the steamship Guildhall (Peterson, Tate & Co., claimants) for damages to a part of the cargo of the steamship, consigned to libelants. The district court rendered a decree for the libelants for $961.21. 58 Fed. 796. Claimants appeal.

<p>Mooring Unsafe — Gome Adrift — Anchor Entangukd ry Chain — Negligence — Winter Ick.</p> <p>Fpon the tacts, it being found that the libelant’s scow, in charge of the defendant and moored to a stake boat, went adrift with the stake boat, because the anchor of the latter had become partly unserviceable from being entangled with the chain through failure to examine and straighten, out the, chain after the winter’s ice: llt.ld, negligence of the defendant, for which it was answerable to the plaintiff in damages.</p>

<p>This was a suit by (he Commercial Union Insurance Company, Limited, of London, to enforce a claim for general average against the proceeds of the steamship Allianca.</p>

<p>Carriage op Goods —Overcarriage — Deviation — Reshipment and Loss— “Proper Delivery’’ — Harter Act — Bill oe Lading — Stipulation does not Excuse Negligence — Limitation $100 per Package Valid.</p> <p>The defendant’s steamer A., which was accustomed to touch at several ports of call in South America, received on hoard, a few hours before sailing from New York, 29 packages for Savanilla, the second port of call, and they were placed in the bottom of the last hatch filled. On arrival at S. other goods were discharged there, but not the libelant’s goods, which were inadvertently omitted, as found on the following day, after the vessel had left S. It not being convenient to return, or possible to forward the goods from the subsequent ports, they were brought back by the same vessel to New York, and there immediately reshipped for Savanilla by another steamer, which was totally lost on her way out. The bill of lading, by stipulations on the back, referred to in the body, provided that if goods “cannot be found” during the steamer’s stay, they are to be forwarded when found, at company’s expense; also, carrier not liable for “goods of any description which are above the value of $100 per package, unless value expressed in agreement made.” .Helé: (1) That the stipulations indorsed, so far as reasonable and valid, were binding on the libelant; (2) that “proper delivery” of the goods included timely delivery; (3) that the provisions of the Harter act (2 Supp. Rev. St. 81) prohibit the insertion in-the bill of lading of any exemption from liability for failure in the “proper delivery” of goods; (4) that the parties cannot evade this act by inserting stipulations determining what shall constitute a “proper delivery,” any further than shall appear reasonable under the circumstances proved, and no stipulation that shall cover negligence either in receiving and stowing the goods, or in making a proper search for them at the port of delivery; (5) that the overcarriage in this case was not justified by anything in the circumstances, or in the bill of lading, but amounted to a deviation in the m'ariiime law, which made the carrier liable as insurer, and hence liable for a subsequent loss, even though by sea perils; (6) that the reasonable construction of the limitation clause in the bill of lading was against liability above $100 per package, and as thus construed, it was a valia limitation.</p>

<p>Cakriage of Goods — Explosion—Detonators—Customary Stowage Sufficient.</p> <p>While the steamship G. R. B. was discharging, an explosion of detonators caused a hole in the ship which let in water which extended to plaintiff’s goods in the next compartment, by which they were damaged. The detonators were in cases, so packed as to be customarily stowed and handled like ordinary merchandise, and believed to be harmless. Held: (1) That the damage having arisen primarily from sea water, the burden of proof was on the libelant to show negligence in the defendant; (2) that stowage of detonators as ordinary merchandise being proved to be in accordance with the custom oi' the country, and without knowledge of their dangerous character, was justifiable and was not negligence, and the libel was dismissed, without costs.</p>

<p>Carriage by Sea — Damage to Hides — Sugar Drainage — Foreign Ships— Stranding — Pilot’s Mistake — Invalid Stipulations — I-Iarter Act.</p> <p>The British ship E. being anchored by a local pilot in the Amazon at Para, while unloading part of her cargo dragged her anchor from the great force of the current and grounded upon a sand bank which caused her to take a strong list, in consequence of which the drainage from some Pernambuco sugar in the between decks ran over the coamings upon some hides in the hold beneath: Hdd (1) that the stowage of hides beneath sugar stowed on perfectly tight iron between decks was not negligent stowing; (2) that the possibility of the escape of drainage into the hold over coamings a foot high, in consequence of a strong list from stranding, was not such a contingency as was to be foreseen and guarded against, or evidence of the ship's negligence; (8) that the selection of a place for anchoring, from which the stranding resulted, was a part of “the navigation and management of the ship,” within the third section of the Harter act of February 13, 1803 (2 Supp. Rev. St. 81); (4) that the provisions of that section include foreign ships; (5) that the provisions of the hill of lading that “all damage claims shall be settled direct with the owners according to English law, to the exclusion of proceedings in the courts of any cither country,” were invalid, as respects transportation between Brazil and New York.</p>

<p>Sha Cabbtage — WoRking — Calm —Leaks around Centerboard — Unsea-wortiuness — Lack of Due Diligence — Harter Act.</p> <p>The three-masted centerboard schooner M. It. B., on a voyage from Cardenas to New York, when five days out, met a dead calm in a heavy swell of sea, during which she rolled considerably, and during two hours — from 12 !o 2 i). m. — sprang a leak, taking in three feet of water, which was with difficulty got under control at 0 p. in., when a breeze sprang up, after which there were no more leaks. The evidence left uo doubt that the leak was in the centerboard seams, along the keelson and grub beam, in the bottom of the schooner. Held, that so heavy a leak, so soon after leaT ing port, due to mere rolling In a calm, was inconsistent with reasonable fitness for the voyage, or with that necessary careful inspection of the seams about the centerboard which “due diligence” under the Harter act required; and that the vessel was liable for the damage to sugar cargo caused by the leak.</p>

<p>Carriage of Goods — Damage to Tea — Leaks in Water Ways — Seaworthiness — Sea Perils — Harter Act.</p> <p>Tiie skip S., upon a voyage from Hong Kong to New York around Cape y Horn, had for 20 days rough seas, aft gales, and much rolling and shipping of water, during which the seams of her water ways began working and took in some water, causing a comparatively small amount ol’ damage to a cargo of tea stowed in the between decks. Upon evidence of careful inspection before the voyage was commenced, both by the owners and by the insurers of cargo at iiong Kong, and of ihe high rating and general staunchness of the ship, held (1) that Ihe sea perils shown were an adequate cause for the leaks in the water ways, consistent with seaworthiness at the beginning of the voyage, and that the tea damage, was, therefore, to be ascribed to sea perils within the exception of the bill of lading; (2) that the evidence showed “due diligence” in ihe carrier, within the third section of the Harter act (2 Supp. Rev. St. 81).</p>

<p>Salva of. — Oar Floats — Fire in Slip — Towing out — Siiam Skrvtoh.</p> <p>Where a fire.broke out on the wharf and the shore adjoining a slip in which were four car floats loaded with cars of the value of $99,000, one of which caught fire, and the services of numerous tugs were accepted in hauling all the car floats out of the slip, and in pumping on the floats afire, the sum of $2,000 salvage was allowed, and apportioned among the different tugs according to the service rendered by each; nothing being allowed to one of the tugs which left before any valuable service was completed; and the amount allowed to another tug being reduced as marking the disapproval of the court of her sham exhibition of work, by the long continuance of unnecessary pumping.</p>

<p>Collision — Fog—Negligent Sounding oe Fog Horns — Inattention—Deserting Injured Vessel — Act Sept. 4, 1890.</p> <p>The large four-masted steel ship Kenilworth, sailing north, came in collision oft Barnegat, at night, in a thick fog, with the small schooner Sawyer, which was heating to the south against a very light southerly wind. The ship’s yards raked and carried away the schooner’s masts and rigging. As they passed, the ship was hailed; but the master made no answer, and sailed away without stopping. The fog horns were not heard on either vessel until within about three minutes of the collision. The report of the lookout on the ship could not be understood; and she had no aft-sails set to enable her to maneuver easily. The mechanical fog horn of the schooner had not been previously tried, nor used in the fog of the previous day; it was claimed to have been brought out only an hour before this collision. The schooner, after collision, was burnt and sunk by the master. Held, (1) that the collision was presumptively caused by the ship’s fault, under the act of Seiitember 4, 1890 (1 Supp. Rev. St. p. 800), and that she had not proved the contrary; (2) that the primary cause of the collision was the failure to hear timely fog signals, either because théy were not properly given, or not properly attended to, on either side. The damages were divided.</p>

<p>COTJVISION— OVERTAKING VESSEL — MlIST CONFORM TO LEADING VESSEL — UNLICENSED Deckhand in Charge.</p> <p>The tug Whiteash was rapidly overtaking the tug Winnie in going up the East River a little above the bridge, both having tows alongside. The Winnie changed her course to port, in order to pass to the left; a large steamer coming down, under proper signals. The tow of the Whiteash, while the latter was overtaking and passing the Winnie to the left, came in collision with th latter’s tow: Held, that it was not a fault in the Winnie to change her course to the left under appropriate signals, in orden* to meet and pass the steamer coming down, and that the Whiteash, being then behind and duly warned by the Winnie's signals of her intended movements, was bound to conform her own movements to those of the Winnie, and was therefore wholly in fault for the collision; that probably the collision would not have occurred had not the navigation been in charge of an unlicensed deckhand, while the master was at dinner.</p>

<p>This was a. suit by Frank H. Dickinson against the Union Mortgage, Banking & Trust Company, Limited, and others, to restrain a sale under a mortgage. The suit was brought iñ a court of the state of South Carolina, and was removed by the defendant the Union Mortgage, Banking & Trust Company to the United States circuit court. Plaintiff moves to remand to the state court.</p>

¡Special assessment proceedings by the city of Chicago, removed to the federal-court The city moves to remand. The city of Chicago moves to remand to the county court of Cook county a special assessment proceeding for putting a sewer in Montrose Boulevard, which case was removed to this court on petition of the Fidelity Insurance, Trust & Safe-Deposit Company, as a nonresident lot owner, claiming separable controversy.

This was a suit by Charles Q-. Alley and others against Edward Hines Lumber Company. The suit was brought in a court of the state of Michigan, and was removed by the defendant to the United States circuit court

<p>1. Resulting Trust — Public Lands — Pre-emption— Cancellation — Patent to Contestant.</p> <p>W., a citizen duly qualified, settled ou a certain 40 acres of unsurveyed public land, and resided on and cultivated it as bis borne 4 years and 10 months, when be died. Three weeks before W.’s death, and during his temporary absence on account of sickness, J. went upon such 40 acres, removed and appropriated the improvements, and entered in the local land office his homestead entry, falsely alleging settlement thereon 14 months before such entry. A few days afterwards, and 35 days after a plat of the survey of the township was filed in such office, W. applied to enter the land as his homestead, hut his application was refused because of J.’s previous filing. About 80 days afterwards, W.’s devisee filed a contest, and the land department canceled J.’s entry, and issued a patent to such devisee, the decision being affirmed by the secretary of the interior. ifeld, that a bill by J. against such devisee and bis mortgagee to establish a trust in such land, and to compel a conveyance to him, was properly dismissed.</p> <p>'8, Samm.</p> <p>The fact that the land department canceled J.’s entry because its officers erroneously construed liev. St. § 2291, as conferring rights on such devisee, did not entitle J. to maintain such action, it appearing that J. had no right of entry.</p>

This was a suit by G-eorge W. McLaughlin and others against the National Mutual Bond & Investment Company for an injunction and receiver. Hearing upon bill and answer.

This was an action at law by the National Park Bank against Frank TT- Peavey to recover the amount of a judgment held by the bank against the Sioux City Street-Iiailway Company, in which defendant was a stockholder.

This was a suit by Robert Balfour and others against R. J. Rogers and others for the foreclosure of a mortgage. The case was heard upon a stipulation of facts.

This was a suit by Bartlett Doe against the Northwest Coal & Transportation Company, Samuel Coulter, and others, to obtain the appointment of a receiver of the corporation, and the administration of its assets as a trust fund for the benefit of its creditors.

This was a suit by Gordon R. Badgerow and others, suing in behal f of themselves and others similarly situated against the Manhattan Trust: Company, Amos T. French, individually and as executor of Francis O. French, deceased, and the Wyoming Pacific Improvement Company to establish a lien upon certain bonds, and for other relief.

<p>J. LANDLORD AND TENANT — ASSIGNMENT OP LEASE — STATUTE OF FRAUDS.</p> <p>M. leased certain lands in South Carolina to the C. Mills, a corporation, the lease giving express permission to the lessee to erect buildings, and pull down or change the same during the term. The C. Mills became insolvent, and its property, including the lease, was sold by a receiver to II. and his associates, who organized a new corporation, the C. Cotton Mills, which took possession of the property of the former corporation and of the leased premises, but without any assignment of the lease or other writing from H. and his associates. Subsequently, the 0. Cotton Mills made a mortgage of its personal property to S., minutely enumerating sundry machines, furniture, etc., and including “all personal property of whatever nature, on the premises of the C. Cotton Mills, or in any manner belonging to them.” S. brought his action to foreclose the mortgage, in which a receiver was appointed, who notified the lessor of his intention to surrender the lease, and subsequently advertised the personal property for sale, following the enumeration in the mortgage of machines, etc., and adding, after such enumeration, “all other personal property on the premises belonging to the O. Cotton Mills, and covered by the mortgage.” S., having purchased the mortgaged property at the receiver’s sale, was proceeding to tear down and remove a warehouse erected on the leased premises by the C. Cotton Mills for use in its business. M,, the lessor, filed his petition in the cause to restrain such removal. Held, that the C. Cotton Mills was never a tenant of M., no written assignment of the lease having been made as required by the statute of frauds of South Carolina. .</p> <p>2. Trade Fixtures — When Removable.</p> <p>Held, further, that while, under the general rule as to trade fixtures or under the provision in the lease as to pulling down buildings, the lessee might have removed the warehouse during the term, and while in possession of the premises, its right to do so did not continuo after its possession ceased and was terminated, as to any right of the O. Cotton Mills, by the receiver’s notice of his intention to surrender the lease.</p> <p>8. Same — When Realty and When Personalty.</p> <p>Held, further, that, even if Ihe right existed to remove a building- erected on the leased premises, such building, until the right was exercised by an actual removal, was part, of Hie realty, and not included in the mortgage or sale of personal property.</p> <p>4. Judicial Sale — Sufficiency of Advertisement.</p> <p>Held, further, that the form of the advertisement was not such as to give notice to persons, not otherwise informed, that a building on the leased premises was intended to be included in the sale, and a sale, made under such advertisement, would not be held to include such building.</p>

This was an action by Wells, Fargo & Co. against P. W. Vansickle upon a promissory note. The case was tried by the court without a jury.

<p>CONTRACTS IN RESTRAINT OF TRADE — MONOPOLIES—PUBLIC POLICY.</p> <p>The U. Co., which was engaged in the manufacture of bone tartar, leased its building and equipment, used in such manufacture, to W. for 10 years, at $12,000 per year. The actual rental value of the land and building was between $2,000 and $2,500- per year, but the profits derived by the U. Co. from the business conducted on the premises with the leased equipment were from $10,000 to $12,000 per year. The lease contained a covenant that, during its continuance, the U. Co. would not engage in the manufacture of bone tartar, and other provisions which, it was claimed, showed that the intention was not to operate, but to close, the leased factory. On the day the lease was made, it was assigned, with the consent of the U. Co., to the P. Co., which was engaged in the same business, and had for many years been the chief producer of bone tartar. It appeared that the lease had been made with the intention that it should be assigned to the P. Co., and that it was made for the purpose of removing the U. Co.’s competition from the market. Other competitors afterwards sprung up. The price of bone tartar declined. The P. Co. ceased to pay the agreed rent, and, being sued, set up in defense that the lease was void, as being in restraint of trade, and tending to create a monopoly. Held, that as the contract conferred no special or exclusive privilege, but left the trade open to the competition of any other parties, it had no tendency to create a monopoly; that it was no more than a lawful exercise of the power to contract for the protection of the business of the P. Co., and was not against public policy, nor void.</p>

<p>Error to the Circuit Court of I tic TJnitod States for the District of Nevada.</p> <p>Action by Eliza Aim Johnson, administratrix of the estate of Horace Johnson, deceased, against the Southern Pacific Company, to recover foi* the death of plaintiff's intestate, caused by defendant’s negligence. There was a judgment, for plaintiff, and defendant brings error.</p> <p>This action was brought by defendant in error, under an act of Nevada, against plaintiff in error, to recover damages for the death of her husband, alleged to have been caused by the carelessness and default of plaintiff in error. The defendant in error obtained a verdict, for $25,000, hut $10,-000 were remitted as an alternative to a now trial. At the close of the testimony in the court below, plaintiff in error (there defendant) moved the court to instruct the jury ro find a verdict for it. The court refused, and this is assigned as error.</p> <p>The statute under which this action was brought provided as follows: “Whenever the death of a person shall he caused by wrongful acts, neglect, or default, anil the act, neglect, or default is such as would, (if death had not ensued,) have entitled the party Injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or corporation which, would have been liable, if death had not ensued, shall he liable to an action for damages, nothwithstanding the death of the person injured. * * (Jen. St. Nov. § $898.</p> <p>The evidence of defects in the engine may he summarized from the testimony as follows:</p> <p>Freeman (who was the fireman on the. train): “Engine No. 1,266. on the 14th day of August, 1892, was a hard-running- engine. I think it would be from looseness of the engine. Continual wear, 1 should think, would make it loose, — 1 mean wear of the boxes. The boxes were loose;, and the cylinders were loose, and there would be a continual pounding and jarring. Títere was more or less swinging motion in cal) and locomotive, occasioned by this looseness. At the time of the accident, as the engine ivas going down Brown's hill, there was considerable jarring. It was a hard-running engine.”</p> <p>Peterson testified: ‘Tier cylinders were loose, particularly on the left side, and her driving boxes were worn out, and probably her brasses also worn or in a bad condition. This would have the effect on the engine of giving it a swinging motion, especially on the curves. It would rock you from side to side very rapidly. The engine would ride like a dead-axe wagon. Tt will kind of strike solid. This would certainly increase the danger of fhe engineer in going out of his cab onto the footboard when the engine was in motion quite a litüe. I do not lcnow anything about tlie driving wheel, hut I know that when I saw the engine she had a very had pounding in the boxes. It would pound like a sledge hammer. The effect of lost motion causes more or loss inconvenience to the engineer and fireman in the respect mentioned before. It rides harder, and will have a swinging motion more to one side than the other. When a fireman is firing up the engine, and it is on a curve, tlie 'least swing will throw him from one side of the cab to the other. That is what -is called ‘lost motion.’ That is true on a perfectly straight track. It will swing from side to side on a perfectly straight track if you strike low joints in your track. * * * Wornout driving boxes cause a pounding in your engine.”</p> <p>Driscoll testified: “On the morning of the' fourteenth of August, when I was on her, she was in a very rougli riding condition, caused, I presume, from the poor condition of the engine at the time. There would be several causes which would produce hard riding. Being down on her boxes would cause it. Lost motion between the engine and tender would cause it. Tlmt is all I know of, unless it would be looseness of the engine. The wearing of the boxes would have a tendency to make the engine sway. As a matter of fact, this engine did sway and rock m'óre than engines in general, — quito a good deal. The road at the place of the accident had some slight curves, but I do not think there were any sags on the line where this accident occurred. 1 know what you mean by ‘sags.’ I do not think there were any sags. I did not observe particularly tlie motion of the locomotive at the moment when Johnson disappeared. My attention was attracted at the time to some other place.” Cross-examination: “I had been acquainted with engine No. 1,200, off and on, for about five years. I mean, by ‘off and on,’ that I have been away from Wadsworth for some time, and when I was away I did not know it then. I would go away, and then come back and renew my acquaintance with it. When I was at Wadsworth I knew it, and I was at Wadsworth most of the tíme. I knew this engine very well by reputation. I have known it for a period of about five years, and I know it had been in that condition for some time. I should judge for about three years. Johnson had not commenced to run on it then. He had been running it for about two years. I suppose that Johnson knew the condition of that engine better than I did. He knew that it rocked and swayed, and knew all about it. At the moment that Johnson disappeared, I do not know what the motion of the engine was. I had observed that rocking and swaying motion ever since I had been on the engine that morning. That was not the first time I had ever been on a train in connection with that engine. As to the time I had been on a train pulled by that engine before that time, I cannot say positively, — I should judge about two months; and I think Johnson was engineer at that time. I 'presume it had that rough riding and swaying motion then. I caniiot remember whether it rocked and swayed at that time or not, I did not state that ’it had been rocking and swaying for two years that I knew of. I am sure of that. It had been swaying and rocking that day for about fifteen minutes. That is all. It took us, to run from Wadsworth to the place where the accident occurred, about two and one-half hours, and out of that time I was only on the engine fifteen minutes. I cannot remember whether it shook when'! was on it, two months before. 'What knowledge I have of its swaying and rocking is confined to the fifteen minutes that I was on the engine that morning. I mean by ‘rough riding,’ an up and down motion and a to and fro motion. That motion to the right and left is what I call ‘swaying.’ I cannot say that it had this right and left motion for several months. On the morning of the fourteenth, so far as it was rough riding from this swaying backward and forward, I only knew it for fifteen minutes. Rough riding consists of an up and down motion or jarring, and also a to and fro motion or right and left motion, — both or either. The right and left motion is what I mean by tlie rocking and swaying, and I only knew this right and left motion for fifteen minutes before the accident occurred. I know she had it when I was on the engine before. If she did not have the right and left motion, and was still a rough riding engine, then it was confined to an up and down motion. I do not know how long I had known the engine to have that motion. I know she had it when I was on her before. I cannot say how long I was on that engine, or a train puffed by that engine, at the time I speak of, — two months before,— bút T think I was working' ahead one trip. I do not. remember -where from. Í was oni seven or eight hours. This was two months before the accident. I do not know where or wlten This was the time 1 discovered this rough riding condition. The other time was on the morning of August 14, 1892. I cannot remember any oilier timo."</p> <p>The circumstances of Johnson’s death are related by two witnesses, Freeman and Driscoll, who were on the engine with him.</p> <p>Freeman testifies as follows: “I was on this engine on the morning of the ,14th of August, 1892, in the capacity of fireman. Had been fireman upon engine l,2ti(i five months. -Mr. Johnson was the engineer during that time. On tlie morning of tlie 14th of August we'left Wadsworth, T think, about f>:fiO or a quarter of seven, I am not positive which. We were going to AVinne-niueca. They claim it is one hundred and thirty-live miles from Wadsworth to Winnemucca. That was tlie end of our run for that day, but if we were the only engine in Winnemucca, and a train came in. we were supposed to lake it: out. Our orders were to go to Winnemucca that day. Q. Did yon witness the occurrence in which Johnson, the engineer, was hurt? A. Well, I did not see him at the time he fell off the train, but I saw him shortly after-wards. Q. Where were you at the time? A. 1 was in the cab, on tlie fireman’s side of the engine. It happened about one or one and one-lialf miles this stile of Brown’s station, and about thirty-five1 miles from Wadsworth. Brown’s hill Is just this side. The hill slopes slightly towards Brown’s, the greater parr, towards Wadsworth. The locomotive was on the eastern slope going towards the liumboit. There are several small curves in the road at that placo. Q. AVhere, with respect to these curves, did the accident take place? A. It was a straight track where the accident took place. Q. Were there any sags? A. No, sir; tlie character of the grade is not very steep. After we got over Brown’s hill, we generally worked steam to give the train a good run, then shut off steam, and would roll into Brown’s. We had an average train that day, I think a full train, twenty loads; that is what we call a full train,-twenty* carloads. Before we came to Brown’s hill, Johnson was working the engine pretty hard. AA'hat we call ‘we took a run’ to Brown’s hill. AVe got a pretty fast speed on to go up the hill. The engine was a liard-steaming engine. \Aro could not keep steam up, and we had to double the hill. AVe took file first cut over, and went hack after the second, and going down Brown's hill the water was pretty low. There was about an inch or an inch and a half in the glass. AVe had the blower on the engine, trying to get up steam. He tried to start Ms injector, and got It to prime a little water into the boiler. AVe had about ninety pounds of si earn on, and he shut off to give mo a chance to get up more steam, and, as he shut the Injector off, the cheek study. As it did so, he picked up an (tight-inch monkey wrench, and went out on the running hoard. Mr. Driscoll was standing hack of him. Mr. Johnson wont out on tlie running board, and, T believe, knocked the check valve down, because (lie wafer ceased coming back into the cab any more. Mr. Driscoll looked out, and Mr. Johnson was not there, and we threw the engine on the back motion, and T went over to the engineer’s side and looked out, and saw Mr. Johnson was gone, and I looked hack and could not see him, so I got dotvn and ran hack and found him in the ditch, with Ms feet up, and head down on his left side. Alter lie had shut the injector off, the check stuck. I do not know as I can describe (lie injector very thoroughly. There are three parts. I think,--the ram, busy cock, and jot. This machine is used to pul water into the boiler from the tank. ’Pile, check is out on the side of flic boiler whore the injecting pipe connects with it. There is a valve in it; that. is. the cheek thnt ■ivas on ibis engine was a round cup valve, and the water had force enough to raise1 the valve and force Itself into the boiler. It stuck up; Hint is. tlie water coming from the tank going into the boiler raised tlie valve, and it did not drop back. The rest lit was the steam and water came back into the cab. after he shut the injector off, worse than I ever saw if. It was hot. The engineer and all of us had to get out of the way. I went out on the gangway, Driscoll wont out on the tank, and Johnson got out on the running hoard to knock down tlie check valve. It is done by taking something and tapping on tlie top óf it. and, if that does not knock it down, you must tap on tlie bottom of it. I did not see Johnson’s hand on the check, but, after he went out, the steam and water stopped flowing, and mj' determination was tliat the valve was knocked down. • The foot board, or running board, is a board (there are different sizes) running from the back of the cab. It is on each side of the engine, and goes almost over the steam chest near the end of the boiler. It runs about one and one-half feet past the check valve, and is from seven to ten inches wide. With reference to that running board, this check is at the furthest end towards the front. When the check valve was stuck, and Johnson was on the front end, and we had only one and one-half inches of water in the boiler, I tried to work my injector on my side, because his stuck, and I could not work mine at all. I let it go, and did not bother, and after Mr. Johnson fell off the engine, we stopped and shut off the air pumps, so as not to use anv more water. Driscoll cut the engine off, and went to Brown’s station. I got some water and a sponge, and went back to Johnson, and took care of him the best I could. I attempted to use the left-hand injector because I wanted to get water into the engine. It was not necessary, but the more water in a hard-running engine the better. On that engine we carried ‘out of sight’ in the water-valve gauge glass. The water valve is nine inches long, and what we mean by ‘out of sight’ is to have that glass full. I tried to work the injector after Johnson had gone out on the board, but I could not at the time the check was up, because of the water and steam coming into the cab. After Johnson was hurt, Mr. Driscoll went to Brown’s, and telegraphed to Wads-worth. I ran back and picked Johnson up, and bathed his temples and head. Driscoll came back and backed the engine up to the train, then came to the hind end of the train where I was, and we carried Johnson into the caboose. I think there was an engineer by the name of Short that took the train to Winnemucca. I went with the engine to Winnemucca. I know the engine was reported at Winnemucca. I was present when the report was made by Short to the night hostler. The engine reached Winnemucca a quarter of nine on the evening of the 14th, and Johnson fell from the engine at 8:30 in the morning. The next morning about ten o’clock the engine was taken out again, and was run to Carlin. I fired her to Carlin. The check stuck three or four times in the trip to Carlin. There was no other trouble on that trip.” The testimony was in effect repeated on cross-examination, and he further testified: “The train was running at the time at 17 or 18 miles an hour. I saw Johnson go on the running board.”</p> <p>Driscoll testified as follows: “I left Wadsworth, I should think, about 6:30 in the morning. Horace Johnson was engineer. George Freeman was fireman. I was upon the locomotive at the time Johnson was thrown off. I came there in this way It was customary to double the hill. With a full load we always doubled it, taking one section over, and then coming back and getting the other. Brown’s was a coaling station. It was customary for the rear brakeman to ride on the engine, and assist. I was on the engine to run over to Brown’s. The train was divided. It was my duty to be on the front section of the train at that time. I had known engine No. 1,266 before August 14, 1892, over five years, and had ridden upon it before, but not very often. I was as well acquainted with the engine as with any other engine that trainmen had to work with. I was on the engine just back of Johnson. We-went down the hill, perhaps three-fourths of a mile. Shortly afterwards he shut the injector off, and the cheek stuck up. Steam commenced to come back through the overflow into the cab. I stopped back upon the gangway, and sat upon the front of the tank directly back of the cab. The fireman and brakeman stepped into the opposite gangway. I looked out and saw Johnson go out with his handrail and a monkey wrench, I think, in his hand. I turned and looked at the fireman and brakeman. The fireman had his hand and arm up, trying to keep off the steam. He came back into the cab, and attempted to work his injector. I looked out again through both windows, and I could see the engineer strike the check valve with whatever he had in his hand. I turned around again and looked at Freeman, and when I looked outside again, perhaps half a minute later, I saw the engineer, Johnson, standing up. I took my eyes off him, and when I looked out again I did not see him. I looked down towards the ground, and I could see him doubled up, and he was either just striking the ground, or else had struck and was on the rebound. I reversed the engine and stopped the train as quickly as possible. Tlie brak ornan wont, buck to whore Mr. .Tolmson was. I had orders to cut the engine off and run to Brown’s station, and advise Wadsworth of what had occurred. I did so, and Engineer Gunn was at Brown’s station with a broken-down engine. lie had instructions from Wadsworth to come hack and take the tin in. I saw Johnson shortly after he fell off, and helped him into tlie caboose. He was then senseless and bruised severely. I washed the Wood off liim. At the moment, when the injector valve stuck, Johnson was sitting on his seat. The train was in motion. The grade was down hill. Steam was shut off. The train, was running of its own accord. It had no propelling force. It was down hill, and trains will run down hill alone. 1 think we had twenty-two ears. It is a full train for a seventeen-inch engine. The train, at that; moment, was going, I should think, about eighteen miles an hour. As it went forward it would very soon slow up. When Johnson went, out on the board, 1 do not know as there was any material difference in tlie speed of the train. To check tlie speed of the train it would be necessary to apply the air. It is applied with the engineer’s valve. At the time the check stuck up, there was considerable hot water and st.eam coming into the cab, and it was very hot. There were large drops of hot water. It got into the cab from the overflow and the injector. I got out of the way to escape from the steam, and was protected by the rear windows and a part of the cab. The fireman first stepped over into the gangway on the left-hand side. He then '-amo hack, and' tried to work his injector. The brakeman remained where he was. The tapping that Johnson delivered upon the injector caused the check to seat itself, thereby stopping Ihe steam. It did have that effect, and it was necessary to be done. There is no other way that I know of that Ihe steam and hot water could be stopped from the overflow from coming into the cab. The only other way by which water could be put into that boiler, excepting by using that injector, would be by using the left-hand injector, and that would not work when the fireman attempted fo use it. The amount of water in the boiler is indicated by ihe glass. As an engineer, I would say It is necessary to keep water in the boiler to keep it from burning, and to furnish steam for the engine, livery engineer tries to keep, generally, from one-half to three-fourths of a glass of water. The glass is nine or ten inches long. It is the intention to keep from four to eight inches of water in tlie boiler. When the water in the glass gets below that, the engineer generally tries to catch up with the water again. I have ridden on Kngtne No. 1,2(56, and have known her four or five years.”</p> <p>On cross-examination he said: “I suppose that Johnson knew the condition of the engine better than 1 did. He knew that it rocked and swayed, and knew all about it At the moment that Johnson disappeared, I do not know what the motion of the engine was. I had observed that rocking and swaying motion ever since I had been on the engine 1hat morning. * * * It had been swaying and rocking that day for about 13 minutes. That is all. It took us to run from Wadsworth to the place where the accident occurred, about two and one-half hours, and out of that time I was only on the engine 15 minutes. At the time Johnson attempted to, or did, start the injector, wo had then passed over Brown’s hill. At the time I saw Johnson go out on Ms running hoard we had then passed Over Brown’s lull, and were on the eastern slope. I saw him walk along the running board to the check valve with a hammer or monkey wrench. Q. You saw him slipping his hand on ihe rail? A. 1 did not see the motion of his hand, butl saw his arm extended. Q. Did you see him tap the check? A. Yes, sir; I did. Q. Did you hear the tapping? A. I could not hear anything. Q. Are you sure you did not hear tlie tapping? A. Pretty sure; yes, sir. Q. Did you ever state that you did hear it? A. I do not think I ever did. I know what you refer to, — my interview with Mr. Whitehead. 1 was not under oath (lien. Q. Do you admit now that you did say to Mr. Whitehead and myself that you did hear tlie tapping of the hammer? A. I make no sncli admittance. After I saw him tap ihe valve, I saw him stand up. When he was in the act of tapping tlie valve, he was stooping over. Ho .stood over this way (showing), with his hand on the rail, and I think his knee was on the running board. I saw him strike this way (showing), and then Í saw him stand up, and that was the last time I saw him oil the running board. When he was standing up, his back was towards tlie cab. Ho had not turned around, it is not customary, for firemen or engineers, after they have gone out on the running hoard, to walk backward to the cab. They turn around and face the cab; at least, I always do. I could not say that others always do. They may have different methods. If Mr. Johnson had attempted to face the cab, he would hare to let go the rail with his left hand, most likely. I should think he would put his right hand oii the rail before he let go with his loft. I did not see any movement of that character, because I was looking another way. The next I saw of him was when he was on the ground. I did not see Johnson start the injector. It was working when I got into the cab. I saw him r'each over, and I think I saw him shut it off. Then it was that I observed the steam and hot water coming into the cab, and then I saw him start out on the running board. There is a way by which the steam can be prevented from coming back into the cab other than by seating the valve by going out and knocking it down. A man could shut down the frost cock. That is a small valve on the injector pipe about three inches from the injector. I think that can be used to stop it, but I never saw it used to stop it, and I never used it myself. I never had occasion to use it for that purpose. I do not know, in this instance, whether Johnson attempted anything of the sort or not. I do not know how much water was in the glass, but I think it was low. I almost always look at the water in the glass, but I do not remember whether my attention was called to it or hot on this occasion. I have no recollection of looking at the glass. Yes, I have a recollection, but I do not remember the amount in the glass. I have run an engine six months, which was a similar engine to- those on this-line. If, in this particular engine, there was from one to one and one-lialf inches of water in the glass; going down hill, and the steam was shut off, and the engine was ‘running without power,’ the distance it would rock with that amount of water would depend upon circumstances. I understand the circumstances as shown in this case. Under these circumstances, with from one to one and one-half inches of water in the glass, I should judge it would roll a .very short distance; possibly a mile. It might have been possible to run to Brown’s, but I would not want to take the chances. I do not know positively that it would not have run six miles, but it would not run six miles under those circumstances. There would be water consumed by the fires, and one thing or’another. If, however, they had used' this appliance I speak about, and shut the steam off from coming into the cab, it would probably have burst the injector pipes. I think it possible.”</p> <p>The rules of the company referred to- in the testimony are as follows:</p> <p>“Southern Pacific Company (Pacific System) Bules and Kegulations for the Government of Employés of the Operating Department. To Take Effect July 1,1892, at 12:01 A. M.</p> <p>“General Notice.</p> <p>“It is of the utmost importance that proper rules for the government of employés of this company should be literally and absolutely enforced, in order to make such rules efficient. If they cannot or ought not to be enforced, they ought not to exist. Officers or employés whose duty it may be to make or enforce rules, however temporary or unimportant they may seem, should keep this clearly in mind. If, in the judgment of any one whose duty it is to enforce a rule, such rule cannot or ought not to be enforced, he should at once bring it to the attention of those in authority. All persons entering or remaining in the service of this company are warned that their occupation is hazardous; that they dó so with a full knowledge of the dangers incident to the operating of railroads; that in accepting or retaining employment they must assume the ordinary risks attending it; that they are required to exorcise great care in the performance of their duties to prevent accident to themselves or others; and before using tools or apparatus of any kind, they should know that they are in a safe condition to perform the service required, and report to the superintendent, in writing, defects in tracks, cars, machinery, and appliances of any kind, liable to cause accidents. The company does not wish or expect its employés to incur any risk whatever, from which, by the exercise of their own judgment and by personal care, they can protect themselves, but enjoins upon them to take time in all cases to do their duty in safety, whether they may he, at the time, acting under the orders of superiors or not. In dealing with the public, especially with the company’s patrons, it is often necessary that employes should observe much patience and self-restraint, always endeavoring to follow the dictates of good sense and prudence, in order to make the most favorable impression, and treating them as any good business man would treat his customers, with the view of making the road popular.</p> <p>“Approved:</p> <p>“A. N. Towne, Gen. Manager. ,T. A. Filmore, Gen. Supt.”</p> <p>“Train Rules: (121) In all cases of doubt or uncertainty, take the safe course, and run no risks.”</p> <p>The second and third subdivisions of rule 213 are as follows: “Every employé is required to exercise the utmost caution to avoid in,jury to himself or to others, especially in the switching or other movement of trains.” “No-person who is careless of the safety of himself or of others will be continued in the service of the company.”</p>

<p>Action by M. J. Church, against George C. Cheape for balance due on contract. Judgment for defendant.</p>

<p>1. Interstate Commerce Commission — Quast Judicial Powers.</p> <p>The interstate commerce commission is not a court, hut an administra-tivo body, lawfully created, and lawfully exercising’ powers which are quasi judicial, as are the powers exereised by the commissioner of patents, and, iñ many respects, by the heads of the various departments of the executive branch of the government. Its rulings and decisions are entitled to the highest respect of the federal courts, and they are justly so regarded. Commission v. Brimson, 14 Sup. Ct. 1125, 154 U. S. 447, 474, 489.</p> <p>2. Same — Injunction.</p> <p>A preliminary injunction to compel a carrier to obey an order of the interstate commerce commission in reference to freight rates should be denied where the answer denies that the rates defendant charges, and which were passed on by the commission, were unreasonable or unjust. Shinkle, Wilson & Kreis Co. v. Louisville & N. R. Co., 62 Fed. 690, followed.</p> <p>8. Same — Payment on Excess into the Rhuistry or the Court.</p> <p>Upon motion for a preliminary injunction to restrain certain carriers from violating an order of the interstate commerce commission, the complainant made the alternative suggestion that, if the defendants he allowed to chargo and receive present rates, they be required to keep an account with every shipper, and to pay into the registry of the court the excess, same to be disposed of after the hearing as the court may order. Held, that this was in fact an application for a rule nisi, which ought not to he granted unless there was a very strong showing of right in favor of the complainant, which would authorize the granting of a preliminary injunction, and, on the other hand, sufficient showing of probable injury to the defendant to authorize an alternative order, as, for illustration, to give bond and keep and file an account.</p> <p>4. Same — Transcript op Evidence.</p> <p>Evidence taken, before the interstate commerce commission is not a part of the record, and it is not necessary, in proceedings to enforce compliance with an order of the commission, to file in the circuit court, with-the petition, a transcript of the evidence. Either party, however, may introduce and use as evidence any testimony taken before the commission which is competent and relevant to the matters embraced in the iietition.</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 the United States National Bank of New York against the First National Bank of Little Bock, Ark., and S. R. Cockrill, its receiver, upon five notes indorsed by the Little Rock Bank. On the trial in the circuit court a verdict was directed for the defendants. Plaintiff brings error.</p> <p>This was an action which was brought by the plaintiff: in error, the United States National Bank of New York, against the First National Bank of Little Rock and Sterling R. Cockrill, its receiver, to enforce the liability of said First National Bank of Little Rock as an indorser of five promissory notes. For convenience the two banks above mentioned will be referred to hereafter as the “New York Bank” and the “Little Rock Bank.” Three of said notes were in the following form:</p> <p>“$5,000. Little Rock, Ark., Dec. 7th, 1892.</p> <p>“Four months after date we or either of us promise to pay to the order of 6. R. Brown and H. 6. Allis five thousand dollars, for value received, negotiable and payable, without defalcation or discount, at the First National Bank of Little Rock, Arkansas, with interest from maturity at the rate of ten per cent, per annum until paid. City Electric St. By. Co.</p> <p>“H. G. Bradford, Pt.”</p> <p>The three notes aforesaid, when received for discount by the New York Bank, bore the following indorsements:</p> <p>“George R. Brown.</p> <p>“H. G. Allis.</p> <p>“First National Bank, Little Rock, Ark.</p> <p>“H. G. Allis, Pt.”</p> <p>Two of said five notes were in the following form, except that one was made payable five months after date instead of four months after date:</p> <p>“$5,000. Little Rock, Ark., Dec. 7, 1892.</p> <p>“Four months after date we or either of us promise to pay to the order of James Joyce five thousand dollars, for value received, negotiable and payable, without defalcation or discount, at the First National Bank of .Little Rock, Arkansas, with interest from maturity at the rate of ten per cent, per annum until paid. McCarthy & Joyce Co.</p> <p>“Geo. Mandlebaum, Secty. & Treas.”</p> <p>The notes last aforesaid, when received for discount by the New York Bank, were indorsed as follows:</p> <p>“James Joyce.</p> <p>“H. G. Allis.</p> <p>“First National Bank, Little Rock, Ark.</p> <p>“H. G. Allis, Pt.”</p> <p>Business relations between the New York Bank and the Little Rock Bank were inaugurated in pursuance of the proposition contained in the following letter -written by the second assistant cashier of the New York Bank to the cashier of the Little Rock Bank, to wit:</p> <p>“New York, June 21, 1892.</p> <p>“W. C. Denny, Esq., Cashier, Little Rock, Ark. — Dear Sir: Can we not do business with your good bank? TVe should like to enroll your name upon our books, and we think the relation, if once established, could be made satisfactory to you in every particular, — at any rate, it would be our earnest endeavor to make it so. We will give you two per cent, on your daily balances, ■granting you our best collection facilities, taking all your foreign items east of the Mississippi river, and crediting them to your account immediately without charge. If you wiil send on $50,000 of your good, short-time, well-rated' bills receivable, we will be pleased to place them to your credit at four per cent. We are anxious to do business with your bank, having warmly and favorably known of it, and should be pleased to hear from you in reference to the above proposition.</p> <p>“Yours, very truly, J. W. Harriman, 2nd Asst. Cashier.”</p> <p>In response to said letter, negotiable paper to the amount of $50,728 was forwarded to the New York Bank to be discounted for and on account of the Little Rook Bank. The letter transmitting such paper was dated .Tune 24, 1802, and was signed by H. G. Allis, as president of the Little Rock Bank. This paper was all indorsed by the Little Rock Bank, and the proceeds of the discount were placed to the credit of that hank. On July 9, 1802, negotiable paper to the amount of $50,301.88, duly indorsed by the Little Rock Bank, was forwarded to the New York Bank for discount, and the same was discounted, and the proceeds were placed to the credit of the Little Rock Bank, at its request. Further transactions of the same kind took place between the two hanks on July 20, 1892, and on October 31, 1802. Between June 21 and November 25, 1892, paper to the amount of $175,476 appears to hare been thus discounted by the New York Bank for and in behalf of the‘Lltüc Rock Bank, all of which paper bore the indorsement of the latter bank. On November 25, 1892, the following1 letter was written by the Little Rock Bank:</p> <p>“The First National Bank of Little Rock, Ark., Nov. 25, 1892.</p> <p>“United States National Bank, New York City — Gentlemen: Kindly advise ns if yon can give us $25,000 more in discounts. We have not decided whether we will make further discounts this year, although it is more than probable that we will have to, as our cotton men do not want to soli at present. We believe the advance in price will cover shortage of crop, and that our collections will ho equal to those of last year. If our cotton men continue to hold their cotton, it will be necessary for us to make further rediscounts, and we want to know what we can do in ease -they refuse to sell. If you can grant us this favor, kindly let us'know what rate of interest you will want. Your immediate reply is requested.</p> <p>“Yours, very truly, W. G. Denny, Cashier.”</p> <p>The proposition contained in this letter was accepted by the Now York Bank on November 28, 1892, and on the 13tli day of December the following letter was written:</p> <p>“Little Rock, Ark., Dec. 13, 1892.</p> <p>“United States Nat. Bank, New York City — Gentlemen: In accordance with our letter of the 25th ult., and your reply of the 28th ult., we find that we shall need some more money, as our cotton men are not shipping out any cotton. It seems to be the inclination of all of them to hold for a better price, and we are now carrying $175,000 in demand loans on cotton, which we may have to carry two or three months longer. We inclose heroin paper as scheduled below. Kindly wire us proceeds to our credit, and oblige,</p> <p>“Yours, very truly, II. G. Allis, President.”</p> <p>Among the notes inclosed and scheduled in the foregoing letter of December 13, 1892, were the five notes now in suit and two other notes made by the Dickenson Hardware Company, the whole remittance amounting to $32,500. On the Kith day of December, 1892, the Little Rock Bank was duly notified by the New York Bank that the paper sent to it on December 13, 1892, had been received and discounted, and that the net proceeds thereof, amounting to $31,871.27. had been placed to its credit. The receipt of this notice was duly acknowledged by the Little Rock Bank by the following letter written by its cashier, to wit:</p> <p>“The First National Bank of Little Rock, Ark., December 20, 1892.</p> <p>“United ¡States National Bank, New York City — Gentlemen: We have your favor of the Kith Inst., inclosing the Dickenson Hardware Company note for completion, which we- herewith return. Wo charge your account with $31,-871.27, proceeds of $32,500.00 of discounts.</p> <p>“Yours, very truly, W. C. Denny, Cashier.”</p> <p>During the trial of the case it was shown that the five notes in suit, aggregating $25,000, had never passed the scrutiny of the discount board of the Little Rock Bank, and that they had never been entered upon the hooks of that bank as forming part of its bills receivable. It was further shown that as soon as the New York Bank had discounted the paper, and had given notice of that fact, the amount realized from the discount was placed to the credit of the individual account of H. G. Allis on the hooks of the Little Rock Bank, pursuant to the order of said Allis, given to the bank’s bookkeeper. Allis’ individual account was at the time overdrawn to the amount of some $10,000 or $11,000. The credit thus given canceled the overdraft. There was no evidence that the New York Bank had any knowledge of the facts last aforesaid. It -was shown, however, and the fact is undisputed, that the proceeds of the discount of the five notes in question were placed to the credit of the Little Rock Bank on the books of the New York Bank, and that they were subsequently drawn out on checks issued by the former bank.</p> <p>On the foregoing state of .facts the jutfy was directed to return a verdict in favor, of the defendants, which was accordingly done, and the plaintiff has sued out a writ of error.</p>

Proceedings by Wilson T. Keenan and others against the receiver of the Atchison, Topeka & Santa Fé Railroad Company, appointed in the suit against that road by the Union Trust Company of Kew York, to determine the legality of terminal charges made by the receiver.

This was an action by the St. Louis Electric Light & Power Company, assignee of one I). W. Guernsey, against the Edison General Electric Company to recover commissions alleged to be due under a contract. The case was sent to a referee and on the coming in of his report both parties filed exceptions.

<p>This was an action by James A. Cartel* against Wells, Fargo & Co. for damages for personal injuries. The jury gave a verdict for the plaintiff for one dollar. Plaintiff moves for a new trial.</p>

<p>Maintenance — What Constitutes — Assignment of Cause of Action.'</p> <p>One who, having an interest in the subject-matter of a suit, buys up the interest of the plaintiff pending suit, and thereafter prosecutes the suit himself, is' not guilty of maintenance. ...</p>