Volume 65 — Federal Reporter

<p>Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>Assumpsit by the Radford Brick Company against Samuel S. Chisholm, James A. Boyd, and Bruce C. White. Plaintiff obtained judgment.</p>

<p>This was a suit by Louis Hebert against Cyrus E. Brown and others to quiet title to certain lands. The cause was heard on the pleadings and proofs.</p>

<p>Agency — Fraud on Principal.</p> <p>Complainant was the owner of a quantity of land on which iron ore had been discovered. At the request and upon the representation of defendant that it would facilitate negotiations by him with certain capitalists for a lease of the mines to them, complainant executed to defendant a lease of certain lands, providing for certain royalties on all ore mined, in lieu of rent, and a contract was executed at the same time by both parties, by which defendant agreed, among other things, in consideration of the receipt by him of one-fifth of the net revenues derived by complainant from royalties, faithfully to manage said property, under complainant’s direction, for their mutual interests. The contract also provided that if defendant, without complainant’s consent,- used or transferred the lease, otherwise than to the capitalists with whom he was negotiating, he should thereby forfeit his one-fifth interest Defendant’s negotiations failed, and complainant then, at his request, consented to his leasing a part of the land to M. Instead of a part, defendant leased to M. the whole of the land, and immediately took back a lease to himself of the part as to which no permission to lease had been given by complainant. He then proceeded to lease parts of this land to sundry persons for mining purposes, receiving from them large sums in money and stocks, of all which complainant had no knowledge until long afterwards. Complainant subsequently confirmed in writing two of the leases made by defendant, but this was done with only a partial knowledge of defendant’s transactions. Held, that defendant was complainant’s agent, and not his lessee, and was accountable to complainant for all profits made by him out of his dealings with the property; and having violated the contract, and acted contrary to the interest of his principal, and for his own gain, he forfeited his one-fifth interest, and was not entitled to compensation for his services.</p>

TMs was an application by the receivers, heretofore appointed of the property of the defendant corporation, for instructions as to tbe disposition of certain funds in their bands.

Tbis was a suit by George S. Coe, as substituted trustee, against the East & West Railroad Company of Alabama and others, for the foreclosure of a mortgage. Frank Sullivan Smith, formerly solicitor for the defendants Eugene Kelly and John Byrne, filed'his intervening petition, asking to have his compensation fixed and the lien thereof declared. The petition was referred to F. S. Ferguson, as special master, who filed a report, to which exceptions were taken.

<p>Title to Land — Laches.</p> <p>In 3818 a. warrant for 160 acres of land was issued to It., the widow of a soldier in the Mexican war, and her minor children, of whom she was guardian. Id the same year, It., acting’ individually and as guardian of her children, bnt without first obtaining the leave of the orphans’ court, as required by statute, sold and assigned the warrant to one T., who located it, and in 1850 received a patent for the land, which subsequently became very valuable, and passed, by numerous mesne conveyances, into the hands of many holders, who made valuable improvements. The youngest child of It. attained majority In 1863. In 1892 the surviving children of It., and heirs of deceased children, brought this bill to establish their title to the land; alleging, as reasons for their delay, that they were ignorant, till 1889 of the Issue of the warrant, and that they were illiterate and inexperienced persons. Held, that as the plaintiffs were acquainted with the facts which, undci- tho law, entitled them to receive a land warrant on account of their father’s services, and as they are presumed to have known the law, and as slight attention to their lights would have disclosed the fact, many years prior to the filing of the suit, that, a land warrant had in fact been issued in their favor, and had been assigned and located, and as many innocent parties had expended their money on the land, and acquired interests therein, which they supposed to be valid, and which it would be inequitable to disturb, the delay of the plaintiffs amounted to such laches as would bar a suit for equitable relief. Held, further, that the plaintiffs could not plead ignorance of the right asserted as an excuse for years of delay in asserting it, inasmuch as it appeared that such ignorance was due to their own neglect, in failing to take any steps to secure a land warrant which they knew they wore entitled to. Held, further, that Ignorance of one’s rights will not serve ns an excuse in a court of equity for not bringing a suit to enforce them, when such ignorance Is fairly attributable to negligence, or to the party’s failure to make such inquiries with respect to his rights as, with the information at his command, he ought to have made.</p>

<p>1. Indian Lands — Allotments in Severalty — Leases.</p> <p>In 1803, tbe W. tribe of Indians Avas removed to a hoav reservation, pursuant to, an act of congress Avhicb provided that the secretary of the interior might allot lands in severalty to the individual members of tlie tribe, which should be vested in such indiA'iduals, and their heirs “without the right of alienation.” Some allotments were made under this act by patents containing this restriction. In 1887, another act of congress made further provision for allotment of lands to the Indians in severalty, such lands to be held in trust for the Indians and their heirs, by the United States, for 25 years, any conveyance of or contract touching-such lands being- declared absolutely null and void. The same act provided that Indians so receiAdng lands in seA^eralty should thereby become citizens of the United States, and entitled to all the rights of such citizens. A large amount of land Avas allotted under this act. The' F. Co., Avithout the sanction of the' commissioner of Indian affairs, obtained leases from the allottees of large quantities of these lands allotted under both acts. Upon learning this fact, the commissioner directed the Indian agent to notify such lessee that the leases were void, and Avonld not be recognized by tbe government, and that the lands must be vacated by a day certain, AA'liich the agent proceeded to- do. Held, that the citizenship bestoAved on the Indians Avas in no way inconsistent with the restriction upon their title to their lauds, and that the leases obtained by tbe F. Co. were utterly void.</p> <p>2. Equity Jurisdiction — Irreparable Injury.</p> <p>The F. Co. liaA'ing' obtained an injunction against tlie agent forever restraining him from disturbing it in its possession or use of tbe lands, held, further, that such injunction was erroneously issued, since the agent had done no more than to give notice, under the direction of his superiors, that the leases AArere void, which gave no ground for an appeal to equity, on the pretense that he was about to commit a wrongful act, Avliic-h would cause irreparable injury, and such injunction was, in any eA'ent, too broad.</p> <p>3. Same — Comino into Equity with Clean Hands.</p> <p>M eld, further, that as the F. Co. had eAddently embarked upon tbe business of securing tbe leases with knowledge of their illegality, and in reliance upon the difficulties the government Avould meet in getting- rid of them, a court of equity would not interfere, at tlie instance of such Avrongdoer, to restrain any action the government might take to vindicate its rights, but would leave it to1 seek damages at laAV for Aidiatever injury it might sustain.</p>

<p>'Appeal from Circuit Court of the United States for the District of Kansas.</p> <p>This was a suit by the Northwestern Mutual Life Insurance Company against Levi Wilson and Maria Wilson for the foreclosure of a mortgage. From an order confirming a master’s sale the defendants appeal.</p>

<p>This was an action by the St. Louis Dravage Company against tlie Louisville & Nashville Bailroad to recover damages for unjust discrimination. The case was heard by the court without a jury!</p> <p>This is an action for damages for unjust discrimination and undue preferences in contravention of public policy. Tlie case wa,s submitted to the court without the intervention of a. jury, with the understanding that the court would first determine the questions of law arising in the case, and, if the court should be of opinion that the plaintiff was entitled to recover, it would either hear further evidence on the amount of damages, or refer the matter to a referee. There are several counts in the petition, but, as they involve practically the same questions of law, it will be sufficient to state the substantive allegations of the first count.</p> <p>.The plaintiff is a corporation of the state of Illinois, engaged as a common carrier of freights in the city of St. Louis, Mo., and between said city, across the Mississippi river, and East St. Louis, in the state of Illinois. The defendant is a foreign railroad corporation, engaged in the business of. a common carrier, operating a line of railway from East St. Louis, 111., to various points into states south of the Ohio river. The St. Louis Transfer Company is a Missouri corporation, engaged in the business of a common carrier of freights over said Mississippi river, between the cities of St. Louis and East St. Louis, in the state of Illinois. The petition avers that, on east-bound freight delivered to defendant at East St. Louis by the St. Louis Transfer Company, the defendant pays to the transfer company its charges for hauling such freight from St. Louis to East St. Louis, and “absorbs” such charges in the tariff paid by the shipper, but, on freight.delivered to defendant by plaintiff under like circumstances, defendant refuses to pay plaintiff its dray-age to East St. Louis, but adds the same to the regular tariff rate, which is paid by the shipper. So that on goods hauled from St. Louis to Bast St. Louis the expense to the shipper is the regular tariff from Bast St. Louis, plus plaintiff’s drayage, whereas on goods hauled to East St. Louis by the transfer company, the cost to the shipper is only the regular tariff rate from East St. Louis, and vice versa, as to freight from East St. Louis into the city of St. Louis. The answer admits that on freight hauled to East St. Louis by plaintiff for shipment to certain territory, known as “competitive points,” the cost to the shipper is the regular tariff from East St. Louis, with plaintiff’s drayage charges added, but denies that such freight is hauled by plaintiff and delivered to defendant under like conditions and similar circumstances to that which is hauled by the St. Louis Transfer Company. The answer further avers that the reason defendant pays to said St. Louis Transfer Company its drayage on this particular class of shipments, and absorbs the same out of its through rate from St. Louis, is because it has, by contract, employed said transfer company to haul such freight, and because it has a contract with the shipper to transport said freight from St. Louis, Mo., to point of destination. The answer sets out this contract of March 1, 1881, made six years before the plaintiff began to do business, between it and the transfer company, the material parts of which contract are as follows: (1) Said transfer company agreed, first, to furnish necessary wagons for prompt transportation of all freight, etc., between defendant’s depot in East St. Louis and a depot to be furnished by said transfer company at its own cost, in St. Louis. (2) Said depot in St. Louis to be located satisfactory to defendant, and the expenses of all labor and clerical force at the depot in St. Louis to be borne by the transfer company; and the defendant was to furnish the necessary labor and clerical force to receive and deliver to said transfer company’s wagons at East St. Louis. The transfer company agreed to collect and pay over to ' defendant all freights and charges that may be due on freight received by it from defendant; to give notice of arrival of freight to consignee, and be accountable for freight in its possession as warehousemen; that its clerks and employes should be satisfactory to defendant, etc. In consideration of the premises, defendant agreed to pay the transfer company certain rates for transfer of said freights on all freights transferred between the depot of the St. Louis Transfer Company in St. Louisi and the defendant’s depot in East St. Louis, while the transfer company was authorized to make additional charge for freight hauled from other points in St. Louis to defendant’s depot in East St. Louis. Such additional charge to be collected from shipper. Said transfer company was to have the forwarding of freight from defendant’s railway consigned to points through and beyqnd St. Louis, xtrovided the same shall not have been contracted through to destination by defendant or its agents. Said transfer company is authorized to collect reasonable freight charges on freight remaining in its warehouse after 24 hours. Defendant agrees to employ said transfer company exclusively for such services described in said agreement. Said agreement to bo terminated by either party on 90 days’ notice in writing. On October 23,1893, said agreement was modified as to certain rates for transfer charges, hut the transfer company continued as the exclusive wagon transfer connection of defendant between St. Louis and East St. Louis, except on certain perishable freight, where defendant was authorized to pay not exceeding two cents per 100 pounds for the transfer of the samo; and it was further agreed that on business hauled by said transfer company from store doors or other points in the city 'of St. Louis, except the transfer company’s depot, the defendant would only pay to said transfer company two cents per 100 pounds, and said transfer company was to collect any further charges from the shipper. That the agreement, as modified, is now and has been in force since 1881. That in making the agreement, and continuing it in force, the defendant had no desire or intention to discriminate against plaintiff, hut, in good faith, to secure for itself aud its patrons adequate facilities for the safe and prompt transfer of freight between, its railway and the city of St. Louis. Defendant is thus enabled to charge all persons, equal aud alike, the actual rate as published in its tariff to and from St. Louis. The evidence quite satisfactorily sustains the allegations of the answer. It shows that the contract has been earned out between the defendant and the transfer company to the letter. In all instances where it is alleged the defendant has discriminated against plaintiff in the matter of absorbing drayage rates, or loading and unloading freights at East St. Louis, the shipments were made from St. Louis proper on through tariff rate, aud not from East St. Louis, as in tho case of shipments hauled by plaintiff to East St. Louis, and vice versa.</p>

Garnishment proceedings by C. D. Booth against Ed. Denike. For a defect in the affidavit for garnishment, J. L. S. Hunt, one of the original defendants, moves to quash the affidavit. Plaintiff moves to amend it.

<p>1. Master and Servant — Duty as to Safe Place.</p> <p>Though it is the duty of a master, in many eases, to exercise ordinary care in providing his servants with a reasonably safe place in which to discharge their several duties, he is not -required to provide a safe place, in cases where the very work upon which the servant is engaged is of a nature to make the place where it is done temporarily insecure, but in such cases the servant assumes- the increased hazard.</p> <p>3. Same — Risks of -Employment.</p> <p>Plaintiff, a section hand in the employ of defendant railway company, was engaged at night, with others, in tearing up and relaying a portion of the railway track which had been undermined by high water in a river near which it ran. While plaintiff and others were carrying a heavy rail, a part of the river bank near by caved in, which caused them to move forward hurriedly, when one of the men stumbled and fell. The others dropped the rail, which fell across a tie, causing one end to fly up and strike and injure plaintiff. Plaintiff claimed that defendant was negligent in not providing sufficient light, and in allowing the ground to be encumbered with the obstruction over which his fellow workmen stumbled. Held that, under the circumstances of the work to be done, defendant was not bound to supply a place free from obstructions, to do the work, and that plaintiff assumed the risks attendant upon the obstructed condition of the ground, as well as upon any deficiency of light, which must have been at least as well known to plaintiff as to defendant.</p>

<p>1. Evidence — Breach oe Guaranty oe Capacity oe Mill.</p> <p>The A. Co., millwrights, made a contract with the C. Mill Co. to construct an addition to its flour mill, the contract containing a guaranty that the enlarged mill should “have á daily working capacity of production of 400 barrels in excess of present capacity under equal conditions, and shall produce a barrel of flour of all grades, from not more than 4 M/00 bushels of a mixture of y3 No. 1 hard, y3 No. 1 Northern, and % No. 2 Northern grades of spring milling wheat. The percentage of production of patent flour to be not less than 75 per cent., and equal to. Pillsbury’s Best of present quality.” After the completion of the work, a controversy arose as to the fulfillment of the guaranty. Eeld, that the C. Mill Co., in proving a failure to comply with its terms, was not restricted to evidence of a test of the mill on some particular occasion, with a mixture of wheat exactly such as described in the guaranty, but that evidence of the total output of the mill during a period of 57 days after the enlargement was both competent and material to show either the extent of the increased capacity of the mill or its ability to produce the stipulated grade of flour in the stipulated proportion, the mill having been supplied during such time with a considerable quantity of the particular mixture of wheat referred to in the guaranty, and with other kinds well suited to test its capacity and the grade of its production.</p> <p>2. Expert Testimony — Rental Value..</p> <p>An expert witness, called to testify as to the rental value of a mill, after giving his opinion as to the rental value, stated, on cross-examination, that in forming his estimate he had taken into account the amount of production, cost of production, and probable rate of net profits, and that mill owners, in estimating the rental value of such property, were accustomed to consider its earning capacity. Held, that his opinion as to rental value was not rendered incompetent as authorizing a recovery for net profits by the statement made on cross-examination.</p>

<p>Bills and Notes — Negotiability.'</p> <p>The statute of South Dakota defining negotiable instruments provides that “a negotiable instrument is a written promise or request for the payment of a certain sum of money to order or bearer; * * * must be made payable in money only, and without any condition not certain of fulfillment; * * * must not contain any other contract than such as is specified in this article.” Held thiit, by virtue of the statute, a note drawn and made payable in South- Dakota, “with exchange and costs of collection,” was not a negotiable note.</p>

<p>This was an indictment against Charles B. Barrett and others for conspiracy to defraud by the use of the mails. Trial by jury.</p>

<p>1. Bail Bond — Effect, When Invalid.</p> <p>An invalid bail bond is not binding on either principal or sureties.</p> <p>2. Same — Validity.</p> <p>To make a bail bond valid, it must be taken by competent legal authority; it must be in correct legal form. To make it a good and sufficient bail bond the sureties must be sufficient.</p> <p>8. Same — Power of Justice of Supreme Court.</p> <p>Mr. Justice White could not, under paragraph 2, rule 36, of the supreme court of the United States (11 Sup. Ct. iv.), make the order made by him in this case, for he was neither a circuit or district court of the circuit and district where Hudson was tried, nor a justice or judge thereof. Under the order of the supreme court allotting the judges thereof, he was a justice of the supreme court for the Fifth, and not for the' Eighth, circuit. As such, he could not, under paragraph 2, rule 36, of the supreme court, make an order admitting Hudson to bail.</p> <p>4. Same — Conviction of 'Felony — Effect of Appeal.</p> <p>By section 5, establishing a court of appeals (26 Stat. 827), any one convicted of a capital or infamous crime may take, by writ of error or appeal, his case to the supreme court of the United States. The statute made no provision for bail of party convicted after conviction and sentence, pending appeal or writ of error. No statute of the United States is broad enough to authorize bail in such a case after conviction and sentence.</p> <p>5. Same.</p> <p>Bail was not allowed by the common law after conviction and sentence.</p> <p>6. Same.</p> <p>Bail is a great right, which is 'secured by law. To secure it, under the laws of the United States, requires a statute guarantying it.</p> <p>7. Same — Rule of Supreme Court.</p> <p>On May 11, 1891, the supreme court made the following rule, known as paragraph 2, rule 36: “Where such writ of error is allowed in cases of conviction of infamous crimes, or in any other criminal case in which it will lie under sections 5 and 6, the circuit court or district court,' or any justice or judge thereof, shall have power, after the citation is served, to admit the accused to bail in such sum as may be fixed.” The supreme court could not make this rule, as the common law does not give the right to say that bail shall be allowed after conviction and sentence, pending an appeal or writ of error. No statute of the United States expressly or impliedly provides it may do so. It cannot do so under its power to make and establish all necessary rules for the orderly conduct of business in the court, and to prescribe the mode and form of proceeding so as to attain the object for which jurisdiction was given in all cases where congress has not legislated, for business may be conducted in .an orderly way, and the object for which jurisdiction was given may be fully attained, whether the party is in jail or on bond.</p> <p>8. Same — Statutory Authority.</p> <p>Bail is a right that belongs to a party, because the law secures it to him, and a court cannot grant it without authority to do so by law.</p> <p>9. Same.</p> <p>The supreme court having no power to make paragraph 2, rule 36, any bond taken under such rule is void, and the principal and sureties are not bound by it.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law — Testimony of Accomplice.</p> <p>It is proper for tbe judge, upon tbe trial of a person, indicted for a criminal offense in a court of the United States sitting in a state the statutes of which forbid the conviction of a defendant upon the uncorroborated testimony of an accomplice, to instruct the jury that they cannot find the defendant guilty upon such testimony.</p> <p>2. Same — Corroboration.</p> <p>In determining whether or not the testimony of an accomplice is corroborated by independent testimony, the fact that a witness, who gives testimony claimed to be corroborative, is himself charged with a similar offense, does not destroy the corroborative effect of his testimony, if he was not. concerned in the particular offense with which the defendant stands charged.</p>

<p>Bill by the United States against the American Bell Telephone Company and others, to cancel certain letters patent. Decree for plaintiffs.</p>

<p>This was a hill by the Buffington’s Iron-Building Company against William H. Eustis for alleged infringement of a patent.</p>

<p>This was a suit in equity by the Cutter Electrical & Manufacturing Company against Henry A. Cleverly, Frank Stevens, and Samuel Walsh for alleged infringement of a patent.</p>

This was a suit in equity by the Heaton-Peninsular Button Fastener Company against William Booney, for alleged infringement of a patent. Complainant moved for a preliminary injunction.

<p>Patents — Injunction.</p>

<p>Patents — Novelty—Infringement.</p>

This was a bill by the Westinghouse Air-Brake Company against the New York Air-Brake Company for infringement of patent. Complainant moved for a preliminary injunction.

This was a libel by William Burrill and others against William H. Grossman and others to enforce a lien for demurrage. The case was heard as to the effect of a clause in the bill of lading providing that the charterers’ responsibility should cease upon the loading of tlje vessel and the signing of the hills of lading; also upon exceptions to the rest of the answer, as constituting an insufficient defense.

This was a libel by the Black Diamond Coal Company against the steam tug Katie O’Néil, Patrick O’Neil, claimant. The tug was sold and a surplus remained in the registry of the court. The Pacific Marine Supply Company and William J. Brady file petitions against such surplus.

This was a libel by A. H. Johnson against the steamer Hattie Bell. Z. C. Wood and others intervened, and petitioned for the rearrest of the vessel, and her condemnation in satisfaction of their claims, as set forth in their libel, under which the vessel had been previously arrested, and discharged upon bond.

These were interventions by Burckhardt Bros, and others to secure payment of various claims out of the proceeds of the Haytian Republic, which was heretofore adjudged to be forfeited to the United States for smuggling. See 57 Fed. 508; 8 C. G. A. 182, 59 Fed. 476; and 14 Sup. Ct. 992.

This was a libel by the owners of the schooner Mabel Jordan against the steamship Illinois for damages for collision. The Illinois brought in the tug Gladisfen as co-respondent.

<p>This was a libel in rem by Berral C. Dinniny, Jr., against the steamboat Sam Sloan, to recover for damages sustained by collision.</p>

<p>Action by ¡John T. Powers against the Chesapeake & Ohio Railway Company. Heard on motion to remand to state court.</p> <p>This is a motion to remand a cause removed from the circuit court of Kenton county, Ky. On April 14, 1808, the plaintiff, Powers, a citizen of Kentucky, filed his petition in the Kenton circuit court against the Chesapeake & Ohio Railway Company and David T. Evans, alleging that the defendant railway company ivas a citizen of Virginia, and that Evans was a resident of Kenton county, Ky., and that both defendants were jointly guilty of negligence in the operation of a train on the Chesapeake & Ohio Railroad, which resulted in severe injuries to the plaintiff, for which he asked damages against both in the sum of $23,000. On April 29th, before an answer or plea was required to be filed under the laws and practice of Kentucky, each defendant filed a petition to remove the cause to this com-t on the ground that both defendants were citizens of Virginia, while the plaintiff was a citizen of Kentucky. The plaintiff, by answer to the petition for removal, raised an issue of fact as to the citizenship of Evans, alleging- that he was a citizen of Kentucky, and moved to remand the case. This court found that Evans was a citizen of Virginia, and denied the motion. The plaintiff, thereupon, on May 17, 1893, dismissed his action in this court, and filed a new petition on the same cause of action in the Kenton circuit court, in which he made defendants, not only the Chesapeake & Ohio Railway Company and Evans, but also William D. Boyer and Edward Hickey. The petition alleged that the plaintiff was a switchman in the employ of'the Chesapeake & Ohio Railway Company; that, while engaged in throwing a switch at night, he was run down by an engine of the company, and severely injured; that the engine was running backwards, drawing a caboose; and that the accident occurred and the injuries were inflicted because of the joint, gross, and wanton negligence of the railway company and Boyer, the. conductor, Evans, the engineer, and Hickey, the fireman, the last three of whom had possession, direction, and control of the engiue and caboose, as agents of the company. Damages were asked in the sum of $25,000. Before it was required by the law of Kentucky to answer or plead, the Chesapeake & Ohio Railway Company filed a petition for removal to this court, which, after generally describing the suit and the amount involved, proceeded as follows: “That there is in said suit a controversy which is wholly between citizens of different states, and which can be fully determined as between them, to wit, between your petitioner, the Chesapeake & Ohio Railway Company, defendant in said suit, who avers that it was at the commencement of this suit, and still is, a corporation organized under the laws of the states of Virginia and West Virginia, and of no other state, and that it was then, and still is, a citizen and resident of the states of Virginia and West Virginia, and of no other state; that it was not then, and is not now, a resident or citizen of the state of Kentucky — and the plaintiff, John T. Powers, who was at the commencement of this suit, and still is, a resident and citizen of the state of Kentucky. Your petitioner further says that the said defendants Wm. D. Boyer, David Evans, and Edward Hickey are fraudulently and improperly joined as parties defendants for the sole purpose of defeating the right of petitioner to remove to the United States circuit court.” Bond was given, and the caxrse was removed. Plaintiff answered the petition for removal in this court, denied that the controversy was wholly between citizens of different states, and denied that the three defendants, Boyer, Evans, and I-Iickey, had been fraudulently or improperly joined to defeat then- codefendant’s “pretended right of removal.” It being admitted that Boyer and Hickey were citizens of Kentucky, this court granted the motion to remand, holding that as xriaintiff’s petition stated a good cause of action against Boyer, Evans, and Hickey, the plaintiff had the right to unite them as defendants with the railway company, even if it was done with the intention of defeating the jurisdiction of the federal court; that when a tort was committed by several, the injured person had an election to sue one or all, and the motives for the election could not be made a ground for treating as a separable.cause of action against a single defendant that which the plaintiff had chosen to treat as a joint one; that in a federal court the x>etition,, as against the Chesapeake & Ohio Railway Company, -was xn'obably demurrable, but it was riot so against the other defendants, and because a removing defendant had a good defense, in law or fact, to a joint action, it did not thereby become, with respect to such defendant, a separable controversy. The cause proceeded to issue in the state court, and on October 10, 1894, the plaintiff discontinued his'cause as to all the defendants exeexot the Chesapeake & Ohio Railway Company. The defendant at once filed a petition for removal to this court, and tendered a bond. The plaintiff objected, and the court denied the i>etition, and declined to axoprove the bond, “but not for lack of sufficiency thereof.” The cause then proceeded in the state court to trial, verdict, and judgment for plaintiff in the sum of $10,000. The defendant filed the transcript of the proceedings in this court before the first day of this term, — the next after the denial of the second petition for removal by the state eom't. That petition was like the first, except in the following clauses: “Your petitioner further says that in the bringing of this suit heretofore, on the-day of-, 189-, David Evans and Edward Hickey were fraudulently and improperly joined as xoarties defendant in the above-entitled cause for the sole purpose of defeating the right of your petitioner to remove this cause to the United States circuit court; that, because of the joinder of the said Evans and Hickey, said cause was remanded to the state eom’t. Your x>etitioner says that the suit, as to said Evans and Hickey, was on the 16th day of October, 1894, dismissed; that the said cause is now for the first time pending as to the said Chesapeake & Ohio Railway Company alone.” Plaintiff filed an answer to the x>etitlon in this court, and also a motion to remand- The answer denies that the defendants other than the Chesaxoeake & Ohio Railway were fraudulently or improperly joined to defeat the latter’s alleged right of removal. In support of the petition for removal; the defendant has filed the affidavits of Evans and Boyer, stating that the discontinuance, as to them, was made by plaintiff without consideration moving from them, and without their request or knowledge. The record shows that Hickey was never served with summons.</p>

<p>Action by Eugene Hukill, administrator of L. A. Hukill, deceased, against the Chesapeake & Ohio Railway Company, for the death of plain riff’s intestate, commenced in the state court of Kentucky, and removed by defendant to the circuit court of the United States. Plaintiff moves to remand.</p> <p>Tliis is a motion to remand. Oil May 1G, 1894, Eugene Hukill, as administrator of E. A. Hulcill, deceased, tiled his petition against the Maysville & Big Bandy Railroad Company, the Chesapeake & Ohio Railway Company, O. E. Acra, George W. Shumate, Henry Thien, and John Schappart. Tile petition averred that the Maysville & Big Sandy Railroad Company owned a railroad extending into the city of Covington, Ivy.; that this road was leased by the Chesapeake & Ohio Railway Company without legislative or other authority, and tlun the Chesapeake & Ohio Railway Company was operating tlie road at the time the death of the plaintiff’s intestate occurred; that the plaintiff’s intestate was in the employ of the Chesapeake & Ohio Railway Company, as one of the crew of a switching locomotive engine in the yard of the company at Covington; that, while engaged in operating a train of cars in Tlie yard of the said company, he was struck by a hoard projecting from the roof of a car upon another train of the said company, which, through the gross and wain on negligence of all the defendants, had been permitted to project in such a way as to make it very dangerous; that the plaintiff’s intestate was thereby thrown under the train of cars upon which he was, and was run over, and soon after died from the injuries thus received; that the projecting hoard was part; of the roof of the car from which it projected, and that all the defendants, with joint, gross, and wanton negligence, permitted tlie defect in tlie car to remain; that tlie defendants Acra, Bhumate, Tliien, and Schappart were at all times in said railroad yard, and were servants of the Chesapeake & Ohio Railway Company, and were employed hy it as car inspectors and repairers; that they had inspected the ear before the accident to the deceased, but, through their joint, gross, and wanton negligence, had failed 1o repair the same. The cases were set for hearing in tlie town of Independence, in the county of Kenton, Ky. All the defendants, except the Maysville & Big Bandy Railroad Ooniiiany, moved to transfer tlie cause to Covington. Before the motion was ruled upon, the plaintiff, of his own motion, discontinued the action, as against all the defendants but tlie Chesapeake & Ohio Railway Company. Tlie demurrer and motion to transfer to Covington were then each overruled. The defendant the Chesapeake & Oiiio Railway Company thereupon filed a petition and tendered a bond for tlie removal to the circuit court of the United States, at Covington. The court declined to grant the removal or accept any bond, but not for any lack of sufficiency thereof. To tills ruling tlie defendant excepted. The petition for removal was in the words following: “Your petitioner, tlie Chesapeake & Ohio Railway Company, shows tlun- it is tlie defendant in tlie above suit; that tlie matter and amount in disintió in the above-entitled action, exclusive of interest and costs, exceed (lie sum or value of two thousand ($2,000) dollars; that tlie said suit is a civil action, to recover tlie sum of----dollars, seeking to recover damages for wrongfully causing the death of L. A. Hukill, at Covington, Kentucky, on or about the--day of-, by reason of allowing a defect in a certain car in (he custody of the Chesapeake & Ohio Railway Company, by which said B. A. Hukill was struck, and knocked from a car upon which he was riding, and was thereby killed; (hat there is in said suit a controversy wholly between citizens of different stales, and which can be fully determined as between them, to wit, between your petitioner, the Chesapeake & Ohio Railway Company, the defendant in said suit, who says that it was at the commencement of this suit, and still is. a corporation organized under the laws of the states of Virginia and West Virginia, and of no other state, and that it was then, and still is, a citizen and resident, of the states of Virginia and West Virginia, and of no other state; that it was not then, and. is not now, either a resident or citizen of the state of Kentucky, — and the plaintiff, L. A. Hukill’s administrator, Eugene Hukill, was at the commencement of this suit, and still is, a resident and citizen of the state of Kentucky. Tour petitioner further says that in the bringing of this suit heretofore, on the-day of-, 189-, C. E. Acra, George W. Shumate, Henry Thien, John Schappart, and the Maysville & Big Sandy Railroad Company were fraudulently and improperly joined as parties defendant in the above-entitled cause, for the sole purpose of defeating the right of your petitioner to a removal of this cause to the circuit court of the United States; that because of the joinder of said C. E. Acra, George W. Shumate, Henry Thien, John Schappart, and the Maysville & Big Sandy Railroad Company, said cause was not heretofore removed to the circuit court of the United States within the time originally allowed by law; and that the aforesaid parties, on the 16th day of October, 1894, were dismissed, and said cause is now pending for the first time as to the said Chesapeake & Ohio Railroad Company alone. And your petitioner offers herewith a bond, with good and sufficient surety, conditioned according to law, for its entering in the circuit court of the United States for the dis-. trict of Kentucky, being the proper district, on the first day of its next session, a copy of the records in this suit, and for paying all costs that may be awarded by said court if said court shall hold that this suit is wrongfully and improperly removed thereto; and your petitioner prays this honorable court to proceed no further herein, except to make the order of removal required by law, and to accept such surety bond, and to cause the record herein to be removed to the said circuit court of the United States for the district of Kentucky, and he will ever pray.”</p> <p>At the next term of this court after the petition for removal was filed in the state court, a transcript of the record was filed in this court; and a motion has now been made to remand the case, by the plaintiff, on the ground that the.petition for removal was not filed within the time required by statute. The answer day fixed by the Kentucky law is admitted to be 20 days after the filing of the petition, and it is conceded by the petition for removal itself that the petition was not filed within this time. Plaintiff filed an answer to the petition for removal, denying that there is a controversy wholly between citizens of different states, and denying that the other defendants were fraudulently joined with the Chesapeake & Ohio Railway Company to prevent its removal of the case to this court. Affidavits have been filed by defendant m support of his petition for removal, showing that the Chesapeake & Ohio Railway Company is, and always has been, a citizen of Virginia and West Virginia, and not of Kentucky, and that the plaintiff and the other defendants Were citizens of Kentucky when suit was brought. The affidavits also set forth a part of the speech of plaintiff’s counsel made to the jury in the trial in the state court, in which he, in effect, stated that the reason for his joinder and dismissal of the resident defendants was to avoid a trial in this court.</p>

<p>This was an action by H. C. Shepherd against the Bradstreet Company and Harry Eoloff, for libel. The action was brought in a court of the state of Missouri, and was removed by the defendant the .Bradstreet Company to the United States circuit court.</p>

<p>1. Removal of Causes — Local Prejudice — Amount in Controversy.</p> <p>The record presented upon an application for removal of a cause from a state to a United States court, on the ground of local prejudice, in order to authorize the latter court to assume jurisdiction, must show that the amount in controversy exceeds §2,000.</p> <p>3. Same — Waiver of Objections.</p> <p>A plaintiff whose cause has been removed from a state to a United States court, and who fails to prosecute a motion to remand, thereby waives all objections to the removal which he is competent to waive, including the objection that the showing of local prejudice was not sufficient, in a case where the removal was on that ground.</p> <p>8. Same — Order of Removal. •</p> <p>An entry in the record of the circuit court, upon an application for removal of a canse from a state court, on the ground of local prejudice, which is in form simply a finding of the right to removal, without an order that the cause be removed, does not effect the removal of the cause.</p> <p>4. Same — Waiver.</p> <p>Whether, when such an entry is brought to the attention of the state court, and it thereupon treats the cause as removed, and the plaintiff follows it to the United States court, and proceeds therein without objection, the defect is not thereby waived, quaere.</p>

<p>This was an action by Peter B. Yermilya against Mary Brown. It was commenced in a court of the state of New York by the issue and levy of an attachment and service on the defendant out of that state. Defendant removed the cause to this court, and now moves to vacate the attachment, set aside the service of summons, and dismiss the action, appearing specially for that purpose.</p> <p>This was a motion to vacate a warrant of attachment, to set aside service of summons without the state, and to dismiss the action. The action was originally brought in the state court, and a warrant of attachment issued September 11,1894, against the property of the defendant, on the ground that she was a nonresident. Immediately thereafter, notice of tbe attachment was filed in the office of the county clerk, whereby, under section 649 of the New York Code of Civil Procedure, a levy was made upon certain real estate of the defendant situated in New York City. On October 9, 1894, an order was entered authorizing service of the summons upon defendant by publication, or without the state, and personal service without the state was made pursuant to that order. Under the law of the state, when a defendant is thus served, and he does not voluntarily axfpear, any judgment which may be obtained against him in the action can be enforced only against tlie property which has been levied upon by virtue of tlie warrant of attachment. Code Civ. Proc. N. Y. § 707. Subsequent to service, and on October 20, 1894, a petition and bond was presented to tlie state court for removal of tlie cause to this court, and on October 30th tlie record was duly filed here. There has been no personal service of the summons within the jurisdiction of this court or of the state court. The defendant resides in and is a citizen of New Jersey. Her appearance in obtaining tlie removal was special, and for that purpose alone. Her appearance now is special, and for the purpose of this motion only.</p>

<p>Circuit Court — -Jurisdictional Amount — Pleading.</p> <p>St. .1881, giving the right to commence suit, in a trade-mark case, without alleging the amount in controversy, is not repealed by the statutes of 1887 and 1888, requiring the amount involved to be §2,000, to give the circuit court jurisdiction.</p>

This was a suit by Henry Sanford, Clarence Seward, and Levi C. Weir against D. McM. Gregg, auditor general of the commonwealth of Pennsylvania, to restrain the assessment of a tax. The circuit court rendered a decree for the complainants. Defendant appeals.

This was a suit by Pullman Palace-Oar Company against the Central Transportation Company, and a cross bill by the latter company against the former. The cause was heard on pleadings and proofs.

<p>1. Fire Insurance — Interest or Insured.</p> <p>Provisions in policies, of insurance to the effect that the policies shall be void if the interest of the insured is not the sole and unconditional ownership of the property described in the policies, or if that interest is not truly stated to the companies or in the policies, or the indorsements thereon, constitute a complete defense to actions by the sole stockholders of a corporation upon the policies issued to themselves, as owners, upon property owned by the corporation.</p> <p>3 Same — Interest or Mortgagee — Union Mortgage Clause.</p> <p>The effect of the “union mortgage clause,” providing, among other things, that the insurance, as to the interest of the mortgagee, shall not be invalidated by any act or neglect of the mortgagor, nor by any change in title or possession, provided the mortgagee shall notify the company of any change coming to the mortgagee’s knowledge, and that when the company shall pay the mortgagee for a loss, and claim that no liability existed as to tbe mortgagor, it shall be subrogated to all rights of the mortgagee under securities held, when such clause is attached to an existing policy of insurance running to the mortgagor, is to make a new and separate contract between the mortgagee and the insurance company, and to effect a separate insurance of the interest of the mortgagee, dependent for its validity solely upon the course of action of the insurance company and the mortgagee, and unaffected, by any act or neglect of the mortgagor, of which the mortgagee is ignorant, whether such act or' neglect was done or permitted prior or subsequent to the issue of the mortgage clause.</p>

This was an action by Samuel AT. Melick, as administrator of the estate of Leonard II. Robbins, deceased, against the Travelers’ Insurance Company, of Hartford, upon a policy of insurance. Upon the trial in the circuit, court, a verdict was rendered for the plaintiff'.

<p>In Error to tbe Circuit Court of tbe United States for tbe District of Nebraska.</p> <p>Tbis was an action by Michael H. Madden against tbe county of Lancaster, Neb., for personal injuries. Alter a verdict for tbe plaintiff in tbe circuit court, that court rendered judgment for tbe defendant on tbe pleadings.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Illinois.</p> <p>Action on the case by William M. Mansberger against the Terre Haute & Indianapolis Railroad Company. Plaintiff obtained judgment.</p>

<p>1. Joint Debtors — Release of Part — Kansas Statute.</p> <p>Under paragraph 1102, Gen. St. Kan. 1889, providing that “any person jointly * * * liable with others for the payment of any debt * * * may be released * * * by the creditor and such release shall not discharge the other debtors beyond the proper proportion of the debt for which the person released was liable,” a release of one or more out of several joint judgment debtors, by a compromise agreement, -operates as a proportional satisfaction of the judgment, which can thereafter only be enforced against the remaining judgment debtors to the extent of their fractional proportion of the judgment.</p> <p>2. Same.</p> <p>And although the instrument of release refers also to another statute under which it is made, which statute, separately considered, makes the release operate as a satisfaction pro tanto of the joint judgment, yet this release should not be so restricted, not only because it also refers to the other statute, first above named, but especially because of the fact that the instrument declares on its face that it shall operate as a satisfaction “to the extent of the proportionate share of such judgment.”</p>

Suit by Oliver T. Morton, clerk of the United States court of appeals for the Seventh district, against the United States, for fees and… Held: the office. (2) Prom the beginning of his term of office, as aforesaid, down to January 1, 1893, he received, by way of costs and fees as such clerk, over and above necessary clerk hire and incidental office expenses, which were paid out of the costs and fees earned and received during said, period, the sum of §371.20, and no more.

<p>1. Obstructing the Mails — Indictment—Felony.</p> <p>An indictment for obstructing the mails need not allege that the act was done feloniously, since obstructing the mails was not a felony at common law. U. S. v. Staats, 8 How- 41, followed.</p> <p>2. Same.</p> <p>But it must allege that it was done knowingly, willfully, or unlawfully.</p> <p>3. Same.</p> <p>Such indictment, which charges the defendants with certain overt acts of retarding mail trains, in pursuance of a conspiracy to retard the. mails, need not charge them with having known at the time that the trains carried the mails.</p> <p>4. Same.</p> <p>Where such indictment alleges that defendants retarded the trains by turning switches and overturning cars upon the track, it need not allege that these acts were not done in the exercise of any lawful right, since they are presumably illegal.</p> <p>5. Same — Conspiracy—Duplicity.</p> <p>Where the indictment charges a conspiracy to obstruct the mails, and overt acts in pursuance thereof, it is not restricted to a single overt act, since the gist of the offense is the conspiracy, which is a single offense.</p>

<p>1. Federal Courts — Comity Between Circuits — Following Circuit Courts of Appeals.</p> <p>It is the duty of a circuit court, notwithstanding the rule of comity, to follow a decision of the circuit court of appeals for its own circuit, rather than a contrary decision of a circuit court in a different circuit.</p> <p>& Patents — Duration of Right — Estoppel.</p> <p>The action of the patentee and assignee of the Edison incandescent carbon filament vacuum lamp patent (No. 223,898), in procuring a “correction” of the patent; making it expire with foreign patent, which correction was beyond the jurisdiction of the patent office, did not operate to estop them from claiming that the patent was in force for the full term of its life, as originally fixed. Edison Electric Light Co. v. United States Electric Lighting Co., 3 C. C. A. 83, 52 Fed. 300, followed.</p> <p>8. Same — Stipulation Permitting Sale of Infringing Article — Use by Purchasers.</p> <p>In a suit for infringement of the Edison incandescent electric light patent (No. 223,89S), a stipulation was made providing for an injunction, but containing a provision that the defendants should not be charged with contempt thereunder “for selling or otherwise distributing to the trade” a certain lamp known as the “Buckeye.” Held that, as purchasers from such defendants could not be charged with notice of restrictions upon resale, Buckeye lamps sold by them were removed from the monopoly of the patent, and third persons using them could not be enjoined.</p> <p>4. Same — Preliminary Injunction.</p> <p>And, further, the use of Buckeye lamps, not purchased from such dealers, should not, in the first instance, be prevented by preliminary injunc- ' tion, since they could be replaced, by lamps of the same kind bought from such dealers; and to require this would be to impose a hardship upon defendant without any advantage to the complainant.</p>

<p>1. Patents for, Inventions — Action for Infringement — Jurisdiction.</p> <p>The jurisdiction of a federal court, invoked by filing a bill for infringement of letters patent, is not defeated by a plea of license, which admits the use and validity of the patent. White v. Rankin, 12 Sup. Ct. 768, 144 P. S. 628, followed.</p> <p>2. Same — License—Judicial Sale — Partnership.</p> <p>Where one of the assets of a firm is a license to use during the life of the partnership a patent belonging to one of (he copartners, the purchaser of the firm assets at a judicial sale takes no right to use such patent, oven though the tools and patterns used for making the patented articles are included in the sale.</p> <p>3. Equity Practice — Plea—Equity Rule 33.</p> <p>Under equity rule 33, which provides that “if upon an issue the facts stated in a plea are determined for tlio defendant they shall avail him as far as in law and equity they ought to avail him,” the decision of tlie cause does not depend wholly upon the truth of the allegations of the plea, but tlie complainant may avoid it by proof of other facts.</p>

This was a bill by the L. Schreiber & Sons Company against Ignaz Grim and Philip Seibert for infringement of a patent for support's for casks and barrels.

This was a suit iu equity by David A. Ritchie against Benjamin P. Obdyke and W. Austin Obdyke for infringement of a patent for a “sheet-metal expansible elbow.”

This was a bill by David A. Ritchie against Benjamin P. Obdyke and Austin W. Obdyke for infringement of a patent. The circuit court held the patient void for want of invention (see 65 Fed. 222), and complainant appealed.

. Libel in rem for balance of wages as ship keeper of a vessel in her home port, and not engaged in navigation, present or prospective. Libel dismissed, the service rendered not being maritime.

<p>1. Admiralty Practice — Filing Libel before Maturity of Claim — Costs. C., on September 15th, filed a libel against the cargo of his steam barge for freight Such cargo was not discharged or delivered to the consignee until September 17th, at which lime, only, the freight became due. On September 16th two attachments wore issued from a state court in suits against C., and served upon the consignee of the cargo, as garnishee. On September 17th the consignee gave bond, and took possession of the cargo. Judgment having been subsequently entered in the state court against the consignee in the garnishment proceedings, the freight money was paid by it upon such judgment, and this fact sot up by supplemental answer in the admiralty suit. The district court, dismissed the libel. Held, that the jurisdiction of the district court for enforcement of the lien for freight was not impaired by the fact that delivery had not been perfected when the libel was brought, nor was that fact ground for a dismissal of the libel, under the practice in admiralty, but only affected the imposition of costs.</p> <p>2. Admiralty — Federal and State Courts — Jurisdiction.</p> <p>Held, further, that, the jurisdiction of the admiralty court over the res having attached upon the filing of the libel and seizure under the monition, the subsequent attachment and garnishee proceedings in the state court were an infringement of such jurisdiction, were vain, nugatory, and void, so far as concerned the libel in the district court, and should have been disregarded.</p> <p>3, Same — Equitable Defense.</p> <p>Held, further, that as either the fact that no freight was due at the time of the levy of the attachment from the state court, or the fact that the admiralty jurisdiction had already attached, and excluded the jurisdiction of the state court, would have been a complete defense to the consignee, if 'properly presented. in the garnishment proceedings, its payment of the freight in those proceedings raised no equity in its favor to prevent the prosecution of his libel by C.</p>

<p>Stjbplijs Moneys — Mobtgagee—Nonlien Claims Disallowed,</p> <p>Claims ior insurance premiums and for moneys advanced to disburse ships in a foreign port, and to keep the vessels of the lino running, in so far as they are not maritime liens, cannot be paid out of surplus moneys in the registry arising from a sale of tho vessels, in priority to the claims of a mortgagee of the vessels, (1) because such claims are neither legal nor equitable liens upon the vessels or their proceeds; (2) the allowance of certain unsecured labor and supply claims in priority to the mortgagee’s claims, in cases of railway receiverships, are not analogous or applicable; petitions for the payment of such claims were accordingly dismissed.</p>

<p>Salvage — Towage—Broken Shaft — JHaeter Act, Feb. 13, 1893.</p> <p>The steamship Parkmore, on a voyage from Baltimore to Liverpool, with a cargo in part of cattle, took in tow the steamship Florence, which had broken her main shaft, and towed her to New York, a distance of about 140 miles; actual time of towage 33 hours, the sea being rough, and the Parkmore’s hawser once broken. The detention of the Park-more was between four and five days. The value of the Parkmore and cargo was $460,000, and of the Florence and cargo, $240,000:. Held (1) that $8,500 was a suitable award for the salvage service besides the sum of $1,845.42 for extra expenses; (2) that the provisions of the Harter act of February 13, 1893 (2 Supp. Rev. St. 81), authorizing deviation for salvage without liability to cargo, require less consideration to be given than formerly to the amount of cargo of the salving vessel in fixing the award.</p>

<p>Collision — Unbuoyed Anchor — Displacement op.</p> <p>Upon plaintiffs’ claim that liis boat ran upon an unbuoyed anchor in the nighttime which was out of position through the imbedding of the anchor chain so as to mislead the libelants’ pilot as to its position: Held, (1) no buoy necessary upon anchors in ordinary anchorage ground; (2> evidence insufficient to prove displacement of the anchor as leading to the collision.</p>

<p>In Admiralty. Loss of tow. Petition to limit liability.</p>

<p>In Admiralty. Collision.</p>

Tliis was a suit, by the Central Trust Company of New York against the Charlotte, Columbia & Augusta Railroad Company and others for the foreclosure of a morí gage. After a sale of the road, Joseph H. Bouknight intervened, asking payment of a judgment against the railroad company.

<p>Railroad Foreclosure — Claims Entitled to Preference — Rent of Leased Lines.</p> <p>The L. R. Co. was leased to the C. R. Co., which undertook to pay, as rent, the coupons on certain bonds of the L. R. Co. The lease created no lien on the property of the lessee company for the rent. After the making of the lease, the C. R. Co. mortgaged its road, to secure an issue of bonds. Suit was afterwards brought to foreclose this mortgage, and a receiver of the property of the C. R. Co. appointed, at a time when that company was in default in payment of certain coupons of the L. R. Co., and during such default had paid certain coupons on its own bonds, secured by the mortgage. The receiver refused to operate the leased line, and did not také possession thereof. The C. R. Co. having been sold, a holder of bonds of the L. R. Co. applied for payment, out of the purchase money, of the coupons which were due when the C. R. Co. went into the hands of the receiver. jHeld, that such coupons, as rent of the leased road, did not form part of the operating expenses of the road, and were not entitled to priority over the lien of the mortgage.</p>

<p>Suit by tbe New York Security & Trust Company against tbe Lombard. Investment Company and others. Heard on tbe petition in intervention of Leslie C. Perree.</p> <p>This cause is submitted upon an agreed statement of facts, the substance of which is about .as follows: The Lombard Investment Company, at its office in Kansas City, Mo., took from one Donaldson two debenture bonds, of date February 1, 1889, payable to David H. Ettien, as trustee, — one for the sum of $2,000, and the other for $9,000; the $2,000 bond running three years, and the $9,000 bond running five years, — with interest coupons attached, payable semiannually, secured by a deed of trust on real estate situated in Kansas City, Mo. These bonds the Lombard Investment Company transferred by indorsement on the 4th day of February, 1889, to Daniel Bushnell, of Pittsburgh, Pa., with a guaranty of payment of the coupons at their maturity, and also to collect at its expense, and pay over, the principal, at maturity, provided the same was paid by the maker, and, in default of payment by the maker, to collect and pay over within two years from the maturity of the principal sum. Accompanying this transfer, the company also assigned the deed of trust to said Bushnell. On the 1st day of May, 1S89, the said company made an indenture agreement with Benjamin Lombard, Jr., James L. Lombard, and H. W. L. Bussell, as trustees, which set out that the said company, desiring to issue and sell its debentures, “secured by pledge of real-estate mortgages and other evidence of indebtedness, secured by real estate,” the said trustees were designated to hold the collateral securities of said company, “to be held by the said trustees in trust for the benefit of the purchasers of said debentures.” This indenture contained the following provisions: “Whereupon said trustees shall indorse their certificate of such fact upon debentures, not exceeding $1,000 for every $1,050 of securities so transferred to them. Each series of debentures shall be wholly independent of any other series in the matter of securities, and said trustees shall not certify or countersign any debentures for which they do not hold at least five per cent, of securities of real estate in excess of the bonds so countersigned. It is understood and agreed that, when securities or real estate shall be placed in the hands of the trustees under this trust as collateral for debentures, the company may have the right to withdraw such securities or real estate, and substitute in its stead other securities or real estate which, in the opinion of the company, have equal value. It is agreed that, whenever the said Lombard Investment Company shall produce and surrender any of the debentures which have been countersigned by said trustees, the said trustees, when requested by the company so to do, shall redeliver a pro rata share of the securities pledged for the payment of said series, whereupon the debentures so surrendered shall be canceled.” Neither the interest coupons nor the principal of said bonds were paid by the mortgagor; but, as the coupons matured, they were paid by the Lombard Investment Company, out of its funds, at its branch office in the city of Philadelphia, although, by the terms of the bond, the principal and interest were made payable at its office in Kansas City, Mo. At the maturity of the first bond for $2,000, the Lombard Investment Company likewise paid the principal sum to the executor of the estate of said Bushnell, he having in the meantime died. Nothing1 was said by either party, at the time of these payments, as to whether or not the money came from the mortgagor, — nor did Bushnell nor the executor know that the moneys so paid were advanced by the Lombard Investment Company; but, at the time of the payment of said first-named bond of $2,000, the executor made the following indorsement thereon: “Pay to the order of --, without recourse. Joseph Bushnell, Executor of the Estate of Daniel Bushnell, Deceased,” — and delivered the said bond to said company. Thereafter the said company, pursuant to the provisions of the said arrangement with said trustees, presented the same to said trustees, and substituted it for a corresponding amount in value of other securities held by the said trustees. What particular security of like value the company thus withdrew from the custody of the trustees is not known. This $2,000 note has ever since remained with the trustees, as aforesaid. At the time of the transactions aforesaid, the said trustees were directors and managing officers of the Lombard Investment Company. In June, 1892, said Bussell resigned as trustee, and A. D. Eider was appointed his successor, and acted until September 15, 1893, when he resigned, and Sanford B. Ladd was appointed his successor. On the day last aforesaid, said Benjamin Lombard, Jr., also resigned as trustee, and Frank Hagerman was appointed his successor, and said James L. Lombard continued to act as such trustee. Neither said Hagerman and Ladd nor any of the debenture holders had any knowledge of the facts of the manner of the payment of said $2,000 bond and coupons to the assignee thereof, or the manner of placing said bond with said trustees as aforesaid, until after'the appointment of receivers for said investment company, which appointment was made on the 18th day of September, 1893. The said Lombard Investment Company also paid out of its own money the interest coupons on the $9,000 note, which has ever since the transfer remained the property of said Bushnell and his estate; the interest on said $9,000 note being paid to August, 1893. The said company and the maker of said notes are wholly insolvent, and the property covered by the deed of trust is now worth not exceeding the sum of $9,750. The said executor of Bushnell has paid out for insurance and taxes on said property, according to the provisions of the deed of trust, various sums of money stated in the agreed statement of facts. The intervener, Leslie C. Ferree, has qualified as administrator of Daniel Bushnell in the probate court of Jackson county, Mo., as ancillary to the executorship in the state of Pennsylvania. The last note, of $9,000, and interest thereon since August, 1893, remaining past due and unpaid, the said administrator, Ferree, presents his petition to this court, setting out in substance the facts aforesaid, and asks this court for a determination in advance of a foreclosure sale under said deed of trust as to the respective priorities of the said receivers and the said estate in the proceeds to arise under such foreclosure sale.</p>

This was a creditors’ bill by Marshall Meld and others against, the Hastings & Bradley Company and others. The defendants having answered, the complainants except to the answers for impertinence and insufficiency.

This was a suit by Emanuel Rothschild and others against J. J. Hasbrouck, M. O. Barnes, and others to set aside certain conveyances, as in fraud of creditors. Defendant Barnes filed two pleas-in abatement, to which plaintiffs except.

<p>1. Fire Insurance — Proofs of Loss — Builder’s Certificate.</p> <p>A policy of fire insurance contained a clause requiring the Insured, witbin 30 days after a fire, to furnish preliininary proofs of loss, containing certain information about the risk, and another clause requiring, if the claim of loss was for a building, that the insured should procure and attach to the preliminary proofs of loss a duly verified certificate of a builder as to the actual cash value of the building immediately before the fire. EM, that this requirement was sufficiently complied with by the insured procuring from a responsible firm of builders an itemized estimate of the cost of rebuilding the burned building, signed by them as architects and builders, but not sworn to, and attached to the preliminary-proofs of loss more than 30 days after the fire.</p> <p>2. Same — Working of Carpenters.</p> <p>The policy also contained a clause that the working of carpenters in building, altering or repairing the premises, would vitiate the policy. Held, that the policy was not avoided, under this clause, by the fact that, on the day before the tire, a carpenter, under instructions to make certain alterations, had gone upon tlio premises and removed two small pieces of stair rail, no actual connection appearing between the fire and the carpenter’s presence or work.</p>

This was an action by the Jackson Iron Company against the Negannee Concentrating Company to recover installments of money claimed to he due upon a contract. The action helow was begun in the circuit court for the county of Marquette, Mich., and was duly removed to the court below on the ground of diverse citizenship. The controversy in this case arose out of two contracts.

<p>NEGLIGENCE — STIPULATIONS AGATNfST LIABILITY.</p> <p>A railway company organized a relief department among its employes, for tbe purpose of giving pecuniary aid to those who might be injured or sick. Tlie funds of said department were provided by contributions from tlie members, tbe company agreeing to make up any deficiency which might occur in any year. The rates of contribution by the members were such that a deficiency would seldom occur, and in fact was a very rare occurrence. In the application for membership in the relief department and in the eonixact of insurance a. clause was inserted providing that, in consideration of the payments by the company, tbe acceptance of benefits by a. member should operate as a release of all claims for damages against the company. Plaintiff, who was a member of tlie relief department, received injuries in consequence of tlie negligence of tlie railway company, and thereafter accepted benefits as a member of the relief department Held, üiat plaintiff’s right of action against the railway company to recover damages for such injury was not barred by ihe acceptance of such benefits.</p>

<p>Indictment for breaking and entering a post office, and committing a larceny therein.</p>

This was a motion made by the district attorney for the removal of ail the commissioners of the circuit court within the Western district of North Carolina.

<p>1. Maritime Lien — Repairs — Wrongful Diversion of Check in Payment-Disregarded.</p> <p>An agent for two different lines of steamers wrongfully directed á chock from one line to be applied by a material man in payment of a claim against the other line. On discovery of the fact several weeks afterwards, the credit; was transferred to the proper convpany. Held, that the original lien was not affected by the temporary wrongful credit, or by the receipt in payment given thereon.</p> <p>2. State Receiver — Subsequent Libel — Arrest before Receiver’s Possession.</p> <p>After the appointment and qualification of a receiver appointed by the state court, a libel was fled to enforce a lien for repairs, and the vessel was arrested by the marshal before any person representing the receiver had taken actual possession of the vessel, or given notice of the receivership to the master thereof, or to any person on board, and before either had notice of the receivership. Held, that the arrest by the marshal was valid.</p>

<p>Equity Pleading — Sufficiency of Plea — Suit for Infringement of Patent.</p> <p>A plea to a bill for infringement alleged that complainants, before securing the patent, “became and were fully advised” that the alleged inventor could not carry back his invention beyond a given date, and that an examiner in the patent office had found, “as was the fact,” that the invention had been described in previous publications. Held, that the plea was bad, because it failed to allege directly that the inventor could not carry back Ms invention beyond the date named, and that the invention had been described in previous publications, but ivas couched in such language that a traverse would only deny that complainants “were advised,” etc., and that the “examiner found,” etc.</p>

This was a suit by the Santa Ana Water Company against the town of San Buenaventura and others for the enforcement of a contract. A demurrer to the bill was overruled. 56 Fed. 389. The defendants answered, and the cause is now heard on the pleadings and proofs.

<p>1. Public Lands — Town-Site Patent — Offer at Auction.</p> <p>Offer of public lands for sale at auction is not a condition precedent to their being patented for a town site.</p> <p>2. Same — Attacking Patent.</p> <p>A patent for a town sito cannot be attacked by one whose rights, if any, in the land, attached after issue of the patent, on the ground that the land was theretofore known to he mineral land, but it can be assailed only in a direct proceeding by the United States.</p> <p>8. Placer Mining Rights — Quieting Title.</p> <p>One having a placer mining right, which can only be acquired in public land, can maintain suit to quiet title, if at all, only as to his limited interest.</p>

This was a suit by the Central Trust Company of New York against the East Tennessee, Virginia & Georgia Railway Company for the foreclosure of a mortgage. M. L. Meredith filed an intervening petition praying for an allowance of damages against the receivers appointed in the suit. The petition was referred to a special master, to whose report the intervener filed exceptions.

These were two suits by William P. Clyde and others aud the Central Trust Company, respectively, against the Richmond & Dan-ville Railroad Company for the foreclosure of mortgages. John S. Hissong filed an intervening petition praying for judgment upon a judgment obtained by him against the defendant in Alabama. The petition was referred to a master, who filed his report granting the prayer. The defendant excepts to the master’s report.

<p>t. Principal and Agent — Fraud op Agent — Notice to Principal.</p> <p>D., as agent of R., held $50,000 of her money to invest. He was also treasurer of the C. Co., and, as such, held certain bonds of that company, apportioned by vote of the company among the stockholders, without consideration, and deliverable to them on payment of their stock notes, including $0,000 of such bonds attached to a stock note of his own. D., a few days before his note matured, wrongfully, and without the consent of any officer of the company, took the bonds from his note, and caused one M., an irresponsible person, in consideration of a payment to him of $25, to make a note to D., “trustee,” for $3,200, and attach $4,000 of the bonds to it as collateral, upon which note D. advanced, ostensibly to M., but really to himself, $3,200 of R.’s money, with which he paid his stock note. D. afterwards, in settling his account with R., turned over to her the note, without indorsement, and the bonds attached to it as collateral. Held, that R. was not chargeable with notice of the facts which D. knew as to the issue of the bonds, since, though her agent, he was, in this transaction, engaged in an attempt to deceive and defraud her, for his own advantage.</p> <p>2. Bonds — Bona Fide Holder — Collateral Security.</p> <p>Held, further, that R. was a bona fide holder of the bonds, for value, that she held the legal title thereto, and that she was entitled to the security of the mortgage by which the bonds were secured, to the extent of the principal and Interest of the note, notwithstanding any equities of the company arising out of their illegal issue.</p> <p>8. Collateral Security — Title.</p> <p>The pledgee of negotiable paper indorsed to him (or delivered to him, if it be payable to bearer) before maturity, and without notice to him of any defect of title, as collateral security for the loan of money, is entitled to hold such paper, to the extent of his loan, with the same immunities as an ordinary holder of commercial paper taken by purchase in good faith, for value, and before maturity; and it is not material whether the evidence of the principal debt be in negotiable form or not.</p>

This was a suit by Joseph P. Lloyd.and James B. Hawes, trustees, against the Chesapeake, Ohio & Southwestern Railroad Company for the foreclosure of a second mortgage. Plaintiffs move for directions to the receivers in possession of the road to pay interest on the first mortgage bonds. December 28, 1893, O. P. Huntington, upon a bill and amended bill filed by him against the Chesapeake, Ohio & Southwestern Railroad Company, obtained appointment of receivers.

Foreclosure suits by W. S. Davis against the Chattanooga Union Railway Company and others, and by the Farmers’ Loan & Trust Company against such railroad company and others. Heard on such part of the petition of H. W. Bartol and others as charged C. D. Clark and Foster Y. Brown, doing business as attorneys under the firm name of Clark & Brown, with unprofessional conduct.

<p>This was an action by William H. Morton against Knox county upon a county warrant for the payment of $4,497.41. The defendant, in its answer, set np the general statute of limitations. Plaintiff demurs to the answer.</p>

This was an action by.J. Hairston Seawall and others against ■J. M. Klever and Edmund Klever for the recovery of an undivided interest in certain lands, for mesne profits, and for partition. Jndgment was entered for the plaintiffs, by default, for the recovery of the land and the mesne profits, and for partition to be made by commission.

<p>This was an action by Icelia E. Davis against Charles A. Davis, Jr., and others, executors of Charles A. Davis, Sr., deceased. The defendants demurred to the declaration.</p>

<p>Injury to Brakeman — Fellow Servants.</p> <p>Injury to a brakeman of a train, while coupling the front ear to the engine, by the backing, without warning, of the yard engine against the rear of the train, under the orders of the train master, through the conductor of the train, to the yard master, to take cars out of the train which had got in it by mistake, is an injury occasioned by the negligence of fellow servants, for which, therefore, the railroad is not liable, as, even if the train master is not a fellow servant, his order is proper, and the negligent execution of it is the cause of the injury.</p>

<p>Action by Lulu Kirtley and others against the Chicago, Milwaukee & St. Paul Railway Company.</p> <p>Plaintiffs sue for the death of their father. lie was killed while walking on one of the defendant’s double tracks within the city of Kansas, by a single engine, moving with the tender forward. The accident occurred on a fail-day, between 9 and 10 o’clock in the morning, ata place whore the deceased had an unobstructed view, both before and behind him, of more than a thousand feet along the track. He was walking westward, and on 1he north one of The two tracks. The north track was used by trains going westward, and the other by those moving in an opposite direction. The deceased had been traversing the south track, until, a few feet before he was struck, he discovered the train approaching him, and he turned from off that, and moved towards tile north track. Whether he got upon it further than 1 lie south rail does not: distinctly and decisively appear, .lust at this time alarm whistles were given hy the engine (which was approaching him from the rear, and by which ho was struck) a few feet distant from him, which he did not seem to heed, and hence was immediately struck and killed. There is no evidence that the engineer actually saw the deceased until tlie alarm whistles were given, when it. was then too late to avert the accident. The tracks at tlie point of (he accident were' on an elevated embankment, and were not intersected by any streets which crossed them at the level. There was testimony tending to show that it was somewhat the common practice for pedestrians to occupy these tracks in going from one point to another in the city. The jury were directed to find a verdict for the defendant, whereupon the plaintiffs took a nonsuit, and now move to sot it: aside.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Ohio.</p> <p>This was an action by J. Hairston Seawall and others against J. M. Klever and Edmund Klever to recover an undivided interest in certain lands, the demand for relief also joining a prayer for partition of the premises. A judgment was rendered for the plaintiffs for the relief demanded. Defendants brought error. The circuit court of appeals affirmed the judgment as to the recovery of the land claimed and mesne profits, but directed further argument as to the power of the circuit court to entertain the proceeding for partition on its law side. 65 Fed. 373.</p>

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

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Southern District of Ohio.</p>

Action By Elbert I). Weed against the United States lor services rendered as United States attorney for the district of Montana. Heard on demurrer to the petition.

<p>Criminal Law — Indictment—Several Counts.</p> <p>An indictment for having counterfeit money in possession may charge the offense in several separate counts, each alleging the possession of a different denomination of coin.</p>

<p>This was an indictment against John II. Durland for using the mails to promote a fraudulent scheme to obtain money.</p>

<p>Customs Duties — Music Boxes.</p> <p>Music boxes, small in size, of inferior quality, playing less than six tunes, not musically accurate, wound up with a key permanently affixed to the outside of the box, easily operated by a child, and costing 8.35 francs or less each, are dutiable as loys, under paragraph 430 of the tariff act of October 1, 1890.</p>

<p>Customs Duties — Lithographic Prints.</p> <p>Articles consisting of lithographic prints, pasted upon sheets of paper which project beyond the prints, and are embossed so as to form frames, such frames being of more value than the prints, are dutiable as “articles produced in part by lithographic process,” under paragraph 420 of the tariff apt (of October 1, 1890.</p>

<p>Customs Duties — Classification—Astrachan Trimmings.</p> <p>Certain articles, commercially known as “Astrachan trimmings,” were woven on a loom, and consisted of a foundation of cotton and a long, curled pile, composed of goat hair, wkicli was of chief value, the material being woven in strips, which were afterwards cut apart, and the sides stitched under, suitable to be made up into dress trimmings. Held-, that ' this merchandise was properly classified for customs duty as “manufactures of goat hair and cotton as trimmings,” at 60 cents per pound and 60 per cent, ad valorem, under paragraph 398 of the tariff act of October 1, 1890, and not as manufactures of wool, worsted, or mohair, according to value, under paragraph 392 of the same tariff act.</p>

<p>At Law. Appeál by importers from a decision of the board of United States general appraisers.</p> <p>The importers contended that there was no such thing known in trade as a “dry paint,” and that the article in suit was a color, and not a paint.</p> <p>The assistant United States attorney quoted the term “paints, dry,” from prior tariff acts, and contended that congress had used the words in legislation for 40 years, and, whether technically correct or not, traders knew what it meant in the market. • Twine Co. v. Worthington, 141 U. S. 4G8, 471, 12 Sup. Ct 55.</p>

<p>At Law. Appeal by the importers from a decision of the board of United States general appraisers sustaining the classification and assessment of duties made by the collector of the port of New York upon certain sulphotoluic acid imported into the United States during the month of June, 1892? which was classified for duly, as a “coal-tar preparation,” at 20 per cent, ad valorem, under Schedule A, par. 19, of the tariff act of October 1, 1890, which is as follows: “19. All preparations of coal-tar, not colors or dyes, not specially provided for in this act, twenty per centum ad valorem.” Against this classification the importers protested, claiming that the merchandise was duty free, as an acid used for manufacturing purposes, under paragraph 4.73 of the free list of the same tariff act, which reads as follows: “473. Acids used for medicinal, chemical, or manufacturing-purposes, not specially provided for in this act.” The local appraisers reported to the collector that the article was “a preparation of coal tar; also an organic acid.” No testimony was taken before the board of general appraisers, who made their decision in the case, finding, among other things, that the merchandise was an organic acid, its peculiar and dominant element derived from coal tar; that it is a coal-tar preparation, not a color or dye, its chief use being in the construction of coal-tar dyes by combining with a base; that approximating 60 per cent, of coal-tar colors or dyes and coal-tar preparations are acids. The protest of the importers was overruled, and the collector affirmed. The case being appealed into the circuit court, the importers proceeded to take further evidence in that court before a referee, which evidence tended to show that this sulphotoluic acid was in reality a coal-tar preparation, being a remote derivative from coal tar. In re Roessler & TL Chemical Co., 49 Fed. 272; Id., 4 C. C. A. 1, 56 Fed. 481. It was abundantly proved that this acid was used in the manufacture of coal-tar colors or dyes, and that such use constituted a recombination chemically of the acid in the production of such colors or dyes; also that there was no other commercial use for this acid. In behalf of the United States evidence was introduced showing that there were a very large number of acids known and extensively used commercially at the time of the passage of the tariff act which were not preparations of coal tar, nor in any way derived from that material; such as sulphuric acid, nitric acid, hydrochloric acid, and a large number of others. On the trial it was contended in behalf of the government that the provision for coal-tar preparations in paragraph 19 was more specific as applied to this particular article than the provision in the free list for acids used for manufacturing purposes.</p>

Hearing on bill, answer, and proofs. This was a suit in equity, charging infringement of certain trade-mark rights alleged to belong to the complainant. As originally filed, the bill of complaint also charged infringement of a certain patent. By amendment, all reference to the patent and charge of infringement thereof were subsequently withdrawn.

<p>This was a suit by the Clinton Wire-Cloth Company against the Wright & Colton Wire-Cloth Company for infringement of certain patents.</p>

<p>1. Patents — Extent of Monoroi.y — Unforeseen Results.</p> <p>An inventor is entitled to all the legitimate results of the invention covered by his patent, including even those which were not foreseen by him.</p> <p>2. Same — Infringement—Immaterial Variations.</p> <p>Changes of form do not avoid infringement when the two devices do the same thing in substantially the same way, and accomplish the same result.</p> <p>3. Same — Water Meters.</p> <p>The Nash patent, No. 379,805, for an improvement in water meters, held valid, and infringed as to claims 15 and 17.</p>

<p>This was a libel by Frank W. Munn, managing owner of the tugboats Philadelphia and Alert, against the dredge Columbus and four scows, for towage. The cause was heard on an agreed statement of facts:</p> <p>“It is hereby agreed that the above case shall be heard finally upon the following facts, reserving the right to either party to appeal: The libelant is part owner and managing owner of the tugs Philadelphia and Alert. In the year 1891, James A. Mundy & Go. entered into a contract with the United States for the removal of Windmill and other islands in the Delaware river, opposite Philadelphia, and for the deposit of the material removed therefrom upon League island. To carry out this work, Jamos A. Mundy and others organized under the laws of the state of New Jersey a corporation known as the Philadelphia Dredging Company, and this dredging company, or James A. Mundy and others associated with him, purchased and secured a dredging plant, — i. e. a number of dredges, scows, and towboats, — to be used in the same opera! ion of dredging for the prosecution of the work in the removal of these islands. This plant was made up of two dredging plants, one known as the ‘Philadelphia plant’ and the other as the ‘Thompson plant.’ The Philadelphia dredging plant consisted of the dredge Start) uck and three bottom-dumping scows, Nos. 13, 14, and 15. The Thompson plant consisted of the dredges Columbus, America, and Norwalk, and the tug Bowen, and the scows Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12. These two plants were used and oxjerated as one by 1he Philadelphia Dredging Company. The dredges above mentioned were anchored at the islands which were to he removed, and as the earth was excavated it was deposited upon the scows by the dredges in the manner usual in dredging operations. By the contract with the United States government the material excavated from the islands was required to be deposited upon League island, at a distance of about six miles from the scene of the dredging operation; and to receive the excavated material the above-mentioned scows were employed. They were bottom-dumping scows, constructed in the usual manner, and lacked any facilities whatever for propulsion, either steam or sail, or for steering, and it therefore became necessary to supply additional tugboats to tow The loaded scows down the river to League island and the empty scows back to the dredges to ho refilled. In 1892 the Philadelphia Dredging Coinqiany, or James A. Mundy and those operating and owning the said plants, entered into an arrangement with libelant for the towage of the scows from the dredges to League island and hack, and for such moving of the dredges as might be necessary, and agreed to pay the sum of $26 per day for the tug Philadelphia and $30 x>er day for the tug Alert. During the months of July and August, 1892, the tug Philadelphia rendered said towage service properly for1 30 days, during November 26 days, and during December 20 days, for which the sum of $2,054 became due to libelant. During July, 1892, tlie tug Alert rendered said towage services properly for 4 nights at $30 per night, and 4% hours’ time at $4 per hour, for which the sum of $138 became due to libelant. The dredges above named were not, supxdied wiib any mud pockets, or dumps, except the said scows, and had no means of proxmlsion, and, in order to be used as dredges, were required to be operated in conjunction with one or more scows, as was done in this case, to receive the mud dredged, and were required to he advanced or moved from time to time as the dredging work progressed. The dredges excavated the earth and deposited it on the bottom-dumping scows. After the scows were loaded, they were, either singly, or, more usually, In a tow consisting of several, towed down the river to League island, and were there 'dumped over the receiver of the mud pump, the light scows being towed back to the dredge to he reloaded, the round trip occupying about three-quarters of a day. The said towage services were necessary to enable the work of dredging to be carried on, as without the use of the scows to carry the excavated material the dredges would have been useless for tills work, and the scows would have been of no use for this work without the services of the dredge's. The scows bore no name, but were known by numbers only. When brought hack empty, the various scows were towed to the dredges, to he filled, in accordance with the directions of the superintendents In charge of the dredging work. No itemized account of the towing of the dredges or of each scow to and from each dredge or the towage of the dredges was kept by the ■tugs. This suit was brought by libelant against the dredges Columbus. America, and Starbuck, and the scows Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12. 13, and 14, and of these the marshal attached the dredge Columbus and scows 6, 8, 11, and 12. The dredges and scows against which the suit was brought were the only ones within the jurisdiction of the court at that time.”</p>

This was a suit by John W. Schofield, receiver of the Albuquerque National Bank of New Mexico, against the Horse Springs Cattle Company, W. B. Slaughter, and D. O. Kyle. A decree pro confesso was entered against all the defendants. Defendant Kyle moves to set the same aside, and for leave to defend.

This was a suit by Fannie L. Henderson against the Travelers’ Insurance Company to reform a contract of insurance. The cause was heard on the pleadings and proofs.

<p>Appeal from the Circuit Court of the United States for the TSTorthera Disk-ict of Illinois.</p> <p>The only appellee concerned in this appeal is the Calumet & Chicago Canal & Dock Company, hereinafter called the “Dock Company.” On February 12. 1884, the appellant, as the assignee in bankruptcy of Henry Wisner, filed this bill against George H. Waite and 20 others; and on March 26, 1888, by amendment, made the dock company a party defendant, alleging that it claimed Title to the S. 12. fractional (south of the Calumet river) of section 25, township 37 N. of range 14 E. of the third P. M., and also the S. E. fractional % of the N. 12. fractional 14 (south of the Calumet river) oí the same section, township, and range, all in Cook county, in the state of Illinois. The object of the bill is to set aside a deed of tills property from the bankrupt to me John N. Wisner, his brother, bearing date January 8, 1878; and also a ■sale and conveyance of the same property made by John P. Wilson, as trustee, April 14, 1881, under the powers contained in a trust deed executed by the bankrupt and one Waite, to secure the purchase price of the land. The prayer is that the deed from the bankrupt to Wisner, as well as the conveyance by Wilson, may be set aside as clouds on appellant’s title as assignee, and that, if any equitable rights exist under the trust deed, they may be defined and declared. The dock company, by its answer, claims title to the property as an innocent purchaser for value by mesne conveyances from John N. Wisner, and from Thomas R. Wilson and George L. Thatcher, the purchasers at the trustee’s sale; and it also claims the benefit of section 5057, Rev. St. U. S., as a limitation which bars an a,ction by an assignee in bankruptcy alter two years. The facts, so far as needful to an understanding of the questions involved, are as follows:</p> <p>By a special warranty deed dated July 8, 1874, delivered and recorded July 13, 1874, James L. Campbell conveyed the land in question to Henry Wisner, the bankrupt, and to George H. Waite. Wisner and Y/aite gave notes amounting to $12,000, constituting the principal part of the purchase money, bearing 4 per cent, interest, all of which notes, by their terms, fell due within throe years from date; and contemporaneously an agreement was made, and referred to in the notes, to the effect that the notes should not be payable until certain clouds upon the title to the land should be removed, the agreement reciting that Campbell had already filed a bill to remove them. At the same time Wisner and Waite executed to John P. Wilson, as trustee, a trust deed to secure the payment of the notes according to their tenor. The deed did not refer to the contract shown by these notes, but contained express authority to sell the property upon default of payment, unless certain unfilled blanks therein defeated the power. The blank spaces for the time during which it was to be advertised before sale and the number of the advertisements to be made were not filled, and the record of the deed showed these blanks unfilled. On July 17,1874, Waite quitclaimed to Henry Wisner his interest in the land by a deed which was recorded the next day, and it now appears that he took a contract from Wisner, providing that he should be entitled to a certain portion of the profits which might be derived from a sale of the land; but this contract was not recorded until August 18, 1883, which was after the dock company obtained title, to the land. On July 12, 1875, a decree was entered in the Campbell suit, under the burnt record act, which, read in connection with certain deeds from Rucker to the Brighton Company, and from Forsythe to Wisner, appearing in the record, it is claimed, removed all clouds from the title. On January 8,1878, Henry Wisner and wife executed to John N. Wisner a special warranty deed of the property in question, which was recorded February 28, 1880. On August 31, 1878, Henry Wisner filed his petition in voluntary bankruptcy, and scheduled this property, stating the value as unknown, subject to the incumbrance of the trust deed. The other assets scheduled consisted of land similarly situated. His unsecured indebtedness was scheduled at various small sums, amounting to about $1,200, and his indebtedness to his brother, John N. “Wisner, was scheduled at about $5,000. Of this indebtedness only one note, amounting to $111.15, was afterwards proved up, except that his brother proved up his debt to the amount of $11,932. On December 3, 1879, Henry Wisner was adjudged a bankrupt, and the complainant was appointed his assignee, and the usual deed was made to him, which has never been recorded. On June 10, 1880, Wisner was discharged from bankruptcy. On April 14, 1881, Wilson, as trustee, having advertised the sale of the property under the terms of the trust deed for the period of 30 days, sold it at public auction, for the amount due upon the notes (about $29,500), to Thomas R. Wilson and George L. Thatcher, and executed to them a deed, which was recorded on July 20, 1881. Thatcher shortly after conveyed his interest to Thomas R. Wilson. On July 16, 1881, William B. Howard purchased the property in question from John’N. Wisner, and received a deed, which was immediately put upon record. Howard paid, on the day of the delivery of the deed, for this title, and for some claims of Gilbert Wyman. $8,000. The amount paid Wisner and Wyman was $4,000 to each. On July 22, 1881, Howard purchased the title acquired under the trust deed from Thomas R. Wilson, and paid him in cash $21,750, receiving a deed which was ptit upon record the following day. On February 1, 1882, by a deed recorded February 20,1882, Howard conveyed the land in question to the dock company, which paid therefor, and for other land embraced in the same deed, $200,442.50, and this entire consideration was paid in full by June 28, 18S2. The Seed from Howard to the dock company was recorded December 15, 1883. In March, 1882, the complainant brought a suit similar to the present one in the court below, but the dock company was not made a party to it. No process was issued and served on that bill, and on July 5, 1883, it was dismissed for want of prosecution. So much of the bill as is material to show the grounds relied on by complainant is as follows:</p> <p>“And your orator alleges upon information and belief: That at the time of filing of said petition the said bankrupt was the absolute owner of the property, subject to one certain incumbrance and one outstanding claim of title under an unrecorded deed. That the outstanding unrecorded deed above referred to was a special warranty deed, purporting to be signed' by the said bankrupt, dated the 8th day of January, 1878, and recorded in Book 611 of Records of Cook County, Illinois, on page 535, on the 28th day of. February, 1880, by which deed the bankrupt pretended to convey the said property to one John N. Wisner, his brother. But your orator alleges that the said John N. Wisner took no -title to said property, and acquired no rights therein, by virtue of said deed, as against your orator as the representatives of the credit-«rs of said bankrupt; that ho never took possession of said property; and that, therefore, your orator became invested with the title to said property, subject only to the said trust deed to said John P. Wilson. And your orator alleges that the said trust deed to said John P. Wilson, and the other conveyances made thereunder by him and Ms grantees, and the said deed from said bankrupt to the said John N. Wisner and Ms grantees, constitute such clouds and stigmas upon your orator’s title that he has been wholly unable, and is now unable, to sell said property for any material consideration whatsoever, and that, if such clouds are removed, he believes he can sell at once such property for enough to pay all the costs of the said bankruptcy proceeding, and to pay every creditor of the bankrupt in full. And your orator further prays that the said deed from the said bankrupt to the said John N. Wisner, and all deeds and conveyances by him or his grantees to any of the parties hereto, may be set aside and annulled and declared and decreed to be clouds upon your orator’s title, and that an account may be taken of the rents, issues, and profits of said property from the 31st day of Ahgust, 1878, down to the present time, and that the said defendants, or some of them, may be decreed to pay your orator such sum as shall npitear from such accounting to be justly due.” On iinal hearing the bill was dismissed for want of equity, and this appeal is prosecuted from that decree.</p>

<p>Interpleader— Purchase of Street-Railway Stock — Division of Commission between Agents.</p>

<p>1. Equity — Pleading—Signing Answer.</p> <p>The court may allow defendant to sign liis answer where objected to1 because not signed.</p> <p>2. Same — Verification.</p> <p>Objection that an answer is not verified may be obviated by the court’s allowing its verification.</p> <p>3. Same — .Joinder of Defenses in Answer.</p> <p>Under equity rule 39 defendant may join in his answer all matters, of defense in bar or to the merits of the bill.</p> <p>4. Same — Denials.</p> <p>In equity pleadings, denials or admissions sliould be specific and direct, and it is not enough to allege that every allegation of the bill, not expressly admitted, is denied.</p> <p>5. Partnership Real Estate — Rights of Surviving Partner — Partition.</p> <p>A surviving partner has, for the purpose of administering and winding up the partnership affairs, the right of possession of partnership real estate, exclusive of the deceased partner’s lieirs, and therefore they cannot, pending the administration, maintain against him an action for partition thereof,</p> <p>6. Dower — In Partnership Real Estate.</p> <p>The dower of a deceased partner’s widow does not attach to his interest in partnership real estate till the partnership debts are paid.</p> <p>7. Partition — Adjustment op Partnership Estate.</p> <p>A bill framed for partition and accounting as between tenants in common cannot be maintained as a bill for adjustment of a partnership estate, it appearing that the land is part of an unadministered partnership estate, defendant being the surviving partner, and plaintiffs, heirs of the deceased partner.</p>

<p>Railroad Bonds — Sale by President — Innocent Purchaser.</p> <p>Where negotiable railroad bonds perfect in form, payable to bearer, and certified by the trustee to evidence Unit they bad become obligatory, are placed by the company in tlie hands of its president to sell or exchange for its benefit, -they are valid in the hands of a purchaser in good faith before maturity, though they were disposed of by the president for his own benefit, after consolidation of the company with other companies, and though at the, time of the purchase two of the semiannual interest coupons attached to each bond were past due.</p>

<p>Suit by Barker against the Northern Pacific Bailway Company to set aside a settlement of a claim for personal injuries.</p>

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

This was an action by Ellen IT. Weld, as residuary legatee of William E. Weld (in whose place she was substituted as plaintiff after the commencement of the action), against Simon Goldenberg, to recover damages for the nonperformance of a contract. The circuit court dismissed the complaint.

<p>1. Municipal Indebtedness — Basis of Limit — Last Assessment.</p> <p>Under Const. Mo. art 10, § 12, declaring (hat no city shall incur an indebtedness exceeding 5 per cent, of the value of its taxable property, “to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness,” an assessment cannot be considered which has not passed the state board of equalization.</p> <p>2. Same.</p> <p>The extension by a city of the assessment for state and county purposes for taxation by the city for city purposes is not an assessment within the constitutional provision.</p> <p>8, Same — Bonds—Date of Indebtedness.</p> <p>Under Rev. St. Mo. 1889, § 847, providing that before any bond issued by a city shall be valid it shall be presented to and registered by the state auditor, the date of such recording is not the time when the municipal indebtedness is incurred, but the date of the execution and issue thereof, from which time, by their terms, they bear interest</p> <p>4. Same — Recitals in Bond — Estoppel.</p> <p>Where a city has incurred an indebtedness in excess of the limits imposed by Const. Mo. art. 10, § 12, it is not estopped, by recitals in the bonds repre-' seating the indebtedness, from alleging their invalidity.</p> <p>5. Same — Certificate "of State Auditor on Bonds.</p> <p>A city may "deny the validity of its bonds because creating an indebtedness in excess of the limit fixed by Const. Mo. art. 10, § 12, notwithstanding recitals thereon in the certificate of the state auditor, who, by provision of Rev. St. Mo. 1889, § 847, must register them before they shall he valid, it' being further provided that his certificate shall he only prima facie evidence of facts therein stated.</p> <p>6. Same — Entire Issue of Bonds Invalid.</p> <p>All the bonds of a single issue, which increases the indebtedness of a. city beyond the constitutional limit, are invalid.</p>

<p>1. Employee’s Indemnity Bond — Construction.</p> <p>Under a bond given an employer for the term of a year by whicb a company covenants that, during its continuance, bis employé shall faithfully perform his duties, and, at the cessation of said employment, he shall turn over to the employer all money and property, and indemnifies the employer against loss by default of the employé, occurring during the continuance of the bond, and discovered during said continuance, or within six months thereafter, or within six months from the death, dismissal, or retirement from the employer’s service of the employé, recovery can be had for no default not discovered within six months after the termination of the year for which the bond was given, notwithstanding the employé thereafter continued in the employment, and similar bonds were given from year to year.</p> <p>2. Same — Estoppel.</p> <p>The recital in an employer’s indemnity bond that whereas a prior bona' between the same parties had expired, and whereas it allowed six months from expiration in which to make claims for losses thereunder, the right of the employer to make such claims within such six months was recognized by the second bond, notwithstanding any other provisions therein, estops the employer to assert that under the first bond he could recover for claims presented more than six months after its expiration.</p>

This was a suit by William P. Clyde and others against the Richmond & Danville Railroad Company, in which receivers of the railroad had been appointed. Henry Elliott filed an intervening petition, claiming damages for personal injuries. The petition was referred to a special master, to whose report the defendant files exceptions. This case was, by consent of counsel, referred to W. D. Ellis, Esq., as special master.

This was an indictment against one MacDonald and others for a violation of section 3894, Rev. fciít. U. S. Defendants demur to the indictment.

<p>1. Criminal Pleading — Sufficiency of Indictment — Section 5209, Rev. St. U. S.</p> <p>An indictment under section 5209, Rev. St U. S., for embezzlement, which charges that the defendant did have and receive “certain of the moneys and funds of said national banking association of the amount and value of $5,723.93,” is defective in not stating with sufficient definiteness what the property was which defendant is accused of misappropriating, “funds” being a word including several species of property.</p> <p>2. Same.</p> <p>Whether an indictment which charges that the defendant “wrongfully and unlawfully embezzled and converted to his own use” certain property, “with the intent then and there to injure,” etc., but does not charge that the acts were “feloniously” done, is sufficient under section 5209, Rev. St. U. S., quaere.</p>

<p>This was an indictment against A. K. Hartman for a violation of section 5421, Rev. St. U. S. Defendant demurs to the indictment.</p>

This was an application by the United States for a review of the decision of the board of general appraisers concerning certain merchandise imported by J. A. McSorley & Co. The circuit court affirmed the decision of the board. The United'States appeal.

This is an appeal from the decision of the "circuit court, Southern district of New York (61 Fed. 647), reversing a decision of thé board of general appraisers, which sustained the protest of the importers, and found the merchandise imported to be exempt from duty.

At Law. Appeal by importer under act of June 10,1890, from decision of board of United States general appraisers. The imported merchandise consisted of bronze statuary, assessed by the collector for duty at 45 per cent, ad valorem, under paragraph 215,' and claimed by the importer to be dutiable at 15 per cent, ad valorem, under paragraph 465, as statuary.

<p>1. Customs Duties — Tarim Act Oct. 1, 1890 — Waste Composed tn Past of Wool — Classification.</p> <p>Waste pieces of cloth, composed in part of rubber, cotton, and wool, held to be dutiable as “waste, composed in part of wool,” at 30 per cent, under paragraph 388 of the tariff act of 1890, and not at 10 per cent., as “waste, not specially provided for in this act.”</p> <p>2. Same.</p> <p>The fact that the wool therein was not utilized after importation does not affect the classification of the merchandise for duty.</p>

<p>Customs Duties — Classification—Machine Blankets — Tariff Act of OctoBBR, 1890.</p> <p>Thick-woven, endless, woolen belts or blankets, for paper or printing machines, held dutiable at 44 cents per pound and 50 per cent, ad valorem, under the provision of paragraph 392 of the tariff act of October 1, 1890, as a manufacture wholly or in part of wool, not specially provided for, and not at 38% cents per pound and 40 per cent, ad valorem, under the provision of paragraph 393 of said act, for “blankets.”</p>

<p>Customs Duties — Steel.</p> <p>Billets of meial produced from iron or its ores, containing 20 per cent, of carbon and smaller percentages, ranging from .002 to .081 of silicon, manganese, phosphorus, and sulphur, which is granular in structure, malleable, and which, at any stage of the process of production, has been cast, by being run into molds, is within the definition of “steel,” as given in paragraph 150 of the tariff act of October 1, 1890, and is properly classified as such.</p>

<p>Tra.J)e-Makk — '“Instantaneous” Tapioca.</p> <p>The word “Instantaneous” is not a valid trade-marlt, as applied to a preparation of tapioca, which is distinguished from other preparations of that article by reason of its adaptability for immediate use, without the preliminary soaking required by other preparations.</p>

This was a suit in equity by the Newark Wateh-Oase' Material Company against the Wilmót & Hobbs Manufacturing Company for infringement of a patent for a watch protector*. The circuit court dismissed the bill ((50 Fed. 6.11), and complainant appealed.

<p>1. Patents — Maltha Coated Paper — Infringement.</p> <p>The Pearce and Beardsley patent No. 378,520, a new article of manufacture and commerce, consisting of paper coated or saturated with maltha, as therein set forth, tho substance called “maltha,” and used by the patentees, being described in the specifications of the patent as the solid residuum obtained in the distillation of the heavier grades of petroleum, is infringed by defendant’s use of “petrocite,” whieh is the same thing as the patentees’ maltha, though it is obtained from other substances than that which they mentioned, and though the patentees were ignorant that it was so obtainable.</p> <p>8. Same — Anticipation.</p> <p>Though said patent could not, in view of the prior state of the art, be sustained as for tlio use of any kind of bituminous material whatever, its claim being limited to the maltha particularly described, and this having never before been used for the purpose for which patentees used it, the patent is valid.</p> <p>8. Same —Injunction.</p> <p>la a suit against R. and B. for infringement of a patent for paper coated with maltha, it appearing that R. rented part of his factory to B., and that B. coated the paper; that R. manufactured and sold to B. all the paper which was to he coated by B.; that R. got an extra price for his paper to compensate him for looking after the filling of orders for B., and supplying money for and paying off B.’s help, when B. was away, — injunction will issue against both, though when it comes to an accounting complainant must prove that R. is liable to him in profits or damages, under risk of what the court may possibly order concerning costs.</p>

<p>Patents — Anticipation—Invention—Wangle Ikons.</p> <p>The Griswold patent, No. 229,280, for an improvement in waffle irons, “consisting in a novel construction of the hinge, connecting the two parts of the divided pan,” was anticipated, as to claims X and 2, by the Harrington and Tower coffee-roaster jialents (Nos. 24,024 and 21,858, respectively), and is void as to claim 3 for want of invention. Griswold v. Harker, 10 C. C. A. 435, 62 Fed. 389, distinguished.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Illinois.</p> <p>Suit by one Stahl against the George Ertel Company to enjoin infringement of a patent for an improvement for regulating mechanism for incubators. From an order allowing an injunction pendente lite, defendants appeal.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Illinois.</p> <p>Suit by one Stahl against the George Ertel Company to enjoin infringement of a patent for an improvement in chicken brooders. From an order allowing an injunction pendente lite, defendant appeals.</p>

<p>This was a hill by Henry C. Frank against the Wm. P. Mockridge Manufacturing Company for infringement of a patent for cuff fasteners.</p>

<p>Payment to Attorney.</p> <p>Payment of $250 by tbe owner of a ship to an attorney employed to collect a bill against the ship, for which amount the attorney at the time gave a receipt on account of the bill, is payment of that amount on the bill, though the attorney paid only $100 thereof to his client, and some weeks thereafter gave the owner of the ship another receipt for the $250, stating that $.100 of the $230 was for services as attorney of the owner of the shii>.</p>

<p>Patents — Novelty.</p> <p>Patent No. 236,905, granted to Charles H. Moore, in claim 10, wliic'i is for a water-closet bowl formed into a square at the top, and having but one serviceable- outlet, does not show patentable novelty. Burt v. Evory, 10 Sup. Ct. 394, 133 U. S. 349, followed.</p>

<p>Libels, one by James McOaldin against the steam lighter Edge-water, the other by George A. Ellis and others against the steamtug McOaldin Bros.</p>

<p>Collision — Inevitable Accident — Moored Vessel — Insufficiency oe SriLE.</p>

This was a suit by John C. McKibben against the Anglo-Florida Phosphate Company and others for the enforcement of a decree. An injunction was granted by an interlocutory order of the circuit court, from which the Anglo-Florida Phosphate Company appeals.

This was an action by Henry W. Wills against the Baltimore & Ohio Railroad Company, which was commenced in a court of the state of Ohio. The defendant removed the cause to this court. Plaintiff moves to remand.

<p>Circuit Courts op Appears — Review op Questions op Jurisdiction.</p> <p>When, upon writ of error, the only question presented by the record goes to the jurisdiction of the court below, a review of tbe determination of that question can only be had in the supreme court</p>

<p>Suit by the Indiarapolis Water Company against the American, Strawboard Company. Heard on motion to retax costs and disbursements.</p>

<p>This was a bill in equity by Muhlenburg county against the Citizens’ National Bank of Evansville, Ind., to set aside a judgment at law. The complainant moves for an order directing substituted service of the subpoena.</p>

<p>Suit by the Front Street Cable Railway Company against James C. Drake, marshal, and others.</p>

<p>In Equity. Suit by the German Savings & Loan Society, a corporation, to foreclose a real-estate mortgage. Heard on application for the appointment of a receiver.</p>

<p>Suit by Charles E. Colling and others against the Grant Street Electric Railway Company and others. Heard on petition of the receiver to vacate an order.</p>

Suit by tlie Covington City National Bank against the Commercial Bank of Cincinnati and others to determine the right of lien on certain stock in defendant bank..

This was a suit by the Edison Electric Light Company of New York and the Edison Electric Light Company of Pennsylvania against file Philadelphia Trust, Safe-Deposit & Insurance Company, trustee under the will of John Grump, owner of the Colonade Hotel, and George It. Crump and Henry J. Crump, to restrain the infringement of a. patent. From an order granting a preliminary injunction (60 Eed. 297), defendants appeal.

This was a suit by Charles L. Colby against the village of La Grange to enjoin the prosecution of proceedings in a state court. Defendant demurs to the bill.

This was a suit by Robert Ralston, as trustee, against the Washington & Columbia- .River Railway Company, for the foreclosure of a mortgage. W. D. Tyler, president of the corporation, was appointed receiver. W. M. Ladd and others, composing the firm of Ladd & Tilton, holders of bonds, intervened, and moved for the removal of the receiver.

This was a suit by the Manhattan Trust Company against the Sioux City & Northern Railroad Company for the foreclosure of a mortgage. E. H. Hubbard, assignee of the Union Loan & Trust Company, for the benefit of creditors, intervened for the purpose of asserting certain rights of his assignor in and to the stock of the defendant company. The cause was now heard upon the intervening petition, and proofs submitted.

Suit by the Eastern Building & Loan Association against John A, Denton and others to foreclose two mortgages. A demurrer to the bill was sustained, and complainant appeals. In this case the complainant tiled its bill in the court below for the purpose of foreclosing two several mortgages.

<p>1. Immigration — Right or Ai.ien to Admission — Power oe Court on Habeas Corpus.</p> <p>Under the provision oí tbe sundry civil appropriation act oí August 18, 1894, making final the decision of the immigration or customs officials upon the right of an alien to admission to the United States, the only questions into which a court can inquire upon habeas corpus seeking the discharge of the relator from restraint by the collector ol‘ customs are whether tlie relator is an alien, and whether the collector has made a decision.</p> <p>2. Same — Decision by Corrector.</p> <p>The signing by the collector of a return to a writ of habeas corpus, stating that he lias decided adversely to the relator’s right to admission, is in itself a decision.</p>

<p>This was an application for a rehearing of a petition for a writ of habeas corpus by Chin Yuen Sing, a Chinese person, alleging that he was illegally restrained of his liberty by the collector o.: the port of New York.</p>

<p>1. National Banks — Borrowing Money — Power ok Oeitceks.</p> <p>A national hank, whose vice president borrows money in its name of another hank, and appropriates it to his own use, is not liable therefor, unless he was specially authorized to borrow the money, or his act was ratified. 8 O. O. A. 155, 59 Fed. 372, modified to accord with Bank v. Armstrong, 14 Sup. Ot. 572, 152 U. S. 346.</p> <p>2. Same — Insolvency—Dividends—Intekest.</p> <p>The receiver of an insolvent bank withdraws his offer to allow part of a claim by filing a pleading in the proceedings denying the liability of the hank on the claim, and the interest on dividends should be allowed the owner of claim as though no such offer had been made.</p>

This was an action by George F. Underhill against Jose Manuel Hernandez for false imprisonment and assault and battery. The jury in the circuit court returned a verdict for the defendant, by direction of the court.

<p>This was an áction of trespass on the case by E. L. Morris against the receivers of the Richmond & Danville Railroad Company io recover damages for injury to plaintiff’s warehouse. At the close of the evidence on trial before a jury, defendants moved for the direction of a verdict in their favor.</p>

<p>Action by the Fergus Falls Water -Company against the city of Fergus Falls.</p>

Libel in personam to recover §10,000 damages for unlawful detention and imprisonment on board the American steam whaler Narwhal, of which H. P. Smith was master. Five hundred dollars awarded.

<p>Suit by P. Lorillard Go. against Christian Peper for infringement of trade-mark.</p>

<p>1. Patents — What Constitutes Invention.</p> <p>There is no invention in connecting two old devices to operate simultaneously, when the operation and function of each in their connected relation is the same as that performed by each when used singly.</p> <p>2. Same — Combination Claims — Limitation and Infringement.</p> <p>A combination claim containing separate elements must be limited to those precise elements or their mechanical equivalents, each for each; and it is not infringed by a different combination, of different elements, or a combination consisting of a less number of elements.</p> <p>8. Same — Disclaimer—Unreasonable Delay.</p> <p>A delay of over four years in filing a disclaimer of a claim which has been adjudged invalid by a judgment from which no appeal is taken is an “unreasonable delay,” within (he meaning of llov. St. § 4922, and operates to invalidate the whole patent.</p> <p>4. Same — File Binders.</p> <p>The Shannon patent, No. 217,907, for an improvement in temporary file binders, is invalid, for want of invention, as to all the claims, and also because of unreasonable delay in filing a disclaimer after one claim of the claims had been adjudged invalid.</p>

<p>1. Patents — Folding Machine — Anticipation.</p> <p>Patent No. 331,280, issued to K. Hoe & Co., for improvements i.i machines for folding paper and other materials, consisting in mechanism to produce a two-part folding operation in contradistinction to the one-part folding operation, is not anticipated by any prior invention.</p> <p>2. Same — Infringement.</p> <p>Claims 1, 2, 3, 8, 9, 17, and 29 of said patent are infringed by the i'oldet of defendant, Scott, which in form is substantially like the folder >f the patent, while in mode of operation and result the two machines are identical.</p>

<p>Suit by Henry D. Wickes and others against J. E. Lockwood and others.</p>

<p>Injunction — Trivial Violation — Good Faith. .</p> <p>A defendant will not be punished for violation of an injunction restraining the use of articles which infringe plaintiff’s patent when he has made an honest effort to remove the offending articles from the premises where they were used, though, by an oversight, a few remain.</p>

<p>This was a. suit by the Edison Electric Tight Company and the General Electric Company against Robert Goelet, Robert Stafford, and others to restrain the infringement of a patent. An injunction having been granted, plaintiffs moved to punish defendants for contempt Upon the first hearing, defendants were given leave, within 10 days, to submit affidavits showing from whom they purchased the devices complained of. 65 Fed. 612. Such affidavits having been filed, the motion is now renewed.</p>

<p>Patents — Recutlator eor Dynamo — Anticipation.</p> <p>Letters patent No-. 238,315, issued March 1, 1881, to Elihu Thomson and Edwin J. Houston, for a current regulator for dynamo-.electrical machines, consisting of a 'device whereby the brushes on the commutator are automatically shifted so as to change the output of the machine to meet the change of conditions presented by variations in the number of burning lamps dependent thereon, are void for want of invention, being anticipated by letters patent No. 223.659, issued January 20, 1880, to the same parlies, for a device whereby the same result, in a less degree was obtained by a similar device for the purpose of preventing the production of sparks, which injured the machine.</p>

<p>Patented Machines — Sale—Restriction in Use — Public Policy — Injunction.</p> <p>Though a patentee sells button fastening machines made in accordance with his patent, with a stipulation that in them shall be used, for tlie purpose of fastenings, only the staples manufactured by patentee, but not in themselves patented, one who manufactures and sells staples to the purchasers of the machines to he used therein will not be enjoined as a contributory infringer, the restriction on the use of the machines being against public policy.</p>

<p>1. Collision — In Dock — Negligence.</p> <p>A steamer is at fault in entering a dock already occupied by a vessel, the dock being so small that at low water the steamer, being on fie ground, careens against and crushes the vessel.</p> <p>2. Same.</p> <p>The fact that the vessel already in the dock changed her position, moving back instead of forward, did not make her liable for the injury, it being a matter of conjecture whether her change of position placed her in greater peril, or whether she would haye improved her situation by moving forward.</p> <p>3 Same — Advice of Harboii Master.</p> <p>The fact, that the harbor master advised the steamer to enter the dock will not excuse it.</p>

<p>Circuit Courts — Jurisdiction—Patent Casus — Nonresident Defendants.</p> <p>The provision of the acts of March 3, 1887, and August 13, 1888, that no civil suit shall be brought against any person in any other district than that whereof he is an inhabitant, applies to suits to restrain the infringement of patents brought against parties who are not aliens or corporations organized outside the United States. In re Hohorst, 14 Sup. Ot. 221, 150 U. S. 653, distinguished.</p>

<p>In Error to the Circuit Court of the United States for the District of South Carolina.</p> <p>This was an action by the Charleston Bridge Company against the Phenix Insurance Company upon a policy of insurance. The action was brought in a court of the state of South Carolina, and was removed by the defendant to the federal court. A motion hy plaintiff to remand was denied (60 Fed. 929), and, upon the trial, judgment was given for the plaintiff. Defendant brings error.</p> <p>This action at law was commenced in the court of common picas for Charleston county, S. C., on January 27, 1894, by service of summons and complaint upon the defendant’s agents. By the state law (Code S. C. p. 01, § 164) the defendant was required to answer wilhin 20 days; that is to say, before the 16th of February. The defendant applied to have the time enlarged, and, as authorized by the Code (section 193), the judge of the court, on the 5th of February, extended the time within which the defendant was required to answer until the 10th day of March, 1894. On the 26th of February the defendant filed its petition for removal to the circuit court of the United States for the district of South Carolina, with the bond required by law. On the 17th of March the petition and bond were approved by the judge of the state court, and an order removing the case was entered. The condition of the bond required the defendant to file a copy of the record in the circuit court on the 1st day of its next session, which was the 2d day of April. The plaintiff, In order to enable itself to move to remand the case, filed a transcript of the record in the circuit court on the 23d of March. Its motion to remand was denied, and thereupon, on the 2d of April, the defendant filed a copy of the record. The circuit judge thereupon required the defendant to plead forthwith, and ordered that the case be put upon the trial calendar to he called for trial at the then pending term. On the 71h of April the defendant filed its answer, and the case was placed on the trial calendar. Tüe defendant excepted to the order compelling it to plead forthwith, claiming that it was entitled to as many days in which to plead as were unexpired of the time allowed it by the judge of the state court at the date of filing its petition for removal. It also excepted to the order placing the case upon the trial calendar for that term, for the reason that, hy section 270 of the Oode of South Carolina, In all issues to be tried by the court or jury the plaintiff is required to file his complaint and summons in the clerk’s office at least 14 days before the term. The circuit judge (Simonton), in refusing a motion to modify the order requiring the defendant to plead forthwith, and placing the case on the trial calendar, stated his reasons as follows: “This is a motion to modify the order of 5th inst., requiring the defendants to file their answers forthwith, and directing the case to be called for trial at this term. The defendants rely on the case of Pelzer Manuf’g Co. v. St. Paul Fire & Marine Ins. Co. (decided in this court) 40 Fed. 186. The rule is this: When, under the Code of Civil Procedure, a defendant is served with a summons requiring him to answer or demur within twenty days from the service thereof, and pending the twenty days a petition and bond in a removal case are filed in the state court, when the record comes here it is examined, and in ■omputing the twenty days none of the days are counted during the suspension of the jurisdiction of the state court and the resumption of procedure in this court. From the entry of the record here, it comes within our rules of procedure. And so, also, if, within the twenty days, a state judge enlarges the time by giving so many days more within which to file the answer, the same rule applies; only those days are counted in which the defendant could file his answer with the record. But in the case at bar the defendants did not have so many days within which to put in their answers. They were required by the order of the state court to put in their answers on or before a day fixed and certain, — 10th March. When the records come here, they come with that order in full force. No days can be omitted from the computation, because the day is fixed, — 10th March. No allowance is made for suspension. We examine the record, and see that the 10th of March had elapsed, and that no answer had been put in. It is said that defendants can construe the order as if it allowed so many days counting the days between the date of the order and the 10th March. But, for reasons of his own, the state judge did not say so. He fixed a day, allowing no chance of intermission or suspension, and required the answer on that day. Under the rule stated above, we come within the exigency of the order enlarging the time, for only certain days are counted. It is not within our power now, the day having elapsed, to change his language or make a different order. If we fix a different day than the 10th March, we change the order of the state judge in a material point. If inevitable circumstances had arisen preventing the fulfillment of this order, we could consider them. But defendants had it within their power at any time between the filing of the petition, and the 10th of March, to e nter a transcript of the record here, and get the active interference of this c iurt. The whole scheme and purpose of the removal acts are to prevent the Uf a of them for delay. Scarcely a case, if any, can be found in which the filing of the record in the circuit court and the filing of the defense were not contemporaneous. The record must be filed on or before the first term of the circuit court of the United States next succeeding the filing of the peti tion and bond. The construction contended for could be' used to work delay, and forbids the court to be liberal in its judgment.”</p> <p>On the 7th of May a jury was sworn, and the trial began. The ease was an action on a $15,000 five-year policy of insurance against loss or damage by windstorms, cyclones, or tornadoes, issued by the plaintiff in error to the Charleston Bridge Company, the defendant in error, “on their frame and iron bridge, including wooden approaches, iron spans, and draw over the Ashley river, at the foot of Spring street, Charleston, S. C.” The policy contained the following written clause: “This company is not liable for any lose or damage that may occur by reason of high water, floods, or freshets, said insurance being only against cyclones, windstorms, and tornadoes.” The bridge insured was a structure built in 1886, extending across the Ashley river, near its mouth, from Charleston to the opposite shore, a distance of 2,376 >eet. The testimony for the plaintiff below proved that, commencing at 3 o’clock p. m., on Sunday, August 27, .1893, and continuing until Monday morning, there prevailed at Charleston a cyclonic storm of unprecedented violence, the wind attaining about midnight of Sunday a velocity of 120 miles an hour. By the violence of the wind buildings were blown down, roofs carried away, telegraph poles snapped off, hundreds of trees uprooted, and vessels blown from their moorings. The wind also caused a banking up of the water on the shore, so that the tide rose 4% feet above its normal height. During Sunday night, while the wind was at its greatest velocity, two schooners, each about 500 tons, one of them loaded with phosphate rock, and having a loaded barge and elevator made fast to it, were broken from their moorings by the wind, and driven up the river against the bridge, and passed through it by an opening which the loaded schooner and barge had made by knocking down a span of it. Several heavy lighters also went adrift, and were driven by the wind against the bridge. One was found among the wreckage of it, and one had gone through. The bridge was damaged to an extent which expert bridge builders testified would require over $35,000 to restore it.</p> <p>The court, in its charge, instructed the jury as follows: “The question is one of fact for the jury. "Was the injury to the bridge caused by freshet, flood, or high water, or was it caused by cyclone, windstorm, or tornado? That is to say, what was the real cause of the injury, the dominant, originating cause of the injury, that cause but for which the injury would'not have happened? If this cause, the operating, originating, efficient cause, was high water, flood, or freshet, the policy does not cover the loss, and the plaintiff cannot recover; but if this operating, originating, dominant, and efficient cause was a cyclone, tornado, or windstorm, then the policy does cover his loss, and you must find for the plaintiff.” To this instruction the defendant excepted, assigning as error that the-jury should not be limited io a consideration of what was the originating and efficient cause of the injury, because, as it contended, even if the originating and efficient cause of the loss v as a cyclone, tornado, or windstorm, yet if the loss was occasioned through ¡he agency of high water or flood, in the grasp or under the influence of the c ornado, cyclone, or windstorm, the defendant was exempted under the policy from such loss. The defendant, on its own behalf, requested the court tó in- ■ struct the jury as follows, which the court refused to do: “That if the jury believed that a tornado, windstorm, or cyclone was prevailing in and ai> mt the property specified in the policy at the time stated in the complaint, But the loss or damage, as may be shown to have been sustained, was caus-ed by the force of high water or a flood in the grasp or under the influence of the wind, then the plaintiff cannot recover, for such loss is expressly excepted under the terms of the policy.” And the defendant also prayed the court to instruct the jury as follows: “If the jury believe that a tornado, windstorm, or cyclone was prevailing in and about the property specified in the policy at the time stated in the complaint, hut the loss, as may be shown to have been sustained, was caused partly by the force of the wind itself and partly by the force of high water or a flood in the grasp or under the influence of the wind, then the plaintiff can only recover for such immediate wind damage, and the jury must exclude all water damage in determining upon the amount of their verdict.” And also requested the following instruction: “That if the jury believe that, at the time stated in the complaint, a windstorm, cyclones or tornado was prevailing in the vicinity and about the property specified in the policy, and that such loss or damage as may be shown to have been sustained was caused by the effect of a flood or high water, and such flood or high water was directly and immediately caused and rendered destructive by said cyclone, tornado, or windstorm, then and in such case plaintiffs cannot recover, because, under the express conditions of the contract, such loss or damage was excluded in the provision: ‘This company is not liable for any loss or damage that may occur by reason of high water, floods, or freshets.’ ” The court refused to give any one of the three instructions asked by the defendant, upon the; ground that no evidence had been offered to sustain the theory that any of the damage 10 the bridge had been caused by high water or flood. The case being submitted to the jury, they found for the plaintiff for the full amount of the policy. »</p>

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

<p>Mandamus — Mode op Review.</p> <p>An application for a writ of mandamus, being a proceeding at common law, can be reviewed in the circuit court of appeals only by writ of error, not by appeal.</p>

<p>Writ op Error — To What Judgment Lies.</p> <p>B. brought a suit in equity against the C. Co. for partition of certain lands. The C. Co. answered, denying B.’s title, and the court stayed proceedings • in the partition suit, and gave leave to plaintiff to bring an action at law, which he did, in the ordinary form for the recovery of land, the C. Co. setting up in defense that B. was estopped to claim the land both by deed and by acts in pais. Upon the trial, before the same judge by whom the partition suit had been stayed, the question of estoppel by deed was reserved from the jury, and, in submitting the question of estoppel in pais, the judge stated that he could, as chancellor, have heard the evidence, and decided the whole controversy himself, but preferred to get the assistance of the jury. The jury found for the defendant, and judgment was entered upon the finding, to which exception was taken, and a writ of error allowed. The judge afterwards passed upon the issue of estoppel by deed in favor of the defendant, but no judgment was entered on that issue. Relé, that the proceedings were anomalous, but, treating them as an action at law, the judgment upon which the writ'of error was allowed was not final, since a decision upon both issues, of estoppel by deed and estoppel in pais, was necessary to a final decision of the action; and, if exception were taken to a judgment upon the former issue, as decided by the judge, the judgment upon the present writ would not end the case, and that, accordingly, such writ could not be entertained. Morris, District Judge, dissenting.</p>

This was a suit by the Frankfort Land Company and Franklin S. Anderson against Gk A. Dreutzer for an accounting. An order was made enjoining the defendant from prosecuting certain proceedings at law. A motion by defendant to dissolve the injunction was denied. From the order denying such motion, defendant appeals.

<p>This is a petition for mandamus against Judge Swan, United States district judge for the Eastern district of Michigan, to compel him, sitting in the circuit court of the United Stales for that district, in equity, to take jurisdiction of a proceeding in garnishment, under the statutes of Michigan, instituted by the relator, the Mudsill Mining Company, for ihe purpose of collecting the balance due on a decree entered in that court in favor of iho relator for about .$150,000. Tlie original suit was brought by the Mudsill Mining Company against Orville A. Watrous and Stewart A. Yan Dusen, to set aside the sale of a silver mine, on the ground of fraud, and to recover the purchase price paid. The circuit court dismissed the bill, and the complainant appealed io this court, where the decree of the circuit court was reversed, and the cause was remanded, with instructions to enter a decree against Watrous for the amount of the purchase money received by him and interest, amounting to about $150,000, and a decree for a less sum against Yan Dusen. 61 Fed. 168. The mandate of this court was complied with, and a proper decree entered. Shortly after the decree was entered, the attorney for the complainant filed in the circuit court, in the same cause in equity, an affidavit averring that Willard I. Brotlierton, Henry N. Watrous, and Henry W. Jennison, all of Bay City, Mich., had money and property of Orville A. Watrous in their custody, and’ that he was justly apprehensive of the loss of the amount due on the decree, unless a writ of garnishment should issue to the persons named. The writ was issued on the affidavit by the clerk of the court in equity, and the three garnishees, being served, ■ appeared, and moved to quash the writ on numerous grounds, one of which was that a circuit court of the United States in equity has no jurisdiction to entertain a proceeding in garnishment under the statutes of Michigan. Upon this ground Judge Swan granted the motion, and quashed the writ in the following order (entered November 7, 1894):</p> <p>(‘The Mudsill Mining Oo. et al., Complainants, vs. Orville A. Watrous and Stewart A. Van Dusen, Principal Defendants, and Willard X. Brotlierton, Henry N. Watrous, and Henry W. Jennison, Garnishee Defendants.</p> <p>“On reading and filing the motion of the said garnishee defendants to quash the writ of garnishment heretofore issued in this cause, and after hearing counsel for both parties, on motion of Chester L. Collins, Esq., of counsel for said garnishee defendants, it is ordered: That the writ of garnishment issued in said cause at the instance of the plaintiffs be, and the same is hereby, quashed, and held for naught. But the effect of this order is hereby suspended, pending a review of the order, until the further order of this court, directing that it become absolute. Henry H. Swan. District Judge.”</p> <p>Thereupon the present petition for mandamus was filed by the Mudsill Mining Company as relator, in which, after setting out the facts as given above, and averring that the order to quash the garnishment proceeding was made because the court deemed that it had no jurisdiction to entertain it, and that the petitioner has no adequate legal remedy to secure this right save by mandamus, the relator prays that a writ may issue “directed to the circuit court of the United States for the Eastern district of Michigan in equity, requiring said court to vacate and set aside said order of November 7, 1894, quashing the writ of garnishment in the cause above named, and directing said court to proceed with all convenient speed to the execution of such process.” The respondent appears and answers, setting out the facts as they appear of record and as they are stated above.</p>

This was an action by William B. Prescott, president of tire International Typographical Union, and others, against Theodore P. Hangbey and others, the directors of the Indianapolis National Bank, to recover moneys deposited in said bank by the International Typographical Union, and lost through its insolvency. The action was brought in a court of the state of Indiana, and was removed to the federal court by the defendants, on the ground that a federal question was involved.

This was a petition by Levi Hicks and others, employés of the receivers appointed in the main cause, for directions to such receivers. '

<p>This was a suit by H. G-. Wadley against Blount & Boynton, Paul Hutchinson, as administrator of Charles Hutchinson, deceased, J. L.„ Cleaves, prosecuting attorney for Wythe county, Va., and others, to restrain the prosecution of an indictment .in the county court of Wythe county, Va.</p>

This was a suit by the Savings & Loan Association and others, holders of bonds of Alturas county, against the counties of Alturas, Elmore, Logan, and Bingham, to obtain contribution by said several counties, and payment of complainants’ bonds. Defendants demur to the bill.

This was a suit by Emma A. Hoyt against W. J. Gleason and others, composing the board of monument commissioners of the city of Cleveland, Ohio, to enjoin the erection of a monument on the public square in that city. The plaintiff obtained a temporary restraining order, and now moves to have the same continued until iinal hearing.

<p>1. Equity Pleading — Replication.</p> <p>Where a cause is set down for hearing on bill and answer, no replication ' having been filed, then the answer is to be taken as true in all its material allegations, whether responsive or not; otherwise the defendant would be precluded from proving the allegations which are only defensive. Banks v. Manchester, 9 Sup. Ct. 36, 128 U. S. 244, cited.</p> <p>2. Insolvent Bank — Payment op Depositor.</p> <p>A depositor is entitled to a preference in payment of the assets of a bank in the hands of a receiver where the deposit was made at a time when the bank was hopelessly insolvent, and the fact of such insolvency had ' been concealed by the bank. Wasson v. Hawkins, 59 Fed. 233, followed.</p> <p>8. Same.</p> <p>In such case the whole of the deposit is charged with a trust, and an equal amount may be recovered from the receiver, who has received the specific money among the general mass of the bank’s funds.</p>

This was a suit by the National Waterworks Company of New York against the city of Kansas City, Mo., to enforce a contract for the construction and operation of a system of waterworks, and the purchase thereof by the city. The city filed a cross bill seeking to be relieved from the contract.

. Suit by the Sagadahoc Land Company against Boyd Ewing and others for rescission of contract and other relief. This is an appeal from a decree dismissing appellant’s bill on demurrer. The question is, therefore, whether a case for equitable relief was made on the face of the bill. The appellant was an unincorporated association of persons residing in Maine, who joined in the bill and appeal as individuals.

'This was a suit by Elizabeth Meyer, widow of Henry Meyer, deceased, and Hannah E. Forbes, Emily A. King, and Levina E. Con-row, children, heirs, and distributees of the estate of Henry Meyer, deceased, against James L Kuhn, Samuel S. Vinson, John N. Hauser, and Charles E. Henderson, to remove a cloud upon title to real estate. A demurrer to the bill was sustained, and complainants appeal.

<p>Equity — Dhmuriuíií—Placing on Law Calendar.</p> <p>Under equity rule 33, giving plaintiff the right to set down for argument defendant’s demurrer, and rule 38, providing that if he does not set it down on the rule day when it is filed, or on the next succeeding rule day, he shall be deemed to admit its sufficiency, and his bill shall be dismissed, unless he is given further time, where plaintiff does not have the demurrer set down for argument on the rule day when it is filed (January 7th), and the next rule day is the first Monday of February, it cannot in the meantime be “ready for argument,” so as to be put on the law calendar, within rule 39, requiring the clerk, five days before the commencement of the term, to put on the law calendar all eases ready for argument on demurrer,' and to enter causes thereon at any time during the term when ready for argument.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Illinois.</p> <p>This was a suit by the Farmers’ Loan & Trust Company against the Grape Creek Goal Company, Grape Creek Coal & Coke Company, Mason M. Wright, and John JB. Brown, to foreclose a mortgage. A decree was rendered for complainant under which the mortgaged property was sold as an entirety, but afterwards, upon defendants’ appeal, the decree was reversed in certain particulars, and the cause was remanded to the circuit court. 63 Fed. 891. The circuit court entered a decree, September 12. 1894, in conformity with the opinion of the circuit court of appeals, adjudging $379,-648.56 to be due. From this decree complainant appealed.</p>

<p>Prior to October 30, 1893, defendant Herbert Lefavour conducted business on his own account at 96 Duane street, New York City. On that day be made a contract with the plaintiff Whitman Shoe Company, of Boston, Mass., under which he thereafter conducted business, at the same place, as its agent, hut under his own name, all goods, assets, etc., of the business becoming the property of the Whitman Shoe Company. In August, 1894, the Whitman Shoe Company assigned all its property, including that at 96 Duane street, New York, to the plaintiff William H. Daniels, for the benefit of its creditors. October 31, 1894, Lefavour commenced an action against the Whitman Shoe Company in the supreme court of New York, and caused an attachment to he issued and levied upon the property at 96 Duane street. November 10,1894, the cause was removed to the United States circuit court, and on November 16th, pursuant to an order of that court, the attached property was delivered by the sheriff to the United States marshal.</p> <p>On November 2,1894, Daniels, as assignee, filed a claim of ownership of the attached property, and a demand therefor; and thereupon, in accordance with the state practice, the sheriff demanded and received from the plaintiff in the action, Lefavour, an indemnity bond of $5,000. The sureties upon this bond were duly excepted to by Daniels, and, having failed to justify, an order was made by the circuit court, after the removal, on notice to Lefavour and on his default, directing the marshal to deliver the attached property to Daniels. This order was entered at 1:15 p. m. on November 20, 1894, and was immediately served upon the marshal. The marshal and Daniels thereupon went is the sheriff to settle with him certain claims for fees, for which he claimed a lien on the property. While so engaged, and before the marshal bad delivered the property to Daniels, It was taken possession of by the coroner under a writ of replevin issued from the state court in a suit brought against Lefavour, Daniels, the sheriff, and the marshal by one Isidor Lazarus, who claimed title to the property under an alleged sale of the same to him by Lefavour prior to October 31, 1894. Daniels subsequently made a motion in the replevin suit in the state court to vacate the levy, which was denied; the opinion, written by Patterson, J., holding that the property replevied was not, at the time, in the custody of the federal court Lazarus v. McCarthy, 32 N. Y. Supp. 833. Daniels and the Whitman Shoe Company then filed this bill against Lazarus, Lefavour, the marshal, the sheriff, and the coroner, alleging that the replevin suit was without foundation, and was brought by collusion between Lazarus and Lefavour to defeat plaintiffs’ rights, and asking that all the defendants be enjoined from delivering or disposing of the property otherwise than to Daniels.</p>

<p>1. Jurisdiction — How Obtained.</p> <p>The mere filing of a bill in equity, and giving notice thereof, and of a motion for the appointment of a receiver, to the defendant, does not give jurisdiction of the parties or the subject-matter, but service of process is essential. Therefore, held, that a judgment entered in a state court after the filing of a bill in a federal court, but before the service of process and appointment of receivers, was a valid and existing lien prior to such appointment, and that the receiver’s possession of the insolvent’s property is subject thereto.</p> <p>2. Execution — When Levied on Property in Receivers’ Hands.</p> <p>On June 5th a bill praying for the appointment of receivers of the W. Co. was filed in a federal court, and a copy thereof and notice of a motion for the appointment of receivers were served on the W. Co. On the same day, and after these proceedings, a judgment against the W. Co. was entered in a state court, upon confession, in favor of the P. Co., upon a bond of the W. Co., secured by mortgage upon part of its property. On June 6th receivers of the W. Co. were appointed, and the subpoena in the suit was served upon it Subsequently, by leave of the federal court, the P. Co. brought suit, in a state court, to foreclose the mortgage on the W. Co.’s property, which was duly sold, and the proceeds of sale applied on the mortgage judgment, leaving a balance unsatisfied. The P. Co. then petitioned the federal court for leave to levy an execution on the property of the W. Co. in the hands of the receivers. Held, that though, at the time of the entry of the judgment, the federal court had not acquired jurisdiction, and the receivers took the property subject to the lien of the judgment, permission would not be given to levy execution without proof of some urgent necessity for selling the property at once, instead of permitting the receivers to administer the estate, and distribute the proceeds, with due regard to priority of claims, among all the creditors.</p> <p>3. Receivers — Priority oe Claims — Taxes.</p> <p>Held, further, that the receivers would not be directed to refund to the Co. taxes on the mortgaged property, paid out of the proceeds of its sale, since the taxes were a lien on the property superior to the mortgage, and the receivers, if they had sold the property, must have applied the proceeds to the payment of taxes before paying the P. Co.</p>

This was an action hv the Wilcox & Gibbs Guano Company against the Phenix Insurance Company of Brooklyn, hi. Y.., on a policy of insurance. Held: and so impressed the jury, that the printed slip upon which the coinsurance clause was written was introduced to vary the terra* of the policy, whereas it was offered only to explain the terms “subject to the coinsurance clause,” written into and forming part of the. contract of insurance.

<p>1. Constitutional Law — Suit against State.</p> <p>The state oí South Carolina was the owner of certain real estate, which, under a statute of the state, was in the care find custody of the secretary of state, and was held by him, subject to the directions of the commissioners of the sinking fund. Pursuant to directions of such commissioners, the real estate was sold at auction to one A., acting for the plaintiff, who complied with the terms of sale, and received a deed from the commissioners of the sinking fund. A. afterwards conveyed the property to plaintiff, who made a demand for possession upon the secretary of state and a keeper, who had actual charge of the property, under direction of the secretary of state, the property being at the time partly in the occupation of certain state officers; and, being refused possession, brought an action of ejectment against the secretary of state and the keeper. Held, that such action was not a suit against the state. LT. S. v. Lee, 1 Sup. Ot. 210, 106 TT. S. 196, and Stanley v. Schwalby, 13 Sup. Ot. 418, 147 TI. S. 508, followed.</p> <p>2. EVI DKNCffi — IÍELKVANCY—E.TT-IOTMBNT.</p> <p>The terms of sale of the property provided that one-third of the purchase price should he paid in cash and the balance secured by bond and mortgage, which should be payable at any time, at the option of the purchaser. A. had paid the one-third in cash, given his bond and mortgage, and received a deed of the property. Upon, cross-examination of a witness on tiie trial of the action of ejectment, defendants attempted to show that the purchase was made for the purpose of raising an issue as to the validity of a tender of certain depreciated state scrip, and that such scrip had been tendered in payment of the bond and mortgage. Uriel, that such evidence was irrelevant, and was properly excluded.</p>

<p>In Error to the Circuit Court of the United States for the District of Kentucky.</p> <p>Action by H. M. Jones against the Newport News & Mississippi Yalley Company for injury to and discontinuance of a railroad switch to plaintiff’s warehouse. A demurrer was sustained to that part of the petition which claimed damages for discontinuance of the switch, and plaintiff brings error.</p> <p>H. M. Jones, the plaintiff in error and tile plaintiff below, filed two petitions in ordinary in the Caldwell circuit court of Kentucky against the Newport News & Mississippi Valley Company, a corporation organized under the laws of Connecticut, and a citizen of that state, engaged in operating under a lease the railroad of the Chesapeake & Ohio Southwestern Railroad Comimny. The plaintiff is the owner of land in the town of Princeton, lying near the junction of two streams, and within a few feet of the defendant’s railroad bridge over one of them. The lot adjoins the right of way of defendant’s railroad. The railroad at this point runs on a high embankment or fill. Some years before the filing of the petition, the plaintiff had built himself a coal tipple and storage bins for coal on his lot, and near the defendant’s right of way, and a trestle, 15 feet high, above the ground, connecting the coal tipple with tlie defendant's roadbed on the high embankment. A railroad track was laid over the trestle, so that the cars could be run from the main track by a switch to the tipple. Plaintiff’s first petition averred that, by the negligence of the agents of the railroad company, the switch from the main track of the railroad to the coal tipple was loft open, and a regular freight train, running at a high rate of speed, left the main track, and running out upon the trestle, was precipitated over the tipple, doing much damage to the iffaintiff’s plant, for which ho asked damages. The second petition, which, by the order of the court, was consolidated, with the first, described the cireumstauces under which the trestle and connection track were built as follows: “That several years ago the plaintiff, desiring to go into the coal business a,t Princeton, Kentucky, and desiring to build for that, purpose a coal tipple on said lot, and connect the same with the main line of said railroad, owned and then operated by the Chesapeake & Ohio Southwestern Railroad Company, hy trestle and a railroad track, or switch, as it is sometimes called, had plans and specifications drawn for such coal tipple and trestle; and thereupon the said Chesapeake & Ohio Southwestern Railroad Company made and entered into a contract with him, this plaintiff, that, if this plaintiff would build the proposed coal tipple and trestle, it would make the necessary embankment, connect the trestle with its main line of road, and lay down the track over said embankment, trestle, and coal tipple, and connect the same with the main line of road by a switch, and thereafter deliver coal to him at said tipple, over said switch and road, on said trestle and coal tipple, and this contract was made in the early part of 1884. That, in comi>liance with this contract, this said plaintiff, in the summer of 1884, built said coal tipple and trestle in accordance with said plans and specifications, and the said Chesapeake & Ohio Southwestern Railroad Company built said embankment and laid said track thereon, and on said trestle and coal tipple, and connected the same with the main line of said railroad with a switch, and then it became a part of said main line of road, and so remained until the doing of the wrongs hereinafter complained of; and said last-named railroad company and tlie defendant delivered coal in car-load lots over said switch to said coal tipple, as was their duty, from that time until the time of the doing of the wrongs hereinafter complained of, as the business of the plaintiff required said coal to be delivered. That said coal tipple and trestle were built of heavy timber, and were about fifteen feet high, and were very expensive, and cost this plaintiff not less than $-•; and, in addition thereto, he built a room under one of the bents of said coal tipple, and fitted it up for an office, bought and put up a inir of wagon scales, built a bridge across the Dallam Spring, which was necessary to get the wagons to the scales, put a roof over the coal tipple, bought a wagon and a pair of mules, and in every way fitted himself up to run a coal business, and did run a coal business, at that place and on said coal tipple, l'or a number of years, and until the doing of the wrongful acts hereinafter complained of. Said trestle and coal tipple is the same mentioned in the first paragraph of this petition. That afterwards the Chesapeake A Ohio Southwestern Railroad Company leased said railroad from Louisville to Paducah, Ky., through Princeton, Ky., to the defendant, which took possession under said lease, and for several years last past has operated and controlled said road under said lease, and assumed the duties and contracts of said lessor company, including its duty to and contract with this plaintiff, and for several years fulfilled and performed said duty and contract, and then, ratifying the old contract, made a new one with this plaintiff, by which he was to repair and rebuild a part of said trestle, which he did at great expense, not less than $-, to himself, and it was its duty at all times to keep said switch to said coal tipple in good order, and to deliver coal to him over said switch to said coal tipple; but, notwithstanding said contract and said duty, the defendant has violated its contract and its duty, and soon after the accident referred to in the first paragraph of this petition, and in the month of-, 1892, the defendant wrongfully and without right tore up and removed said switch and all the iron forming the railroad from the main line of road to said coal tipple over said trestle, and has since wrongfully and without right refused to relay said track, or to deliver coal to this plaintiff at said coal tipple, thus rendering worthless to this plaintiff, and utterly destroying, the value of said coal tipple and trestle, and utterly breaking up and ruining the plaintiff’s said coal business, to the damage of this plaintiff five thousand dollars, which damage said defendant refuses to pay, although demanded. Wherefore the plaintiff prays for damages against the defendant for fire thousand dollars, and for interest thereon from date of judgment until paid, and for his costs and all proper relief.” The two petitions were carried by removal from the state circuit court into the court below, where they were consolidated as. already stated, and thereafter the defendant demurred to both causes of action. The demurrer to the first cause of action was overruled. The demurrer to the second cause of action was sustained, and upon that judgment was entered for the defendant. The first cause of action was submitted to the jury, and resulted in a verdict and judgment for the plaintiff. The plaintiff sued out a writ of error to the ruling of the court in sustaining the demurrer to the second cause of action, and in rendering judgment for the defendant thereon. The correctness of the ruling of the circuit court in sustaining the demurrer to the second cause of action is therefore the sole question for consideration in this court</p>

<p>In Error to the Circuit Court of tbe United States for tbe Western Division of the Southern District of Ohio.</p> <p>These were five actions for the recovery of real estate, consolidated and heard together. A jury in the circuit court found a verdict for the defendants, hut the court, on motion, gave judgment for the plaintiffs non obstante veredicto. 55 Fed. 731.</p> <p>These are five writs of error to review the same number of judgments in actions for the recovery of real estate, in which, the plaintiffs below being itie same, and the questions of fact and law being Identical, the court below ordered a consolidation under section 921, Rev. St. U. S. All the cases turned on the existence, validity, and effect in Ohio of a parol partition of lands by a married woman and her husband, followed by long i>ossession and acquiescence in accordance therewith, as a defense to an action for recovery of real estate in a circuit court of the United States. The real estate in controversy in tlte different actions was the undivided one-third interest in lands all of which are embraced in a survey of 1,500 acres lying in Fayette and Union counties, Ohio, and in the Virginia military district, and which were conveyed by patent of the United States government, dated August 21, 1821, to the heirs and legal representatives of Col. William Greene Munford, in consideration of said Munford’s services in the war of the Revolution. This patent was one of several issued in satisfaction of a United States land warrant for 6,006% acres in favor of the same beneficiaries, directed to the surveyor of the Virginia military land district in Ohio. Patents for 1,500 acres in the aggregate were Issued to Duncan McArthur for his services in locating and surveying the land. The other patents in satisfaction of the warrant were for 1,500 acres (the one in controversy), for 1,300 acres, for 1,299%! acres, for 437 acres, for 100 acres, for 410 acres, and l'or 120 acres. These, except the first, were dated August 22, 1822.</p> <p>The original plaintiffs In the actions below, which were begun in 1877, were all of them descendants and heirs at law of Margaret Ann Sinclair, a granddaughter of William Greene Munford, and one of his heirs, when the patents above mentioned were issued. Subsequently a majority of the original plaintiffs conveyed all their interests to J. Hairston Seawall, and by consent of all parties the causes proceeded entitled as above. At the date of the issuance of the patents the heirs of William Greene Munford were in three branches, as follows: (1) Margaret Ann Sinclair, the daughter of a deceased son of William Greene Munford. She was horn January 1, 1800, was married to John Sinclair. July 4, 1819, and died September 13, 1837. Her husband survived her, and did not die until August, 1875, shortly after which these suits were brought. (2) Robert H. Munford, Stanhope R. Munford, and Ann Mun-ford, children of John Munford, a deceased son of William Greene Munford. (3) The children of Mary Stubblefield, daughter of William Greene Munford, and wife of Edward Stubblefield. It, was conceded at the trial that Margaret Ann Sinclair, by the patent for 1,500 acres, became the owner in fee of an undivided one-third of the lands in controversy; that the plaintiffs were her lawful heirs or grantees; and that, unless the defendants could establish some fact by which she and her successors in title were barred from claiming the possession, the plaintiffs must have a verdict. The answer of the defendants, in addition to denying the title of the plaintiffs, pleaded the statute of limitations. On the trial the defendants sought to establish a parol partition, under which Margaret Sinclair and her husband parted with all interest in the 1,500-acre tract to her coienants, and acquired the exclusive right in severalty to the 1,300-acre patent, which she and her husband subsequently, in 1824, sold by deed, with covenants of general warranty, for $1,300. There was no direct evidence of the partition, but 1he proof of its existence rested on circumstances, the chief of which were the warranty deed of Margaret Ann Sinclair for the 1,300-acre tract above referred to, and the quiet possession of the 1,500-acre tract by the plaintiffs and their grantors, the other cotenants of Margaret Ann Sinclair, for more than 50 years. The court below submitted to the jury several questions, the answers to which show the facts to be as already stated. The jury found that there had been a parol partition as claimed by defendants, and also found a general verdict for the defendants. The circuit court was of the opinion that the evidence was not sufficient to sustain the special finding that there had been a parol partition, and set it asido. The court was further of the opinion that a parol partition, though followed by possession in accordance with it, was not a valid partition in Ohio against a married woman, and constituted no defense to the plaintiffs’ case. Therefore, disregarding the finding of a parol partition as immaterial, the court, on motion, gave judgment in each case for the plaintiffs on the other special findings non obstante veredicto.</p>

Action by Adelaide M. Smith against the Provident Savings Life Assurance Society of New York on a life policy. This is.a writ of error to review a judgment for the defendant in an action on a policy of life insurance. The policy was for $15,000, and purported to have been issued by the Provident Savings Life Assurance Society of New York in favor of Adelaide M. Smith on the life of her husband, Adolphus O. Smith.

<p>Fire Insurance — Increase of Risk.</p> <p>The P. Ins. Co. issued to the F. Co. a “builder’s risk” policy, insuring it against loss by fire on its factory buildings and machinery. The policy contained a written clause to the effect that the buildings were understood to bo in course of construction, and that the insurance company was to be notified as soon as the assured was ready to commence manufacturing and the rate was to' be adjusted, it being understood that the rate, after manufacturing was commenced, would be -higher because of the increased risk. The policy also contained a printed clause to the effect that if the insured premises were so- used as to increase the risk, or the risk was increased by the erection of neighboring buildings, or otherwise, without the assent of the insurance company, the policy should be void. The premises were destroyed by fire on September 4th. In an action on the policy, it appeared, without serious contradiction, that new policies were obtained by the assured, in other companies, which were to go into effect August 1st; that the assured had notified its agents to cancel the policy in suit; that the assured, without the assent of the insurance company, had erected a building on the premises, the existence of which materially increased the risk; that on August 4th the fires in the furnaces were started without notice to the insurance company; and that, at the time of the fire, as many as 30 persons were regularly employed in the factory, and a considerable quantity of manufactured goods had been turned out. Held, that the jury were properly instructed to render a verdict for the defendant.</p>

<p>Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by William M. Campbell against the United States.</p>

Rule for judgment for want of a sufficient affidavit of defense.

<p>Contempt — Interference with Sheriff's Possession of Attached Property,</p> <p>Plaintiff had been an agent for defendant, conducting business in Ms own name, and selling goods, on credit, to sundry persons. He commenced an action by attachment, in a state court, against defendant, and caused the attachment to be levied upon the debts due from the persons to whom such goods were sold. The cause was removed lo the federal court, and the attached property transferred from the sheriff to the marshal. While the debts were thus in the hands of the sheriff and marshal, plaintiff proceeded to collect the same, and received the proceeds. Held, that such conduct was a contempt of court.</p>

Those were petitions for a writ of habeas corpus filed by Bernard Blum against John J. S. Sogers, commissioner of immigration for the port of Philadelphia, and hv the same relator against the International Navigation Company. ■ Tlie petitions averred that the relator, Bernard Blum, was an uncle of Israel Goldstein, a native of Poland; that the said Goldstein was unlawfully detained on board one of the steamships of said company upon the order of sa.id Rogers.

<p>Immigration — Bail on Appeal prom Denial of Writ of Habeas Corpus.</p> <p>The court being prohibited from admitting to bail an applicant for a writ of habeas corpus, who is a Chinese immigrant seeking release from detention by the collector of customs, while the application is being considered in the first instance, it would be a manifestly improper exercise of discretion to admit such applicant to bail, pending an appeal from a denial of the writ, whether the court is prohibited from so doing or not.</p>

<p>At Law.</p> <p>Appeal by the importers from a decision of the board of general appraisers affirming the decision of the collector of the port of New York in the classification for customs duties of certain articles entered at that port from a foreign country March 13, 1893, which articles were classified for duty, as to part thereof, as manufactures of jute and flax, valued at over 5 cents per pound, at 40 per cent, ad valorem, under paragraph 374 of, the, tariff act of October 1,1890, which is as follows:</p> <p>“374. All manufactures of jute, or other vegetable fibre, except flax, hemp or cotton, or of which jute, or other vegetable fibre, except flax, hemp or cotton, is the component material of chief value, not specially provided for in this act, valued at five cents per pound or less, two cents per pound; valued above five cents per pound, forty per centum ad valorem.”</p> <p>As to the other part of.,the merchandise composed entirely of flax, it was classified by the collector as manufactures of flax, under 100 threads to the square inch, at 50 per cent, ad valorem, and, over 100 ihreadsrto the square inch, 35 per cent, ad valorem, under paragraph 371- of the same tariff act, which is as follows:</p> <p>“871. All manufactures of flax or hemp, or of Which these substances, or either of them, is the component material of chief value, not specially provided for in this act, fifty per cent, ad valorem: provided, that until January first, eighteen hundred and ninety-four, such manufactures of fla.x containing more than one hundred threads to the square inch, counting both warp and filling, shall be subject to a duty of thirty-five per centum ad valorem in lieu of Hie duty herein provided.”</p> <p>The importers duly filed their protest with the collector, claiming the merchandise to be burlaps, not exceeding 60 inches in width, and dutiable at 1% cents per pound, under paragraph 364, Schedule J, of the same tariff act, which is as follows:</p> <p>“364. Burlaps, not exceeding 60 inches in width, of flax, jute or hemp, or of which flax, jute, or hemp, or either of them, shall be the component material of chief value (except such as may be suitable for bagging for cotton), one and five eighths cents per pound.”</p> <p>The board of general appraisers, upon the testimony taken in a previous case, in which a decision of the hoard in favor of the importers was subsequently affirmed by the circuit court (In re White, 53 Fed. 787), found in the present case that the protests of the importers were not well taken, and were accordingly overruled, and the decision of the collector affirmed. The case being appealed into the circuit court by the importers, further evidence was taken before a referee in the circuit court, and the case came on to be tried-upon the return of the board of general appraisers, and the evidence taken in the case above cited (In re White, reported in 53 Fpd. 787), and upon the evidence now taken in the circuit court. The testimony in behalf of the importers tended to show that, at the date of the passage of the tariff act in question, the term “burlaps” included in trade and commerce the more or less coarsely-woven material composed either exclusively of jute, as in the former Case of White, reported as above, or of jute and partly of flax, and occasionally of all flax; that, prior to 35 years ago, burlaps were chiefly, if not entirely, composed of flax, but that, after the introduction of jute as a cheaper raw material, the commercial burlaps for many years prior to 1890 had consisted very largely of articles manufactured entirely of jute, although often combined with a warp or weft thread of flax; that the commercial burlaps came in the standard width of 40 inches, and that they were known in trade and commerce as wide as 140 inches, and as narrow as 20 inches, or even less; and that the present importations were included within the general class of burlaps. Numerous trade witnesses called in behalf of the government’s contention gave testimony tending to show that in 1890, and for many years prior thereto, the commercial burlaps was a coarse-woven article, composed entirely of jute, and containing not more than from 20 to 30 threads to the square inch, including warp and filling; that the articles included in the present suit iveve not known or considered commercially in trade as “burlaps,” but were known by their specific names, such as “Pelissier canvas or padding,” “Cream padding,” “Baris duck,” “coating,” etc.; that these articles were used in the manufacture of clothing for the particular purposes of stiffening the collars and fronts of coats and other garments, and for use as bands in trousers, etc. The witnesses from the clothing trade also testified that they purchased and used, in their business an article commercially known as “burlaps,” which was a coarse, heavy fabric composed of jute, which was employed to give weight and body to cheap articles of clothing. Other trade witnesses knew the commercial “burlaps”; namely, the coarse, heavy-woven jute articles, of 40 inches in width, and wider, which were used in the upholstery trade for the covering of furniture, etc., and were entirely distinct from the canvas, padding's, and coatings involved in the present suit. It was also shown by competent evidence in behalf of the government that the articles covered by the invoices in the present case were of much finer texture than burlaps which were recognized as such by the government’s trade witnesses, the articles in suit running from 44 to 70 threads to the square inch. On the trial it was contended on behalf of the government and the decision of the board of general appraisers that the evidence taken in the former case before the board of appraisers and in the present case in the circuit court showed that the canvases, paddings, ducks, coatings, etc., now under consideration, were an entirely different article from the jute goods which were decided to be burlaps in the White: Case, 53 Fed. 787; and that the board of general appraisers and the circuit court were amply justified in finding that the present importations were not commercially burlaps, but were manufactures of flax, or of jute and flax, known by the specific names absve given. The United States attorney also contended that the omission in the tariff act of 1890 of the special provisions for “ducks, canvas, pad-dings,” as found in Schedule J of the tariff act of March 3, 1883, existing, as did that provision, alongside of a provision for manufactures of flax, and a provision for burlaps, in the act of 1883, did not throw such ducks, canvas, and paddings into the designation of “burlaps,” found also in paragraph 364 of the tariff act of October 1, 1890, but relegated them to the special provisions in the later act for manufactures of flax, and manufactures of jute and flax, as correctly decided by the collector; citing Robertson v. Rosenthal, 132 U. S. 460, 10 Sup. Ot. 120.</p>

<p>Customs Dutif.s — Magic-Lantern Slides.</p> <p>Slides designed for use in magic lanterns, for the amusement of children, are toys, and dutiable as sucb, under paragraph 438 of the tariff act of October 1,1890.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Gustave A. Jahn & Co., on August 15,1890, imported into the port of New York a quantity of molasses, which, later in the month, they withdrew from warehouse, and exported to the port of Montreal. Upon such withdrawal and exportation, a charge of 10 cents per cask was exacted by the collector for gauging the molasses, under the provisions of section 3023, Rev. St. U. S. The importers paid the charge under, protest, and their protest was referred to the board of general appraisers, who sustained the decision of the collector. The importers then applied to the circuit court for a review of the decision of the board of general appraisers, and that court reversed their decision, Wheeler, J., filing (Jan. 7,1892) the following opinion:</p> <p>“In tbe matter of this appeal of Gustave A Jahn, as to the charge of so much per hundred pounds for weighers’ services on goods entered for exportation. The appeal is against the allowance of those charges, on the ground that by the act of 1883 they were abolished. Now, the first time that any charge was made on that account for any goods entered for exportation was in the act of 1866 (14 Stat. 289). That was an act by itself, consisting of three sections, the first of which is: ‘That upon all weighable articles hereafter exported, upon which a drawback or returned duty is allowed, and upon all weighable goods withdrawn from bonded warehouse for export,there shall be levied and collected, by the collectors of the several ports, three cents per hundred pounds, to be determined by the returns of the weighers.’ And by section 2: ‘That the office of measurer at the port of New York is hereby abolished, and the duties heretofore performed by them shall be performed by the weighers.’ And section 3 is: ‘That the weighers at the port of New York shall receive from and after the passage of this act, an annual salary of twenty-live hundred dollars: provided, that the increase of compensation, over and above the present salary of said officers, shall not exceed in any fiscal year, the amount of fees earned by them.’</p> <p>“Now, this charge is connected right in there under the term ‘fees.5 The charge is a fee for a weigher, provided for by this act for the first time. Now, as to the gaugers, a similar thing is provided by the act of 18(57 (14 Stat. 470) in the tariff act at large, section 3: ‘That upon all merchandise gaugeable by law hereafter exported, upon which drawback or return duty is allowed, and upon all goods gaugeable by law, withdrawn from bonded warehouses for export, there shall be levied and collected by the collectors, of the several ports, ten cents per cask.’ Then section 4: ‘That the gaugers at the port of New York shall receive, from and after the first day of April, eighteen hundred and sixty-seven, an annual salary of two thousand dollars: provided, that the amount of compensation of said officers, as hereby established, shall not exceed in any fiscal year the amount of fees earned by them.’ Thus 1he charges of gaugers on exportations are put in here for the first time, and are called ‘fees.’</p> <p>“Now, these two sections (section 1 of the act of i860, and section 3 of the a,et of 1867) áre brought forward into the Revised Statutes in sections 3023 and 3024, exactly as they were enacted then. The oilier sections have become useless, so they are not brought forward into the statutes. But when those laws were passed these were fees. The dropping out of those sections does not change them at all, although the word -fees’ is lost out by the revision of the statutes into the Revised Statutes. The only question is whether they are fees now. Well, they are a, specific charge for a specific thing, not relating to the actual worth of the things done, as for a quantum meruit. But, whether worth so much or not, they are to have so much a hundred pounds for weighing, and so much a cask for gauging, and that is essentially a thing that comes under the name of ‘fees,’ although in this statute it is not called a ‘fee.’</p> <p>“Now, the act of 1890 (section 22) provides ‘that all fees exacted and oaths administered by officers of the customs, except as provided in this act, under or by virtue of existing laws of the United States, upon the entry of imported goods and the passing thereof through the customs, and also upon all entries of domestic goods, wares, and merchandise for exportations, he, and tho same are hereby abolished.’ The point here is whether that abolishes these fees. Now, it is argued that these are not included, because they are not called ‘fees’ in the statute. But the point is not whether they are called ‘fees’ in the statutes. Tho point is whether they are fees within the meaning of this act, — this section 22 of the act of 1890. Now, congress did not content itself by abolishing the particular sections of tho law relating to fees, and leaving the rest as it was; but they declared emphatically that all fees exacted by customs officers in passing goods through the customhouse, or passing them -through the other way, shall he abolished; that is, the whole thing was cut up by the roots, so that the goods passed through without any charge for fees. Here -was a thing exacted. The collector of the port exacted throe cents on a hundred pounds of sugar entered by these appellants for exportation. The appraisers held that those two sections of tho Revised Statutes were not repealed, so far as this was concerned. But I think congress meant to repeal that, and cut it all out, and leave the goods free, so that there should he nothing- in (ho nal are of fees charged or exacted by an officer in passing goods through the customhouse, either way, and that the appellants were entitled to have this sugar go through without this charge. Therefore 1 decide that this charge, as a charge or fees, was improperly made. T have looked into the case of Oherteuffer v. Robertson, 116 U. S. 499, 0 Sup. Ot. 402, as to charges. In that case all charges were abolished, just as in tins case all fees were abolished. There they said all charges were cut right out, no matter where expressed in the statute; after that they were gone. The decision of the appraisers is reversed.”</p>

<p>Appeal from tlie Circuit Court of the United States for tlie Eastern District of Virginia.</p> <p>This was ail appeal from an order of the circuit court overruling exceptions and confirming the report of a special commissioner, to wliom was referred the petition of William X. Camp and others for tlie payment to them of certain moneys hy the receivers of the (lay Manufacturing Company.</p>

This was a suit by Elias E. Pratt against Lloyd & Supplee to restrain the defendants from infringing complainant’s reissued letters patent No. 7,795, dated July 17, 1887, for improvements in devices for hanging car doors. The complainant is a resident of Massachusetts, and the defendants are residents of Philadelphia. The bill asked the usual decree for an injunction and accounting.

<p>Patents — Duration—Forf.ion Patents.</p> <p>Under Rev. St. § 4887, providing that, patents shall be so limited as to expire with any foreign patent for the same invention “having the shortest term,” the United States patent does not cease when a foreign patent ceases because of nonpayment of patent office fees for more than a part of the term for which the patent might, on payment of all the fees, remain in force.</p>

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.</p> <p>Suit by the Buffington’s Iron-Building Company against William EL Eustis. The bill was dismissed, and complainant appeals.</p>

<p>Admiralty — Settlement op Claim — Fees op Marshal.</p> <p>Under Rev. St. § 829, providing that, when the debt or claim in admiralty is settled by the parties without a sale of the property, the marshal shall be entitled to a commission of 1 per cent, on the first $300 of the claim or decree, and one-half per cent, on the excess, provided that, where the value of the property is less than the claim, commission shall be allowed only on the appraised value thereof, where a case is dismissed without any formal appearance of a claimant, on payment of a Hum less than that claimed,'and without any appraisal, commissions will be allowed only on the amount paid in settlement.</p>

<p>Appeal from the District Court of the United States for the District of Maryland.</p> <p>This was a libel by Abram P. Thompson, master of the schooner William Neely, against the G-eorge W. Bush & Sons Company, for breach of a charter party. The district court rendered a decree for the libelant (60 Fed. 631). Respondent appeals.</p> <p>The court stated the case as follows: The schooner William Neely was chartered by the George W. Bush & Sons Company, of Wilmington, Del., for a voyage from Savannah, Ga,, to New York. A charter party was signed March 28, 1892, containing, among others, the following provisions: “The said party of the second part doth engage to provide and furnish to said vessel a ftill and complete cargo, under and on deck, of resawed Y. P lumber, with stowage, and to pay to said party of the first part, or agent, for the use of said vessel during the voyage aforesaid, four and 87/100 dollars per M. feet, freight measurement, for all delivered and free wharfage. It is understood and agreed that, if charterers give the vessel fifty M. feet per day at Savannah, the rate of freight is to be four and 75/100 dollars per M. foot and free wharfage. Charterers are responsible both at loading-port and discharging port up to a draught of 17% feet. Should the vessel draw more than 17% feet, lighterage, either in New York or Savannah, to be had at the expense of vessel. It is agreed that the lay .days for loading and discharging shall he as follows (if not sooner dispatched), commencing from the time the vessel is ready to receive or discharge cargo: At least forty M. feet per day, Sundays excepted, to be allowed for loading and dispatch for discharging; and that for each and every day’s detention by default of said party of the second part, or agent, eighty-five dollars per day, day by day, shall be paid by said party of the second part, or agent, to the said party of the first part, or agent. The cargo or cargoes to be received and delivered alongside, within reach of the vessel’s tackles, at ports of loading and discharging.” The charterers directed the schooner’s master to report for cargo to the Georgia Lumber Company, at Savannah, and he did so on May 2, 1892. The lumber company advised the master as to the wharf at which he was to load, and the lumber for his cargo, much of which was then ready, alongside within reach of the schooner’s tackles. A controversy arose between the manager of the lumber company - and the master, relative to the selection of a stevedore, the master having contracted with Sam Daniels, a stevedore of the port of Savannah, who he claimed was experienced arid competent, while the manager objected to him as being untrustworthy and incompetent. The master insisted on his right to select his own stevedore, and put Daniels and his gang to work. They had loaded part of the cargo, when the officers of the .lumber company refused to deliver the residue of the cargo, and ordered Daniels and his men off the wharf, which was owned by the company. The lumber company repeatedly offered to deliver the lumber if the master would employ any other stevedore, while the master, refusing to discharge Daniels, notified the company daily that his vessel was ready for the cargo, and that the stevedores were employed to stow it. This contention continuing, the schooner was, at the request of the lumber company, removed from the wharf on the 17th day of May, 1891, by tbe harbor master, and on the 24th of that month the master rechartered at reduced rates. On June 27, 1892, the master of the William Neely, and agent of her owners, filed a libel in the district court of the United States for the district of Maryland, against said George W. Bush & Sons Company, in which it is claimed that the failure to load the vessel at Savannah, under the charter mentioned, was wholly the fault of the Georgia Lumber Company, the agent of the charterer, and that the libelant was in no way resi>onsible for the same. Damages were claimed to the amount of $2,500, because of said failure to load the schooner, and for loss of time resulting therefrom, and process of attachment was prayed against the goods, chattels, credits, and effects of the charterer, then in the district of Maryland. The case was duly matured, and' came on to be heard, when the court found for the libelant, and entered a decree against the stipulator and respondent for the sum of $2,010.35, with costs. From this decree an appeal has been allowed.</p>

<p>1. Shipping-Loss by Bad Stowage.</p> <p>A ship accountable by the bill of lading under which cocoanut oil was shipped, for leakage caused by bad stowage, is liable where the leakage was caused by alloiving the oil casks to remain on deck for two Avceks in the hot sun, and by the use of green cocoanuts for dunnage.</p> <p>2. Same.</p> <p>Stowage of cargo held to be bad, where heavy casks of oil were placed on small casks of plumbago, and the ship held liable for the damage resulting.</p>

<p>Navigable Waters — Piers—Injury to Vessel.</p> <p>Where a vessel, in going out of a harbor, gets out of her course, and is injured by striking a pier, tlie owner of The pier, though it is an obstruction to navigation, is not liable for the loss, the vessel having been at fault in starting out in tlie existing state of the wind, sea, and tide, especially without a pilot, and in persisting in her efforts to get out after it had become hopeless, and in not anchoring- when driven towards the pier.</p>

<p>Corporations — Citizenship — Construction op , Statute — Removal op Causes.</p> <p>Act Tema. 3877, c. 31, entitled “An act to declare the terms on which foreign corporations organized for mining * * * may carry on their business * * * in this state,” providing (section 1) that such corporations may become incorporated in the state, and carry on the business authorized by their respective charters, aud enjoy the rights and do the things therein specified, upon the terms therein declared, and (section 2) that they shall file a copy of their charter in the office of the secretary of state, and (section 3) that “such corporations shall be deemed and taken to be corporations of this state, and shall be subject to the jurisdiction of the courts of this state, aud may sue and be sued therein in the mode * * * directed in the case of corporations created * •*• * under the laws of this state”; and Act Tenn. 1891, c. 122, amending the former act so as to include corporations chartered for any purpose, and providing (section 4) that, “when a corporation complies with the provisions of this act, it shall then be, to all intents and purposes, a domestic corporation, and may sue and be sued in the courts of this state, and subject to the jurisdiction of the courts of this state, just as though it were created under the laws of this state,”— do not make such a corporation a corporation of Tennessee; and therefore, being sued in the courts of that state, it may, by reason of its citizenship in the other state, remove the cause to a federal court.</p> <p>2. Same — Construction op Statute.</p> <p>A corporation of one state, doing business in another by permission of the'latter, does not thereby become a citizen of this state also, unless the language of the act granting permission clearly evinces a purpose to adopt such corporation or to create a new corporation.</p> <p>8. Same.</p> <p>To make such corporation of one state a corporation of another state also, the language used must imply creation or adoption, and must, in form and effect, establish between the latter state and such company the same relations as exist between such state and a corporation originally created by that state.</p> <p>4 Samp,.</p> <p>A mere declaration or indication of purpose in the caption or otherwise is not controlling in the interpretation where the operative parts of the statute in effect only prescribe the terms and conditions upon which a foreign corporation is authorized to do business in a state other than that which created it.</p>

<p>Removal op Causes — Time op Application.</p> <p>When the time allowed by the laws of „the state to defendant to answer has expired, without legal extension, the right of removal is lost, although there is an understanding between the parties for an extension of the time to answer, for their mutual convenience, and although' the state court has power to enlarge such time, or to open defendant’s default and receive an answer.</p>

This was a, suit by Gustavus P. Rhino against Thomas J. Emery, John J. Emery, William G. Roberts, trustee under the will of Eliza A. Berry; and in his own right. Howard O. Hollister, as executor of Eliza A. Berry, Sarah A.-Weller, and M. E. Sperry, to set aside certain transactions on the ground of fraud,'and for an accounting. Ilemurrers by defendants to the bill for insufficiency were sustained, and an amended bill was filed, in which Hollister was not made a defendant.

<p>Estoppel — Corporation—Acquiescence op Stockholders.</p> <p>The B. L. & W. Co., a corporation organized to acquire water rights, and sell or lease tbe same for irrigation and other purposes, was tbe owner of a dam controlling tbe waters of tbe A. river, and held, by contract with tbe owners of tbe S. F. and N. F. ditches and tbe R. canal, certain rights of way for such water through said ditches and canal. In February. 1SS7, said company issued to its stockholders transferable certificates, entitling them to certain quantities of water from tbe dam, to be delivered at S., a point on tbe S. F. ditch, for which such stockholders, by concurrent contracts, agreed to pay one dollar per year for each certificate. From tbe time of tbe issue of such certificates, the holders thereof, at tbe request of tbe general manager of tbe B. L. & W. Co., and with tbe knowledge and approval of its directors, received tbe water to which they were entitled, not at S., as provided in tbe certificates, but at various points along tbe R. canal, which led from S. to a-point about 3Ys, miles distant; this arrangement being for tbe advantage in certain respects of both parties. The certificate holders, with tbe knowledge of tbe company, constructed expensive and permanent works to connect with said R. canal, and to receive their water from it, and continued so to receive tbe water, without any charge in addition to the one dollar per year provided for in tbe certificates and contracts, until March, 1893, when tbe board of directors of tbe B. I. Co., which had succeeded to all tbe property, rights, and obligations of .the B. L. & Vf. Go., passed a resolution fixing a charge for right of way of such certificate holders’ water from S. through the R. canal at two dollars per year in addition to the one dollar provided for in the certificates and contracts, pursuant to which resolution demand was made for such two dollars per year from March, 1893. Held, that the B. L. & W. Oo. and the B. I. Oo., as its successor, were estopped to demand from the certificate holders any stun for use of the It. canal in addition to the one dollar per year stipulated in the contracts, notwithstanding that there had been no formal action of the board of directors, and that three of the seven directors of the corporation, who consented to its course of conduct, were themselves interested as certificate holders; the whole transaction having boon open, and easily to be known by any one interested in the corporation who paid attention to its affairs, and no stockholder having protested.</p>

Appeals from the Circuit Court of the United States for the District of Massachusetts. This was a suit by Reuben T. Pollard and others against Leverett Saltonstall, collector of the port of Boston, and Edmund Reardon, for the foreclosure of a chattel mortgage and an injunction. The circuit court rendered a decree for complainants. 58 Fed. 861. Defendant Reardon and complainants separately appealed from the decree.

<p>I, Corporations — Liability of Officers fob Infringement of Patents.</p> <p>Individual officers and directors of a corporation which has infringed a patent cannot be ordered to account for the profits of such infringement.</p> <p>S. Same.</p> <p>Whether such individual officers and directors can, in any ease, he enjoined from infringing, — quaere; but where the acts of such officers and directors have been all in their official, not their individual, capacities, and there is no obstacle in the way of obtaining full relief against the corporation, and at the time of suit such, officers and directors have resigned i.lieir positions, an injunction against them will be refused.</p>

<p>Appeal from the Circuit Court of the United States for the East-tern District of North Carolina.</p> <p>This was a suit by W. S. O’B. Robinson, receiver of the First National Bank of Wilmington, N. C., against the city of Wilmington and William A. Willson, to enjoin the collection of certain taxes. The circuit court dismissed the bill. Complainant appeals.</p>

<p>This was a creditors’ bill by Joseph J. Kittel against the Augusta, Tallahassee & Gulf Railroad Company, William Clark, and others. Defendants demurred to the bill.</p>

<p>1. Unreasonable Contract — Public Policy.</p> <p>The B. Co., which was engaged in constructing, operating, and selling machines for making cigarettes, entered into a written contract with H., by which it employed him at a salary of $50 per month, to be afterwards increased, to set up and operate its machines, and by which it was agreed that H. should do all in his power to promote the interests of the company, and that in ease he could make any improvement in the machines, either while in the company’s employ or at any time thereafter, the same should be for the exclusive use of the company. The last provision was staled to H. to be a condition precedent to the making of any contract, the company having previously suffered from its employés making improvements and selling them to rivals. EeU, that the contract was not unreasonable or unconscionable, nor contrary to public policy.</p> <p>2. Same — Consideration.</p> <p>. EeU, further, that the contract was an entire one, and neither it nor any part of it was without consideration.</p>

This was a bill in equity brought by George Playford, a citizen of .the state of Ohio, against William Lockard, a citizen of Pennsylvania, , resident in the city of Philadelphia, The bill averred that on September 1, 1880, the complainant was seisedin his demesne as of fee of a certain lot or piece- of ground, with the tenement thereon erected, slluated in the said city of Philadelphia, and particularly described in the bill; that on or about that date the complainant agreed…

This was a petition of the receivers of the Philadelphia & Beading Bailroad Company and the Philadelphia & Beading Coal & Iron Company, together with the Philadelphia & Beading Bailroad Company, for authority to enter into an ágreement for the partial readjustment of the affairs of the Philadelphia & Beading Bailroad and Coal' & Iron Companies, and to make the payments therein provided if the plan be carried into effect.

<p>• Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Suit by the Farmers’ Loan & Trust Company of New York against the Forest Park & Central Railroad Company and others to foreclose a mortgage. Decree for defendants. Complainant appeals.</p>

<p>1» Claims against the United States — Assignment—Section 3477, Rev. St.</p> <p>The provisions of section 3477, Rev. St, prohibiting and mailing void transfers of any claim against the United States, before the allowance of such claim, apply only to claims existing, at the time of the transfer, in the form of a right to demand money from the United States, and not to cases where, at the very inception of a transaction out of which a claim against the United States may arise, one party assigns to another the contingent profits he hopes to make, but which do not then exist, and can only be secured by the loan of the assignee’s money to the assignor.</p> <p>2. Same.</p> <p>B., a sugar planter, in March, 1892, in order to secure advances to be made by one M., gave to M. a mortgage on his plantation, which also contained a clause assigning and pledging- to the -mortgagee any and all bounties which should be allowed B. by the government of the United States, pursuant to the act of congress of October 1, 1890, upon sugar made by B. during that year, agreeing to indorse and deliver to the mortgagee all warrants and chocks received for such bounty. No sugar had then been raised or bounty earned, but, subsequently, claims for bounty for the year 1892 were allowed by the government and paid. M. claimed the amount of such bounty, to be applied on his mortgage, and the syndic of B.’s estate, appointed in insolvency proceedings, claimed that the same should he paid to him for the benefit of B.’s general creditors. Held, that the prohibition of assignment of claims against the United States, contained in section 3477, Rev. St., did not apply, the case not being within the mischief of the statute, and that M. was entitled to receive and retain the proceeds of the bounty to the extent of the balance remaining due upon his mortgage for advances in 1892.</p>

<p>In Error to the Circuit Court of the United States for the District of Maine.</p> <p>This was an action brought by William L. Miller, Charles H. Bartlett, William E. Baxter, and Everett T. Nealey, partners as Treat’s Falls Ice Company, against Wallace C. Andrews, Thomas JR. McXeal, Carroll L. Biker, and John F. Huckel, partners as C. L. Biker, for the sum of $5,282.58, due upon a certain contract in writing. The action was brought in the supreme judicial court of the state of Maine. The defendants, being citizens of the state of New York, had the case removed to the circuit court, where they appeared and pleaded. The cause was submitted to the court, trial by jury being waived. The court found the facts, and the conclusions of law thereon,-as follows:</p> <p>The facts found are:</p> <p>(1) The plaintiffs were engaged in the business of cutting, storing, and selling ice at Bangor, Ble.</p> <p>(2) The defendants were dealing in ice in New York.</p> <p>(3) On the 12th day of August, 1890, the parties entered into a written agreement, as follows:</p> <p>“First. The parties of the first part [the plaintiffs] agree to load at the port of said Bangor, at some dock having at least twelve feet of water at low tide, sixteen hundred (1,600) tons of good merchantable ice, cut on tbe Penobscot river, on board the barge Saugerties, now on tbe way to said Bangor.</p> <p>“Second. The parties of the second part [the defendants] agree to tow said barge, when loaded as aforesaid, with all reasonable speed to the port of New York, and there sell the said cargo for tbe best price obtainable.</p> <p>“Third. Tbe parties of the second part agree to pay a draft, on one day’s sight, drawn on them by tbe parties of the first part, for the amount of said cargo, at two and fifty one-hundredths dollars per ton as weighed in said Bangor by a sworn w'eigher, a certificate of tlie weight of said cargo to he attached to said draft, together with the hill of lading, and said two and fifty one-hundredths dollars per ton is guarantied to the parties of the first part by the parties of tbe second part and is to be paid to them in any event, except in case of loss of said barge or its cargo, as provided in sect. 9. From the proceeds of the sale of said cargo in New' York the parties of the second part are to have one and fifty one-hundredths dollars per ton freight, one half the cost of towing in and out of the Penobscot river, and the cost of discharging said cargo.</p> <p>“Fourth. The parties of the first part agree to load from two hundred to two hundred and fifty tons per day, and for every ton over two hundred and fifty tons which they average the parties of the second part agree to make a reduction of twenty cents per ton from the freight.</p> <p>“Fifth. The parties of the second part agree to advance all necessary expenses incurred after said cargo loaves the port of Bangor.</p> <p>“Sixth. Said cargo is to remain the property of the parties of the first part until sold and paid for.</p> <p>“Seventh. The net profits of said cargo, assuming two and fifty one-hundredths dollars per ton, w'eighed as aforesaid, as the basis of cost on board said barge at Bangor, are to be equally divided between tbe parties of the first and second parts.</p> <p>“Eighth. Immediately after the sale of said cargo, the parties of the second part agree to furnish the parties of the first part with a detailed statement of the receipts and expenses of said cargo, together with a check for their share of the net profits.</p> <p>“Ninth. In the event of the loss of said barge or its cargo, or tbe loss of tbe ice in tbe ice houses of the parties of the first part in said Bangor, this contract shall at once terminate and become void, and the two and fifty one-hundredths dollars per ton paid as aforesaid is to be returned to tbe parties of the second part.”</p> <p>Afterw'ards, by mutual agreement in writing of the parties, this contract was so modified that the quantity of ice to be shipped was changed to l,63819/so tons, instead of 1,000 tons,but in all other respects was continued unchanged. Pursuant to this agreement, at Bangor, l,638i9/80 tons of good merchantable ice, cut on tbe Penobscot river, was shipped by the plaintiffs on board the Saugerties, -which was under charter to the defendants at $50 per day. The barge, with this cargo on board, left Bangor August 30th, and arrived near New' York September 5th. On the 28th of August, the market price of ice at New' York being then depressed, Biker, one of the defendants, who took the active management of this business, wrote to the plaintiffs, requesting them not to draw at one day’s sight, with the bill of lading, for the amount of the shipment according to the contract, and promised to pay the amount before he unloaded the cargo. To this, reply was made that one of the plaintiffs would see Biker in New York. September 5th Mr. Bartlett, one of the plaintiffs, was in New York, and bad several Interviews with Riker and one of his partners, without referring to any draft. On the 12th of September, the ice in the meantime having remained on board the barge unsold, Bartlett told Riker he wanted the contract performed, and on the 13th gave notice that he had determined to draw; on the 15th a draft at one day’s sight was drawn on Riker by Bartlett in the name of his company for $4,000, to which was attached the weigher’s certificate and the captain’s copy of the bill of lading. Bartlett had left the other copies of the hill of lading at Bangor, and had obtained tlie captain's copy for the express purpose of attaching it to the draft. This draft was duly protested for nonacceptance, and again, on the 19th, for nonpayment. No arrangement having been readied by the parties, the plaintiffs, by Bartlett, executed a bill of sale ol‘ the ice to one Smith, and indorsed and delivered to him the captain's copy of the bill of lading that had been attached to the draft, but this transfer was merely for the convenience of the plaintiffs in the transaction of subsequent business in regard to tlie ice in New York. As between Smith and the plaintiffs, no sale of the cargo was intended. It was only a convenient method of appointing and authorizing an agent to manage the cargo for them. On tlie day that he received this bill of sale, and the hill of lading attached to it. Smith demanded of the owner and captain of the barge, under these documenta, a delivery of the cargo. They refused to make such delivery unless they were indemnified against any claim of Riker and partners, who notified the owner not to deliver the ice to Smith, and that he would do so at his peril. Smith libeled the barge in the United States district court in the Southern district of New York for the nondelivery of the cargo. The owner of the barge libeled Smith for the amount due under the charter. When the ice was finally discharged from the barge, it was found to have been damaged and wasted by the escape of steam into the cargo, and was generally in bad condition, and Smith libeled tlie barge for this damage and waste. All these libels were heard and disposed of in the same court. The first was dismissed as prematurely brought; on the second, the sum of $2,500 and costs was decreed due for the use of the barge for 57 days from August 30th, during which time the ice was on board, less 7 days for which the barge was held responsible; and on the third, damages for injury of the cargo by tlie fault of the barge by suffering steam to escape Into it, in the sum of $1,900 and costs, were decreed to the libelant, and the amount; was ordered to be set off against the amount of the decree of the second libel. The difference between the two decrees was $746.83, and was paid to the owners of the barge by these plaintiffs, through Smith, the nominal party in the libels. The plaintiffs also paid bills of the attorneys for services, and $35 for towage of the barge at New York; $4.98, costs of protest of their draft; $105 for care of and weighing out the cargo; and $53.53, expenses of sale and commissions. After considerable delay, and after Riker, when, on the 24th of September, another copy of the bill of lading having been received, withdrew his objection to delivery of the ice, the owners of the barge consented that the cargo should be delivered to 8mith, who was only the agent of the plaintiffs, upon his promise to pay $50 a day for the use of the barge. The plaintiffs, through Smith, negotiaied a sale of the ice at $3.50 per ion, but, after the discharge of 80 tons, it was found fo be damaged and in bad condition, and the acceptance of more was refused. The 80 tons delivered have not been paid for at any price. Failing to find purchasers for the remainder at private sale, 1he plaintiffs advertised and sold it at public auction. It brought $288.95, at 65 cents per ton. The plaintiffs and Smith, their agent, used all proper efforts to avoid loss on tne sale, and to protect, all interests. The defendants utterly failed to advance the freight and other expenses of the cargo, or to pay the guarantied price. They took no effective steps to find purchasers, or to provide for ihe protection and disposal of the ice." After all negotiations for carrying out the contract or for adjusting the business had failed, and when the cargo, from its naiure, was wasting and shrinking in value, they interposed further delay by forbidding the barge to deliver it to the owners. The plaintiffs, when they had finally gained control of the ice, made all reasonable efforts to sell it to the best advantage, and so far as possible to protect against loss all parties interested.</p> <p>Conclusions.</p> <p>Tbe contract between these parties cannot be treated as a sale. In some aspects it was like a shipment on joint account, with special terms. If it be regarded as a partnership in a particular adventure, those conditions of the copartnership by which the defendants were to secure to" the plaintiffs at least $2.50 per ton at in-take weight for the ice shipped, and were themselves to bear all losses, must be regarded. It is better to treat it as a special contract, according to its terms, by which the defendants undertook, in consideration that the plaintiffs would ship the ice, to return to- them, free of any expense, $2.50 per ton, before the property should pass out of the control and custody of the shippers. This action proceeds on that view, and is for damages for the breach of such a contract. Whatever view be taken of the nature of the contract, the same result will be reached. The defendants have wholly failed to perform their part of it. They have not been prevented by any wrong on the part of the plaintiffs. The loss of the plaintiffs from the defendants’ breach is the same and the damages suffered by them are the same, under any interpretation of the contract. No act or acts of the plaintiffs can be held as a waiver of its terms. The only question is, what are the dam-</p> <p>ages which plaintiffs should recover?</p> <p>The l,638iySo tons at $2.50 amount to............... $4,003 59</p> <p>Of this plaintiffs have received from auction sale the sum of'........................................... $288 95</p> <p>They are chargeable with value of the 80 tons delivered and accepted, on the private sale, before rejection of rest, amounting to................................ 280 00</p> <p>- 568 95</p> <p>Leaving a remainder or........................ $3,520 64</p> <p>They should also recover cost of protest.............. $ 1 98</p> <p>Towage ............................................ 35 00</p> <p>Care of cargo and expense of weighing out........... 105 00</p> <p>Excess of decree in favor of barge, for her use........ 746 83</p> <p>Commissions and expenses of sale.................... 53 53</p> <p>- 942 34</p> <p>$4,468 98</p> <p>In addition to these items the plaintiffs claim allowance of their counsel fees and expenses of litigation In New York. These expenses were not a result of the defendants’ failure to perform their contract, nor did the defendants contract to bear them. The claim for these expenses is disallowed. The plaintiffs are also entitled to interest from the date of the writ.</p> <p>From this decision of the court, writ of error was allowed to this court.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a suit by Edward C. Machen against Paul Butler and Adalbert Ames, administrators c. t. a. of Benjamin E. Butler, deceased, for the sum of $17,875. Upon the trial of the case the court, upon the question of proof and preponderance of evidence, charged the jury as follows:</p> <p>“There are certain rules touching what we call the ‘burden of proof,’ to which I desire to call your attention. In criminal cases, for a reason which I need not explain to you, the law holds the United States to strict rules as to the burden of proof. But in civil cases, where the issue must be determined one way or the other, — either one party or the other must prevail, — the law requires only what is called a ‘preponderance of evidence.’ That is to say, if, upon a certain proposition which the plaintiff is hound to prove, or upon a proposition which the defendant is bound to prove, after you weigh all the. evidence in the case, you have an'opinion in favor of the plaintiff upon the issues which he is bound to prove, or in favor of the defendant upon the issues which he is bound to prove, then you will act upon that opinion, no matter how slight it may be, and no matter bow light may he the preponderance — how small may be the preponderance — of evidence in favor of it. Upon the issues which the plaintiff is bound to prove there must be, in order to enable you to find these issues in his favor, a preponderance of evidence in his favor, and so upon the issues which the defendant is hound to prove. I do not know that I can explain what is meant by preponderance of evidence, except that the result of it must be not merely guesswork on your part. It is not sufficient for you to shirk, under cover of the rule of mere preponderance of evidence, by simply guessing; but there must be sufficient evidence in the case — a sufficient preponderance of evidence — to enable you to form an opinion. No matter how doubtful or uncertain you may be as to the correctness of that opinion, if it is an opinion based upon the balancing of all the evidence, no matter how weak, or how doubtful you may be as to its correctness, you are entitled to follow that opinion.”</p> <p>The defendants sued out a writ of error, and assigned this charge as their second assignment of error.</p>

<p>1. Interstate Commerce — Discriminating Rates — Injunction — Suit by United States.</p> <p>Under the amendments by the acts March 2, 1889, and February 10, 1891, to the twelfth section of the interstate commerce law. authorizing and requiring the commission to execute and enforce' the act, and providing that on the request of the commission it shall be the duty of any district attorney of the United States to institute in the proper court, and to prosecute under the direction of the attorney general of the United States, all necessary proceedings for the enforcement of the provisions of the act, and for the punishment of the violations thereof,^the district attorney so requested may, under the direction of the attorney general, prosecute a suit in the name of the United States against a railroad company to enjoin it from discriminating in rates against one city in favor of another city.</p> <p>S. Same — Prebiwinary Investigation by Commission.</p> <p>Under such amendment, the formal preliminary investigation by the commission, authorized by the original act, is not necessary to vest jurisdiction in the court.</p>

<p>1. Contracts — Interpretation—Awards by Venezuelan Mixed Commissions.</p> <p>Between 1817 and 1821, one I. furnished supx>lies to the government of Venezuela. Payment therefor not having been made, I. went to Venezuela to collect the debt, and in 1832 secured a judgment in a court of Venezuela, against the government, for $70,520. On September 25, 1832, I. entered into a written contract with one C., whereby, in consideration of services rendered in procuring said judgment, I. agreed to pay C. 10 per cent, of the amount of his claim on the government of Venezuela “as soon as the payment or satisfaction is realized, in virtue of the judgment.” Appealswere taken by the government of Venezuela from the judgment, but the same was affirmed. Subsequently, however, by a proceeding known as “restitutio in integrum,” the government obtained the vacation of the judgment, and caused the matter 1o be restored to the position in which it was before such judgment was entered. Failing to obtain payment from Venezuela, I.,and others having claims against that country, sought the intervention of the United States government, and in 1S6G a convention was concluded between the United States and Venezuela, under which the claim of I., with others, was submitted to a mixed commission, authorized to make such decision “as they should deem conformable to justice.” The commission awarded to I. the amount fixed by the judgment of the Venezuelan court, with interest, and, in pursuance of such award, certain payments on account were made in 1871 and 1876. Both Venezuela and certain citizens of the Unit.ed States being dissatisfied with the proceedings of this commission, a new treaty was concluded in 1885, providing for a new commission, also authorized to decide “as they should deem conformable to justice,” which commission made the same award to the representatives of 1. as the first commission, deducting the payments on account, and further payments were afterwards made on this award. The representatives of C. claimed the 10 per cent, commission on the payments made to 1. Held, that the payments agreed to be made to G. were contingent, upon I.’s recovering satisfaction for Ms judgment against Venezuela; that such satisfaction was never realized, the government of the United States not having attempted to collect the judgment, but its intervention having been strictly diplomatic and peaceful, the awards of the commissions having been made, independently of the judgment, upon the merits of the claim, and not at: all in consequence of G.’s services; and that the 10 per cent, agreed to be paid to G. never became due, under the terms of the contract.</p> <p>2. Payment — Presumption after Twenty Years.</p> <p>Shortly after the execution of the first contract, I. also made a second contract with C., by public record, according to the law of Venezuela, whereby he acknowledged himself indebted to O. in the sum of $4,400, for moneys advanced by O., and agreed to pay the same from the first funds paid him by the government of Venezuela, to which 0., by the same instrument, assented, and agreed to wait. G. died in 1836, and his heir, under the law of Venezuela, immediately succeeded to all his property, with the right to demand, sue for, collect, and recover all claims due him. I. died in 1856, and his estate was duly administered. No claim was made on behalf of O. until 1892, when letters of administration were taken out in Pennsylvania, and suit brought upon the contract. Held that, even assuming that the evidence presented did not prove payment of the debt, in fact, as it appeared to do, the debt would be presumed to be iiaid, since for more than 20 years there had been a person entitled to demand and receive It, who might have taken out administration if he so desired, and, even if G.’s agreement to wait bound him for more than a reasonable time or after the vacation of I.’s judgment against Venezuela, more than 20 years had elapsed since the first payment, in 1871, which, according to the claim of O.’s representatives, was a payment upon the judgment.</p>

This was an action by the Merchants’ National Bank of Hillsboro, Ohio, against David Armstrong, receiver of the Fidelity National Bank of Cincinnati, to recover damages for false representations and deceit. Defendant demurs to the complaint.

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was an action by Charles Keats against the National Heeling Machine Company for personal injuries received by Mm while working for defendant, caused by Ms clothing being cauglit by a set screw on a rapidly revolving shaft in defendant’s factory. At the trial the court directed the jury to find for defendant, and judgment for defendant was entered on the verdict.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>In September, 1892, Joseph Brow filed his declaration in the circuit court for Wayne county, Mich., against the Wabash Western Railway, seeking to recover $20,000 damages for a personal injury caused, as he alleged, by defendant’s negligence. On the 24th of the same month the sheriff of the county duly served Fred J. Hill, as agent of the defendant, with a copy of the declaration, and a notice to appear and plead in 20 days. On October 7th the defendant filed its petition for removal as follows:</p> <p>“To the Circuit Court for the County of Wayne, aforesaid: The petitioner, the Wabash Western Railway, defendant in the above-entitled cause, shows to the court as follows: (1) That the matter and amount in dispute in the above-entitled cause exceeds, exclusive of interest and cost, the sum or value of two thousand dollars. (2) That the controversy in said suit is between citizens of different states, and that the petitioner, the defendant in the above-entitled suit, is a corporation created and existing under the laws of the state of Missouri, having its principal business office at the city of St. Louis, in said state, and a citizen of the said state of Missouri, and a resident of said state of Missouri, and that the plaintiff, Joseph Brow, was then, and still is, a citizen of the state of Michigan, and a resident of the county of Wayne, in said state. (3) Your petitioner offers herewith good and sufficient security for the entry by it in the circuit court of the United States for the Eastern district of Michigan on the. first day of its next session of a copy of the record in said suit, and for paying all costs that may be awarded by said circuit court if said court shall hold that this suit was wrongfully or improperly removed thereto. Your petitioner therefore prays this court to proceed no further in this suit, except to make the order of removal required by law, and to accept said surety and bond, and to cause the record herein to be removed into said circuit court of the United States for the Eastern district of Michigan.”</p> <p>Defendant also filed his bond, conditioned to enter in the United States district court for the Eastern district of Michigan on the first day of its next session a copy of the record, and to pay all costs if the suit should be found to be wrongfully removed. The order of removal was granted the same day. On October 14th the record was filed in the court below, and after-wards, upon the same day, this motion:</p> <p>“And now comes the Wabash Western Railway, defendant (appearing specially for the purpose of this motion), and moves the court, upon the files and records of the court in this cause, and upon the affidavit of Fred J. Hill, filed and served with this motion, to set aside the service of the declaration and rule to plead in this cause, and to dismiss the same for want of jurisdiction of the person of the defendant in the state court from which this cause was removed and in this court.”</p> <p>The motion was supported by the following affidavit:</p> <p>“Fred J. Hill, being- duly sworn, deposes and says: (1) That this deponent on the 24th day of September, A. D. 3892, when lie was served with a copy of 1he declaration in tiiis canse, was the freight agent of the Wabash Kailroad Company, a corporation which owns and operates a railroad from Detroit to the Michigan state line, and was not an agent of the Wabash Western Railway, defendant in this suit. (2) That on the day aforesaid the defendant in this cause, the Wabash Western Railway, did not own, operate, or control any railroad in the state of Michigan, or have any officers or agent of any description therein, and did. no business, and had no property and no place of business, in said state; and that, on said day deponent was not a ticket or station agent of the said defendant, nor an officer or agent of the defendant; of any description.”</p> <p>No other evidence was offered on the issue raised by the motion. The circuit court denied the motion, a,nd required defendant to plead. To this action tlie defendant excepted, and went to trial under protest.</p> <p>Brow, the plaintiff, was injured while repairing a car of defendant in its yards at Delray, near Detroit. He was one oí a gang of car repairers In defendant's employ at work on some seven cars under the direction of one Heiler as foreman. The cars were on a track known as the “repair track.” Blue flag signals were displayed, to show to the yard men that men were at work on and under them. A switch engine crew' was directed to push some other cars which had been repaired on to a track parallel with the repair track. Instead of doing so, they pushed the cut of cars on to the repair track, bumped the cars standing there together, and severely injured plaintiff, who was at work under his car putting in a drawbar, by pinning him down between his tool box and one of the axles. Plaintiff’s evidence tended to show that the mistake in the turn of tlie switch occurred, through the negligence of one Thompson, a switchman, who was drunk; that a few weeks before, a similar mistake had been made by the same man, in the same drunken condition; that Heiler, plaintiff’s foreman, had at that time reported Thompson’s drunken negligence to Henderson, the foreman of the yard, and to Ruxton, the general foreman of the car dejjartment in tlie yard; that Henderson, in the absence of Dimick, the general yard master of defendant, had the authority to employ and discharge switchmen under him. Defendant’s evidence tended to show that the accident was caused, not by Thompson, but by the foreman of tlie switch crew, and that Thompson was a sober man, and that he and plaintiff had worked together in the same yard. Defendant further introduced a release, signed by Brow, as follows:</p> <p>"Whereas on tlie 9th day of Nov., 3887, I, Joseph Brow, was an employs of the Wabash Western Railway Company, and as such employs was engaged as carpenter in Delray yard; and whereas, I, the said Joseph Brow, received certain injuries as follows: ribs bruised; and whereas, the said railway company denies any and all negligence on the part of itself, its officers, agents, and employes, and denies any and all liability for damages for the injuries so as aforesaid by me received: Now, therefore, for the purpose of fully ending- and determining- the question of liability on the part of the said railway company for damages for the aforesaid injuries, and for the purpose of avoiding litigation, I, tlie said Joseph Brow, for and in consideration of tlie premises and of the sum of one dollar to me in hand paid, the receipt whereof I do hereby acknowledge, and of re-employment by said railway company for such time only as may be satisfactory to the said railway company, do hereby waive and relinquish all claims which I may have against tlie railway company for damages l’or tlie aforesaid injuries, and do hereby release the said railway company of and from all claims as aforesaid.</p> <p>“Witness my hand and seal, this 10th day of Nov. A. D. 1887. [Signed] Jose.ph Brow. [Seal.]”</p> <p>Ferguson, whom defendant called to prove plaintiff’s signature to the release, was the clerk of tlie master mechanic, Ruxton. Ferguson and Ruxton witnessed the signature. Ruxton said he could not remember whether remuneration or employment was given to the plaintiff, but that defendant never refused to take him back. Ferguson testified that he did not think that any money had been paid to plaintiff, or that be had received any employment from defendant. In rebuttal, plaintiff stated that he was sent for to go to .the office in the yard; that he there saw Ferguson, who had this release, and two other papers; that Ferguson asked him his wife’s name, and those of his children, and then gave him a pen, and said, “Sign this;” that nothing wasj.s.aid to him about employment; and that he received no consideration in employment or money from defendant. Defendant moved that a verdict be directed in its favor. This was overruled.</p> <p>■ The only part of the charge material to the present discussion concerns the release. It was as follows: “I charge you, in regard to the release, inasmuch as that is offered in bar of the plaintiff’s claim, there is not, in view of the testimony laid before you, such a consideration proved to have been given for the execution of that paper as makes it competent for you to find it to be a bar to recovery. The testimony is that there was no money paid, and that there is nothing in that paper which obliges the company to employ the plaintiff.” The jury returned a verdict for $4,000 for plaintiff. The court made an order granting a new trial, unless plaintiff entered a remittitur of $1,500, which he did. Thereupon judgment was entered for $2,500. The judgment has been brought by writ of error to this court for review.</p> <p>Several of defendant’s exceptions and assignments are based on the circuit court's rulings on matters of evidence. Defendant excepted to the admission of evidence that 19 days before, Thompson, while drunk, had caused a similar accident. Again, the defendant excepted to the refusal of the court to exclude a statement by Heiler that, he had reported Thompson’s drunkenness and negligent conduct to Henderson, and that Henderson had responded: “What of it? If Thompson would kill three or four Polacks. there is enough of them yet.” The other exceptions related to the evidence of Ferguson, Buxton, Heiler, and plaintiff as to the signing of the release, it being claimed by counsel for defendant that, after proof of the signature, the release under seal was a binding contract, importing consideration, and could not be varied or contradicted and could only be set aside in equity.</p>

In Error i.o the Circuit ComT of the United States for the Eastern Division of ihe Southern District of Ohio. This was an action by John P. Camp against the Baltimore & Ohio Railroad Company to recover damages for personal injuries. On the trial in the circuit court a verdict and judgment were given for riie plaintiff.

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Action by Forest E. Bryant, administrator of James Davidson, deceased, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company, for death of deceased. Judgment for .plaintiff.</p>

<p>Appeal from the Circuit Court, of the United States for the Southern District of New York.</p>

<p>Removing Liquors under False Bk vnds — Rev. St. § 3449.</p> <p>A compounder 'or rectifier of liquors, who labels bis products as those of a well-known distiller and rectifier, and attempts to place them on the market under such brands, removing them for that purpose from his warehouse to another place, docs not thereby subject his liquors to forfeiture and himself to fine, under Rev. St. § 3449, which provides that, whenever any person ships or removes any liquors under any other than the proper name or brand, known to the trade as designating the kind and quality of the contents of the package, he shall forfeit the liquors, and be subject to fine.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>This was an application by the surveyor of customs, acting as collector at the port of Cincinnati, to review a decision of the board of general appraisers reversing the decision of the surveyor relative to the duties upon certain merchandise imported by Kheinstrom Bros. The circuit court sustained the decision of the board of general appraisers. 60 Fed. 599. The surveyor appeals.</p> <p>Rheinstrom Bros, imported into the United States from Germany, In 1892, 14 casks of an article invoiced to them as cherry juice, and so entered at . the port of Cincinnati. It was assessed by the surveyor under Schedule A, § 1, par. 8, of the act of October 1, 1890, as an alcoholic compound not specially provided for, at two dollars a gallon and 25 per cent, ad valorem. Against this action the importers duly protested and appealed to the board of general appraisers. Their contention was that the article in question was cherry juice containing not more than 18 per cent, of alcohol, and, as such, dutiable under Schedule H, par. 339, of said act, at 60 cents a gallon; or that, if it did not come under that specific description, then it most resembled in material, quality, texture, or tbe use to which it might be applied the enumerated article cherry juice, and was consequently chargeable with the same rate of duty as cherry juice, in accordance with the provisions of section 5 of that act The board of general appraisers adopted tbe first alternative suggested by tbe importers, and reversed the act of the surveyor . holding that the article in question was cherry juice containing not more than 18 per cent, of alcohol. From this decision an appeal was taken to the circuit court, where the action of the board of appraisers was sustained. The paragraphs and sections of- the act of October 1, 1890 (26 Stat. 567 et seq.), involved in this controversy, are as follows: Section 1, par. 8: “Alco- - holie compounds not specially provided for in this act, $2.00 per gallon and • twenty-five per cent, ad valorem.” Section 1, par. 339: “Cherry juice and ■prune juice, or prune wine, and other fruit juices not specially provided for in this act, containing not more than eighteen per cent, of alcohol, sixty Cents per gallon.' if containing more than eighteen per cent, of alcohol. $2.50 per proof gallon.” Section 5: “Tliat each and every Imported article not enumerated in this act, which is similar either In material, quality, toxture, or the use to which it may he applied to any article enumerated in this act as chargeable with duty, shall pay the same rate of duty which is levied on the enumerated article which it most resembled in any of the particulars before mentioned; and if any non-oimmerated article equally resembles two or mors; enumerated articles on which different rates of duty are chargeable, there shall be levied on said noil-enumerated article the same rate of duty as is chargeable on the article which it resembles, paying the highest rate of duty.” Cherry juice was at the time of the adoption of the act of October 1, 1890, a well-recognized fruit juice. It had been known in tcho trade and commerce of the country for many years, and had a well-defined meaning In the trade. It was the natural juice of the cherry manufactured by expression and mixed with alcohol in a sufficient quantity, not exceeding 18 pox cent., to preserve it and prevent its fermentation. It was worth from 28 to 25 cents a gallon, and was used for the purpose of Imparting tne flavor of cherry to cordials and liquors manufactured in rectifying and compounding houses. The article in this case was not known at the time of the passage of the act of 1890. It was made from the natural juice of the cherry by subjecting it to heat in a vacuum, and eliminating the watery parts, reducing live gallons of the natural cherry juice, to one gallon of the product, and adding 17 per cent, of alcohol. It was thicker and darker in color than cherry juice, and syrup-like. Its specific gravity was much greater, and its selling price was, instead of 30 cents, $1.10 a gallon. Its use is the same as that of natural cherry juice, and it may be used in its imported condition, or may bo thinned by the addition of water. ¡In strength, one gallon of the article Is equal to four gallons of the cherry juice of commerce as it was known when the McKinley bill was passed.</p>

This was an application by Frank J. Wetberell for a review of the decision of the board of general appraisers concerning certain merchandise imported by him. The collector levied a duty upon such merchandise of two cents per pound, under paragraph 14(5 of the tariff act of October 1,1890, and an additional duty of one-fourth of a cent per pound, under paragraph 152 of said act.

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p> <p>This was an application by the collector of the port of Baltimore for a review of the decision of the board of general appraisers respecting certain merchandise imported by J. Crawford Lyon- and others, trading as Lyon, Hall & Co. The board found that certain protests had been duly filed, and had been lost, and permitted copies of such protests to be filed. The circuit court sustained the decision of the board of general appraisers. The collector appeals.</p>

<p>This was tin action by Blanche L. Snow against Phineas P. Mast, J. S. Crowell, and T. J. Kirkpatrick, partners as Mast, Crowell & Kirkpatrick, for penalties under Rev. St. § 4965, for infringements of copyrights. Defendants demurred to plaintiff’s petition.</p> <p>The petition alleged, as three separate causes of action, infringements of three different copyrights of photographs secured by plaintiff. The notices of copyright alleged in the petition to have been inscribed on the copies of said photographs were in the following form: “Copyright ’94. By B. L. Snow.” Defendants demurred, on the grounds that the petition contained several pretended causes of action improperly joined, and that neither the petition nor any cause of action thereof stated facts sufficient to constitute a cause of action against defendants. Plaintiff had previously filed a hill in equity, founded on the infringement, by defendants of the same copyrights, for an injunction and an account, and also for the surrender and delivery of copies of the alleged infringing photographs on hand and the plates from which they were made, and for the recovery ol' the penalties imposed for such infringements. On the hearing upon a demurrer to the hill, the demurrer was sustained, on the ground that plaintiff had an adequate remedy at law, by action. 63 Fed. 623. Thereupon plaintiff filed a petition for a rehearing on the demurrer, and for leave to amend the hill, and thereafter brought this action.</p>

<p>CorviumTT of Photograph — Equity Jurisdiction of Suit fob Infringement —03 Fed. 6-3, Reversed on Rehearing.</p>

<p>This was a suit by the Jonathan Mills Manufacturing Company against M. C. Whitehurst and others for infringement of letters patent No. 267,098, issued to Jonathan Mills November 7, 1882, for improvements in machines for bolting flour. A decree for complainant was rendered (56 Fed. 589), hut, on petition by defendants, a rehearing was granted (60 Fed. 81), and proofs were taken under the order for a rehearing.</p> <p>At the original hearing of the case complainant based its title to the patent in suit on certain assignments and other instruments in writing, which were described in the opinion rendered on such hearing as follows:</p> <p>On the 23d day of January, 1883, Jonathan Mills, the patentee, assigned alJ his right, title, and interest in and to the patent in suit to the Phoenix Foundry & Machine AVorks, a corporation having its home office and principal place of business at Terre Haute, Ind. On the 181h of December, 1883, the Phoenix Foundry & Machine AVorks, “in consideration of $1,000 cash in hand paid, and for a note for $1,000, due in six months, made by Jonathan Mills to the Phoenix Foundry & Machine Works,” agreed, in writing, to assign to Myron AV. Clark the patent in suit, and certain other patents and rights and personal property. It was stipulated in the agreement that Clark should sell “the said property,” and apply 1he proceeds — First, to the payment of $3,000 to Mills; second, to the payment of said note made by Mills; and, third, to pay to Mills any balance or surplus. Then follows a provision that no liability shall attach 1o Clark, excepting to account for proceeds of sales, and the Phoenix Company, “in assigning said property, guaranties no value thereto.” This contract is signed by the Phoenix Company and by Clark. Subjoined is a declaration, signed by Clark and by Mills, that Clark holds the property as trustee for Mills, and as security for the payment of $1,000 due hint by Mills, and to be retained from the proceed of sales, which, however, were not to be made within six months without his consent. Thou follows the substitution on the 21 si of June, 1884, by Mills, of George T. Smith for Clark as trustee. Meantime, on the 20th of December, 1883, Clark had assigned 1o Smith, in consideration of $1,0(55, the patent in suit, aud certain other patents included in the- assignment to him by the Phoenix Company, but not still other patents and certain personal property included in said assignment. On the 15th of August, 185)2, Smith, in consideration of $100, assigned the patent in suit to Charles AVardlow, of Columbus, Ohio, and, on the next day, Wardlow, in considera lion of one dollar and other valuable considerations, assigned the same to the complainant. By an instrument in writing, not dated, but recorded in the patent office July 1, 385)1, Jonathan Mills, in eonsidoration of one dollar and other valuable considerations, assigns all his interest in said patent to the complainant. This assignment contains a stipulation that the complainant should pay 30 per cent of all royalties collected by it. “for infringements” to Mills.</p> <p>The petition for rehearing alleged newly-discovered evidence, consisting of the decree of the circuit court of Wayne county, Mich., in which it was determined that tlie patent in suit was the property of the George T. Smith Middlings Purifier Company, and that George T. Smith had teansferred the patent, which he held as trustee for said company, in fraud of the creditors. The petition also set forth that the assignment from Jonathan Mills to the complainant herein contained full notice of the rights of the George T. Smith Middlings Purifier Company, and that complainant was charged with such notice when it procured Smith to make the transfer of the patent in suit to Charles AVardlow, and from AVardlow to the complainant company. See CO Fed. 81.</p> <p>i The petition also set forth that prior to the said transfer of Stills to the complainant company he had assigned all his right, title, and interest in the patent here in suit to the Cummer Engine Company, of Cleveland, Ohio, and that such assignment was dated March 13, 1884, and duly recorded in the United States patent office before the time the complainant’s, company had acquired any title to the patent</p> <p>The answer to the petition for rehearing denied that Smith held' the patent in trust for the George T. Smith Middlings Purifier Company'; denied that prior to the assignment to Wardlow he had attempted to assign any rights, in the ' patent to his wife, Eliza B. Smith; denied that such assignment was filed in the patent office; and denied that Eliza B. Smith ever made any assignment to one Charles H. Plummer, or other person, of the patent- in suit. The -answer admitted that the suit was filed in the circuit court, for the county of Wayne, Mich., by the receivers of the George T. Smith Middlings Purifier .Company against Smith, his wife, and Plummer, as alleged in the' petition for rehearing; admitted that the decree of the court upon full hearing and 'testimony in open court found that Smith did hold the title to the patent No. 267,098 in trust for the George T. Smith Middlings Purifier Company, did order that Smith reconvey the title to the receivers, or that the decree itself should operate as an assignment, transfer and release of all the right, title, and interest which either George T. Smith, Eliza B. Smith, or Plummer, or any of them, had in said patent at the time of filing the suit, to’ Wit, August 13, 1890; but it insisted that said decree had no force and effect for the purpose of transferring said letters patent No. 267,098, because the said letters patent were not mentioned by name, date, and number in any allegations in the pleading in said cause, or upon any proofs taken in said cause. The 'answer further denied that Jonathan Mills did on March 15, 1884, and on February 1, 1886, assign all his right in the patent on which this suit is brought .to the Cummer Engine Company, of Cleveland, Ohio, for the reason that said Mills had parted with all his right, title, and interest in said patent No. 267,-098, and that said legal title was in George T. Smith; and alleged that said conveyance to the Cummer Engine Company was null and void and of no effect for that reason.</p> <p>In support of the allegations of the petition defendants introduced in 'evidence certified copy of the decree of the Wayne county circuit court of Michigan, referred to in the petition for rehearing; also certified copy ’from the records of the United States patent office of the assignment ;from the Consolidated Middlings Purifier Company and the George T. Smith 'Middlings Purifier Company to Eliza B. Smith; also certified copy from the records of the patent office of the agreement between Eliza B. Smith and Charles H. Plummer, dated July 16, 1890; also certified copy from the records of the patent office of the assignment from Eliza B. Smith, George T. Smith and George W. Weadock, executor, to the receivers of the .George T. Smith Middlings Purifier Company, which assignment was made in pursuance ,of the order of the Wayne county circuit court; also certified copy from the records of the patent office of the assignment from Jonathan Mills to the Cummer Engine Company, dated March 15, 18S4; also copy from the records of the patent office of the agreement between Finch & Mills and the Cummer Engine Company, dated February 1, 1886; also certified copy from the records of the patent office of the contract between the Cummer Engine Company and J. C. Frazier, dated March 24, 1886; also certified copy from the records of the patent office of a digest of all the assignments, agreements, licenses, etc., relating to the patent on which this suit is brought.</p>

<p>Patents — Time fob Payment of Final Fee to Patent Office.</p> <p>Under Rev: St. § 4897, requiring payment of final fee to tbe patent office within six months from notice of the allowance of tbe patent, such fee may be paid within six calendar months from tbe date of tbe notice.</p>

<p>This was a suit by the National Folding-Box & Paper Company against Herman Elsas and David Keller for infringement of letters patent No. 171,806, granted to Reuben Ritter, January 4, 1876, for an improvement in paper boxes.</p> <p>On motion by complainant for a preliminary injunction, the following opinion was rendered by Laeombe, Circuit Judge:</p> <p>“A careful examination of file exhibits introduced by the defendants, as samples of the locking device in the boxes sold by them, leads me to the conclusion that the projection does not accomplish its purpose by hooking over the material at tlie end of the slot, but engages with the edge of the slot itself. The illustrative model, in which the slot is prolonged, makes this quite clear; and the slot is narrow enough to act substantially as a slit in bending the projection so as to give a slraiglit edge engagement. 1 am unable to differentiate it, in action, from the device which was before the court in National Folding-Box & Paper Go. v. American Paper Pail & Box Co., nor do I think defendants have shown such laches on the part of complainant or its predecessors as should defeat this application for a preliminary injunction. Motion granted.”</p>

<p>1. Admiralty — Jurisdiction—Bond nor Salvage.</p> <p>Where salved property is delivered by the salvors to the owners, upon their promise to execute a bond for salvage when requested, and such a bond is afterwards given, and dated back to a day before the delivery- of the property, a court of admiralty has jurisdiction to entertain a libel in personam on the bond.</p> <p>'2. Salvage — Amount oe Allowance.</p> <p>The steamship M., on a voyage from New Orleans to Honduras, struck a reef off the coast of Mexico, and, being in great danger of going to pieces, was abandoned by the crew. On the following day, N. and D. wént on board, brought ashore a quantity of specie, guarded it for three days, and then took it on a schooner to meet a steamer bound to Belize, put it on board such steamer, and brought it safely to Belize, incurring in these services considerable expense and considerable hardship and danger. Held, that an allowance to N. and D., as salvage, of one-third of the .value of the specie, was proper.</p>

<p>1. Shitting — Charter Party — Breach—Watver.</p> <p>Libelant chartered respondents’ vessel to carry eight cargoes of iron ore from E. during a certain season of navigation, the charter allowing libelant four days to load after she reported at E. After she had taken seven cargoes, she was delayed by a cause which could not excuse her failure to make the eighth trip. But thereafter, when the season was nearly closed, and respondents did not wish to send her to E., because afraid she could not get a load before the close of the season, libelant requested them to send her, representing to them that there would be no difficulty in loading her. Relying thereon, respondents sent her, and on the fourth day after her arrival the season closed. Owing to the frozen condition of the ore at the time of the request and statement, she could not have been loaded in less than two weeks. Held, that libelant, by his request and misrepresentation, waived any right to hold her for her previous delay in arriving at E., and that failure to carry the eighth cargo must be attributed to the close of the season, or vis major, for which there was no liability.</p> <p>§. Same — Ski.f-Inpmcted Losses.</p> <p>Respondents cannot recover damages of libelant on the ground that they were not permitted to take a cargo, which could have been loaded before the close of the season, from E., for other persons, as on the arrival of the vessel at E. they knew that it was impossible for libelant to load her with his iron before the close of the season, and therefore they were not obliged to wait, but were at liberty to take a cargo for other parties, and it was their own fault that they did not.</p>