Volume 66 — Federal Reporter

<p>In Error to the United States Court in the Indian Territory.</p> <p>Motion for leave to file a petition for rehearing,</p>

This was an ancillary suit, instituted by Boyd Ewing, as receiver in the main cause of Bosworth against the Cardiff Coal & Iron Company, against J. H. White and numerous others. From the decree entered, both parties appeal. The circuit court of appeals reserves the question of the jurisdiction of the circuit court for decision by the supreme court upon certificate.

This was a motion for a writ of supersedeas, issuing out of the circuit court of appeals, to stay all proqeedings in the cause in the United States circuit court for the Southern district of ¡New York until the hearing and decision by the circuit court of appeals of the appeal that had been taken therein. The suit was in equity, for the infringement of certain letters patent for improvements in crimping and ruffling machines.

<p>W. H. Bridgens, as receiver of the Citizens’ Bank of Kansas'- City, Kan., filed bis bill against the Dollar Savings Bank of Kansas City, .Mo,, and Kelly Brent, praying for the rescission of a sale of certain stock and notes by the Dollar Savings Bank to the Citizens’ Bank, and a decree for the repayment to said Citizens’ Bank of $26,061.25. The case, as made by the bill, was as follows:</p> <p>Kelly Brent was a director and the president of the- Citizens’ Bank, and was also cashier' and managing- agent of the Dollar Savings Bank. The Dollar Savings Bank owned 797 shares out of a total of 1.000 shares- of the capital stock of the Citizens-’ Bank, and through its: officers and agents had full control of said Citizens’ Bank. On July 17;. 1893, the Citizens’ Bank was wholly insolvent, and was known to Brent to he so. On that day said hank had on deposit, subject to check, in the Dollar Savings Bank, $26,061.25, and held a certificate of deposit of said Dollar Savings Bank for $3,040 more. On said 17th day of July, 1893, Brent, as cashier-of the Dollar Savings Bank, and by virtue of his authority as president of the -Citizens’ Bank, compelled one Charles Si Squier, cashier of the Citizens’ Bank, to execute a contract of sale with the Dollar Savings Bank, by which the 797 shares of the stock of the Citizens’ Bank belonging to the Dollar Savings B'ank were sold to the Citizens’ Bank at their paid-up value, $19;925, and a number of notes belonging to the Dollar Savings Bank were also sold to the CitizBns’ Bank at their face value, $9,176,25. The stock and notes were received by Squier for the Citizens’ Bank, and the certificate of deposit for $3,010 and a check for the $26,061.25 were delivered to the Dollar Savings Bank. This; contract and transfer were made without the knowledge or consent of the directors of the Citizens’ Bank, and were never ratified by them, and the transfer was never entered on the hooks of the Citizens’ Bank. On July 18,1893, in" insolvency proceedings in a state court, the complainant was ai:>pointed receiver of the Citizens’ Bank. On August 10, 1893, complainant tendered to the Dollar Savings Bank the stock and notes, and demanded the return of the $20,-061.25, which was refused. The total liabilities of the Citizens’ Bank, exclusive of capital stock, were $78,60S.37, and its assets, apart from the amount claimed from the Dollar Savings Bank, were $17,587.72.</p> <p>The defendants demurred to the bill for want of equity.</p>

<p>This was a suit by Benjamin M. Fowler and others against the Jarvis-Conklin Mortgage Trust Company, in which Samuel M. Jarvis and Roland R. Conklin were appointed receivers oí the defendant, corporation. A petition for their removal, filed by Elizabeth Garnet t, intervening, was denied. 63 Fed. 888. Thereafter, the in-tervener again moved for their removal, and the receiver Jarvis having resigned, tuid the court having, of its own motion, filled the vacancy by appointing a new receiver, the intervener moved also to vacate the order of appointment.</p> <p>The grounds of removal, on which the application was renewed, were charges of mismanagement of the business of the corporation by the receivers while Us officers, of the same nature as the charges previously made, supported by affidavits, part of which had been filed on file, first application in reply (o affidavits on behalf of (he receivers, but contained new aver-ments as to the management of the corporation, which wore not then considered, because not matter in reply to the affidavits or argument on behalf of the receivers. See (¡3 Fed. 889.</p>

<p>1. Receivers — May Promote Railway Reorganization Scheme.</p> <p>It is not improper for tbe receiver of a railway corporation to promote any reorganization scheme which offers the prospect of securing the largest measure of protection to all persons concerned in or connected with the property and assets in the custody of the court, but in so doing he must not promote one interest at the expense of others equally entitled to the court’s protection.</p> <p>2. Receivers — Removal—Misleading Reports.</p> <p>The receiver of a railway corporation should not be removed for making reports as to the condition of the property in his care, which are alleged to be misleading, and to depress its value in the estimation of the public, when it appears that he has continued the existing method of accounting and reports, without intentionally misstating or misrepresenting the company’s true condition.</p> <p>8. Same — Fraudulent Acts oe Agent.</p> <p>The receiver of a railway corporation should not be removed on motion of a creditor because his agent has fraudulently permitted certain brokers to buy lumber at one price, and bill it to the corporation at a higher price, when it appears that he has used due care in the selection and supervision of his agents, and has discharged the wrongdoer as soon as he heard of the transaction.</p> <p>4 Same — Low Freight Rate to Introduce New Product.</p> <p>' The receiver of d railway corporation may properly, in the exercise of his business judgment, give an unusually low rate, in order to introduce into general use a cheap and valuable article, which, if brought into general demand, would add to the freight receipts of the roads handling it.</p> <p>5. Same — Responsibility for Wrongful Acts of Others.</p> <p>The receiver of a railway corporation should not be discharged on motion of a creditor because labor paid for by the corporation has been used by private parties for their advantage, when it is not alleged or shown that he either knew of or consented to such use.</p> <p>6. Same — Breach of Trust — Contracts with Interested Parties.</p> <p>It is improper for the receiver of a railway corporation to procure supplies from or enter into contracts with a company composed of the superintendent and other officials of the railway.</p> <p>7. Same — Responsibility for Breach of Traffic Agreement.</p> <p>The receiver of a railway corporation should not be discharged on motion of a creditor because a competing line has for a considerable time broken the traffic agreement between the two roads, when it appears that he has upon discovery of this state of facts taken successful steps to put an end to it</p>

<p>Costs — Docket Fee in Court oe Appeals.</p> <p>The prevailing party in an appeal to the United States circuit court oi appeals is entitled to tax a docket fee of $20.</p>

<p>This was a suit by Marcel Deprez against the Thomson-Houston Electric Company for infringement of a patent. Complainant was-a nonresident, and filed a bond for costs in the sum of $250. After considerable testimony had been taken on both sides, defendant, moved for additional security for costs.</p>

This is an action by J. Hampden Robb and Charles E. Strong, as trustees, against Frederick (1. Roelker and Ferdinand Jelke, Jr., surviving partners of the firm of Kebler, Roelker & Jelke, to recover moneys paid to the firm as attorneys for plaintiffs. The defendants have answered, and plaintiffs demur to the answers.

<p>In Error to Hie Circuit Court of tlie United States for the Southern District of New York.</p>

<p>1. Writ of Error — What Orders Reviewable — Attachment.</p> <p>S. brought an action against M., and sued out an attachment, which was levied on property alleged to belong to M. C. filed an interplea, pursuant to the local practice, claiming such property. Judgment was entered in the action in favor of S., but accompanied by an order holding the attachment proceedings open, and reserving. the issue on the inter-plea for trial. An order was afterwards made dissolving the attachment. Helé, that such order, which determined the rightfulness of the attachment, the only issue between the plaintiff and defendant remaining after the judgment, was a final order, and subject to review as such by the circuit court of appeals.</p> <p>8. Same — Judgment.</p> <p>A judgment was also entered in favor of the interpleader against the plaintiff on the issue raised by the interplea. Hilé, that such judgment was final, and subject to review as such by the circuit court of appeals.</p>

<p>BANKING — -Receipt of Pkoceeds of Discount — Estoppel.</p> <p>A New York bank, at the request of S., the president of a Kansas bank, discounted a note made by S. By direction of S., it placed the proceeds of the note to the credit of the Kansas bank, and. telegraphed S. that it had done so. On the receipt of the telegram, S. caused the proceeds of the note to be placed to his credit in the Kansas bank, and used the same. Held-, that these acts constituted no evidence that the Kansas bank retained or enjoyed the proceeds of the .discount, so as to estop it to question the authority of its officers to charge it with liability for the note.</p>

<p>In Error to tbe Circuit Court of tbe United States for tbe Eastern District of Arkansas.</p>

<p>1. LIMITATION OF ACTIONS — PAYMENT ON NOTE BY ONE OF TWO JOINT MAKERS.</p> <p>Payment made on a joint and several promissory note, executed and payable in Wyoming, by one of the two makers thereof, does not operate to prevent the running of the statute of limitations of that state as to the other maker. Cowhick v. Shingle (Wyo.) 37 Pac. 689, followed.</p> <p>2. Federal Courts — Construction of State Statutes.</p> <p>The construction placed upon a state statute by the supreme court of the state is obligatory on the federal courts, such construction being, in effect, a part of the text of the statute itself.</p>

<p>Charities — Hospital por Railroad Employes — Liability por Negligence— Railway Co. v. Artist, 9 C.. C. A. 14, 60 Fed. 365, Followed.</p>

G. A. J. Scott aud William McLean were committed for violation of the Virginia oleomargarine law, and each filed a petition for the writ of habeas corpus in this court.

This is an appeal from a decision of the United States circuit court, Southern district of New York, reversing a decision of the hoard of general appraisers, which affirmed the assessment of duties made by the collector of the port of New York on certain “unbleached chemical wood pulp.” The tariff act of October 1, 1890, contains the following provision: “415.

<p>Customs Duties — Ox.ass Disks Colored and Cut in imitation op Precious Stones.</p> <p>Merchandise, consisting of glass disks of various colors and sizes, colored and cut in imitation of precious stones, is dutiable under the provision of the tariff act of March 3, 1883, imposing a duty of 10 per cent, ad valorem upon “compositions of glass or paste, when not set,” and is not to he classified under the provision of the same act imposing a duty of 45 per cent, ad valorem upon “articles of glass, cut, engraved, painted, colored,” etc.</p>

<p>Customs Duties — Classification—Stle Veils in the Piece.</p> <p>Silk veils or veilings in the piece, with borders upon them, and clearly defined lines between the borders, indicating where they were to be cut off, helé to be dutiable at 60 per cent, ad valorem, as “wearing apparel,” under paragraph 413 of the tariff act of October 1, 1890, and not at 50 per cent, ad valorem, under paragraph 414, as “manufactures of silks not specially provided for.” Oppenheimer v. U. S., 61 Fed. 283, affirmed.</p>

This was a protest of Wemyss Henderson against the imposing, assessing, and paying of any duty upon certain theatrical costumes and properties brought by him on the steamer City of New York into the port of New York on May 3.1,1892.

<p>This was a suit by the William Rogers Manufacturing Company against the R. W. Rogers Company, Frederick F. Spyer, Robert W. Rogers, William A. Jameson, and Samuel J. Moore, to enjoin the infringement of complainant’s trade-mark. Complainant moved for a preliminary injunction on the bill and affidavits showing the following facts:</p> <p>William Rogers, for a long time prior to 1865, was engaged in the manufacture of silver-plated ware. In 1865 he associated himself with others in a copartnership under the name of the William Rogers Manufacturing Company, and in 1872 a corporation under the same name was organized by him and his associates. The silver-plated ware manufactured by Rogers, the firm, and the corporation was uniformly of high quality, and acquired a high reputation. All such ware was marked with certain trademarks, in each of which the name “Rogers” was the characteristic and important part; and the goods came to be known in the market by such trade-marks, and as “Rogers” goods. The defendant Robert W. Rogers had been a salesman of silver-plated ware, but had never manufactured such ware, or been known to possess any special skill in its manufacture. The defendant Spyer was a dealer in silver-plated ware, chiefly of an in-ffirior quality. The defendants Jameson and Moore were officers of the Ga,rter-Crume Company, a manufacturer of silver-plated ware. In 189! Robert W. Rogers, Spyer, Jameson, and Moore organized the R. W. Rogers Company, and contracted with the Carter-Orume Company to manufacture for the R. W. Rogers Company silver-plated ware, of a quality inferior to that of the William Rogers Manufacturing Company’s ware, which they caused to be stamped with marks in which the name ‘‘Roger's” was the characteristic and important part, and which might readily be mistaken, for tire marks of the William Rogers Manufacturing Company. It was charged in the bill that the sole purpose of the defendants, in associating Robert W. Rogers with them, and in giving his name to the corporation, was to mislead the public into supposing that their goods were the goods of the William Rogers Manufacturing Company.</p>

<p>Suit by Henry G-. Thompson and others against Charles E. Jennings and others for infringement of a patent for saws.</p>

<p>Libel by John Price against the Belle of the Coast. Opinion on an exception to the jurisdiction.</p>

This was a suit by the Cuban Steamship Company, Limited, against the mayor and chief of police of the city of New Orleans, to enjoin said officers, their subordinates, etc., from interfering with the loading of a ship belonging to the plaintiff. Plaintiff moves for a preliminary injunction.

<p>This was an action by the Washburn & Moen Manufacturing Company against the Reliance Marine Insurance Company on a policy of insurance. Defendant demurred to the declaration.</p> <p>The declaration contained two counts, as follows:</p> <p>First Count. And the plaintiff says the defendant company made to it a policy of insurance, in the sum of forty-eight thousand eight hundred dollars (§18,800), on the cargo of wire on board the schooner Benjamin Hale, valued at said sum; said insurance being against the perils of the sea, and other perils therein mentioned, at and from Boston to Galveston or Velasco, Texas. A copy of said policy is hereto annexed, marked “A,” and made a part of tills declaration. That while the said .schooner Benjamin Hale was proceeding-on said voyage, with said cargo on board, she struck a rock, filled with water, and sank, and the said cargo of wire became totally lost, by perils insured against. That: while the said schooner, with the said cargo of wire on board, was in peril, the said plaintiff duly abandoned the said cargo to the said defendant company, on April 29, 1893, being the date when the plaintiff first heard of said loss. That the loss of the said cargo by perils insured against amounted to more than one-lialf of the whole value of said cargo, as declared in said policy, and that the plaintiff is entitled to recover a total loss. The defendant company had due notice and proof of loss of said cargo April 29, 1893. The defendant company was bound, by the terms of said policy, to pay the plaintiff the sum of forty-eight thousand eight hundred dollars (§48,800) within -thirty (30) days from said date, and the defendant company owes the plaintiff the said sum of money.</p> <p>Second Count. And the plaintiff duly demanded said sum of the defendant company on May 29, 1893, and the said defendant company owes the plaintiff, for interest to the date, of the writ, the sum of nine hundred and seventy-six dollars (§976).</p> <p>The demurrer was as follows:</p> <p>And now comes the defendant in the above-entitled case, and demurring to the plaintiff’s declaration, as amended, says that the said declaration and the matters therein contained, in manner and form as the same are stated and set forth, are not sufficient in law for the plaintiff to have his action against the defendant, for that the first count in said declaration is double, repugnant, ambiguous, and multifarious, in that it does not clearly state whether the plaintiff claims to recover of the defendant by reason of an absolute and actual total loss, or by reason of a constructive total loss, of the goods insured; and also for that if the plaintiff intends by said first count to recover against tho defendant for a constructive total loss, by reason of the loss of more than half of the whole value of said cargo, and of the abandonment thereof, as the plaintiff: says in said first count, and as the defendant is advised and believes, then it appears by said first count, and by the terms of the policy set. forth therein, that the plaintiff is not legally liable for such constructive total loss of the cargo insured, or otherwise; and also for that it appears by the policy set forth in said first count that the plaintiff is entitled to recover thereunder only for an actual total loss and destruction of all the goods insured, or for the actual total loss and destruction of a part of said goods, and neither such actual total loss and destruction of the whole, nor such actual total loss and destruction of a part, is properly averred in said first count.</p> <p>And, demurring to the second count in said declaration, the defendant says that the same is not sufficient in law, for that the interest claimed in said second count is due only upon the obligation declared on in said first count and is wholly dependent thereon; wherefore, unless the said first count is sustained, the second falls with it.</p> <p>Wherefore, for want of a sufficient declaration, the defendant prays judgment.</p>

This was a libel by Peter Fisher and A. W. Stinemire, owners of the sloop Marietta, against the tug Brinton (the Pennsylvania Pail-road Company, claimant), for damages to the sloop. The district court dismissed the libel. Libelants appeal. For decision on libel against the tug for damages for collision with the sloop, see 59 Fed. 714.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This was a libel by Bernard McLain against the steam tug Mascot (Newtown Creek Towing Company, claimant), for damages by col-' lision to libelant’s canal boat Elizabeth. The district court rendered a decree for libelant. Claimant appealed.</p> <p>On the hearing in the district court the following opinion was filed (Brown, District Judge.):</p> <p>' On the morning of the 8th of March, 1892, the libelant’s canal boat, the Elizabeth, while lying alongside the dock on the southerly side of Newtown creek, about 200 feet below the first bridge, waiting to- discharge her cargo of coal, was run into by the steam tug Mascot, which had come up the creek shortly before with a boat in tow on her port side, and was proceeding quite slowly, waiting for the draw to open in response to her signals. She was passing about 25 feet from the Elizabeth when another tugboat, the Mischief, which had come up the creek a very little astern and outside of her, and which had a large boat in tow on her port side, took a sheer to starboard, and, running against the Mascot, pushed the latter over sideways, so as to collide with the Elizabeth. The Mascot's witnesses accordingly throw the blame upon the Mischief and her tow; while the Mischief’s witnesses, who were called for the claimants, testify that the sheer was caused, not by their fault, but by a mistake of the tow alongside in putting her wheel to port instead of to starboard, as ordered. The witnesses from that tow were not called, and were not present. No- doubt the Mascot would not have collided With the Elizabeth had the former not been struck by the Mischief and her tow. But I am not satisfied with the sufficiency of the explanation offered. Involuntarily and without necessity going so near a canal boat rightfully moored at a usual landing place, I think the Mascot took the risk of such incidents of navigation as those above mentioned, so far at least as respects any injury to a. boat properly moored. There was no need of her going so near, as is proved by the fact that the Mischief was coming up 50 feet further out. The testimony is contradictory whether the Mischief was partly lapping as she came along, or wholly astern. But the sheer of the Mischief was seen some little time before she struck the Mascot’s tow, and the blow did her tow no damage. It is plain, therefore, that she approached the Mascot quite gradually, and I am not satisfied that the Mascot was necessarily shoved over to such an extent as alleged. The .Mascot might have backed. Her pilot says, she did not back because backing would have brought his bow against the Elizabeth. His bow would, indeed, have swung somewhat to slarboard in backing-; but all the evidence shows that the Mascot was moving very slowly, and I do not credit the contention that backing in such a situation by the Mascot would have caused her to swing so rapidly that her bows would have struck the Elizabeth before she had got away, had she been as much as 25 feet distant from the Elizabeth. I must hold the Mascot, therefore, liable, both for her unnecessary near approach to the Elizabeth and for not doing what she might have done to prevent the collision. An order of reference may be taken if the damage is not agreed upon.</p>

<p>Appeals from the District Court of the United States for tbe Eastern District of New York.</p> <p>These were libels for a collision between the steamship City of Columbia and the steam ferryboat Shackamaxon, — the first by the Old Dominion Steamship Company, owner of the steamship, against the ferryboat (Starin’s City, River & Harbor Transportation Company, claimant); the second by John H. Starin, owner of the ferryboat, against the steamship (the Old Dominion Steamship Company, claimant). The district court found the ferryboat in fault, and rendered a decree against her on the first libel, and dismissed the second libel. The claimant and owner of the ferryboat appealed.</p> <p>At the time of the collision, the weather was clear. It was daylight, and the tide was flood. The steamship had come in from sea, on one of her regular trips from Norfolk, Va., and was proceeding up the bay, at a speed of about 12 miles an hour, to her pier, at the foot of Beach street, New York City. The ferryboat was on one of her regular trips from Ellis Island to the barge office at the Battery. After leaving her slip, on the southerly side of the island, and passing to the southeast, beyond the easterly line of the anchorage grounds, her general course was about east. As she came out from among the vessels anchored off the island, she was discovered by the steamship, which was coming up the channel, and then half a mile below. The steamship blew a signal of one whistle, and ported her wheel. The ferryboat did not answer the signal, and kept on her course, at full speed. Thereupon, the steamship’s engines were stopped and reversed, but the vessels came together, the stem of the steamship striking the ferryboat on her starboard side, abaft the wheel, and both were damaged.</p> <p>The steamship claimed that it was the duty of the ferryboat to keep out of the way, and that she failed in this duty, by reason of her omission to keep a proper lookout. The ferryboat claimed that the steamship was an overtaking vessel, and was bound, therefore, to avoid the ferryboat.</p> <p>The opinion rendered on the hearing in the district court was as follows (Benedict, District Judge.):</p> <p>“In my opinion, the collision between the steamship City of Columbia and the ferryboat Shackamaxon, which gave rise to these actions, was caused by the neglect of those on board the Shackamaxon to observe the course of the City of Columbia as she came up the bay. They acted on the assumption that the City of Columbia was continuing on a course which would carry her under their stem, when, if they had given proper attention, they would have observed that the City of Columbia had hauled back into the stream, and would have avoided her. For this neglect the ferryboat Shackamaxon must be held liable in the first action, and the libel in the second action must be dismissed, with costs.”</p>

<p>Collision — Responsibility of Vessel in Greater Fault.</p> <p>The tug P. was proceeding up Chesapeake Bay with four barges in tow. The night was dark but clear, and all the lights of tug and tow were burning brightly. The steamship L., which was proceeding down the bay at full speed, at a distance of nearly or quite half a mile to the westward of the tug, when nearly abreast of the tug, suddenly, and without apparent reason, changed her course, and ran into and sank the first barge. Before the steamer’s change of course there was no reason to apprehend a collision, and, after such change, there was no way of avoiding it. The tug, on observing the steamer’s change of course, sounded a danger signal. The only fault attributed to the tug was her failure to give the passing signal, which her captain testified he omitted because he did not think the steamer was within half a mile of him. Held, that the gross and culpable negligence of the steamer was the proximate cause of the injury, and that she should be charged with the whole damage, the omission of the tug to give the passing signal being so slight a fault, under the circumstances, and contributing so little to the disaster, as not to be entitled to consideration.</p>

Sur Motion to Remand to State Court. On December 5, 1894, the plaintiff, James H. Wilson, filed a statement of demand upon the defendant. Tilomas B. Smith, executor of the last will and testament of Samuel Harlan. Jr., deceased, in the court of common pleas No. 2 of Philadelphia county, Pa.

<p>Appeal from the Circuit Court of tbe United- States for tlie Eastern District of Arkansas.</p> <p>John Burke, the appellee, claiming to be the owner by inheritance of the south part of lot 6 in block 1 of Pope's addition to the city of Little Rock, Ark., filed a complaint against the Little Rock Junction Railway, hereafter termed the “Railway Company,” to establish his title thereto, and to recover the premises from the possession of the defendant. The bill averred, in substance, that the railway company was in possession of the land under a conveyance from E¡. S. Stiewell; that said Stiewell claimed to have purchased the property at a sale for overdue taxes, which sale had been made in obedience to a decree of the Pulaski chancery court, a state court of Arkansas, having full chancery powers; that the title thus acquired by the railway company from E. S. Stiewell, its grantor, was unfounded and void, for the reason that said Pulaski chancery court never in fact acquired jurisdiction over the appellee in the suit to condemn and sell the property for overdue taxes. The tax suit in question was brought under the provisions of an act of the legislature of the state of Arkansas entitled “An act to enforce the payment of overdue taxes,” approved on March 12, 18S1, and an amendatory act approved March 22,1881. Laws Ark. 1881, pp. 63-72,159-161. The second, third, fourth, and fifth sections of said act, which are most material to the present case, are as follows:</p> <p>“Sec. 2. On the filing of such complaint, the clerk of the court shall enter on the record an order, which may be in the following form: ‘State of Arkansas, on Relation of-, Plaintiff, vs. Certain Lands on which Taxes are Alleged to be Due, Defendant. Now, on this day came said plaintiff, and files here in court his complaint, in which he sets forth that there are certain taxes due on the following lands: [Here insert a description of the land.] Now, therefore, all persons having any right or interest in said lands, or any of them, are required to appear in this court within forty days from this date, then and there to show cause, if any they can, why a lien shall not be declared on said lands for unpaid taxes, and why said lands shall not be sold for non-payment thereof.’</p> <p>■ “Sec. 3. The clerk of said) court shall at once cause a copy of said order to be published for two insertions in some newspaper published in the county; and if there is no newspaper published in the county, he shall cause a copy of said order to be posted at the door of the court house of the county, or of the room in which the court is held; and such publication shall be taken to be notice to all the world of the contents of the complaint filed as aforesaid, and of the proceedings had under it.</p> <p>“Sec. 4. That any person who can show that he has any interest in any of the lands mentioned in the said order, may appear in the court in which such complaint is filed, or before the clerk thereof in vacation, and file an answer, ' showing why the prayer of such complaint shall not be granted; * * * *</p> <p>“Sec. 5. At the end of the forty days mentioned in section 2 of this act, the clerk shall enter upon the record a decree pro confesso, covering all lands named in the complaint, regarding which no answer has been filed, which order may be in the following form: ‘State of Arkansas, on the Eelafion of -Plaintiff, vs. Certain Lands on which Taxes are Alleged to be Due, Defendant. It appearing that the order herein made, requiring the owners of the lands in this suit to appear and show cause, if any they could, why a lien should not be declared on certain lands named in the complaint herein, has been duly published in the manner required by statute, and that no answer has been put in as to the following tracts or parcels of land, that is to say: [Here describe the lands.] It is now, therefore, ordered that the complaint be taken as true and confessed as to said lands above described.’ ” Other provisions of said act authorized said court, if no cause to the contrary was shown, to fix a lien upon the lands for the amount of all the taxes, penalties, and costs ascertained to be due thereon, and to direct a judicial sale of the lands for the payment thereof if the sum ascertained to be due was not paid within 20 days from the date of the decree. The bill in the present case charged that the order made by the clerk in said proceeding on the filing of the complaint was not published, as required by the statute aforesaid; that there was no record in said cause showing that said order was ever published; that no proof of the publication of said order was made by the editor, proprietor, or chief accountant of any newspaper, or by any other person authorized to make such proof; that there was no record in said court showing that such proof was ever made; that said order was not in fact published as required by law; and that all of the proceedings of the Pulaski chancery court in said tax suit were coram non judice and void. The defendants denied all of the material allegations of the bill touching the jurisdiction of the chancery court, and averred that said court acquired full jurisdiction of the case and of all persons having any interest in the property. The defendants also pleaded, in substance, that the case made by the bill of complaint was not a case of which the federal circuit court sitting in equity could properly take cognizance. The circuit court rendered a decree in favor of the complainant, whereby it adjudged that his title was not divested by the sale under the aforesaid decree. It also decreed that he be restored to the possession of the property, and that he recover of the railway company the sum of $2,467 for the rents and profits of the land. To reverse said decree, the railway company has prosecuted an appeal to this court,</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>This was an action by W. H. Thompson against Searcy county, Ark., to recover upon certain county warrants.</p>

<p>Appeal from the Circuit Court of tlie United States for the District of Colorado.</p> <p>This was a suit by the United. States against Daniel A. Oam-lield and William Drury, under the act of February 25, 1885 (23 Stat. e. 149), to compel the removal of an inclosure of public land. The circuit court entered a decree for the complainant, after ¡ms-raining exceptions to the answer as insufficient. 59 Fed. 5<>2. Defendants appeal.</p> <p>This was a bill filed by the United States against Daniel A. Oamfield and William Drury, tlie appellants, in the circuit court of the United States for the district of Colorado, .under the provisions of an act of congress approved on February 25, 18S5, entitled “An act to prevent unlawful occupancy of the public lands.” 23 Stat. 321, c. 149. The first section of said act is as follows: “That all inclosures of any public lands in anj1’ state or territory of the United States, heretofore or to be hereafter made, erected or constructed by any person, party, association or corporation, to any of which land included within the inclosure, the person, party, association or corporation making- or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office under the general laws of the United States at the time any such inclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction or control of any such inclosure is hereby forbidden and prohibited; and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any state or any of the territories of the United States, without claim, color of title or asserted right as above specified as to inclosure, is likewise declared unlawful, and hereby prohibited.” By section 2 of said act it is made the duty of the district attorney of the United States for the proper district, when complaint is made to him by affidavit by any citizen of the United States, that section 1 of the act is being violated, to institute a civil suit, in the name of the United States, in the proper United States district or circuit court, against the person or persons charged with making the unlawful inclosure complained of. By said section, jurisdiction is also conferred upon any United States district or circuit court or territorial district court having jurisdiction over the locality where the land inclosed, or any part thereof, shall be situated, to hear and determine proceedings in equity, by writ of injunction, to restrain violations of the provisions of the act. It is also made the duty of said courts, ip case any inclosure shall be found to be unlawful, to make the proper order, judgment, or decree for the destruction of the inclosure, in a summary way, unless the inclosure shall be removed by the parties complained of within five days after they are ordered to do so.</p> <p>The bill in the present case charged, in substance, that the defendants, Daniel A. Gamfield and William Drury, with intent to encroach and intrude uxjon the lands of the United States in an illegal manner, and to monopolize the use of the same for their own special benefit, did, on or about the 1st of January, 1893, build, construct, erect and maintain a fence which inclosed and included about 20,000 acres of the public domain of the United States, and that the effect of such inclosure was to exclude the United States and all other persons, except the defendants, therefrom; that the lands thus wrongfully inclosed consisted of all of the even-numbered sections in townships numbers 7 and 8 north of range 63 west of the sixth principal meridian. The bill of complaint further averred that said townships 7 and 8 lie within the limits of the grant made by the government to the Union Pacific Railroad Company; that the defendants had acquired from said railroad company the right to use all the odd-numbered sections of land which lie within said townships 7 and 8 and outside thereof immediately adjacent to the even-uum-bered sections lying within and on the margin of said townships, and that in building the fence complained of the defendants had constructed it entirely on odd-numbered sections either within or without townships 7 and 8 so as to completely inclose all of the government lands aforesaid, but without locating the fence on any part of the public domain so inclosed. The subjoined diagram of one township will serve to illustrate the manner in which the fence was constructed so as to inclose the even-numbered sections. The fence is indicated by the dotted lines.</p> <p>The defendants admitted by their answer that they had constructed a fence so as to inclose all of the even-numbered sections in townships 7 and 8, substantially as set out above in the plaintiff’s complaint, save and except that at each section line d swinging gnte had been placed, to afford access to so much of the public domain as was inclosed by the aforesaid fence. By their answer the defendants sought to justify the erection of the fence in question on the 'ground that they owned all the odd-numbered sections in townships 7 and 8, and that they were engaged in building large reservoirs for</p> <p>Diagram.</p> <p> </p> <p>the purpose of irrigating the land hy them owned, and much other land in that vicinity. They averred that in carrying out such irrigation scheme they found it necessary to fence their lands in townships 7 and 8 in the manner ahoye described. They also denied that they had any intention of monopolizing the even-numbered sections inclosed by said fence, or to exclude the public therefrom. They further averred, in substance, that the work in which they were engaged was of great importance and utility, and would redound to the great advantage of the United States and Its citizens. The answer was excepted to on the ground that it was insufficient to constitute a defense to the bill. This exception was sustained, and as the defendants declined to plead tether a decree was entered *in favor of the government, from which decree the defendants have appealed.</p>

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

This is an appeal from so much of a final decree in this canse as adjudges the lien of the Atlantic Trust Company upon a fund in the custody of the court, part of the assets of the Staten Island Light, Heat & Power Company, a prior lien to that of Anton G. Methfcssel. The suit is a creditor’s suit, in which a receiver of all the property of the Staten Island Light, Heat & Power Company was appointed, Januai'3r 11, 1893.

<p>In Error to the Circuit Court of the United States for the Western Division of the Western District of Tennessee.</p> <p>This writ of error was sued out by the Kansas City, Ft. Scott & Memphis Railroad Company, against which company the appellee, Jesse H. Cook, recovered a judgment for damages sustained by being run over by a locomotive engine while running backward in its private switching yards in the village of West Memphis, state of Arkansas. The suit was begun in a state court at Memphis, Tenn., from which the railway company, as a nonresident corporation, removed the suit to the circuit court of the United States for the Western division of the Western district of Tennessee. West Memphis is a small village, of from two to three hundred inhabitants, and is immediately on the west bank of the Mississippi river and opposite the city of Memphis. The cars of the appellant company coming- from the west and northwest are transferred by a railway ferry from West Memphis to the east bank of the river. On both banks of the river were inclined railway tracks, by means of which its trains were loaded on or discharged from the steam ferry. These inclined tracks connected with switching yards on both sides of the river, where trains arriving and departing were made up, and where continual switching was going on. The steam ferry was owned and operated exclusively by the railway company, and did not engage in any other business than that of transferring railway trains from one side of the river to the other. The officers of the boats were prohibited from carrying passengers other than those in the company’s cars, and its servants and employés. There was a regular steam passenger ferry operated between Memphis and West Memphis for the accommodation of the general public. The defendant in error, a farmer, from the state of Mississippi, and a stranger, was, while visiting friends in Memphis, informed by them that he could pass over the river on railway transfer boats without charge, and from the west side get a better view of a great railway bridge in course of construction across the Mississippi. Acting upon this information, and wholly from motives of curiosity, he, together with same chance acquaintances, went aboard one of the transfer boats, and crossed to West Memphis. His presence on the boat seems to have been unobserved, as no questions were asked him or fare or permit demanded. He then made his way through the yards of the company to a point from which he could examine the railroad bridge. When ready to return, his friends having returned by way of the uncompleted bridge, he m.ade his way back through the switching yard, and down the incline, and onto the transfer boat. He found thereon a passenger train about to be transferred to Memphis. He was asked "by the conductor of the train if lie had come down on the train, to which he replied that he had not. Shortly afterwards he was approached by one of the officers of the boat, who asked him if he had come across on the boat, who, on being told that he had not. said ihat the boat did not take passengers, and that lie could not return that way. He then asked what lie must do, and was told that ho would have to get oft' and go to the depot, where he would find a ferryboat which would take him across. He offered to pay to cross, but was told again that that boar did not take passengers across. Oook then says he asked the officer to show him the way lie must go, and that the officer took his arm, and told him that he must get off, and must go up the railroad track. The west bank of The river Is a low bottom, and subject to overflow. The railroad company. for its own uses, had made an embankment, which was entirely occupied by its tracks and switches. The top of this embankment was above high water. This embankment and its tracks constituted the switching yard of the company. At the time of the accident, the river was out of its banks, and ¡here was water on both sides of the embankment. On this embankment there were four principal tracks, besides switches and spur tracks. These tracks were quite close together, there being a space of fourteen feet between the center of one track and the center of that adjoining. It was possible to walk between the tracks, there being a minimum of two feet clear space when each track was occupied by the widest cars in use. Between the outside tracks and slope of the embankment it was possible to walk in safety at some points; at others the slope of the embankment was too great. The West Memphis depot was near the northern end of this yard. The regular ferry landing was immediately in the rear of this depot. One of the streets of the village crossed this yard at the north end of the depot, a.nd this su'eet was the route both to depot and ferry landing' behind it. There was no other way, in the then stage of the river, for one t.o get from the transfer boat than that by way of this embankment to the depot. When there, one could turn to the left on this traveled way and go west to the village, or turn to the left and go down to the ferry landing. The point where plaintiff was overtaken and run down was about 250 feet south of the street or way crossing the yard at depot, and on the direct and only way out of the yard, whether he wished 1o turn east or west when he reached this street. One of plaintiff's witnesses, acquainted with the location, in answer to a question as u> u bother there was any other way Oook could have gotten up to the do pot except by those tracks, said: “After he got off the transfer boat, lie would have to come up the tracks to get out anywhere.” A plank walk led from back end of depot to the ferry landing. By all the testimony it is shown that engines or trains were in almost continuous motion within the limits of this jard, and all agree that it was an extremely dangerous place for use as a walkway, especially by one unacquainted with the tracks and their uses.</p>

This action was brought by the Davis & Rankin Building & Manufacturing Company, the plaintiff in error, against J. T. Jones and numerous other defendants, the defendants in error, to recover damages for nonperformance by the defendants of a contract for the erection of a butter and cheese factory at or near Tecumseh, Neb.

<p>This is an action to recover on three bonds, and the interest coupons belonging thereto, issued by the defendant county. The principal of the bonds aggregates $2,500. The bonds were issued on the 1st day of July, 1882, under what is known as the “Statute for Funding Debts of Counties and Municipalities in the State of Missouri.” The interest on said bonds was represented by coupons attached thereto, payable the 1st day of July each year. The bonds run for 20 years, with the option reserved to the county to pay off the same at any time after the 1st day of July, 1887. The interest on these bonds was promptly paid by the county up to the 1st day of July, 1887; at which time the county court, by appropriate order, declared its election to pay off said bonds oii the 1st day of September, 1.887. Accordingly it caused formal notice! of this fact, reciting the series of bonds outstanding, to be published in weekly issues, up to the 1st of September, 1887, of its leading local newspaper of the county, and in the St. Louis Republic, and in the New York World, notifying the holders of said bonds that on that day, September 1, 1887, the interest thereon would cease, aud that the bonds would be paid either at the National Rank of Commerce in the city of New York, or at the office of William 0. Little Bond Company, in the city of St. Louis, Mo., as the respective holders thereof might elect. The county, through said Little, arranged for the placing of sufficient money at said bank, in the city of New York, for the redemption of said bonds; and all indebtedness of the county, amounting to 8419,000, was accordingly paid as of date September 1, 1887, by said bank or said bond company, with the exception of the bonds in controversy in this suit. The contention of plaintiff is that he did not have actual notice of the call so made by the county for the redemption of said bonds until in August, 1888, and that the published notice was not sufficient in law; and therefore he refused to accept the amount due on the 1st day of September, 18S7, in satisfaction of his claim. He brought this suit on February 6, 1891, to recover both the principal and interest up to the day of judgment. The defendant’s answer pleads the facts respecting said call; that it was ready and willing to pay the amount due on the 1st day of September, 1887, at said bank of Commerce, and the failure of plaintiff to have his bonds and coupons then and there for payment; and in its answer it renews the said tender, and it paid the money into this court for the benefit of plaintiff, where it has since remained on deposit.</p>

This was an action which ivas brought by Ora Haley, the defendant in error, against James G. Kilpatrick, the plaintiff in error, for forcibly entering the St. Cloud Hotel, in the. city of Denver, which belonged at the time to Haley, and for unlawfully removing therefrom, and converting to his own use, a large quantity of hotel furniture which was at the time in Haley’s possession.

<p>1. Municipal Corporations — Power to Contract.</p> <p>Cities and towns, as municipal corporations, possess a double character, —the one governmental, legislative, or public; the other proprietary or private. Tu the former such a corporation is made, by the state, one oí its instruments for the exercise of certain political powers, which cannot he controlled or embarrassed by any contract of the corporation; _ but in its proprietary or private character powers are conferred for the private advantage of the particular corporation, and, as to such powers, aud_ contracts made thereunder, snch corporations are to be regarded as privare corporations.</p> <p>2. Same.</p> <p>In the exercise of its governmertal powers, a municipal corporation has a discretion as to the time and manner of making improvements, etc.. but when such discretion has been exercised the duty becomes purely ministerial. and contracts made in reference to the carrying out of such improvement* etc., cannot be revoked at the will of such corporation.</p> <p>8. Same — Attempt to Revoke.</p> <p>The city of B. passed an ordinance directing certain officials to advertise for proposals for furnishing cables, conduits, etc., and placing the police and lire alarm telegraph wires belonging to the city under ground, and, after deciding upon the best cables, etc., to award a contract for furnishing the same and doing the work. Said officials, after due advertisement, accepted the proposal of the S. Co. That company, two days later, declared itself ready to begin work, but on the same day was notified that the acceptance of its proposal had been reconsidered because of an opinion of the city solicitor that the ordinance authorizing it was defective in certain matters of detail. Held, that such attempted revocation of the assent of the city was no defense to an action by the S. Co. on tin-contract.</p> <p>4. Damages — boss of Profits.</p> <p>Held, further, that, though profits on such contract could not be recovered unless shown to be the direct and immediate fruits of the contract, the S. Co. should not be excluded from making such proof as it could as to loss of profits, though it had not actually entered upon the performance of the contract, or expended any money thereon.</p>

<p>Interstate Commerce — Unjust Discrimination — Free Passes.</p> <p>An officer of a railroad company engaged in interstate commerce who, as a matter of personal favor, issues to a person not within any of the exceptions contained in section 22 of the interstate commerce act a free pass for transportation from one state to another, is guilty of unjust discrimination, in violation of sections 2 and 3 of that act.</p>

<p>Customs Duties — Act Oct. 1, 1890 — Live Snakes — Toons or Trade.</p> <p>Certain trained snakes, imported fey a professional snake charmer, held to fee free of duty under paragraph 680, under the provision therein for “implements, instruments and tools of trade, occupation or employment,” and not dutiable as “live animals” under paragraph 251, as classified fey the collector.</p>

This was a suit by the New York Filter Company against Henry Sehwarzwalder, August Finck, and the O. H. Jewell Filter Com-puny for infringement of letters patent No. 293,740, for an improvement in the art of filtering water. There was a decree for complainant directing an injunction and an accounting. 01 Fed. 840. Thereafter a motion by defendants for leave to amend the answer and take new proofs was denied. 62 Fed. 582. From the decree for complainant, defendants appealed.

<p>This was a libel by Joshua H. Hudson, master of the tug S. A. McCaulley, against the bark Iodine, to recover for services rendered.</p>

This was a libel in rem by the Knickerbocker Steam-Towage Company, owners of the tug Ice King, against the steamship City of Haverhill, to enforce a claim for salvage. A cross libel was tiled by Warren P. Watrous, owner of the City of Haverhill, alleging fault on the part of the tug which contributed to the injuries sustained by the salved vessel, and rendered her liable therefor under the contract of towage.

<p>1. Removal oe Causes — Time oe Piling Teaxsciiifi.</p> <p>While, upon removal of a cause from a state to a federal court, security is required that the transcript shall be filed on the first day of the next succeeding term, the federal court is not to he deprived of jurisdiction if the .transcript is filed at a later day in the term, but, for good cause, may ’permit it to be filed at such later da.y.</p> <p>S. Distkict os' South Carolina — Division.</p> <p>The district of South Carolina, though divided into Eastern and Western divisions, is one district, and the terms of the circuit court, though held at different places, in different parts of the state, are all held for the entire district.</p>

This was a suit in equity by the Western Electric Company against Henry J. Reedy for infringement of a patent. Defendant moved to set aside a decree by default.

<p>1. Equity — Grounds of Demurrer— Limitations.</p> <p>Where it appeal's by the complainant’s bill that the remedy is barred by lapse of time, or that by reason of laches he is not entitled to relief, tbe defendant may avail himself of the objection by demurrer.</p> <p>2. Trusts — Limitations.</p> <p>In the case of a,n implied or constructive trust, unless there has been a fraudulent concealment of the cause of action, lapse of time is as complete a bar in suits in equity as in actions at law; and tbe bar of the statute begins to run when the cause of action has accrued.</p> <p>8. Same.</p> <p>The town of M. intrusted certain bonds to one W. for sale. W. sold the bonds and embezzled tihe proceeds. The town afterwards recovered $6,988 from a bank which held the same for W. More than six years alter the recovery of this money, one M., a holder of some of the bonds sold by W., which had been adjudged to be invalid, brought suit against the town to charge it as trustee of the money recovered from W.’s bank, on the gromyl that such money equitably belonged to the purchasers of the bonds, field, that the statute of limitations was a bar to the suit to charge the town under such implied or constructive trust.</p> <p>4. Limitations— Indiana Statute — Savino Clause.</p> <p>M. also sought to obtain an assignment of a bond given by W. to the town to account for the proceeds of the town bonds intrusted to him. The town had brought a suit on such bond, wbicli it had dismissed after a. judgment in its favor had been reversed on appeal. The statute of limitations (1 Burns' Rev. St. § 300; Rev. St. 1883, § 299) provided thaf if after an action was commenced it should fail or abate, or judgment be arrested, or reversed on appeal, a new action might be brought within five years, and deemed a continuation of the iirst action. Jldd, Unit such saving (“lause did not apply to actions voluntarily abandoned; that the alleged rigid to an assignment of W.’s bond was not the same cause of action as that litigated in the action of Ihe town on the bond, and that therefore the saving clause of Ihe statute did not apply.</p>

<p>This was a suit by the Farmers’ Loan & Trust Company against the Northern Pacific Railroad Company for the foreclosure of a mortgage. Certain bondholders petitioned to be made parties.</p>

This was a bill in the nature of a hill of interpleader, brought by George W. Seutell against Martha Groves, William J. Groves, and others. A decree having been entered by the circuit court, an appeal was taken to the supreme court by the said Martha and William J. Groves, and by Thomas A. Pogue, administrator of Rosetta Rhea, deceased. The supreme court reversed the decree, with specific directions to the court below (14 Sup.

<p>This was a suit by the Continental National Bank against Mary .Tenner Heilman and others to enforce a lien upon certain stocks. The defendants filed a cross bill against the bank for discovery. The bank moves to strike the cross bill from the files.</p>

This was a suit by E. Bement & Sons, a corporation, against Charles La Dow to set aside a contract for fraud. The cause was heard on the pleadings and proofs.

<p>Equity — Cross Bill — Affirmative Belief.</p> <p>Upon the facts as disclosed in the suit of Bement v. La Dow, 66 Fed. 185, held, that defendant was entitled, upon a cross bill praying such relief, to have the license to complainant declared valid, and to an accounting for the royalties.</p>

<p>1. Circuit Court — Jurisdiction —Removal—Federal Question.</p> <p>A cause cannot be removed from a state court to a circuit court of the United States on the ground that a federal question is involved, unless that appears by plaintiff’s statement of his own claim.</p> <p>2. Mining Claims — Quieting Title — Federal Question.</p> <p>In a suit to quiet plaintiff’s title to certain placer mining grounds, for which he has a placer patent the claim of defendant to a portion of the premises by reason of a location made by him, after issue of the-patent, on a vein of quartz known to exist there before application for the placer patent, involves an interpretation of the federal statute which excludes known lodes or veins of quartz from patents for placer mining grounds.</p>

<p>I. Tuhnel Minina Claims.</p> <p>Prom the time of the location and commencement of his tunnel, under section 4 of the act ,of May 10, 1872 (Rev. St. § 2323), the owner has the inchoate right to the possession of every blind vein or lode within 3,000 feet from the face of such tunnel on tlie line thereof that was not known to exist when the tunnel was located and commenced, contingent only upon the diligent prosecution of the work on the tunnel and the subsequent discovery of the vein or lode therein.</p> <p>2. Subsequent Discovery from Surface.</p> <p>No discovery or location of such veins or lodes from the surface subsequent to the location and commencement of the tunnel can deprive the owner of 1he tunnel claim, who diligently prosecutes his work therein, of these rights.</p> <p>S. Extent of Claim.</p> <p>Upon the discovery of such a vein in the tunnel, while the work upon it is being prosecuted with reasonable diligence, such owner is entitled to the possession of such lode or vein to the same extent along the lode or vein as if discovered from the surface. He is entitled to the possession of any 1,500 feet in continuous length along such lode or vein which includes his point of discovery in the tunnel. The limitation of Die extent of Die right of the owner of a tunnel claim to the veins discovered therein to 230 feet each way from the tunnel, imposed by section 5 of the act-passed by Die Colorado legislature in 1861 (Sess. Laws Colo. 1861, p. 166; Mills’ Ann. St. § 3141), was removed by the act of congress of May 10, 1872 (17 Stat. 02, c. 132), and the act of the legislature of Colorado of 1874 (Sess. Laws Colo. pp. 185, 187, 190; Mills’ Ann. St. § 3148).</p> <p>4. Adverse Claim — Estoppel.</p> <p>It is the duty of the owner ot the tunnel claim to present and litigate his adverse claim to any such blind vein or lode that has been discovered and is known to exist within the mining claim located from the surface, when the owners of Die latter make application for their jiatent under sections 6 and 7 of said act (Dev. St. §§ 2323, 2326); and if, in the absence of fraud or mistake, he fails to do so, his rights as against such claimants will he lost. When, however, the blind lode or vein is not known to exist, and has not been discovered when the application for a patent, is made, and the claim of the locators from the surface lies parallel to the line of the tunnel, Diese sections of Die act have no application, because it is impossible, in such a case, to fairly litigate the contingent inchoate right of the owner of the tunnel, and lie will not he estopped by his failure to present an adverse claim.</p>

<p>This was a bill by the Del Monte Mining & Milling Company to enjoin the New York & Last Chance Mining Company from working within complainant’s claim.</p>

<p>1. Equity — Jurisdiction—Suit to Recover Possession on Land.</p> <p>While a suit in equity cannot be maintained, by the holder of a legal title to recover possession of land, though coupled with a demand for an accounting as to rents and profits, or for the removal of clouds upon the title, yet, where the bill presents a case of fraud or mistake, or sets up a right to redeem from a mortgage, and it appears that the complainant has not an adequate and complete remedy at law, it may be maintained and possession of the land may be decreed.</p> <p>2. Equity Pleading — Pdea.</p> <p>A plea to a bill in equity which states nothing but conclusions of law, and whieh goes to the whole bill, but is accompanied by an answer to the whole bill, is properly disregarded.</p> <p>8. Equity Practice — Amendment on Answer.</p> <p>The granting of leave to amend an answer, after a master’s report has been filed, and the cause heard on exceptions thereto, is wholly within the discretion of the court.</p> <p>4. Record oe Deeds — What Constitutes — Texas Statute.</p> <p>The statutes of Texas (Sayles’ Civ. St. arts. 4299, 4334) provide that “every instrument * * * shall be considered as recorded from the time it was deposited for record. * * * Every conveyance * * * acknowledged * * * according to law, and delivered * * * to be recorded, shall take effect * * * from the time when such instrument shall be so acknowledged * * * and delivered * * * to be recorded, and from that time only.” Held that, under these statutes, the filing of a deed or mortgage for record, and not the subsequent actual recording of the same, constitutes the* constructive notice to third persons contemplated by the statute; and that, accordingly, an error of the recording officer in copying the description in a deed or mortgage does not nullify its effect as notice.</p> <p>5. Principal and Agent — When Principal not Chargeable with Agent’s Knowledge.</p> <p>Where an agent and parties dealing with him have colluded .for fraudulent purposes, the principal is not bound by uncommunicated knowledge of the agent. Investment Co. v. G-anzer, 11 C. O. A. 371, 63 Fed. 647, followed.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Florida.</p> <p>This is a suit by a bill in equity by Sherman W. Knevals to recover certain lots of lands in the city of Jacksonville, Fla., now held as the property of the Florida Central & Peninsula Railroad Company. The circuit court dismissed the bill, and complainant appeals.</p> <p>On June 24, 1809, the legislature of Florida passed an act entitled “An act to perfect the public works of the state;” and on February 28, 1870, this act was amended. These acts authorized the Jacksonville, Pensacola & Mobile Railroad Company, a company incorporated by the laws of that state for the purpose of building a railroad west from Quincy, Fla., to extend its road through to Mobile, Ala., and in order to assist in building a continued line of road from Jacksonville, Fla., provided an exchange by that company of its bonds for a like amount of slate bonds, and further provided that “the state of Florida shall by this act have a statutory lien * í= o on the part of the road for which the state bonds are delivered, and on all the property of the company real and personal appertaining to that part of the line which it may now have or may hereafter acquire, together with all the rights, franchises and powers thereto belonging.” And in a subsequent section it was provided that the governor should deliver to the president of said company coupon bonds of the state, to the amount of $10,000 per mile, upon receiving from him first mortgage bonds of like amount on any part or portion of the road between Quincy and Jacksonville. The portion of this road from Take City to Jacksonville was, at that time, the property of the Florida Central Railroad Company. Subsequently, the Florida Central Railroad Company issued its bonds to the amount of $1,000,-000, and they were exchanged for the same amount of bonds of the state, which were delivered to the president of the Jacksonville, Pensacola & Mobile Railroad, and sold by the officers and agents of such road. In the resolutions of the board of directors authorizing the issue of these bonds, they excepted- from the lien so created certain lots situated in the city of Jacksonville, not used for depot purposes. Subsequently, in 1877, in negotiating a loan, there was excepted from the mortgage to secure the same a portion of the same lots, making the boundary line of the mortgaged property 125 feet south of Bay street, instead of along that street, which was the boundary of the railroad property. The state bonds exchanged for the railroad bonds having been sold, and the railroad having defaulted in payment, in a suit brought by the purchasers and holders of such exchanged and outstanding state bonds in the case of J. Fred. Schutte and others, complainants, v. The Jacksonville, Pensacola & Mobile Railroad Company and The Florida Central Railroad Company et al., in the circuit court of the United States for the Northern district of Florida, 31st of May, 1879, it was declared by Mr. Justice Bradley that the complainants in that suit had a first lien upon the railroad running from Lake City to Jacksonville, and all property, rights, and franchises thereto appertaining, to the amount of said bonds; and the same was advertised and sold, under said decree, by the special masters, on the (3th day of January, 1882, and a deed of conveyance made, on the ISth of that month, of “the Florida Central Railroad and all its property, privileges, rights, and franchises.” At that time a part of the property of said railroad consisted of the several lots of land heretofore mentioned as situated in the city of Jacksonville, a portion of each of which was used for railroad purposes and terminal facilities, but which were more extensive than was required for that purpose at that time. Subsequent to the decree of Mr. Justice Bradley in the said Schutte Case, and previous to the sale under it, an arrangement was entered into between certain parties, — Sir Edward James -Reed, Philip Roddy, and C. L. Williard, — for the purpose of securing possession of the stock of the Florida Central Railroad Company looking to a reorganization of it, in which it became necessary to procure more money, which they did by borrowing, December 5,1881, $S0,000 from Donnell, Lawson & Simpson, a firm of bankers in New York, pledging, as collateral security for the payment of the same, $138,-000 of the first mortgage bonds of the Florida Transit Railroad Company, another railroad company of that state, and reserving in the agreement of pledge the right, at any time, to substitute for such security 5,jlx0 shares of the capital stock of the Florida Central Railroad Company, or $380,000 of the- first mortgage bonds of said Central Railroad Company, and authorizing said Donnell, Lawson & Simpson to sell the collaterals so xfiedged. without notice, at the board of brokers, and become purchasers at said sale. A little more than a month after this loan and deposit of collaterals was made, the road was sold under the aforesaid decree, and Reed became purchaser, •and finally, in the reorganization of the new company, the Florida Central & Western, which followed, he became president, and Lawson, of the firm of Donnell, Lawson & Simpson, one of the directors. Subsequently the road was in the possession of several receivers and trustees, and was finally sold to other parties, from whom it passed to the present owner, the appellee herein. The possession of the lots in question passed with the title of the road, and they have ever since been used, occupied, leased, nr rented by the company owning- the road, and treated and considered as being property of the company and belonging and appertaining to it.</p> <p>Whether the loan of the $80,000 borrowed from Donnell, Lawson & Simpson was ever paid is in question. It was denied in the general denial of the allegations of the bill, and! no direct evidence given in regard to it. Nor does it appear what disposition was ever made -of the collaterals deposited 'with them, or whether any substitution. of stock or bonds of the Florida Central Railroad Company was made for the bonds of the .Florida Transit Railroad -Company which the articles of agreement show to have been pledged. The evidence shows that the bond's originally deposited were in their hands as- late.as 8th of July, 1882, and any substitution or pledge of the stock must hare been made, if at all, after that. • The only thing positive is complainant’s possession of the agreement acknowledging the loan and pledging the collaterals, and the possession of 700 shares of the stock of the company. The complainant, by his bill,’ alleged that he was a creditor of Donnell, Lawson ¿c ¡Simpson, and that he had received a transfer of the obligation or agreement of Iteed, Roddy, and Williard with them, and tiled this bill as their trustee, aud acting in behalf of all the stockholders of the florida Central Railroad Company, and claimed that, under the col-laterals deposited to secure the debt, he was holder of 700 shares of the stock of the florida Central Railroad, as originally organized, and that he had an equitable claim upon 4,410 more shares of said slock, and that the lots in question, situated in Jacksonville, although the property of said florida Central Railroad Company, did not appertain to the railroad, and did not pass to the purchaser by the foreclosure sale, and were still liable for the debts of said stock and his claim, and prayed an accounting of the rents and profits received, and that the conrt would issue an injunction restraining the defendant from committing waste, and appoint a receiver to take possession of the said lot,s. On the 18th of January, 1889, this bill was filed, and niton a hearing, April 15th, it was dismissed, from which decree of dismissal an appeal has been taken, appellant assigning as error: The dismissing the bill, (1) inasmuch as no rights had boon lost by the laches of complainant; (2) that (he defendant had never obtained any title to the properly in question under the judicial sale made on the ISih of January, 1882, and that no title passed under such sale, nor were such properties sold thereby.- and because complainant alleged a case entitling him to the relief prayed for, and (hat defendants did not establish any title to the properties in question.</p>

This was a suit by Leon G-odchaux against the Prentiss Tool & Supply Company and others to enforce a lien upon certain bonds of the Taylor Bros. Iron-Works Company, Limited, and was heard upon tlie cross bill of the Prentiss Tool & Supply Company, the answer thereto, and proofs.

This was an action by Joseph O. Proctor, Jr., against Daniel T. Church and others, to recover damages for breach of a contract. On the trial in the circuit court, the jury gave a verdict for the plaintiff. Defendants bring error.

This was an action by the city of Laredo, Tex., against the International Bridge & Tramway Company, to recover money alleged to be due under a contract. The circuit court sustained a demurrer to the petition, and, plaintiff having declined to amend, rendered judgment dismissing the action. Plaintiff brings error.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an application by Merck & Co., importers of certain merchandise known as “elaterium,” for a review of the decision of the board of general appraisers sustaining- the decision of the collector of the port of New York as to the rate of duty on such merchandise. The circuit court reversed the decision of the board. The United States appealed.</p>

<p>1. Pleading — Exhibit Annexed to Complaint.</p> <p>Annexing io a complaint, as an exhibit, a copy oí a contract sued upon, and referring to the same in the complaint, does not take the place of positive allegations of the terms of such contract, according to their legal effect or in haec verba.</p> <p>2. Same.</p> <p>P. sued an insurance company upon a policy of insurance, alleging that said company had agreed to pay to plaintiff $5.000 in case of the death of her husband from “violent injuries,” and that her said husband had died in consequence of “violent injuries.” A copy of the policy was annexed to the complaint, as an exhibit, by which it appeared that the insurance was against “violent and accidental injuries.” Held, that the exhibit could not be taken, as adding allegations to the complaint, and since, excluding the exhibit, the complaint stated a complete cause of action, it was not demurrable.</p>

<p>1. Suits against the United States — Duty of Court to Examine Evidence.</p> <p>It seems that, under the act to provide for bringing suits against the United States (Supp. Rev. St. p. 559), it is the duty of a court before which such a suit is brought to examine into the evidence to sustain the claim, even if the pleading interposed by the district attorney on behalf of the government presents no defense.</p> <p>2. Same.</p> <p>Upon consideration of the evidence presented in support of a claim against the United States for salary as a clerk in the office of a district attorney from March 12, 1891, to December 31, 1892, held, that the claimant was not employed after December 31, 1891.</p>

<p>This was an action by Hattie Wallace against the Standard Oil Company to recover damages for the death of her son, alleged to have been caused by defendant’s negligence. Defendant demurs to the complaint.</p>

<p>Iu Error to the United States Court in the Indian Territory.</p> <p>This was an action by Mary T. Clark against R. A. Evans and X P. Blackstone, as partners, under the name of R. A. Evans & Co., on a promissory note. Defendants had judgment, and plaintiff sues out this writ of error.</p>

This was an action by Dexter Horton & Co. against W. P. Say ward upon an alleged contract of guaranty. Heard on defendant’s exceptions to the report of a referee.

This was a petition filed by William Morgan to recover from tbe United States for servicies rendered as clerk of a United States court. The circuit court rendering judgment for the petitioner, and defendant appealing to the circuit court of appeals, the appellee moved to dismiss the appeal.

<p>In Error to the District Court of the United States for the Southern District of Alabama.</p> <p>These were indictments against Noel E. Turner and Martin Lank-ford for violating the statute against cutting timber from the public lands. Rev. St. § 2461. The indictments were consolidated, and defendants, having been convicted and separately sentenced, sued out this writ of error.</p> <p>On the 16th of February, 1894, the grand jury impaneled in the distriit court for the Southern district of Alabama found two indictments against the plaintiffs in error, each containing two counts, for cutting and procuring to be cut, with intent to export, dispose of, use, and employ the same in some manner other than for the use of the navy of the United States, certain timber upon lands then and there belonging to the United States, to wit: In the first indictment, No. 1,141, the E. % of the E.%oi: section 13, and all that part of the W. % of the E. Y¡ of section 13 lying east of the state line between tbe state of Alabama and llie State of Mississippi, all in township 3 N., range 5 W., St. Stephen's meridian; and, in the second indictment, No. 1,142, the N. % and S. K. % and the N. % of the S. W. %, section 19, township 3, range 4, all in the county of Washington, state of Alabama, — and duly charging other necessary ingredients to make offenses under section 2461 of the Revised Statutes of the United States. After the finding of said indictments, the court ordered as follows: “It is ordered by the court that the above-stated cases, numbers 1,141 and 1,142. United States v. Noel E. Turner and Martin Lankford, be and the same are hereby consolidated, and to be considered and tried together;” and thereupon the defendants pleaded, each for himself, not guilty, a jury was duly elected, tried, and sworn, and the trial of the consolidated cases was proceeded with, resulting in a verdict of not guilty in case 1,341, and of guilty as charged in the indictment, and assessing the damages at $248.80, in case 1,142. Thereupon the defendants moved the court to grant a new trial in said consolidated causes, on the ground “that the verdict as rendered by the jury was contrary to law, the evidence, and the charge of the court, and because one or more of the jurors sworn to try the canse were not impartial, m this, to wit, they had served upon a former jury at this same term of the court, convicting one of the defendants upon a similar charge from testimony elicited from one of the same witnesses, and because the jury arrived at the verdict by methods other than the consideration of the evidence.” In the record following this motion for a new trial are affidavits purporting to be the several affidavits of each of three jurors sworn in the case, in each of which is recited the manner in which the jury ascertained and arrived at the number of trees cut and removed by the plaintiffs in error. At a later day of the term, April T, 3894, the motion for a new trial was overruled and denied as of date April 5. 1894. On April 3, 1S94. the plaintiffs in error also filed a motion in arrest of judgment as follows: “Now come the defendants in the above-stated cause, after verdict and upon sentence, and move the court to arrest the judgment-in said cause on the following grounds: First Because the grand jury that returned the indictment was not summoned according to law, in this: that the record fails to show that the court ordered the venire to issue therefor. Second. Because the record fails to show that the foreman of the grand jury was appointed according to law. Third. Because ihe record fails to show the Talesmen summoned to servo on the grand jury were ordered to be summoned by the court and from the body of the district, as required by law. Fourth. Because the record fails to show that the grand jury which returned the-indictment in this consolidated cause was drawn from iho jury box, containing at the time of said drawing the names of not less than 300 persons, as required by law. and the record fails to show that the names composing said grand jury had been placed in the box by the commissioners, as the law required. Fifth. Because the record shows that one or more of the peiit jurors who served in the trial of this cause were drawn from the jury box after the number of names in said jury, box were reduced below 300. Sixth. Because the defendants in this canse were indicted and tried jointly, and the verdict of the jury fails to assess a separate penalty against each of them. Seventh. Because the record shows that this cause was consolidated by the court with another cause, and became one case, and the jury returned a verdict of not guilty in the other ease, and that operated an acquittal in this case.” In the transcript of record following this motion is a list of names of persons, with the post office or residence of each, the same purporting to be the jury-box list for the November term, 1893, but which is not otherwise verified, nor shown to be a part of the record. On April 5, 1894, the court overruled and denied the motion in arrest of judgment, and thereupon proceeded to sentence the plaintiffs in error, respectively, as follows: Noel E. Turner to pay a fine of ,$746.40 and the costs of the prosecution, and be imprisoned for the period of six months in the Mobile county jail, and stand committed until the payment of said fine and costs; said imprisonment to commence on the expiration of a. former sentence pronounced on this day on the said defendant in another case. Martin Lankford to pay a fine of $746.40 and the cost of the prosecution, and bo imprisoned for the period of one month in Mobile county jail, and stand committed until the payment of said fine and costs. Thereupon the plaintiffs in error brought the case to this court for review upon some 16 assignments of error, mainly relating to errors on the part of the court in the admission or rejection of evidence, hut all of which are specially noticed, so far as the same is necessary, in the opinion of the court.</p>

<p>In Error to the District Court of the United States for the Southern District of Alabama.</p> <p>This was ah indictment against hToel E. Turner for cutting timber from the public lands of. the United States. Defendant, having been convicted, brought a writ of error to this court.</p>

This was an indictment against Herbert C. Turner for cutting timber from the public lands of the United States. Defendant was convicted, and now seeks a review of the case by writ of error from this court.

This was an indictment against Noel E. Turner for cutting timber from the public lands of the United States. Defendant was convicted in the court below, and now brings error to this court.

This was a petition by W. E. Acker for a writ of Rabeas corpus, alleging that the petitioner was illegally restrained of Ms liberty by the marshal of the district of Montana.

<p>CONSTITUTIONAL LAW — FOURTEENTH AMENDMENT.</p> <p>M., a colored man, applied for a writ of habeas corpus, alleging that he was in custody under an indictment for murder found by a grand jury in the selection of which the jury commissioners had violated the fourteenth amendment of the constitution of the United States, and the constitution and laws of Louisiana, in failing to summon persons of M.’s race; and that he had been denied due process of law, and the equal protection of the laws, by the refusal of the judge of the court in which he was indicted to grant him a subpoena duces tecum to procure evidence in support of his challenge to the grand jury, or to entertain a petition for removal of the cause to the United States court on the ground of local prejudice. Held, that the petition stated no violation of the constitution or laws of the United States, and did not entitle M. to a writ of habeas corpus.</p>

This was an application by Henry Bennet, importer of certain Angora goat skins, for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of New York as to the rate of duty on such merchandise. The circuit court reversed the decision of the board of general appraisers. The United States appealed.

<p>1. Customs Duties— Classification — Glass Jars as Coverings for Roquefort Cheese.</p> <p>Small glass jars without necks, having straight inside walls and metal tops, are not unusual coverings for Roquefort cheese, within the meaning of Act June 10, 189Ó, § 19, providing that unusual coverings of merchandise shall he subject to an additional duty at the rate to which the same would be subject if separately imported; nor can they be classified as bottles or bottle glassware, under paragraph 103 of the Act of October 1, 1890.</p> <p>3. Same — Construction of Statute.</p> <p>The first clause of Act Oct. 1, 1890, declaring- that, unless otherwise specially provided for, there -should be levied upon all imported articles mentioned in the schedules the rates of duty respectively prescribed in such schedules, is not sufficiently definite to suggest that congress intended a reconstruction of the tariff system in regard to usual coverings of goods subject to a specific duty, so as to make glass jars, which otherwise would be entitled to free entry as usual coverings for Roquefort cheese, dutiable under paragraph 104, relating to glassware not specially provided for.</p>

<p>Customs Duties — Professional Instruments ok Tools of Trade — Actual Possession.</p> <p>Articles that do not arrive in the United. States at the same time or in the same vessel with the importer are not in his “actual possession,” within the meaning of Act Oct. 1, 1890, par. 68G, placing upon the free list “professional books, implements, instruments and tools of trade, occupation or employment, in the actual possession, at 1he time of persons arriving in the United States.”</p>

<p>1. Patents — Anticipation—Machine fob Rounding Bent Handles.</p> <p>The Caverly patent, No. 303,116, for a machine for rounding bent handles by means of a cutter head consisting of a cylinder with a groove in the center of its periphery, and recesses from either side, terminating in narrow openings on such groove, for the adjustment of the cutter knives, is void because of anticipation. 52 Fed. 758, affirmed.</p> <p>2. Same — Interpretation or Specieications and Drawings.</p> <p>The fact that the drawings of a patent show the knives of a cutter head set at a certain angle will not enable the patentee to rest his invention on that particular degree of angularity, when there is nothing in the specifications to show that he intended to limit the pitch of the knives to that angle. 52 Fed. 758, affirmed.</p> <p>8. Same — Invention—Cutter Heads.</p> <p>There is no invention in setting the knives of a cutter head at the precise angle of 45°. 52 Fed. 758, affirmed.</p>

<p>This was a suit in equity by the Edison Electric Light Company against the Electric Engineering & Supply Company for infringement of certain patents. The circuit court rendered a decree in part sustaining and in part dismissing the bill. 60 Fed. 401. Both parties appeal.</p>

This was a suit in equity by the Schuyler Electric Company against the Electric Engineering & Supply Company for infringement of letters patent No. 247,103, issued September 13, 1881, to Charles ft. Perkins. The circuit court dismissed the bill (62 Fed. 588), and complainant appealed.

<p>1. Patents — Invention—Thill Couplings.</p> <p>The Blair patent No. 334,842, for an improvement in anti-rattlers for thill couplings, is void for want of invention.</p> <p>!i. Equity Practice.</p> <p>The court may, of its own motion, dismiss a bill because it fails to state facts sufficient to give any right to relief.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Ohio.</p> <p>This was a bill in equity by Boderick P. Curtis and Louis B. Curtis against Willett 0. Wells for infringement of certain patents. The circuit court entered a decree for complainants, and defendant took this appeal.</p> <p>The bill in this case was filed by the appellees to restrain the appellant from the alleged infringement by him of .the rights secured to William D. Forbes by letters patent No. 253,996, bearing date February 21, 1882, for an “improvement in screw-cutting dies”; and also of the rights secured by letters patent No. 277,256, bearing date May 8, 1883, for an “improvement in ratchet wrenches,” issued to said Forbes and the said Roderick P. Ourtis, all which rights it is alleged have come by assignment to the appellees. The bill contains the proper averments, showing title in the appellees; alleges„ that the inventions described in the two patents are susceptible of connected use in operating screw-cutting dies; and further alleges that the appellant infringes both of said patents. The appellant appeared and answered, lie denied that the alleged inventor of the improvements covered by said letters patent was the first inventor or discoverer thereof, and also denied the infringement of either of them. As anticipations of No. 253,996 he set forth the following patents: British patent No. 1,7(55, of 1873; United States patent to Joshua Heap, No. 153,770, dated August 4, 1874; United States patent to Roberts, No. 158,314, dated December 29, 1874; United States patent to Eaton & Latham, No. 179,530, dated July 4, 1876; and, as an anticipation of No. 277.25(5, he sots forth United States patent to Gates, No. 198,291, dated December 18, 1877. He also added a clause by way of demurrer on the ground of multifariousness, but that has been abandoned. A replication was filed and proofs were taken. The prior patents shown by the evidence are the patents to Heap and Roberts for inventions of improvements in screw-cutting dies, and the patent to Gates for the invention of improvements in, ratchet wrenches.</p> <p>The invention claimed by Forbes in this patent No. 253,996, consisted of “the combination, in die stocks, of the following elements, namely: First, a casing, A, adapted to be secured to the object to be threaded; second, a threaded die-carrying ring having teeth on its periphery, and a screw head adapted to a corresponding thread in the easing; and, third, an elongated pinion having teeth adapted to those of the die-carrying ring, all substantially as set forth.” In his specifications, A is described as a cylindrical casing provided with a hub into which and into the casing is introduced the pipe to be threaded, the pipe being secured in the hub by set screws or otherwise. The die-carrying- ring is described as threaded externally and adapted to an internal thread of tiro casing, and having teeth on its periphery, the screw thread being cut into the edges of these teeth, the latter running parallel with the axis of tlie die-carrying ring, and extending the whole length of the ring. Tlie ring is thus described as having capacity for being moved forward and backward along the screw thread inside the casing on the axial line of the pipe to be threaded, and also of taking rotary movement from the elongated pinion next to be described. Tlie elongated pinion is small in its diameter, and is located in a chamber projected outwardly from the casing and parallel therewith. It runs along the whole length of the casing, and has teeth adapted to mesh with the teeth on the die-carrying ring, and long enough to operate upon the whole length of the ring during its entiré' travel in tlie operation of threading. Tlie pinion is journaled in the ends of the projection, and at one end extends outside of the latter, so as to receive the handle by which power is communicated to the machine. The dies are located in the face of the ring perpendicularly to^ its center line, and adjustable to the size of tlie pipe to be threaded. There is also projected inside the casing, from tlie end at which the imb is located, a sleeve or hollow cylinder, somewhat larger in its inside diameter than tlie inside of tlie hub, and long-enough to correspond with tlie length of travel of tlie die carrier in its operation. Tlie inside of the die-carrying ring “fits snugly, but so as to slide freely” on tlie outside of this sleeve. In operation, the pipe to be threaded is inserted through tlie imb and through the ring until it comes to the dies, the ring containing which lias been carried back to the rear of its room. The pipe is griped by the set screws or other like device in the hub. On turning the handle of the elongated pinion, the die carrier is revolved, and is also drawn forward upon tlie pipe by the screw on its periphery leading upon the screw inside the casing, in this way the, dies are made to engage the pipe, and the operation is prolonged until a sufficient length of the pipe is threaded. The pitch of tlie thread cut will, of course, correspond with the pitch of the thread on the die carrier. The patentee suggests, as a modification of this construction, the omission of the threading on the inside of the casing and the screw thread on the edge of the teeth at tlie periphery of the die-carrying ring, and accomplishing- their purpose by threading tlie outside of the sleeve projected into the easing, and making a corresponding thread upon that part of the die-carrying ring which in the first construction! slides upon the sleeve. He states that the object of ills invention is to make a die stock which can be used to advantage and with facility in cutting screw threads on pipes of large diameter. The advantages wliieii lie mentions as peculiar to Ills invention are that his “improved die stock is one adapted to the threading of large pipes such as are used for oil wells, owing to the facility with which the die-carrying ring can be rotated by turning the elongated pinion,” and that it does away with “any necessity for griping the pipe in a vise or other retaining device, for the threading of the pipe may be accomplished while it is simply resting on any support which may be at hand.”</p> <p>In the Heap patent, No. 153,770, dated August 1, 1874, in which the invention was described as being of an improved machine for threading tubes and bolts, there was a framing, A, which supported the die-carrying ring (called a cutter-head) and its shaft, which were integral, in a journal, which, as illustrated, was somewhat larger than the object to be threaded, but considerably smaller than the die head. The die carrier had teeth on its periphery, and was actuated by an elongated pinion running parallel with the movement of the die carrier, and lengthwise, along which the die carrier moved when in operation. There was also supported by the frame a vise which held the object to be threaded in line with the axis of the die head and shaft. The general method of operation was the same as that of the Forbes machine, as above described, and the construction contained all the elements of the latter, except that it had no casing surrounding the die-carrying ring and shaft, other than the box or cylindrical portion of the frame in which the shaft revolved. The Roberts patent was similar in most respects to that of the Heap, but, as the comparisons made by the court in its opinion are with the Heap machine, it is not deemed necessary to describe that of Roberts.</p> <p>The appellant uses a machine patented by himself February 11, 1887, as shown by letters patent No. 355,737, with a modification thereof involving the form of the pinion. This machine lias a casing surrounding the working parts. The pinion differs from the elongated pinion of the Forbes patent. In the Wells patent there is instead a small worm gear placed transversely across the end of the casing, and this actuates a ring having a corresponding gear ■revolving within the casing. In the modification which he uses there is, instead, a short pinion placed parallel to the axis of the die carrier, revolving into the teeth on the ring last mentioned. This ring carries teeth on only a portion of its length, the other portion fitting smoothly to the inside of the casing. The ring is stationary as respects longitudinal motion, but revolves freely within the casing, and is much shorter Than the member called the “die-carry'ing ring” in the Forbes patent. On the inside pf the ring, and running lengthwise of it, are short tongues or splines, which fit into grooves running lengthwise of the surface of the die carrier. The die carrier has a hollow shaft leading upon a sleeve by screw threads on each, in much -the same manner as in the modified form of the Forbes patent, as above described. Thus, when rotary motion is communicated to the die carrier by the splines on the inside of the ring, its shaft is screwed upon the sleeve, and the die carrier slides lengthwise on the splines of the ring, engages the object to be threaded, and performs the operation: There is a vise to hold the pipe, as in the other machines.</p> <p>The Forbes ratchet wrench, patent No. 277.250: This purports to be an .invention for the improvement of ratchet wrenches, the object being, as stated by the patentee, to construct a cheap and compact reversible wrench, which can be readily changed from a right to a left handed wrench. It consists of a combination in a casing of a ratchet wheel having an opening in its center to receive and engage the head of the thing to be turned, and a reversible pawl beveled on the rear edge, of such width, relatively to the distance between the teeth of the wheel, as that it is guided thereby and prevented from accidental reversal, and held down into the teeth of the wheel by a spiral spring surrounding its stem, together with a cap through which the stem projects and offers a thumb piece, by which the pawl can be drawn up against the spring out of engagement with the wheel, and reversed. The casing has sockets at each end for the reception of the handles by which the wrench is turned. The result is a wrench which can be turned continuously either way without removing it from the thing which is turned thereby. The court below sustained both of the Forbes patents, and entered a decree for the complainants.</p>

<p>1. Patents — Novkj.ty—Watering Troughs.</p> <p>The Campbell patent (No. 221,031) for an improved watering trough for stock, consisting, in claim 4, in the combination of a trough and drinking cap with a valve-feed mechanism, an open-bottom chamber, and a horizontal partition between the drinking cap and chamber, whereby a.ir is prevented from entering the bottom of the latter, is valid, as showing patentable novelty.</p> <p>2. Same — INFRINGEMENT.</p> <p>The Campbell patent (No. 221,031) for an improved watering trough for stock, having a horizontal partition set into the trough between the drinking space and an open-bottom chamber, so that when the water rises above this partition it forms a “water seal,” protecting the chamber from atmospheric influences, is not infringed by a trough merely covered, as a box, between the drinking space and chamber, making the water seal impossible, except at a mathematical level.</p> <p>3. Same — Limitation of Claim — Equivalents.</p> <p>.The specific claim of the horizontal partition for effecting the water seal being a renunciation of claim to other devices for performing the same functions, the use of projecting side walls of the open-bottom chamber of defendant’s trough, for the same purpose, does not constitute an infringement.</p>

<p>1. Patents for Inventions — Right op Government to Use Patented Device.</p> <p>The consent of the owner of a patented device is not positively necessary in order to enable the United States to use the invention described in the letters patent, particularly in cases where it relates to the mode of construction of implements of warfare required by the government.</p> <p>2. Same — Suit to Restrain Infringement.</p> <p>The patentee of an improvement in breech-loading cannon brought suit against an officer of the United States navy, connected with the bureau of ordnance and having charge of the manufacture of cannon at a navy yard, for an alleged infringement of his patent, praying, not only for an accounting and damages, but for an injunction restraining defendant and all persons acting under his authority from making the cannon alleged to infringe complainant’s patent. Held, that the suit was, in substance, one to prevent the making of breech-loading cannon of a certain character at the navy yard, and that public policy and the rights of the government would not permit such a suit to be maintained. G2 Fed. 084, reversed.</p> <p>3. Equity — Bum Charging Fraud — Decree on Other Grounds.</p> <p>A court of equity will not grant a decree on another ground, where the bill charges actual fraud as the ground for relief, and tlie fraud is not proven. 02 Fed. 584, reversed.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Texas.</p> <p>Libel for mariner’s wages.</p>

<p>This was an application under the cross libel of the Franklin Sugar-Refining Company against Funch, Edye & Co. for an order requiring respondents to give security ior damages, according to admiralty rule 53, which reads as follows:</p> <p>“Whenever a cross libel is filed upon any counterclaim, arising out of the same cause of action for which the original libel was filed, the respondents in the ■cross libel shall give security in the usual amount and form, to respond in damages, as claimed in said cross libel, unless the court, on cause shown, shall otherwise direct; and all proceedings upon the original libel shall be stayed until such security shall be given.”</p>

This was a libel in personam by Lewis S. Lee, master of the schooner Ada Bailey, against G-eorge M. Smith to recover demur-rage. The district court rendered a decree for libelant, and respondent appealed.

<p>This was a libel by Henry A. Pierce, masier and owner of the barge Harvey Bissell, against: the propeller Oscoda (George' Ryan, master), to recover damages for breach of a towage contract. The part of the libel which sets out the contract, the breach thereof, and the claim for damages, is as follows:</p> <p>“The said propeller Oscoda did make and enter into a certain contract with this libelant wherein and whereby ihe said Ryan, as master, agreed to take and receive the said barge Harvey Bissell as a part of the tow of the said Oscoda for ihe whole season of navigation of 1894 upon the Great Lakes and waters adjacent aud connected there!o and connecting the same, together with ihe barges of O. G. King and Ida Corning as consorts, to furnish the said Bissell wirli cargo and loads during said season, and to pay all commissions and towage for a valuable consideration then and there agreed upon. That said parties entered upon the execution of said contract as therein provided. That on or about the 1st day of September, 1894, and without the consent of the libelant, said propeller Oscoda deserted the said Harvey Bissell at the xiort of Buffalo, N. Y., against the wisli of this libel-ant, and contrary to the terms of said contract, and failed and neglected to tow the said Bissell, or to furnish tile said Bissell with any cargo, or to pay said commissions or towage, and at all limes since said 1st day of September, 1891, has "failed and neglected to hoop or perform any part of the said contract or agreement. That your libelant has performed all the conditions of the said contract on his part. That by reason of the premises aforesaid your libelant lias suffered loss and damage to the amount of (?1,000) one thousand dollars. That the lihelant relied upon the credit of said vessel, as well as upon that of the owner and master thereof, and the libelant would not so as aforesaid have entered upon the said contract except upon the credit of said vessel. That there is due to the libelant, by reason of the premises, the sum of one thousand dollars and interest thereon from the beginning of this action, over and above all payments, set-offs, and discounts, for which sum the libelant claims lie has a lion upon said propeller Oscoda, her boats, tackle, apparel, and furniture.”</p>

<p>This was a libel by seamen against the Potomac to recover extra wages.</p>

<p>Shipping — Titus to Vessel — Ninety-Nine Yeabs’ Lease.</p> <p>The lessor in a 99 years’ lease of a pleasure yacht, which document the lessees have accepted in lieu of a hill of sale after paying full value, has no interest or title which the court can recognize.</p>

<p>1. Towage — Negligence of Tug — Parsing Near Obstructions.</p> <p>It is negligence in a tug, towing a large barge against a current so swift that the tug, with a hawser of 250 feet, jumps and dodges about in the eddies, to go so near a pier (15 to 40 feet) as to render an accident, to the barge possible, if not probable; and, where the barge is heading outward, it is further negligence to signal her to keep closer in, behind the tug.</p> <p>2. Same — Negligence of Tow — Obeying Orders Manifestly Dangerous.</p> <p>Where a barge is being towed against a swift and treacherous current, it is negligence in the master, knowing that he is being towed so carelessly (hat he must pass within a few feet of a dangerous projection, to obey a signal from the tug to head closer in, and follow in her wake.</p> <p>3. Same — Signals from Tug — Prerijmi’tion of Authority.</p> <p>Persons on a barge in tow of a tug on a long hawser have a right to assume that any signal from the tug is made by authority, and it is therefore immaterial whether a given signal is made by the master or the iire-man of the tug.</p>

This was a libel by the Gulf City Coal & Wood Company against the steamship George Dumois to recover the price of coal' supplied to the ship.

<p>This was a suit in ran by William A. Price against the steam-tug Rambler to recover for damages occasioned by alleged negligent towing.</p>

<p>Salvage — Duress—Rescission of Contract.</p> <p>L.’s oyster steamer picked up a barge adrift and derelict, and towed It into port. The owner of the barge shortly after offered to settle L.’s claim for salvage for $500, which was refused. A few days later the owner came to the harbor where the barge was lying, and by threats and a display of force induced L. to agree to settle for $600, which was paid and accepted, and the barge removed by the owner. Immediately after-wards L. libeled the barge for salvage, but without mentioning in his libel the negotiations for settlement, or the receipt of the $600, or returning or offering to return the money. Held, that L., having failed to restore the other party to the same position in which he was before the contract, could not treat such contract as void for duress, and was entitled to no further recovery for salvage. 61 Fed. 694, reversed.</p>

<p>This was a libel by the Hale,arres Brook Steamship Company, Limited, against William B. Grace and others, for freight alleged to be due.</p>

<p>Colmsior — Insufficient Lookout — Tow—Long Hawser.</p> <p>The steamer El Rio soon after getting out of her slip on the New York shore of the North river, was obliged to reverse, whereby she narrowly escaped collision with a tug coming down near the wharves with a tow. After that danger was escaped, she started up full speed, without observing the libelant’s boat, which was second in tow of the tug Mutual, going up the North river about 800 feet further out, and collision with the libelant’s boat ensued. Béli. (1) that the steamer was alone in fault for an insufficient lookout, which was not legally excused by preoccupation with the danger to the nearer tow. (2) That in the absence of regulations, hawsers of 3(>0 and 180 feet respectively for lows in line behind the tug in the daytime in the North river were not unusual or culpable.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan.</p> <p>The appellants are the owners of the tug E. D. Holton, of Frankfort, Mich., which together with the tug Alice M. Campbell, of the same place, was libeled by A. E. Banks, the owner of the schooner Annie O. Hanson, for the negligent grounding of that vessel in the early morning oí May 15, 1891, at the entrance to the harbor of Frankfort. The owners of the E. D. Holton and the Hanson came to a settlement of the claim against the Holton. Penfold, the appellee, owner of the Alice M. Campbell, answered the original libel, and filed a cross libel against both the Hanson and the B. D. Holton for the damages suffered by the grounding of the Campbell, which was coincident with that of the schooner, and was occasioned, as charged in the cross libel, by the faults of both vessels proceeded against. The district court, upon full hearing, dismissed the original libel against the Campbell, and also the cross libel against the Hanson, and held the E. D. Holton solely in fault for the damages suffered by the Campbell, with the usual order of reference to a master to ascertain and report the damages of Penfold, the cross libelant. On the master’s report a final decree for the sum of $2,150.38 was awarded to the cross libelant, and from that decree this appeal was taken. 55 Fed. 1010.</p> <p>The facts relative to the grounding and damage of the Campbell, which are the basis of the decree appealed from, are as follows: About 3 o’clock a. m. of May 15, 1891, while the tugs H. D. Holton and Alice M. Campbell were lying in the harbor of Frankfort, with steam up, and keeping watch for incoming vessels, a torchlight was seen in the offing about a mile westerly from the piers at the entrance of the harbor. Both tugs started immediately in response to the signal. The Holton, passing out of the piers into Hake Michigan a short distance ahead of the Campbell, maintained her lead, and first proffered her services to the Hanson. The Campbell, seeing that her rival could not bo overtaken, stopi>ed when within 600 or 700 feet of the schooner. The schooner shortened sail preparatory to giving her line to the Holton, which rounded to and made a futile attempt to got the schooner’s towline. A second and third attempt to get the line failed through the negligence or incompetency of the Holton’s crew, who spent 20 minutes in their efforts. While these efforts were being made the schooner was drifting before a westerly wind inshore, in the direction of three sandbars which lie a short distance from the beach. Seeing the peril of his vessel, and the necessity of prompt action to avoid the shoals, and angered by the unskillful handling of the Hol-ton, the master of the Hanson ordered her off, and hailed the Campbell to take the schooner in tow. The Campbell at once started for the Hanson, but, before she got close enough to take her line, the Holton backed across the Campbell’s bow, compelling the latter to stop and reverse to avert collision. The Campbell a second time essayed to take the vessel’s line, and again the Holton defeated her effort by throwing herself across the Campbell’s course, despite the warning hail from the master of the Hanson to keep out of the way, and again the Campbell was obliged to stop. The Campbell made a third attempt to reach the schooner, which barely succeeded, though nearly frustrated by the persistent efforts of the Holton to defeat the maneuver. Without delay the Hanson’s line was made fast to the Campbell’s bow, and the tug at once hacked, In the hope of keeping the schooner off the bars, which were then so near that no other method of averting the stranding was possible. The movement was too late to be effectual. Before the Campbell could get the schooner under headway, the latter grounded on the middle bar, after drifting safely over the other bar. The Campbell, by the sudden stoppage of the schooner, was thrown broadside on the beach, where she lay for two weeks before she conld be released. Both the Hanson and the Campbell were greatly damaged by the grounding.</p>

This was a libel by James MeCaldin and Joseph McCaldin against the propeller Amos C. Barstow’, the Providence & Stonington Steamship Company, claimants, to recover damages for a collision between the said propeller ar.d libelants’ tug James A. Garfield; also a libel by Henry Robin against both the Garfield and the Barstow to recover for personal injuries and for property lost or damaged. The owners of tbe tug also filed a petition for limitation of liability.

<p>1. Removal of Causes — Api*baranok.</p> <p>An appearance in a state court, specially, for the purpose of removal to a federal court, the removal itself, and the filing of the record of the cause in the federal court do not constitute a general appearance in the action, nor cut off the defendant from contending that the service of process gave the suite court no jurisdiction, and that an attachment issued in the action was without authority. Construction Co. v. Simon, 53 Fed. 1, disapproved.</p> <p>2. Same-Removal by One of Several Defendants.</p> <p>Where an action is brought in a state court by a citizen of one state •against several defendants, all citizens of another state, any one of such defendants, without (he others, may remove the cause to a federal court, though it contains but a single controversy. Insurance Co. v. Champlin, 21 Fed. 85, followed.</p> <p>3. Jurisdiction — Service of Process — Attachment against National Bank.</p> <p>Where an action is commenced in a state court,- by a citizen of the state, against a national bank located in another state, and service is made only by attachment of the property of such bank, and by publication of the summons or service thereof out of the state, the attachment, being prohibited by Rev. St. § 5242, should he vacated, and the service set aside and declared void.</p>

<p>1. JURISDICTION or Federal Courts — Diverse Citizenship — Resident op Territory.</p> <p>A citizen of the Indian Territory cannot sue a citizen of a state in the federal courts.</p> <p>2. Same — Duty of Appellate Court.</p> <p>It is the duty of an appellate court to direct the dismissal of the case, where the complaint shows that: the requisite diverse citizenship does not exist.</p>

<p>In Error to the Circuit Court of the United States in the Indian Territory,</p>

<p>1. Equity Practice — Amendment op Bill — Time to Answer.</p> <p>When a hill is amended in a material matter, the defendant is entitled to time to answer the amended bill, which, unless fixed by agreement or special rule, should be the same length of time allowed for answering the original bill.</p> <p>2. Same — Decree on Defective Bill — Orening Default.</p> <p>One E. brought suit in 1893 to foreclose a mortgage which had been assigned to him by the mortgagee. His bill did not aver that the citizenship of his assignor was such that he could have maintained the suit in a United States court, and, as to the matter in controversy, averred only that it exceeded $500. A decree pro confesso was entered on this bill. The defendants moved to vacate this decree, and dismiss the bill for want of jurisdiction, or for leave to answer. While the motion was pending, the court allowed E. to amend his bill so as to show jurisdiction, and then denied defendants’ motion, and entered a final decree for complainant. Held error; that the bill was fatally defective; and, when the defect was called to the court’s attention, it was its duty to set aside the default, and, if it gave leave to amend the bilí, to allow the defendants time to answer.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>Suit by the Youngstown Bridge Company against the Kentucky & Indiana Bridge Company, in which receivers of the property of the latter company were appointed. The city of New Albany, Ind., intervened. The receivers appeal.</p>

<p>Appeal from the Circuit Court of the United States for tiie Eastern District of Arkansas.</p> <p>This was a hill hv John Gunn, surviving partner of the firm of Gutm & Black, against the Brinkley Oar Works & Manufacturing) Company for an accounting. A demurrer to the bill was interposed and sustained, and the bill dismissed. The complainant appeals.</p>

<p>1. Circuit Courts — Jurisdiction—Amount in Controversy — Creditors’ Bill.</p> <p>A creditors’ hill cannot he maintained, in the United States circuit court, by several complainants, each holding a separate and independent demand against the debtor less than 82,000 in amount, though the aggregate of all the complainants’ demands exceeds $2,000.</p> <p>2. Equity Practice — Supplemental Bill.</p> <p>A. defective original hill, which affords no ground for proceeding upon it, cannot bo sustained by filing a supplemental bill, founded upon matters taking place after the filing of the original bill.</p> <p>8. Creditors’ Bill — Necessity or .Judgment.</p> <p>One who claims to be a creditor of a defendant, but whose claim has not been reduced to judgment, and who has no lien and claims under no trust, cannot maintain a creditors’ bill or a bill to set aside deeds alleged to be fraudulent.</p>

<p>This was a bill by the Fenwick Hall Company against the town of Old Saybrook for injunction and discovery.</p>

<p>1. CORPORATIONS — DISSOLUTION' — DISPOSITION OF ASSETS — EMPLOYMENT OF Counsel.</p> <p>The charter of the P. Co. expired in 1889. The business of the company was continued for about a year, and a stockholders’ meeting was then held, at which an attempt was made to organize a new corporation to continue the business, taking' the properly of the P. Co. at a valuation of $50,-000, issuing stock to the shareholders of the P. Co., share for share, or paying a proportionate part of $50,000 to any shareholders who did- not accept stock. This plan was agreed to by a large majority of the shareholders, bur was rejected by the rest, who brought suit against the old and ihe new corporations and the directors, who were the same in both, claiming the rigid to have the property of the P. Co. sold, its debts paid, and the surplus distributed among the shareholders, and claiming also an account from the directors of their receipts and disbursements in conducting the business of the company, after the expiration of the charter. This suit was strenuously defended through a long series of proceedings, but resulted in a decree in favor of ihe complainants, as prayed in the bill, and a sale of the property of the P. Co. for 8710,000. The counsel engaged in the defense applied for payment out of this fund. Held, that the suit involved only a controversy between the stockholders of the P. Co. as to their rights in its assets, and did not involve the corporate interests of the company, and that the directors wore not authorized to use the corporate assets or credit in employing counsel to represent the contention of the majority stockholders and further their interests, nor were the counsel so employed entitled to be paid our. of the proceeds of the sale, but must look to the interests which they really represented.</p> <p>2. Same — Compensation of Officers.</p> <p>Held, further, that the president of the P. Co., who, before the dissolution of the company, had received no salary, and who was one of the directors who shared in and promoted the plan of the majority stockholders, was not entitled to any payment for his services as president after the dissolution.</p> <p>S. Same — Liability for Borrowed Money.</p> <p>Held, further, that the liability of the P. Co. for money borrowed after its dissolution depended upon the existence of a necessity for the loan for the purpose of closing up the business of the company, and that a claim asserted against the fund for money loaned by a company which appeared to have used the properly of the P. Co. between its dissolution and the sal(>. and to have been under the management of the same persons who were in control of the P. Co., could only be allowed after a probing of the accounts of the two companies, and to the extent of the balance due to such company for money actually loaned the P. Co. for necessary and proper purposes.</p>

The appellee, the National Bank of Kansas City, .instituted this suit in the circuit court of the United States in and for the Northern district of Texas, on the equity side of the docket, on May 23, 1894, against Dorr Clark; D. C. Plumb, G-eorge Ware, John P. Allison, and Albert L. Richardson, to recover of said respondents two tracts of. land, to wit: First tract: A survey of 327.68 acres, known as “Survey No. 29,” located by virtue of certificate No. 379, issued to the-…

<p>1. Equity Pleading— Multifariousnkss.</p> <p>A bill in equity set up — First, an alleged liability to a corporation of one person as assignee of unpaid stock, and an alleged joint liability with him of five others by reason of collusion with him to defraud creditors of the corporation: and, second, an alleged liability of five of the same defendants for fraudulent conduct in connection with a sale of the railroad belonging to 1ke corporation. Held, that the bill was multifarious, the two causes of action being distinct, presenting independent cases for relief, and requiring different proofs and different decrees.</p> <p>2. CORPORATIONS — StTTT BY STOCKHOLDER ON BEHALF OF CORPORATION.</p> <p>A suit brought by a stockholder of a corporation to enforce rights existing in the corporation cannot be sustained, where it is not alleged that any attempt has been made to secure redress through the corporation, or Through a receiver-in charge of its property, and where neither the corporation nor the receiver is made a party to the suit.</p> <p>3. Same — Rkhits of .Stockholder in Default.</p> <p>It seems that a stockholder of a corporation who is himself in default upon his subscription has no standing in equity to seek to impose a liability upon other subscribers for stock subscriptions.</p> <p>4 Estoppel — Acts of Directors.</p> <p>It seems that, where the directors of a corporation had approved the making of a contract, a member of such board, who participated in its ac-iion, cannot afterwards, as a stockholder, object to such contract, as a wrong to the corporation.</p>

Tins was a suit by Josiali Cohen and others, as executors of one Bernd, to foreclose a mortgage given by the defendant Solomon, and to have an alleged tax title to the mortgaged premises in defendant Wallenstein set aside, as well as a mortgage made by Wallenstein to the defendant Alexander. Wallenstein filed a cross bill for the foreclosure of the latter mortgage. The cause was heard on the pleadings and proofs.

<p>1. Assignment op Lease — Liability op Assignee.</p> <p>An assignee of a lease, holding by assignment from the original lessee, may assign such lease to any person, even though insolvent, and assumes no responsibility for the payment of rent by his assignee.</p> <p>2. Same — Colobable Assignment.</p> <p>It seems that, where an assignment of a lease is merely colbrable, or is made in bad faith, for the purpose of evading responsibility, equity may give relief to the landlord.</p> <p>3. Same — Injunction—Adequate Remedy at Law.</p> <p>Equity will not interfere to enjoin the assignment of a lease on the ground that the proposed assignee is insolvent, where the responsibility of the assignor would continue, and the landlord accordingly has an adequate remedy at law.</p>

These were appeals taken respectively by the Pennsylvania Company for Insurance on Lives and Granting Annuities against the Jacksonville, Tampa & Key West Railway Company and others, and by the latter company against the American Construction Company, Philip Walters, and others, from a decree adjudicating the matter of costs arising in receivership proceedings.

<p>This was an action for libel brought by Julia Marlowe Tabor against the Indianapolis Journal Newspaper Company. Defendant moves to strike out certain matter from the complaint.</p>

<p>In Error to (lie Circuit Court of the United States for the Southern District of New York.</p> <p>This was an action hv William J. Hammond, «Jr., against George Crawford, on a written contract. The circuit court directed a verdict tor defendant, and entered judgment thereon. Plaintiff brings error.</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the Northern District of Ohio.</p> <p>This was an action by John W. Pertz and George B. Stewart against the city of Findlay, Ohio, to recover the price of certain automatic gas separators alleged to have been sold to said city. In the circuit court the plaintiffs recovered judgment. Defendant brings error.</p> <p>The facts necessary to be stated to an understanding of the legal questions to be decided are substantially these:</p> <p>The plaintiff in error is a municipal corporation of the state of Ohio. It owned and operated a plant for the distribution of natural gas to consumers within the city. This plant was under the control of an arm of the city government called the “board of gas trustees,” composed of five members, elected annually by the qualified voters of the city. That board had authority to employ a superintendent, whose duty it was to maintain and operate the plant, make all necessary improvements and repairs, collect the dues 'from consumers, and render all other necessary services, under direction and supervision of the board of gas trustees, as might be required for a successful operation of a natural gas system. The duties of the superintendent were such as to require an expert in the boring and management of gas wells and in the safe and economical distribution of the gas to consumers. The position was that of an emifioyé of the city government, aiid was one involving expert knowledge and a considerable degree of trust and confidence. The defendants in error were partners, doing business under the firm name of Pertz & Stewart, at Kokomo, Ind., and as such were patentees and manufacturers of a machine called an “automatic separator.” These machines were adapted to be attached to the orifice of a natural gas well, and purported to separate the oil or water which came to the surface intermingled with the gas, and were represented to operate automatically. This firm had in their service one Melvin M. Broo.ks, who acted as their agent in Indiana for the sale of their separators upon a commission. In the spring of 1890, this agent went into the Findlay, Ohio, oil field, for the purpose of selling separators for the said Pertz & Stewart. While in that field as the agent of defendants in error, he was chosen superintendent of the gas plant owned and operated as aforesaid by the city of Findlay. July 12, 1890, Brooks wrote to defendants in error a letter concerning separators for use on the city wells. That letter is not produced by them. Mr. Stewart states that the letter was one of inquiry as to how the separators would work on oil wells. The answer to that letter was dated July 16, 1890, and was in these words:</p> <p>“Pertz & Stewart, Manufacturers of Automatic Gas Separator and Drip.</p> <p>“Kokomo, Ind., July 16, 1890.</p> <p>“Mr. M. M. Brooks, Findlay, Ohio — Dear Sir: Tour favor of the 12th received. We will be glad to furnish you any number of separators you may desire. Tou may connect them to a well producing oil with the gas, and rest assured that they will separate the oil just as readily as the water; but, when you desire to connect to a well producing oil, please so state in your order, for the reason that we make the valve a little larger for oil than we do for water. We sell them with the same guaranty for separating oil as we do for water. Hoping to hear from you soon,</p> <p>“Yours very truly, Pertz & Stewart.”</p> <p>The board of gas trustees, upon representations of Brooks, authorized him to purchase for the city of Findlay three of these automatic separators. This was done by a letter dated July 22, 1890, in these words:</p> <p>“Findlay, Ohio, July 22nd, 1890.</p> <p>“Pertz & Stewart, Kokomo, Ind. — Gentlemen: Please ship us at once to Stewartsville, Hancock County, Ohio, 3 separators for oil and gas, and 1 for water and gas. Stewartsville is on the Nickel Plate liailroad.</p> <p>“Yours truly, The City Gas Works.”</p> <p>This letter was written by Brooks, and defendants in error admit that, when received, they recognized it to have been written by him.</p> <p>August 11, 1890, Brooks ordered 16 other separa!ors, by letter In these words:</p> <p>“Findlay, Ohio, August 11th, 1890.</p> <p>“Messrs. Portz & Stewart, Kokomo, Ind. — Gentlemen: Please ship to Stew-artsville, Ohio, via Nickel Plate It. R., 10 automatic separators, and to Van Burén (i of the same. The latter is a station on the Toledo, Columbus & Cincinnati It. R., a short distance north of Stewartsville. If you cannot ship the entire order at once, please ship to Stewartsville first. I think that oil is the * * * likely to come first in these wells. I examined the ones sent, but can’t detect any difference in them.</p> <p>“Truly yours, The City Gas Works,</p> <p>“By M. M. Brooks, Supt.”</p> <p>On September 7, 1890, Brooks again made ail order for IB additional machines, by the following letter:</p> <p>“Findlay, Ohio.</p> <p>“Pertz & Stewart. Kokomo, Ind. — Gentlemen: Please ship separators as follows: 5 to Stewartsville; 8 to Findlay. I had discovered tiie error in your invoice of Aug. 22d, and had it corrected. Please send them forward hr soon as possible.</p> <p>“Truly yours, M. At. Brooks, Supt.”</p> <p>The first three separators were billed at $105 each, and on September 12, 1890. a remittance in full of bill was made by the following- letter:</p> <p>•‘Findlay, Ohio, September 12, 1890.</p> <p>“I’ei-tz and Stewart, Kokomo, Ind. — Gentlemen: Inclosed find New York Exchange No. 37,568, for three1 hundred and fifteen dollars, same being on account. Please acknowledge receipt of same.</p> <p>“Respectfully yours, The City Gas Works,</p> <p>“Per O. K. Beach, See’y.”</p> <p>As these separators were delivered, they were attached to the gas wells operated by the gas trustees, by their superintendent, Melvin M. Brooks. November 1, 1890, defendants in error rendered an account for the 29 separators which had been ordered by the letters of August 1'lth, and September 7th. This account was in these words and figures:</p> <p>“Kokomo, Ind., November 1, 1890.</p> <p>“City Gas Works, Findlay, Ohio, In Account with Periz & Stewart, Proprietors of .lohn W. Pertz Automatic Separator.</p> <p>Aug. 20. To Mdse. 8315 00</p> <p>“ 22. “ 630 00</p> <p>“ 23. “ 105 00</p> <p>Sept i. “ 630 00</p> <p>“ 16. “ . 810 00.</p> <p>“ 22. “ 525 00</p> <p>83.015 00</p> <p>“Please remit. Unless otherwise advised, will draw for SI.050 on the 10tb inst. Please honor draft, and oblige.”</p> <p>To this the following reply was made:</p> <p>“Findlay, Ohio, November 6, 1890.</p> <p>“Messrs. Pertz & Stewart, Kokomo, Ind. — Gentlemen: Please do not draw on us. We note you have billed the separators at the gross price. Please send credit memoranda of the discount by return mail. We understand the discount is ten per cent, on a sale of four. We presume a greater discount will be allowed on the number we have purchased. Your reply by return mail will oblige,</p> <p>“Yours respectfully, The City Gas Works,</p> <p>“Chas. K. Beach, Secy.”</p> <p>The gas trustees denied that they had authorized the purchase of the 29 separators ordered by the letters of Brooks above cited, and, suspecting that the price charged was excessive, began to make inquiry. Brooks, when approached on the subject, said $105 was the net price, and that no commission or discount was allowed; upon being pressed about the matter, and confronted with evidence that a discount or commission had been allowed other purchasers, admitted that he was the agent of Pertz & Stewart, and that they had allowed him a commission of $10 on each of the separators purchased for the city of Findlay. He admitted that he had received $30 as commission on the three separators bought by direction of the trustees, and offered to turn it over to the city. He admitted that he would receive $290 on the other, purchases, and proposed that these commissions should be credited on the account against the city. Upon those admissions he was immediately discharged from his position.</p> <p>November 17, 1890, the defendants in error wrote the following letter, and inclosed a new account, crediting thereon the commissions due to Brooks:</p> <p>“Kokomo. Ind., November 17, 1890.</p> <p>“Oity Gas Works, Findlay, Ohio, in Account with Pertz & Stewart, Proprietors of John W. Pertz Automatic Separator and Drip.</p> <p>1890.</p> <p>July 26. 3 separators, at $105....$315 00</p> <p>Aug. 20. 3 “ “ “ . 315 00</p> <p>“ 22. 6 “ “ “ ..... 630 00</p> <p>“ 23. 1 « “ “...... 105 00</p> <p>Sept. 4. 6 “ “ “ .. G30 00</p> <p>“ 16. 8 “ “ “ . 840 00</p> <p>“ 22. 5 “ “ “ ..... 525 00 $3,360 00</p> <p>Sept. 12. By N. X. Exchange....$315 00</p> <p>Nov. 13. By M. M. Brooks. 30 00</p> <p>Nov. 13. By Com. on 29th Sept., each $10.00 . 290 00 635 00</p> <p>Balance .. .. $2,725 00</p> <p>“Pertz & Stewart,</p> <p>“Manufacturers of Automatic Gas Separator and Drip.”</p> <p>“Kokomo, Ind., November 17, 1S90.</p> <p>“Oity Gas Works, Findlay, Ohio — Gentlemen: Inclosed please find statement of your account to November 17, 1890. We received letter from Mr. Brooks the 15th, under date of November 13th, inclosing $30.00 commission, paid him on three separators that you had paid for September 12. Mr. Brooks requests us to place the same to the credit of the City Gas Works, and also the $10.00 commission on each of the twenty-nine separators not yet xiaid for, which request has been complied with, as you will notice in statement. There seems to have been some misunderstanding between Mr. Brooks and the company or gas works concerning the $10.00 commission on separators. Hoping the matter is satisfactorily adjusted, we are</p> <p>“Yours very truly, Pertz & Stewart,</p> <p>“By Stewart.”</p> <p>To this the gas trustees replied, under date of November 18,1890, as follows:</p> <p>“Office of the City Gas Works. Superintendent.</p> <p>“Findlay, Ohio, November 18, 1890.</p> <p>“Messrs. Pertz & Stewart, Kokomo, Ind. — Gentlemen: Yours of November 17 received, saying you have a letter from Mr. Brooks on the 15th inst., dated 13th inst., returning to you $30.00 commission, paid by you to him on three separators that we had paid for September 12, and that, at Mr. Brooks’ request, you place the $30.00 to the credit-of the Oity Gas Works, and that you also credit us with the $10.00 commission on each of the twenty-nine separators not yet paid for, all at the request of Mr. Brooks. Your dealings with Mr. Brooks were wholly unauthorized by us, and without our knowledge, and we have determined that we have no contract whatever with you, and will in no way recognize any indebtedness to you. Whatever contract you made with Mr. Brooks you can look to him alone for settlement. We cannot now permit you by your letter of the 17th inst. to make any contract with us, and desire you to distinctly understand you never had a.ny contract with this board, and"we have no present munition of any with you. You no doubt realize the fraudulent character of your dealings with Mr. Brooks so far as this board is concerned, as we judge from your letter. The separators you sent to Mr. Brooks are subject to your order here, so far as we are concerned in the matter, but you must at once take care of them at your own expense. We will see to the disconnecting of such as are attached to wells, hut will have no further care of them. The account you inclose us will not be paid, as we owe you nothing whatever. We-demand that you return to us the $315.00 sent yon on September 32, as the same was sent you under a mistake. As to the fact of our being indebted to you, if it is not returned, we shall take legal steps to collect it by attachment on the separators you have here. You understand we base our action and claim on the ground of fraudulent contract between you and Mr. Brooks.</p> <p>‘•Yours, etc., Board of Gas Trustees,</p> <p>“J. G. Hull, President.”</p> <p>January 10, 3891, suit was begun by defendants in error in the circuit court of the United States for the Northern district of Ohio for the sum of $2,725, with interest, being the balance due as per account rendered November 17, 1890, and above set out. The pleading was, under the Ohio Code practice, a pethion. answer, and reply. The answer of the city of Findlay set up the following defenses: (1) That the superintendent of the City Gas Works, Melvin M. Brooks, was secretly the agent of the plaintiffs, Pertss & Stewart, and that; they had illegally and fraudulently procured him to procure for them a contract for the sale of their separators by promising to him a commission on each separator sold. (2) That the defendant was absolutely ignorant of the dual agency of the said Brooks, and in reliance upon him as its sole and exclusive servant and employe>, and in reliance upon his representations as to the usefulness and value of the separators sold by plaintiffs and as to tlw> necessity for purchasing same, had authorized him to contract for three of said machines. (3) That said Brooks, without authority, had ordered 29 other separators, and had placed them upon various gas wells belonging ht defendant, without the knowledge of defendant. (4) That defendant had not discovered the fact that said Brooks was at the same time acting for both buyer and seller until in November, 3890, and that upon that discovery it had discharged him from its service, and repudiated the entire transaction, and notified plaintiffs that the said separators were subject to their order, and demanded a return of the $315 paid them for the three separators ordered with its consent. (5) It alleged, in addition, that the said Brooks represented that said separators would effectually separate either oil or water from gas, and would automatically eject the water or oil thus separated, and were reasonably worth $105 each, but that said machines were not capable of doing such work as represented, or doing it automatically, and were of no practical value. (0) This answer concluded with a prayer that the petition might be dismissed, and that defendant have judgment for S315, and for other proper relief. The reply to this answer admitted that Brooks had acted as their agent in Indiana, and that in 3890 he went to the Findlay oil fields for the purpose of selling separators; that the first they heard from him was when they received from him the orders heretofore set out. They admitted that they had sent him a commission on the separators first ordered. They say that they did not know that the gas trustees of Findlay were ignorant of the relations between Brooks and the plaintiffs, and supposed the commissions allowed Brooks “would eventually be credited to the city.” They insist that they acted in good faith, and without collusion or purpose to defraud defendants; that the invariable price of the separators was $105, with an allowance of $10 on each sold through their agents; that, at the request of Brooks, they had finally credited the city with the commissions he had earned. They further insisted that the said separators wore attached to the gas wells at. the lime the defendants repudiated the contract, and that defendants had continued to use them; and were using them when suit was begun; that the use which had been made of them had made them unmarketable by wear and exposure, and that they could not be disposed of except at a considerable sacrifice. There was a jury, and verdict for the full amount claimed by de-íendants in error.' From tlie Judgment thereon, a writ of error was sued out by the city of Findlay, and errors have been assigned upon the charge and for refusal to charge as requested.</p>

This was an action by George J. Baer against the city of Key West to recover damages for the breach of a contract for the grading, paving, etc., of streets and sidewalks. The case was submitted by consent to the court, without a jury. The court found generally for the defendant, and entered judgment in his favor. Plaintiff excepted to the ruling, and brings error to review the judgment.

This was an action by Twyman 0. Abbott against the United ¡States to recover damages for breach of a contract to lease certain rooms for nse as a post office.

This was an action of ejectment brought by the Northern Pacific Railroad Company against James De Lacy to recover certain lands alleged to fall within the grant made by congress to the railroad company.

This was an action on the case brought by C. C. Watts, a citizen of West Virginia, against the Southern Bell Telephone & Tele‘graph Company, a corporation created and existing under the laws of New York. The action was brought on the 19th day of March, 1894, to recover damages for the- destruction, by fire, on the 7th day of February, 1894, of the plaintiff’s house and furniture.

This was an action by O. C. Watts against the Southern Bell Telephone & Telegraph Company to recover .damages for negligence. Upon the trial in the circuit court, judgment was given for the plaintiff. 66 Fed. 453. Defendant brings error.

This was an action by lone Nolan against J. T. Zachry and L. Lanier upon an alleged account stated. In the circuit court, plaintiff recovered judgment. Defendants bring error.

This was an action by N. K. Fair bank &. Oo. against the Cincinnati, New Orleans & Texas Pacific Railway Company to recover damages for the loss of certain oil, shipped over defendant’s road. After a verdict for the plaintiff, the defendant moves to enter judgment for it, notwithstanding the verdict.

<p>Gravel-Road Bonds — Indiana Statute.</p> <p>The statute of Indiana, relating to the construction of gravel roads, provides (3 Burns’ Rev. St. § 158UO; Rev. St. 1881, § 5090) that assessments to pay for such roads shall he levied on the property benefited; and also (3 Burns’ Rev. St. § 0861; Rev. St. 1881, § 5097) that, for the purpose of raising money to meet the_ expenses, the commissioners of tne county are “authorized to issue the bonds of the county, maturing- at annual intervals, after two years * * * and said assessments shall be divided in such manner as to meet the payments of principal and interest of the bonds, * * * and, when collected, the money arising therefrom shall be applied to no other purpose' but the payment of the bonds and interest. * * *” Held (following the construction of the statute by the courts of Indiana), that bonds issued in pursuance of this statute do not create a general obligation of the county upon which an action may be maintained for mere failure to pay them at maturity, but only an obligation payable out of the assessments, when collected, upon which the county cannot be made liable, unless it appears that the assessments have been collected and wrongfully withheld, or that the failure to collect is due to some negligent or wrongful act or omission.</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>This was an action upon a written contract by the Hercules Iron Works against Caleb Dodsworth arid others, in which the plaintiff obtained judgment. 57 Fed. 556. From this judgment, the defendants have sued out a writ of error.</p> <p>In February, 1890, the Hercules Iron Works, a corporation of the state of Illinois, contracted to construct and erect for tbé defendants, Caleb Dodswortb and others, as partners, a machine and appurtenances for the production of ice, of the Hercules pattern and style, in accordance with certain specifications. This machinery was to be placed on the premises of defendants, and upon foundations prepared by them in accordance with plans furnished by plaintiff, and was to be completed and put in operation May 1, 1S90, provided the foundations were prepared and possession of the premises given to the contracting corporation by March 15, 1890. The guaranties contained in the written contract were as follows: “First. That the machine will be capable of producing 25 tons of good, crystal, merchantable ice each twenty-four hours of continuous operation, provided it is kept in good order, and properly handled, and the temperature of the condensing water is not above GO degrees Fahrenheit. Second. That the best material and workmanship will be used in the construction of the machine and apparatus; and, if any portion proves défeefive, we will furnish same free of cost. Third. We do not infringe upon the patent rights of any one, and will defend any suit brought against you of which we shall have timely notice. Fourth. * « * .Fifth. That we will furnish one competent engineer for thirty days after the machine is erected and started,, who will superintend its running as you may direct, and who will instruct your employes in care of machine. Sixth. It is our intention to give you our 25-ton machine complete in every detail, and if there is anything required to make the same complete, not specified herein, it will be furnished without any cost additional to that hereinafter named. Seventh. The whole plant will be completed and in operation about May 1st, provided you give us possession of the premises March 15th, and the foundations and platform are ready at that time. Eighth. When the machine is run at its maximum capacity, in good order, and properly handled, with condensing water at GO degrees F., and with engineers at $2.50 per day, firemen $2 per day, laborers $1.50 per day, and' Pittsburgh coal at $1.45 per ton delivered, water to be pumped from well with power pump, the cost to produce ice will not exceed 85 cents per ton, not including interest upon the investment.” The penalty for nonperformance and for delay in completion was that the Hercules Iron Works should pay any actual damage that might accrue to Dodsworth and his partners, “not exceeding twenty dollars per day for each and every day until said plant is in operation, unavoidable accidents, however, excepted.” The terms of payment were: One-third when the machinery has been delivered upon the premises; “the remaining two-thirds after the machinery has been running thirty days, provided it has performed the guaranty as herein stated.” The first payment was made on delivery of the machinery. There was some delay by defendants in completion of foundations for the machinery, and in the completion of the building in which the plant was to be erected. The machinery was constructed and put in operation about .Tune 1, 1890, and no point is now made as to this delay. The defendants took possession of the machinery, and have operated the same during the ice seasons of 1890, 1891, and 1892. Default having been made in the deferred payments, suit was begun in 1893 in the circuit court of the United States for the balance due on the contract, with interest.</p> <p>The petition, filed under Ohio code practice in lieu of a common-law declaration, set out the contract, alleged full performance by the plaintiff, and that the defendants, after the plant had been in operation for more than 30 days, “received said ice machine and plant, and accepted the same.” The plaintiff then averred that “it had performed all the conditions of said contract on its part to be performed, and has become entitled to the payment of the said price, according to the terms of the contract, with interest.” The defendants answered, and made their answer a cross petition. The defenses set out were: (1) Tliat they had never accepted the said ice machine. (2) That the contract had not been performed according to its terms and conditions by the plaintiff, in that it had failed to fnrnish many parts thereof as required, particularly a. certain i>ower pump described in the contract. (3) That the guaranty with respect to the capacity of the machine to produce 25 tons of good, crystal, merchantable ice every 24 lionrs of continuous operation had not been performed; and that said machine was not, and never had been, capable of complying with said guaranty. (4) That they have called upon plaintiff to complete said machine, hut it liad refused and failed to do so. (5) That they had notified the plaintiff to remove the machine, hut that it had failed and refused so to remove it. (6) By way of cross petition, it alleged that they had been greatly damaged by the plaintiff’s breach of contract, and sought to recover as follows: (la) The money they had paid to and on account of plaintiff, and for articles bought by the defendants which should have been furnished by plaintiff, (,2a) That, in carrying out their part of the contract, they had expended large sums of money, which by failure of plaintiff to furnish the machinery within the time required, and of the kind and capacity required, were totally lost to defendants. The plaintiff, in reply, denied all and each of the allegations of the answer and cross petition not specifically admitted. It admitted that the force pump in the contract had not been furnished, but averred that it was omitted at the special instance and request of the defendants, and that the value of the same, whicli was $150, should be deducted from the contract price. The defendants, upon the filing of this reply, moved for judgment upon the pleading. This was overruled, and leave given plaintiff to amend the petition, which was done, by inserting therein a statement that the power pump had been omitted at request of defendants, and that the value of the same was to he deducted from the contract juice. Upon these pleadings, the jury, upon the evidence and upon the law as charged, returned a verdict for $17,024.40, being the full balance claimed by plaintiff, with interest, less the value of the pump and certain small payments made to or for plaintiff, concerning which there was little or no controversy. From this judgment defendants have sued out a writ of error.</p>

This was an action at law by A. B. Small against the Hartford Eire Insurance Company upon a policy of fire insurance. In the circuit court there was a verdict for plaintiff, and the court rendered judgment thereon. Defendant thereupon sued out this writ of error.

<p>In Error to tbe Circuit Court of tbe United States for tbe Northern District of Texas.</p> <p>This is a suit to recover upon 50 interest coupon bonds, for $60 each, executed by the defendant county, dated April 10, 1890. These coupons are for interest for two years upon an issue of $20,000 bridge bonds issued by the defendant county under the provisions of an act of the legislature of the state of Texas entitled “An act to authorize counties to buy, construct, or contract for the use of bridges, and to issue bonds and levy taxes to pay for the same, approved April 4, 1887. The county had a contract for the building of three bridges with the Milwaukee Bridge & Iron Company, and from this company, Harris & Co. obtained the bonds and coupons for value, and plaintiff derived his title from Harris & Co. Default was made on the payment of the interest coupons due on the 10th day of April, 1891, and April 10, 1SÜ2, respectively, and this suit was commenced upon the 40 defaulted coupons, April 6, 1893. A number of exceptions are taken by the plaintiff to the rulings of the court below, but, in the view taken of the case, the only one necessary to be considered is the exception to defendant’s original amended answer, and to the rulings of the court on the trial admitting evidence over the objection of the plaintiff. In the trial in the court below, the plaintiff, with other evidence shown by the record, offered a certified copy of an order bearing date Feb-uary 10, 1890:</p> <p>“The State of Texas: Be it remembered that on this, the 10th day of February, 1890, the county commissioners’ court of Runnels county, convened in regular session at a regular term of said court, all thé members of said, to wit, Hon. W. A. Proctor, Co. Judge, presiding, S. P. Brown, Com. Prect. No. 1, M. C. Bright, Com. Prect.,No. 2, D. F. Higginbotham, Com. Prect. No. 3, E. W. Stokes, Com. Prect. No. 4, being present, the following order was made and duly entered on the minutes of said court, to wit: It is ordered by the county commissioners’ court of said county that the bonds of said county to the amount of twenty thousand dollars, with interest coupons thereto attached, be issued for the purpose of building and constructing bridges l'or public uses within said county, by virtue of and under the provisions of an act of the 20th legislature of the state of Texas, entitled ‘An act to authorize counties to buy, construct or contract for the use of bridges, and to issue bonds and levy taxes to pay for same, and to repeal all laws in conflict herewith,’ approved April 4, 1887. Said bonds shall be in denominations of ($1,000) one thousand dollars each, numbered from one to twenty consecutively and inclusive, to become due and payable on the 10th day of April of each year, twenty years after date, to bear interest at the rate of G per cent, per annum, payable annually on the 3,0th day of April of each year. Interest and principal shall be made payable at the office of the treasurer of the state of Texas. Said bonds shall be signed by the county judge with the seal of the commissioners’ court affixed, countersigned by the county clerk, and registered by the county treasurer. It is further ordered that a tax of fifteen cents on the one hundred dollars’ valuation of all properly situated in said county subject to taxation be annually levied and collected to pay the annual interest on said bonds, and to create a sinking-fund of not less than four per cent. (4) or the full amount of said bonds for their redemption.</p> <p>“The State of Texas, County of Runnels: I, TV. I- Towner, clerk of the county court and ex officio clerk of the commissioners’ court of Runnels county, Texas, do hereby certify that tlie above, foregoing, and attached instrument in writing contains a true and correct copy of the original, as the same appears of record in the minutes of the county commissioners’ court of Runnels county in vol. 2, and at various terms. Given under my hand and seal of office, this, the 33st day of August, 1891. W. L. TOWNIfllt,</p> <p>a j Seal ) Clerk County Court and Jix Officio Oommission- ( Runnels County, j ers’ Court of Runnels County, Texas. ”</p> <p>Plaintiff called as a witness TV. L. Towner, who testified that he was clerk of the commissioners’ court during the year 1890, was still clerk, that no bridge bonds were issued during the year 1890, except the Milwaukee bridge bonds, admittedly the bonds in suit, and rested his case. Thereupon defendant’s counsel called the same TV. L. Towner as a witness, who testified that he had the original record book of the commissioners’ court of Runnels county, which began in August, 1889, and was not yet closed, and the defendant county offered the minutes as made and entered in the original minutes of the commissioners’ court.</p>

The defendant in error Mrs. Maggie Farra, while driving across the tracks of the defendant railroad, at a public road crossing, came into collision with a rapidly moving passenger train, passing on said railroad, and received very-serious injuries. She instituted suit for damages in the circuit court of Jessamine county, Ky., which was removed by the plaintiff in error to the United States circuit court for the district of Kentucky.

<p>In Error to the Circuit Court of the United States for the District of Kentucky.</p> <p>This was an action by William White, administrator of Green-Kennedy, deceased, against Charles M. McGhee and Henry Fink, receivers of the East Tennessee, Virginia & Georgia Railway Company, to recover damages for negligence causing the death of said Kennedy. In the circuit court plaintiff recovered judgment. Defendants bring error.</p> <p>. Plaintiffs in error were receivers of the East Tennessee, Virginia & Georgia. Railway Company, and as such operated the Louisville Southern Railroad under a lease from the Louisville Southern'Railroad Company to the East Tennessee, Virginia & Georgia Railway Company. While the road was being, operated by' the receivers, Green Kennedy, the intestate of the defendant in error, was killed by one of their -trains in Lawrenceburg, Ky. The accident occurred at the point where the railway is crossed by the main road from Lawrenceburg to Frankfort, which runs from north to south. The railway track crosses the road diagonally from southeast to northwest within the corporate limits of Lawrenceburg, but outside of the more densely settled portion of the town. For a quarter of a mile south of this crossing there are no houses on ■ either side of the turnpike except that of Mrs. Caldwell, which stands about 40 yards south of the crossing, and 20 feet east of the pike, and has the railroad at its rear as well as on its north side. Three hundred yards, before reaching the crossing the railroad makes a curve in a cut Whether a train running in this cut is hidden from a traveler on the pike was in dispute. The pike before it reaches the crossing is below the level of the railway, and reaches the railway on a grade. From a point upon the turnpike 20 feet south of the crossing, the railway track can be seen about 40 yards eastwardly from the crossing. The track west of the crossing is straight and level and in open ground for half to three-quarters of a mile. On the 26th of. August, 1892, Green Kennedy, seated in a wagon, was driving,a horse and mule northwardly on the turnpike road just described towards the railroad crossing. Holly Meux, a colored hoy, was sitting on the seat with Kennedy. As they approached the railway, a work train crossed. Kennedy stopped the wagon in front of Mrs. Caldwell’s house, 40 yards from the track, and, as the work train passed, -went on slowly towards the crossing. The mule and the horse were upon the track when a second train, a freight train'following the work train, struck the mule, killed Kennedy instantly, and injured the hoy Meux. Suit was brought in the circuit court of Anderson county, Ky., to recover damages, and it was removed by defendants to the court; Below, where a verdict was rendered in favor of the plaintiff for §4,500. Upon motion for new trial the court made an order granting the same, unless a re-mittitur 'was entered of §2,000. This was doue, and judgment was rendered for the §2,500. Holly Meux, who was on the wagon with Kennedy, testified: “Just before we reached Mrs. Caldwell’s house the work train passed over the crossing, and we slackened up, and stopped in front of Mrs. Caldwell’s house. As soon as the train passed by, we drove up slowly to the crossing. X was looking at the train which had just passed, and it was going- around the hill, as u e approached the railroad crossing, 'and just before the mule on the right hand side was stepping on the track, 1 turned • my head, and saw the train coining from the other side of the track, and hallooed to Green Kennedy' to look out, and X was just about to jump out when the train struck the mule and wagon, and knocked me out on the ground near the fence.” Henry Anderson testified for the plaintiff: “While 1 was looking in that direction I saw Green Kennedy and his team approaching the crossing from the south side, aud it seemed to me tiiat it was not more than a minute or two after the train passed, and before it got out of sight, until the second train appeared on the crossing and struck the team. 1 heard no whistle nor ringing of the bell on this last train. 1 am positive the whistle was not blown, and 1 did not see it at all until just about the time it struck the team. I immediately got up and walked down to the crossing, and when I got there I found that, Green Kennedy was killed.” Lula Kingston, who was approaching the crossing from the other side, from 1ho north, and did not quite reach it before the second train passed, said: “1 did not see at that time Green Kennedy nor his wagon and team near the railroad crossing, hut after the train had passed I came hack and saw where the wagon had been struck and a mau was killed.” Another witness, Mattie Sewell, testified that she was looking out of her window, through which she could see to the middle of the pike where the railway crossed it; that she followed the first train with her eye until a shadow came across in front of her, and she turned her head, and saw another train, which struck the wagon Green Kennedy was in. Claude Anderson, who was sitting on the fence just south of the crossing, said that he turned his head to look at the work train, and did not see the other train as it approached the crossing until just before it struck the wagon. “After Green Kennedy started in the direction of the railroad after the work train had passed, I did not notice him until just before the second train struck him. I do not know which way he was looking as he approached 1he crossing, as 1 was looking in the other direction, at the work train.” For the defendant, Bertha Caldwell testified: “I heard the noise of the train and the bell ringing, and saw the train as it came around the curve. I looked to the pike, , and saw a colored man driving a wagon with a> horse and mule in it about tweifiy feet from the railroad track. X said to my mother, ‘That man is driving his team onto the track; why don’t he stop?’ I saw him look around at the train as it was approaching the crossing, and I thought he would stop, hut he whipped up his horses, and 1 screamed, and said to my mother, ‘Why don’t he stop?’ Just then the mule went onto the track, and the engine struck the mule and fore wheel of the wagon on the right hand side, and I immediately' ran out to see if the man was killed. If the colored man had tried to stop his team when I saw him look up at the approaching train, he could easily have avoided the accident, but he acted to me like he was trying to cross the track before the train reached him.” This is substantially all, the evidence as to the circumstances under which Green Kennedy approached the track. The evidence of most of the witnesses for. the plaintiff tended to show that the train was running at the rate- of about 20 miles an hour.-</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The facts in this case are fully and properly stated in the brief of counsel for plaintiff in error, as follows:</p> <p>“This is a writ of error prosecuted by the Chicago, Milwaukee & St. Paul Railway Company, defendant below, to reverse a judgment of $8,000 recovered against it in the. lower court by Benjamin F. Wallace, the plaintiff below, for loss and injury to certain property comprising part of the belongings and equipment of a, circus owned by Wallace, and for the loss of performances of the circus caused by two separate accidents hapxiening upon the railroad company’s road while it was transporting the circus in a special train composed of cars belonging to Wallace. Plaintiff’s declaration is in trespass on the ease for negligent .violation by defendant of its duty as a common carrier. It contains two counts: The first count avers that on the 7th day of July, 1S92, the defendant was possessed of and operating a certain railroad and railroad tracks in the states of Wisconsin and Iowa, and was operating and controlling certain locomotive power and engines up■on and along its said railroad and tracks; that the plaintiff was the owner of a certain circus known and described as the ‘Cook & Whitby Circus,’ consisting, besides employes, of a large number of horses, wagons, tents, harnesses, and a large quantity of other property, effects, and paraphernalia, and was also the owner of twenty-four cars; that on the said 7th day of July, 1892, at the city of Prairie du Chien, in Wisconsin, the defendant then and there received, as common, carrier, the aforesaid twenty-four cars of the plaintiff, containing title aforesaid property and effects of the plaintiff, constituting said Cook & Whitby's Circus, and the people connected therewith, to be safely transported to the town of Maquoketa., state of Iowa, and to be safely delivered there to the plaintiff on the 8th day of' July, before 9 o’clock of the forenoon of that day. The plaintiff avers that it was the duty of the defendant to provide safe, strong, and efficient locomotive power for the transportation of said cars, with the.property and effects of the Cook & Whitby Circus, and it was also the duty of the defendant to construct and maintain its tracks and roadbed, at and near the station known as ‘Sny Magill,' in the state of Iowa, in a safe and suitable condition; that the defendant negligently failed to provide strong and efficient locomotive power, and negligently failed to construct and maintain its tracks and roadbed in a safe anil suitable condition at said point near Sny Magill, and that In consequence four of said cars were damaged, twenty-four horses were killed, other horses injured, and a large amount of harness was damaged; also that by reason of the accident plaintiff was prevented from giving performances of the circus, which he had advertised, in the vicinity of the town of Maquoketa, and the city of Davenport, in the state of Towa, and thereby lost the profits he would have made had he been able to give said performances. The second count of the declaration avers that on the (ith day of July, 1892, the defendant was possessed of and operating and controlling a certain railroad and railroa,d tracks in the state of Wisconsin, and operating and controlling certain steam locomotive power and engines upon and along the said railroad and railroad tracks; that upon said day tlxe defendant, at the city of Richland Center, in the state of Wisconsin, received as a common carrier the aforesaid twenty-four cars of the plaintiff, containing all the aforesaid property and effects of plaintiff, constituting said Cook & Whitby’s Circus, to be transported, by means of fit and adequate locomotive engine power to be furnished by the defendant, over the railroad and tracks aforesaid, from said city of Richland Center, in the state of Wisconsin, to the said city of Prairie du Chien, in the state of Wisconsin, and to deliver the same at Prairie du Chien on the 7th day of July, 1892, at or before the hour of 9 o'clock in the forenoon of that day; that it was the duty of the defendant to have provided safe» and proper appliances at a certain switch located at and near a point south of said Rich-land Center, and to keep proper and sufficient lights and signals placed at and near said switch to indica,to whether said switch was open or closed; that the defendant negligently failed and omitted to perform its duly in this regard, and that by reason thereof the locomotive hauling plaintiff’s cars was derailed; that the defendant failed to proceed with due and proper diligence to get its locomotive engine back onto the main track, and that in consequence plaintiff’s cars were delayed so long that they did not reach the city of I’rairie du Chien in time to give performances, which had been advertised there. The defendant pleaded the general issue to the entire declaration, and afterwards a special plea to the jurisdiction of the court, which was subsequently stricken from the files by order of the court.</p> <p>“On the trial it appeared that the plaintiff’s cars and property were hauled by the defendant under a special contract made and executed June 1, 1892, by the railroad company and by the plaintiff, Wallace, through their duly-authorized agents. This special contract reads as follows:</p> <p>“ ‘This agreement, made and entered into this 1st day of June, A. D. 1892, by and between the Chicago, Milwaukee & St. Raul Railway Company, party of the first part, and Cook & Whitby Circus, party of the second part, wit-nessetii: The party of the first part agrees to run a special train, consisting of ten flat ears, isix stock cars, six passenger cars, two advertising cars, in all twenty-four cars, to be furnished by the party of the second part, to run between as below, and as below:</p> <p>Leaving:</p> <p>Shakopee to Hastings, June 29th,.$180</p> <p>Hastings to I-tedwing, Jun. 30th,. 180</p> <p>Redwing to Faribault, Jul. 1st,....180</p> <p>Faribault to Deeorah, Jul. 2d,....'.223</p> <p>Decorah to Boscobel, Jul. 4th,... 200</p> <p>Boseobel to Richland Center, Jul. 5th,. 180</p> <p>Richland Center to Brairie du Chien, Jul. (itli,.¡. 20U</p> <p>Prairie du Chien to Maquoketa, Jul. 7th,.200</p> <p>Maquoketa to Davenport, Jul. 8th,..'. 180</p> <p>“ ‘Deliver to Chicago, Itoek Island & Facilic Railway at Davenport, where they leave our line, and carry on said special train, as before described, the circus property of said party of the second part, together with the people properly connected therewith, so far as the same shall be loaded on said train. The said train to be run so as to arrive at its several destinations at or about 6 o’clock in the morning, provided the same shall be loaded and ready to start in time to reach its several destinations at said hour. In consideration thereof the said party of the second part hereby agrees to pay to the said party of the first part the sums as specified above per day in advance (which said sum is a reduction from the usual and regular rates charged by said party of the first part for transportation services of the kind and nature above specified), the sum to be paid to the agent of the said party of the first part at the station from which the next succeeding run is to be made, it being mutually understood that no charge will be made for the use of train or trainmen on Mondays, when the runs for those days are made on the Sunday immediately preceding; and said party of the second part also agrees to load and unload said cars. In consideration of the agreement of said party of the first part to run said special train as above specified, and at and for the reduced rates above named, and also in consideration that, by the running of said special train as above specified, the said party of the first part increases the risks and dangers of operating its railway, and subjects its own property to a greater liability of being damaged, and in further' consideration of the premises, said party of the second part does hereby covenant and agree to release and discharge said party of the first part of and from any and all liabilities for claims and damages of every name and nature, by reason or on account of any accident or injury, from whatever cause, that may occur to, or may be suffered or sustained by, any one, or all, of the persons composing or attached to said circus company, or to the cars or other property of said party of the second part, while in or on said train or upon any of the premises belonging to or used by said party of the first part, or by reason or on account of any delays that may occur in the running of said special train, or by failure to reach the several points of destination at the specified time. And, in and for the consideration last above mentioned, said party of the second part does hereby further covenant and agree that he will protect, and forever hold free and harmless, the said party of the first part, from any and all damages or claims for damages that he or they may sustain or incur by reason of any accident or injury that may happen to or be received by any one or more of the several persons composing or attached to said circus company, or permitted by said party of the second part to ride upon said train, or upon any of the premises belonging to or used by said party of the first part J. H. Hiland, for the Chicago, Milwaukee & St. Paul Ry. Co. J. M. Hamilton, for Cook & Whitby.’</p> <p>“The plaintiff offered evidence tending to show that at a point near Sny Magill, on the defendant’s road, and while plaintiff’s special train was being transported from Prairie du Chien towards Maquoketa. certain of plaintiff’s cars were derailed and thrown down an embankment; that as a result twenty-four horses belonging to plaintiff were killed outright, and four others died afterwards from injuries received, and about forty other horses were permanently injured; also that serious injury was done to a large number of sets of harfiesses belonging to the plaintiff, as well as to the cars derailed, and that the plaintiff was prevented from giving, and lost probable profits of, performances of his circus at Maquoketa and Davenport, -which he had advertised at considerable expense. Plaintiff’s evidence tended to show that the derailment was caused by defective roadbed at the point of accident, and by reason of the fact that the locomotive used to haul jilaintiff’s train of cars was light and of insufficient power. Plaintiff's evidence also showed that, on the evening of the Till of July, plaintiff’s special train, after starting from Rich-land Center towards Prairie du Chien, was stopped by reason of the engine running off the track at a misplaced switch a short distance out of Richland Center; that this accident caused a delay of several hours, and thereby prevented the plain tiff from giving, and lost probable profits of, performances at Prairie du Chien, which he had advertised at considerable expense. His evidence tended to show that the accident was caused by negligence of the defendant, and that the delay was greatly aggravated by the failure of the defendant to take proper steps for replacing the locomotive upon the track. At the close of Ihe plaintiff’s case, defendant moved the court to instruct the jury to return a. verdict for the defendant, which motion was overruled by the court, and an exception to the ruling duly taken.</p> <p>“The testimony of the defendant tended to show that the accident at Sny Magill was not caused by the defective condition of the roadbed, or by reason of insufficient power in the locomotivo used in the hauling of plaintiff’s ears, hut was caused by the breaking of an axle under one of plain tiff’s cars; and that the accident to the switch at Richland Center, and the delay there, was not caused by any neglect or misconduct of the defendant or Its servants. At the close of the evidence, the defendant requested the court to give certain written charges to the jury, instructing them that the defendant was not a common carrier, or subject to the liabilities of a common carrier, in accepting and Iransporling plaintiff’s train of cars, and the property therein contained; that the defendant was therefore not restrained or controlled by rules applicable to contracts made by common carriers in the transaction of their ordinary business; and that the agreement releasing- and discharging Ihe defendant from any and all liability for claims and damages, of whatsoever nature, must control the rights of the parties, and should bo enforced in favor of the defendant. The court refused all. these requests, to which rulings exceptions were duly taken. The court, in substance, instructed the jury that the clause of the special contract exonerating defendant from all responsibility for loss or damage to plaintiff’s property from any cause whatever was contrary to public policy, and void, in so far as it covered loss or damage occasioned by the gross negligence of the defendant or its servants, but was valid in all other respects; that if the jury found from the evidence that the defendant was guilty of gross negligence in not furnishing sufficient motive power and in not keeping its roadbed in proper condition, and that the damage to plaintiff was caused thereby, they should find for the plaintiff, notwithstanding the clause in the special contract exonerating defendant from liability. The jury thereupon brought in a general verdict for the plaintiff for $8,000, and the court, after overruling defendant’s motion for a new trial, entered judgment on* the verdict, and from that judgment the plaintiff in error, the defendant below, proscenios this writ of error.”</p>

<p>1. Practice — Review oe General Finding — Rev. St. § 649.</p> <p>Where a case is submitted to the court without a jury, pursuant to Rev. St. § 649, and a general finding only is made, such finding cannot be reviewed by the appellate court, though an exception to it is taken, and the evidence represented by bill of exceptions.</p> <p>2. CORPORATIONS — LIABILITY OB’ ^TOCKnOTmERS-riLANSAS STATUTE — SUIT IN ANOTHER State.</p> <p>The constitution of Kansas provides that “dues from corporations shall be secured by individual liability of the stockholders.” Gen. St. Ivan. 186S, a 23, § 32, provides that, if an execution has been issued against the property of a corporation, and no property is found on which to levy it, then, after motion in the court rendering the judgment, and notice, an execution may be levied on the property of the stockholders, “or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.” The courts of Kansas hold that the statute creates a several liability in each stockholder, in the nature of a guaranty. Held, that an action may be maintained to enforce such liability in a court of the United States sitting in another state.</p>

<p>Appeal — Motion for, Rehearing — Facts not Considered — Mistake op Counsel.</p>

<p>In Error to the United'States Court in the Indian Territory.</p>

This action was brought, in the circuit court by the Little Rock Granite Company against Dallas county, in the state of Texas, to recover the balance of price of certain stone furnished by the granite company, and used by the county in the erection of a courthouse.

<p>Contracts — Consideration—Settlement of Dispute.</p> <p>The L. Co., a corporation organized for various specific purposes, comprehended in the general purpose of developing a populous business center in a new country, made a contract with the P. Co., by which, in consideration of the P. Co.’s procuring the construction of a railroad to the L; Co.’s town site, it agreed to donate a right' of way and land for terminal facilities, and to pay a cash bonus. In order to procure the making of this contract, certain stockholders of the L. Co. gave to it their notes for certain treasury stock, upon the agreement that, if the contract was carried out, such notes should be paid, and the stock, become the property of the makers; otherwise the notes to be returned to the makers, and the stock to the L. Go. These notes and certain others, made by subscribers to a donation to secure the railroad, were turned oyer to the P. Go. as collateral for the agreed bonus. The P. Go. fully performed its contract, but the L. Go. was unable to pay the bonus, and the amount collected on the notes fell short of the amount due to the P. Go. The P. Go. then offered to accept a note made by the L. Go., and to return to it the uncollected notes and the stock for which they were given, which was attached to them as collateral, and such offer was accepted by the L. Co., and the note given. Most, but not all, of the stockholders of the L. Co. knew and approved all these transactions. In a suit by the P. Go. on the note, it was claimed that the contract, and all transactions relating to it, were ultra vires and void. EM- that, whether such contract was in fact valid or void, there was, at the time the note was given, sufficient ground for litigation, if the L. Co. had chosen to treat it as void and refuse performance, to constitute a good consideration for the note, and that the P. Co. was entitled to recover on such note.</p>

<p>Action by John Ruh.m against the United States.</p>

<p>Action on Forfeited Recognizance — Defense.</p> <p>In an action on a forfeited recognizance, only a legal defense can be heard; and the fact that there was an appearance or discontinuance after forfeiture is not a legal defense, though it would constitute matter for application, under Rev. St. § 1020, to the court which adjudged the forfeiture, to have the penalty remitted.</p>

Action by William J. Lowrey against Mollie Kusworm on promissory notes. Plaintiff was examined de bene esse before issue joined, but refused to produce the notes on which the action was brought, on the ground that such examination was unauthorized. Defendant applied for an order to compel production of the notes.

<p>Application by David Blackbird, an Indian, for a writ of habeas corpus.</p>

<p>Appeal from the Circuit Court of the United States for tbe Northern District of Georgia.</p> <p>This was a bill in equity by the Chattanooga Medicine Company against M. A. Thedford and W. J. Satterfield to enjoin the use of a trade name. The circuit court denied a preliminary injunction (49 Fed. 949), and afterwards entered a decree for defendants. 58 Fed. 347. Complainant thereupon took this appeal.</p>

<p>Bill bv the Walter A. Wood Mowing & Heaping Machine Company against William Deering & Co. and others to restrain infringement.</p>

This was a bill by the Western Telephone Construction Company against Alfred Stromberg and Androy Carlson for infringement of certain patents. Complainant moved for a preliminary injunction.

This was a bill by W. I». Wall and others against Henry Leclc for infringement of letters patent No. 445,342, issued January 27, 1891, to W. 1!. Wall, M. S. Jones, and A. D. Bishop for a process for fumigating trees and plants. The circuit court sustained a demurrer to the bill on the ground that the patent .was void on its face for •want of patentable novelty and invention. 61 Fed. 291. Complainants appealed.

<p>1. Patestts — Limitation of Claims — Statement of Best Method.</p> <p>A statement in the specifications that in the best methods of applying their invention the patentees use a supplemental device there described, is not to be read, as a limitation, into a claim which contains no reference to it, especially when the significance of its omission is emphasized by its incorporation into'a subsequent claim.</p> <p>2. Same — Invention—Infringement—Pneumatic Tires.</p> <p>The Brown and Stillman patent, No. 488,494, for a pneumatic tire containing an inflatable tube, and made inextensible circumferentially by means of circumferential enforcements along two lines within the edges and above the bottom of the groove, whereby the tire is made to seat itself on inflation and the necessity for mechanical connection with the ' rim is obviated, construed as to the first claim, which is held to show patentable invention, and to be infringed by the Moomey patent, No. 513,017. .</p>

This was a bill by the Young Reversible Lock-Nut Company against the Young Lock-Nut Company for infringement of a patent. Complainant moves for a preliminary injunction.

<p>Comity — Vessel in Possession of Receiver — Enforcement of Lien for Supplies.</p> <p>Where a. receiver sends a vessel, belonging to his trust, out of the jurisdiction of the court appointing him, and into a port of another state in charge of a master, he places her in the position of all other vessels engaged in the same business; and, when supplies are there furnished upon her credit, there is no rule of comity to prevent an admiralty court of that jurisdiction from enforcing the lien against her by proceedings in rem. On the contrary, the enforcement of such lien is a matter of right, not dependent upon t’ne consent of the court by which the receiver was appointed. 62 Fed. 293, affirmed. Barton v. Barbour, 104 U. S. 126, distinguished.</p>

This was a libel for review, filed in the district court by Charles E. Jackson, surety on the release bond of the steamer Susie, against William Munks, to review a decree in favor of said Munks as libelant of the steamer. The district judge being disqualified, the . bill of review was certified to the circuit court, by which the decree in the original cause was modified and affirmed. 58 Fed. 596. The respondent appeals.

<p>This was a petition by the Oregon Railway & Navigation Company, as owner, and the Oregon Short Line & Utah Northern Railway Company, as lessee, for limitaiion of liability in respect to damages caused by explosion of the boiler of the steamboat Annie Faxon.</p>

TMs was a libel by William B. Schmidt and Francis M. Zeigler, partners under the name of Schmidt & Zeigler, against the steamship Joseph Oteri, Jr., (Mrs. Luela A. Oteri, claimant). The. district court rendered a decree for the libelants, and the claimant and Joseph Oteri, her husband, and surety on the release bond, took this appeal.

<p>. This was a salvage case, in which separate libels were filed by Thomas B. Sweeting and others, and O. J. Kendal and others, against the steamship Oxford and cargo; and an intervening petition was presented by the Davis Coast Wrecking Company.</p>

<p>Appeal from the District Court of the United States for the Southern District of Florida.</p> <p>This was a case of salvage, in which separate libels were filed by Thomas B. Sweeting and others, and by O. J. Kendal and others, against the steamship Oxford (Walter Janes, claimant) and her cargo, while an intervening petition was presented by the Davis Coast Wrecking Company, as owners of the wrecking steamer Bight Arm. There was a decree for libelants in the court below (66 Fed. 584), from which the claimant appealed.</p>

<p>1. Collision — Evidence—Nice Calculations — Positive Testimony.</p> <p>Nice calculations, based upon the assumed positions of vessels just before collision, when an error of a few feet .in regard thereto would destroy the most plausible reasoning, must give way to the positive testimony of witnesses as to what they saw.</p> <p>a. Same — Entrance to Canal — Tugs and Tows.</p> <p>A large propeller, which grounded upon a mud bank at the mouth of the Blackwell Canal; in attempting to enter it from the Buffalo river just as a tug with a large barge in tow was coming out, held in fault for immediately backing off, and thereby narrowing the channel, before the barge had got past, thus contributing to a collision between them-</p> <p>3. Same.</p> <p>The tug townig the barge also held in fault for turning suddenly westward after getting into the river without reducing speed, and thus throwing the stern of the barge in the opposite direction, and thereby contributing to the collision.</p>

Tlds was a libel by William E. Walsb against the schooner William W. Wood for a collision, whereby libelant’s tug was sunk.

These were two libels against the steamship Energia (George Groshaw, claimant) to recover losses arising from a collision with the schooner Wild Pigeon, in the Out Channel, in the lower bay of New York.

<p>Practice — Submission to Court -without Jury — Review on Appeal.</p> <p>Where a case is submitted to the court without a jury, by consent of parties, and the court makes a general finding, neither the correctness of that finding nor the refusal of the court to make special findings can be reviewed on a writ of error.</p>

<p>Removal of Causes — Discontinuance after Removal — Failure of Jurisdiction.</p> <p>B., a citizen of Indiana, commenced an action for personal injuries, in a court of that state, ag-ainst three defendants, two citizens of Indiana and one of Ohio, The Ohio defendant removed the cause to the federal court on the ground of local prejudice. B. then discontinued the action as to the Ohio defendant, and moved to remand. Held that, as the cause no longer involved a controversy properly within the jurisdiction of the federal court, it should he remanded.</p>

<p>This was a suit in equity by Michael Donnelly against the United States Cordage Company for infringement of a patent.</p>

<p>Review in Actions at Law — Appeal and Writ on Error — Circuit Courts of Appeals.</p> <p>A judgment in an action at law (as for damages for personal injuries) is not reviewable in the circuit courts of appeals upon an appeal. The proper method is by writ of error, with citation to adverse parties.-</p>

This is an appeal from an order of the circuit court of the United States for the Northern district of Florida. The facts in this case are substantially as follows: On the 19th of March, 1894, the Mercantile Trust Company, the appellee in this case, filed its bill in equity in the court below against the Jacksonville, Mayport & Pablo Railway & Navigation Company.

Suit by John F. Dillon, trustee, against the Oregon Short Line & Utah Northern Railway Company and others, to foreclose a mortgage. The American Loan & Trust Company applies for removal of the receivers appointed in such suit.

<p>1. Deeds — Record as Notice — What Entitled to Registration.</p> <p>A headright certificate for Texas lands was invalidly located in Nueces county, but was afterwards floated to a league of land in Taylor and Runnels counties. The owner of the certificate having died, one of his heirs made a conveyance describing the land in Nueces county, without referring to the certificate under which it was Ideated. This deed having been filed in the general land office of the state, a certified .copy thereof was obtained, to which was added a certificate of the commissioner of the land office showing that the land was located under the certificate above mentioned. This copy and certificate were then registered in Taylor and Runnels counties. Held, that under the Texas statute (Rev. St. art. 2253) there was no authority for recording snch certificate, and hence that the record thereof did not operate as constructive notice that the deed in fact covered the lands upon which the final location of the certificate was made.</p> <p>2. Same — Innocent Purchase ns — Quitclaim Deeds.</p> <p>A deed of Texas lands recited that the grantor had “granted, bargained, sold, and quitclaimed, and by these presents do sell, quitclaim, and transfer, and deliver, * * * all my right, title, and interest, * * * to hold, all and singular, said above-described lanfi, together with, all and singular, the rights and appurtenances thereto or in any wise belonging, unto s: ® * his heii’s and assigns, forever.” HM, that this deed was not a quitclaim, bnt a conveyance of the land, and was sufficient ‘to protect an innocent purchaser for value. Garrett v. Christopher, 12 S. W. 67, 74 Tex. 453, followed.</p>

United States for the Eastern District of Missouri. This was an action by the Laredo Improvement Company, to the use of E. R. Tarver, receiver, and E. R. Tarver, receiver of the Laredo Improvement Company, against William EL Stevenson, to recover the amount of unpaid subscriptions to the stock of the corporation. The circuit court directed a verdict and judgment for the defendant. Plaintiff brings error.

This was an action by the Dueber Watch-Case Manufacturing Company against the E. Howard Watch & Clock Company and numerous other individuals and corporations, to recover damages alleged to have been caused to plaintiff’s business by the alleged unlawful acts and combinations of defendants.

<p>Appeal from the United States Court in the Indian Territory. Suit by the Anheuser-Busch Brewing Association against R. I. Bond to' foreclose a mortgage. Decree for defendant. Plaintiff appeals.</p>

States for the District of Kentucky. This was a suit by Louis Krohn, a citizen of Ohio, against John A. Williamson and R. W. Kelson, citizehs of Kentucky, and the Central Railway & Bridge Company, a consolidated corporation of Ohio and Kentucky, to compel the assignment of certain stock in said bridge company. The circuit court rendered a decree against the individual defendants, and dismissed the bill as to the corporation. 62 Fed. 869.

<p>L Appeal — Rehearing.</p> <p>It is too late to present a question for the first time on a petition for rehearing.</p> <p>2. Creditors’ Bill — Lis Pendens — Lien.</p> <p>Plaintiffs, by a creditors’ bill, acquired a lien on whatever equity of redemption their debtor, IX, had in a railroad, sold to E. under foreclosure. Thereafter, in a suit to which plaintiffs were not parties, a decree was entered waiving all rights of D. to claim an equity of redemption, in consideration of the issue of certain bonds by E. to officers of D. Held, that the issue of the bonds to such officers did not make D. chargeable to plaintiffs for the value thereof, on the theory that the bonds were thus substituted for the equity of redemption.</p> <p>8. Liens — Rights op Junior Lienholder.</p> <p>One having a lien on an equity of redemption cannot complain of the disposition of the money paid therefor, as long as the liens prior to his exceeded the value of the equity of redemption.</p>

District of Washington. This was a suit by Josephine Hatch against E. 0. Ferguson, Henry Hewitt, Jr., and the Everett Land Company, to set aside a conveyance. The circuit court rendered a decree for the defendants. 57 Fed. 959. Complainant appeals.

The preliminary facts appear to be as follows: On March 3, 1885, the congress of the United States made the following appropriation: “To enable the secretary of war to acquire good and valid title for the United States to the Fort Brown reservation, Texas, and to pay and extinguish all claims for the use and occupancy of said reservation by the United States, the sum of one hundred and sixty thousand dollars; provided, that no part of this sura shall he paid until a complete…

This was a suit by Phoebe D. Kemp against Seth Nickerson, Jr., and others, executors of John Nickerson, deceased, to obtain distribution of a part of the estate of the decedent. Heard on demurrer to the bill.

<p>This was a suit by Phoenix Furniture Company against the Putin-Bay Hotel Company and others to enforce a mechanic’s lien.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>This was a hill by the G. A. Gray Company against the Taylor Bros. Iron-Works Company, Limited, and others, for injunction, and for rescission of a sale, etc. Afterwards, an amended and supplemental bill was filed, making Michael Prank a party defendant, alleging that he had purchased from defendant the property which complainant was seeking to recover. A decree was entered dismissing the bill and supplemental bill, as against Michael Prank. Complainant appeals.</p> <p>By article 8227, Civ. Code, “he who has sold to another any movable property which is not paid for, has a preference on the price of his property over the creditors of the purchaser whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser; so that, if the vendor may have taken a note or other acknowledgment from the buyer, he still enjoys the privilege.” Rivas v. I-lunstock, 2 Rob. (La.) 193. If it is urged that the seizure and sale of the property have destroyed the vendor’s lien, it was held in Lyons v. McRae, 14 La. Ann. 438: “Where property has been seized and sold under execution, the money realized still belongs to the debtor, and must be surrendered to the syndic.” Nor can it be claimed that it was necessary to preserve the privilege by registry. Stevenson v. Brown, 32 La. Ann. 461; Allen v. Buisson, 35 La. Ann. 108; Bank v. Williams, 43 La. Ann. 419, 9 South. 117. The contract made in Ohio should have been made and completed in that state, to be an Ohio contract, — for in Mcllvaine v. Lagare, 36 La. Ann. 360, where the contract of sale was made in Ohio, but the acceptance was not to take place until after inspection in Louisiana, it was held that this was a Louisiana contract; and in Overend v. Robinson, 10 La. Ann. 728, “where the sale between the parties was made in New York, executory merely, with the intention that it should be consummated in New Orleans, and it was consummated there, the contract must be considered as completed in New Orleans, and the vendor’s privilege may be exercised according to the laws of Louisiana.” In the case at bar the planer was to be delivered and set up in New Orleans. That setting up was a thing to be done in this state satisfactorily before payment. It was to be erected and tested. According to the above decisions, that executory contract would have made this a Louisiana contract. But that contract was annulled by the refusal of defe.nf.ants to comply with its forms after its arrival, and defendants then made to Mr. Kdman, the agent in this state, a new proposition, on new terms. The Gray < ’ompany released them from it, consented to the revocation, and might have sold to any third person. By Civ. Code, arts. 1805, 1800, the modification or change in a proposition is in all respects a new offer, and “he who makes the offer may withdraw it.” See Benj. Sales, p. 287. Defendant Mr. Frank, who alone defends this suit, claims that this was only a modification of the Ohio contract, and that it is the same contract. We have seen that contract was executory here, but if if was not, and was comjfiete there, under article 1805, Oiv. Code, 1hat contract ceased to exist by mutual agreement. By this article, “the acceptance to form a. contract must be in all filings conformable to fhe offer.” It cannot be denied that that aeepfanee liad boon withdrawn after iis arrival, and both parties set free. It cannot be denied that a new and materially aliered offer to buy was made after the arrival of the thing here. There can be no question of novation of the contract, but it was annulled, and that long before the failure of defendants, and before any litigation was contemplated.</p> <p>Another question was raised in argument in the lower court. Admitting that filis machine was here in New Orleans, and the property of the Gray Company, of Ohio, hut represented by an agent here, will a sale made by that agent to one domiciled here, upon an offer transmitted through the agent to the foreign principal, and accepted through same agency, be a Louisiana contract? The supreme court of this state holds that it is, in Chaff'e v. Ileyuer, 31 La. Aun. 599: “As to rights and remedies of creditors, personal property has a situs or locality, and is to be governed by the laws of the country where it is located.” When there arises a conflict between the law of the domicile of the owner and the creditor, the court holds this: “While recognizing the principle that all contracts in regard to personal property must be regulated by the lex loci of the domicile of the owner.” But ihe situs of the tiling sold cannot determine the question presented as much as the question, under wliat laws did the agreement take place? In the same case above quoted the court said, “This was not an executed contract, but an executory contract, and it was to have its execution in Louisiana.” In Beirne v. Patton, 17'La. 5Í10, this court correctly announces that “it is a well-settled rule that, where a contract is either expressly or tacitly to be performed in another jilace than that where it is made, its validity is to be governed by the law of the place of performance.” Story, Oonfl. Laws, p. 235; 2 Kent, Comm, pp. 393. 459. So that this contract at bar, whether viewed as having its inception in Ohio and completion here, or as wholly begun and executed here, after its arrival, should be governed by the laws of this state, as to the rights and remedies.</p> <p>It wa.s further argued by defendant that this planer had become part of the realty by being placed in the foundry upon a brick foundation. The plan annexed shows Ihe location, and the testimony shows that it is movable without injury to Hie walls of the building. In La,pene v. McGan, 28 La. Ann. 749, it was held that steam boilers which could be moved without damage to the sugar house did not form a part of the realty, and the vendor’s privilege was maintained. Not being attached to the building, it was a movable. Maekie v. Smith, 5 La. Ann. 717. in Daugherty v. Vance, 30 La. Ann. 1247, mules attached to a plantation, and considered an immovable by destination, were seized and sequestered, and vendor’s privilege recognized as against the entire immovable property.</p> <p>Finally, we respectfully submit that it has been shown that the contract sued upon "was a Louisiana contract; that, if considered as having had its origin in Ohio, it was executory in this slate, and that contract ivas set aside', and a new one made here, after the machine arrived here; thaf this machine did not become a part of the foundry building, — an immovable; that complainants are entitled to the vendor’s lien and privilege upon the property sold, or the proceeds thereof in the hands of defendant Mr. Frank, as prayed for.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Florida.</p> <p>This was a hill by W. II. Bosley, Douglas G-ordon, and D. W. Thorne, citizens of Baltimore, Md., against the Pensacola Terminal Company, a corporation of the state of Florida, to foreclose a mortgage to secure an issue of bonds. The cause was heard in the circuit court upon a petition filed by the provisional municipality of Pensacola against W. PI. Norllirup, as receiver of the terminal company, praying that certain amounts should be decreed to the petitioner prior to any allowance upon the bonds. The court, by interlocutory order, denied the relief asked, with costs against the petitioner. From this order the petitioner appealed.</p> <p>The facts, as stated in the appellant’s brief, and assented to and adopted by the appellee, were as follows:</p> <p>On May 1, 1892, the Pensacola Terminal Company was operating a line of street railway in tlie city of Pensacola, Raving been incorporated under tlie general incorporation laws of Florida, and using the streets of the city under the provisions of an ordinance of December 6, 1882, requiring that the portion of the street between the rails of the street railroad, and one foot on each side thereof, should be kept in good condition. On February 3, A. D. 1892, the provisional municipality of Pensacola enacted an ordinance to pave Palafox street, along which the road of the terminal company was laid, and1 over which it was operating its horse street cars. One of the provisions of this or-dinanee is (section 3) to “require the Pensacola Terminal Company to pave the street between its rails and one foot on each side thereof,” in the manner which the municipality should contract for the paving of the entire width of the street. After that day (May 1, 1892) the terminal company issued bonds to complainants in the bill of complaint, secured by a mortgage on all of its property, franchises, privileges, and immunities then existing or thereafter to be acquired, and' upon its rents, profits, and receipts. On March 6, 1893, after the execution of said mortgage, the terminal company and the municipality entered into an agreement by which the former accepted “the benefits, liabilities and terms of the contract for street paving” which the latter had made, and agreed “to pay to the said provisional municipality the amount of the cost of the paving required to be done by it” by the terms of the ordinance, and agreed “that the lien fixed by said ordinance” should “exist upon its property” for the amount apportioned for the paving between the rails and one foot on each side thereof. On May 26, A. D. 1893, the mortgage bondholders filed their bill to foreclose, and for a receiver. On the same day the court made an order appointing W. H. Northrup receiver. On June 15, A. D. 1894, the provisional municipality filed its petition in the court, reciting the afore-men-tioned ordinances and agreements; that three installments of the amount for which the terminal company was liable were due and unpaid, and were a lien, under the laws of Florida, of prior dignity and paramount to all others on the right of way, rolling stock, and all other property of the terminal company in the hands of the receiver. The prayer of the petition is for the court to declare such lien, and to decree the payment by the receiver of said amounts, and general relief. The answer of the receiver denies that, under the original charter, it became the duty of the terminal company to bear the expense of paving said portion of the street, and denies that it has ever been the duty of the company, under its charter or the charter of the city of Pen-sa,cola, or any ordinance of the city, to pave any portion of the street. It admits that “it may be true” the provisional municipality of Pensacola and the terminal company entered into the said contract, but alleges that the contract was made after the execution and issuance of the first mortgage bonds held in trust by the Baltimore Trust Company, and was never consented to by it or the bondholders, and was not binding upon them, and was not a lien upon said property, in the absence of any law making it such, prior to the lien of the mortgage securing the bonds, and that there is no law of Florida, or valid ordinance of the city of Pensacola, making such paving a lien upon said property. The evidence submitted was the ordinance of December 6, A. D. 1882, the ordinance of February 3, 1892, and the contract of March 6, A. D. 1893. While it appears that the Pensacola Terminal Company has been incorporated, there is no claim that there is anything in its charter affecting the right of the city to regulate its use of the public streets under the provisions of the Bevised Statutes of Florida.</p> <p>The decree of the circuit court was in these terms:</p> <p>It is ordered, adjudged, and decreed that the prayer of the said intervention be and is hereby denied, and that the said provisional municipality of Pensacola is not entitled to a lien upon the said property of the said Pensacola. Terminal Company for the sums expended for paving the said portion of said street between and on each side of its track, and that the said provisional municipality, do pay the costs of this proceeding, and that execution issue therefor.</p>

<p>In Error to the Circuit Court oí the United Slates for the District of Kansas.</p> <p>Action by the State National Bank of Si,. Joseph, Mo., against the Newton National Bank, on notes. Judgment for defendant. Plaintiff brings error.</p>

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

<p>Appeal from the Circuit Court of (he United States for the Eastern District of Wisconsin.</p> <p>This was a petition by Elihu Colman against the United States to recover compensation for special services rendered under the direction of the department of justice during his term of office, and while serving as United States district attorney for the Eastern district of Wisconsin. The circuit court dismissed the petition without prejudice to a claim for an allowance of taxable fees, and the petitioner appealed.</p> <p>The claims in controversy are predicated upon four different matters of special employment, are not made in conformity with the fee bill or supported by any express appropriation, and are as follows:</p> <p>(1) For an action in equity (United States v. Winnebago Paper Go. and thirty-six other defendants) in which the bill was filed in 3886, in the name of the United Stales, by a special attorney appointed by the department of justice, to restrain the drawing of water below certain points at the dams at Neenah and Menasha, for the preservation of navigation on the Fox river improvements, wherein the petitioner alleges that lie rendered services for the complainant, by direction of the attorney general, of the value of .$375, and incurred a personal expense of $7.30. The bill is certified by .Judge .Jenkins, of tins court, as reasonable in amount, without passing upon the validity of the claim. The attorney general approved, after deducting $75 from' the account of services. • • - • - . .</p> <p>(2) For services rendered by the direction of the department of justice, through request of the war department, for an alleged trespass in cutting through the embankment of a lock at Appleton, which was the alleged property of the United States, in charge of the war department, and wherein an ejectment suit was instituted in this court in behalf of the United States against the Manufacturers’ Investment Company. The claim is for $150 for four days’ work, and assisting the special assistant United States attorney in an argument of demurrer to answer, and personal expenses, $3; certified by Judge Jenkins as reasonable in amount, without passing upon its validity. The attorney general deducted $25, and approved the balance.</p> <p>(3) For services pursuant to the direction of the department of justice, under date of September 4, 1891, assisting the special attorney of that department in the preparation and trial of Paine Lumber Co. v. U. S., 55 Fed. 854, being an appeal from an award by commissioners in a state court for damage by flowage occasioned by dams maintained by the United States (under an act of congress for that object), and removed into this court. This is alleged to have been adopted .as a test case, and occupied 23 days in preparation (well shown) and 18 days in trial and argument, and accomplished a large reduction in the award, and favorable settlement of other claims upon its basis. The bill for services, predicated on the customary professional charges, is placed at $3,000, and hotel expenses are added, $43.50; making the total, $3,043.50. It bears a certificate by Judge Jenkins that “$2,500 would be a reasonable charge for services rendered and the result obtained.” The department of justice deducted $1,000, and approved the balance. Competent witnesses testify that the reasonable value of the services would be $5,000; in view of the result accomplished, and under assumptions of fact all of which are undisputed.</p> <p>(4) Services rendered, in conjunction with the special attorney, in settlement of a large number of similar cases (enumerated, and indicating large saving from previous awards), for which the charge is $500. There is no approval by the court, and the department of justice deducted $250, and approved the balance.</p> <p>These claims were all disallowed by the first comptroller, for the reasons stated, and with remarks as follows: “That such charges do not come within any provision of law. In each of the several cases enumerated in account the United States is a party of record, and the fees therein are taxable only in accordance with sections 823 and 824, Rev. St. Even if the United States was merely an interested party in these cases, and not a party of record, under section 299, Rev. St., fees for services therein should be assimilated to those provided by law for similar services in cases in which the United States is a party.” <</p> <p>In the circuit court the following opinion was rendered by SEAMAN, District Judge:</p> <p>“If these several claims could be adjudged upon the showing of meritorious and beneficial services rendered by the petitioner by direction of the department of justice, there could be no reasonable question of their allowance to the amount claimed in the petition. But the services were all rendered in matters in which the United States was a party, and immediately interested, during the petitioner’s term of office as district attorney; and it is clear that there can be no recovery for such services beyond the allowances provided by statute. Section 1764, Rev. St. U. S., provides that ‘no allowance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform unless expressly authorized by law.’ Section 1765 prohibits any officer whose salary, pay, or emoluments are fixed by law or regulations from receiving ‘any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.’ Section 770 fixes the salary of the district attorney. Sections 823 to 827 prescribe the fees which may be allowed, and there is no contention that warrant can be found in either of these sections for the claims here presented. The only statutory authority which is suggested is chapter 166 (18 Stat. 506).- i That is the provision for possession and improvement of the Fox and Wisconsin rivers, and for pay-mciit of overflow damages, and authorizes the department of justice to ‘represent the interests of the United States in legal proceedings under this act.’ It is understood that the appointment of the special attorney (who was here assisted by the district attorney) was made and his compensation allowed under this statute, but there is no suggestion in it of special compensation for the district attorney, and it furnishes no aid for the claim.</p> <p>“It is further suggested by the petitioner that his services in the flowage cases are not covered by the fee bill, because section 824 only provides for fees in a ‘civil cause’ or ‘case at law,’ and these proceedings, which are made by the act conformable to the state statute for condemnations, and governed by the rule of the state of Wisconsin, are expressly declared to be ‘special proceedings,’ and are not actions at law. Cornish v. Railroad Co., 60 Wis. 476, 19 N. W. 443. Decision of this point is not necessary, for the reason that an adoption of this view, holding section 824 inapplicable, would not furnish ground for the claim, as no provision would remain for any compensation beyond that contained in section 770, which prescribed the salary of the district attorney. I lowover inadequate this may be for such services, it is well settled that public officers take their offices cum onere. As stated by Dixon, 0. ,1., in Crocker v. Supervisors, 35 Wis. 284: ‘Any services required of them by law, tor which they are not specifically paid, must be considered compensated by the fees allowed for other services.’ If it was the duty of the petitioner, as district attorney, to perform the services, either upon direction of the attorney general, or because the matters wore ‘civil aci.ions in which the United States are concerned’ (section 771, Rev. St), the general rule must apply, and limit the compensation to that which is prescribed by (he statute. If the services wore not such as are per se imposed upon ihe'oflice of district attorney, they were in fact so rendered, and sections 1764 and 1765 preclude any compensation ‘unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.’ There is no pretense of any statutory allowance for the claims here made, and they are clearly barred by the interpretation placed upon the several sections above cited in Gibson v! Peters. 150 17 S. 842, II Sup. Ct 131. It is there held: ‘Congress evidently intended to require the performance by a district attorney of all the duties imposed upon him by law, without any other remuneration than that coming from his salary, from the compensation or fees authorized to be taxed and allowed, and from such other compensation as expressly allowed by law specifically on account of services named.’ And the purpose is further stated that 1he United States was not to be subjected to any rule for reasonable compensation which applied to private suitors, or ‘any system for compensating district attorneys except that expressly established by congress, and therefore to withhold from them any compensation for extra or special services, rendered in their official capacity, which is not expressly authorized by statute.’ I am well convinced of the entire merit of these claims, aside from the want of statutory authority for their allowance, but am constrained to hold that this objection is fatal. The petition does not contain specifications which would enable an allowance of taxable fees, if that were desired. It must, therefore, be dismissed, but without prejudice to a claim for such allowance. Findings are filed herewith in accordance with this opinion.”</p>

This was a suit, originally brought by P. J. Willis & Bro., Incorporated, against James P. Cole, Lewis Cole, and T. W. Huddleston, to enforce the lien of a trust deed upon certain lands situated in Bosque county, Tex. Afterwards, by stipulation of the parties, Thomas R. Lawson, trustee in said deed of trust, was made a party plaintiff, and Mary Oole, wife of Lewis Cole, was made a party defendant.

<p>1. Deceit — Subscription fob Incubase of Bank Stock.</p> <p>One induced to subscribe for certificates alleged to rei>resent an increase of the capital stock of a national bank, at a time when no increase had been authorized, upon false representations of the cashier as to the bank’s condition and ability to pay dividends, it being in fact insolvent at the time, is entitled to a judgment against the bank and its receiver for the purchase money paid.</p> <p>2. Laches — What Constitutes.</p> <p>In an action against a national bank and its receiver to recover money paid under false representation^, as a subscription for an increase of capital stock, a jury being waived, the court found facts clearly entitling plaintiff to recover. It then further found that the certificates of stock were issued on July 22, 1890; that the hank had no authority to issue such certificates; that the increase of stock was not authorized until the 21th day of September, 1890; that plaintiff was guilty of laches in not returning said certificates and demanding his money until after the bank liad passed into the hands of a receiver, and in not bringing his action to recover said money sooner. The court thereupon rendered judgment for defendants. Held, that there was nothing in the finding sufficient to support the conclusion as to laches, and that the judgment must be reversed.</p>

This was an action by Helen M. Cougar against Elijah A. Morse. Defendant obtained a verdict, and plaintiff now moves for a new trial.

<p>1. Carriers — Dtity to Stop at Station — Statements of Ticket Agent.</p> <p>Statements oí a ticket agent that a certain train stopped at a certain station will hind the railroad company only when made contemporaneously with the sale of a ticket, and not when made several weeks before, and not referred to at the time the ticket was sold.</p> <p>2. Same — Implied Obligations.</p> <p>Sale by a carrier of a ticket to a station on a connecting line creates no implied obligation that the train for which it is sold shall stop at that station, or that it will be reached without change of cars, or waiting at stations for other trains.</p>

This was an indictment against G-regorio Ortega for violation of the customs laws. Defendant, having been convicted, moves in ar-Test of judgment, and for a new trial.

This was an application by the Boussod Valadon Company, the importer of a certain painting- for exhibition, for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of New York assessing duty on said painting.

At Law. Appeal by United States from decision of board of general appraisers reversing the action of the collector in assessing duty on certain Malaga grapes.

Appeal by the United States from a decision of the board of general appraisers reversing the action of the collector in assessing duty upon certain knives under paragraph 167 of the tariff act of 1890.

<p>Customs Duties — Classification — Wearing Apparel Made on Loom with Jacquard Attachment.</p> <p>A fabric made on a loom with a Jacquard attachment, and which is not known in the trade as “embroidery,” or an “article of wearing apparel embroidered by hand or machine,” cannot be classified under Act Oct. 1, 1890, par. 373, referring to embroidered, articles.</p>

<p>Customs Duties — Ohm:it von Return of Goods to Public Stores — Computation of Time.</p> <p>In computing the 10 days within which the order of the collector for return of goods to the public stores, under Rev. St. § 2899, must bo served upon the importer, if the tenth day falls on Sunday, that day cannot he excluded, and service of such notice on the Monday following is not sufficient. Shefer v. Magone, 47 Fed. 872, followed.'</p>

This was an application by Emil Linder, importer of certain machines, for a review of tbe decision of the board of general appraisers sustaining tbe decision of the collector of the port of Hew York as to the rate of duty on such machines.

<p>This was an application by Merck & Co., importers of chloral hydrate, for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of Hew York as to the rate of duty on said merchandise.</p>

This was an application by Spielman & Co., importers of certain ladies’ veils, for a review of the decision of the board of general appraisers as to the rate of duty on such merchandise.

<p>Customs Duties — Classification —Pineapples — Canned.</p> <p>Pineapples, peeled, sliced, and placed in cans filled with cold water, and hermetically sealed, their juico permeating the water, are “fruits preserved in their own juices,” within Act Oct. 1, 1890, par. 304, and cannot be classified, under paragraph 580, as “fruits, green, ripe, or dried.”</p>

This was an application by Steiner, Kohn & Co., importers of certain glass beads threaded upon strings, for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of New York as to the rate of duty on such merchandise.

<p>This was an application by F. Bing & Co., importers of certain merchandise, for a review of the decision of the board of general appraisers at New York as to the rate of duty on such merchandise.</p>

This was an application by the Dennison Manufacturing Company, importer of certain merchandise invoiced as “crepe”" or “crepe tissue,” for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of New York as to the rate of duty on such merchandise.

The importation in question was a gem of great value and antiquity known as the “Hope Opal.” The importer insisted that it was éntitíed to enter duty free under paragraph 524 of the free list of the tariff of 1890. The collector’s action in assessing duty was sustained by the board of general appraisers. The importer appealed.

This was an application by the United States for a review of the decision of the board of general appraisers reversing the decision of the collector of the port of New York as to the rate of duty on certain merchandise imported by O. B. Richards & Oo. The importations in question were opal glass bottles, packed in wooden cases with cardboard partitions.

This was an application by Park & Tilford, copartners, and importers of certain merchandise known as “Calvert’s Medical Soap,” for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of New York as to the rate of duty on such merchandise.

<p>1. Customs Dumbs — Classification—“Mexican Onyx.”</p> <p>So-called “Mexican onyx,” a mineral consisting chiefly of carbonate of lime and certain impurities, principally ferrous oxides, imparting to the material its beautiful and variegated colors, crystalline in structure, and belonging scientifically to the group of calcites, recognized by the leading dictionaries and encyclopedias as belonging to the general class of "marble,” used for the same general purposes in ornamental and interior decoration as marble, and being worked and finished by the same processes, is properly dutiable as “marble in block,” at 65 cents per cubic foot, under Schedule B, par. 123, of the tariff act of October 1, 1890, and is not free of duty, as a “crude mineral,” under paragraph 651 of the free list of that tariff act, as claimed in the protest of the importer.</p> <p>2. Same — Review of Findings op General Appraisers.</p> <p>Where, upon a conflict of evidence before the board of United States general appraisers, arising chiefly upon the commercial meaning of the term “marble,” there is sufficient proof to sustain their findings, such findings will not be disturbed.</p> <p>3. Same — Return op Proceedings by General Appraisers.</p> <p>The fact that the return to the circuit court was not signed by the members of the board of general appraisers who took the evidence does not overcome the presumption that the appraisers who heard the case decided it. Special reference upon the merits was made to Batterson v. Magone, 48 Fed. 289.</p>

This was an application by the China & Japan Trading Company, the importer of certain bamboo blinds and scrolls and giant paper umbrellas, for a review- of the decision of the board of general appraisers sustaining tlie decision of the collector of the port of New York as to the rate of duty on such merchandise.

This was an application by J. Movius & Soil, importers of certain merchandise known as “Lanoline,” for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of New York as to the rate of duty on such merchandise.

<p>Customs Duties — Act of October 1, 1890 — Painted Fans.</p> <p>Fans, composed of silk and bone, upon which are executed artistic paintings in water colors, of high value and merit, and which are displayed as ornaments and not used as fans ordinarily are, held not to be dutiable as manufactures of silk at 50 per cent, ad valorem under parar graph 414, but at 15 per cent, under paragraph 465 of the act of October 1, 1890 as “paintings in oil or water colors.”</p>

This was an application by Tiffany, the importer of certain French traveling clocks and bronze statues, for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of New York as to the rate of duty on such merchandise.

<p>These were two applications by Godwin & Sons, importers of certain antiquities, for a review of tin* decision of the board of general appraisers sustaining- the decision of the collector of the port of New York as to the rate of duty on such importations</p>

This was an application by H. Oppenheimer, importer of certain merchandise known as “fascinators,” for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of New York as to the rate of duty on such merchandise. The collector assessed duty upon the goods under paragraph 351, as “manufactures of cotton chenille”; the importer insisting that .theyjvere dutiable under paragraph 349, as “cotton wearing apparel.” : ! '

<p>Customs Duties — Classification—Artificial Leaves.</p> <p>Artificial leaves, made to resemble leaves of oak, ivy, currant, etc., and manufactured of colored cotton cloth, metal, and wax, cotton being the component material of chief value, cannot be classified as “artificial flowers or parts thereof,” under Act Oct. 1, 1890, par. 443, and Act March 3, 1883, par. 429, Schedule N, but must be assessed under Act 1890, pars. 425, 355, and Act 1883, par. 388, Schedule M, and par. 324, Schedule I, as manufactures of cotton and paper.</p>

<p>This was an application by W. 11. Riley & Co., importers of certain dress shields, for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of New York as to the rate of duty on such merchandise.</p>

<p>This was an application by Burr & Hardwick for a review of the decision of tbe board of general appraisers in respect to the rate of duty to be imposed upon certain goods.</p>

<p>Customs Duties — Goods in Bond — Act June 10, 1890.</p> <p>Rev. St § 2970, imposing an additional duty of 10 per cent on goods withdrawn from bond more than a year after deposit, is repealed by the customs administrative act of June 10, 1890; and the duties on goods withdrawn after said act went into effect, though deposited before, are those only which are imposed by section 20 of said act.</p>

<p>Customs Duties — Classification—Hydrochlorate op Cocaine.</p> <p>Hydroehlorate or muriate of cocaine is dutiable as an “alkaloid salt,” under paragraph 76 ol‘ the act of October 1,1890 (26 Stat. 570), rather than as- a “medicinal preparation in the preparation of which alcohol is used,” under paragraph 74; the former being the more specific description.</p>

Appeal by Lehn & Fink, importers, from a decision of the board of general appraisers affirming the action of the collector in assessing duty upon certain muriate or hydrochlorate of cocaine under paragraph 76 of the tariff act of 1890. The importers insisted that it should have been assessed under paragraph 74 of the same act.

<p>Customs Duties — Classification—“ Antipyrine.</p> <p>“Antipyrine,” a patented medicine, ready for administration in the condition as imported, made of the aniline from coal tar, alcohol being chemically used and broken up in the manufacture, was classified for customs duties by the collector of the port of New York as a “medicinal proprietary preparation,” at 35 per cent, ad valorem, under paragraph 75 of the tariff act of October 1, 1890, and as a “chemical salt,” at the saane rate, under paragraph 76 of the same act. The importers protested under two heads: First, that the article was dutiable as a “medicinal preparation in ilie preparation of which alcohol is used,” at 50 cents per pound, under paragraph 71; or, secondly, as a “coal tar preparation not a color or dye,” at 20 per cent, ad valorem, under paragraph 19 of that tariff act. The board of United States general appraisers sustained the importers' alternative protest that the merchandise was properly dutiable as a “coal tar preparation,” under paragraph 19. The importers appealed to this court, claiming that the antipyrine was only dutiable, under paragraph 74 of the tariff act, at 50 cents per pound. The United States took no appeal. Held, that the antipyrine, as between paragraph 74, for “medicinal preparations in the preparation of which alcohol is used,” and paragraph 19. for “preparations of coal tar,'’ was more specifically designated as a “coal tar preparation,” as decided by the board of general appraisers.</p> <p>See Matheson v. U. S., 65 Fed. 422, on the proper classification of “sulpho-toluic acid.”</p>

<p>Trade-Marks — Deception a Bar to Rediee.</p> <p>Plaintiff, the manufacturer of a laxative compound called “Syrup of Figs,” sought to restrain-the use by defendants, on a laxative medicine manufactured by them, of the name “Fig Syrup,” as an infringement of plaintiff’s trade-mark. It axipcared that syrup made from figs has no considerable laxative properties; that plaintiff’s compound contained a very small amount of the juice of the fig, and its laxative ingredient was senna; but that plaintiff placed conspicuously on the bottles containing its compound labels describing the same as a “Liquid Fruit Remedy,” and otherwise conveying the imxiression that it was made from figs and derived its laxative properties from them. Held, that the use of such labels was an imposition upon the public, which deiirived the plaintiff of the right to seek the aid of equity.</p>

<p>in Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an action by Paul Kirchhofer, Ferdinand Kirchhofer, Bernard Huber, and Max Hoffman, copartners as Ulrich de Gasp Yon Wilier, against Meyer Guggenheim, Isaac Guggenheim, Daniel Guggenheim, Morris Guggenheim, and Solomon Guggenheim, co-partners as M. Guggenheim’s Sons. There was a judgment in the circuit court for the plaintiffs. Defendants bring error.</p>

<p>1. Patents — Validity—Claims non Resdits — .Euectkio Chiouit Bbisakeks.</p> <p>Claims for an automatic electric circuit breaker, so operated by time mechanism as to permanently break the circuit at a predetermined time, and for an electro-magnet arranged to release a clockwork motor whenever the circuit remains closed for longer than a normal period, appear to be claims for results, or for all means for producing them, rather than for invented means for producing them.</p> <p>2. Same — Infringement.</p> <p>The Roussfeau patent, No. 279,107, for an automatic opener of electric circuits, construed as to claims 1 and 2, and iheld not infringed, and apparently invalid.</p>

<p>1. Patents--Anticipation oh1 Combination.</p> <p>Whore prior machines show similar parts in other arrangements for other purposes, but nothing shows them working together in any arrangement like that of the patent, for the purpose of the patent or any other purpose, there is no anticipation.</p> <p>2. Same — Infrinobment of Combination Claims.</p> <p>A claim for a combination, which specifies among its elements a piston and its piston rod operating upon certain spring mechanism, held infringed by a machine having all the parts of the claim except that its piston has no piston rod proper, but is itself extended so as to reach the parts which the rod would reach.</p> <p>8. Same — Limitation- of Claims — Inertngemrnt.</p> <p>Of the first four claims of a patent, all covering combinations, the first and fourth described a shaft and a cranlt and pitman connecting the shaft with a piston; the second described the shaft as connected with the piston, to operate the same; and the third, as being connected with the piston to operate the same and be operated thereby, — but neither specified the means of connection. Held, that the connection provided for in the latter two claims was not an actual attachment preventing separation, but such a relation of parts as would produce simultaneousness of motion between the shaft and the piston, and hence that such claims were infringed by an apparatus having a cam connection which produced such simultane-ousness of motion; but held, further, that the first and fourth claims made the crank and pitman so material (the combination being of special improvements) that they were not infringed by such cam connection.</p> <p>4. Same — Marking Article “Patented” — Damages.</p> <p>Plaintiff, manufacturing an apparatus covered by two patents, marked the same as patented by one of them, but not by the other. lie Id that, although both were infringed, he was entitled to an accounting under the former only.</p> <p>5. Same — Validity and Infringement — SmuNG Door Closers.</p> <p>' The Blount patents, Nos. 289,380 and 458,357, for improvements in spring door closers with checks to prevent slamming, construed, and the second claim of the former held valid and infringed, and the first four claims of the latter held valid, the fifth held invalid, and claims 2 and 3 held infringed, and claims 1 and 4 not infringed.</p>

This suit was brought by the De La Vergne Bottle & Seal Company, a corporation of New Jersey, against the Valentine Blatz Brewing Company and Valentine Blatz, individually and as president of the latter company, both of Wisconsin, to enjoin infringement of letters patent No. 232,468, issued September'21, 1880, to John C. De La Vergne, and assigned by him to the complainant, and to obtain an accounting and damages.

District Court of the United States for the Southern District of New- York. This was a libel by William W. Brauer and Frederick C. Brauer, copartners as W. W. Brauer & Co., and the Reliance Marine Insurance Company, Limited, against the Campania Navigacion LaFlecha, to recover damages for the loss of certain cattle shipped on respondent’s steamship Hugo.

This was an action by Mattie Wilson, widow of William. R. Wilson, against the Supreme Lodge Knights of Pythias of the World, to recover upon a certificate of insurance upon the life of said William E. Wilson. The action was brought in a court of the state of Alabama, and vas removed by the defendant into the United States circuit court, where the plaintiff recovered a judgment. Defendant brings error.

<p>This Is an action by Ludwig Hupfeld against the Automaton Piano Company and Abram B. De Frece, as receiver of said company, to restrain the infringement of a pa tent</p>

This was a writ of scire facias sued but by the Pullman’s Palace-Car Company against Frank L. Washburn to enforce against him a liability for costs as indorser of the writ in an action brought against the Pullman’s Palace-Car Company by one Maggie M. Harrison, in which a judgment had been rendered against the plaintiff for 1813.94, costs.

<p>Practice on Appeal — Failure to Issue Writ of Error — Jurisdiction.</p> <p>Where, after the rendition of judgment in a cause, a writ of error is duly allowed to the defeated party, and a bond is afterwards given and a citation issued, but the citation is not served, and no writ of error is actually issued, the appellate court is without jurisdiction, and the case should be dismissed.</p>

This was a suit by th.e Security Savings & Loan Association against J. K Buchanan. A. A. Orabbs, Anna Orabbs, A. P. Petty. W. li. Hutsell, E. C. Swabey, 0. B. Jenkins, and W. H. Thomas for the foreclosure of a mortgage and other relief. The circuit court dismissed the bill. Complainant appeals.

States for tbe Eastern Division of the Southern District of Georgia.

Bill in equity by lloraee B. Wood against George T. Paine and others for the construction of a will, and for further relief.

<p>Appeal from the Circuit Court: of the United States for the Eastern District of Tennessee. '</p> <p>This was a bill by H. Clay Evans against the Chattanooga, Borne & Columbus Railroad Company and others, to subject certain railroad property to the payment of a judgment. The circuit court found in favor of the complainant’s claim, and, the property having been attached and then replevied by defendants, a decree was pronounced against all the parties to the replevin bond, from which decree they have appealed.</p> <p>The Chattanooga, Rome & Columbus Railroad Company is a corporation of the state of Georgia. Its road was constructed in 1887, and included about 157 miles of railroad, extending from Canolton. in the state “of Georgia, to Chattanooga, in the state of Tennessee. Only about live miles of its entire line is wit bin the state of Tennessee, the remainder being within the state of Georgia. The Savannah & Western Railroad Company is another Georgia corporation, owning and operating a line of railroad in that state. In May, 1891, the first-named railroad sold and conveyed its entire line of railroad, and ail of its equipments and assets of every kind, to the latter company. This sale by the one company to the other was fully authorized by the charter of each of the contracting companies. The complainant Evans is a judgment creditor of the selling company, with an execution returned nulla bona. His original hill was filed in the Tennessee chancery court, for tlie purpose of subjecting so much of the property of the Chattanooga, Rome & Columbus Railroad Company as was situated within the state of Tennessee. The entire property of the selling company was at the rime of sale subject to two mortgages, the Central Trust Company of New York being the trustee! in each. The first mortgage was to secure 2.240 5 per cent, gold bonds, of the denomination of $1,000 each; and the second included the same property, as well as the income of the mortgagor company. This latter mortgage was to secure “income bonds,” aggregating $1,400,000. Both these mortgages had been duly executed before Evans became a creditor. The object of his hill was to subject; the Tennessee property to the satisfaction of liis debt,, notwithstanding these mortgages and the conveyance of the equity of redemption to the Savannah & Western Railroad Company. His contention, briefly stated, was as follows: (1) That his judgment was for work and labor done on the property of the Chattanooga, Rome & Columbus Railroad, and that under the statute law of the state no mortgage made by a railroad in that state was valid as against an execution upon such a judgment. (2) That, both the selling and buying railroad companies were nonresidents of the state of Tennessee; that neither was incorporated under the law of Tennessee, and neither was authorized to buy, sell, own, or operate a railroad in that state, neither having registered its charter as required by the law of that state; that the deed made by the debtor company was absolutely void for noncomplianee with the requisite conditions authorizing nonresident corporations to do business in that state. (3) That tbe sale to the Savannah & Western Railroad Company was made with the purpose and intent of hindering, delaying, and defrauding the general creditors of the selling company, and that this purpose was known and participated in by the buying coi'ijoration. (4) That the selling company was wholly insolvent at the time of the sale, and that its property was therefore a trust fund for the equal benefit of all its creditors, and that a sale which deprived it of all its assets, and made no provision for its general creditors, was fraudulent in law and fact, Evans’ bill was filed for the benefit of himself and all other creditors who might choose to intervene and become parties. An attachment was prayed and granted, which was levied, not only on the railroad situated within the state, but upon locomotive engines, cars, machinery, tools, oflice furniture, etc., found within the jurisdiction. The property thus attached was replevied, under a provision found in the Tennessee Code, by the purchasing company and its lessee, the Richmond & Danville Railroad Company, and by the Central Trust Company, trustee, under the two mortgages heretofore mentioned. Subsequently the suit was removed from the state court into the United States circuit court for the Eastern district of Tennessee by two of the defendant corporations. Upon a final hearing the circuit court held that the attached property was subject to the claim of Evans, as well as to the claims of two other creditors who had become parties by intervention, and a decree was pronounced against all the parties to the replevin bonds for the full amount of the claims adjudged. Prom this decree all the defendants have appealed and assigned errors.</p>

This was a suit by the Building & Loan Association of Dakota against William J. Logan and Minnie Logan to foreclose a lien by a deed of trust. The circuit court rejected the claim of lien, but rendered a personal judgment against the defendants. Complainant appeals.

<p>Appeal from the Circuit Court of the United States for the Northern District of Florida.</p> <p>This suit was commenced in the circuit court by the following petition:</p> <p>“Your petitioner, W. H. Northrup, humbly represents: (1) That, as shown by the records of this court, he has heretofore been appointed receiver in the case of D. W. Thom et al. v. Pensacola Terminal Company, and, as such receiver, authorized and directed to take possession of all the property, real and personal, of the defendant. (2) That, 'at the time of the said order, C. M. Boulden and Graham Gordon, respectively vice-president and president of said company, held in trust for the said defendant the east half of the tract of land in the county of Escambia, state of Florida, known as the ‘JohnDonaldson tract,’ and being section 51, T. 2 S., R. 30 W., of which said tract, with the exception hereinafter mentioned, your petitioner, under said order, took possession. (3) That at the time of said order one John Coles occupied a portion of the said east half of said tract, as the tenant of the said Gordon and Boulden, trustees as aforesaid; the said Coles having obtained possession of the said property from his father, one Samuel Coles, who was a tenant, by a written indenture of lease, of J. C. Petterson, who was the remote grantor of the said Gordon and Boulden, trustees as aforesaid, and had also been a tenant under a written indenture of lease of E. B. La Pice, executor of ft. A. Watson, deceased, grantor of said J. C. Petterson. (4) That your petitioner has demanded the possession of the said John Coles, and that the said Coles has refused to deliver the possession thereof to your petitioner, as of right he ought to do. Wherefore, your petitioner prays that the said John Coles may be required, by an order of this court, to deliver up the said possession of the said property to your petitioner, in order that it may be administered by him under the order appointing him as aforesaid. And your petitioner will ever pray, etc. W. H. Northrup, Receiver.”</p> <p>And thereupon the following notice appears to have been served:</p> <p>“In the United States Circuit Court, Northern District of Flórida, at Pensacola.</p> <p>“In the Matter of the Petition of W. H. Northrup, Receiver in the Case of D. W. Thom et al. v. Pensacola Terminal Company'.</p> <p>“You will please take notice that we have filed a petition in the above court to recover possession from you of that portion of the east half of section 51, T. 2 S., R. 30 W., known as the ‘John Donaldson Tract,’ in Escambia county. Florida, now occupied by you, and that a hearing of said petition, and of such answer as you may then have filed, will be had before the Hon. Chas. Swayne, judge of said court, on November 5, A. D. 1894, or as soon thereafter as the same can be heard.</p> <p>“Blount & Blount, Sols, for Petitioner.</p> <p>“To John Coles, Esq., Defendant.”</p> <p>The appellant filed sworn plea as follows:</p> <p>“In the Matter of the Petition of W. H. Northrup, Receiver of the Pensacola Terminal Company, v. John Coles.</p> <p>“The Plea of the Above-Named Respondent to the Petition of the Above-Named Petitioner.</p> <p>“The respondent. John Coles, by protestation, not confessing or acknowledging all or in any part of the matters or things in the said petition contained and mentioned to be true, in such manner and form as the same are therein set forth and alleged, pleads thereto, and, for plea to the whole petition, says that respondent did not obtain possession of said property in said petition described from Ms (respondent’s) father, Samuel Coles, as alleged in said petition, but that respondent entered into possession of said premises under claim of title, exclusive of any other rights, founding such claim upon a written instrument of the date of October 29, 1877, as being a conveyance of the premises in question, and that respondent has been in continued occupation and possession of said premises included in said instrument for a period of time longer than seven years before the filing of said petition, to wit, for a period of more than sixteen years. Wherefore, and relying upon the above facts, which said respondent avers to be true, respondent says that a court of equity has no jurisdiction to hear, try, and determine this cause. Wherefore, the respondent prays the judgment of this honorable court whether he ought to be compelled to make any other or further answer to said petition, and respectfully prays to be hence dismissed with his reasonable costs in this behalf most wrongfully expended.”</p> <p>This plea was traversed, and thereupon the cause was heard before the chancellor. John Coles testified as follows:</p> <p>“My name is John Coles. X bought this place from Matthew Burke about sixteen years ago, and gave him, as well as I can remember, about $40 for the place. He was living there at the time. I cannot read or write. Matthew Burke gave me this paper when I bought the place [producing following paper]:</p> <p>•* ‘$35.00. Pensacola, Florida, Oct. 29th, 1877.</p> <p>“ ‘This is to certify that I, Matthew Burke, and my wife, Sarah Burke, did sell and deliver to John Coles one place on the Big Bayou, said place being the place upon which the said John Coles now lives. We, Matthew and Sarah Burke, release all of our right and claim to said place, and all it contains, in consideration of half payment of all demands.</p> <p>his</p> <p>“ ‘Matthew X Burke,</p> <p>mark</p> <p>her</p> <p>‘“Sarah X Burke.’ mark</p> <p>“Matthew Burke is dead. I have lived on tills place for sixteen or seventeen years. Since the date of this paper, I have claimed it as my own, and have never paid rent to any one, and never recognized any one as my landlord. My father and mother lived there with me. My father never lived there before I did. I brought him there. Matthew Burke lived there before I did.”</p> <p>Cross-examination: “I have been married about five years, and am about 41 years old. My father lived with me. I have been away from home at work several times for a month, and once or twice as long as two months at a time, — usually, only a week at a time. This was my home all of the time, and, when away at work, I always left my clothes there. My father died about three years ago. He was ninety-odd years old when he died. He lived with me. Once, when I came back home and told my father that 1 had heard that he had signed a lease to this place to Mr. Fisher, he said that ho had sigmed some kind of a papeit lie said that he understood that it was something about taxes. He had no authority to sign a lease to this place. I claim it as my own. 1 signed a lease to the place across the road from this place where I live, and paid Mr. Fisher a dollar on it. 1 bought out the improvements from Prince Jones, who had leased it, and I wont up to Mr. Fisher’s office, and signed a lease to the place, and paid Mr. Fisher a dollar on that lease on the Prince Jones place. When I bought from Matthew Burke, he said he sold me his claim. He said that the place was his. I do not recollect, when I went to pay Mr. Fisher the dollar for rent on the Prince Jones place, that he put Into it a receipt to my father, and that I told him that this was for my place, — the Prince .Tones place, — and not for my falher’s place. I do not remember going up to Mr. Fisher’s oilice with my father to pay the rent on this place.”</p> <p>Redirect: “The place I bought from Matthew Burke, now in controversy, has been inclosed for fifteen or sixteen years, and I have been living on it all the time. I live there now.”</p> <p>In support of his plea he also produced the evidence of three other witnesses, and rested his case. Contrary evidence was offered, tending- to show that the property belonged to the Pensacola Terminal Company, and that one Solomon Coles, father of John Coles, had in July, 1886, and again in July, 1888, signed leases of the property in question, and that John Coles was present when said leases were signed. After hearing the evidence, the judge rendered a decree that the receiver was entitled to the possession of the property, that John Coles was holding possession as 'tenant of the receiver, and that John Coles should deliver possession upon demand. Coles appealed.</p>

This Wins hill by Francis Lasher and others, trastees, against John W. McCreery and others, to remove a cloud upon the title to real estate by annulling certain deeds made by the commissioner of school lands in Wyoming county, W. Ya.

<p>Appeal from the United States Court in the Indian Territory.</p> <p>This was a suit by Henry C. Pyeatt and James C. Kirby against William P. McClellan and Rachel McClellan to subject certain property to the payment of a judgment against the' defendants. The circuit court made a decree in favor of the complainants. Defendants appeal.</p> <p>In this case Rachel McClellan and William P. McClellan, her husband, appeal from a decree rendered by the United States court in the Indian Territory that subjected the improvements which the appellant Rachel claimed to own, and which were situated upon two farms upon lands of the Cherokee Nation, to the payment of a judgment against her husband in favor of Henry C. Pyeatt and James C. Kirby, the appellees. The facts Tip-on which this decree rests are as follows: Rachel McClellan is a Cherokee Indian, and a citizen of the Cherokee Nation by blood. William P. McClellan intermarried with her in 1879, and thereby became an adopted citizen of the Cherokee Nation. Prom 1879 until after the rendition of the judgment in favor of the appellee's, William P. McClellan and his wife occupied a farm of about 600 acres upon the lands of the Cherokee Nation. During this time he made large and valuable improvements upon this tract of land. Por convenience this farm wall be called the “McClellan Place.” In 1884, William P. McClellan purchased a large number of cattle of Henry C. Pyeatt and James C. Kirby, the appellees. On December 16, 1884, he gave to the appellees a mortgage upon about 1,200 cattle, a part of which had been purchased of the mortgagees, to secure the payment of certain promissory notes given by him for the purchase price of these cattle. In 188.7 he purchased of one Dick Prather the improvements upon a tract of about 800 acres of the lands of the Cherokee Nation, and paid him for these improvements with 100 of the mortgaged cattle. Por convenience this farm will be called the “Prather Place.” On October 3, 1889, the appellees recovered a judgment against William P. McClellan upon the debt secured by the mortgage upon the cattle for the sum of $7,598.07. On November 18, 1889,- McClellan conveyed the McClellan place and the Prather place to his wife, Rachel McClellan, in consideration that she would pay out of the proceeds of the places $1,850, which he owed to two of his creditors. The ap-pellees obtained a return of nulla, bona upon an execution issued upon their judgment against McClellan, and then brought the bill in this case to subject these improvements to the payment of their judgment. The court below decreed that the conveyance to Rachel McClellan was fraudulent and utterly void, and subjected both of the farms and the improvements thereon, with the exception of 160 acres of the McClellan place, which was occupied as a homestead, to the payment of the judgment in favor of the appellees.</p>

<p>Appeals from the Circuit Court of tiie United States for the District of South Carolina.</p> <p>These were suits by the Finance Company of Pennsylvania and others against the Charleston, Cincinnati & Chicago Railroad Company and others, and by the Boston Safe-Deposit & Trust Company against the same, for foreclosure of mortgages and the appointment of a receiver. Daniel H. Chamberlain was appointed receiver, and Augustine T. Srnythe was appointed his counsel. On the settlement of the affairs of tbe receivership, orders were made, fixing the amount of compensation allowed to the receiver and to his counsel. The Boston Safe-Deposit & Trust Company appealed from both orders.</p>

This was a suit by the Hargadine-McKittrick Dry-G-oods Company against George M. Settle and others to set aside a chattel mortgage. The circuit court gave judgment for the plaintiff. Defendants bring error.

<p>This was a bill in equity by William E. Savage against William G-. Worsham, seeking to control title to certain lands.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Georgia.</p> <p>This was a suit in equity by John A. Topliff against the Atlanta Laud & Improvement Company to enjoin the prosecution by it of an action of ejectment a.gainst him, and to enforce specific performance of a bond to convey title, which complainant held by assignment from Warren B. Crosby, the obligee named therein. By amendment to the bill the Atlanta Land & Annuity Company, Paul A. Seeger, and J. S. Bosenthal were also made parties defendant. The circuit court, by its decree, refused to adopt the construction of the title bond contended for by complainant, and he thereupon took this appeal.</p> <p>The Atlanta Land & Improvement Company, at the time of making the bond for title, held the land under a perpetual lease from the Atlanta Land & Annuity Company, and the point in dispute in the case was whether, after completing his payments of the purchase money, the assignee of the bond was bound to pay the ground rent, or whether the Atlanta Land & Improvement Company was bound to pay it. The parts of the bond material to this controversy were as follows: . 1</p> <p>“Tlie condition of tlie above obligation is such that tbe above-bound body corporate batb tbis day sold unto tbe said Warren B. Crosby a certain lot or parcel of ground and premises lying and being in tbe city of Atlanta,” etc. [Here follows tbe description.] “Wbicb lot, as above described, tbe said body corporate batb sold unto tbe said Warren B. Crosby at and for tbe sum of thirty-five hundred dollars, subject to tbe annual ground rent of one hundred and ten. dollars, payable semi-annually on the first of April and October, respectively, of each and every year, of wbicb amount tbe said Warren B. Crosby has tbis day paid unto tbe Atlanta Land Improvement Company tbe sum -of fifty dollars, leaving accordingly a balance due, on account of purchase money, of thirty-four hundred and fifty dollars, wbicb said balance of purchase money it has been mutually agreed shall be payable in installments of fifty dollars on the 15th of each and every morfth, with interest, until tbe said balance of purchase money is fully and finally satisfied and paid, including interest thereon at the rate of six per cent, per annum. In settlement of wbicb the said Crosby has this day passed over and delivered unto the said Atlanta Land Improvement Company bis sixty-nine promissory notes, all of even date, each for tbe sum of fifty dollars, and payable at intervals of one month, with interest at six per cent., so that tbe last of said series of notes will become due and payable sixty-nine months from tbis date, with tbe right and privilege of anticipating payment before maturity, so as to stop interest. And it is further mutually understood and agreed between tbe said Warren B. Crosby and tbe Atlanta Land Improvement Company that, pending tbe payment of tbe said balance of purchase money in the manner aforementioned, tbe said Warren B. Crosby shall and will promptly pay tbe ground rent on the aforementioned property, as tbe same shall respectively fall due and become payable,” etc. “It being expressly understood that time is of tbe essence of tbis agreement, and that the above conditions are conditions precedent,” etc. “Now, if tbe said Warren B. Crosby shall well and truly pay the promissory notes as aforementioned at tbe times hereinbefore mentioned, and shall continue tbe payment of tbe same until tbe balance of purchase money owing by him shall be fully satisfied and paid, as also tbe interest thereon at tbe. rate of 6 per cent, per annum, and shall perform tbe other, conditions as above provided for, then tbe Atlanta Land Improvement Company is bound to execute to the said Warren B. Crosby, bis legal representatives or assigns, a good and sufficient title to tbe above-described lot or parcel of ground and premises,” etc.</p> <p>The cause was tried upon the following agreed state of facts:</p> <p>For tbe purpose of a judicial determination of tbe substantial issue between the parties to the above-stated case, all tbe facts are hereby admitted to be such that the only question for adjudication is tbe proper construction of the bond for title now before tbe court, with respect to tbe obligee’s liability to pay the ground rent after cornpleting payment of tbe purchase money, it being admitted that the obligee and bis assigns paid tbe ground rent pending payment of the purchase money, and refused to pay the ground rent after having paid all tbe imrchase money. If tbe court shall be of opinion that said bond for title obliges the Atlanta Land Improvement Company to make to W. B. Crosby, or bis assigns, a good title, without liability to tbe ground rent, the decree should be for tbe complainant Topliff. But if the court shall be of opinion that said bond for title obliges W. B. Crosby or bis assigns to accept a lease for 99 years, conditioned to pay ground rent on tbe terms specified in tbe lease from tbe Atlanta Land & Annuity. Company to tbe Atlanta Land Improvement Company, which lease is before tbe court, the decree should be for tbe defendants. Each of tbe parties saving and reserving tbe right to except to tbe decision of tbe court and to appeal in tbe mode provided by law.</p> <p>In the circuit court the following opinion was delivered by Newman, District Judge:</p> <p>The sole question for determination in tbis case is tbe proper construction of the provisions of a bond for title from defendant to W. B. Crosby, complainant’s assignor. An agreement between tbe parties is as follows: [Here follows agreed statement of facts and copy of Bond for Title, already printed.] It will lie perceived that Crosby took the land in question “subject, to the annual ground rent of one hundred and ten dollars, payable semiannually on the 1st day of April and October, respectively, of each and every year.” He also accepted the bond with the statement therein that the Atlanta Land Improvement Company held the land covered by the bond (as well as other adjoining lands) under a lease from the Atlanta Land & Annuity Company for 99 years. It is conceded in the agreement that Crosby took the land with this knowledge, and that he is chargeable with such knowledge. It is contended, however, as to Crosby’s knowledge of the facts that this obligor only held a leasehold interest in the land, that he also had knowledge of certain provisions in this lease by which the improvement company held the land entitling- that company to extinguish this lease by complying with certain named conditions, and acquire a right to a fee-simple title. And it is urged that Crosby and his assignee, Topliffi, had the right to assume, under all the terms of the bond for title, that this would be done, and that, upon the payment of Crosby or his assignee of the purchase money and the ground rent during the period of the payment of the purchase money, the improvement company would take advantage of its right tinder the lease, and get from the annuity company a tiile unincumbered with ground rent, and convey the same to the holder of the bond. It is also claimed on behalf of Toplifl: that the clause in the bond that, “pending the payment of said balance of purchase money,” Crosby shall pay the ground rent, qualifies and explains the preceding general statement that Crosby took “subject to the annual ground rent, etc.,” and that the latter clause contains and is the real contract between the parties. It is entirely clear that the latter expression in the bond in no way qualifies or affects the former language. The last clause simply sets out what is (among other things) required of the obligee before he shall become entitled to a deed. It states the conditions precedent to the right to a deed, and in no way determines the kind of deed to which the obligee is entitled. The character of the whole paragraph as to purchase money, insurances, taxes, etc., as well as to ground rent, clearly indicates this. The part of the bond which must determine the kind of “good and sufficient title” to which Crosby or his assignee became entitled on compliance with the bond’s condition, is the general provision as to the purchase price,--that is, .$3,500, — subject to the annual ground rent of $110. The price is $3,500, subject to the annual ground rent; and clearly, in the absence of restrictive language, that sum, the annual ground rent for which the improvement company was liable to the annuity company. It being a question of price, mere details in the subsequent part of the instrument as to the manner in which the trade should be consummated, are immaterial in determining the price. The conclusion is that Topliff, as assignee of Crosby, is only entitled to a conveyance from the improvement company of the land subject to the payment of the ground rent and that a decree must be entered accordingly.</p>

This was a suit by Julie Runge against John A. Loomis, the Ostrander & Loomis Land & Live-Stock Company, and others to quiet and remove clouds upon the title to certain land. The circuit court rendered a decree for complainant. Defendant Loomis appeals.

<p>1. CONTRACTORS FOE. PUBLIC WORKS — ACT AUS. 13, 1894.</p> <p>Act Cong. Aug. 13, 1894, providing that any person contracting with the United States for the prosecution of a public work shall, before commencing such work, give a bond to pay all persons supplying him with labor or materials, and that a person supplying- labor or materials to the contractor should have a right of action, in the name of the United States, on such bond, has no retroactive effect, and does not authorize a suit upon such a bond given before the passage of the act.</p> <p>8, Mechanics' Liens — Louisiana Statute.</p> <p>Whether, under the Louisiana statute, persons furnishing feed for mules used by a contractor in and about the construction of a levee have a lien on such levee or moneys due for building the same, quaere.</p>

This was a suit by William T. Walters- and others against the Western & Atlantic Railroad Company, in which receivers of the defendant’s property were appointed. The Capital City Bank intervened, seeking payment of a claim against the railroad company. The matter was referred to a special master, who reported in favor of the hank. Exceptions to this rejrort were overruled i.63 Fed. 391), and, from the decree overruling same, complainants appeal.

<p>In Error to the United States Court in the Indian Territory.</p> <p>Action by J. O. Hall against the Missouri Pacific Railway Company to recover damages for delay in the transportation of cattle. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Action by tbe Third National Bank of Cincinnati against Ira A. Humphreys and others on promissory notes.</p>

<p>Assumpsit.</p> <p>In Error to the Circuit Court of the United States for the Northern District of Florida.</p> <p>This was an action in assumpsit by the Chatham National Bank against the Jacksonville, Tampa & Key West Railway Company, a corporation under the laws of Florida. • Tlie declaration contained 10 counts, some of which were upon notes made by the defendant to Charles C. Deeming, treasurer, and indorsed by him to plaintiff. Other counts alleged that the plaintiff, at the defendant’s request, released the Florida Construction Company from indebtedness in amounts specified, and that defendant thereupon promised to pay such indebtedness. The last three counts were the common counts for money paid out and expended, money lent, and on account stated. Various motions and demurrers were passed upon by the circuit court, and numerous amendments were made to the declaration. The defendant ultimately filed pleas to all the counts. To these pleas replications were filed, and, the issues being finally joined, the case was tried before a jury, resulting in a verdict for the plaintiff for $86,291.41. Defendant made a motion for a new trial, and plaintiff entered a remittitur for $17,588.37. A new trial was denied, and judgment entered against the defendant for $68,693.04. Defendant then sued out this writ of error. There were 26 specifications of error. No opinion appears to have been filed by the circuit court upon any of the questions ruled upon.</p>

Action, by William M. Ladd ag hist the Missouri Coal & Mining Company to recover damages for breach of contract. The court directed a verdict for defendant, and plaintiff brings error.

<p>Validity of County Bonds — Constitutional Rkstjriction's — Bona Fide Purchasers.</p> <p>Francis v. Howard Co., 4 C. C. A. 460, 54 Fed. 487, and Millsaps v. City of Terrell, 8 O. 0. A. 554, 60 Fed. 198, followed. Citizens’ Bank v. City of Terrell (Tex. Slip.) 14 S. W. 1008, and Nolan Co. v. State (Tex. Sup.) 17 S, \Y. 828, approved.</p>

This was an action by Hyman Blum against W. M. Bowman and others to recover certain lands in Cherokee county, Tex. On the trial in .the circuit court a verdict was rendered for the defendants. Plaintiff brings error.

<p>L Practice — Amendment oe Record after Issue of Writ of Error.</p> <p>An action was brought against P. and R,, with three other persons, who were not served, and did not appear or take any part in the trial. Judgment haying been rendered in favor of the defendants, the plaintiff sued out a writ of error; making P. and R., only, parties. By a mistake of the clerk, the record, as lodged in the appellate court, showed that the three defendants, other than P. and R., had appeared and participated in the trial, and that judgment had been rendered in their favor. P. and R. moved to dismiss the writ of error for want of parties. The plaintiff then moved, in the lower court, to have the record corrected nunc pro tunc, which was done, after hearing P. and It. in opposition. Held, that it was probably within the power of the trial court to amend its record so as to correct the clerk’s mistake and conform the record to the truth, and that, at all events, if erroneous, its action should be corrected by writ of error.</p> <p>8. Promissory Note — Negotiability.</p> <p>A promissory note which contains an agreement to the effect that if there shall be any depreciation, prior to the maturity of the note, in collateral deposited to secure its payment, then the payee or holder may call for such further security as he deems satisfactory, and, if it is not furnished within two days, may proceed at once to sell the collateral, is not a negotiable note.</p>

This was an action by W. H. Paulhamus against James C. Drake for wrongfully taking from plaintiff’s possession a stock of goods. In the circuit court plaintiff recovered judgment. Defendant brings error.

This was an action by L. Fleischner, Sam Simon, M. A. Mayer, and Sol Hir'sch, partners under the firm name of Fleischner, Mayer & Co., against the Pacific Postal Telegraph Cable Company, to recover damages occasioned by delay in transmitting a telegraphic message. A jury was waived in the circuit court, and the facts found by the court, and judgment rendered for plaintiffs. 55 Fed. 738. Defendant brings error.

Action by one Larsen, administratrix of Peter W. Larsen, deceased, against one McGowan and others, for wrongfully causing the death of piain1 ill’s intestate. There was a judgment for plaintiff, and defendants bring error.

<p>In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>This was an action by Charles K. Whitcomb against the Cincinnati Street-Railway Company to recover damages for a personal injury. In the circuit court plaintiff recovered judgment. Defendant brings error.</p> <p>Charles K. Whitcomb, a citizen of the state of Kentucky, recovered a.verdict and judgment against the Cincinnati Street-Railway Company, a citizen of Ohio, in the circuit court of the United States for the Western division of the Southern district of Ohio, as damages for a personal injury. This is a proceeding to review that judgment. Whitcomb was a garden truck huckster, and in his business used a horse and wagon. The Cincinnati Street-Railway Company is engaged in the maintenance and operation of an electric street-car line, running from Avondale, a suburb of Cincinnati, into that city, by way of Hunt street. Whitcomb, on the 3d of August, 1893, stopped in front of a saloon on the west side of Hunt street, and went in. There are two tracks upon Hunt street at this point, and the width of the street from curb to curb is 46 feet, leaving about 16 feet between the outer rail of each track and the curb. The car which afterwards collided with Whitcomb was running from Avondale south into the city of Cincinnati on the west track. To the north of where Whitcomb’s wagon stood the track curved to the; west. From the curb at this point it was possible to see up the track from 200 to 400 feet. The street car was running ’at the rate of S miles an hour. Some 60 feet south of where Whitcomb’s wagon stopped, on the same side of the street, was a broken-down slop-feed wagon, extending diagonally from the curb towards the railway track. Whitcomb testified that, when he came out bf the saloon, he looked north up the track, and saw no street car; that he then got on to his wagon, and, in order to avoid the malt wagon, drove towards the track; that, before he reached the track, he looked back again up the track. His wagon was covered, but the front side curtains were rolled up. The street car overtook Whitcomb when he was opposite the malt wagon, and between it and the track. Just where his left wheels were is made uncertain by the evidence, and whether the dashboard of the car struck the wagon, or the collision took place between the back wheels of the wagon and some of the side standards of the car after the dashboard of the car had passed the wagon, is not clear. Certain it is that the car crushed the huckster wagon against the heavy malt wagon without injuring Whitcomb, and that subsequently the ear backed, and then moved forward again, and that, either in the backing or in the second forward movement, the wagon of Whit-comb was upturned, and he was injured. The evidence for the plaintiff supported his claim that his injury was caused by a second collision, while defendant adduced much testimony to show that there was no second collision, but that the upturning of the wagon and the injury to the plaintiff were caused by the backing alone. The motorman testified that Whitcomb turned suddenly across the track when the car was too near him to stop it; that, in order to facilitate the stuping, he not only put on the brake, but also reversed the motor; and that the backing of the car after the first collision was due to the reversal of the motor before the first collision. There was counter evidence tending to show that the motor was reversed after the collision, and that the backing was due to that reversal. The amended petition of plaintiff charged “that the said defendant, by its servants, agents, and employes, was guilty of gross and wanton negligence in the following respects: That.it negligently failed to ring the bell or sound the gong on its said electric car, so as to warn plaintiff of the approach of the same, and negligently failed to stop said car after plaintiff’s perilous position was known, and when, by the exercise of reasonable care on its part, the said collision might have been prevented. By reason of these acts, and without negligence on the part of plaintiff, his wagon was struck by the defendant’s said electric car,, so that plaintiff was thereby, and by reason thereof, placed in a perilous position. Plaintiff says that while in said perilous position, and without negligence on his part, and without time or opportunity to extricate hiipself from said perilous position, the defendant,' through its servants, agents, and imiployés in charge of said electric .car, was guilty of further and additional gross and wanton negligence in the following-respects: That it did, with full knowledge on its part of plaintiff’s perilous position, cause said electric car to be backed a short distance, and.then caused said car with great /oree and violence to be collided with the said horse and wagon of the said plaintiff, by reason of which last-named collision plaintiff was greatly damaged in his person, etc. And plaintiff further says that by reason of defendant’s said negligence, through its servants, agents, and employes in charge of the running and operation of said electric car as aforesaid, his horse, drawing his said wagon, was killed, and his wagon broken and demolished, by reason,of all which the plaintiff has been damaged in the sum of five thousand dollars."</p> <p>The jury returned a general verdict for the plaintiff, and also answered certain questions of fact put to them by the court, and failed to answer other questions as follows: “First. Was the injury to the plaintiff and his wagon and his horse caused by the collision when the car first struck the wagon, or by the backing of (lie car after it struck the wagon? Answer: The injury to the horse and the wagon was due to the first collision, and the injury to the plaintiff was due to the backing out of the car. .Second. If you find that the injury was caused by the backing of the car after it struck the wagon, you will please answer each of the following questions: (1) Was the motor reversed before the car struck the wagon? Answer: Disagree. (2) Was the motor reversed after the car struck the wagon, and did that reversal cause the backing? Answer: Disagree. (:!) If not, what was the cause of the backing? Answer: Disagree. Third. After the backing of the car. did It, when again moved forward, strike plaintiff, his horse or wagon? If so, did that striking cause the injury complained of? Answer: No.” A motion was made on i he "part of the defendant for a special finding non obstante veredicto. This was overruled, and judgment entered for the plaintiff on the general verdict.</p>

This was an action by Mary E. Tennant, as administratrix of John S. Tennant, deceased, against the Grand Trunk Railway Company, to recover damages for a personal injury. In the circuit court plaintiff recovered judgment. Defendant brings error.

<p>Writ of Error to the Circuit Court of the United Stales for tin* District of Oregon.</p> <p>Action by Frank Tracy against the Oregon Short Line & Utah Northern Railway Company for personal injuries. Judgment for plaintiff, and defendant brings error.</p>

<p>Petition by Charles P. Hitch, marshal of the Southern district of Illinois, for fees claimed by him, and disallowed by the comptroller for official services.</p> <p>Facts.</p> <p>First. The petitioner entered upon the discharge of his official duties May 27, 1889. He rendered his accounts monthly and quarterly. They were duly ap-•prored by this court in tlie presence of the district attorney. And the compensation actually received by him, together with the amounts claimed hy him in this proceeding, would not amount to the maximum compensation allowed him' ny law 1011 any of the calendar years involved. Second. In his account fo* fees earned during October, 1889, he made a claim for 488 miles of travel, at 6 cents a mile, from Cairo to Springfield, to serve bench warrants, on different dates, in two cases, being 244 miles of travel on each writ. In his account for the same month he also claimed transportation of four prisoners from Springfield to Cairo via East St. Louis, 970 miles, at 10 cents a mile, and the same for each of four deputies, being 244 ‘for each prisoner and each deputy. On this account the comptroller allowed him mileage for 432 miles, at 0 cents a mile, fop serving the two bench warrants, and disallowed the other 56 miles claimed, 28 miles on each writ, at 6 cents a mile, being disallowance of $3.36 on this claim of mileage. In like manner, he disallowed 112 miles of the distance claimed for transportation of the prisoners, and mileage of the deputies, being a further disallowance of $22.40, and a total disallowance for that month of $25.76. The evidence shows that the shortest practicable route from Springfield to Cairo is via Centraba, and is 210 miles, but the route via East St. Louis, which is 244 miles, is many hours shorter in time, because of better railroad connection; and it is the route actually traveled in performing these services, for the reason that it was just at the close of the term of this court at Cairo, and it was important to serve these writs, and have the prisoners at Cairo, before the court should adjourn, arid it was not certain that could be done if the route via Centraba was taken. Third. In his account for November, 1889, he claimed fees for serving six mandates of United States commissioner to bring four convicts before him on their several applications for discharge under section 1042, Rev. St, at $2 each, being $12; also for discharging each of said convicts, at 50 cents each, $3, and for attendance before the commissioner, on the hearing of the applications of three of said convicts for discharge, on three different days, at $2 for each attendance, being $6, a total of $21, all of which was disallowed hy the comptroller. In his account for January, 1890, fees for services of similar character, amounting to $16.50, were claimed; For February, $51; for March, $34; for April, 1891, $9; for June, 1891, $10; ;for July, 1891, $5; for August, 1891, $5; for September, 1891, $23.50; for October, 1891, $9.50; for November, 189Í, $11.50»; for January, 1892, $5; for February, 1892, $51.50; for March. 1892, $30.50; for April, 1892, $6.50; for May, 1892, $14; from July 1 to September 30, 1892, $25.50; from October 1 to December 31, 1892, S2.50, — all of which were disallowed hy the comptroller, being a total disallowance for services of this character from November, 18S9, to January, 1893, of $331.50. Fourth. In his account for September, 1890, he claimed mileage, $6.72, for travel from Springfield, his residence, to Danville, to attend a hearing before United States commissioner. The prisoner in this case had previously been arrested hy the marshal, and taken before the commissioner for a hearing, hut on the prisoner's application the hearing was continued to a time some days later, and the prisoner was held to hail to await the time fixed for the hearing, and the marshal returned to Springfield, hut on the day fixed for the hearing he returned to Danville, and was at the hearing. This claim was disallowed hy the comptroller. Fifth. In the account for April, 1892, the marshal claimed $6 for service of three bench warrants on three persons named. He also claimed $3.10 for expenses in endeavoring to arrest-these persons, the dates of these expenses being identical with the dates of service of the bench warrants. He also claimed $12.96 for mileage on each of these bench warrants from Cairo to Springfield, “a distance of 210 miles,” being $38.88, and in all, for April, 1892. $47.98, all of which was disallowed hy the comptroller. This court was then in session at Cairo, and the grand jury, at the Cairo session, returned indictments against the three persons named in these warrants. The prisoners had previously been committed to jail at Springfield, on preliminary hearings before a United States commissioner at Springfield, and were remaining in jail there, under such commitments, to await the action of the grsmd jury. When the indictments were returned at Cairo, bench warrants were actually issued to the marshal for them, and he served them, by proceeding from Cairo to Springfield, taking the prisoners from the Springfield jail, and bringing them into open court at Cairo.</p>

This was an information against Edward W. Safford, for violation of Eev. St. § 3892, relating to the abstraction or embezzlement of letters from the post office, etc.

This was an application by Lew Jim for a writ of habeas corpus to obtain his discharge from the custody of the collector of the port of San Francisco. The district court remanded the petitioner to the custody of the collector. Petitioner appeals.

<p>1. Chines® Exclusion Acts — Merchants.</p> <p>A Chinese person who, during half his time, is engaged in cutting and sewing garments for sale by a Arm of which he is a member, is not a merchant, within the meaning of section 2 of Act Cong. Nov. 3, 1893, known as the “McCreary Act”</p> <p>2. Same — Application to Persons Leaving the Country before Passage of the Act.</p> <p>Act Cong. Nov. 3, 1893, known as the “McCreary Act,” applies to.Chinese persons who left the country before the passage of the act, and afterwards seek to return. Lew -Tim y. U. S., 66 Fed. 953, followed.</p>

<p>1. CONSTITUTIONAL RAW — INTERSTATE COMMERCE — CARRYING LIQUOR INTO A State.</p> <p>The provision oí the South Carolina '".Dispensary Daw” (section 38) forbidding any person to bring liquors into the state, except as provided in that act, under penalty of fine and imprisonment, is void, as an interference with interstate commerce, in so far as it is sought to be applied to persons who bring liquors into a port of a state, without attempting to unload them from the vessel.</p> <p>2. Same — Effect of the "Wilson Act.</p> <p>The Wilson act, passed by congress in August, 1890, merely operates to subject liquors brought into a state to the police power thereof, whether in the original packages or not, and it gives the state no authority to impose penalties upon persons who bring liquors into a port of the state without attempting to unload them from the vessel.</p> <p>3. State and Federal Courts — Comity—Habeas Corpus.</p> <p>A federal court having before It, on- writ of habeas corpus, persons arrested under a state law alleged to be in contravention of the constitution of the United States, will not feel required, on the ground of comity, to remand them to the state courts, when the circumstances are such that delay in obtaining a decision upon the validity of the law would cause great injury to commerce. Minnesota v. Harbor, 10 Sup. Ot. 862, 136 TJ. S. 313, and In re Van Vliet, 43 Fed. 764, followed.</p>

The following is a portion of a charge delivered to a grand jury at Utica by the district judge (ALFRED 0. CONE) March 19, 1895, together with a presentment thereon made by the grand jury, at Utica, March 27, 1895.

<p>1. Customs Duties — -Time oe Protest — Payment on Gross Estimate.</p> <p>Where gross estimates of duties were made prior to liquidation in accordance with Rev. St. § 2^09, and were paid hy the importer in order to obtain possession of the goods, no protest was then required, but it was sufficient if the protest was filed within 10 days after the date of the final liquidation. Rev. St. § 2931, and § 30.11 as amended, construed. 63 Fed. 1001, affirmed.</p> <p>2. Same — “Payment under Protest” Defined.</p> <p>The words “payment under protest,” as used in- the first part of Rev. St. (2d Ed.) § 3011, as amended, must, by reason of the reference, in the latter part, to section 2931, which defines a protest, be construed to include a payment in connection with a protest; that is, a payment preceded by, accompanied with, or followed by a protest, whichever is permitted by said section 2931.</p>

<p>Copyright — Directory—Ihi’btnokme'nt—Evidence—Injunction.</p> <p>Defendants compiled and printed, and were about to publish, a business directory of the city of Chicago, containing about 60,000 names, alphabetically arranged, under an alphabetical classification of businesses, containing about 800 pages. On a preliminary hearing, in a suit for infringement of complainant’s copyrights in annual directories of the city of Chicago, it appeared that 67 errors in the annual business directory of complainant were followed in defendants’ directory. Defendants’ canvassers tostifted tliRt they made a personal canvass, and obtained the names from original sources. Held, that an order granting an injunction against the whole book should not be disturbed.</p>

' This was an information claiming forfeiture of 14 packages of whisky, ■ under Rev..St. § 3289. J. B. Lanier filed a claim to the whisky, and a trial was had in the district court, resulting in a verdict for the claimant. The government brings error.

<p>This was a bill by the Tannage Patent Company against William Zahn for infringement of patents for processes of tanning leather.</p>

This was a suit by the Eberhard Manufacturing Company against Elbel & Co. for infringement of the Zeller patent, fío. 207,791. The patent relates to drop hooks and ferrets for harness. The hook is used for holding the checkrein which extends from the bridle bit, and is secured to the apex of the harness saddle. The ferrets are rings through which the driving reins pass, and are fixed to the sides of the harness saddle.

<p>1. Patents — Infringement—-Air Brakes.</p> <p>The Westinghouse patent No. 3(i0,070, for a fluid-pressure automatic brake mechanism, is not infringed as to claims 1 and 4, which are expressly limited to an auxiliary valve independent of the triple valve by the Boyden brake mechanism (patents Nos. 481,135 and 481,130), in which the main valve is made to do both main valve work and quick-action work, when needed.</p> <p>2, Same — Fundamentad Inventions — Differences in Form.</p> <p>Claim 2 of the Westingliouse patent is not, however, thus restricted, and, as the invention is a broad one, held, that this claim is infringed by tire Boyden mechanism, which attains the same result by means functionally equivalent, though differing in form.</p> <p>8. Same — Disclaimers—Amendments in Patent Office.</p> <p>Amendments made to meet the objections of an examiner are not to be construed as a disclaimer of the patentee’s actual invention, if such construction can be avoided without doing violence to the obvious meaning of the language used. Lake Shore & M. S. Ry. Co. v. National Car-Brake Slice Co., 4 Sup. Ct. 33, 110 U. S. 229, and Reece Button-Hole Mach. Co. v. Globe Button-Hole Mach. Co., 10 G. C. A. 194, 01 Fed. 958, followed.</p> <p>4. Same — Fundamentad Inventions — Effect of Subsequent Improvements.</p> <p>In the case of a fundamental invention, a defect which prevents the commercial success of the mechanism as originally patented, but which is not radical in character, and is readily corrected by the inventor after experiment, does not deprive the patent of its meritorious character, although the improvement itself becomes the subject of a subsequent patent</p>

This was a bill by Judson E. Oakes and others against James W. Gurney for infringement of a patent. The circuit court rendered a decree for complainants (02 Fed. 209), and defendant appealed.

<p>Patents — Infringement of Combination Patent — Chalk-Drop Machine..</p> <p>The Buel patent, No. 843,755, for a machine for making and drying chalk drops, the claim being for a combination of several elements, Itdd-not infringed by a machine which lacked some of the elements of the combination.</p>

<p>This was a libel by John Tracey, a seaman, against the British ship Walter D. Wallet to recover for personal injuries.</p>

<p>1. Matutime Tort — Admiralty Jurisdiction.</p> <p>An Illegal seizure of a vessel while lying at the dock is a maritime tort, giving a district court jurisdiction in admiralty ol' a libel to recover her.</p> <p>2. [interstate Commerce — Interference witii — Seizure of Boat Transporting Liquor at Night.</p> <p>“Dispensary Act” S. C. Jan. 2,1895, § 38, declaring that any boat or other conveyance transporting liquors at night, other than regular passenger or freight steamers and railroad cars, shall be liable to seizure and confiscation, is, in the ease of a boat bringing liquor from another state, void, as an interference with interstate commerce.</p> <p>3. Same — Effect of Wilson Act.</p> <p>The Wilson act of August, 3890, merely declared that imported packages of intoxicating liquor should, on their arrival in the state, become subject to the police power, equally with liquor produced therein, and gave no power to seize a boat having on board liquor which it had brought from another state.</p> <p>4. Courts — Conflict of Jurisdiction.</p> <p>The mere fact that a constable without process or warrant has seized a boat under Act S. C. Jan. 2, 1895, declaring that any boat transporting liquor at night shall be liable to seizure and confiscation, presents no conflict of jurisdiction on the owner libeling it, and therefore no reason why tho federal court should remit him to the state court for his remedy.</p>

This was a libel by Wyer G. Sargent and others, owners of the two-masted schooner Governor, and Wyer G. Sargent & Sons, as owners of her cargo, against the three-masted schooner Charles H. Trickey (Horace M. Sargent, claimant), to recover damages for a collision. The district court dismissed the libel, with costs, and the libelants appeal.