Volume 67 — Federal Reporter

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>These were three actions by D. M. Benedict against J. C. Benedict, the Olds Wagon Works, E. T. Huff, C. T. Boggs, Frank P. Lawrence, J. M. Burks, C. W. Mosher, and A. T. King, on three bonds executed, respectively, by the defendants or some of them, which actions were consolidated by stipulation and heard as one. The plaintiff recovered judgment on two of the bonds in the circuit court. • Defendants bring error. "J</p>

This was an action by the city of Ysleta, Tex., against Charles J. Canda, William Strauss, and Simeon J. Drake, brought in the district court of El Paso county, Tex. The defendants removed the cause to the United States circuit court. Plaintiff moved to remand.

These were three actions brought against Use Texas & Pacific ■Railway Company by William Capíes, J. K. Holland, and Juan Cruz, respectively. They were originally brought in the district court of El Paso county, Tex., and were removed to the United .States circuit court by the defendant Plaintiffs moved to remand. The three above-entitled suits were originally instituted in the district court of Ei Paso county, Tex.

<p>TMs was a petition by Mary E. Busey against Hannab Gmith, Eliza A. McCarty, Mansford Smith, and Samuel Smith, seeking to subject their shares of the estate of William Smith, deceased, to the payment of a debt claimed to be due the petitioner from_ said William Smith. Defendants moved to dismiss for want of jurisdiction.</p>

This was a suit in equity by the National Steamship Company against Charles H. Tugman to have set off, against a judgment previously rendered in this court, the amounts of two judgments recovered in the courts of New York.

<p>Aeread—Reiitsauings by Circuit Court of Appears.</p> <p>The fact that a case decided by the circuit court of appeals Is one of great importance is not sufficient ground for granting a rehearing, when there is no suggestion that any consideration or authority entitled to v/eight has been overlooked; and this is especially true in cases arising under the constitution and laws of the United States, as to which the decisions of that court are not made final by section 6 of the judiciary act of March 3, 1801 (26 Sint 826).</p>

<p>Practice in Civil Cases—Production of Books and Papers.</p> <p>The right given by Rev. St. § 724, to compel the production of books and papers in action at law, is not limited to requiring their production at the trial, but the court may, in its discretion, grant an order for inspection, with permission to copy, prior to the date of the trial.</p>

<p>-Assignment for Benefit of Creditors—Validity—Fraud.</p> <p>Where an assignment purports to convey all the debtor’s property to be equally distributed among all his creditors, and the same is accepted by the assignee and by a majority in number, if not in amount, of all the creditors, it cannot be held fraudulent on its face, although it contains provisions which might be objectionable if the assignment were one granting preferences; nor can such assignment be set aside because of the fraudulent intent of the assignor, not shown to have been participated in by the assignee and the accepting creditors.</p>

This was a suit by one Olmstead and others against the Distilling & Cattle Feeding Company for the appointment of receivers and administration of its assets. Upon an ex parte application Messrs. Greenhut and Lawrence were appointed receivers. Certain stockholders filed an intervening petition, and now move for the removal of such receivers.

<p>Bill in equity brought by the Boone County National Bank against W. A. Latimer, receiver of the First National Bank of Medalla, and the First National Bank of Sedalia.</p> <p>This is a bill in equity to have claims of the complainant bank against the respondent bank declared a trust fund, and for preference in the distribution of the assets in the hands of the receiver. The case is submitted upon an agreed statement of facts, which is substantially as follows; (1) The complainant, on March 30, 1894, sent to the First National Bank of Sedalia, Mo., for collection and remittance, a note it held against Jenney Bros, for $1,000 due April 8, 1894. Jenney Bros, paid on this note, on the 2d day of April, $787.09, which the First National Bank placed to the credit of the complainant, instead of remitting, as it was instructed to do. (2) The complainant in like manner sent to the First National Bank for collection a note it held for the sum of $1,500 against Henry Mueller and others, which was due January 2, 1894, and it was so sent for collection on the 29th day of December, 1893. On the 1st day of May, 1894, and three days before the bank failed, Mueller paid on this note the sum of $700, which the defendant bank placed to the credit of the complainant on its, books, instead of remitting, as it had been directed. (3) That both of these notes were sent to the First National Bank, with instructions to collect the same, and remit to the complainant at Columbia, Mo. (4) When the said collections were made, the moneys received therefor were placed with other funds, constituting the cash assets of the bank, and to the extent thereof went to increase the volume of its assets and went into its business operations. (5) That when the receiver took possession of the said First National Bank he came into possession of $495.29 in money, and between the dates of the payments to it for complainant as aforesaid and the said 4th day of May, 1894, the day the bank closed, other large sums of money, besides these mentioned, had been paid into said bank, and distributed by it in the usual and ordinary course of its business operations, and that since the receiver had taken possession of the assets of the bank he has realized therefrom a large sum of money, and more than amply sufficient to pay all preferred claims against the bank. (6) Neither of the sums so collected by the defendant bank, or any part thereof, has been paid to the complainant.</p>

<p>In Equity.</p> <p>Bill for an injunction filed by the Ooosaw Mining Company against Farmers’ Mining Company and others. A preliminary injunction was dissolved, and the court ordered a reference to ascertain the damages on the bond. An objection to proceeding with the reference was made, and the master applies for instructions.</p>

<p>L Fedkkal Courts—Jurisdiction--Amount in Controversy.</p> <p>A bill, seeking a mandatory injunction to compel a defendant railway company to give complainant equal facilities with others for receiving and shipping cattle, alleged that the damage done by the refusal of such equal facilities was Irreparable, and largely exceeded $2,000. Held that, in the absence of a plea to the jurisdiction, this allegation was sufficient, though denied by the answer, and not sustained by any proof.</p> <p>8. Equity—Practice—Tender before Suit.</p> <p>It seems that, where such a bill contains a tender of the expense of providing the facilities sought, and the answer denied the right of the complainant to such facilities on any terms, the objection that there was no demand for such facilities or tender of the cost, before suit, is one that might be obviated by a provision as to costs, and is not a ground on which the court should rest its decision. '</p> <p>8. Same—Engaging in Sudervision of Business.</p> <p>The rule that a court of equity will not make an order requiring it to supervise the details of business transactions Is one the application of which rests very largely in the sound, legal discretion of the court; but it will not prevent the court, in a. proper case, from requiring a defendant to furnish facilities for the loading and unloading of live stock. Stock-Yards Co. v. Keith, 11 Sup. Ct. 461, 139 U. S. 136, followed.</p> <p>4, Grant upon Condition—By IViron ISnforoiod.</p> <p>Whore land has been granted to a city for the purpose of a public landing, and such city gives a license for a railroad to construct a track over such land to receive and deliver freight, the railroad cannot, while no objection is made by the grantor of the land, use the terms of the grant as an excuse for failing to construct and use such track, when required to do so.</p> <p>5„ Railroads—Unjust Discrimination.</p> <p>Where a complainant seeks to compel a railroad company to afford it facilities equal to those given to a favored rival, it is no defense that the railroad company has the right at any time to withdraw the facilities furnished to the favored person.</p> <p>6. Bame.</p> <p>The L. R. R. Co. constructed a spur track in a city street, over which it received and delivered freight from and to persons owning land abutting’ on the street, and engaged in business there. The freight so received and delivered was all of the class known as “dead freight," and could ail be handled at the convenience of the railroad company. The grade and curve at the point where the spur left the main track wore such that only three loaded cars could bo drawn up át a time. The B. Co., which was engaged In shipping and receiving live stock, requested the L. R. R. Co. to construct a siding from the spur track to its stock yards for the purpose of receiving and delivering cars of live stock. The B. Co.'s yards were at a distance of 40 feet from the street on which the spur track was laid. It would be necessary for the railroad company to receive and deliver cars of live stock without delay at any time to meet its convenience in handling the cars, and to employ extra men in order to care for the traffic, Held, that the difference in the business of the B. Co. and that of the abutters upon the spur track was so groat that a refusal by the railroad company to afford equal facilities to the B. Co. did not constitute unjust discrimination.</p> <p>!L Same.</p> <p>The L. R. R. Co. made a contract with the U. Stock-Yards Co. by which it agreed to make the U. Stock-Yards its sole stock depot in the city of N., and to deliver there all stock consigned to persons in said city. No charge was made, in addition to the usual transportation charges, for loading or unloading stock at the U. Yards, but, if live stock unloaded there was not removed by the consignee within two or three hours, a charge was made for keeping it. The B. Co., having a stock yard in the city of N., demanded that the L. R. R. Co. furnish it facilities for receiving and shipping stock at such yards. Held, that so long as the railroad company furnished a sufficient depot, either of its own or under contract with another company, for receiving and shipping stock, without extra charge, it was not unjust discrimination to refuse to furnish similar facilities to the B. Co. at its yards. Stock-Yards Co. v. Keith, 11 Sup. Ct. 461, 139 U. S. 128, distinguished.</p>

<p>1. Conditional Sale—Assignability—-Receivers—Equity.</p> <p>By a written contract, there was sold “the sulphur contents in about 5,000 tons * * * of Small’s Pyrites”; the ore to be burned by the purchaser, and the cinder remaining after extraction of the sulphur to be the property of the seller. The purchasing company failed, and receivers were appointed, who operated the works for some time, but ceased Anally to do so, leaving some of the ore on hand still unburnt. Held, that the contract was not assignable, that the receivers had no right to sell the unburnt ore for the benefit of their trust, and that equity could only be done by returning the same to the sellers. 61 Fed. 664, affirmed.</p> <p>2. Same—Claims by Strangers—Procedure.</p> <p>Where property in the hands of receivers is claimed by persons not parties to the suit in which they were appointed, the proper procedure is to file a petition asking the court for an order on the receivers for delivery of the property. 64 Fed. 664, aiiirmed.</p>

<p>This was a suit by Benjamin W. Kilbum and James M. Davis against Truman W. Ingersoll to restrain defendant from making or selling stereoscopic views of the World’s Fair. Complainants move for a preliminary injunction.</p>

Bills in equity by the Farmers’ Loan & Trust Company and others against the Toledo, Ann Arbor & North Michigan Railway and others to foreclose certain mortgages. The suits were consolidated, and decrees vrere taken against defendant pro confesso. ' Subsequently George W. Murray and others, as a committee of the stockholders, petitioned to be made parties defendant, and allowed to file an answer on behalf of the company.

<p>In Error to tbe Circuit Court of the United States for the Eastern District of Texas.</p> <p>This was an action by W. N. Coler & Co., a firm composed of W. N. Coler, Sr., W. N. Cole,r, Jr., Bird S, Coler, and James W. Campbell, citizens of the state of New York, against Marion county, Tex., to recover some $50,000 alleged to be due upon certain bonds issued by that county. Of this amount, about $27,000 was claimed to be due on funding and refunding bonds, and about $32,000 on courthouse and jail bonds. A jury was waived by written stipulation, and the case tried by the court, which filed written findings of fact, with its conclusions of law thereon. Judgment was entered in favor of the plaintiffs -for $59,757.43, with interest. Defendant brings error.</p> <p>The courthouse and jail bonds sued upon were issued under an act passed by the legislature of Texas February 22, 1873. The provisions of this act which are material to the present controversy are found in sections 1, 2, and 3, which are as follows:</p> <p>Section 1. Be it enacted by the legislature of the state of Texas: That J. T. Veal, J. Wilboum Young and John B. Ligón, be and are hereby appointed commissioners and trustees of the county of Marion, in the state of Texas, to procure grounds in a suitable location in the city of Jefferson, in the said county of Marion, upon which to erect a court house and jail for the use of said county, free of charge to said county. That said commissioners or any two of them may, after said grounds are secured, proceed as soon as practicable to cause said buildings to be’ erected for the use aforesaid, and to pay for the same with the bonds of said county as hereafter described, or to sell said bonds and pay for said buildings out of the proceeds arising from the sale of said bonds as to them may seem best.</p> <p>Sec. 2. That when said grounds are selected by said commissioners, and the sum ascertained to be necessary to pay for said buildings, said commissioners shall cause to he printed or engraved the bonds of said county, to become due and payable twenty years after the date thereof, to bear interest at the rate of eight per cent, per annum from the date of said bonds, and to have coupons attached to each of said bonds for each year’s interest thereon, to become payable to bearer on the 1st day of July of eacii year after the date of their issuance. The total amount of said bonds shall not exceed the sum of seventy-five thousand dollars, and they shall be issued in sums not loss than one hundred nor more than one thousand dollars each, which said bonds when so printed or engraved, as aforesaid, shall bo signed by the presiding justice of the peace of said county, and countersigned by the clerk of the district court of said county, and attested by the seal of said court, and shall then be numbered and registered by the said clerk in the records of said county and endorsed by any two of said commissioners, with a memorandum as follows, viz: “This bond is issued by the county of Marion, in the state of Texas, to pay for building a court house and jail for said county,” which said endorsement shall be dated and signed by said commissioners or any two of them, and without said endorsements said bonds shall be null and void. In case of a failure of any of the commissioners to accept this trust or to act as such, any two of said commissioners, may appoint a third one by recording said appointment in the records of the district court of said county, but if no two of them shall act as such then the county court shall appoint such number as may be required to fill the said commission.</p> <p>Sec. 8. That when said bonds are signed and before they are issued the county or police court of said county shall levy and thereafter cause to be collected under general laws of this state, a poll tax of fifty cents on each male citizen of said county over twenty-one years of age, and a tax on all the real and personal property of the said county to raise a sum sufficient to pay the annual interest on said bonds, and a sinking fund of two per cent, to meet the principal thereof, which sum when so collected shall be used for no other purpose than that for which the same is collected. That said tax shall be annually thereafter levied and collected and appropriated as aforesaid. That in the month of June of each year said county or police court shall advertise in a .newspaper published in said county, that they will on the 1st day of July of said year be ready to pay off and take up the amount of said bonds, which the funds on hand may meet, and if the holder or holders of any of said bonds shall present the same for payment in a sum sufficient to take up the funds on hand, said court shall purchase or pay off such an amount of the same as they may be able to do with the funds in their possession collected and set apart for this purpose, and if none of said bonds are presented the said court shall select by drawing from the whole number of outstanding bonds a number of the same of an amount equal to the sum of money then on hand, and shall publish in said newspaper for one month, that they are ready to pay off and take up the amount of bonds aforesaid, and shall designate the number of bonds which have been drawn as aforesaid, and notify holder or holders thereof to deliver the same for payment, and if the said bonds designated as aforesaid be not presented and paid off they shall cease to bear interest forever thereafter.</p> <p>The findings filed by the court were as follows:</p> <p>Findings of Fact.</p> <p>(a) Plaintiffs’ petition was filed in the United States circuit court at .Teller-son against defendant, Marion county, on the--day of June, 1892, upon a large number of overdue coupons or obligations, cut from three kinds of bonds issued and sold by defendant, to wit, coupons cut from what are known as ‘•Courthouse and jail bonds,” made June 30, 1873, bearing 8 per cent, interest, and to run twenty years from date, interest payable annually on July 1st of each year; also from coupons cut from a bond known as “Marion county funding bond,” issued Bíarch 1, 1880, to become due Blarch 1, 1900, and bearing 6 per cent, interest from date thereof, and payable Blarch 1st and September 1st of each year; also coupons cut from a bond known as “Blarion county refunding bond,” issued-day of May, A. D. 1882, and to fall due July 1, 1902, and bearing interest payable July 1st and January 1st of each year, (b) That said defendant, under pleas and answers, denied the constitutional and legal r.ight of Blarion county to issue and sell the courthouse and jail bonds; that there was a failure of consideration; that fraud entered into the transaction; and that the bonds and coupons were void in the hand of the plaintiffs; and, as to the funding bonds, that the same in part was the funding of county registered sopip, and that there was fraud in this transaction, and an overissue to the extent of $-, and these bonds were yoid to that extent, (c) Plaintiffs demurred, denied allegations of defendant, pleaded acquiescence and ratification by defendant,- and estoppel, (d) The court finds that the courthouse and jail bonds, to the extent of seventy-five thousand dollars, were issued by defendant county June 30, 1873, bearing 8 per cent, interest, payable annually on July 1st of each year, and these bonds were issued under and by virtue of an' aet of the legislature approved February 22, 1873; that the said bonds were made and executed in strict conformity with said legislative act dated February 22, 1873; that at the January term of the commissioners’ or county court of Marion county, 1874, an order was made and entered levying a tax to pay the interest and sinking fund of said bonds, and the taxes to pay the interest and sinking fund w’ere collected until after 1876; that the funding bond was made and executed by defendant county under and by virtue of an act of the legislature approved Blarch 25, 1879, and by orders of the commissioners’ court of Marion county made in pursuance of said law, which authorized the issue thereof, and levied the tax for interest and sinking fund, and the said bonds funded indebtedness that existed prior to April 18, 1876, and included in part overdue coupons of the courthouse and jail bonds; that the greater part of the debt funded consisted of registered scrip, the amount of which the commissioners’ court, on February 5, 1880, ascertained to be, and so declared in an order of said court that day, $39,767.86, bearing 8 per cent, interest thereon; that the refunding bond issued by Blarion county was executed under two acts of the legislature, one approved Blarch 25, 1879, and one the 6th day of April, 1881, and that the indebtedness refunded by said bonds had its inception and was created prior to April 18, 1876, and included in: paid coupons cut from the aforesaid courthouse and jail bonds; that the commissioners’ court made and entered proper orders authorizing the issuance of said bonds, the levy and collection of taxes for payment of the interest and sinking fund of the same, in pursuance of said laws; that said funding and refunding bonds were made and executed in conformity to the said legislative acts authorizing them and the orders of the commissioners’ court, (e) The court finds from the evidence that the three suits were filed against the defendant, Blarion county, in the United States circuit court prior to 1886, by W. N. Coler, Jr., one of the plaintiffs in this suit; and the causes of action in said suits were in part coupons cut from the said courthouse and jail bonds, also those cut from said funding and refunding bonds, and a part of registered scrip; and that, pending said suits, said defendant county made a settlement thereof, and by decrees and orders of the commissioners’ court of Biarion county made and entered September 11 and October 15, 1886, fully recognized the validity of said indebtedness, and paid off same in compromise by the execution and delivery of new bonds; and that the plaintiffs purchased said coupons sued on for value before maturity bona fide, and without notice of any infirmities therein; that, by the acts of defendant county in the levy, collection of taxes, and payment of interest on said several bonds, and the orders and decrees of the commissioners’ court in settlement of such bonded indebtedness from time to time, the defendant has acquiesced in, confirmed, and ratified the validity of all of several issues of bonds, (f) The court finds that the amount of principal and interest at 6 per cent, on all the coupons of the funding and refunding bonds introduced in evidence, figured up to September 28,1893, to be $27,391.39, with 6 per cent, interest thereon from that date; that the amount of principal and interest at 8 per cent, on all the coupons of the courthouse and jail bonds offered in evidence, up to September 28, 1893, is $32,366.04, with 8 per cent, interest thereon from date; and the judgment will be entered for the aggregate amount of $59,757.43, with 6 per cent, interest on $27,391.39, and with 8 per cent, interest on $32,366.04, from date.</p> <p>Findings of Law.</p> <p>(1) That the courthouse and jail bonds were issued under the constitution of 1869, and full power was conferred by it upon the legislature to authorize counties to issue bonds in such manner as prescribed by law. (2) That the act of February 22, 1873, prescribing the manner and conferring the power upon trustees and Marion county to issue the courthouse and jail bonds, was not in conflict with the constitution of 1869. See Sp. Laws 1873, p. 65, c. 9. (3) The power to create agents by counties to make contracts for building or repairing public buildings had existed since the act of December 29, 18-19. See Oidh. & W. Dig. art 275. (4) By section 20, art. 5, Const. 1869, the legislature was clothed with authority to grant such powers as it saw fit to the commissioner^’ court to make and issue bonds. This court became the creature of the iaw prescribed. The legislature could increase or diminish its authority, or even take away all other powers than such as the constitution had prescribed. The court, therefore, concludes that the legislature had the power and authority to pass the act of 22d February, 3873, and confer the power of making and issuing the courthouse and. jail bonds upon trustees appointed in the first instance by the legislature, and upon the officers of the county. The county had no power before this act to issue these bonds. Under this act, the power was granted under limitations to be exercised by the officers of the county and the trustees; and, the act having been pursued, the bonds were issued, and therefore legal and valid. (5) The court further finds that the funding and refunding bonds were made under the acts of March 25, 3879, and April 6, 1881, after the adoption of the constitution of April 18, 1876, but the indebtedness, funded and refunded, was created and existed prior to April 18, 1870; and that the rules of decision arising under the constitution of 1869 are applicable to these bonds; and that the same are legal and valid obligations. (6) 'fiie court further finds that, under the evidence, the defendant has acquiesced in and ratified the validity of the several issues of bonds in question; that for twenty years the defendant has recognized the courthouse and jail bonds as valid, enjoyed the proceeds, levied, collected, and paid taxes on the interest and sinking fund, funded and refunded, and settled the interest maturing thereon, and, by reason thereof, the defendant is estopped now from disputing their validity or repudiating their payment. (7) Finally, the law applicable to a bona fide holder, for value, of negotiable paper purchased before due, and without notice of any infirmities therein, entitles the plaintiffs to recover in this suit. Those obligations in the hands of plaintiffs, as innocent holders for value, had the right, to presume that the bonds were made in pursuance of the laws granting the power; and the defendant cannot be heard to question their validity in the hands of plaintiffs as such holders and owners. The court, therefore, finds the law applicable to the evidence to be with the plaintiffs, and entitles them to judgment, which is entered accordingly.</p>

<p>Muíacical Corporations—Liability for Improvements.</p> <p>The city of D. passed au ordinance providing for paving certain streets. In the clause relating to payment. It was provided that the street-railway company occupying A. street should pay such part of the cost of paving as was provided by the ordinance granting it the right of way, and that one-third of the remaining cost should he paid by the city and two-thirds by the abutting owners. Provision was made in regard to the manner of payment by the city and the property owners, but not by the railway company. The ordinance granting right of way to the railway company provided that such company should pave between ils rads and two feet outside thereof. A contract was ma.de, under the paving ordinance, between the city and a paving company, providing for payment by the city and the property owners of their shares of the cost, but making no provision for payment by the railway company. The city charter provided that the city should not he liable, under any circumstances, on an implied assumpsit. Held, that it did not appear that tl*e city had promised in any way to pay the paving company the cost of paving between and two feet outside the rails, and that it could not be held liable, on the ground of negligence, in not providing for collection from the railway company.</p>

<p>Actions fob Personal Injuries—Rehearing Denied. 12 G, O. Á, 574, 65 Fed. 196, Reamarme».</p>

<p>1. Negligence—Construction of Runway—Evidence of Custom.</p> <p>• In an action for injuries received by tripping over a wooden runway, built across a sidewalk, on which to carry materials for a building, the claim of plaintiff being that the runway was composed of two layers of two-inch plank, making its entire height four inches above the sidewalk, and that its sides arose therefrom perpendicularly, plaintiff, for the purpose of proving that the runway was not properly made, may show that the usual and ordinary way of constructing them was to hare the sides slope gradually to the sidewalk.</p> <p>2. Same—Opinion Evidence.</p> <p>In such case, where defendant claimed that the runway was composed of ceiling hoards seven-eighths of an inch thick, laid two deep, plaintiff, for the purpose of showing that the runway must have been more substantial, may ask an expert witness what effect it would have to run eight loads per day, weighing two tons each, over a runway composed of such boards, a witness for defendant having testified .that that was the number and weight of the loads driven over it daily.</p>

This was an action by Henry D. Cody against the Texas & Pacific Railway Company to recover damages for personal injuries sustained while attempting to cross defendant’s tracks on Jennings avenue, in the city of Ft. Worth, Tex. In the circuit court judgment was rendered for plaintiff, upon the verdict of a jury, in the sum of $7,500. Defendant brings error.

These were intervening petitions filed by Cassie Alberts, administratrix of George Alberts, deceased, and by Ida B. Beaulieu, administratrix of Silvio H. Beaulieu, deceased, in the suit brought by the Farmers’ Loan &• Trust Company against the Toledo, Ann Arbor & North Michigan Bailway Company and others, to recover damages for alleged negligence of the receiver and his agents and employés, resulting in the death of the petitioners’ intestates, respectively.

<p>Bells of Exceptions—Time of Filing—Expiration of Term.</p> <p>A bill of exceptions allowed and filed after the close of the term, without authority or any standing rule or consent of the parties, and not within the time specially allowed or any extension thereof, is impróvidently granted, and cannot be considered. U. S. v. Jones, 13 Sup. Ct. 840, 149 U. S. 262, followed.</p>

<p>'Appeal from the Circuit Court of the United States for the Northern Division of the Eastern District of Tennessee.</p> <p>This was a suit by the Central Trust Company of New York to foreclose a mortgage given by the Marietta & North Georgia Railway Company, with which, was consolidated a suit by V. E. McBee and others against the Central Trust Company and others to restrain the prosecution of the foreclosure suit and of other claims against the property on which they claimed liens, and praying for a sale and payment of their claims from the proceeds. All creditors were directed to file their claims in the consolidated cause, and numerous lien claimants accordingly filed intervening petitions. A motion to dismiss the bill of McBee et al. for want of jurisdiction was denied. 48 Fed. 243. A decree for sale and distribution was made, from which cross appeals were taken by the Central Trust Company and the lien claimants, and which was reversed on the Central Trust Company’s appeal. 16 U. S. App. 115, 6 C. C. A. 539, 57 Fed. 753. After further hearing in the circuit court a new decree was entered, from which both the Central Trust Company and some of the lien holders again appeal.</p> <p>This is a second appeal in this case. The opinion of the court on the former appeal is reported under the name of Central Trust Co. v. Bridges, 16 U. S. App. 115, 6 C. C. A. 539, 57 Fed. 753. The controversy relates to the priority of liens on a railroad running from Knoxville south towards Marietta, in Georgia, 118 miles, and known-at the time of its construction as the Knoxville Southern Railroad. The Marietta & North Georgia Railway Company of Georgia owned a narrow-gauge railroad running north from Marietta towards the North Carolina and Tennessee lines. Persons interested in its stock, especially R. M. Pulsifer and George R. Eager, conceived the plan of making it a standard-gauge road, and extending its line to Murphy, N. O., and thence to Knoxville, í’enn. Accordingly contracts were made between the railroad company and George R. Eager, by which the latter agreed to carry out the proposed improvement in Georgia as principal contractor, receiving his pay in first mortgage bonds of the company. The mortgage under which these bonds were issued contained a provision that they should be used to pay for the construction of the road, in Georgia a,nd Norm Carolina at not exceeding § ÍG,000 a mile, and in Tennessee at not exceeding §20,000 a mile. The mortgage was executed in 1887, and at that time the Marietta & North Georgia Railway Company had no authority to build or mortgage a railroad in Tennessee. About the same time, however, the same persons organized the Knoxville Southern Railroad Company to build and operate what was intended to be and was the Tennessee extension of the Georgia Company’s railroad. The Knoxville Company made a contract in 1887 or 1888 with a corporation of New Hampshire known as the North Georgia Construction Company as principal contractor to build the road in Tennessee. Eager was president, of this construction company, and a large owner of its stock. The city of Knoxville agreed to subscribe for §275,001) of the stock of the Knoxville Southern Railroad Comxiany on condition that the railroad should be completed in time to permit the running of trains from Marietta to Knoxville by August 13, 3890. Much work was done on. the Knoxville road during the year 1888, From the fall of that year until the spring of 1800 the work was substantially suspended. R. fií. Pulsifer, a large stockholder in the rail roa/l company and in the construction company, died late in 1888, and this seemed to stay the further prosecution of the work. The construction comps: ny, for sill the work it did, received its pay In bonds of the Marietta & North Georgia. Railway Company,, issued under the mortgage already referred to, although that company did not own the road being constructed, and had no authority to mortgage it. The construction company, in 1889, assigned to Gager all its rights under its contract, and all its liabilities, and in April, 1890, a contract was made between the Knoxville Southern Railroad. Company, acting by Arthur, its vice president, and George it. Eager, for the construction of ihe entire railroad. The contract was dated back to August, 3887, and was thus made doubtless to overreach the time during which the building luid proceeded under the contract of the North Georgia Construction Company. This contract was spread on the minutes of the meeting of the stockholders of the Knoxville Southern Railroad Company of May 29, 1800, and was ratified and approved. The contract provided that the Knoxville Company would mortgage its road to secure the bonds of any other company issued to Eager to pay him for the construction of the road. Accordingly, ai. a meeting of the stockholders of the Knoxville Company of July 14, 189Ü. the directors and officers were directed to execute a mortgage to the Central Trust Company to secure all the bonds of the Marietta & North Georgia Rail way Company issued to pay for the building of the Knoxville Southern Railroad not exceeding §20,000 a mile. The meeting at which the mortgage was authorized does not appear to have been advertised in the Knoxville, Nashville, and Memphis papers. Before August 13, 1890, trains were running from Marietta to Knoxville, and the subscription of the city of Knoxville became absolute, and. was paid in bonds of the city. In November, 1890, the Marietta & North Georgia Railway Company and the Knoxville Southern Railroad Company were consolidated, in accordance with the laws of Georgia and Tennessee, under the name of the former company.</p> <p>In the construction of the Knoxville Southern Railroad, with but one or two exceptions, all the claims of contractors and material men for work done or material furnished before 3890 were paid. When the road went into the hands of a receiver, in January, 1891, there were left unpaid upwards of §300,000 of claims by contractors and material men. Substantially all the contracts under which these claims arose were made after the execution of the contract between Eager and the Knoxville Company in April, 1890, and the work and materials were all furnished thereafter. In October, 1890, Hager became slow in his payments, and suits were begun by subcontractors. Many of these suits were prosecuted to judgment in the state courts of Tennessee against Eager as principal contractor and the railroad company as garnishee. In November, 1890, in a manner described in the opinion on the former appeal, Eager secured a judgment as principal contractor for $375,000, and subsequently assigned this judgment to S. B. Luttrell, trustee, for the benefit of all the subcontractors and material men to whom he was indebted. Of the men who did work or furnished materials for the construction of the railroad, McBee & Co., J. W. Wilson, W. McD. Burgin, W. B. Crenshaw, .T. H. Odell, James H. Moses, and George Bruster were the only lien claimants who did not take judgment against Eager as principal contractor and the railroad company as garnishee in the state courts. On January 12, 1891, the Central Trust Company filed its bill in the circuit court of the United States for the Northern district of Georgia against the Marietta & North Georgia Railway Company to foreclose the mortgage of 1887. The next day a similar and ancillary bill was filed against the same company in the court below, the circuit court of the United States for the Eastern district of Tennessee. The next day, McBee & Co., J. W. Wilson, and W. McD. Burgin filed a bill in the same court to establish their liens against the Knoxville Southern Railroad, to marshal the liens, and to sell the railroad. To this bill they made parties the Knoxville Southern Railroad Company, the Marietta & North Georgia Railway Company, and all the contractors, including Eager, and all the material men having claims against the road, so far as they knew them. They attacked the validity of the mortgages of 1887 and of 1890 and the consolidation. The foreclosure bill and that of McBee & Co. et al. were consolidated, and a receiver was appointed. It was ordered that the McBee bill bo treated as a general creditors’ bill, and that 'all persons having claims against the Knoxville Southern Railroad Company be brought in by due advertisement. Subsequently the Central Trust Company filed an amended bill, setting up the Knoxville Southern mortgage of 1S90, and praying foreclosure under that. The Central Trust Company and the two railroad companies filed answers to the McBee bill, in which they averred that the work for which liens were claimed had been done for George R. Eager, principal contractor, and not for the Knoxville Southern Railroad Company; and that, as nothing was due from the company to Eager, no lien could be asserted against the railroad. The contract relied on specifically was that dated August 20, 1887, and actually executed in April, 1890. . Thus was evolved a controversy, which was referred to a master to hear and determine, between the bondholders on one side and the'contractors and lien holders on the other, and in which the main question was whether the work done and material furnished by the lien claimants had been done for George R. Eager, principal contractor, or for the Knoxville Southern Railroad Company. The master reported that, although Eager represented himself to be a contractor, and actually did the work under a contract, his contracts were nevertheless the contracts of the railroad company, because he was the largest stockholder of the company, and the directors were his tools and employes, quick to do his bidding. This view was confirmed by the circuit court, and all the claims were decreed to be liens against the road as principal contractor’s liens, and • in no way dependent on or limited by the amount owing, if anything, from the railroad company to Eager. In its decision on the former appeal this court differed from the court below and the master, and held that Eager was a principal contractor with the railroad company under the contract dated August 20, 1887, and that all who had taken judgment against him as principal contractor were in fact subcontractors, and could only assert liens as such against the railroad company to the extent of- the company’s indebtedness to him. This court also held that Eager’s judgment against the Knoxville Company was fraudulently obtained, and that it did not furnish even prima facie evidence of the amount due him. The case was accordingly remanded to the circuit court for two purposes: First, for the hearing and determination on further evidence of the amount due from the Knoxville Southern Railroad Company to Eager; and, second, for the hearing and determination on further evidence of the question whether McBee •& Co., J. W. Wilson, W. McD. Burgin, W. B. Crenshaw, J. H. Odell, James H. Moses, and George Bruster had contracted directly with the railroad company or with Eager. By consent of counsel, the claim of Kellar & Findlay to the extent of about $1,800, though it had been included in a judgment for a much larger amount against Eager as principal contractor, was resubmitted to the master for decision as to whether this part of their claim was not properly to be treated as a direct debt of the railroad company. The master reported that the railroad company was not indebted to Eager at all, and that of all the persons whose claims had been referred to him for determination only McBee & Co., and they only to the extent of half their claim, had a valid debt and lien directly against the railroad company. The court below sustained the exceptions to the master’s report, and held that all the claimants above- named were principal contractors with the railroad company, and that the railroad company was indebted to Eager as follows:</p> <p>Unissued stock............................................ .$103,020 00</p> <p>Interest thereon from Jan. 1, 1880, to date of filing bill in this cause .................................................... ' 6,438 75</p> <p>On account of permanent line around the W....... 55,145 04</p> <p>On account of cattle guards, water tanks, and stock gaps..... 9,850 00</p> <p>Interest from Aug. 13, 1890, to Jan. 16, ’91............... 245 88</p> <p>On account of slides....................................... 14,142 90</p> <p>On account of expenses of engineering...................... 51,072 82</p> <p>Interest from Aug. 13, ’90, to Jan. 16, ’91.................... 1,276 80</p> <p>On account of Goodlin lot.................................. 293 01</p> <p>Interest from Aug. 13, ’90, to Jan. 16, ’91.................... 7 30</p> <p>On account of steam shovel................................ 5,100 00</p> <p>Interest from Aug. .13, ’90, to Jan. 16, ’91..................... _ 127 50</p> <p>_ Avv O AAA11TVÍ- A-p A-i7-fm AO A-A OT/1/A 4 /ll' O Oníl 44\7'?> At\ Aílü ISIS</p> <p>\_/l± CUJCNi UAIC OI t?A.ULCb lAJUi OiUG l.i- AGk3« tt.ll.G4. Ji. v/v</p> <p>Interest from Aug. 13, 1890, to Jan. ICtü, '91................. 1.125 00</p> <p>Making a total of.................................... .$292,855 00</p> <p>All said items were allowed as proper credits in favor of said George R. Eager, and against the Knoxville Southern Railroad Company; but against said amounts it was adjudged that the said Knoxville Southern Railroad Company was entitled to credits as follows:</p> <p>For completion of the bridge over Little Tennessee river ......................................... .$5,500 00</p> <p>For strengthening trestle at the W............... 2,500 00</p> <p>For rights of way which are yet unpaid for, and adjudged in this proceeding.................... 2,142 93</p> <p>f 10,142 98</p> <p>Leaving a balance of................................. $282,712 07</p> <p>Due to George It. Eager, but from the foregoing sum there was deducted the sum of................................ 27,834 67</p> <p>Being- the amount above adjudged to be due to the said Y. E. McBee & Co., James M. Wilson, Wm. McD. Bui'gin, and Kellar & Findlay, and leaving the final balance due to the said George R. Eager from the Knoxville Southern Railroad of................................................. $254,877 40</p> <p>The decree of the court was appealed from by the Central Trust Company, and many errors were assigned. Gross appeals were taken by the subcontractors from the decree on the ground that the amount adjudged to be. owing by the Knoxville Southern Railroad Company to Eager was too small. Another question presented by the record on the Trust Company's appeal is whether, under the railroad tax law of Tennessee, the county and state are entitled to collect 10 per cent, penalty upon the delinquent taxes due from the railroad company.</p> <p>The contract executed in April, 1890, and dated August 20, 1887, between Eager and the Knoxville Southern Railroad Company contained, among other reeitals, this: “Whereas, the Knoxville Southern Railroad Company is desirous of contracting for the making and construction of its railroad, and. is willing to that end, in order to accomplish the purpose of its organization, to pledge and employ in the payment therefor all of its property and franchises, and whereas George R. Eager is able and willing to enter into contract for the construction of railroads and other works.” The first clause of the contract provided that:- “The party of the second part agrees to build and complete tlie railroad of the party of the first part, and the party of the first part agrees that the party of the second part shall and may build said railroad, commencing at a point on the south side of the Tennessee river, where the road of the Knoxville Belt Railroad Company and the said road connects, within one mile of the city limits of Knoxville, in the state of Tennessee, to a connection with the Marietta and North Georgia near where the Hiawassee river crosses the North Carolina and Georgia state line, in accordance with the specifications hereto annexed, upon such route as has been or may hereafter be designated by the party of the first part. Second. The party of the second part agrees to furnish the money to pay for right of way, depot grounds, except the terminals at Knoxville, which it may be necessary for the first party to acquire for the convenient uses and operation of the railroad herein agreed to be constructed, and to pay the expenses of all legal or other proceedings that may be necessary therefor. And it is mutually agreed that all works, materials, and plants heretofore constructed, equipped, and provided, either by the party of the first part or by the party of the second part, now in use in or about the construction or operation of the railroad of the party of the first part, as and shall be deemed for all purposes of this agreement, as works, material, or plants heretofore constructed,, equipped, or provided under agreement by the party of the second part, provided that the party of the second part shall be at liberty to replace any or all of such works, material, or plant with others conforming to the terms of this agreement, and thereupon such works, material, or plant so replaced by other shall be and remain the property of the party of the second part Third. The party of the first part agrees, whenever requested to do so by the party of the second part, to survey and lay out its road or roads as hereinbefore agreed to be constructed, and to acquire by purchase or condemnation or otherwise such rights of way, depot grounds, and other real estate as may be necessary or convenient for the construction, use, or operation of the said road or roads.” By the fourth clause the railroad company agreed to execute a mortgage to “secure the payment of bonds of the party of the first part, or to secure the payment of bonds of any other company taken or used by the said Geo. R. Eager as a part of his compensation for the building of the road of the party of the first part, or any portion thereof, under this or any contract to the amount of $20,000 per mile for each and every mile of constructed road, and to make and execute any other or further deeds, conveyances, or mortgages or instruments as counsel learned in the law selected by said Eager may advise as necessary or proper to secure any first or other mortgage bonds issued to aid in the construction or equipment of said road, or to pay any expenses connected therewith, or with the management or operation of said road, or with the marketing of said securities.” The fifth paragraph provided that: “The party of the first part shall pay to the party of the second part, for the said railroad constructed and to be hereafter constructed by the party of the second part as aforesaid, all the first mortgage bonds of the party of the first part to be issued under or secured by the said mortgage, namely, $20,000 per mile, also full-paid shares of the capital stock of the party of the first part to the amount of $20,000 per mile of said railroad, excepting that there shall be deducted from the total amount of said capital stock such amount thereof as shall be required to be issued to fulfill the terms of the conditional subscription by the city of Knoxville, or any other subscription that may be made to said railroad company by any county or community. The stock herein mentioned shall be paid whenever and as each mile of the road is graded, and the party of the second part shall be entitled to demand, and the party of the first part agrees to deliver to the second party, full-paid capital stock to the amount of $20,000 per mile as each mile is graded. The bonds herein mentioned shall be paid whenever each mile of road is built and ready for the operation of trains.” The sixth paragraph of the contract was an assignment by the railroad company of all the stock subscriptions to Eager, and-of all the funds in its possession at that time, in further payment of the work and services to be performed. The seventh paragraph provided that the entire railroad contracted to be built should be fully constructed and furnished in accordance with the stipulations, with all the appurtenances therein contractcd for, to the party of the first part, before the 13th day of August, 1890. “But the party of the second part shall have the right at any time to deliver to the party of the first part any portion oí the railroad or railroads as completed, and, as soon as any portion of the road or roads herein contracted to he built shall be delivered to the party of the first part, the same shall be operated by the said party of the first part, through its officers and agents, to he appointed with the consent of the party of the second part, and the said party of the second part shall receive all the earnings and shall pay all the expenses of operating such completed portion until the entire construction and delivery of the road under the provisions of this agreement."</p>

<p>Customs Duties—Classification — Burden of Proof—Gallein and CowruLINE.</p> <p>Certain imports of gallein (being a dyestuff producing blue and purple shades, and consisting of two parts pyrogallic acid, which is derived from nutgalls or other vegetable matter, and one part phthalio acid, which is derived from coal tar) and of coeruline (which produces green shades, and Is made by boiling gallein in sulphuric acid) were classified by the collector as coal-tar colors or dyes not specially provided for, under paragraph 18 of the act of October 1, 1890. Held, the evidence being contradictory, that the importer had not sustained the burden resting upon him to overthrow the correctness of the collector’s classification, and show that the dyestuffs were dutiable, as claimed in his protest, under paragraph 61, as “other paints and colors, * * * including lakes, crayons, * * * not specially provided for.”</p>

<p>L Immigration—Contract Labor Acts—To Whom Applicable.</p> <p>The statutes of the United States relating to the exclusion of contract laborers, including the act of March 3, 1891, making the decision of the immigration officers final as to the right of such laborers to land, are directed solely against alien immigrants, not against alien residents returning after a temporary absence; and the courts therefore have power, Upon habeas corpus, to inquire whether one who is refused admission to the countiy by the immigration officers is or is not an immigrant, and so within the jurisdiction of such officers.</p> <p>2. Same—Who Are Immigrants.</p> <p>An unmarried man, who has immigrated to the United States in 1892, with the intention of making his home there; has remained about two years, working at his trade; and then, being taken ill, has returned to his native countiy, remained about ten months, doing no work; and then, in 1895, returns to the United States,—is not an immigrant on his return, in 1895.</p>

<p>1. Patents—Inekingumbut—Impbovjem jonts .</p> <p>Where the whole function of a patented device is performed by the same means and in the same way, the result is an infringement, although there is an additional function, which may be an improvement on the patent.</p> <p>%. Same—Anticipation.</p> <p>A patent is not anticipated by a device which accomplishes the same thing, but by a different method, or which, while accomplishing similar ends, is not adapted to the particular work performed by the patented machine.</p> <p>3. Same -Machine bob Setting ant) Feeding Lacing Hooks.</p> <p>The tippler patent. No. 255,076, for a machine for feeding and setting lacing hooks, held not anticipated as to claims 1, 3, 6, and 7; and held fur ther, that the same are infringed by a machine made in accordance with the Smith patent, No. 809,166.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>This is a suit by a hill in equity filed in the court below against the Michigan Central Railroad Company by the appellee, the Consolidated Car-Heating Company, to restrain the infringement by the railroad company of rights secured to iiilmore D. Cody, as inventor, and to John W. Hayes, as assignee of a part interest, by letters patent No. 329,017, for improvements in steam car heaters, granted October 27, 1885, upon an application filed August 11; 1884. ■ The allegations of the bill are, in substance, that Cody was the first inventor of such improvements; that a patent was issued therefor on the 27th day of October, 1885, to him and to Hayes, to whom he had assigned a half interest in said invention; that the entire interest has come, by mesne assignments, to complainant; that the alleged infringement has, since the date of the patent, been carried on by the defendant, in the using, and selling to others to use, car heaters embodying the same principles of construction and operation as those described in the patent; and that the complainant had reason to fear the continued use and selling of such car heaters; whereupon the complainant prays for an injunction, and for an accounting for profits, and damages. The answer admits the issuance of the patent, and at the time stated in the bill, but denies that Cody was the first inventor of the improvements therein mentioned, and alleges that they were fully shown and patented in letters patent No. 201,061, issued to W. Smith March 5,1875 (car heater); No. 212,375, issued to S. W. Graydon February 18, 1879 (car heater); No. 265,284, issued to D. D. & J. H. Sewall October 3, 1882 (car heater); No. 284,250, issued to N. Slingland September 4, 1883 (car heater); No. 126,343, issued to G. F. Stone April 30, 1872 (car heater). The answer also sets up the prior public use, for more than two years before Cody’s application for the patent, by persons and at places enumerated,— among them, by William Martin, at Dunkirk, N. Y.; that defendant uses a system and apparatus for car heating obtained from the Martin Anti-Fire Heater Company, which was patented to the said William Martin October 25, 1887; and that, when Cody made the application for his patent, he knew of the invention by Martin of the device and system covered by Martin’s patent. The answer denies the infringement of the Cody patent: A replication to this answer was filed, and proofs were taken.</p> <p>Three claims are shown in the Cody patent, as follows: (1) A system of piping for heating railway passenger cars, consisting of a supply pipe extending longitudinally under the central portion of a car, communicating with steam drums or coils inclosed in chambers under the floor of such car, in combination with pipes extending from the central portion of said supply pipe to the upper courses of coils of pipe along the sides of such car, and escape pipes from the central portion of the lower courses of said coils, communicating with and draining into a steam trap under the floor of the car, substantially as and for the purpose set forth. (2) In a railway car heater, side coils, H, IT, on either side of the ear, substantially as shown, in combination with the continuous steam-supply pipe, A, under the body of the car, between the upper courses of the side coils, H, H, and the supply pipe, A, an automatic steam trap, H, under the central portion of the car, and the intermediate connections between the lower courses of the side coils, H, H, and the steam trap, M, substantially as and for the purpose set forth. (3) The combination, in á railway car heater, of a steam-supply pipe, A, extending under the body of the car, from end to end thereof, and communicating near each end of the car with steam drams, B, B, in chambers under the floor of the car, and communicating near the center of the car with the upper courses of both of the side coils, H, H, with an automatic steam trap, M, communicating near the center of the ear with the lower courses of both of the side coils, H, H, substantially as and for the purpose set forth. These claims indicate sufficiently for the purposes of the opinion the general .form of the structure and system of the patent. It may be added that it contemplated the connecting of the ends of the supply pipe, and taking steam from the locomotive under all the cars in the train. The principal controversy in this suit is founded on the second claim, and the evidence taken by the parties relates largely to the question whether Cody or Martin first invented the system of car heating covered by the complainant’s patent. Cody was in the employment of Martin’s company, in the business of heating cars by steam, and in perfecting a system of piping adapted to that purpose, at the time when it is claimed for Cody that he made his invention; and the defendant claims that Cody took the invention from Martin, and afterwards patented it. The complainant put in evidence a certified copy of the file wrapper and contents, «bowing the proceedings in the patent office pending Cody’s application. The nature of those proceedings is slated in the opinion following. The court below decreed for the complainant, and the defendant brings the case here on appeal.</p>

<p>1. Monopolies and Combinations — Control op Patents — Public Policy-Equity.</p> <p>A corporation organized for the purpose of securing assignments of all patents relating to “spring-tooth harrows,” to grant licenses to the assignors to use the patents upon payment of a royalty, to fix and regulate the price at which such harrows shall be sold, and to take charge of all litigation, and prosecute all infringements of such^patents, is an illegal combination, whose purposes are contrary to public policy, and which a court of equity should not aid by entertaining infringement suits brought in pursuance thereof.</p> <p>3, Patents—Invention—Prior Art—Spring-Tooth Harrows.</p> <p>The Reed patent, No. 201,946, for improvements in spring-tooth harrows, consisting substantially in the adjustment of a curved tooth to a curved seat on the harrow frame, and fastened thereto by a curved clip having biting edges, held valid, in deference to prior decisions sustaining the same, although the court was of opinion that, in view of the prior state of the art, no invention was displayed; but held, further, that the patent should be limited to the very terms of the specifications and claims, and that it is therefore not infringed by harrows made in accordance with the Miller patent, No. 444,248.</p>

<p>Patents—Limitation—Prior Art—Infringement.</p> <p>The Toepfer patent (No. 226.890) for an improvement in malt kilns construed, and, upon reference both to the prior state of the art and an amendment in the patent office, held entitled only to a narrow construction; and held, further, that it was not infringed by a machine made in accordance with the Giesler patent (No. 483,781). 31 Fed. 913, followed and applied.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of New York.</p> <p>This was an action by H. Julius Smith against James Macbeth for infringement of a patent relating to magneto-electric machines. The circuit court dismissed the bill on the ground that there was no infringement in the use of defendant’s machine. 64 Fed. 797. Complainant appealed.</p>

This was a bill by the Drainage Oons true lion Company against the Englewood Sewer Company ior infringement of a patent relating to sewage and drainage of towns. Defendant demurred to the bill on the ground that the patent, ou its face, disclosed no patentable invention.

This was an application for a preliminary injunction to restrain infringement of the reissued letters patent No. 11,443, dated September 25, 1894, to William B. Page, for an improvement in pneumatic testers for cans.

<p>Patents—-Limitation of Claims—Infringement—Bail Ear for Pails.</p> <p>The claim of the McDonnell patent, No. 194,476, for a bail ear for pails, if valid at all, is limited, both by its language and by the prior state of the art, to an oar in which the lug and the spring are not separated entities, but constitute one integral thing, and hence is not infringed by a device in which the spring is not attached to the groove of the bail, but passes through and extends below it, and is there fastened to the body of the pail itself.</p>

This was a libel by Louis H. Hein, charterer of the Norwegian steamship Jarl, against the ship Beaconsfield, to recover compensation for alleged salvage services.

<p>1. Shipping—Omission of Cargo from Manifest—Penalty.</p> <p>A propeller wheel and a case of ferrules were laden upon a steamship at New Orleans for export to Truxillo, Honduras, but the ship instead of going to Truxillo went into dry dock on the opposite side of the river, where the wheel and ferrules were placed upon the vessel as part of her machinery and motive power, and still remain there. The trip to Truxillo was abandoned, and the vessel afterwards cleared for Da Ceiba, no mention being made in her manifest of the propeller wheel and ferrules. Held, that this omission was proper, and the ship was not liable for the penalty of $500 prescribed by Rev. St. § 4197, for omitting the cargo from the manifest.</p> <p>8. Customs Duties—Withdrawal for Export — Breach of Export Bond-Amount Recoverable.</p> <p>Rev. St. § 2979, requires an importer, on withdrawing goods for reexport, to give to the collector “satisfactory security” that the merchandise shall be landed out of the United States. The treasury department regulations (article 587) provide that, in cases of withdrawal for export, the exporter shall give bond “with satisfactory security in a penal suin equal to double the amount of the estimated duty on the goods.” Held', that an export bond given, in the sum of $1,000, without containing any reference to the amount of estimated duties on the goods withdrawn, was valid; and that the government was entitled, upon breach of the condition, to recover the whole amount of the bond, and was not limited to a judgment for double the amount of duties as subsequently estimated. Speake v. U. S., 9 Cranch, 28, applied.</p>

This was a libel of information filed by the United States against the schooner Javirena (Severo Gonzales, claimant) for violation of the customs laws. In the district court a decree was entered condemning the vessel, in the sum of $400, for violating the provisions of Rev. St. § 2773. The claimant appealed.

<p>Collision — Ferry Boat with Lighter at Pier — Weight op Evidence on Appeal.</p>

This was a libel by William Albertson and others, owners of the schooner Ella Snedeker, against the steam tug P. I. Nevius (Win-field S. Day, claimant) and the schooner Wide Awake (Thomas Mad-dock and others, claimants), to recover damages for a collision. The circuit court held the tug solely liable, and accordingly entered a decree against her, and dismissing the libel as against the Wide Awake. The claimant of the tug appealed.

Action by one Butler against one Sliafer and others for possession of certain homestead land, and for an injunction. Defendants demurred on the ground that no federal question was involved, and the court was therefore without jurisdiction.

<p>1. Writ of Error—Review ■—Judgment in Contempt Proceedings—Violation of Injunction against Infringement of Patent.</p> <p>Aii order imposing a fine for contempt for violation of an injunction against infringing a patent is to be regarded, when the contempt proceedings are had upon a motion entirely disconnected from the proceedings upon final hearing’, as a judgment in a criminal case, which is reviewable upon writ of error, and not by an appeal. 11 O. C, A. 550, 63 Fed. 1001, reaffirmed; New Orleans v. Steamship Co., 20 Wall. 33 Í, followed; Worden v. Seaxls, 7 Sup. Ct 814, 121 U. S. 14, distinguished.</p> <p>2„ Patents—'Violation of Injunction—Sale of Patented Articles in Can ADA.</p> <p>After the granting of a preliminary injunction, defendants, without any previous negotiations for a sale, shipped patented articles, made by them before the granting of the injunction, to Canada, and afterwards sold them to a dealer there, to be used in Canada. Held that, as Canada was a territory in which the patentee had no exclusive right, the sale there was not a violation, of the injunction.</p>

This was a suit by the Boston Safe-Deposit & Trust Company against the American Rapid Telegraph Company for the foreclosure of a mortgage, and the appointment of a receiver and other relief. The cause was heard upon exceptions to the master’s report upon the settlements of the accounts of the receiver.

Sait by Deverenx Toler and others against the East Tennessee; Virginia & Georgia Railway Company a.nd others, for foreclosure of a mortgage. The complainant Toler is the holder of 5 bonds, of $1,000 each, Issued by the Bast Tennessee, Virginia & Georgia Railway Company, the Richmond & Danville Railroad Company joining as co-obligor.

This was a suit by John W. Flora against John L. Stettinius, trustee under the will of Nicholas Longworth, Sr., and Larz Anderson ánd others, devisees of Joseph Longworth, for an accounting. The defendants excepted to a part of the bill for scandal and impertinency.

This was a suit by J. J. Robinson, trustee, against the Alabama & Georgia Manufacturing Company, the Huguley Manufacturing Company, and William T. Huguley, to foreclose a trust deed given by the first-named company to secure an issue of bonds. The property covered by the deed was, at the time the suit was brought, owned by the Huguley Manufacturing Company, which had acquired it at a judicial sale under proceedings in a state court, subject to the mortgage above referred to.

This was a suit in equity by the Illinois Trust & Savings Bank . against the Arkansas City Water Company and Arkansas City for the foreclosure of a trust deed, and an accounting as to certain bonds secured thereby, which were issued by the defendant water company.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>This was a petition by Francis G. King against George Bun to, Thomas E. Pharo, and John Kowen, as members of the hoard of county commissioners of Grand county, for a peremptory mandamus compelling the respondents to levy a tax to pay a judgment against the county held by the petitioner. The circuit court issued the writ. Respondents bring error.</p> <p>Francis G. King, the defendant in error, filed in the circuit court of the United States for the district of Colorado his petition against George Bunto, Thomas hi. Pharo, and John Kowen, as members of the board of county, commissioners of Grand county, Colo., plaintiffs in error, alleging that the petitioner, on the 25th day of July, 1891, recovered a judgment in the circuit court of the United States for the district of Colorado, against the county of Grand, for the sum of $6,583 and costs of suit, taxed at $22.95; “that, by the laws of the state of Colorado as they now exist, the said defendants, acting as the board of county commissioners of the county of Grand, have the power and authority, and it is their duty, upon request, to levy or cause to he levied and assessed a tax upon all taxable property in the said county of Grand, sufficient to pay the said judgment, interest, and costs in whole or any part thereof, and to levy such tax or a tax for that purpose from year to year as may he necessary to pay the full amount thereof, together with the interest and costs.” The prayer of the petition is “that an alternative writ of mandamus may issue out of and under the seal of this honorable court compelling the said defendants, and each of them, to levy a tax sufficient to pay said judgment, interest and costs, not exceeding the limitation allowed by the statutes in such ca.ses made and provided on the valuation of assessed property for the year 1893, and to make such levy when the annual tax levy for the year 1893 is made, or to show cause before this honorable court, on some day to be fixed and in said writ stated, why they should not make such levy; and that, upon return of the said alternative writ of mandamus, the said defendants he required to answer the allegations in this petition contained; and that, upon a final trial or hearing herein, such writ be made peremptory, and a judgment entered in this court against the said defendants, commanding them, and each of them, to make such levy for the said purposes.” The defendants were served with a copy of tire petition, which took the place of the alternative writ, and appeared and demurred thereto, which demurrer was overruled. Thereupon the defendants answered, denying that it was their duty under the laws of the state to levy the tax upon the property of the county sufficient to pay the plaintiff’s judgment in whole or in part, or to levy a tax for that purpose from year to year or at all. The answer avers that the county is “practically insolvent”; sets out the causes of its insolvency and poverty, and the utter inability of the county to collect, or the taxpayers to pay, taxes in excess of the amount required to pay the ordinary and necessary current expenses of the county; and concludes with this statement: “In view of ail which facts, and with careful consideration of all the interests intrusted to their charge, the defendant, the said board of county commissioners of the said county of Grand, believe it to be inexpedient to levy and impossible to collect, in addition to the state and school district taxes, a tax of more than twenty mills on each dollar of valuation, which said tax, since the institution of this action, has been determined upon by the order of this defendant, and has been divided as follows: For road purposes, three mills; for school purposes, four mills; for the general county fund, ten mills; and for the payment of outstanding indebtedness, three mills. That the said last-mentioned tax, when collected, will be so appropriated and paid to the several creditors of the county as the law shall direct, and as the exigencies of the situation and the equities of the creditors may then seem to require.” The case coming on to be heard upon the petition and answer thereto, the court rendered the following judgment: “It is ordered that a peremptory writ of mandamus issue out of this court, directed to the said board of county commissioners of the county of Grand, commanding and enjoining the said board to levy a tax of .not less than three mills, for. the fiscal year ending November 30, 1893, for the purpose of paying the judgment entered in the above-entitled cause, and the cost and interest thereon accruing, including the costs of this proceeding to obtain a writ of mandamus. And it is further ordered that the said defendants, the board of county commissioners of Grand county, also make a levy of not less’than three mills on the assessed value of property in said county for each and every year hereafter until the full amount of said judgment, interest, and costs has been paid, or until the further order of this court in the premises; and that, upon the neglect or refusal of the said board of county commissioners in any year hereafter until said judgment, interest, and costs are fully paid and discharged, to levy a tax of not less than three 'mills to pay on said judgment, the clerk of this court shall, at the request of said plaintiff, issue a peremptory writ directed to said board, commanding the said board to make such levy for the year for .which such application was made,”—and afterwards issued a peremptory writ of mandamus, the material part of which reads as follows: “Now, therefore, we, being willing that full and speedy justice should be done in the premises, do hereby command you, the said board of county commissioners of the county of Grand, to levy a tax of not less than three mills on the assessed value of property in said county, for the fiscal year ending November 30, 1893, for the purpose of paying the judgment entered in the above-entitled cause, and the cost and interest thereon accruing, including the costs of this proceeding to obtain a writ of mandamus; and that in each year hereafter, until full satisfaction of said judgment, with interest thereon, and the costs aforesaid, you levy, assess, and collect the same tax of not less than three mills on the assessed value of property in said county; and that you pay said’judgment, interest, and costs in full, lest complaint shall again come to us by your defaults.”</p>

the District of New Jersey. This was an action by Thomas Ashley against the Delaware, Lackawanna & Western Railroad Company to recover damages for personal injuries. The plaintiff recovered a judgment in the circiut court. Defendant brings error. Affirmed.

This was an action by W. K. Barrett against the Texas & Pacific Bailway Company, to recover damages for personal injuries. The plaintiff' recovered a judgment in the circuit court for $3,800. Defendant brings error.

This was an intervening petition filed by John E. Hornsby in the foreclosure suit of the Mercantile Trust Company against^ the Missouri, Kansas & Texas Railway Company, seeking to recover for personal injuries from George A. Eddy and Harrison G. Cross, the receivers appointed in the foreclosure suit.

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

<p>.1. Contracts—Measure of Damasks.</p> <p>The N. Ins. Co., a corporation of Wisconsin, was negotiating for a license from the insurance department of Missouri to do business in that state. While such negotiations were pending, it made a contract with plaintiff to employ him as its general agent in Missouri and certain other states, when its license had been obtained. Such contract was to be terminable by either party on 30 days’ notice. There was considerable delay in securing the license from the insurance department, and, two months after the making of the contract, plaintiff sued the N. Co. for damages, claiming a breach of the contract by its failure to prosecute with due diligence its application for license. Upon the trial, the court instructed the jury that they could only allow such sum as damages as would be a fair compensation to plaintiff for the reasonable value of his services from the date when the N. Co., by reasonable efforts, might have obtained its license, to the time when the action was brought. Held, that the plaintiff was not entitled to any more ample measure of damages.</p> <p>3. Same—Termination.</p> <p>Held, further, that as the institution of plaintiff’s suit was either an •acceptance of a termination of the contract by defendant, or a declaration of plaintiff’s purpose to terminate it; plaintiff was not entitled to damages beyond the commencement of his suit.</p> <p>8. Same—Breach.</p> <p>It seems that the plaintiff was not entitled to claim that there had been a breach of the entire contract, by reason of the defendant’s renunciation or inability to perform.</p>

<p>This was a suit by the Buena Vista Petroleum Company against the Tulare Oil & Mining Company and others to quiet complainant’s title to certain lands. The complainant excepted to the answer of some of the defendants.</p>

<p>Habeas Corpus—Conflicting State and Federal Jurisdiction—Comity.</p> <p>A person under indictment for crime in Connecticut, wlio has been extradited from Massachusetts, will not be discharged on habeas corpus by the federal courts on the ground that the indictment is invalid, or that petitioner was not a fugitive from justice, until such questions have been first passed on by the state court</p>

This was an application by Thomas Irwin & Sons, importers, 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 imports. The circuit court reversed the decision of the board, and affirmed that of the collector. 62 Fed. 150. The importers appeal.

This was an application by La Manna, Azema & Farnan, importers of certain sardines in boxes, 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 gaid merchandise. The circuit court affirmed the decision of the board, and the importers appealed.

<p>This was a bill by the Enterprise Manufacturing Company of Pennsylvania against Levi T. Snow and others for infringement of a patent.</p>

This was a bill in equity by Edwin Horton and Oliver W. Horton against the Jensen Can-Pilling Machine Company, Mathias Jensen, and John Pox, for infringement of certain patents. The circuit court dismissed the bill, as to said Pox, and granted an injunction against the remaining defendants. The latter appeal.

This was a bill by the S. F. Heath Cycle Company against Thomas? Hay and V. B. Willits, copartners as Hay & Willits, for alleged infringement of a patent: for inflating pneumatic tires.

<p>1. Maritime LrBsrs—DrsTRiBTJTiox' of Fmsr>—Lijmttatxox of Ltabtuty.</p> <p>Holders of maritime liens of the same class aro entitled, especially in proceedings for limitation of liability, to pro rata distribution, without regard to the dates of issuing process or obtaining decrees, unless their rights have been forfeited.</p> <p>2. Same—Forfeiture by Laches.</p> <p>Where the owner of tows' lost by a tug invited the insurer of their cargoes to join with him in a suit against the tug, and the insurer refused to do so, but, after the tug’s liability had been established by a decree, then filed a separate libel, held, that it had waived its right to share pro rata with the original libelant, and was only entitled to the surplus, if any, after his decree was satisfied. Woodworth v. Insurance Co., 5 Wall. 87, followed.</p>

This was a libel by the McG-raw Transportation Company against the propeller Spokane for salvage. This libel was filed by the owner of the propeller City of Venice for salvage services in releasing from peril on Lake Michigan the propeller Spokane and her cargo of general merchandise, and towing to the port of Milwaukee for repairs. The City of Venice was a freighting steamer, registering 1,771 tons, and laden with coal, bound for Chicago.

<p>30 Carriers—Termination of Carriage- Character of Liability.</p> <p>In November, 1893, a cargo of corn was shipped on a schooner at Chicago, to be carried to Buffalo, the bill of lading providing that the charge for freight should include free storage in the vessel at Buffalo until April 1, 189-1. On arrival at Buffalo, the cargo was inspected and found in good order. Thereafter the vessel remained moored at a wharf, in charge of the captain. During the winter, in consequence of an unusually low tide, the vessel grounded, and was thereby strained and caused to leak, whereby the cargo was damaged. Held, that the liability of the owner of the vessel, as carrier, ceased on her arrival at Buffalo, and thereafter his liability was that of a warehouseman only.</p> <p>3, Admiralty—Jurisdiction— Contract for Storage on Yessel.</p> <p>Held, further, that the water-borne character of the contract ceased on the arrival of the vessel at Buffalo, and the admiralty had no jurisdiction of the claim for damages to the cargo while lying- in the vessel as a mere storehouse.</p> <p>8. Shipping—Harter Act.</p> <p>It seems that, even if the contract were maritime, the vessel would be relieved of liability under the Harter Act (Laws 1893, c. 105), the vessel having been properly manned and equipped, and the fault, if any, having been in the management of the vessel during the winter.</p>

<p>1. Construction of Contract—Sale of Vessel—When Title Passes—Payments during Construction.</p> <p>The rule in this country (contrary to that in England) is that under a contract for the sale of a vessel, to he paid for as the work progresses, the title remains in the seller until delivery, in the absence of any provision indicating an opposite intent; but the question is one of intention, purely.</p> <p>2. Same.</p> <p>Where a vessel was to be built under a contract providing for payment by installments as the work progressed, held, that the question whether title passed immediately to the purchasers was not determined in the negative by the fact that the contract gave them a right, in certain contingencies, to reject the vessel after completion and recover the monejr paid; nor in the affirmative by the fact that part of the earlier installments was to he paid in bonds of the purchasing company, secured by mortgage, which was to include the vessel herself, together with other specified property.</p> <p>8. Same—Parol Evidence.</p> <p>Where a contract provides for the purchase of a vessel, to be paid for as the work of construction progresses, without any exiiress provisions indicating the intent of the parties as to whether title shall pass before delivery or not, it is competent to pvore a parol agreement, made before execution of the contract, that the title should pass when work was commenced, as there is nothing in such an agreement which tends to contradict or vary the written contract.</p> <p>4 Same—Fraud.</p> <p>Where it appears that in consideration of such a parol agreement the purchasing company reduced its demand as to the amount of security required of the builders for repayment of the advances in case the contract was not satisfactorily performed, it would be a fraud upon the purchasers to permit the repudiation of such agreement, for the intent to repudiate, as manifested at the trial, would (under the Pennsylvania decisions) relate hack to the date of the contract, and constitute a fraud in its procurement, such as would justify its reformation in equity.</p> <p>5. Corporations — Contracts by Officers — Estoppel by Accepting Benefits.</p> <p>A corporation which accepts the benefits flowing from a parol agreement made by one of Its officers in connection with a written contract is estopped to repudiate such agreement</p>

<p>1. Collision—Tow with: Anchored Vessel—Acts in Extkemis.</p> <p>A sloop which was anchored at night without a light up cannot complain because a tow, which, without fault of her own, was brought Into Immediate danger of collision, failed in the excitement of the moment to drop her anchor or cut her hawser as soon as she might have done.</p> <p>2. Same—Presumptions.</p> <p>Where sufficient cause for a collision is found in a neglect of duty by one vessel, it should be ascribed to that alone, unless other contributory negligence is proved; but if it is shown that the other vessel had no sufficient lookout it will be presumed that her negligence contributed to the accident unless the contrary is proved.</p> <p>8. Same—Insufficient Lookout—Master of Tus.</p> <p>The master of a tug stationed in her pilot house in charge of the wheel is not a competent lookout, and is not in a proper place for that purpose. There should be at least one person assigned exclusively to that duty and stationed in the most favorable position for seeing, and an alleged custom among tugs to have no lookout but the master is no excuse.</p>

<p>I. Limitation op Actions—Running op Statute—Trusts.</p> <p>Where dividends were paid stockholders in a bank out of its capital stock, if the dividends constitute a trust fund in the hands of the stockholders for the benefit of creditors, it is a' constructive trust, and the statute of limitations began to ran against an action to recover such dividends from the date of payment.</p> <p>- 2. Same—Action by Receiver.</p> <p>The statute of limitations runs against the right of a bank to recover dividends paid to its stockholders out, of its capital stock, either through fraud or mistake, from the date of payment, and, when an action by the bank to recover sucb dividends would be barred, an action by a receiver on behalf of creditors is also barred.</p> <p>3. Equity—Jurisdiction—Adequate Remedy at Law.</p> <p>The receiver of a national bank cannot maintain a bill in equity against its stockholders to recover dividends illegally paid them out of its capita! stock, ns they may be recovered in an action at law.</p> <p>4. Same —Pleading—Multipabiousness.</p> <p>Equity cannot entertain jurisdiction, of a bill by the receiver of a nation!) 1 bank against its stockholders to recover dividends illegally paid them out of its capital stock, on the ground of preventing a multiplicity of suits, as such a bill is multifarious, one stockholder having no interest in the claim against another.</p> <p>J. National, Banking Act-—Illegal Dividends—Liability op Directors.</p> <p>The remedy against directors of a national bank provided by Rev. St. § 5239, for violations of Die national banking act, is exclusive, and their liability for declaring and paying dividends out of the capital stock of the bank can be enforced only by the receiver acting under the direction of the comptroller, after the violation of the statute has been judicially determined, and a forfeiture declared.</p>

This was an action by Karl H. Blessing, as administrator of Jacob F. Blessing, against the New York, New Haven & Hartford Railroad Company, to recover damages for the death of the intestate, alleged to have been caused by defendant’s negligence. The plaintiff recovered a judgment in the circuit court Defendant brings error.

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

Suit by William You mans against the Minnesota Title Insurance This case was heard on plea in abatement to the jurisdiction of the court. For tho purpose of submitting this question, the parties have agreed to certain facts. The suit was brought in tho superior court of Massachusetts, and removed to this court. The plaintiff is a citizen of the state of New York.

<p>This was a bill by Alexander E. Chisolm and others, who held, under lease, a tract of marsh land, intersected by creeks, lying in Winyah Bay, S. C., against Edmund A. Caines and others, to enjoin them from trespassing upon said creeks and marshes, and shooting and driving away the game found thereon. Defendants set up in their answer that these creeks and marshes were subject to a public use. Pending the proceedings the state of South Carolina intervened, and set up title in the state to these creeks and marshes.</p>

This was an action by Seymour Van Dyke against the Atlantic Avenue Railroad Company for personal injuries. The jury gave a verdict for the plaintiff. Defendant moved to set the verdict aside.

Action by George D. Har-rir.on against tbe Hartford Fire Insurance Company on a policy. Defendant demurred. The petition filed herein May 29, 1894, alleges the following facts, material to the question presented by tbe demurrer: Plaintiff, on June 18, 1890, insured his dwelling house, situated in Louisa county, Iowa, and certain personal property therein, and also his carriage house and barn, in the defendant insurance company, for a term of five years.

<p>Deeds—Descriptiok—-Botjkdaky ox Tide Wateb.</p> <p>A grant, made in 1066, of a portion of Manhattan Island, after defining a north and south line, running from the Hudson to the East river, and forming the westerly boundary of tne lands granted, proceeded to convey to the grantees all lands “lyeing and being within the said lyne, to draw north and south as aforesaid, eastward to the end of the towne and Harlem Ryver, or any part of the said ryver on which this island doth abutt, and likewise on ye North and East Ryvers within the lymitts aforementioned.” Held, that the eastern boundary of the grant was the Harlem river, and, that river being tide water, the grant carried only the land to high-water mark.</p>

Petition by Elijah Kyle for a writ of habeas corpus. Dismissed. The facts in this case, as set up in the petition for the writ of habeas corpus, show that the petitioner stands charged before the district court of Sequoyah district, Cherokee Nation, with (he crime of larceny; and, according to 1he allegations in the indictment against him, the crime was committed about the 1st of February, 1893.

<p>1. Conspiracy—Combination on Firb Underwriter?—Injunction.</p> <p>An association of fire underwriters, formed under an agreement, providing for the regulation of premium rates, the prevention of rebates, the compensation of agents, and nonintercourse with companies not members, is not an illegal conspiracy, and the accomplishment of its purposes by lawful means will not be enjoined at the instance of a company not a member of the association.</p> <p>3. Same.</p> <p>The dismissal of an agent by one of the associated companies for refusal to represent such companies exclusively, and a refusal to place insurance for outside companies, are lawful means to accomplish the purposes of the association.</p> <p>3. Same—Boycott.</p> <p>The advertisement by an agent of certain of the associated companies that he had authority to 'cancel policies of outside companies, and rewrite them at lower rates, when in fact he had no such authority, and threats to boycott the agents and customers of such outside companies unless they withdrew their patronage, are illegal, and will be enjoined.</p>

<p>1. Customs Duties—Classification of Leaf Tobacco — Unit of Classification.</p> <p>In determining the classification of leaf tobacco under paragraph 24(1 of the act of March 3, 1883, the unit to which the percentage test is to he applied is the commercial hale. U. S. v. Blumlein, 5 C. C. A. 142, 55 Fed. 383, followed; Falk v. Robertson, 11 Sup. Ct. 41, 137 U. S. 225, and Erhardt v. Schroeder, 15 Sup. Ct. 45, 155 U. S. 124, distinguished.</p> <p>3. Same—Sufficiency of Examination by Collector—Burden of Proof.</p> <p>The burden is not upon the government to show that the collector’s classification is correct, but the presumption is in favor of its correctness, anil the burden is upon the importer to show that it is not correct; and this burden is not sustained by the fact that the collector’s examination was only of 10 hands of tobacco, drawn from representative bales, nor by allowing that a method was pursued which was wholly inadequate to ascertain what percentage in any bale consisted of a higher grade, and that the method was erroneous because it sought to determine the percentage, not by aggregating the leaves in the whole number of hands examined, but by aggregating the hands containing the higher grade. 59 Fed. 765, reversed; Erhardt v. Schroeder, 15 Sup. Ct. 45, 155 U. S. 124, followed.</p>

<p>1. Trade-Mark —Fir-re Chamois.</p> <p>(rhe words “Fibre Chamois,” used to designate a fabric used as interlining for dresses, constitute a valid trade-mark.</p> <p>2. Injunction—Corporation—Partnership.</p> <p>Tlie fact that a firm becomes incorporated pending a suit against the copartners for an injunction is no ground for refusing the injunction, where one partner is an active manager of the corporation’s business, and the other is not shown to have parted with his interest and control.</p>

These were actions at law, brought, respectively, by Edward Van Orden and William A. Briekill, against the mayor and city council of Nashville, to recover damages for the Infringement of letters patent No. 81,132, Issued to said Briekill, August 8, 1868, for an improvement in feed-water heaters for steam fire engines. The cases were heard upon demurrer to the declaration because of nonjoinder of parties plaintiff.

<p>Bill to quiet title brought by David Hearfield against I. W. Bridge and others.</p>

This was a bill by the Troy Laundry Machinery Company and another against William Ap Rees and another, for infringement of the first and second claims of letters patent No. 204,701, issued June 11,1878, to James F. Baldwin, for an improved mangle or ironing machine. The circuit court dismissed the bill for want of patentable novelty in the combination. Complainants appeal.

This was a suit in equity by Julian Kennedy against the Penn Iron & Coal Company and Frank C. Roberts for alleged infringement of a patent relating to the construction of fire-brick, hot-blast stoves. Complainant moved for a preliminary injunction.

<p>1. Marine Insurance—“Sub and Labor” Cuausk.</p> <p>An insurance company is not liable under the “sue and labor” clause of a marine policy for expenses incurred by the assured in sending out a tug to look for insured dumping scows, which were reported to hare gone adrift, but which in fact were at the time tied up iu a safe place.</p> <p>2. Samis—Contract.</p> <p>The agents of a marine insurance company were notified by the owners of certain insured scows that the same were reported to be adrift, with the inoniry what should be done about it. The agents replied that, if the scows wore adrift, the best thing was to send a tug out for them, iheM, that this did not constitute a contract, outside the terms of the policy, which would render the company liable for the tug’s expenses, it appearing that the scows had not in fact gone adrift, but were tied up in a safe place.</p>

This was an action by diaries G-. Gabrielson against Frederic Waydell and others, owners of the bark Rebecca Garnana, to recover damages for injuries done to the plaintiff by the master of the bark. A verdict was rendered for the plaintiff. Defendants moved in arrest of judgment.

<p>Appeal from the District Court ¡of the United States for the Southern District of New York.</p> <p>This was a libel by A. Foster Higgins, William Krebs, John D. Barrett, John H. (lourlie, James B. Dickson, and Stephen Loines against the steamships Advance, Allianca, Seguranca, and Vigilancia, the Atlantic Trust Company, trustee, claimant, to enforce an alleged lien under the New York statute. Laws 1862, c. 482, as amended by Laws 1886, c. 88. The circuit court dismissed the libel. 61 Fed. 507. Libelants appealed.</p>

This was a libel by Robert W. Workman against the mayor, aldermen, and commonalty of the city of New York, the fire department of that city, and James A. Gallagher, for damages caused by a collision. The district court rendered a decree for the libelant against the mayor, etc., and Gallagher. 63 Fed. 298. Respondents appeal.

<p>1. Shipping — Refusal of Clearance — Instructions of Secretary of tub Treasury.</p> <p>It is no justification to a collector of customs, for refusing clearance to a vessel and her cargo, that he acted under instructions from the secretary of the treasury in refusing such clearance, unless such instructions were authorized by law.</p> <p>S. Neutrality Laws—Refusal of Clearance—Transporting Munitions of War.</p> <p>It is not eno’ugh to justify a collector of customs in refusing clearance to a vessel and her cargo, under Rev. St. § 5290, that it is the purpose of her intended voyage to transport arms and munitions of war for the use of an insurrectionary party in a country with which the United States are at peace.</p>

Tills was a libel by George Smith, master! of the steamship Black Prince, against Charles C. Harrison and others, trading as Harrison, Frazier & Co., to recover demurrage because of alleged failure to receive cargo with “customary quick dispatch.” The district court rendered a decree for the libelant 50 Fed. 565. Respondents appeal.

<p>Shipping—Damage to Cargo bt Rats—Bill of Lading.</p> <p>A cargo of beans in sacks was skipped from Fiume, Austria, to New York, under a bill of lading containing exceptions of damage from vermin. On arrival at New York tke cargo was found to have been badly damaged by rats. The vessel was of iron, and it was shown that her holds were thoroughly scrubbed before her arrival at Fiume, and that no rats were discoverable; that there were no hiding places for them; and that they came on board at Fiume, without the knowledge of the officers. It appeared further that the character of Fiume as a seaport frequented by rats is well known. The vessel had five cats during the voyage, which had abundant access to the cargo, and the testimony showed that, if the cats proved active and vigilant, this was an adequate number. Held, that the injury was within the excepted clause, and that the evidence failed to show that the damage was attributable to the neglect of the vessel to exercise ordinary and reasonable precautions. 46 Fed. 859, reversed.</p>

This was a libel by Israel J. Merritt and Israel J. Merritt, Jr., against the steamer Wandrahm, Edward T. Morse, claimant, to enforce an alleged lien for labor and materials. The district court dismissed the libel. 62 Fed. 935. Libelants appeal.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was a libel in personam by Griffith Roberts, master of the steamship Stuart Prince, against Pierre J. Smith and Charles Schipper, trading as Smith & Sol tipper, to recover demurrage for delay in the discharge of cargo. The district court rendered a decree for libelant, and the respondents appealed.</p> <p>In the district court the following opinion was filed by BUTLER, District Judge:</p> <p>It is admitted that this case is governed by Smith v. Harrison (recently decided by this court) 50 Fed. 565. I will not therefore enter on a statement of the facts, or a discussion of them. The vessel was not given the dispatch contracted for, and the respondents are answerable in damages. A commissioner will be appointed to decide the amount. In this ease modem scales were used for weighing, but the cargo was not taken as rapidly as tho contract required. I do not understand it to bo denied that there was delay, but it is asserted in justification that this arose in part from failure of the government to furnish necessary weighers, and in part from wet weather. Without considering whether the cargo, or a part of it rather, should not have been taken on the wharf, in advance of weighing if such scarcity existed, or whether proper efforts were made as early as should have been done, or whether an unavoidable scarcity would excuse the respondents’ failure to comply with the contract, it seems to be a sufficient answer that the respondents had an abundance of weighers, but unfortunately for the libelant found other use for them. Unmindful of their obligations to him, they assumed numerous similar obligations to other vessels arriving at the same time; and if they were unable to afford him more weighers it may bo attributed to this cause. It was their duty to be prepared to take the cargo with the dispatch described—“all possible dispatch”—to leave no reasonable effort untried to be so prepared. To place obstacles in tho way of carrying out the contract would be a plain disregard of their duty, and delay arising from such obstacles they would necessarily be responsible for. Of course they were not required to suspend their ordinary business by abstinence from entering into such contracts with others. But they were bound to remember the facilities for discharging such cargoes and their previous undertakings, and contract accordingly.</p> <p>In addition to the authorities cited in the former ease (Smith v. Harrison) section 014 of Carver on Carriers is referred to.</p>

This was a libel by Domenico Penco, master of the bark Armonia, against John Cory & Sons, owners of the steamer Redruth, to recover damages resulting from a collision.

This was a libel in personam by Mary Killien, as administratrix of Martin Killien, her husband, to recover damages under the New York statute for the death of the deceased, who was a fireman on the tugboat William II. Walker, on the afternoon of June 13, 1893, through an alleged negligent collision between the Walker, owned by the respondent Hyde, and the ferryboat Garden City, owned by the respondent the Long Island Railroad Company.

This was a suit by Katie J. Loomis and Olive S. Swafford against Lewis Rosenthal to have the defendant declared trustee of certain real estate. The cause was heard on the pleadings and proofs as to the citizenship of one of the complainants.

This suit was commenced in the circuit court of Lawrence county, S. D., by Horace K. Thurber, appellant, against Mary C. Miller, Arthur James Miller, and Thurber Chumasero Miller, as heirs at law of James K. P. Miller, deceased, and Joseph Swift, E. B. Beecher, and William H. Swift, executors of the estate of James K. P. Miller, deceased, Addison W. Hastie, trustee, Fred T. Evans, the city of Deadwood, and Lawrence county, S. D., to foreclose a mortgage made by James K. P.…

Actions by Isaac Yany and Cynthia Potter, administratrix, against the receiver of the Toledo, St. Louis <& Kansas City Railway Company. The cases were removed into the federal court, and defendsmt moved that they be referred to a master.

<p>1. Injunction—Assessment for Sewer—Remedy by Appeal.</p> <p>Burns’ Rev. St. Ind. 1894, § 4298, authorizing a landowner to appeal from an assessment for a public improvement to the circuit court, but providing that no questions of fact shall be tried on such appeal which may arise prior to the making of a contract for such improvement under the order of the council, furnishes an adequate remedy ,at law, by appeal, for errors and irregularities occurring subsequent to the adoption of the ordinance and the making of the contract under which the improvement was constructed, and therefore injunction will not lie to restrain the collection of the assessment on the ground of such irregularities.</p> <p>S. Municipal Corporations—Public Improvements—Injunction.</p> <p>Acts Ind. 1889, p. 239, § 2, provide that whenever cities deem it necessary to construct any sewer, etc., the council shall declare, by resolution, the necessity therefor, and shall state the kind, size, location, and designate the terminal points thereof, and give notice of the passage of such resolutions by publication in a newspaper. A city council passed a resolution declaring the necessity for the construction of a sewer, and gave notice thereof, but the resolution and notice failed to state the size of the proposed sewer. Held, that such failure did not deprive the council of jurisdiction to order the improvement, and that, therefore, the collection of an assessment therefor could not be enjoined.</p>

<p>1. Decrees—Vabating after End of Term.</p> <p>A federal circuit court has power to set aside, on motion, after as well as before the end of the term, a final decree which the judge has been induced to enter, without examination, by false representations as to its character, and which he did not intend to enter.</p> <p>2. Circuit Courts of Appeals—Power to Issue Writs of Prohibition.</p> <p>Quaere, whether the power of the circuit courts of appeal to issue writs of prohibition, which power they derive from the twelfth section of the act of March 8, 1891, extends to any cases except those in which the exercise of the power becomes necessary for the efficient exercise of the particular jurisdiction with which those courts are vested.</p>

<p>1. Appealabdb Decrees—Order Vacating Finad Decree.</p> <p>An order setting aside a final decree at the succeeding term held not a “final decision,” from which an appeal would lie (Act March 3, 1891, § 6), where the appellant obtained leave to amend the bill, and inserted therein additional allegations as to the citizenship of the parties, after the circuit court had vacated its former decree.</p> <p>3. Decrees—Vacating after End of Term.</p> <p>A federal circuit court has power to set aside, on. motion, after as well as before the end of the term, a final decree which the judge has been induced to enter by false representations as to its character. U. S. v. Williams, 67 Fed. 384, followed.</p>

Appeal f!rom the Circuit Court of the United States for the Eastern District of Missouri. This was an application by the Merchants’ Bank of St. Joseph, Mo., First National Bank of Hannibal, Mo., and John Vaughn, interveners in the suit of Ezra V. Snively, against the Loomis Coal Company, to vacate an order, made by the circuit court, allowing $5,000 to Charles S. Crysler, the attorney for the receiver appointed in the cause. The circuit court denied the motion.

This was a suit by William A. Caldwell against Joseph Robinson to quiet complainant’s title to certain lands in the state of Idaho. The circuit court rendered a decree for the complainant. 59 Fed. 653. Defendant appeals. Affirmed.

In Equity. Bill by the German Savings & Loan Society against De Lashmutt and others to foreclose a mortgage. The hill was amended, and defendant Starr excepts to the amendments for impertinence.

This was a suit by Henry J. Barr against the city of New Brunswick and the Pennsylvania Railroad Company to enjoin the taking of complainant’s property under the power of eminent domain. Complainant moved for a preliminary injunction. Denied.

<p>In Equity. Bill by tbe Farmers' Loan & Trust Company against the Oregon & Washington Territory Railroad Company to foreclose a mortgage. George W. Hunt intervenes. Petition denied.</p>

<p>1. Mortgages—Assignment and Foreclosure.</p> <p>A mortgagee, who has sold, assigned, and conveyed “all his right, title, and interest in and to” the mortgage, guarantying the notes secured thereby, cannot foreclose without the consent of the assignee, though the assignment is not recorded; and such a foreclosure is a nullity.</p> <p>2. Same—Rights of Judgment Creditors.</p> <p>Where a mortgagee, after assigning the mortgage with guaranty of payment, foreclosed the same without notice to the assignee, for which reason the foreclosure was void, held, that certain third persons, who obtained judgment against the mortgagors, while the mortgage stood of record, and docketed the same before the assignment was recorded, but filed notice of intention to redeem and-did redeem, after the assignment had been jilaced on record, acquired thereby no right _ superior to that of the assignee; and that the Minnesota statute, protecting judgment creditors • and bona fide purchasers (Gen. St. 1878. c. 40, § 21; Gen. St .1894, § 4.180), did not apply in their favor.</p>

<p>Taxation—Equality—Kansas Constitution and Statute.</p> <p>The constitution of Kansas provides that “the legislature shall provide for a uniform and equal rate of assessment and taxation.” Article 11, § 1. The statutes provide that railroad property shall be assessed by a state board of assessors, and other property by city and county assessors. In 189” the state board assessed railroad property at its full value, but the assessors of R. county, pursuant to an agreement among themselves, assessed the other properly in the county at one-third of its value. The C. Ry. Co. paid its state taxes in full, and tendered to the county of R. the amount that would have been due it for taxes if the property of the railway company, had been assessed upon the same basis as other property. Held, following the decisions of the supreme court of Kansas, that the railway company was entitled to an injunction to restrain the comity from collecting the remainder of the tax.</p>

<p>1 Taxes—Suit to Enjoin Coi,lection—'Tendeb.</p> <p>In the federal courts, the collection of a tax cannot be enjoined unless the party seeking the injunction has paid or tendered, unconditionally, so much of the tax as it is certain ho should pay. An averment of readiness to pay, or a tender made in the bill, is not sufficient.</p> <p>2. Same—Practice. ,</p> <p>Where, in a suit to enjoin collection of a part of a tax, it appears that a tender has been made in good faith of the amount supposed to be due, but that the sum so tendered was in fact less than was due, the hill should not bo dismissed absolutely, but an opportunity should be given to The complainant to pay the excess, together with costs and penalties. Chicago, B. & Q. R. Co. v. Board of Com’rs of Republic Co., 67 Fed. 411, followed.</p>

This was a bill bj the Merz Capsule Company, a corporation organized under the laws of Michigan, and doing business at Detroit, against Robert H. McCuteheon, J. Ernest Warren, James Wilkie, John A. Grogan, William H. Warren, the National Capsule Company, and the United States Capsule Company, praying that a certain contract between complainant and defendants should be declared null and void, and that defendants be enjoined from carrying out the same as against the rights of…

Bill in equity by B. P. Hubbard and others against W. J. Urton and others to recover mining stock, and for further relief. The case was heard on demurrer to the bill.

This was an action by John J. Henry, Jr., against the Cleveland, Cincinnati, Chicago & St. Louis Eailroad Company to recover damages for personal injuries. On the trial the court (ALLEN, District Judge) charged the jury as follows.

This was an action by James M. Bagar against James A. Townsend and Wallace Downey to recover the value off certain bonds. The jury gave a verdict for the plaintiff. Defendants moved for a new trial.

<p>This was an action by William H. Kood, as receiver of the American Iron Company, against John H. Whorton, to recover an assessment upon stock held by him. The case was submitted to the court, jury trial being waived.</p> <p>This is an action at law in which the plaintiff appears as receiver of tho American Iron Company, an insolvent Michigan corporation, and seeks to recover of the defendant $12,000 and interest, assessed for the alleged unpaid portion of the capital stock held by him. The proceedings under which the plaintiff was appointed receiver arose and are pending in the circuit court for Marquette county, in the state of Michigan; and a decree has been there entered directing the assessment of $15 per share against Hie stockholders, and that the receiver proceed in its collection, by suit or otherwise. The defendant is a citizen of Wisconsin, and is not a party to the action in Michigan aside from his privity as stockholder. The insolvency of the corporation and the existence of a large indebtedness, which would require the assessment of stockholders to the extent claimed for liquidation, are shown by the decree. The corporation was organized March 7, 1887, with a capital stock of $1,000,000, all subscribed for and taken by eight corporators. The statute of Michigan (How. Ann. St. § 4077) requires that the articles of association state the amount of cash actually paid in and the cash value of any property “conveyed to the corporation cotemporancously with its organization”; and accordingly the articles in this case state that no cash was paid in, and that mining property was conveyed and accepted, and its value fixed at $220,000, which would leave $780,000 unpaid by the original subscribers and incorporators. The shares were $25 each, making the amount of pro rata actual credit about $5.50 per share, and the unpaid portion $10.50. Subsequently it became necessary to raise money for the enterprise, and these original shareholders, at a meeting on April 15, 1887, resolved that each should contribute to a common pool two-fifths of his holdings of stock, denominated “treasury stock,” to be sold at not less than $3 per share, “as fully paid and nonassessable stock,” and of the proceeds three-fifths was to go into the treasury, and two-fifths to be paid to the contributors. 'This stock was to be issued to trustees named, and tho resolution declared that it should “not bo construed as mandatory so far as it. authorizes the sale of said stock as fully paid, but that sneh trustees shall be at liberty” to sell any part as fully paid. On April 25, 1877, a scheme was proposed to have all stock made “nonassessable,” but it was abandoned on advice of counsel, and the plan of April 15th was so far carried out that the contributions of stock were made (3,000 shares) by all the holders, and were placed on sale. It appears that the firm of Hoskins & Wambold, who were not stockholders, became agents of the corporation for selling this stock, under some arrangement by which their services were to be paid in shares of the treasury stock; that they sold some, purchased some, and received 0,000 shares for their services. In February, 3888, Wambold, of that firm, negotiated with the defendant, at Appleton, Wis., for the sale of 800 shares, at $3 per share, and the sale was agreed upon, 500 shares being then delivered and paid for, and the remaining 300 shares were taken in July. The transaction was entirely with Wambold, who represented that the shares were fully paid, and the defendant supposed that Wambold was the owner. The shares, when received by the defendant, were issued in his name, were duly signed and sealed by the proper officers, and had written upon their face, in red ink, the words “Stock full paid and unassessable.” No distinction was preserved in reference to any of the shares of this stock wkich came through the hands of Hoskins & Wambold, and it does not appear whether the defendant’s shares were, in fact, of direct sales for the corporation, or of stock which Hoskins & Wambold had purchased, or stock received for their compensation. The defendant had no information or knowledge of any of the arrangements prior to his purchase, except that the mining property was considered valuable when it could be developed; that his shares were full paid, and therefore no liability or risk was incurred beyond the investment in the shares. He was a nonresident, had no active part in the business, was only present at one meeting, but appears to have been elected a director for a time, without participation or knowledge of the affairs otherwise than by a formal presence, yntil after the proceedings in the Michigan court, and immediately prior to this action, he had no information of any claim upon him of liability, and he never received any dividends or benefits from the corporation. If liable, the amount assessed is $12,000-and interest from February 15, 1894.</p>

<p>1. Action' on Judgment—Deb'enses.</p> <p>In an action on a judgment rendered in another state, defendant may show that the judgment was obtained by collusion between plaintiff and one who represented himself to be an agent of defendant for the purpose of being served.</p> <p>3. Same—Counterci,aimb.</p> <p>In an action on a judgment between the original parties, defendant may plead a counterclaim growing out of a contract between them.</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>This was an action brought by L. H. Allen, for whom John E. Moss, assignee, was substituted as plaintiff, against Joseph R. Hoffiin and Albert D. Thompson, partners as Joseph K. Hofilin & Co., upon two contracts for procuring advertising for defendants. The circuit court sustained a demurrer to the defendants’ answer, and directed a verdict for the plaintiff. Defendants bring error. Reversed.</p> <p>The following is a copy of one of ihe two instruments on which this suit is founded:</p> <p>“Town, Minneapolis.</p> <p>“State, Minn.</p> <p>“Date, Nov. 11th, 1892.</p> <p>“Buffalo Newspaper Advertising Agency, It H. Allen, Proprietor—Dear Sir: You are hereby authorized and employed to make contracts of the following form for ihe publication of our advertisement in' any number of weekly newspapers, not exceeding one thousand, to wit, in the United States:</p> <p>“(Form.)</p> <p>“ ‘Exchange Plan’ Advertising Contract.</p> <p>■“With the--.</p> <p>“Town, -. State, ———.</p> <p>“Date,-, 189-.</p> <p>“Buffalo Newspaper Advertising Agency—Gentlemen: In consideration of the order described on the reverse side hereof, and of premium offered, the undersigned hereby agrees to publish for and on your account the electrotyped advertisement of Jos. B. Hofilin & Co. in the' above-named weekly newspaper, to occupy a space of four inches, single column, for a period of six months. (Signed] --—, Publisher.</p> <p>“Such publisher’s contracts, and signatures thereto, shall he accepted, for ail purposes whatsoever, as genuine. On demand, you are authorized to issue a duebdll order to the publisher of each newspaper, or order; and we agree to accept said orders, in the following manner, and not otherwise, to wit: when accompanied by §10 and 80/100 dollars in cash, as full payment for from one to three gross of Liebig’s Com Cure, small, the regular price of which is §36.00, to dealers §21.00. Goods to be packed and delivered f. o. b. cars in this city without extra charge. Said orders to be optional and valid for a period of one year only from date of issue. We further agree to pay you for your services the sum of two and 75/100 dollars for each contract made; said sum to be due and payable on delivery of contract and one copy of corresponding newspaper containing said advertisement. You are to furnish an electrotype of said advertisement to each newspaper, and to be responsible for premiums given publishers, and all other expenses involved in 1he carrying out of this contract, and above corresponding newspapers shall be deemed sufficient evidence of due performance thereof. I! is understood that you do not guaranty the presentation of the above-mentioned orders, and that no representation, understanding, or agreement no: in this contract shall bind either party, unless in writing and signed by both parties, as this is the complete agreement of the parties hereto. This agreement shall be and remain in force for a period of one year from date, and the Buffalo Newspaper Advertising Agency agree to furnish proof by affidavit of an average of 85 per cent of insertions in the newspapers contracted with. Jos. E. Hofflin & Co.</p> <p>“Accepted:</p> <p>“Buffalo Newspaper Advertising Agency,</p> <p>“h. H. Allen, Proprietor,</p> <p>“By C. N. Chisholm.</p> <p>“Signed in duplicate.”</p> <p>The second instrument bears the same date, and is identical in every respect, with the foregoing, save in the name and price of the medicine to be advertised and sold; the second contract relating to “Japanese Pile Cure.”</p> <p>The complaint contained two paragraphs, and alleged that the plaintiff secured and delivered to the defendants 567 advertising contracts under one, and 559 under the other, contract with the defendants, and averred compliance therewith on his part in all respects, and asked judgment on one contract for $1,559.25, and on the other for $1,537.25. In their answer the defendants alleged,, in substance: That at the time of the execution of the contracts the plaintiff, for the purpose of inducing the defendants to enter into the same, falsely and fraudulently represented that the reduction in the price of the medicines mentioned in the contracts was the sole and only consideration given or allowed, directly or indirectly, to publishers of the newspapers with whom the plaintiff was to place the advertisements, and that the plaintiff would not, directly or indirectly, allow to any of the publishers any additional price, premium, or consideration whatever for the inserting of ihe advertisements, and that the word “premium,” used in the contracts referred to, meant simply the reduction in the price of the medicines. ■ That, in violation of the contracts and his representations to the defendants, the plaintiff offered and gave to each publisher who inserted the advertisements other and additional consideration or premiums, in the shape or form of a lamp, type, printing materials, or other merchandise, and that the plaintiff, at the time of the making of the contracts, knew that the additional consideration or premium so offered and given by him would be the sole and only consideration which would induce any publisher to insert the advertisements, and that the reduction in price of the medicines would be in fact no part of the consideration for such insertions. That the plaintiff agreed with the defendants that the only consideration he would offer to the publishers of papers for the publication of advertisements would be the contract of the defendants to furnish to such publishers their medicines at the prices specified in the contracts; and the plaintiff further represented to the defendants that the publishers would in this manner not only advertise their remedies, but would, by the ‘exchange plan,’ place the same on sale at the very points or localities where they were being advertised, and that, from his large and varied experience in this method of advertising in all parts of the United States, he was able to state, to his knowledge, that such would be the necessary and inevitable result of such contracts in advertising,—all of which representations were false and fraudulent, and were known to the plaintiff to be so, and were made for the purpose of inducing the defendants to sign said contracts, and the defendants, relying on the truth of such representations, were thereby induced to sign said contracts. That the defendants have not had a single order for their medicines from any of the publishers of the advertisements, and have not, directly or indirectly, sold any medicine by reason of or on account of the advertisements. That, in sales at the prices fixed in the contracts for their medicines, there would have been a considerable net profit to them in the sale thereof to the publishers at the prices fixed in the contract, which profif is particularly stated. That the plaintiff agreed that he would act as the defendants’ agent in placing the advertisements with the publishers of such weekly newspapers as would take and accept the same for the medicines mentioned at their reduced prices, whereas at the time of making the contracts the plaintiff owned and controlled the space in most, if not all, of the newspapers m which the advertisements were alleged by the plaintiff to have been ijlíicod; and ha did not act in good faith, as the agent of the defendants, in scouring the advertisements to be accepted and published for the defendants’ medicines, but was acting solely for himself, and was selling space which in fact belonged to himself. That the plaintiff fraudulently concealed from the defendants that he then owned and controlled the space in the newspapers, and that the reduction in price on the medicines would be no consideration for any of the contracts with the publishers, or any inducement whatever to them to insert 'the advertisements, and that in making the negotiations for the contracts, and in executing the same, and in pretending to carry out same as defendants’ agent, the plaintiff acted in bad faith towards the defendants, for the purpose of deceiving and defrauding them for Ms owrx advantage and profit. The circuir court sustained a demurrer to the answer, and directed a verdict for the plaintiff for the amounts claimed, upon which judgment was rendered, and thereupon the defendants sued out this writ of error.</p>

<p>1. Breach or Warranty—Damages—Consideration Paid in Bonds.</p> <p>In an action against a railroad company for breach of warranty in a conveyance of land, defendant may show that the consideration paid was unmatured junior bonds of defendant worth less than par, as the measure of damages is the value of the bonds given for the lands, with interest.</p> <p>2. Same—Conveyance by Raí groad.</p> <p>Under Act March 3, 1887, § 4, providing that innocent purchasers of land erroneously certified or patented to a railroad company as part of Its grant shall he entitled to the land upon making proof of purchase at the proper land office, under rules to be prescribed by the secretary of the interior, such purchasers cannot sue the railroad company for breach of warranty, though the secretary has -prescribed no rules by which purchasers can avail themselves of the act, as their title and possession are secure without making proof of purchase until such rules are prescribed.</p> <p>8. Same—Action for Breach—Pmabiko.</p> <p>In an action by a purchaser of lands from a railroad company for breach of warranty, an answer alleging that under Act March 3, 18S7, § 4, plaintiff is entitled to the lands on making proof of purchase at the proper land office, and that under section 5 plaintiff is entitled to purchase the land from the government for $2.50 per acre, is demurrable, where it does not allege that the lands in question belong to the class described in the act.</p> <p>4. Same—Defenses—Purchase by Plaintiff.</p> <p>It is no defense to an action against a railroad company for breach of warranty that plaintiff has purchased the land in question under Act March 3, 1887, § 5, providing that where a railroad company has sold to an innocent purchaser, as part of its grant, lands not conveyed to it, they being for some reason excepted from the operation of the grant, such purchaser may purchase them from the government at the government price.</p> <p>5. Pleading—Defects Reached by Demurrer.</p> <p>Objection to several parts of a complaint or answer, constituting a single cause of action or defense, must be taken by motion to strike out, and not by demurrer.</p>

<p>i. Promissory Note—Action by Indorsee—Evidence of Ownership.</p> <p>In an action on a promissory note by an indorsee, who has the note in bis possession, it is not necessary for the plaintiff to offer testimony to establish his ownership of the note before reading it in evidence, though Ms ownership is denied in the answer.</p> <p>3. Evidence—Admissions—Using Part of Deposition.</p> <p>The defendant in an action took the deposition of the plaintiff, and" subsequently took that of the magistrate who took plaintiff’s deposition, in order to prove, as admissions, certain statements made by plaintiff in giving his deposition. On the trial, defendant offered the deposition of the magistrate, which was excluded, and then read certain parts of plaintiff’s deposition, whereupon plaintiff asked leave, and was allowed, to read the whole, plaintiff himself being present at the trial. Held, that both rulings wore correct; that plaintiff was entitled to the same privilege as any witness,—of having all he had said on a given occasion, and on a given subject, read to the jury, if it was proposed to use his evidence as an admission.</p> <p>8. Set-Off—Failure of Consideration—Misleading Charge.</p> <p>In an action on promissory notes, in which the defendant set up misrepresentation and fraud in the sale of the property for which the notes were given, and claimed damages for a failure of consideration, the court charged that where there is a partial failure of consideration, or where the whole contract was the result of fraud, if the parties defrauded wish to avail themselves of .the fact, they must repudiate the contract, and tender hack what they have received, and, where they have not done so, they cannot repudiate their contract to pay. In a subsequent part of fhe_ charge, the court said that the foregoing instruction related to the case' of a total failure, perhaps, of consideration, and that if the defrauded party kept the property, and there was a partial failure of consideration, the rule would be different and such failure might be set off against the notes; proceeding to refer to an alléged failure of the seller to deliver all that he had agreed to deliver, but saying nothing more about the alleged misrepresentation and fraud. Held, that the error in the former part of the charge, in stating that the defendant could not set off damages caused by misrepresentation and fraud, was not cured by the subsequent part of the charge, permitting him to set off the failure to deliver particular items of property, and that the charge was, at all events, contradictory, and liable to mislead the jury.</p>

<p>In Error to the United States Circuit Court for the Western Division of the Western District of Tennessee.</p> <p>Action by J. J. Hoechner against the Memphis & Charleston Railroad Company, and Charles M. McGhee and Henry Pink, receivers, for personal injuries. There was a judgment for plaintiff, and defendants bring error.</p>

This was an action by F. Alpert and Lottie Alpert against the Fidelity & Casualty Company of New York on a policy of insurance. The plaintiffs recovered judgment in the circuit court Defendant brings error. Affirmed.

This was an action by Cornelius V. Sidell' against the Missouri Pacific Railway Company and the Interstate Railroad Company to recover a balance due upon a contract. Judgment was entered in the circuit court for the plaintiff, pursuant to a verdict directed by the court. Defendant the Missouri Pacific Railway Company brings error.

This was an action.by Benjamin W. Blydenstein and others against the New York Security & Trust Company to recover the proceeds of certain merchandise^ to which both parties claimed title. A demurrer to one of the defenses interposed by the defendant was sustained. 59 Fed. 12. Upon the trial of the remaining defenses a verdict was directed by the court, and judgment entered accordingly. Plaintiffs bring error.

<p>OONTBIBOTOBY NKGT.TOENOE—PbOXTSTATB CAUSE.</p> <p>In ait action against a railroad company for negligently causing (.lie death of a person who, at the time of the accident, was standing on the platform of the caboose aiinched to tlie wrecked train, the court charged the jury that if they fouud that the fact that the deceased was on the platform did not contribute in any degree to his injury, but that he would have been fatally injured if lie had been inside the caboose, then the plaintiff 'iras entitled to recover, if the defendant was found to have been negligent. Held no error.</p>

This was an action by A. B. Kahnweiler & Bro. against the Phenix Insurance Company of Brooldyn on a policy of insurance. Judgment was rendered in the circuit court for the defendant, and a motion for a new trial was denied. 57 Fed. 562. Plaintiffs bring error.

At law. Action by Christine Selby on three life insurance policies issued by the Mutual Life Insurance Company of New York on the life of her husband. The defendant pleaded, in avoidance of liability, that the plaintiff’s husband, in his written application, upon which the policies were issued, made and warranted certain statements which were not true. Verdict in plaintiff’s favor for the full amount of the policies and interest Argued on motion for a new trial.

<p>This was an action by Nellie Phinney against the Mutual Life Insurance Company of New York on a policy of insurance. The plaintiff demurred to the defendant’s answer.</p>

Action by J. M. Zion against the Southern Pacific Company for damages. There was a judgment for plaintiff, and defendant moved for a new trial.

<p>S. Master and Servant—Rule of Safe Place.</p> <p>The rule requiring a master to provide a reasonably safe place in which his servant may perform his service does not apply to eases in which the very work the servant is employed to do consists in making a dangerous place .safe, or in constantly changing the character of the place for safety, as the work progresses, but in such cases the servant assumes the risk of the dangerous place, and of the increase of danger caused by the work.</p> <p>A Same—Fall of Earth in Mine.</p> <p>In an action, against a mining company for negligently causing the death of one F., it appeared that F., while at work in preparing a place to set a timber to make a level in a mine safe for tbe -workmen, had. been killed by a fall of a mass of earth that was uncovered by a blast fired a short time before by a miner named A. After the blast A. worked with a pick for an hour to get this mass down, and was about to blast it down when the foreman came along, and A. told him that this was a treacherous chunk, and he replied that he could get it down, and took a pick and tried in vain to do so. The foreman then said that there was lots of time and that they would lose the smelting ore in sight if they blasted it down then, and both men went to work picking up and sacking ore .alongside of the mass of earth, where, if it fell, it must strike them unless.they could fortunately jump from under it. About twenty minutes after they commenced to pick up and sack the ore, F. came along to timber the level, and asked the foreman where he should cut the notch for the next stull, and the foreman pointed to a place lower than and a little to one side of the mass that fell. F. sat down directly under the mass of earth which fell, and commenced to drill the notch, and after he had drilled in the wall for about half an hour the mass fell and killed him and injured A. KM, that there was not sufficient evidence of negligence of the defendant to sustain a verdict for the plaintiff. Caldwell, Circuit Judge, dissenting.</p>

<p>1. Railroads—Fraudulent Evasion oe Fare—Iowa Statute.</p> <p>One who fraudulently evades the payment of his fare upon a railway train is not a passenger, and the railway company owes him no duty, except to abstain from willful or reckless injury to him; and this rule is not abrogated by tbe Iowa statute (McClain’s Ann. Code, § 2002) providing that railway companies shall be liable for damages sustained by “any person” through negligence of its agents.</p> <p>3. Practice—Appeal—Motion por New Trial.</p> <p>The overruling of a motion for a new trial cannot be assigned for error. Nor does the making and overruling of such a motion serve to bring before the appellate court any of the grounds assigned for a new trial not otherwise properly saved and assigned as errors.</p>

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

<p>United States Commissioners—Fees—District of Wyoming.</p> <p>United States commissioners in the district of Wyoming are not entitled to double fees for services for which their compensation is made by Rev. St. § 847, the same as that allowed to clerks, although the clerks of the United Slate courts in Wyoming are allowed double fees by the act admitting that state (26 Stat. c. 664, § 16).</p>

This was an action by the United States against William Cut-ajar and another upon a bond for $800 given pursuant to section 4 of the customs administrative act of June 10, 1890. In the district court, judgment was given for the plaintiff for $263.93. Plaintiff brings error. Affirmed.

<p>This was an application by George A. Glaenzer, the importer of certain tapestries and paintings, 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 said merchandise. Upon the tapestries the collector imposed a duty of áá cents per pound and 50 per cent, ad valorem, under paragraph. 392 of the tariff act of October 1, 1890. Upon the paintings he imposed a duty of 15 per cent, ad valorem, under paragraph 485 of said ac¿. His action, in respect to both classes of articles, was sustained by the board of appraisers.</p> <p>The opinion of the board of general appraisers was as follows:</p> <p>We find the following conclusions of fact in these cases: (1) The articles covered by the protest in case No. 10,909a were imported December 1, 1890, and consist of two pieces of antique tapestry, worth respectively 1,500 and 500 francs, and so invoiced, and composed of the material of worsted. (2) The articles embraced in case No. 10,985 consist of (1) one piece of tapestry, of Flemish production, a manufacture of wool and silk, the latter chief value, costing about 450 francs; and (2) one painting, on canvas, about nine by three feet in dimensions, representing some mythological subject, and costing 500 francs, both imported October 13, 1890, on the same vessel. (3) All of these articles we find were produced at a period prior to the year 1700. (1) They were imported by Messrs. GUaenzer & Co., who are decorators and dealers in antique articles, to bo placed among like articles owned and kept by them In their trade, or for sale.</p> <p>We further find from these promises, and from the evidence in the case, that the articles are not collections of antiquities, suitable for souvenirs or cabinet collections within the meaning of paragraph 524 of the now tariff act and consequently are not free of duty. This paragraph reads as follows: “Cabinets of old coins and medals, and other collections of antiquities, but. the term ‘antiquities' as used in this act shall include only such articles as are suitable for souvenirs or cabinet collections, and which shall have been produced at any period prior to the year seventeen hundred.” The corresponding paragraph (G69) in the act of 1883 reads: “Cabinets of coins, medals, and all other collections of antiquities.” The present law has amended this paragraph by expunging the word “all.” inserting the word “ohi” before “coins and medals,” and by defining the word “antiquities,” so as to make it embrace “only such articles as are suitable for souvenirs or cabinet collections” and antedate the year .1700. In addition to this requirement as to suitability there must be a “collection” or assemblage of such articles, so as to “make them attractive, or useful, or valuable, or otherwise desirable.” Baumgarten v. Magone, 41 Fed. 770. A “souvenir” is a keepsake, or remembrance. A “cabinet” is defined by Worcester to be “a set of boxes or drawers for curiosities”; “¡my place in which things of value ore hidden”; “a closet; a small room.” The word is used, we think, in either of these significations, as indicated by the context of the para graph in which it appears. The amendment effects quite a change in the meaning of the law as it formerly stood. Cabinets of old coins and medals are made free by name. Other collections of antique articles, that is of those produced prior to the year 1700, are also exempt from duty, if of a. kind such as are commonly recognized as suitable to be presented by one person to another as a keepsake, or in token of remembrance, and intended to bo kept for the sake of the giver. So the law makes free of duty such “collections” of articles as are commonly recognized to be suitable for “cabinet collections” according to the tastes and usage of collectors of antiquarian or artistic curiosities, that is, suitable to be assembled together In boxes, drawers, or like receptacles, or In any small apartment where articles of vertu, coins, and other bric-a-brac are usually deposited for exhibition, study, the gratification of personal taste or other like purpose. We adopt this construction of the new tariff law7, for the reason that it seems to be demanded by the application of established canons of statutory construction. The word “cabinet” is twice used in the paragraph (524) under consideration. When the legislature uses the same word twice in the same law, and especially in one section or paragraph, the presumption is that they intend to use it in the same sense in each instance, unless there be something in the context to repel this inference. The law, in effect, exempts from duty “cabinets of 'old coins and medals” and olher “cabinet collections” of the kind described. This means, we think, other cabinet collections of a kindred kind to cabinets “of old coins and medals” under the principle of ejusdem generis, which restricts a general word following particular words in a statute to the same genus as those words.</p> <p>This view is corroborated by the manifest meaning of the word “cabinet” as it is found in paragraph 712 of the free list, which reads as follows: “Specimens of natural history, botany and mineralogy, when imported for cabinets, or as objects of science, and not for sale.” This construction moreover was given to paragraph 669 of the act of 3883, in U. S. v. Sixty-Five Terra Cotta Tases (Cir. Ct. South. Dist. N. Y.) 18 Fed. 508. In the Case of Robert Garrett, involving an antique oil painting, G. A. 185, and affirmed on appeal to the United States circuit court of Maryland, this board, following other authorities, rejected this rule of construction as applicable to the old law. But, in our opinion, the amendment to the law indicates a legislative intention to curtail the vast flood of importations which have been made under the designation of antiquities during the past decade, embracing, as they did, valuable pictures, tapestries, furniture and other articles, each often being worth many thousands of dollars, and used for furnishing the houses of those most able to pay a just revenue on them. Applying these principles, we are of the opinion that the articles in question are not free from duty as claimed, but are subject to the duty imposed by the collector. His decision in each case is accordingly affirmed.</p> <p>In the foregoing cases the importers had due notice of the hearing, and appeared in person before the board.</p> <p>[Signed] Henderson M. Somerville,</p> <p>[Signed] George O. Tichenor,</p> <p>[Signed] Wilbur F. Lunt,</p> <p>Board of United States General Appraisers.</p>

<p>In Equity. Bill by the Genesee Salt Company against Burnap & Burnap for an injunction.</p>

<p>This was a suit in equity by the Bing Befrigerator & Ice-Machine Company against the St. Louis Ice Manufacturing & Cold-Storage Company for alleged infringement of a patent relating to gas pumps. A decree having been rendered sustaining the patent, and declaring infringement, an application has now been made by Arthur St. John Newberry, trustee, who is a stranger to the recora, to have the decree set aside, as having been entered by collusion.</p>

Error from the Circuit Court of the United States for the Northern District of California. This was an action at law by Irwin J. Truman and C. Osgood Hooker against Henry E, Holmes and M. P. Holmes for infringement of a patent relating to breaking carts. The circuit court entered a judgment for plaintiffs upon the verdict of a jury. Defendants brought error.

This was a bill by Gustav Bernheim against Albert Boehm e for infringement of two patents relating to catches for traveling bags and satchels.

<p>This was a bill by the Traut & Hine Manufacturing Company and George E. Adams against the Waterbury Buckle Company for infringement of letters patent No. 487,689, issued to said Adams December 6, 1892, for an improvement in garment supporters. A preliminary injunction was heretofore granted, together with an order suspending its operation until the case could be heard by the circuit court of appeals. 64 Fed. 492. Defendant now mores for a rehearing, upon the ground of newly-discovered evidence.</p>

<p>This was a suit in equity by Charles J. Tagliabue against Hermann Sondermann for infringement of a patent for a syringe.</p>

<p>1. Maritime Lhsns -Towaid: Services Rendered under Contract —■ Existence of Lien.</p> <p>Where a libel against certain scows and dredges, constituting together a dredging plant, to recover for towage services rendered during the operation of the plant, showed that the services were rendered under contract made with a person with whom the libelant dealt as agent for the owners or users of the plant, without any agreement for a lien, held, that an averment in the libel that the services were rendered on the credit of the plant, and not upon the credit of the owners, was insufficient in law, because the material inquiry was, not whether the libelant himself contemplated a lien, but whether a lien was created by or insulted from the mutual understanding of the parlies and the services rendered in pursuance of it; and held, further, that, as the services were not alleg-ed to have been rendered upon the request of the master, but under contract with an agent of the owners, it was immaterial, under the circumstances, whether or not the owners were known to libelant.</p> <p>2. Same.</p> <p>Where special and unusual towage services, such as conveying the scows of a dredging plant back and forth from the dredges to the dumping place, and moving the dredges from time to time, are rendered pursuant to a contract, any intention to create a lien for the services should be clearly expressed.</p> <p>8. Same.</p> <p>Dredges and scows used together upon a dredging contract, both being necessary to the operation of the dredging plant, are not to be considered as one thing, in such sense that a lien will attach to all for services rendered in towing some of the scows back and forth from the dredges to the dumping place, and in moving the dredges from time to time. 05 Fed. 430, affirmed.</p>

<p>This was a libel by Joseph S. Harris, Edward M. Paxson, and John Lowber Walsh, as receivers of the barge Guy and the barge No. 75, against the steamer Nutmeg State (the Bridgeport Steamboat Company, claimant), to recover damages resulting from a collision which occurred while the barges were being towed by the tug Monitor, of which the libelants were also receivers. A libel was also filed by Michael Tracy and John Tracy, owners of the barge Dickerson, which was also in tow of the tug, and was injured at the same time, against the Nutmeg State. To this libel the tug herself was subsequently made a party upon petition under the rules. In the district court the tug was held solely liable, and the Nutmeg State was discharged. 62 Fed. 847. From these decrees the receivers of the tug have appealed.</p>

<p>Appeal from tlie District Court of the United States for the Southern District of New York.</p> <p>This was a libel by the Hoboken Ferry Company, owner 'of the ferryboat Orange, against the ferryboat Princeton, the Pennsylvania Railroad Company, claimant, to recover damages occasioned by a collision between the two vessels. In the district court the libel was dismissed. 61 Fed. 116. The libelant appeals.</p>

Action by tiie Illinois Steel Company against the San Antonio & Gulf Shore Railway Company and others on a promissory note. Defendant railway company moves to quash the citation. Suit is brought by plaintiff to recover of defendants the sum of $27,903.99, evidenced by the promissory note executed by defendants to plaintiff on the 1st of November, 1884.

This was a suit by Thomas Lane and others against James J. Anderson and others to restrain them from acting as commissioners under the act of congress of March 3,1893. Defendants demurred to the bill.

<p>This was an action by Wilder and others, constituting the firm, of Wilder & Co., against the city of New Orleans, to enforce a claim against the drainage fund or tax.</p>

This was an "action by Patrick Mulligan, alias Patrick Guiver, against the Atchison, Topeka & Santa Fé Railroad Company for personal injuries. The plaintiff recovered judgment in the circuit court. Defendant brings error. Affirmed.

<p>Action by George D. Harrison against the German-American Fire Insurance Company on a policy of insurance.</p>

<p>Contributory Negiaoence.</p> <p>In an action against a railway company for causing the death of one P., wlio was run over at a grade crossing, it appeared by plaintiff’s witnesses that P. resided in the neighborhood of the crossing, and was familiar with it, and with the trains running over the road; that, from the road on which P. was traveling, at any point, for several hundred feet from the crossing, the track on which the train which caused the accident approached could be seen, except for about 10 feet, where it was alleged the view was obstructed by a tool house; that P. approached the crossing in broad daylight, on a calm day, at the time when a well-known train was duo, which ran at unusually high speed; and there was nothing to show that P. listened, looked, or took any precautions whatever. Held, that P. was guilty of contributory negligence, and the jury should have been instructed to give a verdict for defendant</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>This was a suit in equity by Henry C. Frank against the William p. Mockridge Manufacturing Company for infringement of a patent for cuff fasteners. The circuit court dismissed the bill on the ground that there was no infringement. 65 Fed. 521. Complainant appeals.</p>

This was a bill by Eugene Germain, Isaac B. Newton, and William H. Mitchell against Daniel Wilgus, for infringement of a patent granted to Clement Gauthier, July 17, 1888, for an improvement in atomizers. The circuit court sustained a demurrer to the bill for want of equity, and, complainants having declined to amend, entered a decree dismissing the bill. Complainants appeal.

<p>1. Admiralty—Seamen’s Wages—Desertion of Vessel.</p> <p>A fishing schooner put into a port for bait. After the bait was secured, and when the schooner was about to sail, D., one of the crew, asked leave to go ashore, which was given, with a caution to return promptly. Thereupon, D. and several others of the crew, pursuant to a preconcerted plan, left the vessel, and went ashore. After some time the master sounded a signal for them to return, to which they paid no attention. He then prepared to put the vessel under way, when one F., another of the crew, asked and was given leave to go after the men. He found them all more or less intoxicated, and some of them unable to go aboard without assistance, which he reported to the master, who signified his purpose to go to sea without them. F., then, supposing that the vessel would not go, went ashore again for the men, but before he could bring them on board the vessel sailed away without them. Held, that the members of the crew, other than F., for their disregard of the interests of the vessel, and insubordination, should be subjected to the damage resulting from their failure to perform proper and reasonable duty.</p> <p>2. Same—Seaman Deserted by Vessel.</p> <p>Held, further, that F., having acted in .the interest of the vessel, should recover his share of the catch of the vessel, and for his loss of time and expenses, and the Value of his outfit carried away.</p>

<p>1. Shipping—Demurrage—Contract.</p> <p>Upon the trial oí a libel for demurrage, it appeared that the respondent chartered libelant’s schooner to carry a cargo of coal; that he informed libelant of the amount of coal he had then on hand, of the amount he was receiving daily from the mine, and that he was “working all regular”; that, after further conversation, libelant remarked, “Then you could load the schooner by the first of next week,” to which the respondent replied that it ought to be done by Wednesday, at furthest. Eeld, that there was no contract to load by a day certain, but the libelant relied on what he thought would probably be done.</p> <p>2. Same—Diligence.</p> <p>Where a vessel has been chartered to carry coal, without any express agreement to load by a day certain, and mining and railroad transportation have been interrupted by conditions of weather which the charterer’s care and diligence could not overcome, such charterer should not be held responsible for a delay of 15 days in loading.</p>

<p>1. Shipping—Construction op Bottomry Bond—Transshipment op Cargo— Voluntary Paymeis:t.</p> <p>In a port of refugo a portion of the cargo was transshipped, and tho master gave a bottomry bond which covered this, as well as the ship herself and the balance of her cargo. The bond was conditioned to be void if the “said vessel” should be utterly lost by a peril of the sea. The vessel and the cargo in her were totally lost through a collision. Held, that the bond was not to be construed as being void only upon the condition that both the vessel herself and the vessel containing the transshipped cargo were lost, but must be interpreted, according to the plain meaning of its terms, as becoming void upon the loss of the vessel herself; and therefore a payment of the bond by the consignees of the transshipped cargo, in order to obtain possession thereof, was a voluntary payment, and could not be recovered by them from the vessel’s owners, although the latter had recovered damages for her loss from the vessel with which she collided. 59 Fed. 621, reversed.</p> <p>2. Same.</p> <p>The bond could not bo sustained, as against the transshipped cargo, upon the theory that the same was to be treated as salvage from the wreck of the vessel which was lost; for it was in no sense “cargo laden on board” of her on the voyage from the port of refuge to her destination, which was the voyage upon which the bottomry lender had staked his money.</p> <p>8. Same—Collision—Rights of Bottomry Lender.</p> <p>Quaere, whether a bottomry lender upon a vessel totally lost in collision is entitled to recover damages against the offending vessel, or against the owner of the lost vessel after the offending vessel has made restitution to him.</p>

This was a libel by Lewis EL Higgins and others, owners of the schooner George S. Tarbell, against the schooner Gypsum Prince-, to recover damages resulting from a collision between the two vessels. The collision happened in the night, some time between 10 o'clock and 20 minutes after, at a place about six or seven miles from. Vineyard Haven light-ship, off the coast of Massachusetts.

<p>Libels filed in tlie district court for the Eastern district .of New York by the owners of the steamships Switzerland and La Gascogne, respectively, for damages caused by a collision between the two vessels. The district court sustained the libel of La Gascogne, from which no appeal was taken, but proceedings suspended; and the libel of the Switzerland was dismissed, with costs. 38 Fed. 853. From the final decree in this case an appeal was taken to the circuit court, and the decree affirmed pro forma. Libelant appealed to the circuit court of appeals for the Second circuit, and the decree was reversed. 9 C. C. A. 75, 60 Fed. 461. Additional proofs had been taken in the circuit court before the decision there. On the mandate of the circuit court of appeals, a reference was ordered in the circuit court to ascertain the damages sustained by the libelant. The commissioner reported the amount of damages sustained by the Switzerland at §22,928.02, with interest from the dates of payment to the date of his report, amounting to $9,623.05. The report says:</p> <p>“Many items of damages are not disputed. The amounts of the bills presented for dockage, painting, new sails, and stevedoring bills were objected to, and also the itexxis of charge for surveys, for wages paid the crew, and for wharfage, and all items of interest on the sums' allowed. The Switzerland was not on the dock any more days than was required to repair the damages caused by the collision. That the painting was done at the same time does not call for a pro rata deduction from the sum paid for dockage, and the whole is allowed. The amount charged for painting is conceded to be an estimate of what part of the whole bill paid was made necessary by the collision. There are two bills, with different éstimates. I think the smaller bill is more accurately divided; and, applying its ratio to the other bill, ?S0 has been deducted. There is no evidence that the sails used to stop temporarily the leaks in the bows could have been- repaired; and, in computing damages in collision cases, it is not usual to make any deduction because of the replacing of old material with new. This item is allowed. The unloading of cargo, to get the steamship in trim to enter the dry dock, was begun Saturday afternoon, and earned on continuously night and day, till Monday. If even $100 extra -work had been saved by ordering the stevedore to wait till Monday morning, other items of damage that are allowed would have been increased; and the evidence does not convince me that the time employed or the wages was too much. The charge for wharfage is disallowed. It was not an item of actual expense, but appears to be a bookkeeping item of the accounts kept by the steamship company with their own vessels. The charge for survey bills is disallowed. While the cost of a survey to ascertain the injuries done and the repairs required is usually allowed, the foes of the surveyors employed to ascertain the damages and make report to the insurance companies whether necessary repairs have been made in order to x’einsure the -vessel in her proper class were disallowed by the court in the case of The Italy, in this district, in July, 188-1. That ruling has been followed since. In tlxe case of Ciampa v. The F. W. Vosburgh, 41 Fed. 57, decided in 1890,—after the case of the Belgenland, 36 Fed. 504,—exceptions to the disallowance of this item were again overruled; and the case was affirmed on appeal taken (on other grounds) to the circuit court and the circuit court of appeals successively. 1 C. C. A. 508, 50 Fed. 239. In the present case the steamship was a Belgian vessel, and it is claimed that the law of Belgium requires the consul to appoint surveyors in all cases of collision or general average, and compels the procurement of a consular certificate on their reports, and the three surveyors were so appointed by the consul. But a^ide from the questions what the law is, and whether the law is proved, or whether, if proved, the fees of the surveyors are proper items of damage to be assessed against the claimant, there is no evidence whereby to separate their fees as such surveyors from their fees as insurance inspectors, which under the present practice must be disallowed. The charge of insurance inspection of the cargo is also disallowed. The wages of the crew during the time the ship was detained are allowed. They were shipped for the voyage in Antwerp, and could not properly be discharged in a foreign port There is no demurrage, as such, asked, for detention of the Switzerland, The usual practice in this district is to allow interest on the amount of bills paid in repair of damages and allowed; and while it is well settled that the allowance of interest is in the discretion of the court, in admiralty cases, I do not think it the province of the commissioner to withhold it, without special instxmction from the court.’'</p> <p>Exceptions were filed by the libelant to the disallowance of the charge for wharfage, and the disallowance of the fees paid insurance inspectors. for surveying. The respondent excepted to the report as to the items for painting, sails, dry dockage, stevedore's bill, and wages of the crew, and also to the allowance of any interest on the items of damage. Respondent's exception to the allowance of interest was sustained, and all the others overruled. Libelant’s exception to the disallowance of the charges for surveys was sustained and the other exceptions overruled. The ruling of the circuit judge on the exceptions is as follows:</p> <p>“(1) The exception as to the allowance of interest is sustained, on the authority of The Isaac Newton, 1 Abb. Adm. 588, Fed. Cas. No. 7,090, mainly because of the circumstance that the new evidence introduced on appeal materially changed the case from that presented to the district court. (2) The exception to the disallowance of surveyor’s charges ($350) is sustained. The rule laid down in The Alaska, 44 Fed. 500, and The Belgenland, 30 Fed. 507, seems the fairer one. (3) The exception to the disallowance of wharfage charge ($350) is overruled. (4) The exception to refusal of the master to credit respondent with $619.25 for two days’ dry dockage is overruled. (5) The exception to the allowance of the bill for new sails is overruled. (6) The exception to the allowance for painting- ($441.92) is overruled. (7) The exception to the refusal to allow a deduction of $202.05 on the stevedore’s bill is overruled. (8) The exception to allowance of wages of crew is overruled.”</p> <p>Before the entry of a final decree in the circuit court on the decision as to the exceptions, application was made by the proctor for libelant for a direction to fix the date of the circuit court of appeals as the date from which interest should run in favor of the libelant in the final decree in this court; and, after hearing, the following decision was rendered.</p>

<p>These were cross libels by tbe owners of the steamer Georgia and of the tug Luckenbach against these vessels, respectively, to recover damages for a collision between them in Norfolk Harbor.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>In Equity. Bill by Leo. A. Brigel and Logan O. Murray, trustees, against the Tug River Coal & Salt Company and others, to foreclose a mortgage and for further relief. There was a decree for complainants, and the Tug Eiver Coal & Salt Company appealed.</p>

This was a suit by Otho L. Hayes, receiver of the Lima National Bank, against tbe Columbus, Lima & Milwaukee Railway Company, to marshal liens and bring about a sale. A receiver of Hie property of the defendant having been appointed, the Lima & Northern Railway Company applied for leave to make such receiver a party to an action pending in a state court

<p>1. CONTHACTS—OkBTIFICATH OB EnOINKEB.</p> <p>A provision in a construction contract that the engineer or architect of the owner shall Anally determine, as between the contractor and owner, what work has been done, and the amount to be paid for it, is valid, and should be enforced, in the absence of fraud or palpable mistake.</p> <p>& Same—Ebaud—Evidence.</p> <p>M. & Co. made a contract with the L. Ry. Co. for certain, grading, under which they were to be paid at a certain rate for excavating earth, and at a much higher rate' for excavating loose rock. The estimate of tlie engineer of the railway company was to be conclusive as to the classification of material, and the amount due. M. & Co. claimed that the engineer had classified certain material as earth which should have been classified as loose rock. The evidence as to the actual character of the material was conflicting, as was also the evidence as to statements claimed to have been made by the engineer to M. & Co., before and after the contract was made, as to how he would classify the material. Held that, upon the whole case, there was nothing to impeach the good faith of the engineer.</p> <p>3. Same—Estoppel.</p> <p>The contract provided that monthly estimates of the work done should be made by the engineer, and 90 per cent, of the amount appearing to be due should be paid to the contractors, and that at the close of the work a final estimate should be made by the engineer, who should not be bound, in making it, by the monthly estimates, and the balance then found to be due on the final estimate should be paid to the contractors. It was also provided that the contractors should assure the payment of the laborers, and, in case of failure, the engineer might arrange for their payment out of the sums due monthly. After certain monthly estimates had been made by subordinate engineers in charge of the work, the chief engineer expressed the opinion that such estimates were excessive, and would have to be reduced, but upon inquiry by the contractors, who informed him that they wished to avoid paying their subcontractors more than it might afterwards appear they were entitled to, the chief engineer assured the contractors that the reduction would not amount to so much, and they might safely pay the subcontractors. The contractors accordingly paid the subcontractors sums which exceeded by $12,114 the amount allowed on the final estimate to the months in question. Held, that the railway company, for which the engineer acted, was estopped to claim a reduction which would subject the contractors to loss.</p> <p>4. Equity Practice—Fund Subject to Attachment — Payment into Court.</p> <p>The railway company objected to paying to the contractors the balance found due to them, on the ground that notices of attachments and assignments of the fund had been served upon it. Helé, that the decree should provide that the fund might be paid into court, and that the railway company could protect itself by bringing in all claimants.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>This was an action of scire facias on a mortgage by Emily M. Truman against Lucy T. Weed and others. The circuit court gave judgment for the defendants. Plaintiff brings error.</p>

TMs was a suit by the United States against the Oregon Central Railroad Company and the Oregon & California Railroad Company to enjoin them from asserting title to certain lands claimed to hare been forfeited. The circuit court rendered a decree for the complainant. 57 Fed. 426. Defendants appeal.

This was an action by Mary Griffin against the Overman Wheel Company, to recover damages for. the death of her husband, John Griffin, which occurred while he was in the employ of defendant. Upon the first trial the court directed a verdict for defendant at. the close of plaintiff’s testimony, and entered judgment accordingly. Upon a writ of error sued out by plaintiff to this court, the judgment was reversed. 9 C. C. A. 542, 61 Fed. 568.

This was an action by Charles A. .Russ against the Pittsburgh, Cincinnati, Chicago & St Louis Railway Company for personal injuries. Upon the first trial in the circuit court the plaintiff recovered a judgment for $1,000, which was reversed by this court 6 C. C. A. 597, 57 Fed. 822. Upon a second trial the plaintiff recovered a judgment for $2,500. - Defendant brings error. Affirmed.

<p>In Error to the Circuit Court of the United States for the Northern District of Iowa.</p> <p>This was an action by Yoclov Netolicky, as administrator of the estate of Joseph Tripkosh, deceased, against the Chicago & Northwestern Railway Company, to recover damages for the death of the intestate. The plaintiff recovered judgment in the circuit court. Defendant brings error.</p>

<p>Action by Florence A. Wilson against the Ward Lumber Company for trespass.</p> <p>This is an, action of ejectment, with consequential damages for cutting and removing timber from a large body of land in Mississippi county, in tills slate. The value of the timber being agreed upon, and a jury being waived, the case is submitted to the court on the single issue of tille. The common source of title has its origin in Act Cong. Feb. Ü, 1853, making a grant of the lands in question, for the purpose of aiding in the construction of the Cairo & Fulton Railroad, six sections in width on each side of said road. The said act provided, inter alia, that said lands so granted should be subject to disposal by the state legislature for the purpose in question. By Act Cong. July 28, 186(5, the provisions of the first-named act were revived and continued for a period of 10 years. By an act of the legislature of Missouri of December 11, 1855, the governor of the state was empowered to cause to be issued and delivered to said railroad the bonds of the state, amounting to §250,000, with interest not exceeding 6 per centum per annum. This act provided that the certificate of acceptance of such bonds by the company should constitute a mortgage on said road, and every part thereof, and its appurtenances, to secure the principal and interest of said bonds. On the 3d day of March, 1857, the state legislature passed an act to amend an act entitled “An act to secure tiie completion of certain railroads in this stare, and for other purposes, approved December 10, 1855,” granting to the said Cairo & Fulton Railroad thereby an additional loan of §400,000. This latter act contained the following language: “All bonds issued under the provisions of this act shall constitute a first lien or mortgage upon the road and property of the several companies so receiving them in the same manner as provided by the act approved February 22, 1853, to expedite the construction of the Pacific Railroad and the Hannibal and St. Joseph Railroad, and the act approved December 11, 1855, of which this is amendatory.” By section 15 of said act of 1857, it was provided that, in the event of the failure by the company to pay any part of the principal or interest of the bonds of the state issued under said act, the governor could take such steps as might be necessary and proper to foreclose the state’s mortgage, and enforce its lien upon the property incumbered. The president of the Cairo & Fulton Railroad Oompany on the 20th of June, 3857, filed with the secretary of state the required certificate of acceptance by the road under the provisions of the act of December 11, 1855, and a like certificate on the 39th day of October, 1857, accepting the provisions of the act of March 3, 1857.- On August 5, 1857, the said president filed with the secretary of state his receipt for 300 state bonds, at §1,000 each, and on October 17, 1857, he filed a like receipt for 80 state bonds of like denomination, and also receipts for the residue of said bonds, dated December 1, 1858, April 10, 1859, and July 25, 1859. After said enactments, and the said acceptances by the railroad company, and after the acceptance of a. portion of the bonds of the state, the railroad company, by appropriate deed, conveyed to Moore, Wilson, and Waterman the roadway, stations, and depot, together with all its lands and real estate, in trust to secure the payment of certain bonds of the company. This deed of trust in its caption purports to bo of date May 23, 1857,. but was not acknowledged until May 28, 1858. By the recitations of this deed of trust it was made “subject to a prior first and only lien in the nature of a mortgage in favor of the state, made to secure and indemnify said state against the, payment of said bonds, as said state may from time to time issue and deliver,” etc., “under and by virtue of tbe provisions of the several acts of the general assembly of Missouri entitled as follows: ‘An act to expedite the construction of the Cairo and Fulton Railway Company, passed December 11, 1855;’ and also, ‘An act to amend an act to secure the completion of certain railroads in this state, and for other purposes, approved December 11, 1855, approved March 3, 1857.’ ” The amount of said bonds secured by said deed of trust was not to exceed the sum of $1,600,000, with interest, with the proviso that nothing contained in said deed should have the effect or operate as a lien upon said railroad, nor any part nor section thereof, nor its appurtenances, prior or in derogation of, or in any way to interfere with, the lien of said state under the acts of the legislature aforesaid. The plaintiff in this case claims title under foreclosure proceedings instituted on a default in the said deed of trust to Moore, Wilson, and Waterman, by deed dated in 1859, to one Hamilton. Hamilton conveyed to one Stephens, and Stephens to Blakely Wilson, in 1860, under whom the plaintiff claims as heir. The defendant claims title as follows: The Cairo & Fulton Railroad Company having defaulted in the payment of said aid bonds, the legislature passed two acts, one of February 19, 18’66, and the other of March 19, 1866, authorizing and directing the governor of the state to foreclose the state’s lien, predicated of the acts of December 11, 1855, and March 3, 1857, providing for a board of commissioners to bid in the property at said foreclosure sale, with power in them to resell the property so purchased. Under these foreclosure proceedings the governor of the state; by deed October 12, 1866, sold and conveyed to the state “the said Cairo and Fulton Railroad, and evefy part and section thereof, so far as the same is constructed, completed, or projected, together with its appurtenances, rolling stock, and property, of every description, and all rights and franchises thereto belonging.” By a like description, by deed January 17, 1877, the state conveyed the property to Reed, Mackey, Vogle, and Simmons, who conveyed the property to Thomas Allen. From Allen this title passed to the Cairo, Arkansas & Texas Railroad Company, which consolidated with the St Louis & Iron Mountain Railway Company, organized in 1866, under the name of the St Louis, Iron Mountain & Southern Railway Company, which last-named- company, by appropriate deed, conveyed the land in suit, as a part of its claimed purchase, to the grantor of the defendant, by deed dated Márch 28, 1SS8.</p>

<p>1. Judgments—Collateral Attack—Presumptions.</p> <p>Where a bill to enforce a vendor’s lien in a court of general jurisdiction alleged a sale to defendant of several parcels at a gross price, but the record does not show the location of such parcels, it will be presumed, in a collateral attack on the decree, that the land was within the territorial jurisdiction of the court.</p> <p>2. Same—Recitals—Service by Publication.</p> <p>The recital in a judgment by default that an order of publication had been “duly made and filed” is sufficient on collateral attack, in the absence of record evidence showing noncompliance with the statute.</p> <p>8. Same.</p> <p>In a collateral attack on a judgment by default, an objection that the order of publication is not dated, and that, therefore, it does not appear that such order was made before publication, canuot be sustained, where the publisher’s certificate is annexed to the order, and states that it was published, etc., as the order must have been made before it could have been published.</p> <p>4. Same.</p> <p>A recital in a judgment by default that publication had been duly made and filed, and the publisher’s certificate that the order was published “ten weeks,” are sufficient, on collateral attack, to show publication for “two months successively,” as required by the order and by statute.</p> <p>5. Writs—Service by Publication—When Authorized.</p> <p>Under Act Ky. Dec. 19, 1796 (1 Litt. Laws Ky. 592), authorizing service by publication in certain eases, on satisfactory proof that defendant is “out of the commonwealth,” publication may be ordered on proof that defendants are not “inhabitants” of the commonwealth.</p>

This was an action by Eudora Y. Smith, administratrix with the will annexed of William F. Smith, deceased, against the New York Life Insurance Company, on a policy of insurance. The circuit court gave judgment for the plaintiff. 57 Fed. 133. Defendant brings error.

<p>1. Conspiracy to Commit Offenses against the United States—Rev. St. § 5440.</p> <p>The statute relating to conspiracies to commit offenses against the United States (Rev. St. § 5440) contains three elements, which are necessary to constitute the offense. These are: (1) The act of two or more persons conspiring together; (2) to commit any offense against the United States; (3) the overt act, or the element of one or more of such parties doing any act to effect the object of the conspiracy.</p> <p>S. Same—Conspiracy Defined.</p> <p>A conspiracy is a combination of two or more persons by concerted action to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal, by criminal or unlawful means. Pettibone v. U. S., 13 Sup. Ct. 542, 148 U. S. 203, cited.</p> <p>8. Same—Manner of Conspiring.</p> <p>The common design is the essence of the charge; but it is not necessary that two or more persons should meet together, and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly, by words or in writing, state what the unlawful scheme was to be, and the details of the plan or the means by which the unlawful combination was to be made effective. It is sufficient if two or more persons, in any manner or through any contrivance, positively or tacitly, come to a mutual understanding to accomplish a common and unlawful design.</p> <p>4. Same—Parties to Conspiracy.</p> <p>Where an unlawful end is sought to be effected, and two or more persons, actuated by the common purpose of accomplishing that end, work together in any way in furtherance of the unlawful scheme, every one of said persons becomes a member of the conspiracy, although the part any one was to take therein was a subordinate one, or was to be executed at a remote distance from the other conspirators.</p> <p>5. Same.</p> <p>Any one who, after a conspiracy is formed, and who knows of its existence, joins therein, becomes as much a party thereto from that time as if he had originally conspired. U. S. v. Babcock, Fed. Cas. No. 14,487, 3 Dill. 586, cited.</p> <p>8. Same—Evidence—Acts of One Party.</p> <p>Where several persons are proved to have combined together for the same illegal purpose, any act done by one of them, in pursuance of the original concerted plan, and with reference to the common object, is, in the contemplation of the law, the act of the whole party, and therefore the proof of such act will be evidence against any of the others who were engaged in the conspiracy.</p> <p>7. Same—Declarations by Parties.</p> <p>Any declaration made by one of the parties, during the pendency of the illegal enterprise, is not only evidence against himself, but against all the other conspirators, who, when the combination is proved, are as much responsible for such declarations, and the acts to which they relate, as if made and committed by themselves. This rule applies to the declaration of a co-conspirator, although he may not himself be under prosecution.</p> <p>8. Same—Conspiracy as Distinct Offense.</p> <p>The law regards the act of unlawful combination and confederacy as dangerous to the peace of society, and declares that such combination and confederacy to commit crime requires an additional restraint to those provided for the commission of the crime itself. It therefore makes criminal the conspiracy itself, with penalties and punishments distinct from those It attaches to the crime which may be the object of the conspiracy.</p> <p>O. Same—Means Contemplated—Allegations and Prooes.</p> <p>It is not incumbent upon the prosecution to prove that all the means sat out in the indictment were in fact agreed upon to carry out the conspiracy, or that any of them were actually used or put in operation. It is sufficient if it be shown that one or more of the means described in the indictment were to be used to execute that purpose.</p> <p>10. Same—Overt Acts.</p> <p>While at common law it was not necessary to aver or prove an overt act in furtherance of a conspiracy, yet, under the statute relating to conspiracies to commit an offense against the United States, the doing of some act in pursuance of the conspiracy is made an ingredient of the crime, and must be established as a necessary, element thereof, although the act may not be in itself criminal. U. S. v. Thompson, 31 Fed. 331, 12 Sawy. 155, cited.</p> <p>11. Same.</p> <p>It is not necessary, however, to a verdict of guilty, that the jury should find that each and every one of the overt acts charged in the indictment was in fact committed; hut it is sufficient to. show that one or more of these acts was committed, and that it was done in furtherance of the conspiracy.</p> <p>12. Obstructing the Mails—Rey. St. § SflDo.</p> <p>Although the law, which now appears in Rev. St. § 3995, and which makes it an offense to obstruct and retard the passage of the United States mails, was originally passed prior to the introduction into the United States of the method of transporting mail by railroads, and the phraseology of the law conforms to conditions prevailing at that time (March 3, 1825), yet it is equally applicable to the modern system of conveyance, and protects alike the transportation of the mail by the “limited express” and by the old-fashioned stagecoach.</p> <p>13. Same.</p> <p>The statute applies to all persons who “knowingly and willfully” oh struct and retard the passage of the mails or the carrier carrying the same; that is, to those who know that the acts performed, however innocent they may otherwise he, will have the effect of obstructing and retarding the mail, and who perform the acts with the intent that such shall be their operation. U. S. v. Kirby, 7 Wall. 485, cited.</p> <p>14. Same.</p> <p>The statute also applies to persons who, having in view the accomplishment of other purposes, perform unlawful acts, which have the effect of obstructing and retarding the passage of the mails. In such case, an intent to obstruct a.nd retard the mails will he imputed to the authors of the unlawful act, although the attainment of other ends may have been their primary object. U. S. v. Kilby, 7 Wall. 485, cited.</p> <p>35. Same—Mail Trains.</p> <p>A mail train is a train as usually and regularly made up, including not merely a mail car, but such other cars' as are usually drawn in the train. If the train usually carries a 1’nllman car, then such train, as a mail train, would include the Pullman car as a part of its regular make up. Therefore, if such a train is obstructed or retarded because it draws a Pullman car, it is no defense that the parties so delaying it were willing that the mail should proceed if the Pullman car were left behind, U. S. v. Clark, Fed. Cas. No. 14,805, 23 Int. Rev. Rec. 306, followed.</p> <p>18. Same.</p> <p>Any train which is carrying mail, under the sanction of the postal authorities, is a mail train, in the eye of the law.</p> <p>17. Same—Intent.</p> <p>It is not necessary that defendants should be shown to have had knowledge that the mails were on board of a train which they have detained and disabled. On the contrary, they are chargeable with an intent to do whatever is the reasonable and natural consequence of their acts; and as the laws make all railways postal routes of the United States, and it is within every one’s knowledge that a large jiortion of the passenger trains carry mail, it is to be presumed that any person obstructing one of those trains contemplates, among other intents, the obstruction of the mail. U. S. v. Debs, 65 Fed. 211, followed.</p> <p>18. Combinations to Obstruct Interstate Commerce—Act July 2, 1890.</p> <p>The word “commerce,” as used in the act of July 2, 1890, to protect trade and commerce against unlawful restraints and monopolies, and in the constitution of the United States, has a broader meaning than the word “trade.” Commerce among the states consists of intercourse and traffic between their citizens, and includes the transportation of per sods and property, as well as the purchase, sale, and exchange of commodities.</p> <p>19. Same.</p> <p>While the primary object of the statute was doubtless to prevent the destruction of legitimate and healthy competition in interstate commerce, by the engrossing and monopolizing of the markets for commodities, yet its provisions are broad enough to reach a combination or conspiracy that will interrupt the transportation of such commodities and persons from one state to another. U. S. v. Workingmen’s Amalgamated Council, 54 Fed. 995, cited.</p> <p>20. Same—Pullman Cars.</p> <p>Pullman cars in use upon railroads are instrumentalities of “commerce.” U. S. v. Debs, 64 Fed. 763, cited.</p> <p>21. Conspiracies—Combinations oe Railroad Employes — Unions and Protective Associations—Strikes.</p> <p>The employes of railway companies have a right to organize for mutual benefit and protection, and for the purpose of securing the highest wages and the best conditions they can command. They may appoint officers, who shall advise them as to the course to be taken in their relations with their employer, and they may, if they choose, repose in their officers authority to order them, or any of them, on pain of expulsion from their union, peaceably to leave the employment because the terms thereof are unsatisfactory. But it is unlawful for them to combine and quit work for the purpose of compelling their employer to withdraw from his relations with a third party, for the purpose of injuring that third party. Thomas v. Railway Co., 62 Fed. 817, followed.</p> <p>22. ¡Same.</p> <p>A strike, or a preconcerted quitting of work, by a combination of railroad employes, is, in itself, unlawful, if the concerted action is knowingly and willfully directed by the parties to it for the purpose of obstructing and retarding the passage of the mails, or in restraint of trade and commerce among the states.</p> <p>23. Criminal Law—Reasonable Doubt.</p> <p>A reasonable doubt is one arising out of the evidence; not an imaginary doubt, a fanciful conjecture, or strained inference, but such a doubt as a reasonable man would act upon or decline to act upon when his own concerns are involved,—a doubt for which a good reason can be given, which reason must be based upon the evidence or want of evidence.</p> <p>24. Same—Province of Jury—Credibility of Witnesses.</p> <p>The jury are the exclusive judges of the credibility of the witnesses. A witness is presumed to speak the truth, but this presumption may be repelled by the manner in which he testifies, by the character of his testimony, or by the evidence affecting his character fof truth, honesty, or integrity, or his motives, and by contrary evidence. But the power of the jury to judge of the effect of evidence is not arbitrary; it must be exercised with legal discretion, and in subordination to the rules of evidence.</p>

<p>1. Customs Duties — Expoet and Reimportation —“Manufactures ok Machines. ”</p> <p>A dredge boat, without power of self-propulsion, and capable of use as a dredging machine only, is a “manufacture or machine.” within the meaning of Rev. St § 2505, and, after exportation from the United States, is entitled, under that section, to he reimported without duty, if “returned in the same condition as exported.”</p> <p>§. Same.</p> <p>A dredge boat which was exported from the United States, was again relumed thereto, but, before her return, was extensively repaired. The repairs consisted in part in putting in a new dipper and crane, substituting new and much heavier anchors, and a more powerful anchor hoist, and also in raising her deck to enable her to carry the additional weight. This involved an expenditure amounting to 40 per cent, of her value after the work was done. Held, that the dredge could not be considered as “returned in the same condition as exported” (Rev. St. § 2505), and that she was therefore subject to duty, notwithstanding that some of the work was done by American labor, and that part of the material used was American material.</p>

Massachusetts. This was a suit in equity by the Martin & Hill Cash-Carrier Company against Joseph C. Martin for infringement of certain patents for automatic cash-carrier systems for store service. The circuit court found that there was no infringement, and dismissed the bill. 62 Fed. 272. Complainant appeals.

This was a suit by the Clinton Wire-Cloth Company against the Wright & Colton Wire-Cloth Company for alleged infringement of two patents relating to the art of weaving wire cloth. The circuit court sustained the patents, found infringement, and directed a decree for an injunction and accounting. 65 Fed. 425. Defendant appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This was a libel by Achille Starace against the steamship Hindoustan (the Compagnie Nationale de Navigation, claimant) to recover damages for deterioration and decay of four shipments of garlic brought from Naples, and consigned to the libelant. The' district court dismissed the libel, and the libelant appeals. .</p> <p>The opinion filed by BROWN, District Judge, in the court below was as follows:</p> <p>Under the bills of lading the burden of proof is upon the libelant to show negligence in the carrier; since the damage was by an excepted peril; negligence in this case could only be the omission of the customary ventilation for garlic in passenger ships. The proof does not show such omission, but the presence of the usual and sufficient ventilation for properly cured garlic. The defendants had no notice that any ventilation beyond the usual and customary was needed. The testimony that the garlic was thoroughly cured when shipped is not persuasive, because the outward appearance was not a i.5iiíti<-ient test. I think the decay arose from the early crop not thoroughly dried, and that the ventilation was sufficient for well cured garlic, and all ilia I is usual for such ships and all she was Ijound to provide.</p> <p>The matters in issue will appear from the following statement, contained in the brief for the appellant:</p> <p>The libel was filed to recover 81,582,89 for damage to four shipments of garlic nuulo on June 14, 1892, by four different persons, at Naples, Italy, on the steamship Hindoustan, then bound for New York, and which were on the fítk day of July, 1892, delivered at New York to the libelant, the consignee thereof, in a damaged condition. These four shipments of garlic, consisting together of 422 hampers, were stowed in the lower hold No. 3 of the steamship, and the hatchway leading into that hold was closed, the cracks caulked, and the hatch covered with a tarpaulin, The hatch was not opened during the voyage. The garlic, when shipped, was in good order and condition, having been properly dried and packed, but the greater portion of the garlic when delivered at Now York was decayed, and this damage was caused by heating; and sweating on account of insufficient ventilation. The hatch having been closed, the only means of ventilation of the bold in which the garlic was stowed were four iron pipes, leading from the bottom of the'hold, two to the between, decks, and two to the upper or spar deck. The two pipos leading to the between decks were undoubtedly closed, as was the hatch, to prevent a supposed annoyance by the odor of the garlic to the passengers who were located in the between decks. As there was no opening in the deck by which air could escape, no air could pass down the two ventilators from the spar deck, through which it was designed that air should pass to the bottom of the hold, and there was consequently no ventilation whatever. The weather during the voyage permitted the opening of this hatch sufficiently often to have afforded ventilation enough to have preserved the garlic. If the garlic had been stowed in some other part of the ship, where proper ventilation could have been had, it would not have decayed. It is evident that those in charge of- the ship coaid have prevented the damage to the garlic by affording it proper ventilation, either by opening the hatch occasionally during the voyage, or by stowing it where there was sufficient ventilation. The libelant claims that the failure to afford sufficient ventilation was negligence, and that the steamship is consequently liable for the damage, notwithstanding the bills of lading contained a clause exempting the steamship from liability by reason of decay, for the decay could have been prevented by the exercise of due diligence on. the part of those in charge • of the steamship. On behalf of the steamship, it is claimed that the garlic was not sufficiently dried when shipped; that it was stowed in the eustomaiy way and place; that it had the usual ventilation; and that the damage was due to inherent defects or vice projire, and not to the negligence of those in charge of the steamship; and that, consequently, the steamship and the claimant arc exempted from liability therefor, under provisions of the bills of lading.</p>

<p>Shipping—Customary Quick Discharge.</p> <p>Where 30 or 31 working days wore occupied In discharging a cargo of 475,000 feet of lumber, which had been loaded in 16 days, held, that there was a failure to comply with an agreement to discharge with “customary quick dispatch,” although some allowance was to be made for wet weather, the lumber being seasoned.</p>

This was a libel for personal injuries by John McLaughlin against the steamer Benefactor (the Yew York & Wilmington Steamship Company, claimant). The district court entered a decree for the libelant, upon the following opinion (BUTLER, District Judge): The libelant, who was a seaman on board the respondent, sues to recover compensation for an injury sustained while operating her ash hoist on a trip from Philadelphia to Richmond.

This was an action at law by Herbert S. Smith against the Sargent Manufacturing Company for‘alleged infringement of a patent. Defendant demurs to the complaint for want of jurisdiction.

This was a creditors’ bill brought by Edward P. Hatch, doing business under the firm name and style of Lord & Taylor, against the Bancroft-Thompson Company, Frederick A. Bancroft, John W. Thompson, Charles B. Hawley, William Butler, Lawrence E. Christopher, Benjamin M. Hawley, Joseph W. Fitzgerald, and John L. Bassingthwait. The case was heard upon exceptions to the answer, and also upon a motion to quash the plea.

This was a suit in equity by the Campbell Printing-Press & Manufacturing Company against George A. Marden and Edward T. Row-ell, copartners doing business under the name of Marden & Rowell, for the infringement of letters patent No. 292,521, issued January 8, 1884, to Wellington P. Kidder, for a printing machine, and No. 376,053, issued January 3, 1888, to John H. Stonemetz, for a web-printing machine.

This was an action by Thomas P. Beal, receiver of the Maverick National Bank of Boston, against the Essex Savings Bank, to recover its proportionate amount of an assessment made upon the stockholders of the Maverick Bank by the comptroller of the currency, under Rev. St. § 5151. In the circuit court a judgment was rendered for defendant, and plaintiff brings error.

<p>This was a suit by Lawrence P. Mills against W. Briggs Green to restrain the defendant individually and as supervisor of registration for Richland county, S. C., from performing certain acts under the registration laws of the state. The complainant moved for a preliminary injunction. Granted.</p>

This was a bill in the nature of a quia timet, filed by complainant (then Mary J. Graeffe, now Mary J. Garner) and her husband, Albert J. Graeffe, against the Second National Bank of Providence, 11. I., and Christopher H. Shippee and Samuel W. K. Allen.

These were four separate appeals from a decree of the circuit court in the suit of Charles A. Gregory against Frederic A. Pike and others. The cause was originally brought in the supreme judicial court o£ Massachusetts, December 10, 1881, and was afterwards removed to the circuit court. The original bill sought to recover possession of certain notes which had been pledged as collateral, and to enjoin the payment thereof to the pledgee.

This was a bill by William Baldwin against the National Hedge & Wire-Pence Company for the purpose of reforming a contract purporting to assign all of complainant’s rights in a certain patent.

<p>1. Constitutional Law—Suit against a State.</p> <p>The statute of South Carolina known as the “Dispensary Law” prohibits citizens of that state from bringing into it, for their own use, alcoholic liquors purchased in other states, and directs the seizure and confiscation of such liquors, but provides for the purchase of such liquors either in or out of the state by state officials, and for their sale by such officials. One D., a citizen of South Carolina, purchased in other states, and imported, for his own use, certain alcoholic liquors, which were seized by the state constables, acting under the dispensary law. D. filed a bill in the federal court for an injunction to restrain such constables from continuing their interference with his importation of alcoholic liquors; alleging that the dispensary law was an interference with interstate commerce,'and in contravention of the acts of congress relating thereto. Held, that the suit was not a suit against the state.</p> <p>,2. United States Courts—Jurisdiction—Federal Question.</p> <p>■Held, further, that the suit involved a fe'deral question, and was within the jurisdiction of the courts of the United States.</p> <p>8. Interstate Commerce—Discrimination—South Carolina Dispensary Law.</p> <p>Held, further, that so far as the dispensary law prohibited citizens of the state from purchasing alcoholic liquors, for their own use, in other states, and from importing them into South Carolina, it was a discrimination against the products of other states and the citizens of such states not patronized by the state officials of South Carolina, and was void as an interference with interstate commerce.</p> <p>4. Same—Police Power.</p> <p>Held, further, that such interference could not be justified as an exercise of the police power.</p>

<p>Hearing on Bill, Answer, and Proofs.</p> <p>This was a bill in equity filed by Robert M. Yardley, as receiver of the Keystone National Bank of the City of Philadelphia, against William S. Torr, Charles C. Torr, Margaret Boyd, William Smith, John Mahony, James Welsh, James Tully, Lucy Torr, Cháflotte Grosse, J. Edward Addicks, Robert C. Laird, Morris W. Schaeffer, Anna Bringhurst, Charles B. Taber, Washington H. Bringhurst, Harry Torr, the George Nugent Home for Baptists, the Pennsylvania Museum & School of Industrial Art, Ark Building & Loan Association, the Fidelity Insurance, Trust & Safe Deposit Company (trustee for Josephine Y. Delbert), Goethe Building Association No. 2, the Pennsylvania Company for Insurance on Lives and Granting Annuities (trustee for Fannie Y. Riter), Gilbert Riter (trustee for Caroline Y. Riter), and City Hall Building & Loan Association. It averred: That on the 20th day of March, 1891, the said Keystone Bank was declared insolvent, and taken charge of by the comptroller of the currency of the United States, and that on the 9th day of May, 1891, the said complainant was appointed receiver of the said institution. That, on the • day of the failure, William S. Torr was a shareholder of said bank, and was the owner and holder of 755 shares of the capital stock thereof. That the said comptroller subsequently ordered an assessment of $50 per share upon the shareholders, in pursuance of the act of congress in such case made and provided; that is to say, the sum of $37,750 upon William S Torr, as the holder of the shares before mentioned. That subsequently the complainant commenced a suit for the recovery of the said sum against the said William S. Torr, and obtained a judgment against him for the sum of $39,781.88, with interest, on the 23d day of January, 1893. That complainant on the 23d day of February, 1893, issued a writ of fieri facias on said judgment against said William S. Torr, which writ was duly returned nulla bona. That said judgment was yet in force, and the whole amount, with interest, was due thereon. That on the 20th day of March, 1891,—the day of the failure of the Keystone Bank,—said William S. Torr was the owner in fee simple of certain real estate situate in the county of Philadelphia, and within the Eastern district of Pennsylvania, particularly described in the bill, and consisting of several lots or pieces of ground referred to and designated as A, B, O, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z. That said real estate was unincumbered, and of the value of $40,000 and upwards, and that said William S. Torr had no other real estate, and that he has no personal property which is subject to levy and execution. That for and with the purpose and intent to hinder, delay, and defraud his creditors of them 'just and lawful actions, debts, and damages, said William S. Torr did convey all of the said real estate without any valuable consideration whatever, but for the alleged consideration of natural love and affection, as in his deeds of conveyance expressed,—that is to say, on the 9th day of May, 1891, he executed and delivered five several deeds of conveyance, the first to his son Charles C. Torr, his heirs and assigns, for the real estate described as A to K, inclusive;' the second to his daughter Lucy Torr, her heirs and assigns, for the premises described as L to S, inclusive; the next two to his daughter Anna Bringhurst, her heirs and assigns, for the premises described as T to X, inclusive; the last to his son Harry Torr, his heirs and assigns, for the premises described as Y and Z. That by the act of 13 Eliz. c. 5, which is part of the common law of'Pennsylvania, the said five conveyances are void, frustrate, and of none effect. That said defendant Charles C. Torr subsequently mortgaged and conveyed the said several premises to the said defendants the George Nugent Home for Baptists, the City Hall Building & Loan Association, William Smith, James Welsh, and James Tully. That said Lucy Torr subsequently, by various conveyances, conveyed the said several premises to others of the said defendants, and that said Harry Torr did the same. That said Anna Bringhurst and Washington XI. Bringlmrst, her husband, subsequently conveyed the said several premises, for the consideration of five dollars, to Charles 15. Taber, trustee, and the said Charles 13. Taber, trustee, on the same day, for the consideration of five dollars, conveyed the said several premises to the said Washington n. Bringlmrst, husband of said Anna Bringhurst, who now holds the same. That all the grantees, mortgagees, purchasers, and takers from the said children took with notice tliat the deeds of conveyance from said William S. Tore were wholly without consideration and void, as against the creditors of the said William S. Torr, and made with intent to hinder and. defraud his creditors. Wherefore the bill prayed relief by cancellation of the said conveyances and mortgages. The defendants other than tlie four children filed separate answers, denying that they had notice that the said deeds were void in law, and made with intent to defraud creditors, and averred that full consideration had been paid for the same, asking that the complainant be put to his proofs.</p>

This was a suit by the Western Mortgage & Investment Company, Limited, against John W. Burford and Matilda 3?. Burford, to foreclose a mortgage. The cause was heard on the pleadings and proofs.

<p>Eminent Domain—Right op, in United States Government—Public Use— What Is--Nation Cemetery at Gettysburg.</p> <p>The act of congress approved March 3. 3893, appropriating money for the' purchase of land at Gettysburg, Pa., for the purpose of preserving the lines of battle there, and of marking the loading tactical positions of the battlefield with tablets, and for opening avenues, etc., does not indicate such a public use under the constitution as to justify condemnation proceedings under the subsequent act of June 5, 1894. Butler, District Judge, dissenting.</p>

Buie for a New Trial. This was an action founded upon two certain bonds executed and delivered by the defendant, the Fidelity & Casualty Company of New York, to the plaintiff, the Consolidation National Bank, of the city of Philadelphia, wherein and whereby, in the first bond, the said defendant agreed to make good and reimburse to the said plaintiff iatklhe expiration of three months after proof of loss) such pecuniary loss to the extent of §10,000 as should be sustained by…

<p>Equity—Shaking Contract in Proceeds of Land.</p> <p>A. and C., and two others, entered into an agreement for a speculation in land, which was to bo purchased in the name of 0., and by him sold for the common benefit. A. was to receive a three-tenths interest in the proceeds, in consideration of certain services, and the others, each, a one-tenth interest, in consideration of the contribution by each of $10,000. Subsequently A. made an agreement with complainant, who paid $5,000 for an interest, and, a difference having arisen between them, a compromise agreement was made between complainant and A. by which it was agreed that complainant’s interest should be three-fortieths of the proceeds of the laud. Complainant, brought suit against all tho parties to compel C. to give him a written recognition of his three-fortieths interest in the land, and to ha.ve Ms interest, in the land, to that extent, decreed by the court. C. admitted complainant’s claim to a one-twentieth interest in the proceeds of the land, bat alleged that he had no knowledge whether he was entitled .to a greater interest, as that depended on au agreement between complainant and A. .Held,—First, that the trust agreement was of such nature that it gave complainant no interest in the laud, but only an interest in tho proceeds of sale when sold; second, that, as the trastee was not shown to be insolvent, and as it, did not appear that he had been negligent or inefficient in tho discharge of his duties, and as the beneficiaries were largely indebted to the trustee for advances which were a first lien on tho land, a court of equity would not, for the present a.t least, decree that tho complainant had a specific interest in the land to the extent claimed, or any other extent, as it might embarrass the trastee in disposing of the property pursuant to the terms of the trust.</p>

This was an action by Narcisse Poirier against the Northern Pacific Railroad Company to recover damages for personal injuries. Judgment was rendered in the circuit court for the plaintiff. Defendant brings error.

This was an action by the United States against the Northern Pacific Railroad Company and others to recover the value of certain lumber. After the receipt of a mandate from the supreme court, to which the case had been taken on appeal, a judgment was entered by the plaintiff, without notice to the defendants. Defendants moved to set aside such judgment, and enter one in accordance with what was claimed to be the true intent of the mandate.

This was an action by the Peoria Grape Sugar Company against the Babcock Company to recover the price of certain glucose, sold and delivered. The defendant interposed a counterclaim, to which the plaintiff demurred. This is an action by the plaintiff against the defendant to recover the purchase price of a quantify of glucose sold and delivered by the plaintiff to the defendant.

<p>L Unfair Competition—Fraud of Plaintiff.</p> <p>Fraud, suck as to disentitle a plaintiff to relief against unfair competition in ids business, cannot be predicated of statements which, owing to the brevity required by the limited space of a label, are not minutely accurate; nor of the use on two classes of goods of labels which might be mistaken for each .other, the statements on both being true; nor of the use, to a limited extent, of the name of a firm to which the plaintiff believed itself to have succeeded; nor of the use of “trade talk” in advertisements.</p> <p>2. Same—Corporate Name—Estoppel.</p> <p>Defendant was incorporated as the William Clark Thread Company. Plaintiff, the Clark Thread Company, objected to this name; and, at the suggestion of its managing director and treasurer, defendant’s name was changed to the William Clark Company. Held, that plaintiff was estopped to object afterwards to the use by defendant of the amended name.</p> <p>8. Same- -Imitation of Ladeos.</p> <p>Plaintiff had established, by a long course of successful dealing, a high reputation and extensive market for the thread manufactured and sold by it, which was known as “Clark’s Thread,” and was put up on spools each hearing a round label, with the name “Clark’s” in the upper part of the circle, the words “Spool Cotton” in the lower part, and the letters “O. N. T.,” separated by periods, horizontally across the middle. Defendant, immediately after its incorporation, began the manufacture of thread, which it put up on spools with a label in all respects like plaintiff’s, except that it bore the letters “N-M-W,” separated by hyphens, in place of the letters on plaintiff’s labels. Held, that defendant’s label was calculated to create confusion and. misunderstanding, and that plaintiff was entitled to an injunction restraining the defendant from using the word “Clark” or “Clark’s” in connection with thread manufactured by the William Clark Company.</p> <p>4 Same—Use of Name.</p> <p>Held, further, that plaintiff’s right was not impaired by the fact that another manufacturer, whose goods came little into competition with plaintiff’s, had long used the name “Clark’s” in connection with thread, with plaintiff’s assent.</p>

This was a suit by John W. Harper and o Biers against William V. Ranous for infringement of the copyright of the novel “Trilby.” Complainants moved for a preliminary injunction.

This was a suit in equity by Alfred H. Littleton and others against the Oliver Ditson Company for infringement of the copyright on three musical compositions, two of which are in the form of sheet music, and one (a cantata) consists of some 90 pages of music bound together in book form, and with a paper cover. Two of these pieces were printed from electrotype plates, and one from stone, by the lithographic process.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a bill by Charles W. Holtzer against the Consolidated Electric Manufacturing Company and William Botch and Charles G-. Winter, its president and treasurer, respectively, for alleged infringement of letters patent No. 327,878, issued October 6, 1885, to Charles W. Holtzer, for an improvement in galvanic batteries. The circuit court rendered a decree for complainant 60 Fed. 748. Defendants appeal.</p>

This was a bill by Otto and William Thum against John A. Andrews, William Y. Wadleigh, .<>. F. Bullard, and William A. Dole, trading under the name of John A. Andrews & Co., for alleged infringement of two patents relating to fly paper. The circuit court rendered a decree for complainants (53 Fed. 84), and defendants appealed. On June 23, 1894, a motion made by the appellees to dismiss the appeal was denied by this court. 12 O. C. A, 77, 64 Fed. 149.

<p>Patents—Equitable Assignment — Bona Fide Purchases of Legal Title.</p> <p>One who has purchased an equitable interest in an invention cannot justify the manufacture and sale of the patented article, as against a bona fide purchaser of' the legal title to the patent, who found no recorded assignment of it, and who was chargeable with no notice of any outstanding claim thereto, or as against subsequent purchasers from the latter, even if such purchasers had notice. 55 Fed. 819, affirmed.</p>

<p>Appeal from tlie Circuit Court of the United States for the Eastern District of New York.</p> <p>This was a suit in equity by Daniel Fuller Appleton and others against Frederic Ecaubert, under Rev. St. § 4918, to procure the cancellation of patent No. 434,539, granted to defendant August 19, 1890, for a method of ornamenting watch-case centers and other like articles. Defendant filed a cross hill to procure the cancellation of the patent upon which complainants based their rights, being No. 435,235, issued September 2, 1890, to Adolph W. .Hofmann. The circuit court found that Hofmann was the original inventor, decreed that the Ecaubert patent was void, and dismissed the cross bill. 62 Fed. 742. Ecaubert appeals.</p>

<p>1. Patents—Infringement—Combination Claims.</p> <p>To constitute infringement of a combination, the alleged infringing device must include every element of the combination as claimed; and it is immaterial that certain elements which are claimed, and which are omitted from defendants’ device, are not of the essence of the real invention. Water-Meter Co. v. Desper, 101 U. S. 332, applied.</p> <p>2. Same—Brickkilns.</p> <p>The Kinzel patent, No. 471,769, for a brickkiln in which the bricks are both dried and burned by coal fire, without the usual preliminary drying by wood or coke fire, held not infringed.</p>

<p>This was a bill by the Office Specialty Manufacturing Company against the Winternight & Cornyn Manufacturing Company for infringement of a patent relating to paper holders.</p>

<p>Appeal from tbe Circuit Court of the United States for the Northern District of Illinois.</p> <p>This was a bill by William Henderson against the Wells Grlass Company and Herman Schuhmann for .alleged infringement of certain patents relating to window sashes and analogous structures. The circuit court sustained the patents, found that they were infringed, and entered a decree for an injunction and an accounting. Defendants appealed.</p> <p>The appellee, William Henderson, is the grantee of letters patent No. 412,751 and No. 420,510, issued October 15, 1889, and February 4, 1890, respectively,— the first for a “process of manufacturing metallic crossbars and rails for window sashes and analogous structures,” and the second for “improvements in window-sash bars,” designed to be made by the process described in the first patent. The bill charged the appellants, the Wells Glass Company and Herman Schuhmann, with infringement of both patents, and prayed an injunction and an accounting. The defendants answered, setting up a license, and denying both invention and infringement. General replication. The court below considered that both patents were valid and had been infringed, and decreed an injunction and accounting as prayed.</p> <p>The specification, drawings and claims of the second patent, which, it may be noted, was first applied for, are as follows:</p> <p>“Be it known that I, William Henderson, a subject of the queen of Great Britain, residing at Chicago, in the county of Cook and state of Illinois, have invented certain new and useful improvements in window-sash bars, of which the following is a specification. My invention relates to rails or crossbars and fastening for window sashes, and is more especially adapted to that class of sashes which contain many small pieces of glass cut in numerous configurations and designs, such as is seen in stained-glass windows and other ornamental windows; and the objects of my improvements are to furnish a strong and durable crossbar and fastening, which shall be of little weight, which will not rust or corrode, which can be easily bent into any desired form, and is readily placed in any sash, and removed therefrom conveniently, and also to facilitate the operation of repairing or replacing broken parts without, interfering with the other portions. I attain these objects by the peculiar construction of the bar and the removable fastening or cap; and, in order to enable others skilled in the art to which my invention perla ins to make ana use the same, I will now proceed to describe it, referring to the accompanying drawings, in which Fig. 1 is a front view of iny bar and fastening as it appears in a window sash. Fig. 2 is a transverse section of the bar and cap. Fig. 8 is a side elevation of the bar and cap, with the latter removed, showing (he notched ends. Fig. 4 is a sectional view taken at the line, x, y, Fig. 1, and shows the manner of securing or locking one bar to another. Figs. 5 and <> are views of modified forms of the cap. In the drawings, A represents my bar, formed of one piece of material, and preferably made of metal, a is the rib thereof, having its upper part made with a flange, a', as seen in Fig. 2 of the drawings, for securing more firmly the cap or fastening, as will be presently explained. The lower part of (his stem or rib is formed with shoulders, b, b, at right angles with the rib, for sux>porting the glass, and beneath said shoulders I preferably form a hollow, f, of any desired form. It will be readily understood that the hollow portion of the bur can be dispensed with, thus leaving it with a flat surface, or that portion may be solid; bul I prefer to form it hollow-, as shown, thereby gaining strength without materially increasing the weight of the bar. ft is also evident that this form affords a better surfaco for finishing. At each end of the bar. A, I provide notches, c, c, preferably of an acute-angle form, as shown in Fig. 8. Tile lower notches are adapted to connect with and fit over the shoulder of the transverse bar, as seen, and will bo more readily understood by reference to Fig. 4 of Hie drawings. By clipping off a portion of the upper notch on the rib. a, the bar is formed as seen at hi. which form permits the cap to rest upon the surface of the glass, and hold it securely in ¡hace. B is a cap made of one piece of material, and preferably of metal, shaped to form a hollow, b', which may be of any form, but preferably of triangular form, as shown in Fig. E>. It will be observed that at the bottom of the cap, and opposite the apex of the hollow, b', T provide a longitudinal slot, d2, which extends the entire length of the securing cap. Into this slot the rib, a, is inserted, and the cap is pressed down over the same until the lips, d, rest upon the surface of the glass. Of course, the cap may bo made of any size, and the exterior of any form which may be found to be best adapted to receive a polish or finish. While I prefer to form the cap with a triangular hollow, and have found, from experience, that such a form is more desirable, yet I may use a hollow of the form shown in Fig. 2, or any other shape, without departing from the spirit of my invention. In Fig. t> I have shown a modified form of a cap which I may sometimes use, and in this modification 1 form the cap of one piece of material, as before, witli the longitudinal slot, d2, and lips, <1. at right angles with the slot, as shown. The edges of the lips, d, are bent upward within the hollow of the cap, at substantially right angles with the lips, and form the parallel sides, h, h, of the groove or slot. These parallel sides will clasp the rib, a, firmly, and prevent a rocking or lateral movement of the cap on the rib, as will be understood by reference to the drawings. In bending the cap, B. to conform to the curve of the bar, and so that the adjustment of the cap on the rib of the bar can be easily effected, I place the rib, a, within the groove, d2, of the cap, and bend both cap and bar at the same time; and, in order to prevent the cap slipping from the rib while thus working the material, I sometimes form the rib with a slight enlargement, a', at the top thereof. This enlargement also assists in retaining the cap in place after the glass is in position, and gives additional strength to the whole bar; but it is not absolutely necessary to hold the cap in place, as this is done by soldering the ends of the cap to its transverse cap, which it. overlaps and interlocks, as is seen in Fig. 4 of the drawings. It will be further noticed that each end, g, of the cap is cut at a suitable angle to conform to the side of the cap with which the end meets; thus allowing it to fit snugly against the transverse cap, and to press against the surface of the glass. In forming the notches on the ends of the bar the cap is placed over the rib, a, and, with a suitable machine, the notches are made. The cap is then removed, and the portion of the upper notch is clipped off to form the ends, as at E. By this operation I am enabled to cut the cap and bar of corresponding length, thus making the adjustment of the cap an easy matter. My object in clipping the upper end of the rib, a, as seen at E, in Fig. 3, is, in joining the parts together the lower portion of the transverse bar will fit in the angular notch, c, and the transverse cap will rest on the glass when it (the,glass) is thick; but when thin glass is used the cap will rest on the clipped énd, E, of the rib, a. In manufacturing my bar and cap, I may use a die of proper form, and ‘draw’ the metal through the same, or I may take strips of metal, of suitable dimensions, and form the same as desired, by folding or otherwise. It is also evident that I can make them of various kinds of sheet metal and other material, and that the contour of the cap and of the lower portion of the bar may be made in numerous designs. In use, my bars and caps are easily applied to any window sash, and are especially adapted to be used in doors or windows where sudden shocks or jars occur, as my construction secures the glass very firmly. The application is evident. The bars and caps are cut in suitable lengths, and bent into any desired form. The cap is then removed, and the edge of the glass rests upon the shoulders of the bar. The cap is then placed on the rib, a, and pressed down until the lower portion rests upon the surface of the glass. The ends of the caps may then be soldered to the connecting one, thus making the fastening more secure. It is readily understood that I can form the cap, B, with a groove or channel having parallel sides, or may form it with a core, but I prefer the formations above named. It is also obvious that I may form the rib, a, with a flange on each side of the same at the top, or I may use only one flange, as shown.</p> <p>“Having thus fully described my invention, what I claim as new, and desire to secure by leters patent, is: (1) The crossbar, A, having the shoulders, b, b, and rib, a, at right angles therewith; the hollow projection, f, beneath the shoulders; the ends formed as at c, c, and E; and the vertically adjustable cap, B,—substantially as shown anti described, and for the purpose set forth. (2) The combination of the crossbar, A, having the rib, a, and shoulders, b, b, at right angles with the rib; the hollow projection, f; =the ends formed at c, c, and E, with the vertically adjustable cap, B, having slot, da, and lips, d, d, at right angles with the rib, when in the slot,—substantially as shown and described. (3) The combination of the crossbar, A, having the rib, a, and shoulders, b, b, at right angles with the rib; the hollow projection, f; the ends formed as at c, c, and E, with the vertically adjustable cap, B, having slot, da, lips, d, at right angles with the slot, and parallel sides, h, b,— substantially as shown and described. (4) In window, sash and analogous structures, the crossbar, A, having the notches, c, c, shoulders, b, b, and rib, a, having its ends formed as at E, in combination with the cap, B, having-the hollow, b', lips, d, d, slot, d a, and both ends cut at an angle, as at g,— substantially as and for the purpose set forth. (5) In window sash and analogous structures, the crossbar, A, having the notches, c, c, shoulders, b, b, and rib, a, having the flange, a', and ends formed as at e, in combination with the cap, B, provided with a triangular hollow, b', and having lips, d, d, slot, d^, and angles, g,—substantially as shown and described, and for the purpose set forth.”</p> <p>The claims of patent No. 412,751 are as follows: “(1) The herein-described process of manufacturing crossbars, rails, and fastenings for window sashes, etc., consisting first in passing the strips of metal through a die or dies, giving the bars the desired conformation or shape; then cutting or sawing the formed strips into proper lengths; then notching the ends of the strips; and then passing the notched strips through a device for bending the same into suitable shape or curve ready for use—substantially as and for the purpose set forth. (2) The herein-described process of manufacturing metallic crossbars, rails, and fastenings for window sashes, consisting first in drawing the strips of metal through a die or dies, making the proper conformation or shape; then placing the strips horizontally against a revolving circular saw, and cutting them to proper lengths; then notching the ends of the formed strips by placing them longitudinally against a series of revolving disks; then passing the notched strips through a series of rollers, thus bending them to a proper curve ready for use,—substantially as shown and described, and for the purpose set forth. (3) The herein-described process of manufacturing metallic crossbars, rails, and fastenings for window sashes, consisting first in passing strips of metal through a die or dies, forming a bar and cap of desired conformation; then placing the cap on the rib of the bar, and cutting them into proper lengths; then notching the ends of the strip; and then passing the notched strips through a device for bending the same to a desired curve; then removing the adjustable cap, and clipping the ends of the rib of the bar at a desired angle,—substantially as shown and described, and for the purpose set forth. (4) The herein-described method of manufacturing hollow metallic crossbars, rails, and fastenings for window sashes, consisting first of forming a metallic bar and cap in separate pieces; then adjusting the cap on the rib or web of the bar; then bending, cutting, and notching the same as a whole; then removing the adjustable ,cap, and cutting the ends of the web or rib of the bar,—substantially as and for the purpose specified.’’ The appellant Schuhmann applied July 1, 1889, for letters pateut on “improvements in metallic window-sash bars,” and on the ensuing 12th of November was granted letters No. 415,068, in accordance with which, it is conceded, the alleged infringing devices were made. They are sufficiently illustrated by the following drawings, which are in evidence and are substantially identical with Figs. 2 and 4 of Schuhmann’s patent:</p> <p> </p> <p> </p>

<p>In Equity. Bill by the De la Yergne Refrigerating Machine Company against John Featherstone and others to enjoin infringement of a patent and for an accounting.</p>

This was a bill by the Johnson Company against the Pennsylvania Steel Company for alleged infringement of a patent for a street-railway switch.

<p>Admiralty Appeals—Nonjoinder of Parties—Limitation op Liability.</p> <p>All persons who file claims for.damages in a proceeding for limitation of liability are interested adversely to the owner in respect to a decree which limits his liability; and where such petitioners are not treated, in the proceedings, as adverse to each other, part of them cannot maintain alone an appeal from such decree, in the absence of any proceedings to effect a severance of their interests.</p>

<p>Appeal—-Assignments of Error—Motion for New Trial.</p> <p>An order overruling a motion for a new trial is not assignable as error in a federal appellate court.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>This was a petition by Francis G. King for a writ of mandamus directing George Bunto, Thomas E. Pharo, and John Rowen, as members of the board of county commissioners of Grand county, Colo., to levy a special tax to pay a judgment against the county held by the petitioner. The circuit court granted the writ, and the respondents appealed. On February 18, 1895, the judgment was reversed by this court because the record did not show that the judgment sought to be enforced was recovered upon any obligation issued under a statute requiring the commissioners to levy a special tax for the payment thereof, and that in the absence of any such legislative direction the court had no power to direct the levy of such a tax. 67 Fed. 202. The petition for the writ of mandamus in fact did not show the nature of the cause of action upon which the judgment was recovered. The plaintiff has now filed a petition for a rehearing.</p>

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>This was an action by Mary E. Heiserman against the American Central Insurance Company to recover upon a policy of fire insurance. There was verdict for the plaintiff, and judgment accordingly, and the defendant brings error.</p>

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

<p>1. Public Laixds—Railroad Grants — Excepted Tracts — Bona Fide Purchasers—Notice.</p> <p>Actual possession of land by one claiming under a pre-emption filing at the time when a land grant railroad was so located as to include such land within its place limits is notice to all persons purchasing under the grant while such occupancy continues that the land was excepted from the grant, and hence they cannot successfully claim, by way of defense to a suit brought by the United States to annul the grant, that they were bona fide purchasers.</p> <p>%. Same—Estoppel against the United States.</p> <p>Dong-continued delay by the United States in bringing a suit to cancel an erroneous certification of lands to a state in aid of a railroad, by which delay the railroad company and its grantees were prevented from acquiring. indemnity lands in place of those erroneously certified, raises no equitable estoppel against the United States, both because there was no intended deception on the part of the government or its officers, and because the United States is not bound, in respect to the enforcement of rights or the protection of interests which are vested in It In Its sovereign capacity, by any laches or negligence of its officers.</p> <p>8, Same.</p> <p>Where a suit is brought in the name of the United States pursuant to an act of congress expressly directing the same for the purpose of canceling an erroneous certification of lands to a state to aid in the construction of a railway, the fact that, previous to the bringing of the suit, a preemptioner, whose claim had been canceled, petitioned the land department for the reinstatement of his, rights, is not sufficient to raise a presumption that the suit was brought for his benefit alone; but, on the contrary, the government must be considered to have such a direct interest in the suit as will prevent the operation of any laches or estoppel on account of the negligence of its officers; for, if the pre-emptioner’s claim should be ultimately sustained, the government would be entitled to receive from him the minimum price of the land, and, if not sustained, It would have the land itself.</p>

<p>Public Lands—Railway Ghauts — ISrboneous Certification — Bona Fids Purchasers.</p> <p>A bona fide purchaser of lands erroneously certified to a state under a railroad grant has a good defense against a suit brought by the United States under tho act of March 3, 1887 (24 Stat. 556), to cancel the certification and restore the title to the government. U. S. v. Winona & St. P. R. Co. (No. 564) 67 Fed. 948, followed.</p>

<p>Public Lands—Railway Grants—Bona Fide Purchasers.</p> <p>A bona fide purchaser of the title of a land-grant railroad company to lands patented to it by mistake, and which were excepted from the grant by reason or prior pre-emption claims, that were subsequently canceled, has superior equities, constituting a good defense to a suit brought by the United States under the act of March 3, 1887, to set aside the patent and restore the title to the government. U. S. v. Winona & St. P. It. Co. (No-. 564) 67 Fed. 948, followed. 61 Fed. 143, affirmed.</p>

<p>Appeal from the Circuit Court of the United States for the District . of Kansas.'</p> <p>' This is an appeal from a decree in favor of the United States which annulled a patent of 160 acres of land to the appellant the Union Pacific Railway Company, upon the title evidenced by which a mortgage for $2,200, which was held by the appellant William Dalrymple, rested. The case was heard below upon the bill exhibited by the United States and the answers of the railway company. When a suit in equity is heard on the bill and the answers, the material allegations of the answers must be taken to be true, and the^ averments of the bill that are denied by the answers to be false. Leeds V. Insurance Co., 2 Wheat. 380, 384; U. S. v. Trans-Missouri Freight Ass’n, 7 C. C. A. 15, 82, 58 Fed. 58. Under this rule the material facts in this case are these: By the act of July 1, 1802 (12 Stat. c. 120, §§ 3, 9, pp. 489, 492, 494), and the various acts amendatory thereof, the United States granted to’ the Leavenworth, Pawnee & Western Railway Company of Kansas, a corporation, certain of the public lands, to aid in the construction of a railroad and telegraph line from the Missouri river, at the mouth of the Kansas river, to a place of connection with the Pacific Railroad of Missouri on the one hundredth meridian west of Greenwich, described in that act. The original grant, so far as it is material to this case, was in thes.e words: “That there be, and is hereby, granted to the said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said road, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached, at the time the line of said road is definitely fixed.” The act of July 2, 1804, also provided that whenever 40 consecutive miles of any portion of said railroad and telegraph line was completed, as required by the act, patents should be issued conveying the right and title to said lands to the company on each side of the road as far as the same was completed. By the act of July 2, 1864 (13 Stat. c. 216, § 4, pp. 356, 358), section 3 of the act of July 1, 1862, was amended by striking out the word “five” wherever it occurs, and inserting in lieu of it the word “ten,” and by striking out the word “ten” wherever it occurs, and inserting in place of it the word “twenty.”</p> <p>The name of the Leavenworth, Pawnee & Western Railroad Company of Kansas was subsequently changed to the Union Pacific Railway Company, Eastern Division, then to the Kansas Pacific Railroad Company, and the company was finally consolidated with the Union Pacific Railway Company, the appellant, which has succeeded to all the rights this railway company acquired under any of its names. The railroad company earned its grant by the timely and fit construction of its railroad and telegraph line. The 160 acres of land in controversy here was a part of an odd section within the place limits of the grant to this company by the acts we have mentioned. On May 8,1867, the railroad company filed its map of the definite location of the line of its railroad opposite to this land. On April 14,1866, one James S. Grier, who was a minor 20 years of age, filed his declaratory statement upon this land m the proper land office, by which he alleged that he had settled thereon under the pre-emption laws. On August 12, 1808, he relinquished Ms pre-emption claim to this land. On September 10, 13(58, the railroad company sold and conveyed this tract of land by a warranty deed to one lames Waddle. On. February 10, 1871, Aimer Weller bought the land of Waddle, and the latter conveyed it by Warranty deed either to him or to his wife, Hannah M. Weller. Thereupon Weller and hie wife took possession of the land under this «leed, and have ever since retained it. They concealed from the railroad company and from the United States the fact that they had bought the title Waddle received from the railroad company; and on October 0, 1871, Weller made a homestead entry upon the land, which was on October 22, 1875, after a contest and trial before the land department of the United States of the claims of Weller and the railroad company, canceled by the commissioner oí the general land office. On December 31, 1877, the United States issued a patent of this land to the railroad company. At some time prior to September, 188(5, Weller died intestate, and left his wife, Hannah B. Weller, and flve children, his sole surviving heirs; and Hannah B. Weller recorded in the county in which this land was situated the deed of February 10, 1871, from Waddle, which then ran to her, so that there appeared of record a perfect chain of title from the United States through the railroad company an«l Waddle to herself. She .was still in possession of the land, and she then procured an abstract of this title, and, for the purpose of procuring a loan upon the securiiy of her title to the land, furnished if to the Lombard Investment Company, a corporation, which, in reliance upon the abstract, the record title, and her possession, and without notice of any defect in this title, loaned to Hannah E. Weller, at her request. 82,200 upon the security of her mortgage upon this land. This mortgage was dated September 1, 1886. It contained full covenants of warranty of the title, and secured the payment of a promissory note of 82,200 made by Hannah E. Weller, and payable to the Lombard Investment Company. On September 25, 188(5, the appellant William Dalrymple purchased and paid a valuable consideration for this note and mortgage in good faith, without notice of any defects in the title disclosed by the abstract. According to the answers of the railroad company and Dalrymple, which stand admitted in this case, Hannah E. Weller knew all these facts; but she did not disclose to the United States the fact that she or her husband had procured the title of Waddle under the patent to the railroad company. But for the purpose of «lischarging the land in part at least from the lien of the mortgage, and of preventing the appellant Dalrymple from collecting the amount owing to him on this mortgage debt, she petitioned the United States, through the general land office, to bring this suit to cancel the patent to tho railroad company on the ground that she and the other heirs of Weller hold the possession of, and were entitled to the title to, the land under the homestead entry made by her husband in 1871 only, and she thereby induced the .United States, to bring and prosecute this suit. The United States has no interest in the suit, and the real parties to the controversy are Hannah E. Weller ami William Dalrymple, the holder of her mortgage.</p>

<p>1. Equity Pleading—Demurrer—Exhibits.</p> <p>Upon demurrer to a bill, the exhibits filed with the bill are to be read as part of it, and the statements found in them must be accepted as true against the demurrants.</p> <p>2. Equity Jurisdiction—Bill to Cancel Tax Deeds—Multiplicity or Suits.</p> <p>A bill by a landowner to cancel numerous tax deeds, held by different persons under-a sale made by the commissioner of school lands, in West Virginia, in one proceeding to forfeit the lands for taxes, may be maintained as a bill to remove cloud from title, and on the ground of avoiding a multiplicity of suits, where all the parties claim under a common source of title.</p> <p>8. Same—Tax Sales—ScnooL Lands.</p> <p>Where lands are forfeited for nonpayment of taxes in West Virginia, and are sold by the commissioner of school lands, the title acquired by virtue of the tax deeds is the same title as that of the original owner, and he is to be regarded as the common source of title, notwithstanding that the same has passed through the state to the purchasers at the tax sale.</p> <p>4 Laches—Demurrer to Bill.</p> <p>The question of laches cannot be considered upon demurrer to the bill where the bill alleges that complainant was ignorant of the matters constituting the foundation of his right, and that, as soon as he discovered them, he took the necessary steps to assert his right.</p> <p>5. Equity Pleading—Multieariousness—Joinder or Parties.</p> <p>In a bill and cross bill for partition between tenants in common of a tract of land, it is proper to join as defendants numerous purchasers at a tax sale of part of the land, for the purpose of canceling their deeds, on the ground that the tax proceedings were invalid; and such bills are not rendered multifarious by such joinder. ■</p> <p>6. Same—Discretion or Court.</p> <p>Whether or not a bill is multifarious is a question which rests largely in the discretion of the court, and a decision overruling an objection based on that ground will not be reviewed on appeal.</p>

<p>1. Mortgage Debt—'Unauthorized Payment.</p> <p>One N. executed a deed of trust to D., to secure the payment of a note payable to the wife of D. in. five years. The deed of trust empowered the trustee to hold the property in trust for the holder of the note, and, in ease of default, upon application of the holder of the note, to foreclose and sell, providing also that, if the note was paid, the deed should be void, and the property should be reconveyed to N. or her assigns. D.’s wife, the holder of the note, sold and transferred it with the deed of trust' to one J. Subsequently the land passed by mesne conveyances, subject to the deed of trust, to one W. W., before the maturity of the note, paid the amount thereof to D., the trustee, and received from him and placed on record a quitclaim deed of the property covered by the deed of trust to N., for a nominal consideration. The quitclaim deed made no reference to the powers contained in the deed of trust, and did not recite the payment of the note; nor was the note surrendered. Held, that the payment made to D. did not extinguish the note.</p> <p>3. Deed of Trust—Satisfaction—Unauthorized Act of Trustee.</p> <p>Held, further, that the quitclaim deed executed by the trustee did not relieve the premises of the lien of the trust deed.</p>

<p>1. Sale—Delivery—-Change of Possession.</p> <p>In an action against a marshal for a wrongful levy of an attachment upon goods alleged to have been sold and delivered by the attachment debtor to the plaintiffs, there was evidence tending to prove that prior to the levy the debtor had executed a bill of sale to the plaintiffs of the goods in question, which formed part of the stock in his store; that the goods were inventoried, and placed on shelves by themselves in. the store, in charge of an agent of plaintiffs; and that, when the marshal visited the store to make his levy, the debtor informed him of the sale, and pointed out the goods to him. Helé, that it was error to refuse to instruct the jury that, although the goods were not so marked that the marshal could have distinguished them by inspection, yet if the marshal had notice of the sale, and eould have found out which were the plaintiffs’ goods, it wak his duty not to levy on them, and if, after notice, he refused to separate them, and did levy on them, he was liable; and that such error was aggravated by instructions that, even if the goods were sold to the plaintiffs, no title passed, unless they were so separated or marked that they eould have been, distinguished by inspection.</p> <p>2. Same—Levy under Attachment.</p> <p>Helé, further, that if the marshal was not notified of the sale, and the goods were not so separated as to be distinguishable from the rest of the stock, the marshal would not be liable.</p> <p>8. Same—Declarations of Vendor.</p> <p>Helé, further, that declarations or acts of the vendor of the goods, after the sale, eould not affect the validity of such sale, in the absence of evidence of a fraudulent conspiracy between the vendor and vendee, or that such declarations or acts were authorized by the vendee.</p>

This was a suit by Duncan Hunter and others against Edward L. Preston to determine an adverse claim to certain mining ground. The case was commenced in a state court, and was afterwards removed to the federal court by the defendant. The circuit court entered a decree dismissing the suit on the ground that neither of the parties was entitled to recover. Defendant appeals.

<p>1. Powers of Congress—Postoffice—Lotteries.</p> <p>It is within the power of congress to confer authority upon the head of the postal department to direct a postmaster to refuse the delivery of registered letters or the payment of money orders to a person or corporation which, upon evidence satisfactory to the head of the department, is found to be engaged in conducting a lottery.</p> <p>2. Courts—Jurisdiction—Injunction against Executive Department.</p> <p>The courts have no jurisdiction to enjoin the execution of an order of the postmaster general, made pursuant to Rev. St. §§ 3929, 4041, and Ac! Cong. Sept 19, 1890, finding that a certain corporation ánd its officers are engaged in conducting a lottery, and forbidding postmasters to deliver registered letters or pay money orders to them, since the making of such order involves an exercise of discretion reposed in the postmaster general. Commerford v. Thompson, 1 Eed. 417, and Bank v. Merchant, 18 Fed. 841, distinguished.</p>

<p>“This was a suit by the California Fig Syrup Company against Frederick Stearns & Co. to restrain the infringement of complainant’s trade-mark. The cause was heard on the jdeadings and proofs.</p>

<p>1. Patents—What Constitutes Invention.</p> <p>There is no invention in substituting, for the solid needles of a braiding machine, tubular needles, for feeding the thread in making purl-edge braid, it being common to feed thread into braids by means of tubular needles.</p> <p>2. Same—Bbaiding Machines.</p> <p>The Lauferty patent, No. 430,346, for an improvement in braiding machines, is void for want of invention.</p>

This was a bill by the Kilmer Manufacturing Company against J. W. Griswold and F. B. Griswold for alleged infringement of patents Nos. 282,991 and 372,375, issued to Irving A. Kilmer August 14,_ 1883, and November I, 1887, respectively, for improvements in adjustable bale ties. Upon the hearing, complainant’s contention was confined to the second claim of each patent.

These were suits by the George L. Thompson Manufacturing Company against John H. Walbridge, and against Edward F. Haff and Louis S. Coe, respectively, for infringement of letters patent No. 460,-709, granted October 6, 1891, to George L. Thompson, for an improvement in curling irons. The circuit court dismissed the bills. 60 Fed. 91. Complainant appeals.