Volume 68 — Federal Reporter

<p>1. Ukited States Oouiits — Jurisdiction—Demurrer.</p> <p>A citizen of New Jersey sued a citizen of Pennsylvania in a federal court in New York. The defendant appeared generally, add demurred for want of jurisdiction. Held, that the objection that the action was brought in the wrong district was waived hy the appearance, and was not raised by the demurrer.</p> <p>2. Pleading — Action on Statu Statute.</p> <p>The action was founded on a'statute of New Jersey, which was not pleaded. Held that, as the courts of the United States take judicial notice of the laws of the several states, the right; could, nevertheless, be enforced by the federal court in New York.</p>

Appeals from the Circuit Court of the United States for the District of Minnesota.

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

<p>Appealable Order — Order Dissolving Injunction.</p> <p>An order made by a district judge, in vacation, before the act of February 18, 1895, amending section 7 of the act of March 3, 1891 (26 Stat. 82(3, c. 517), went into effect, which dissolves a temporary restraining order made or an intervening petition, is not appealable.</p>

' This was a suit by the Peninsular Iron Company and Abel Whitney, as trustee for himself and Walter S. Sears, Clianning Whitney, William S. Wilcox, Porter L. Sword, the estate of Henry Hart, deceased, the estate of Chaides Kynd, deceased, and for the Illinois Manufacturing Company; Joseph S. Hart, administrator, and Jane S. Hart, administratrix, of the estate of Henry Hart; Adelia S. Angel; Joseph R. Bennett; S. Edson Graves; Henry S. Wilcox; George A. Wilcox; and Abel…

<p>Railroad Companies — Receivers—Preferred Claims — Diversion of Funds.</p> <p>A judgment was recovered against a railroad company, which gave bond and appealed. Pending appeal, the road went into the hands of receivers appointed in an action by the trustee for bondholders to foreclose a mortgage executed prior to the recovery of the judgment. The judgment was affirmed, and the receivers petitioned for leave to pay it out of the funds accruing from the operation of the road since the receivership, on the ground that the owner of the judgment was about to sue the sureties on the appeal bond, who had become bound solely for the accommodation of the company, and that, by virtue of such bond, the assets of the road had been preserved and increased by the amount of the judgment. Meló!, that the claim of the sureties could not be thus given preference over the mortgage bonds, as the lien of the latter was superior to that of the judgment, and there had been no diversion of funds to the benefit of the bondholders so as to create an equity to a preference. Farmers’ Loan & Trust Co. v. Kansas City, W. & N. W. R. Co., 53 Fed. 182, disapproved.</p>

This was a suit by Dexter Hatch, Arthur Hatch, Cyrus Hatch, and Ezra Hatch, by their next friend, Josephine Hatch, against E„ C. Ferguson, Henry Hewitt, Jr., the Everett Land Company, Judson La Moure, and -Minnie E. La Moure to annul a judicial sale of certain land. The circuit court rendered a decree for the complainants. 57 Fed. 966. Defendants appealed.

<p>Appeal from the Circuit Court: of the United States for the Northern Division of the Western District of Michigan.</p> <p>This was a snit' by Martin Alonzo Garrett and others against Marie M. Boeing and others to impress a trust upon the legal title to certain lands and for an accounting. The circuit court sustained a demurrer to the bill. Complainants appeal.</p> <p>This ease was argued and submitted with Hodge v. Palms (No. 232) 68 Fed. 61; McCants v. Land Co. (No. 233) Id. GO; Morancy v. Palms (No. 234) Id. 04; and Fletcher v. McArthur (No. 235) Id. 65, — cases In many respects of a similar character.</p> <p>By the act of cession from France to the United States of the territory of Louisiana, in 1803, it was stipulated that the United States should give protection to the property rights of the citizens of The territory. For the purpose of carrying out this stipulation, congress passed an act providing for the appointment of a board of commissioners to ascertain what land claims covered by the treaty were just and valid. It happened that more claims were allowed and certified than there were lands to which they were applicable. The present suit involves one of such claims as remained unsatisiied, and dates in its origin as early as 1789. The suit was brought by a bill in equity filed in the Northern division of the circuit court of the United States for the Western district of Michigan. The complainants, by the averments of their bill, set forth in substance the following state of facts: That in the year 1810 one Joshua Garrett was the owner of an inchoate land claim in the former parish of Opelousas, in the state of Louisiana, comprised within the present parish of St. Landry, for 1,361 acres of land, -which claim was entered by the commissioners for the Western district of Louisiana in their report of April 6, 1815, and, with other claims embraced in said report, was confirmed by an act of congress approved April 29, 1816. That said Joshua Garrett died possessed of that claim about the year 1812, in the parish of St. Mary’s, in Louisiana, his domicile being in that parish, and leaving as his heirs at law two sons and one daughter; and that at the time of his death said Joshua Garrett owned a considerable amount of'real estate and personal property situated in the said parish of St. Mary’s. That there is no record in that parish of the settlement of his estate, but that by the law of Louisiana the heirs of the decedent were immediately upon his death seised and possessed of all his estate, subject only to their right to renounce the succession or the right of creditors to require an administration. That such renunciation is not presumed, but must be made by a formal act before a notary. Their acceptance, however, may be evidenced by any act of the heirs indicating their intention to exercise ownership over the ancestor’s property; and that, after the acceptance by the heirs of the succession of their ancestor, no administrator can lawfully be appointed to administer thereon. That, immediately alter tile death of the said Joshua Garrett, his heirs took possession of áll liis real estate and of his other effects capable of being reduced to possession, and thereafter used, controlled, and disposed of the same as owners thereof. The bill then proposed to deraign title, to the land claim from the heirs of the said Joshua Garrett to the complainants in this suit, and goes on to state that for reasons not involving fault on the part of the said Joshua Garrett, or of the persons claiming under him, the said land claim remained unlocated and unsatisfied, and without provision for its satisfaction, until the passage by congress of the act approved June 2, 1858, entitled '“An act to provide for the location of certain confirmed private land claims in the state of Missouri and for other purposes,” by which act it was provided, in section 3: “That in all eases of confirmation by this act, or where any private land claim has been confirmed by congress, and the same, in whole or in part, has not been located or satisfied, either for want of a specific location prior to such confirmation, or for any reason whatsoever, other than a discovery of fraud in such claim subsequent to such confirmation it shall be the duty of the surveyor general of the district in which such claim was situated, upon satisfactory proof that such claim has been confirmed, and that the same, in whole’ or in part, remains unsatisfied, to issue to the claimant or his legal representatives, a certificate of location for a quantity of land equal to that so confirmed and- unsatisfied; which certificate may be located upon any of the public lands of the United States subject to sale at private entry at a price not exceeding $1.25 per acre: provided, that such location shall conform to legal divisions and subdivisions.” And in section 4: “That the register of the proper land office, upon the location of such certificate, shall issue to the person entitled thereto, a certificate of entry upon which, if it shall appear to the satisfaction of the commissioner of the general land office that such certificate has been fairly obtained, according to the true intent and meaning of this act, a patent.shall issue as in other cases;” and that no limit of time was fixed for the presentation of claims under said act for such certificates of location. That during the lapse of time between the origin of said inchoate claim, its confirmation, and the provision for its satisfaction in the act of congress above quoted, many of those interested therein had died, and their heirs o°r legal representatives with respect to said land claim, many of whom were minors, as well as the survivors among those originally interested, had become widely scattered, and had, by reason of said delay, lost all hope of satisfaction for their said claims, and that neither the comifiainants nor any of those interested in said land claim, who were alive June 2, 1S38, knew of the existence of said claim or of the passage of the act of 1858, or of their rights under the said act, until within 18 months last past; and that neither the surveyor general for the district of Louisiana in office from June 2, 1858, to February (i, 18G1, nor his next successor, appointed August 10, 1SC9, nor any of his successors, ever took any steps to apprise the said legal representatives of their said rights, it being the practice to issue certificates of location, under said act, only upon application therefor; arid that neither these complainants, nor any of the persons from whom they derive title to their interests in said land claim, ever applied for or received any certificate of location under said act of 185S, or other thing in satisfaction of said claim or any part thereof. That in the year 1S72 one Daniel J. Wedge induced the public administrator of the parish of La Fayette, in the state of Louisiana, to file his petition in the parish court of that parish, by Wedge, his attorney, alleging that the estate of Joshua Garrett was vacant; that it consisted of the confirmed but unsatisfied land claim above referred to, and that it was loss than $500 in value; and praying to be appointed administrator thereof, and for an inventory and sale of the same, under the laws of Louisiana regulating the administration of vacant estates of less than $500 in value; and that such proceedings were had that on the 1st day of August, 1872, the judge of the parish court, in pursuance of said petition, issued an order appointing the said public administrator to be administrator of said estate, and directing an inventory and sale of the property which might be found to belong thereto, to pay debts. That the inventory was returned August 2, 1872, and the property sold on the 29th day of that month in accordance with the order, at which sale Wedge purchased the said land claim for the sum of forty dollars, which was wholly consumed in the payment of the costs and expenses of administration, no other debts being shown to exist. That no notice was given of the application for the appointment of the administrator or of the sale of said property, nor of the order appointing the administrator and directing the salo. Tlio proceedings thus stated fully appear from a copy thereof which was annexed to the bill. Various provisions of the laws of Louisiana in reference to the administration of successions are set forth in the bill, the material parts of which are stated in the opinion. It is further stated in the bill that Wedge, claiming to be the legal representative of Joshua Garrett by virtue of tlio above-mentioned proceedings, applied to the surveyor general of the United States for the district of Louisiana for certificates of location in satisfaction of the said land claim under the said act of Juno 2, 1S58, and that the said surveyor general prepared such certificates of location on the 2d day of dune, 1879. The following is the form of one of such certificates of location and of an indorsement thereon by the surveyor general:</p> <p>“No. 806A. Act of .Tune 2nd, 1858. Acres, 80.</p> <p>“Surveyor General’s Office.</p> <p>“New Orleans, La., June 2, 1879.</p> <p>“I hereby certify that by the act of congress approved April 29, 1810, entitled ‘An act for the confirmation of certain claims to land in the Western district of‘the stale of Louisiana and in the territory,of Missouri.’ the claim of Joshua. Garrett, entered as No. -14, class B, in the report dated April 6th, 1815. of the commissioners for the Western district, state of Louisiana, is confirmed to Joshua Garrett for 1,861 12/100 acres of land, of which there remains unsatisfied the quantity of 1,861 12/100 acres, which quantity the said claimant is entitled to locate, pursuant to the provisions of the third section of act of congress approved June 2, 1858, entitled ‘An act to provide for the location of certain confirmed private land claims in the state of Missouri, and for other purposes.’ Now, therefore, be it known that, on surrender of this oerfificate to the register of any land office of the United States, the said .Tosliua Garrett, or his personal representative, shall be entitled to locate, in part satisfaction of said claim, the quantity of 80 acres ‘upon any of the public lands of the United States subject to sale at private entry, at a price not exceeding one dollar and twenty-five cents per acre, provided that such location shall conform to legal divisions and subdivisions.’</p> <p>“O. II. Brewster,</p> <p>“Surveyor General, District of Louisiana.”</p> <p>The indorsement:</p> <p>“Surveyor General’s Office.</p> <p>“New Orleans, La., .Tune 2d, 1879.</p> <p>“It is hereby certified that, in pursuance of evidence on lile and of record in this office, D. J. Wedge is the legal representative of Joshua Garrett, the deceased confirmee, and as such is authorized to locate the within certificate.</p> <p>“O. H. Brewster,</p> <p>“Surveyor General of Louisiana.”</p> <p>Upon tlie certificates being forwarded by the surveyor general to the commissioner of the general land office, he authenticated the same as follows:</p> <p>“General Land Office.</p> <p>“Washington, D. C., June 14, ’79.</p> <p>“The foregoing certificate or script, having been lawfully issued by the surveyor general" of Louisiana, is receivable, according to its terms, at* any land office in ilie United States for. (lie location, subject to entry at private sale and to which no adverse right exists. J. M. Armstrong,</p> <p>“Acting Commissioner.”</p> <p>That the evidence referred to in said indorsement consists solely in the record of said succession proceedings. Thereupon the said certificates were delivered to Wedge. That one Wilhelm Boeing, on July 17, 1880, offered the said certificates of location at the United States land office at Marquette, Mich., for location upon the lands involved in this suit, and the said certificates were received by the register of the said land office in payment for said lands. That patents were issued by the United Slates on the 30th day of December, 1881, conveying the said lands to said Boeing, which patents recited the provisions of the act of congress of June 2, 1858, and set forth that they were issued in conformity with said act, in full satisfaction of the un-located and unsatisfied claim of Joshua Garrett, and stated that the locator was the assignee of the legal representative of the said Garrett. The bill then shows conveyances of part of said lands to some of the defendants in the case, and the inheritance of other parts thereof by the other defendants, upon the death of said Wilhelm Boeing, on January 10, 1890. That the defendants, claiming title to the lands under said locator, now hold possession, or have at some other time entered upon and held possession, of some part of the lands hereinbefore described, and that each of them, in person or by their agents, has removed, or authorized to be removed, the timber or other valua- , ble products from the lands of which they now have possession, or have sold and have received large sums of money from the sale thereof, and from the rents and profits arising from said lands. That the value of the timber or other products so cut and removed largely exceeds the sum-of $2,500. That all the aforesaid transactions, from the beginning of the succession proceedings in the parish court of La Fayette parish to, the cutting and disposal of the timber and the reception of the rents and profits from the lands, were carried on without the knowledge of the complainants, or any person from whom they claim title. That complainants were wholly ignorant of the same, and of their rights in the premises, until the fall of the .year 1889, when some of them, learning that certificates of location had been issued in satisfaction of said claim, made investigations respecting the claim and their rights thereunder. That the persons through whom they derive their title were widely scattered, and their residences unknown to complainants. Whereupon the facts were ascertained, the residences of the several complainants discovered, and their co-operation secured, and thereupon they filed their bill of complaint. They allege that the pretended succession proceedings in said parish of La Fayette and the sale therein made of the said land claim of Joshua Garrett are void, of no effect, and vested no title in said Wedge, for the following reasons: (1) Because said claim was not assets of the estate of the said Joshua Garrett, but the property of his descendants, whose estate the complainants now have; (2) because the parish court of the said parish of La Fayette was without jurisdiction to appoint an administrator upon the estate of the said Joshua Garrett; (3) because the said pretended aj)pointment and sale were not preceded by the orders and publications required by law; and (4) because said Daniel J. Wedge could not lawfnils’- purchase at said pretended sale. And they further charge that the said Wedge, by virtue of the said proceedings, became a constructive trustee for the legal representatives of said Joshua Garrett in respect to said claim, and that the several respective and successive assignees, down to and including the defendants, had notice of the said trust, and are chargeable by reason thereof. They pray that they may be adjudged to be the true legal representatives of the said Joshua Garrett. That the several defendants may be adjudged to hold the lands now respectively held by them in trust for the complainants, and to convey the said lands. That the several defendants may be restrained and enjoined from selling or making any claim of title to said lands, and from entering thereon and from in any manner intermeddling therewith. That an account may be taken of the timber and other products removed from said lands, and of the value thereof, and of the amounts received from rents and profits, and that the defendants may be decreed to pay the complainants such value and amounts, with interest. The specific character of the proceedings in the parish court of La Fayette parish, as shown by the exhibits attached to the bill, is more fully stated in the opinion of the court. To this bill the defendants demurred, and assigned as special grounds for their demurrer, among others, the reasons discussed in the opinion. The bill was amended during its pendency in the court below, but those amendments did not make any change in the statement of the facts material to be stated, in the view which' the court takes of the case upon this appeal. The circuit court sustained the demurrer, and ordered the bill to be dismissed, upon the ground, as appears from the memorandum of its opinion sent up with the record, that, although the bill avers that Joshua Garrett died in St. Mary’s parish, and that was the parish of his domicile, while the proceedings were in the parish of La Fayette, yet that said parish court of La Fayette parish found that said Garrett died in La Fayette parish, and upon the further ground that the claim of the complainants is a stale claim, and barred by laches.,. From the decree dismissing the bill the complainants appeal.</p>

This was a suit, by John L. Hodge and Andrew H. Sands against Francis S. Balms and oliters, trustees of ihe estate of Francis Palms, deceased, and others, to impress a trust upon the legal title to certain lands, and for an accounting. The circuit court sustained a demurrer to the bill. Complainants appeal.

<p>Probate Court — Decree—Property Affected.</p> <p>Upon facts similar , to those in Hodge v. Palms, 68 Fed. 61, a decree of a prohate court, granting administration of the estate of a decedent, cannot aifect property conveyed by such decedent in his lifetime.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>This was a suit by Jane Virginia Fletcher and others against William McArthur and others to impress a trust upon the legal title to certain lands and for an accounting. The circuit court sustained a demurrer to the bill. Complainants appeal.</p>

<p>Judgment — Collateral Attack — Pleading.</p> <p>One M., a citizen of Louisiana, died, leaving a will by which he disposed of other property, but not of an inchoate land claim arising under the treaty of cession of Louisiana and the acts of congress pursuant thereto. Such claim was afterwards sold in proceedings instituted in a Louisiana parish court to administer the same as a part of his estate. Bold, in a suit seeking to impeach, collaterally, such proceedings in the parish court, that an allegation that the 'succession of M. was duly opened and fully administered in the proper court in 1865 (before the proceedings sought to be impeached), and was accepted by his heirs and owners of all the assets of said estate capable of being reduced to possession, was insufficient to show that the land claim was not properly administered in the proceedings questioned.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia.</p> <p>This was a petition for a rehearing of the appeal from the order made upon the petition of William N. Camp and others for the payment to them of certain moneys by the receivers of the Gay Manufacturing Company.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>Tbe material facts out of which this suit arises are as follows: On June 26, 1875, tbe appellant’s testator, William H. Gaines, being in possession of lot sixteen (16) in block sixty-eight (68) of tbe city of Hot Springs, Ark., under a claim of ownership, leased tbe lot for one year, with tbe right of renewal from year to year, to Perry Huff. Huff occupied tbe lot under said lease until June 1, 1876, when tbe United States took possession of tbe lot as property belonging to tbe United States, ousted tbe then occupants, and subsequently leased the lot to Huff through tbe agency of a receiver appointed by tbe court of claims. On March 17, 1880, Huff sold all bis right, title, and interest in tbe lot to Yina Granger, tbe present appellee, and to Eva 51. James, the latter xiersons well knowing that all of Huff’s interest in tbe lot was derived from the aforesaid leases from Gaines and from tbe United States. Subsequently tbe commissioners appointed pursuant to tbe act of March 3, 1877 (19 Stat. 377, c. 108), to adjust conflicting claims to land situated within tbe Hot Springs reservation, awarded to Perry Huff tbe right to purchase tbe lot now in controversy, and tbe latter purchased the same, and received a patent therefor from tbe United States. After tbe decision in Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ot. G05, to wit, on 5iay 23, 1884, this action was begun by tbe present appellants against Perry Huff, Eva M. James, and Vina Granger to compel them to transfer tbe legal title so as aforesaid acquired from the United States to tbe appellants, upon tbe ground that tbe legal title acquired by them from the government was held in trust for tbe appellants. A decree as prayed for was rendered by the circuit court against tbe appellee, Vina Granger, in April, 1887, tbe suit haviiig been theretofore discontinued as against Huff and James. From said decree an appeal was prosecuted to tbe supreme court of tbe United States by the appéllee. By the decision of tbe supreme court on such appeal the present appellants’ right to the lot in controversy was established and confirmed, but the decree in their favor was reversed, because tbe account as to rents and profits bad not been properly stated, and because the allowances in that behalf made were deemed inequitable. Tbe decision of the supreme court is reported under tbe title of Goode v. Gaines, 145 U. S. 141, 154, 12 Sup. Gt. 839. Tbe second trial of tbe case resulted in a decree against tbe appellants for 82,316.23, that being tbe sum which tbe master found bad been paid by tbe appellee, Vina Granger, for taxes and for improvements made on tbe lot, and in obtaining a title to tbe land from tbe United States, over and above the sum justly chargeable to her on account of rents and profits. From the last-mentioned decree the appellants have prosecuted an appeal to this court.</p>

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

This was a suit by the Manhattan Trust Company against the Sioux City & Northern Railway Company tor the foreclosure of a mortgage. The Trust Company of North America intervened, claiming priority for a, lien asserted against the rolling stock of the railway company.

<p>Appeal írom tbe Circuit Court of tbe United States for tbe Northern District of Obio.'</p> <p>This is a suit in equity, brought by the appellee, the Union National Bank, of Cleveland, Ohio, against the appellant, the Hotchkiss & Upson Company, a corporation organized under the laws of Connecticut. The object of the bill is to enforce a lien upon 2G0 shares of stock of the defendant below, acquired by it in pledge upon certain transactions with Charles A. Hotchkiss, president of that company. Those transactions were as follows: On November 13,1885, Hotchkiss borrowed of the complainant $5,000, for which he gave his note of that date. On December 12, 1883, he borrowed $10,000 more, for which he likewise gave his note. On March 10, 1880, he took up these two notes, and gave a new note of that date for the sum of $15,000, that being the amount of both the former notes. This last-mentioned note was renewed from time to time until July 28, 1887, when the note for $15,000 now held by the bank was executed, and was made payable four months after its date. This is one of the obligations constituting the basis of the complainant’s ground for relief. On April 16, 1887, the said Hotchkiss made another loan of the bank, this loan being of $6,000, for which he gave to the bank his note of that date. This note was renewed August 19, 1887, by a note for the same sum, made payable in four months. This is the other part of the indebtedness for which the complainant asserts a lien. Upon the making of the original note 1'or $15,000, Hotchkiss assigned in pledge to the hank for the security thereof two certificates of stock, representing 140 shares of the Hotchkiss & Upson Company, and delivered them to the hank. On making the $6,000 note of April 16, 1887, he likewise assigned in pledge 120 shares of the stock of the same company as security for the payment of that note. Both these assignments of stock consisted of a. delivery thereof with a blank power of attorney for the transfer of the stock upon the hooks of the company, executed by Hotchkiss. Neither of the notes so taken upon the last renewals had been paid, either in whole or in part. The stock has never been transferred upon the books of the company to the bank, and no copy of the power of attorney was ever filed in the office of the company.</p> <p>The defense is that during the years 1887 and 1888 Hotchkiss became indebted to the Hotchkiss & Upson Company in the sum of $50,000 by reason of his having embezzled the funds of the company of which he had charge as an officer, he being the president thereof. This embezzlement commenced in the early part of 1887, and was continued from time to time through that and the succeeding year. And it is contended that by force of the general laws of Connecticut relating to corporations a lien was given to the company upon the stock standing upon its books in the name of Hotchkiss for the amount of the indebtedness created by his embezzlements, and that this lien is paramount to that of the bank, for the reason that there was no transfer of the stock by Hotchkiss to the bank upon the books of the company, and no copy of the power of attorney, was filed in the office of the company as required by the law of Connecticut in order to make the assignment good as against the company. The provision of the statutes of Connecticut ' giving the company such lien is found in section 1923 of the General Statutes of ¡hat state (Revision of 1887), which reads as follows: “When not otherwise provided in its charter, the stock of every corporation shall be personal property, and be transferred only on its books in such form as the directors shall prescribe; and such corporation shall at all times have a lien upon all the stock owned by any person therein for all debts due to it from him.’’ And section 1924 declares how such stock may be pledged, and the manner in which such pledge may be made effectual, as follows: “Shares of stock in any corporation, organized in this state under the laws of this state or of the United States, may be pledged, by executing and delivering a power of attorney for its transfer, with the certificate of stock therein mentioned, to any party to whom the pledge is made; but no sncli pledge, unless consummated by an actual transfer of the stock to the name of such party, shall be effectual to hold such stock against any person but the pledger and his executors and administrators, until a copy of said power of attorney shall he filed with the cashier, treasurer or secretary of said corporation.” As stated before, the provisions of section 1924 were not complied with; hut the complainant in the court below introduced evidence from which, as it alleges, it is made to appear that Hotchkiss, the president, and A. S. TJpson, its treasurer, were the owners of nearly all the stock, and were the principal managers of the business of the company; that the business was principally carried on at Cleveland; that the company had extensive dealings with the bank, and that Hotchkiss as president, necessarily, and Upson as treasurer, by distinct information, had notice of the loans by the bank to Hotchkiss, and of the above-mentioned pledges of his stock, prior to the date of the beginning of the embezzlements by Hotchkiss, and that the company was affected by such notice; and it is claimed by the bank that such actual notice is equivalent to the statutory notice required by the laws of Connecticut. The court below found upon the evidence that on April 16, 1887, when Hotchkiss pledged the 120 shares of stock as security for the $6,000 note, he had already embezzled from and was indebted to his company in a sum of more than $14,000. and the complainant’s claim upon the shares of stock assigned as security for that sum was rejected; but, it appearing that the pledge of the 140 shares to secure the 815,000 note was made before the commencement of the indebtedness to the company by Hotchkiss, it was held by the court, upon the further finding ihat the company had notice of the pledging of these shares before the embezzlements commenced, that the bank’s lion was superior to that of the appellant. Accordingly a decree was passed denying- the lien upon the 120 shares of stock pledged in payment of the 86,000 note, and sustaining the lien of the hank.upon the 140 shares pledged in payment of the $15,000 note. From this decree the Hotchkiss & Upson Company hare appealed.</p>

This was a suit by the Manhattan Trust Company against the Sioux City Cable Eailway Company to foreclose a mortgage. C. A. Hunger-ford intervened, claiming priority over the mortgage for a judgment recovered by him.

<p>1. Equity — Jurisdiction—Trespass.</p> <p>Complainant’s bill alleged that it beld several licenses from the Cherokee Nation to mine and sell coal on certain lands described, and for more than a year had been mining and selling coal thereunder; that the defendants, under a license issued after complainant’s, and, either under a mistake of fact or through fraud on defendants’ part, had entered upon the lands, and were mining and shipping coal, and preventing complainant from so doing; that such acts tended to destroy the estate created by the licenses, and were inflicting irreparable injury upon complainant; and that some, if not all, of the defendants were insolvent. Said, that equity had jurisdiction to enjoin the defendants from mining coal on the lands, and from preventing the complainant from so doing.</p> <p>2 Same — Mini kg IvIotit — Lioesse.</p> <p>Held, further, that equity had jurisdiction to determine the validity of defendants’ claim of title, whether the same was founded in mistake or fraud.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>This was a suit by the Central Trust Company against the Richmond, Mcholasville, Irvine & Beattyville Railroad Company and others for the foreclosure of a mortgage. Numerous parties intervened, claiming mechanics’ liens on the road. Demurrers to some of such petitions were passed upon by the circuit court in a decision reported in 54 Fed. 723. The circuit court entered a Anal decree settling the priorities among the various claimants. The complainant appeals.</p> <p>The questions for determination arise between creditors of the defendant railroad company, claiming mechanics’ liens for the construction of its road, and the holders of its first mortgage bonds, issued shortly after construction was begun. The <Richmond, Mcholasville, Irvine & Beattyville Railroad Company, hereafter designated and described as the “Railroad Company,” was chartered by special act of the Kentucky legislature, and authorized to construct and operate a railroad from Versailles, in Woodford county, to Beattyville, in Rea county, Ky. The charter provided that the company might pay for the construction of its railroad with its own capital stock and bonds. On the 1st day of July, 1889, the railroad company executed its first mortgage to the Central Trust Company of New York, as trustee, which mortgage recited that it had executed, and made ready for delivery, 2,375 bonds, of the denomination of $1,000 each, bearing interest at the rate of 6 per cent, per annum, payable semiannually, evidenced by coupons attached, the principal being payable 30 years after date. It was also provided that upon default in the payment of interest for more than six months the principal sum mentioned in each of the said bonds .should, at the option of the holders of a majority of the bonds, become due and payable. Tliere was a default in the payment of interest for more than six months, whereupon, at the request of a majority of the holders of the bonds, the trust company declared the maturity of the prim-cipal thereof; and this hill was thereupon filed December 2, 1891, in the circuit court of the United States for the district of Kentucky, for the purpose of obtaining a foreclosure thereof. Various persons and corporations, claiming to be creditors of the said railroad company ¡ and claiming to be entitled to priority over the mortgage aforesaid, were made defendants thereto, and some of them have filed cross bills setting up their several claims. From the final decree of foreclosure, settling the priorities as between the various creditors, appeals have been prosecuted by the Central Trust Company, and by a large number of other creditors, claiming mechanics’ liens.</p> <p>On the 11th day of October, 1888, and prior to the execution of the mortgage aforesaid, the railroad company entered into a contract for the construction of its entiré line of railway with the Ohio Valley Improvement & Contract Company. That company was a Kentucky corporation, authorized by its charter to construct railroads, and to receive in payment the stocks and bonds of such railroads. By the contract mentioned, the Ohio Valley Improvement & Contract Company, hereafter designated the ‘'Contract Company,” agreed to procure all necessary rights of way, to make all surveys, to furnish all the materials, and to build the entire line of said railroad, from Versailles to a point within one-lialf of a mile of Beattyville. It also undertook to pay to the railroad company, until -the road was completed, such sums as might be necessary to pay the salaries of the railroad company’s officers, not exceeding $10,000 per annum. It also agreed to assume and pay the debts of the railroad company, not exceeding $25,000, and to assume and pay the interest coupons on the mortgage bonds of the railroad company during the construction of the- road, and two semiannual installments of interest thereafter maturing. In payment for all this the railroad company agreed to assign to the contract company bonds of five .counties, amounting to $550,000, to be delivered to the contract company whenever the railroad company was entitled to receive the same from the counties for construction of the road in accordance with their several subscriptions. The counties had subscribed, in all, for $500,-000 of stock of the railroad company, payable in bonds of the respective counties, in installments, depending upon the completion of the road to designated points. The railroad company further agreed to assign and deliver to the contract company, for each lineal mile of road, $25,000 of its own negotiable 6 per cent, coupon bonds, secured by a mortgage constituting a first lien upon the entire line of road and its equipments; also to assign to the contract comijany the subscriptions made by individuals to the capital stock of the railroad company; also to issue to the contract company, for each lineal mile of road, $25,000 of the paid-up) capital stock of the company, after deducting the stock subscribed for by individuals and counties. It was provided in the contract that the aforesaid bonds and shares of stock should be issued in advance, and placed in the custody of the Louisville Trust Company, to be paid over to the contract company as the work progressed. The entire line of road thus contracted for was 97 miles in length. Of this, 62 miles was completed. Considerable proportion of the remainder was graded, but before completion the contract company became insolvent, and abandoned the work, whereupon this litigation began. Of the $550,000 in county bonds mentioned in the contract, only $200,000 were earned. The remainder were lost on account of the failure of the contract company to finish the road to designated points by the times stipulated in the various contracts with the counties. During the time of construction the railroad company delivered to the contract company the $200,000 of county bonds earned as aforesaid, and its first mortgage bonds to the amount of $2,375,000.. It also delivered a corresponding amount of its railroad shares to skid contract company. The contract -company is one of the defendants to this litigation, but it has not appealed from the decree of the circuit court.</p> <p>All these payments were made to the contract company on monthly estimates by the chief engineer of the railroad company, which estimates included the work done and materials furnished by the contract company, directly or through its various subcontractors; the contract providing for payment by installments, on estimates liras made, as the work progressed. A large part of the work done and materials furnished was done or furnished directly by the contract company, but a still larger proportion was done or furnished through the medium of subcontractors employed by the principal contractor. These subcontractors were to be paid directly by the contract company in money, on monthly estimates furnished by the railroad company’s chief engineer, who was to give Touchers for 80 per cent, of such estimates, to be paid in cash by the contract company. The railroad company seems to have fully complied with the terms of its own agreement, and to have made all payments, as the work progressed, which it was obligated to do. The capital of the contract company was insufficient to carry on and complete Us undertaking. It was therefore driven to make ruinous sales of the securities it from time to time received under its contract, at prices affected by the fact that they were the securities of an unfinished railroad, — -subordinate, by the express terms of the Kentucky statute gitiug a lien to contractors and subcontractors constructing a railroad, to the claims of all engaged in the work of construction. The railroad company took no steps to protect itself against the liens of subcontractors, and made no payments directly to them. It seems to liave willingly met its obligations to the contract company, and to have trusted to its ability to relieve its road from any liens which might exist in favor of subcontractors. The contract company had an independent capital of about 8500,000. It added to this the proceeds arising from the sale of the railroad company’s securities, and applied all in the payment of its own obligations. Their resources proved insufficient. It was compelled to abandon its contract before completion, leaving several hundred thousand dollars of debts to subcontractors unpaid. The unpaid subcontractors were either made defendants to the foreclosure bill, or they have become parties by intervention, and have asserted liens, under the Kentucky lien law, as against the property of the railroad company. These claims, if successfully asserted, constitute liens prior to that of the bondholders. The property of the railroad is confessedly inadequate to meet bo ill classes of liens. This state of facts has given rise to a much complicated and hotly-contested series of litigations, culminating in 12 distinct appeals from the decree of the circuit court. Many of the appeals present questions common to ail the cases. These appeals were argued together. So many of the questions as are common to all the appeals, and as presented on the appeal of the Central Trust Company, will bo disposed of in this opinion, leaving such questions as arise upon cross-appeals of mechanic’s lieu creditors to be disposed of in another opinion. The existence a.nd priority of the several liens claimed in opposition to the bondholders depend upon a construction of the Kentucky lien act passed in 1888, entitled “An act to create a lien on canals, railroads, and other public improvements, in favor of persons furnishing labor or materials for the construction or improvement thereon”; being sections 2192-2495 of the Kentucky Statutes of 1894, revised by Barbour and Carroll. These sections are as follows:</p> <p>“Section 1. That all persons who perform labor or who furnish labor, materials or teams for the construction or improvement in this commonwealth, by contract express or implied, with the owner or owners thereof, or by sub-contract thereunder, shall have a lien thereon and upon all the property and franchises of the owner or owners thereof for the full contract price of such labor, material and teams so furnished or performed, which said lien shall be prior and superior to all other liens theretofore or thereafter created thereon.</p> <p>“Sec. 2. The liens provided for in the foregoing section shall in no case be for a greater amount in the aggregate than the contract price of the original contractor, and should the aggregate amount of liens exceed the price agreed upon between the original contractor and the owner or owners of the canal, railroad, turnpike or other improvement, then there shall be a pro rata distribution of the original contract price among said lien-holders.</p> <p>“Sec. 3. No lien provided for in this act shall attach unless the person who performs the labor or furnishes the labor, material or teams, shall within sixty days after the last day in the last month in which any labor was performed, or materials or teams were furnished, file In the county clerk’s office of each county in which the labor was performed or materials or teams were furnished, a statement In writing, verified by affidavit, setting forth the amount due therefor, and for which the lien is claimed, and the name of the canal, railroad or other public improvement upon which it is claimed. Said claim shall be filed and indorsed by the clerk of said court, giving the date of its filing.' The clerk shall also make an abstract and entry thereof, as now provided by law In case of mechanic’s liens, and in the same books used for that purpose, and shall make proper index thereof. For his services the clerk shall be paid one dollar by the party filing the claim, which may be recovered by the latter from the owner or owners of the canal, railroad or other improvements as costs.</p> <p>“Sec. 4. Liens acquired under this act shall be enforced by proper proceedings in equity, to which other lien-holders shall be made parties; but such proceedings must be begun within one year from the filing of the claim in the county clerk’s office, as required by the third section of this act.”</p>

<p>Appeal from tire Circuit Court of the United States for the District of Kentucky.</p> <p>These were appeals in the suit of Central Trust Co. v. Richmond, N., I. & B. R. Co., 68 Fed. 90, severally taken by the Richmond & Irvine Construction Co., L. F. Mann, J. E. Dougherty, G-. W. G-ourley, W. B. Smith, D. Shannahan & Co., J. W. Walker and others, John Mitchell & Co., M. A. Sullivan, Dickason & Crawford, and John McLeod, from the decree of the circuit court settling the priorities among the various claimants of the fund arising from the sale of the railroad.</p> <p>Each of the appellants named above has prosecuted a separate appeal. The general facts out of which, the questions presented by them arise have been stated in the opinion filed upon the appeal of Central Trust Co. v. Richmond, N., I. & B. R. Co. (being No. 240 on this docket) 68 Fed. 90. These general facts need not be again stated. Many of the questions arising upon the separate assignments of error filed by the several appellants are fully covered by the opinion in the case above referred to. The court, in this opinion, will confine itself to such questions as were not necessarily involved in the former case.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Virginia.</p> <p>This was an action of assumpsit, instituted by S. F. Hess & Co. to recover of the Bonsack Machine Company royalties alleged to have been in excess of the contract price paid by S. F. Hess & Co. to Bon-sack Machine Company. The defendant pleaded nonassumpsit.</p> <p>S. F. Hess & Co. leased one machine for the manufacture of cigarettes from the Bonsack Machine Company in tlie spring of 1887, and another one in the fall of 28<8!), besides having used still another machine for a while in the spring of 1888; the price or royalty for the use of the machines being first at 30 cents per 1,000 cigarettes made without any printing of trade-mark or other matter on them, and 33 cents per 1,000 cigarettes with such printing on them. The transactions between tlie parties constituting the subject-matter of this suit began on or about. 22d of March, 1887, and continued until some time in September, 1890, during which time the cigarettes made by S. F. Hess & Co. on the machines, at tlie royalties aforesaid, amounted to about $17,654.09. During this period three contracts were made between the parties. By the first, which is evidenced only by the correspondence between the parties, one machine was to be furnished to S. F. Hess & Co. by the Bonsack Machine Company, at the royalties aforesaid, for no specified time, the arrangement being liable to 'be canceled by either party at will. By the second, which was made a little more than two years after the first, and which is ■likewise evidenced only by tlie correspondence then had between the parties, another of said machines was to be furnished to S. F. Hess & Co. by the Bonsack Machine Company at rather reduced royalties. By the third and last contract, which was reduced to writing, and signed by the parties, respectively, dated the 7th day of March, 1890, the terms of the contract in pursuance of which the two machines had been furnished as aforesaid are incited, and the royalty for the use of the machine from and after the 1st day of March, 1890, is fixed at 90 cents per 1,000 cigarettes, regardless of whether printing was done or not; on the wrapper of the cigarettes. The Bonsack cigarette machine liad been in use several years before S. F. Hess & Co. began to use if. Its reputation had been established, and it lmd grown largely in favor, when, on March 22, 1887, Hess & Co. wrote to P. A. Krise, addressing him as president of the Bonsack Machine Company, as follows:</p> <p>•‘K it please you, inform us by return mail all particulars about your cig--arette machines, together with your terms and price for which you lease or si'll them, giving the number made by one machine per day, and the power necessary.</p> <p>"Yours, resiied fully, S. If. Hess & Co. .7.</p> <p>“P. S. How soon could you furnish ns one, provided we would want your machine?”</p> <p>On the 2<ith of March, 1887, H. IS. Btiouse, president of the Bon-saek Machine Company, replied as follows:</p> <p>better from I). K. Kfrouse to Plaintiff, daietl March 20, 1887.</p> <p>“Kalem, Va., 20 March, 1887.</p> <p>“8. 1\ Hess & Go., Rochester--Gentlemen: In answer to your letter dated 22d March, and addressed to P. A. Krise, 1 have to say that our terms are uniform, and are as follows: We send the machine to 1he factory, and furnish a man to put it up and run it at our expenso. The factory must put up (he necessary driver, shafting, and belt, and furnish one or two hands to feed the machine. Wo require a royalty of 80 cents per 1,000 cigarettes, if not printed, and cents if printed. The machine prints any desired device on each cigarette. The machine weighs 2,000 pounds, and requires less than ha-horse power to run it. It should be placed in a. room having good light. The capacity of the machine is from 200 to 220 cigarettes per minute, and is thoroughly constructed and reliable. 1 suppose you know that, the best work in America, is that done by our machines. These machines are very expensive, and. owing to their exceedingly quick work, require a careful and experienced operator, and we therefore require a guaranty of $200 per month on each machine in case the royalty should not amount to that sum. The machine will easily yield us $000 per month on royalty, but, as they are often not run on full time, wo agree to allow' the manufacturers to run or not, as they see fit. so that we receive for no month less than .¥200. All payments are required to be made at the end of each month for the work packed, during tlio month. We have several machines on hand ready to bo set up at once. If the machine fails to give you entire satisfaction, we will remove it at our expense. 1 say this so that you may have no hesitation in making the order. Our machines are now in eight factories, and are giving much more satisfaction, than hand-made work. Hoping to hear from you very soon, I am,</p> <p>“Yours, very truly. I). B. Strouse.”</p> <p>better of ITaiutiff to T>. R Strouse, dated April 4, 1887.</p> <p>“¡3. F. Hess & Go.</p> <p>“Rochester, N. Y., April 4, 1887.</p> <p>“D. B. Strouse, Salem, Va.- Dear Sir: Please let us know the swe fully necessary to run your cigarette machine, and whether a tight or loose pulley is necessary, and the speed necessary to run the same, and width of belt. etc.: and please let us know if there is much of a jar to the running of the machine, as we wish to place the machines on 5th floor. Should we decide to order, and should we order, how soon after receiving order would you be able to ship? bet us hear from you as soon as possible, and oblige,</p> <p>“Yours, respectfully, S. If. Hess Co. J.”</p> <p>Letter of Plaintiff to D. B. Strouse, dated April 26, 1887.</p> <p>“Rochester, N. Y., April 26, 1887.</p> <p>“Mr. D. B. Strouse, Salem, Ya. — Dear Sir: It lias been intimated to us that your machine may be an infringement on other parties, which rather upset us, and telegraphed you this a. m. not to ship until further orders. While we know nothing personal about this matter, but to protect us against any suit fo'r infringements, we thought perhaps you would furnish a good bond, and so telegraphed you. The length of cigarette we wish to make will be two inches and thirteen-sixteenths (2 13-16 in.), or rather 2% and a 1-16. Trusting that you can give us this protection, so that we can use your machine. Awaiting your earliest reply, we are yours,</p> <p>“Very respectfully, S. F. Hess & Co. J.”</p> <p>Letter of Plaintiff to D. B. Strouse, dated April 23, 1887.</p> <p>“S. F. Hess & Co.</p> <p>“Rochester, N. Y., April 23, 1887.</p> <p>“Mr. D. B. Strouse, Salem, Ya. — Dear Sir: We telegraphed you this day to ship machine at once, provided you can furnish us same quality paper as the bobbin you sent us; also to ship us one case of the paper. Now, Mr. Strouse, we must have good paper, and wish to impress you with the fact, and hope you will not fail to get it for us to start with. Also send us first-class man to run machine, for you know we have two other machines in this city to compete with, and don’t want to be outdone. Write us all the particulars about what is necessary to be done in advance of machine and man, so that when'it arrives there will be as little delay as possible in getting started. Now, give us as good terms in contract as you can, and as good as you give any other house. We understand you give better terms than you offer us. If you are liberal with us, so that we are able to compete with our neighbor, we expieet to use more of your machines. Since we have been corresponding with you, parties have made an effort to have us use other machines, but we prefer yours, but at same time want as liberal lease as you give others, and trust that you will do so. Awaiting your reply, we are</p> <p>“Yours, very respectfully, S. F. Hess & Co.”</p> <p>Letter from D. B. Strouse to Plaintiff, dated April 25, 1887.</p> <p>“Lynchburg, Va., 25 April, 1887.</p> <p>“Mess. S. F. Hess .& Co., Rochester — -Gentlemen: This firm will ship you to-morrow 100 reels of paper, just such as the sample, except that the sample reel is glazed on the sides of the reel and this is not. I also cabled Abodie & Cie to ship you 100 reels, which will give you 200 reels of paper. A reel of paper will make 20,000 cigarettes. You can make your own calculations as to other orders. It is best to keep at least 90 days ahead. Your information as to our giving any manufacturers different terms from those I have given you is not correct. Our terms are the same to all. I wired you to-day as to printing cigarettes. If you want to print your cigarettes, we have to have a steel die cut to do the printing, hence I must have the words or device you wish to print, which should be as small as possible. I must also know the length of the cigarette you want to print. The-die makes one revolution for each cigarette, and its circumference must correspond with the length of the eigaretté. We prefer not to print, but never decline to do so. Will write you as to other details to-morrow.</p> <p>“Yours, truly, D. B. Strouse.”</p> <p>“Rochester, N. Y., Sept. 9, 1889.</p> <p>“D. B. Strouse, Salem, Va — Dear Sir: Yours of the 2d to hand, and note your remarks in regard to machine, &c., and now write to say our future for an increase in trade is very promising, and we feel confident that we wili soon have all we can do for 2nd machine, and will want the third soon; but you know we have had a struggle, and up to the present time we have not made a dollar on cigarettes, while you have been paid your royalty; and we now feel, in view of all the circumstances, that you ought to send us the second machine, and allow us to pay for what we pay per month at rate of 30 cents'per M., and if we do not make enough to pay you for both, that you-should not compel us to pay $200 per month; but of course at any time that you do not feel tliat you can afford to leave the second machine in our factory you can order it away, unless we then conclude to pay you the royalty of $200 per month. Still we feel confident that we can make and sell easily enough to pay yon the royalty, hut of course we cannot positively say, as no one can tell what the future will he. We understand that you have _a right to make your own terms, and we make the above suggestions. Trusting you will comply with our wishes so far as you can, and send us another machine at once, on the best terms possible, we are</p> <p>“Yours, respectfully, , , S. F. Hess & Co.”</p> <p>Answer of Strouse.</p> <p>“Salem, Va., Sept. 13, 1889.</p> <p>“Messrs. S. F. Hess & Co., Rochester, N. Y. — Gentlemen: I have your letter of the 9th inst. I cannot understand why it was so long reaching me. I will send you another machine just as soon as I can, and will send it on the terms suggested in your letter, except that we will of course expect 33 cents per M. for printed work. We can modify the terms ns to guaranty, but not as to royalty. We hope to ship your machine within ten days.</p> <p>“Yours, truly, D. B. Strouso.</p> <p>“I prefer that you say nothing of ordering or receiving another machine.</p> <p>“D. IS. S.”</p> <p>“Rochester, N. Y., Sept. 6,' 1890.</p> <p>“P. A. Krise, Treasurer, Lynchburg, Va. — Dear Sir: Inclosed we hand you statement of cigarettes made on the Bon sack machines during the month of July, and draft for $185.85, covering royalty on the same. We desire to inform you that we do not construe this payment to be a waiver on the part of S. F. Hess & Co. of any claim against your company for a breach of your agreement with us. We havo paid you at the rate of 30 cents per M. for all cigarettes made on your machines, and we shall aSk you to make us good between that amount and the lowest rate given by you to other manufacturers while we were using your machines.</p> <p>“Fours, truly, S. F. Hess & Co.</p> <p>“1(519% M., at 30, $485.85.”</p> <p>Contract of S. F. Hess with Bonsack Machine Co., dated March 7, 1890.</p> <p>“Whereas, 8. F. Pless & Co., of Rochester, New York, are using two Bonsack cigarette machines, which are owned and operated by the Bonsack Ala chine Company on a royalty of thirty cents per thousand cigarettes for cigarettes not printed, and thirty-three cents per thousand for cigarettes which are printed, which two said machines are subject to removal at any time at the will of either the said S. F. Hess & Company or of the Bonsack Machine Company: It is agreed: First. That the royalty to be paid by the said S. F. Hess & Co. to the Bonsack Machine Company from and after the first of March, 1890, shall be thirty cents per thousand (1,000) cigarettes, whether the same ho printed or not. Second. That the said S. F. Hess & Co. shall have the right to continue to use the two said machines up to the thirty-first day of January, 1891. aud shall deliver to the Bonsack Machine Company, or to its order or agent, the two said machines on the first day of February, 1891, without hindrance, delay, or default, on any account whatsoever, provided that the said S. F. Hess & Co. have the right to deliver the said machines to the Bonsack Machine Co. at any time prior to the first day of February, 1891, and provided also, since contingencies may possibly arise wlfich may .cause the Bonsack Machine Company to prefer to indefinitely continue its machines in the factory of tlie said S. If. Hess & Co., that the Bonsack Machine Company shall, in case the said S. F. Hess & Co. shall not have surrendered the said machines, give to the said S. F. Hess & Co. notice in writing of its intention to remove the said machines on the first day of February, 1891, which notice shall he given at least sixty days before (he first day of February, 1891, aud, upon such notice being given, the said machines shall be surrendered on the first day of February, 1893, without hindrance on any account whatsoever.</p> <p>“Witness the following signatures this 7th day of March, 1890.</p> <p>“S. F. Hess & Co.</p> <p>“Bonsack Machine Co.</p> <p>“By D. B. Strouse, Pres.”</p> <p>In their declaration in the court below Hess & Co. set out their case as follows:</p> <p>“And the said plaintiff further avers Uic said contract was made and entered into by the said plaintiff upon this express agreement, understanding, and representation by the said defendant; and the said defendant, to wit, on or about the month and year aforesaid, in its correspondence and in its negotiations, and in its agreement concerning- the use of said machines by the plaintiff, expressly promised and undertook that the said royalty of thirty cents and thirty-three cents per thousand for cigarettes of that character was and should be the fixed and uniform royalty then charged and thereafter to he charged by it for the use of such of its machines as were then in use by manufacturers of cigarettes, or which should thereafter be hired to or placed by said defendant with such manufacturers for use in making cigarettes, and that there was and should be no discrimination made against said plaintiff in the royalty so charged as aforesaid for the use of said machines. And the said plaintiff further avers that, relying upon the said representation, agreement, and assurance, and upon the said promise and undertaking of the said defendant that the said royalty so charged the defendant as aforesaid was the fixed and uniform charge to all manufacturers ol' cigarettes for the use of its said machines, and that there was and should he no discrimination made against the plaintiff in the royalty charged for such use, the said plaintiff did pay to the said defendant monthly d-nring said period, to wit, from the-day of April, 1887, to the-day of September, 1800, an amount to the sum, to wit, of $17,051.00, royalties so agreed to be paid, and in all other respects faithfully complied with their said contract. And yet the said plaintiff avers that the said defendant, wholly disregarding its sawl agreement, representation, and assurance, and its said promises and undertaking, had, before the making of the said .contract with the said plaintiff, secretly and fraudulently let' and hired out its said machines to other manufacturers of cigarettes, rivals and competitors in the making and sale of cigarettes of said plaintiffs, among them TV. Puke, Sons & Company, doing business in the city of Durham, in the state of North Carolina, and in the city of New York, on or about, to wit, the 11th day of .Tunc, 1885, and to the Pone .lack Cigarette Company, doing- business in the city of Pyncliburg, in the state of Virginia, on or about, to wit, September, "lSSl, not at the said royalty of thirty cents per thousand agreed, promised, and undertaken by it with the plaintiff to be its fixed and uniform royalty to all manufacturers using its machines, but to the said TV. Duke, Sons & Company at a royalty of, to wit, twenty (20) cents per thousand cigarettes, and to the said Pone lack Cigarette Company at a royalty of, to wit, fifteen cents per thousand cigarettes, which said contracts of hire and letting wore craftily concealed from this plaintiff, although in full force between the parties thereto during the entire said period from the-day of April, 1887, to the -— day of September, 1800, during which period the said plaintiff was using and paying said royally on said machines as aforesaid. And the said plaintiff avers that it was altogether ignorant of said other contracts with said other manufacturers of cigarettes by said defendants until a long time after the 1st day of August, 1890, at or about which time said plaintiff ceased to use said machines. Wherefore the said ifiaintiff says that the said defendant, not regarding- its said contract, promise, and undertaking, hath craftily broken the same, contriving and intending to deceive and defraud the plaintiff in the promises,, and the said defendant bath not paid or returned to the said plaintiff the large sums so overpaid it monthly ¿hiring the said period as aforesaid by the said plaintiff, amounting- in whole to the sum of, to wit, $8,837.04, although requested so to do, but hath hitherto wholly refused and neglected, and still, does so refuse and neglect. Therefore the said plaintiff says that, by reason of the premises, he is injured and hath sustained damage to the amount of $12,000.”</p> <p>The declaration complains of no contracts in conflict with he alleged stipulation of the Bonsack Company that none should have better terms than those granted to Hess & Co. other than one with Duke & Sons, and another with the Lone Jack Company. These contracts were respectively as follows, so far as material:</p> <p>Tlie Duke Contract.</p> <p>"Tins agreement, made tills lttli day of .lime, 1885, between Ibe Bonsack machine Company and IV'. Duke. Sons & (Jo., wilnesseth, that whereas, the manufacturers of cigarettes who use the Bonsack machines, except the Lone Jack factory, have so far declined to put the machines on their line brands, for the reason that they fear that there may he a. prejudice against machine-made work, which might injure the sales of their goods, and whereas W, Duke, Sons & Co. are willing to put the machines on their best brands, and to do all their plain work on the Bonsack machines: Now, therefore, ii: is agreed that the said AV. Duke. Sons & Co. will at once put two machines on their finest brands, and as fast as practicable will relieve themselves of brands until they do all their plain work on the machines, and in consideration of this undertaking the Bonsack Machine Company agree to allow AV. Duke, Sons & Co. from this day a drawback which will reduce their royally to twenty-four cents per one thousand cigarettes, whether printed or not, and its soon as they snail make, their entire plain work of all brands and qualities on the said machines their drawback shall be sucli as to reduce their royalty (o twenty cents per 1.000 cigarettes. The amount paid on whieli such drawbacks are allowed is thirty cents for nonprinted work and thirty-three cents for printed work. And ii: is agreed that this arrangement, is permanent, unless the said YV. Duke, Hons & Company shall divulge the same, or unless they shall fail to put tlie machines on their line work as above slated, in which event ¡he Bonsack Machine Company may. at its pleasure, refuse thereafter to allow the said drawback.”</p> <p>'The Lone .Tack Contract.</p> <p>‘This agreement, made this :?0fh day of September, 1885, between the Bon-sack Machine Company, of the first pari, and the Lone Jack Cigarette Company, of the second part, witnesseth, tliaf the said party of the second part shall use (lie machines of the said party of the first part for the manufacture! of their cigarettes, paying therefor the sum of thirty cents per 1,000 for uon-printed work and thirty-three cents per 1.000 for printed work, payable- at tlie end of each month. And it is agreed that the I,one Jack Company shall advertise- their goods as made on the Bonsack machines, and by such advertisements bring into fat ora ble notice the Bonsack cigarette machines, and that the- Bonsack Machine- Company shall contribute in monthly payments, payable at. the end of each month, in cash, to the Leme Jack Cigarette Company, a sum of money equal to fifteen cents pe>r 1,000 e-igareties made during tin- prece-eling month and not printeel, anel a sum equal to --cents per 1,000 cigarettes on the printed work made during the preceding month by the Lom- Jack Cigarette Company; such payme-nts to be in full satisfaction anel payment, upon the part, of the- Bonsack ¡Machine Company, for the advertisements to be- made- by the Lone- Jack Cigarette Company as aforesaid.”</p> <p>Neither of (beso con ¡ráete contained a clause imposing secrecy upon either party to it.</p> <p>At (he (rial of the case the Bonsack Company offered toread two depositions, one of dames 15. Duke-, a member of the firm oí’ AV. Duke, tkms & Co., and AV. II. Butler, an officer of the Kinney Tobacco Company, which ivas a large manufacturer of cigarettes. Tin: court re-fused t*e allow (lie two depositions to be i-ead. The following are extracts from them, respectively. That of Jamos B. Duke contained the following passages:</p> <p>“Q. 11. You have said that Kinney Tobacco Company knew of the contract, with AV'. Duke. Hons & Co. before Kinney Tobacco Co. contracted for tlie use of the Bonsack machines. ¡Tease state wluu rale of royalty the Kinney Tobacco Co. paid for the use, of Ilio Bonsack machines. A. 11. Thirty cents per thousand.</p> <p>“Q. 12. In your judgment, what was the value to the Bonsack Machine Co. of the services rendered by W. Duke, Sons & Co., together with the money consideration paid by it, as compared with the price paid by Ivinney Tobacco Co., the same being, as you say, a money consideration alone of thirty cents per thousand? A. 12. In view of the risk, W. Duke, Sons & Co.’s terms were not so favorable; in other words, I will say that the service rendered by W. Duke, Sons & Co., together with the money consideration, in my judgment, was worth more than the thirty cents per thousand cigarettes.</p> <p>“Q. 13. What, if anything, was said to Mr. D. B. Strouse by you and Francis S. Kinney, Esquire, president of the Kinney Tobacco Co., at the time you were negotiating for Bonsack machines in 1888, relating to the terms of the contract the Bonsack Machine Co. had made with W. Duke, Sons & Co. ? A. 13. We stated to Mr. Strouse that we considered that W. Duke, Sons & Co. were entitled to all they received. We regarded the services of W. Duke & Sons, as they were the first manufacturers who successfully brought tlie product of the machines to the favorable attention of the public, as being more than equivalent to the difference in the money considerations paid.”</p> <p>The deposition of W. H. Bidder contained tlie following passages:</p> <p>“Q. 7. What was the result of the corporation of W. Duke, Sons & Co. making its entire work on the Bonsack machines, so far as relates to the other manufacturers making use of the Bonsack machines? A. 7. It demonstrated that machine-made cigarettes might supplant hand-made cigarettes. The result was that the other large manufacturers largely adopted machines for making their work, and to-day ninety per cent, of the cigarettes made in this country are made on the Bonsack machines, I think.</p> <p>“Q. 8. What was the probable value of the services rendered by the corporation W. Duke, Sons & Co. in placing the Bonsack machines prominently and favorably before the public, together with the money consideration paid by W. Duke, Sons & Co., as compared with the rate of royalty of thirty cents per thousand for nonprinted cigarettes and thirty-three cents per thousand for printed cigarettes? A. 8. I consider that the value to the Bonsack Machine Co. of the services rendered by the corporation W. Duke, Sons & Co., together with the money royalty paid by it, was more than equal to paying the Bonsack Machine Go. thirty cents per thousand for nonprinted and thirty-three cents per thousand for printed cigarettes.”</p> <p>The defendant’s bill of exceptions states that it—</p> <p>“Offered to introduce witnesses Edmund Schaefer and J. Stewart Walker to show by them that they were for many years associated as officers in the conduct of the business of the Lone ,Tack Cigarette Company, and 'were well acquainted with the contract relations between the Lone Jack Cigarette Company and Bonsack Machine Company, before and after the year Í885; touching the renting of the machines of the latter company; that the Lone Jack Cigarette Company paid for the renting of tlie said machines royalties of 30 cents per thousand cigarettes nonprinted, and 33 cents per thousand cigarettes printed, of which 15 cents was paid in money and balance in serv-vices, — that is to say, in consideration of said money reduction, the Lone Jack Cigarette Company agreed to advertise, and did advertise, their cigarettes as made on the Bonsack machines, and by its advertisements to bring said machines into favorable notice; that the said Lone Jack Cigarette Company agreed to render and did render services to the Bonsack Machine Company in furnishing oiiportunity to its operatives in its factory so as to make them skilled and prepared to be sent off for service in any factories where said machines were used, and allow the machines and tubes of the Bonsack Machine Company to be tested in its factory, the said Lone Jack Cigarette Company finding tobacco and paper for the purposes of all such tests; that this undertaking on the part of the Lone Jack Cigarette Company caused it many and serious interruptions and inconveniences, and resulted in large losses of tobacco and materials, so that this undertaking on the part of the Lone Jack Cigarette Company jeopardized its business so that they were losers in business, and finally had to wind up; and that the witnesses would testify positively that in their judgment the royalty paid to the Bonsack Machine Company in the shape of money and .services as aforesaid exceeded in fair values the money paid by Hess & Oo. of 30 cents for nonprinted and 33 cents per thousand for printed work.”</p> <p>Tiie court below refused to allow the witnesses, Schaefer and Walker, to testify. No evidence was given on the trial by the plaintiff below, Hess '& Oo., to sustain the averment of the declaration that (he plaintiff was ignorant, until after the 1st day of August, ÍXÍM), of contracts made by the Bonsack Company giving better terms than had been accorded the plaintiff. A 'good deal of evidence at the trial below «dated to an answer in equity, which the Bonsack Company had prepared, and left for a few weeks in the clerk’s office, to a bill which had been exhibited against it by the Lone Jack Cigarette Company in the circuit, court of Lynchburg, on May 1, 1S<)0. The answer had never been tiled or used in the suit, and was soon ■withdrawn from the clerk’s office by the JJonsack Company. The suit itself never came to a trial. This answer was offered in evidence by Hess & Co. in the trial below of the present suit, and, against the objection of the Bonsack Company, was allowed by the court below to go to the jury. The chief object of Hess & Co. in using this alleged answer as evidence at the trial below was to show that the Bonsack Company had denied in that paper the claim they were making at the trial, that the services rendered by the Lone Jack Cigarette Company, find stipulated for by the contract, were of material value to the Bonsack Company. The answer alleged, among other things, that most of the stock of the Lone Jack Company had been taken and was held by parties who owned stock in the defendant company. It alleged, furthermore, that the main reason that defendant company agreed with the plaintiff company to reduce royalties was that the latter company had not succeeded. It claimed to have lost: money. Its stockholders being principally officers and stockholders of the defendant company, who had embarked in the new enterprise of manufacturing cigarettes, induced and persuaded the defendant company to make a reduction in royalty, thus insuring its success, and at the same time preventing it from being said that any manufacturers who had taken hold of said machine had failed, or done other than succeed. The answer, except so far as this paragraph did so, did not deny that the object of the contract with the Lone Jack Company was to secure the services indicated by the contract itself, but rather that; the Bonsack Company had not realized their expectations in that respect.</p> <p>At the trial below, the Bonsack Company, by its attorneys, moved the court to give to the jury the following instructions:</p> <p>Instructions Prayed for by Defendant.</p> <p>“(1) Tlie court instructs the jury that for 1he plaintiff to recover in this action they must believe from the evidence that by the contract between the parties to this suit it was agreed that no one using defendant’s machines then had, or should thereafter have, machines for less royalty than that provided to be paid by the plaintiff, and they must further believe that other partios did then have, or were thereafter furnished, machines by the defendant at less royalty. And in considering the royalties paid by other parties the jury is instructed to take into account not only the money royalty that may have been paid by other parties, but other consideration, such as services, etc., as well, at a fair, honest, and equivalent value.</p> <p>“(2) The court instructs the jury that the answer of the defendant in the case of the Lone Jack Cigarette Company against the defendant must he considered by the jury in reference to that suit; and the defendant is not precluded by any statement made in that answer, but the amount of royalty paid to the defendant by the Lone Jack Cigarette Company, whether in money, services, or otherwise, depends upon all the proofs in this case relating to that matter.</p> <p>“(3) The court instructs the jury that, while it may consider the answer of the Bonsack Machine Company in the suit brought against it by the Lone Jack Cigarette Company as tending- to show the construction the Bonsack Machine Company at that time placed upon the contract which it had made with the Lone Jack Cigarette Company, yet the same may be overcome or explained by other testimony, and in determining- the true construction of and real intent of the said contract they must consider all the testimony that has oeen introduced touching that subject as tending to explain or rebut the admissions in the answer of the Bonsack Machine Company, so far as the said admissions bear upon the issue in the case on trial.</p> <p>“(4) The court instructs the jury that for the plaintiff to recover in this action it must appear to the jury by'a preponderance of testimony that the defendant company has broken or failed to perform its part of the contract made between the plaintiff and defendant, and that the plaintiff has sustained damages by such breach of the contract, and the jury can And only so much of the amount demanded in the declaration as the plaintiff has shown, it sustains as a loss by reason of such broach of the contract.</p> <p>“(5) The court instructs the jury that, should they believe from the evidence that the language contained in the two letters, one of the 26th of March, 1887, and the other of the 25th of April, 1887, when viewed in the light of other correspondence of the parties, the subsequent written contract, and. other evidence was not relied upon by the plaintiff, and was not intended by the parties to be incorporated into the contract, then they must find for the defendant; and in estimating the royalties, upon which they shall base their verdict, in ease they find for the plaintiff, they must exclude all such royalties as accrued after and under the written contract, dated March 7, 1890.</p> <p>“(6) 'The court instructs the jury, if they believe from the evidence that the clauses contained in-the two letters of the 26th.of March and the 25th of April, 1887, now relied on by the plaiiitiff in this suit, viewed in the light of other correspondence of the parties, of the plaintiff’s written contract of March 7, 1890, and of other evidence, were not relied upon by the plaintiff when he leased the defendant’s cigarette machines, or were not intended by the parties to be incorporated into the contract, then they must find for the defendant. And said clauses, and the provisions contained in them, not having been embraced in the said contract of March 7, 1890, there can be no recovery, in any event, on account of the royalties accruing after the date of said contract.</p> <p>“(7) The court instructs the jury that the burden is on the plaintiff corporation to show that it paid to the defendant corporation the 30 and 33 cents per thousand, without knowledge of a lower rate’or royalty being given by the defendant to'others; and if they shall, from the evidence, believe that the plaintiff has failed to prove by a preponderance of evidence that said payments were made without knowledge of a lower royalty to others, then they must find for the defendant.</p> <p>“(8) The court instructs the jury that if they believe from the evidence the defendant contracted it had not and would not furnish machines to others at a royalty or rate lower than 30 cents per 1,000 cigarettes nonprinted, and 33 cents per 1,000 cigarettes printed; that said defendant has violated said contract, and that said plaintiff lias not proved it has sustained damage thereby, —then they shall find only nominal damages in favor of said plaintiff.</p> <p>“(9) The court instructs the jury that under the pleadings in this cause, to enable the jury to find for the plaintiff, the burden of proof is on the plaintiff to show — First, that the contract set out in the declaration is the contract which was made between the parties; second, that the defendant has violated the said contract; third, that the plaintiff has been damaged by such violation of the contract; and, fourth, the amount of the damages which the plaintiff has sustained by reason of the violation of the said contract by the defendant.</p> <p>“(10) The court instructs tlie jury that all prior negotiations and contracts between the plaintiff and defendant relating to the hiring or leasing of machines by defendant to plaintiff are merged in the contract between said parties of the 7th of March, 1800, and if they believe from the evidence that there lias been no breach of said contract of the 7th of March, 1890, then they must find for defendant.”</p> <p>To the giving of said instructions, or any of them, the plaintiff, by its attorneys, objected, and the court sustained the objection, and refused to give tlie instructions, and each of them, in the form in winch they were presented. And thereupon the plaintiff company, by its attorneys, moved the court to give to the jury the following five instructions:</p> <p>Instructions Prayed for by Plaintiff.</p> <p>“(1) The court instructs tlie jury that the correspondence between the plaintiff and defendant, which has been introduced in evidence and read to the jury, constitutes a contract between the parties. And upon the subject of royalty, or compensation to be paid by the plaintiff to the defendant for the use of the defendant’s machines, said contract was that the rate of said royalty should be thirty cents per thousand for all cigarettes not printed and thirty-three cents per thousand for all printed cigarettes; and this rate of royalty, or compensation for the use of defendant’s machine, to be paid by the plaintiff, was based upon the assurance given by the defendant to the plaintiff that such rate was in accordance with the terms of the defendant, which were uniform, and not different from those given to any other manufacturer, and that said terms were the same to all.</p> <p>“(2) And if tlie jury believe from the evidence that the defendant company, before and at the time when the plaintiff was nsing its said machine, had contracted with, and did allow the use of the said machine by, other persons engaged in (he manufacture of cigarettes upon terms different and more favorable than ihese required of the plaintiff, such conduct was a breach of said contract by llie defendant company.</p> <p>“(3) The court further instructs the jury that if they believe from the evidence that tlie contract between the plaintiff and the defendant company has been broken by the defendant company, the measure of the damages to which the plaintiff is entitled is the difference between the royalty paid by the plaintiff to the defendant company and the royalty paid by the Lone .Jack Cigarette Company, or that paid by the Duke, Sons & Co. to tlie defendant, whichever royalty may be the smaller paid by either of said companies. And in estimating the royalty upon which they shall base their verdict in case they find for the plaintiff, they must exclude all such royalty as accrued after and under the written contract dated March 7th, 1800.</p> <p>“(4) The court instructs tlie jury that the answer of tlie defendant eoinpany in the case of tlie Lone Jack Cigarette Company against the defendant company, which has been introduced in evidence, must be considered by the jury in reference to the hill as an answer to which it was prepared, aiid only so much of said answer must be considered as bears upon the issue now being tried, as defined by the rulings of the court.</p> <p>“(5) The court further instructs the jury that when the plaintiff, in the letters to the defendant company, inquired the terms and price for which the defendant company leased its machines, and stated that plaintiff understood that the defendant company gave better terms than offered to the plaintiff, it was the legal duty of the defendant company io inform the plaintiff of the terms of any contract it may have had with other parties which were different and better than those offered to the plaintiff.”</p> <p>To ibo giving of these five instructions the defendant objected, which objection was overruled by the court, and the instructions given. The trial resulted in the following verdict;</p> <p>“We, the jury, find for the plaintiff, and assess its damages at the sum of eight thousand two hundred and thirty-two dollars and twenty-nine cents, with interest on $6,999.69, a part thereof, from the 8th day of January, 1892, until paid.”</p>

This was an action by Thomas J. Coggin and Robert E. Farris against the Western Union Telegraph Company to recover damages for the nondelivery of a message. Plaintiffs recovered a judgment in the circuit court. Defendant brings error. The plaintiffs below, Thomas J. Coggin and Robert E. Parris, were partners in the conditional purchase of a lot of horses. Coggin made the contract. He was to pay $1,500 for the horses.

<p>1. Pkacticb on Appeal — Bond.</p> <p>Rule 13 of the circuit courts of appeals (11 C. C. A. ciii.) does not apply to bonds required upon the allowance of writs of error, where no super-sedeas is ashed or granted.</p> <p>2. Practice — Set-Off—West Virginia Code.</p> <p>Under the Code of West Virginia and the practice prevailing thereunder a defendant may show at the trial all matters of set-off, even though, accruing pendente lite, of which the plaintiff has had notice by a bill or amended bill of sets-off.</p> <p>3. Same — Parties.</p> <p>The W. Oo. commenced an action against one C. While it was pending, a receiver was appointed in a suit for the foreclosure of a mortgage made by the W. Go., and was directed to take possession of all the property covered by the mortgage, and prosecute and defend all suits relating to such property. It did not appear that the claim against C. on which action had been, brought was part of the mortgaged property, and the receiver was refused permission to be made a party plaintiff to the action. C. filed a bill of sets-off including, among others, coupons of bonds secured by the mongage maturing- after the receiver was appointed. ' Held, that such coupons could not properly be allowed as sets-off in the action to which the receiver was not and could not bo a party.</p>

This was an action by the United States against James McAleer, John Manning, and Robert W. Cooper upon a bond. The district court sustained a demurrer to the complaint. Plaintiff brings error.

<p>Í. Negligence — Question fob Jury.</p> <p>In an action against the K. By. Co. for causing the death of one C., it appeared that the tracks of the K. Co., running north and south, crossed at grade the tracks of the S. Co., running east and west, a stop board being placed on each line 400 feet from the crossing, and the rule of the road giving the right of way to the train which first arrived at its stopi board. There was no obstruction to the view between the tracks. A freight train, of which' C. was engineer, consisting of 28 cars, approached the crossing from the east, on the S. road, in the night, stopped at the stop board, and, no train on the K. road being in sight, whistled twice, and started for the crossing. After starting, the fireman notified C. that a train was aiiproaching on the K. road, from the south, whereupon C. stopped his train, about 200 feet from the crossing, until the K. train was seen to stop at its stop board, when C. again whistled twice, and started for the crossing, and the fireman, having reported the stopxfing of the K. train, turned to shovel coal into the fire box. Just as C.’s engine reached the crossing, it was struck by the K. train, and C. was killed. The headlight of the S. train was burning at the time, and was seen by a brakeman and a passenger on the K. train. Helé, that it was not error to refuse to direct a verdict in favor of the K. Co., either on the ground that no negligence of the K. Co. was shown, or that C. was shown to be guilty of contributory negligence.</p> <p>2. Same — Contributory Negligence — Fellow Servants.</p> <p>Helé, further, that it was no defense for the K. Co. that the fireman on the S. train, C.’s fellow servant, was guilty of contributory negligence.</p> <p>8. Same — Ordinary Care.</p> <p>Held, further, that since the engineer of the K. train had no right to x>ro-ceed if ho could have discovered the other train by the use of ordinary care, it was not error to refuse to instruct the jury that if they believed the headlight of the S. train was not lighted, and the engineer of the IC train thereby warned of its axiproach, he had a right to proceed.</p> <p>4. Same — Proximate Cause.</p> <p>Held1, further, that it was not error to refuse to instruct the jury that a failure to light the headlight of the S. train would bar a recovery by C., since it did not appear that the absence of such light contributed to cause the accident.</p> <p>5. Evidence — Description oi^ Locality.</p> <p>Halé, further, that it was not error to permit a civil engineer, who had made a survey of the locality, to testify that, if the headlight on the S. train was lighted, it would be visible at any point within 400 feet of the crossing, from any point on the K. tracks between the stop board and the crossing.</p>

This was an action of ejectment by the Michigan Land & Lumber Company, Limited, against Charles A. Eust. Judgment was rendered in the circuit court for the defendant. Plaintiff brings error. This is an action in ejectment brought in the court below by the plaintiff in error to recover 2C0 acres of land in township 18 N., of range 3 W., in the county of Clare, state of Michigan.

<p>Public Lands — Swamp-Land Act — Vesting op Title — Act March 8, 1857.</p> <p>Upon facts similar to those In Lumber Co. v. Rust, 68 Fed. 155, except that there had been, in this case, no approval of i.he lists of lands, including those in controversy, by the secretary of the interior, but only a selection thereof by the surveyor general and report by him to the commissioner of the land office, the lists so reported having, afterwards, been superseded by other lists made in accordance with corrected surveys, held, that such selection was not confirmed by Act March 3, 1857 (11 Stat. 251).</p>

This was an action by the l’auly Jail-Building & Manufacturing Company against the hoard of county commissioners of Kearney county, Kansas, on a, contract for the erection of cells in a jail. Judgment was rendered in the circuit court for the defendants. Plaintiff brings error.

<p>This was an action by C. C. Robertson & Co. against the Scottish Union & National Insurance Company on a policy of insurance, originally brought in the corporation court of the city of Lynch-burgh, Ya., and removed by the defendant to this court. When the case came on for trial, and after a jury had been impaneled, the plaintiff offered certain evidence, to which the defendant objected, and the court toolr the question under advisement.</p>

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

<p>Attachment — Sufficiency of Affidavit.</p> <p>In a statute which makes it ground for attachment that defendant has disposed of his property with the intent to cheat, hinder, and delay his creditors, or is about to do so with the same intent (Mansf. Dig. Ark. c. 9, § 309, subds. 6-8), the word “property” does not mean all the debtor’s property, and hence there is no inconsistency in alleging in the affidavit for attachment that defendants have disposed of their property, and that they are about to dispose of the sama</p>

This was an application by James Harden, importer of certain handkerchiefs, for a review of the decision of the board of general appraisers reversing the action of the collector of the port of New York as to the rate of duty imposed upon such merchandise. The circuit court affirmed tbe decision of tlie board of general appraisers, and the United States appealed.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia.</p> <p>This was an application for a writ of habeas corpus by Lewis .McK. Bell, who claimed that he was illegally restrained of his liberty by James P. Webster, captain of the police force of the city of Alexandria, Va. The circuit court granted the writ, and discharged the relator. The respondent appeals.</p> <p>This case comes up toy way of appeal from the circuit court of the United States for the Eastern district of Virginia. Lewis McK. Bell was in custody of James E. Webster, captain of the police force of the city of Alexandria, under conviction before the mayor of that city for the violation of a city ordinance. The city of Alexandria, on 12th May, 1894, passed an ordinance containing the following provision: O</p> <p>“Sec. 49. On every express company having an office in the city of Alexandria, Virginia, and receiving goods, wares and merchandise, and forwarding them to points Avithin the state of Virginia, or receiving goods, wares or merchandise within the state of Virginia, and delivering them in the city of Alexandria, there shall be levied and collected a license tax of $150. This ordinance shall be of force from its passage.”</p> <p>The United States Express Company, a joint-stock company under the laws of New York, is engaged as common carrier in the express business throughout many states of the Union. It has an office in the city of Alexandria, in which Lewis McK. Bell is the chief manager and agent A part of the business of the company is transporting from other states into the city of Alexandria packages of goods, wares, and merchandise, and in delivering them in that city, and in receiving goods, wares, and merchandise in Alexandria, and transporting and delivering them elsewhere. All express packages sent from Alexandria elsewhere are forwarded to Washington, in the District of Columbia, and thence forwarded to their destination. Very many express packages so forwarded are destined for points in the state of Virginia, and are thus sent from Alexandria through Washington to those points in Virginia. The express company refused to pay this license tax. Thereupon the proceedings were instituted against Lewis McK. Bell, its manager and agent, under which he was convicted and was in custody as stated. An application was made for his release under habeas corpus before the circuit court of the United States; and, upon hearing the application, Bell was released from custody, upon the. ground that the express company was engaged in interstate commerce, and that the ordinance in question was a regulation of interstate commerce, and so void. This is an appeal from this decree.</p>

<p>At Law.</p> <p>Appeal by importers from decision of the board of United States general appraisers affirming the decision .of the collector of customs at the port of New York in the classification for duty of certain ladies’ kid gloves, embroidered, upon which the collector assessed an additional duty of 50 cents per dozen pairs, under the provisions of paragraph 458 of the act of 1890, and under the particular clause thereof reading: “On all embroidered gloves with more than three single strands or cords, fifty cents per dozen pairs.”</p> <p>The,protest of Wertheimer & Co., importers, claimed that, while the gloves were embroidered, they were not embroidered with “more than three single strands'or cords,” and were not subject to such additional duty of 50 cents per dozen pairs: The evidence tended to show that gloves of this character were known in trade as “three row embroidered gloves.” As a matter of fact, however, there were actually more than three single strands or cords on said gloves, although there were but three rows of embroidery thereon. Each of said rows of embroidery contained more than one single strand or cord.</p> <p>On behalf of the United States, it was contended that this was a designation of the articles by specific and particular description, and referred only to their actual condition, and not to any commercial designation thereof, and, while these gloves might be known in trade as “three row embroidered gloves,” as a matter of fact they had upon them nine single strands or cords, or three single strands in each row of embroidery.</p>

<p>Customs Duties — Diamonds—Act Aug. 28, 1894.</p> <p>Diamonds, cut but not set, field dutiable at 25 per cent, ad valorem, under paragraph 338, Act. Aug. 27, 1894, as “precious stones of all kinds, cut but not set,” and not free of duty, under paragraph 407 of said act. The word “diamonds,” in the latter paragraph, held to cover only “miners', glaziers’, and engravers’ diamonds-not set,” and to he only a heading to that paragraph, and restricted to the particular diamonds therein enumerated.</p>

<p>This was a suit by Rutb MeEnery Stuart against Orlando J. Smith for infringement of a copyright. The cause was heard on the pleadings and proofs.</p>

<p>This was a bill by the Singer Manufacturing Company against Allen Schenclc, president of the New Home Sewing-Machine Company, for alleged infringement of a patent relating to an improvement in sewing machines.</p> <p>This action is founded upon letters patent No. 224,710, granted February 17, 1880, to the complainant, as assignee of the inventors, Miller and Diehl, for an improvement in band-wheel bearings for sewing machines.</p> <p>Tile specification states as follows: “Tlie object of our invention is to do away with the rattling- of the band wheel and to reduce the friction, also to simplify and condense the parts, lessening the cost and avoiding the complications of the anti-rattling journals in use. * * * On band wheels as formerly constructed, having a bearing on a stud, the pitman was applied outside the bearing, causing a side or jamming movement and excessive wear and lost motion. In our improvement the power is applied at the center, and the pressure is always directly upon the bearings, so that there is no tendency to a side or jamming motion, and the friction and wear are consequently reduced to the least amount. The crank is supported at one end by the central brace, and at the other end by one of the side pieces of the frame. By this arrangement a great advantage is obtained, as the crank presses down in direct line both upon the side of the frame and upon the central brace, thereby equalizing and distributing the weight throughout the entire frame without any lateral pressure whatever or any tendency to sag or break the side piece, ID, or to rack the frame when the machine is in operation. The crank also is thus very much shorter than if extended the whole length of- the frame as formerly, and the cost, friction, and wear are proportionally reduced. The bearings also being conical instead of straight, the end play of the crank is prevented, and an adjustment for wear and lost motion may be readily made by means of a set-screw on the central brace or on the side piece, or on both the central brace and the side piece, or by the use of an adjustable lug or bearing upon the central brace or the side piece, substantially as at H, Fig 1.”</p> <p> </p> <p>The first and second claims only are involved. They are as follows: “(1) In the frame of a seeing machine, the central brace, A, as a support or bearing for one end of the crank, C, operating either in direct contact with the said central brace, A, or connected therewith by means of an adjustable lug or bearing, substantially in the manner and for the purposes “described. (2) In the frame of a sewing machine, the crank, 0, having the conical bearings s si g2 g3j in combination with an adjustable lug or bearing on the centra! brace, A, or on the side piece, E, substantially in the maimer and for the purposes described.”</p> <p>The defenses are noninfringement, if the claims are narrowly construed, and anticipation by a structure made by one ,T. E. Burdge, of Cincinnati, Ohio, prior to 1864.</p>

<p>1. Patents — Anticipation.</p> <p>Patent No. 354,043, issued to Connolly, December 7, 1886, for “spring attachment for rocking chairs,” the principal feature of which is the use of spiral or coil springs to connect the base and rocking part of a platform rocking chair, located at opposite sides of the chair center, and in the center of the oscillation of the chair seat, and rigidly connected to such parts, was not anticipated by patent No. 185,501, issued to the same, December 19, 1876, for an improvement in tilting chairs, described as intended to provide a chair furnished -with a spring which will afford an elastic or yielding support for the seat, and which will at the same time permit such seat to be tilted or rocked according to the inclination of the occupier’s body and limbs, and the essence of which consists in the application or ernployment of a spiral spring in such a manner as will afford a support to the seat, being compressed fully or in part when such seat is occupied, and opening and expanding on one side whenever the latter is tilted or rocked, etc.</p> <p>2. Samis — Infrijtokmtcnt.</p> <p>Patent No. 35-1,043, issued to Connolly, December 7, 1886, for “spring attachment for rocking chairs,” the principal feature of which is the use of spiral or coil springs to connect the base and rocking part of a platform rocking- chair, located a.1 opposite sides of 1lie chair center, and in the center of the oscillation of the chair seat, and rigidly connected to such parts, but under the claims for which the springs could be applied to any part of the chair where their function could be properly used, is infringed by a platform rocking chair with springs applied directly to the rocker and to the base.</p>

<p>Action at law for infringement of letters patent for an invention, commenced against the Winger Manufacturing Company, a New Jersey corporation, and Willis B. Fry, manager on the Pacific coast of the business of the Singer Company. A demurrer was interposed on behalf of the Singer Company upon jurisdictional grounds, and was sustained upon the authority of Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, and other cases. The action then proceeded against Fry alone.</p> <p>The patent sued upon was granted to the plaintiff on January 80, 1883, and was for an improvement in sewing-machine treadles. In the specification the patentee described his invention as relating to improvements in the bearings of sewing-machine treadles, and in the specification and drawings the treadle of the patent was specifically described, and shown to work upon trunnions integral with the tieadle, and extending into bearing holes in the lower ends of the usual upright cross brace of the machine, said trunnions being V-shaped, or sharpened to an edge along their lower surfaces; the usual foot bar or cross bar passing through the lower ends of the upright cross brace below the treadle, and serving its customary purpose of rigidly joining the cross brace and legs of the machine at their lower points of contact.</p> <p>Drawings of Plaintiff’s Patent.</p> <p> </p> <p>Specification and Claims of Plaintiff’s Patent.</p> <p>“To All Whom It may Concern: Be it known that I, Herman Cramer, of Sonora, in the county of Tuolumne, and state of California, have invented a new and improved sewing-machine treadle; and I do hereby declare that the following is a full, clear, and exact description of the same, reference being -had to the accompanying drawings, forming part of this specification: My invention relates to improvements in the bearings of sewing-machine treadles; and it has for its object to provide means — First, to keep the treadle bearings rigidly in line and at a fixed distance apart, to avoid friction; and, second, to make its movement in use noiseless. To this end my invention consists in the construction and combination of parts lierein-after fully described and claimed, reference being bad to the accompanying drawings, in which Fig. 1 is a perspective view of a portion of a sewing machine, showing my invention. Mg. 2 is a transverse vertical section through one bearing of the treadle. A represents the treadle provided with the usual pitman connection by which to run the sewing-machine wheel, ii represents the two trunnions, cast as a portion of the treadle, and extending from its sides into loopholes in the common cast-iron cross brace, C-These trunnions are sharpened to an edge or comer along their lower sides, and the lower end of the loophole is hollowed to an angle more obtuse than the edge of the trunnion, to serve as a bearing for the same, and permit the rocking motion common to treadles. O represents the usual cast-iron double brace connecting the two end legs diagonally in a plane generally vertical. The lower ends of this brace are secured directly to the web of the legs by bolts, d, and for convenience and strength I make the two ends of the common cross bar, D, serve as these bolts. The upper ends of the brace are secured, as usual, either to the web of the legs, or to the table of the machine, near the legs. The treadle and its trunnion bearings are wholly independent of the cross bar, D, except its service, as stated, to hold the brace to the legs. The bearing holes in the brace are formed into long vertical.loops to permit the entrance of the treadle. Pieces of leather, F, or other soft material, cover the top and end of each trunnion, to serve as cushions to keep the same close in its' bearing, to prevent the noise which would result were the trunnions permitted to bounce and thump endwise when the treadle is in motion. The leather, F, is fitted to the curve ot" the upper side of the trunnion, which is an are of a cylinder whose center of oscillation is the lower edge of the trunnion. The same leather also interposes between the end of the trunnion and the adjacent iron, f is a block, serving as a mere backer, to which the cushion, F, is attached. This block conforms to the back and top side of the cushion, and fills the loophole in the brace above the trunnion. It also has tangs or projections, e, resting in suitable recesses in the brace, O, which are held between tbe brace and the web of the leg, ii, by which means the block and cushion are held in place. Below the bearings of the trunnions, B. I provide cups, M, attached to the ends pf brace, 0, to catch the oil that usually drips from such bearings. By this construction my treadle bearings are rigidly fixed, and in no way liable to get out of line or to require adjustment. The usual noise is prevented, and overflowing' oil is caught before it can do damage. 1 am aware that sewing-machine treadles have before been provided with Y-shaped bearings, and I do not claim the same as my invention; tout what 1 claim, and wish to secure hy letters patent, is: (1) The vertical double brace joining the legs of the two ends of a sewing machine, provided with holes through its lower extremities, to serve as bearings, in combination wiili a treadle provided with trunnions fitted to oscillate in said bearings, substantially as specified. (2) The sewing-machine legs, E„ tlie vertical double brace, (\ secured thereto, and provided with holes to serve as bearings for the treadle, A, and the treadle provided with trunnions, B, to oscillate in said bearings, in combination with the cushion, F, and the block, f, as and for the purpose specified. Herman Cramer.</p> <p>“Witnesses:</p> <p>“Frank W. Street,</p> <p>“Charles L. Street.”</p> <p>The first claim only of plaintiff’s patent was alleged to have been infringed.</p> <p>Letters patent for certain improvements in sewing-machine stands and treadles were granted to the Singer Manufacturing Company, assignee of Philip Diehl, on October 14, 1884. Under this patent the Singer Company constructed and sold in sewing machines a form of treadle hung in a loop-like downward extension of the usual upright cross brace, which downward extension also served as the ordinary foot bar or cross bar. The treadle operated upon conical pointed screws extending through the sides of the down-ward extension of the hrace and acting in suitable bearing-recesses in the ends of the Treadle. The following drawing from the Diehl patent fully illustrates its treadle and bearings:</p> <p> </p> <p>The defendant did not himself make, use, or sell any machine containing the Diehl treadle, hnt exercised supervision over the Pacific coast business of the Singer Company, under instructions from the central office at New York, and, as a part of his compensation; received a commission upon the net profits accruing to the Singer Company from its entire Pacific coast ¡business. At the conclusion of the testimony, counsel moved for an instruction to the jury to bring in a verdict for the defendant, because (1) the defendant, as a mere agent or employe, was not liable in an action at law for damages on account of infringements committed by the Singer Company, if at all; and because (2) the Diehl treadle used by the Singer Company was not an infringement of the plaintiff’s device.</p>

<p>Patents — Limitation—Bolling Mills.</p> <p>The Moxham patent, No. 303,036, for an improvement in rolls for rolling pietal blooms or piles into girder shapes, construed as to claim 2, and held to be limited to rolls having a “pass” substantially of the contour shown in the drawings, and therefore held not to have been infringed.</p>

This was a bill by Mast, Foos & Co. and William B. Hooker against the Iowa Windmill & Pump Company for alleged infringement of certain patents relating to improvements in pumps.

<p>Patents — Inerinobment op Combination Claim — Sewing Machine.</p> <p>The Grout patent, No. 261,440, for an improvement in sewing-machine treadles, construed narrowly, and, being for a combination, held not in-fripged by a machine which omitted two of the elements expressly named in the claim.</p>

This was a suit by the American Cable Railway Company against the mayor, aldermen, and commonalty of the city of New York and the city of Brooklyn for alleged infringement of a patent relating to an improvement in cable railways.

<p>1. Admiralty-Pleadings and Proof.</p> <p>Where, in defense to a libel by a pilot to recover fees from a vessel which had rejected his services, it was pleaded that libelant, after signaling an offer of services, hauled down the signal, and sailed away, thus preventing the ship from taking him, held, that on failure of the evidence to sustain this claim, respondent was not entitled to prove that other pilots also offered their services at the same time, and that the vessel would have been subjected to serious inconvenience in order to take libelant.</p> <p>S. Pilots — Offer of Survives- -Obligation. to Acgtspt.</p> <p>A vessel bound up tlie Delaware river to Philadelphia is obliged to accept tlie first available pilot wlio offers his services, and. if she refuses .him, and lakes one who at tlie time was further away, she is nevertheless liable to the former for his fees. The Olymene, 9 Fed. 104, and The Alzena, 14 Fed. 174, followed.</p>

This was a libel by the Franklin Sugar Befining Company against the steamship Silvia to recover for damage to cargo. The district court dismissed the libel (64 Fed. 607), and the libelant appeals.

<p>L Principal and Agent — Negotiation or Charter Party by Brokers — Bought and Sold Notes.</p> <p>A firm of brokers in San Francisco, having correspondents in London, offered to defendants, who were exporters of wheat and flour in San Francisco, a British ship for charter. After some negotiations, in which defendants required, as was their custom (the same being well known to the brokers), that the charter should contain a provision for “charterers’ surveyor,” the brokers telegraphed their correspondents in Liverpool an acceptance of the terms offered. The Liverpool correspondents then arranged for signing the charter party there, and the same was executed in behalf of the ship owners, but in doing so their agent struck from the printed form the word “charterers’,” and inserted “competent’.’ before the word “surveyor.” This was objected to by the correspondents of the San Francisco brokers, but, failing to get it changed, they nevertheless signed the charter party, styling themselves “agents for defendants.” On receiving notice thereof, the San Francisco brokers addressed a letter to defendants, stating that the charter party had been signed, giving its provisions as to rate' of freight, time of arrival, etc., but failing to state the action taken in regard to the surveyor, merely concluding their statement with the expression, “all other usual conditions”; and they asked defendants to confirm the charter. This defendants accordingly did, but without any knowledge of the change that had been made. No authority had previously been given to execute the charter in Liverpool. Held, that the confirmation, having been made without knowledge of a material provision, was inoperative, and that the letter of notification and the answer of confirmation could not be regarded as a transaction by bought and sold notes so as to constitute them the sole evidence of the contract. 58 Fed. S94, reversed.</p> <p>2. Same — Ratification.</p> <p>Copies of the charter party having been transmitted in due course of time to the San Francisco brokers, they inclosed the same to defendants, and the latter immediately replied, stating that the terms were right, except that they should insist upon “charterers’ surveyor.” Some negotiations were had for the purpose of inducing them to waive this provision, but-they never did so, and the brokers assured them that they would see that there was no trouble in that connection. On the arrival of the ship, the brokers notified defendants thereof, to which defendants replied that the ship wa^ not under charter to them. Rates of freight had declined in the meantime. Held, that there was nothing in the circumstances or in the conduct of defendants which operated as a ratification of the charter or a waiver of the condition, and that they were not liable for refusal to load the ship.</p>

This was a libel by the Companhia De Moagens Do Barreiro against the London Assurance, a corporaiion. to recover upon a policy of insurance for damage to a cargo of wheat shipped onboard the steamer Discard. The cause was tried in (he district court, together with another libel by the same company against the Manhoini insurance Company, upon a similar policy. Decires were entered in favor of the -libelant in each case, 5f> Fed. 44.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>These four libels against the steamship Carib Prince were filed respectively by Josephine W. Wupperman, Clifford L. Middleton and others, Manuel Cardenas and another, and William G-illespie and others, to recover for damage to cargo. The district court dismissed the libels. 03 Fed. 2(56. The libelants appeal.</p>

Carolina. This was an action of claim and delivery by Henry Kirk Porter against L. W. Davidson, sheriff of Cherokee county, N. C. The circuit court made an order directing certain replevied chattels to be returned to the defendant. 62 Fed. 626. Plaintiff brings error.

<p>1. Equity Jurisdiction — Bill for Discovery and Accounting.</p> <p>Where a bill seeks both discovery and an accounting, the discovery must be regarded, prima facie, as incidental to the accounting, and, if there is no right to an accounting, the bill will be held bad upon demurrer.</p> <p>3. Life Insurance — Semi-Tontine Policy — Bill for Accounting.</p> <p>The relation between the holder of a matured semi-tontine policy and the insurance company is that of debtor and creditor merely, and involves no trust relation; and a policy holder who is dissatisfied with the amount of the surplus which is apportioned to him by the company, pursuant to the terms of the policy, cannot maintain a hill for accounting and discovery when there are no sufficient allegations of fraud.</p>

<p>1. United Status Courts — Jurisdiction—Anciulary Suit.</p> <p>A suit was brought in a federal court to foreclose one of several mortgages to which the W. railway system and its component parts were subject. The road, was sold under decree of foreclosure, but tlie court did not order it turned over to the purchasers by the receivers who had been in possession. While the road was still in the possession of the receivers, the mortgagees under a prior mortgage commenced a suit in the same federal court to foreclose their mortgage, to which suit numerous persons having interests in or claims upon the road were made parties, and filed answers and cross bills, citizens of the same slates appearing upon both sides of the controversy. Held, that 1he federal court which had possession of the property had inherent, ancillary jurisdiction to entertain the suit, because of such possession, without regard to tlie citizenship of the parties.</p> <p>2. Same — Avert,uary and Corratkrat, Suits.</p> <p>Held, further, that the new foreclosure suit, while dependent on am-ancillary to the original suit in which possession had been taken, was st, far collateral to it as to prevent an examination of the correctness of the orders and decrees made in it.</p> <p>3. Federad and Static Courts — Jurisdiction—Possession of Res.</p> <p>Held, further, that no objection to the possession of the court in the original suit could be sustained on the ground that when such possession win taken a suit was pending in a state court in the nature of a proceeding in rem against the property, actual possession of the property not having been taken in such suit in the state court.'</p> <p>4. Parties — Ancirrary Suits — Diverse Citizen ship.</p> <p>Held, further, that in such dependent or ancillary suit the court had power to bring in, by compulsory process, any person claiming an interest in tlie property, whose presence was necessary to tbe relief sought by the comxilainants, although such person did not himself seek the establishment of his interest in the suit, and his citizenship ivas such that it would defeat the jurisdiction if it depended on diverse citizenship.</p> <p>5. Judgment — Res Ad.tudicata — Crass Suit.</p> <p>One of tlie holders of a class of securities brought a suit in a federal court in Indiana to establish such securities as a lien on certain proper! .s', for the benefit of such of tlie security holders as should come in and contribute to the expenses of the suit. The relief sought was denied by a final decree, after appeal to tlie supreme court. Pending this suit, one 0-, a holder of the securities, but who had never taken part in or contributed to the Indiana suit, brought suit in a state court in Ohio for the same relief. Neither the iiendency of the Indiana suit, nor the decree of the supreme court, was ever set up in the Ohio suit, in which a decree was made granting O. the relief sought. Held, that the Indiana decree did not bind C., nor estop him to set up afterwards the decree in his favor in the Ohio suit.</p> <p>6. Rail-roads — Mortgage op Aeter-Acquired Property — Ohio Statutes.</p> <p>An Ohio railway corporation has power to mortgage its railroad, and any subsequent accessions or accretions properly appurtenant thereto, acquired either by itself or by any successor in title, whether the road be then maintained and the property acquired by virtue of the original franchise, or of similar franchises granted by the same sovereign.</p> <p>7. Railroad Foreclosure — Decree op Sale — Effect op Saving Clause.</p> <p>The T. Ry. Co., of Ohio, and the W. Ry. Co., of Indiana, which had each issued two mortgages on their respective roads, the trustees in which were the sa'me for both roads, were consolidated into the T. & W. Ry. Co., which issued certain so-called “equipment bonds.” The T. & W. Ry. Co. was afterwards consolidated with other railroads, under an agreement, forming the T., W. & W. Ry. Co.; the effect of such agreement, and of the statutes under which the consolidation was made, being to fix upon the property of the T. & W. Ry. Co. a lien in favor of its creditors, including the holders of the equipment bonds. The T., W. & W. Ry. Co. made a mortgage to K. and J., trustees, to secure an issue of bonds. Subsequently other consolidations took place, and several other mortgages and series of bonds were issued. A suit was brought to foreclose a mortgage subsequent to the Iv. and J. mortgage, and the road was sold; but, before its delivery by the court to the purchaser, suits were brought by K. and .T. in .the various districts in which the road was situated, to which the trustees of all the mortgages, including the underlying first mortgages on the Ohio and Indiana Divisions, were made parties, and a decree was sought for a sale of the whole road, free from all liens. The suits in the several districts proceeded pari passu, and an identical decree was entered in all, directing the sale of the road. One C., a holder of equipment bonds issued by the T. & AY. Ry. Co., had brought a suit in a state court in Ohio, before the institution of the K. and J. suit, making parties the T., W. & W. Ry. Co. and others, including all the corporations which succeeded to the ownership of the road after the T., W. & W. Ry. Co., and the mortgagees in mortgages subsequent to the consolidation, which created the lien of the equipment bouds, but not including the mortgagees in the underlying divisional mortgages on the Ohio and Indiana Lines; and in such suit a decree had been made by the Ohio court establishing C.’s lien on the property of the T. & W. Ry. Co., including the Ohio and Indiana Lines, and directing a sale of the Ohio Line, subject to the underlying divisional mortgages, to satisfy such lien. This decree was not executed, owing to the possession of the road by the federal court in the K. and J. suit. C. was made a party to the K. and J. suit, and the court was asked to enjoin him from asserting his lien under the Ohio decree. At the time of the decree of sale in the K. and J. suit, objections made by C. to the jurisdiction of the court had just been overruled. and he had been required to answer. A provision was inserted in the decree of sale, at' C.’s request, reciting his objection and exception to its entry, and adjudging that the sale should be upon condition that if C.’s lien should be upheld the purchaser at the sale should pay him the amount due him, or, in default thereof, the court should resume possession of the property, and enforce its decree, by resale or otherwise, as it might direct; that C.’s lien, notwithstanding the sale, should proceed to a decree binding the purchaser, it being the intention to preserve the rights of C. in the relation in which he stood at the time of the decree towards the mortgagees, parties to the suit. Meld, that such saving clause did not give to C., upon a decree establishing his lien, a right to an absolute decree for its payment by the purchaser of the road, but only to such relief as he would have been entitled to if not made a party to the suit; his lien being, at all events, subject to the underlying mortgages on the railroads which were consolidated to form the T. & W. Ity. Oo.</p> <p>8. Same — Reluce op IIneormclosed Lienor.</p> <p>MM, further, that as O.’s Ohio suit had not been brought for the benefit of others entitled to the same lien, and such others would be equally entilled with 0. to enforce it, it would be inequitable, as against the holders of the prior divisional mortgages, to order a resale of the Ohio Division free from such mortgages, even if such a proceeding were authorized by the statutes and decision.'! of Ohio, and that the only remedy which O. could have was a redemption from the divisional mortgages prior to his lien.</p> <p>9. Judgment — Hus Adjudicata.</p> <p>lUhh further, that the question whether or not O. had a right to a separate redemption of the Ohio Division should be certified to the supreme court.</p> <p>10. MORTGAGES — REDEMPTION—NkT EARNINGS OP PROPERTY.</p> <p>1ÍM, further, that the question whether or not, upon redemption, 0. was entitled to -have the amount of principal and interest of the mortgage debts reduced by the net earnings of the road or roads in the hands of the purchaser at the sale in tlie K. and J. suit, or his assignee, should be certified to the supreme court.</p> <p>11. Judgment — Res Adjudicata.</p> <p>Meld, further, that the question whether or not, upon an appeal from tlie decree rendered by the federal court, in K. and J.’s Ohio suit, a decree rendered in the federal court in Indiana, in the ancillary suit of K. and J., upon the same questions, and not appealed from, was res adjudicata upon such questions, should be certified to the supreme court.</p> <p>12. Same.</p> <p>It seems that, as against all parties to O.’s Ohio suit, the decree of the Ohio state court established conclusively that 0. had a lien on the railroad of the T. & W. Iiy. Oo., which might be enforced against the Ohio Division alone, without regard to his remedies against the Indiana Division. Per Taft, Circuit Judge.</p> <p>18. Iitkn — Remedies.</p> <p>It seems that, as against all parties to O.’s Ohio suit, he had the right to redeem the Ohio Division from the underlying mortgages without redeeming the Indiana Division, since such relief was incident to the relief by sale granted by the Ohio decree. Nor could the mortgagees in such mortgages object, since their debt would thereby be paid, and it was conclusively established by the Ohio decree that 0. had an interest in the equity of redemption under their mortgages. Per Taft, Circuit Judge.</p> <p>14. Equity — Decree—Res Adjudicata.</p> <p>It seems that the determina ¡ion of the Ohio court that the Ohio Division only should be sold was equally res adjudicata with the determination as to the existence of the lien. Per Taft, Circuit Judge.</p> <p>15. Railroads— Consolidation — Efpeot.</p> <p>It seems that the lien impressed upon the property of the T. & W. Ity. Co. by its merger in the T., Yv. & W. Ity. Oo. was a lien upon the separate equities of redemption owned by it in the property of the Indiana and Ohio Divisions, and that, as it might have redeemed separately, so might the lienor. Per Taft. Circuit Judge.</p> <p>16. Mortgages — Parties—Trustees.</p> <p>It seems that the fact that the trustees in two several railway mortgages to secure bonds are the same does not make the mortgagees the same, in the absence of proof that the bondholders under che two mortgages are the same. Per Taft, Circuit Judge.</p> <p>17. Bqijity Practice — Ancillary Suits — Identical Decree.</p> <p>It seems that tlie several suits -instituted by K. and J. in the several districts in wliic-h tlie road lay were to be regarded as distinct, and the provisions of tlie identical decrees entered in such suits as separately applicable to the portions of the road within the several jurisdictions, and, accordingly, that the trustees of the divisional mortgages had no right, in the suit in the Ohio district, to represent the interests of the Indiana mortgagees. Per Taft, Circuit Judge.</p> <p>18. Same — Defenses not Interposed.</p> <p>It seems that, even if the consolidation which fixed the lien of the equipment bonds on the property of the T. & W. By. Co. also fixed a lien on the Ohio Division in favor of the bonds issued under the Indiana mortgage, for which the T. & W. By. Co. was also liable, the trustees of the Indiana mortgage could not therefore object to a separate redemption of the Ohio Division by C., since they did not set up such lien, or seek foreclosure under it, in the K. and J. suit. Per Taft, Circuit Judge.</p> <p>19. Cowenors — Separate Securities.</p> <p>It seems that the trustees of the Indiana mortgages, while themselves asserting the right to foreclose the Indiana Division, to the exclusion of C.’s right to resort to it, could not object to C.’s enforcing his lien upon the Ohio Division alone. Per Taft, Circuit Judge.</p> <p>20. Mortgages — Mortgagee in Possession.</p> <p>It seems that the assignee of the purchaser at the sale under the decree in the K. and J. suit, in which all the mortgages were foreclosed, should be regarded as mortgagee in possession under the divisional mortgages, and that C. was entitled to have the amount of xuineipal and interest due upon the mortgages redeemed reduced by the amount of net earnings of the Ohio Division in the hands of such assignee. Per Taft, Circuit Judge.</p> <p>21. Judgment — Bes Adjudicata.</p> <p>It seems that a decree in the suit instituted by I-C. and J. in the federal court in Indiana, adjudging C. not entitled to appropriate the Indiana Division to the payment of his lien, though not apx>ealed from, was not res adjudicata in the suit in the federal court in Ohio, as to his right to appropriate the Ohio Division. Per Taft, Circuit Judge.</p> <p>22. Same.</p> <p>It seems that the determination of the Ohio state court that the Ohio Division only should be sold to satisfy O.’s lien was not an adjudication that C. had separable liens on the Indiana and Ohio Divisions, and did not make his right to separate sale or redemption res adjudicata. Per Lurton, Circuit Judge.</p> <p>23. Same — Equity Practice.</p> <p>C. having sought, after being made a party to the K. and J. suit, to have his Ohio decree, which had become ineffective through the seizure of the property by the federal court, enforced in the K. and J. suit, it seems that the doctrine of res adjudicata would not prevent the federal court from looking into the nature and character of the Ohio decree, and if found to be inequitable, under the circumstances, from refusing to award 0. the remedy, by resort to the Ohio Division alone, which was awarded him by that decree. Per-Lurton, Circuit Judge.</p> <p>24. Libns — Separate Securities — Bedemption.</p> <p>It seems that as C. had not made liarties the other holders of equipment bonds and creditors equally entitled with him to redeem, as he should have done for the protection of the mortgagees subsequent to this lien, it would ,be inequitable to permit him to complicate the situation further by a partial redemiition of the property subject to such lien, leaving the Indiana Division still subject to redemption by him or other creditors. Per Lurton, Circuit Judge.</p> <p>25; Same — Bights of Surety.</p> <p>It seems that as upon the consolidation of the T. & W. By. Co., with others, in the T., W. & W. By. Co., the former became surety to the latter upon its undertaking, by agreement, and under the statutes authorizing the consolidation, to assume all the debts of the T. & W. By. Co., including all the divisional mortgages' as well as the equipment bonds, the T. & W. By. Co. had a right to object to the release of any part of the property primarily liable for such debts, and accordingly to a seiiarate redemption of the Ohio Division by C., leaving the Indiana Division the sole security for the remaining debts, and that such objection could not be avoided by 0. on the ground that ho had not made the T. & W. Ry. Co. a party to the suit. Per Lurton, Circuit Judge.</p> <p>26. Mortgages — Rbbbmptios—Tacking.</p> <p>It seems that, the trustees of the Indiana and Ohio divisional mortgages being the same, the mortgagees were to be regarded as the same; and all such mortgages having also been assumed by the same party, the T., W. & W. Ry. Co., neither that company, nor C., who derived his rights under it, could, iu equity, be permitted to redeem one mortgage without redeeming the other. Per Lurton, Circuit Judge.</p> <p>27. Railroads — Division—Public Policy.</p> <p>It seems that it is the settled policy of courts to treat a railroad as an entirety, and prevent its severance, where possible to do so, in the exercise of discretion. Per Lurton, Circuit Judge.</p> <p>28. Equity Practice — Ancillary Suits — Identical Decree.</p> <p>It seems that the identical decree entered in the suits in the several districts was not solely valid in each, as affecting the property within the several jurisdictions, but. effected a unit sale of the whole property in the several jurisdictions, valid under each decree. Per Lurton, Circuit Judge.</p> <p>29. Colienors — Separate'Securities.</p> <p>It seems that the lion created by the merger of the T. & W. Ry. Co. in: the T.. W. & W. Ry. Co. was for the benefit of the bondholders under the indiana divisional mortgage for any deficiency in tlioir mortgage security, as well as for the equipment bondholders and other creditors, and that such bondholders, Through the trustees, as well in the Ohio as in the Indiana suit, or the purchaser at The foreclosure sale, as equitable assignee of the mortgage debt, liad a right to object to a separate redemption of the Ohio Division by C. Per Lurton, Circuit Judge.</p> <p>30. Mortgages — Redemption—Mortgagee tn Possession.</p> <p>It seems that it did not appear that the assignee of the purchaser at the sale under Die K. and 3. decree was in possession of the railroad as mortgagee under a mortgage superior to C.’s lien, and that 0. was not entitled to a deduction for net profits. Per Lurton, Circuit Judge.</p> <p>31. Judgment — Res Adjudicata.</p> <p>It seems that ilie decree rendered in the Indiana suit instituted by R. and J., not having been appealed from, was conclusive upon an appeal from a like decree in the Ohio suit. Per Lurton, Circuit Judge.</p>

<p>Actions by the Southern Pacific Railroad Company against David R. Brown and others, and Nathaniel Bray and others, to determine the title to land.</p>

<p>In Error to the Circuit Court of the United States for the District of West Virginia.</p> <p>This was an action of ejectment by John S. Robinson and others against James B. Dewhurst and others. The plaintiffs recovered judgment in the circuit court. Defendants bring error.</p>

<p>In Error to the Circuit Court of the United States for the District of Montana.</p> <p>This was an action by the board of county commissioners of Custer county, Mont., against W. J. Anderson, to recover the amount of taxes assessed against him. Defendant demurred to the complaint and the circuit cc-urt sustained the demurrer. Plain tiff brings error.</p>

<p>Attachment by William J. Broderick, receiver of the First National Bank of Ban Bernardino, against Joseph Brown. Plaintiff moved for an order to compel the marshal to return an inventory of. a box on which he had levied the writ.</p>

Emil Harris and C. D. Platt were indicted for using the mails as a means to defraud. The court directed a verdict of not guilty, for defects in the indictment

Benedict Long was indicted under “Rev. St. § 5480, for using tlie United States postal establishment as a means to defraud. Defendant demurred to the indictment.

<p>In Error to the Circuit Court of the United States for the Northern ’District, of California.</p> <p>This was an action at law by Dennis Keating against the San Franciso 11 ridge Company for infringement of a patent relating to excavators. In the circuit court there was a verdict for plaintiff upon the first and fourth claims of the patent, and judgment was entered accordingly. Defendant brings error.</p>

The bill in this case was filed by G-rosvenor P. Lowrey, a citizen of New York. He has since died, and the case has been revived in the name of his executrix. The bill averred that Lowrey was the owner by assignment of two patents issued to Charles S. Bradley for a process of separating metals from their ores by the use of the electric current both to fuse and to electrolyze the ore.

<p>Patents — Salesmen's Check Books — Injunction Pendente Lite.</p> <p>Injunction pendente lite against infringement of the Garter reissue patent (No. 10,359), for improvement in salesmen’s cheek books, will be granted, the patent having but 3% years to run, complainant having built up a large business employing many men and much capital, defendants being small users, the manufacturer who sold to them being a small and recently organized corporation; a decision sustaining the patent having been rendered six years ago, in a case in which substantially the same defenses now relied upon were presented, there having, since such time, been general acquiescence in complainant’s rights, and there being little doubt that defendants’ book is an infringement;</p>

This was a libel by John P. Hawkins against tbe steamboat Hattie Palmer (Charles W. Davis, claimant) to recover damages for the alleged conversion of three barrels of kerosene, one barrel of gasoline, and two cases of copper paint. Tbe Hattie Palmer was a small passenger and freight steamboat plying between New York and New Rochelle, and the articles in question were shipped on her for delivery at City Island.

<p>1. Shipping — Damage to Cargo — Stowage op Molasses.</p> <p>The between decks, when perfectly tight and strong, is not an improper place for the stowage of liquids, such as molasses.</p> <p>2. Same.</p> <p>A steamship bound from West India ports to New York had sugar stowed in her hold, with hogsheads of molasses in the between decks above it. The between decks were of steel, and perfectly tight and strong, and the cargo was stowed by r •. experienced stevedore .under the supervision of the supercargo. On the voyage severe squalls were encountered, heaving the ship temporarily at an angle of 45 deg., washing the deck cargo adrift, and giving her a list to starboard of over three feet Some of the casks of molasses were broken, and their contents ran down the scupper pipes into the bilges of the hold beneath, and the bilges and sluiceways became choked with molasses, so that it flowed over the bottom of the hold, and caused the sugar in the hogsheads to be dissolved. Helé, upon the evidence, that the cargo was properly stowed; that the peril encountered by the ship was sufficient to create damage to a properly stowed cargo; and that the ship and her owners were exempt from liability under an exception in the bill of lading of damage arising from perils of the sea. 57 Fed. 412, reversed.</p>

<p>Shipping — Liability op Vessel eor Tout — Arrest op Vessel without Pro' cess.</p> <p>A yossel employed and used, with malicious intent, for the purpose of arresting, without process, another vessel, and bringing her forcibly into port, is responsible for the act, and a, participant, whether wittingly or not, in the malice wliicli incited it, and she is therefore liable to the owner of the vessel so arrested for the damages and expenses occasioned thereby.</p>

<p>Appeal from tlie District Court of tlie United States for tlie Southern District of New York.</p> <p>This was a libel by William Law and others against the steamship Trave, to recover damages for the sinking of their sailing ship, Fred B. Taylor, as the result of a collision with the steamship. The district court found both vessels in fault, and entered a decree for divided damages. 55 Fed. 117. The libelants appeal.</p>

<p>COMUSIOST — STEAMER AXD SAIT,.</p> <p>A steamer meeting a scliooner in the open sea, at night, on nearly opposite courses, held in fault because, on perceiving the schooner’s green light nearly straight ahead, she did not allow sufficient margin for passing, or for the usual and necessary variation in the schooner’s course through yawing or leeway. 52 Fed. 237, affirmed.</p>

<p>Appeals from the .District Court of the United States for the Eastern District of Virginia.</p> <p>These are appeals from the district court of the United States for the Eastern district of Virginia, sitting in admiralty.</p> <p>On tlie 12th November, 1891, the British steamer Victory, in ballast, was proceeding up Elizabeth river on her way from Hampton Roads to Norfolk. The steamship Plymothdan, on the same day, had left the pier at Lambert’s point, and was proceeding to sea down Elizabeth river. She had a cargo of cotton. The Victory was an iron steamship, 338 feet in length, 38% in breadth, drawing 17 feet aft and 13 feet forward. In officers and crew she had 31 men. The Plymothean was 216 feet long, 1,016 net tonnage, her cargo of 3,682 bales of cotton. Her officers and crew numbered 21. Each ship was in charge of a local pilot. The master of each steamship was on the bridge with the pilot, acting as lookout, and seeing that the pilot’s orders were executed. Neither of the steamships had any other lookout. The channel from the pier at Lambert’s point runs to the channel of- Elizabeth river at an angle of about 45 degrees. At black buoy No. 9 in Elizabeth river, the channel of the river becomes nearly, if not entirely, straight, and runs due north from that buoy on a line to and bejmnd Craney Island light; the distance between the buoy and the light being 1% mil'es. The uniform depth of the channel between these two points is 25 feet. At Craney Island the channel is 250 yards in width. At buoy No. 9 the channel is 400 yards in width. Outside of the channel on both sides thereof there are large spaces of water; that to the west side being 8 or 10 feet in depth, and on the east side of the channel more shallow. The Plymothean, coming from Lambert’s point, had reached the angle of the channel at buoy No. 9, and, straightening out again, proceeded to sea under a ported helm, keeping to the starboard side of the channel. This was at 4 p. m. At the same time the Victory was seen in tlie channel of the same river opposite to Craney Island light, a mile and one-eighth off, under a starboard helm. She was about mid-channel, or perhaps to the eastward of mid-channel, and moving with the tide about six or seven miles an hour. The Plymothean was steaming against the tide at the rate of four miles an hour. They kept their respective courses without change until collision became imminent, — indeed, inevitable, — when each reversed engines and backed with ail speed, but without avail. At 4:14 p. in. the stem of the Victory penetrated the port side of the Plymothean at her main bridge, inflicting so deep a wound that she had to be beached on the bank of the channel east of buoy No. 7. The owners of each of the steamships instituted proceedings seeking limitation of liability. The Victory has been appraised at $67,500. She claims to have sustained injury from the collision to the amount of $14,000. The Plymothean has been appraised at $33,000; her freight is valued at $11,871,— in all $45,000, and upward. The actual amount reduced by her proportionate amount of salvage expenses is $40,000. She claims damages arising from the collision to the amount of $42,000. The damage to the cargo is proved to be $72,000. Each steamship intervenes in the proceedings of the other, and ■claims damages for the collision. The owners of the cargo intervene in both proceedings, seeking to hold both vessels responsible. The district court held the Victory to be solely in fault, and rendered a decree against her, appor-turning the sum for which stipulation was given for her pro rata between the Plymothean and her cargo. 63 Peel. 631. JOach party comes up to this court on apxteal.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the or them District of Ohio.</p> <p>This was a suit by the village of Celina against the Eastport Savings Bank to set aside a judgment. The circuit court dismissed the bill. Complainant appeals.</p> <p>On the 2d day of December, 1890, the Eastport Savings Bank recovered a judgment by default against the village of Celina., the present appellant, for the sum of 83,011.56, besides costs, in an action brought on the 7th day of June preceding, in which there was due personal service of process upon the mayor of the village. After the judgment was entered in December, 3 890, no further proceedings were had in the case during- that, term, nor until the 2Sth day of October, 1891, when the present suit was instituted by the village of Celina, the defendant in the suit in which the judgment was obtained, against the plaintiff therein, the Eastport Savings Bank.</p> <p>Tlie character of the pleadings and practice in the court below is anomalous in the extreme. The proceedings were commenced by a petition, ami not by bill. The petition is addressed to the court as a court of law, sets up the recovery of the judgment against the petitioner, stating that it remains in full force and unsatisfied; that it was taken by default without the knowledge of “this plaintiff”; that the plaintiff had reason to believe, and did believe, that it had employed attorneys to defend (lie case; that a proper answer had been ma.de for it in the cause, and that rlxe mayor of the village, after having been served with process, and on the 27th day of June, 1890, being authorized and directed by a resolution passed by the common council to employ an attorney to represent the village in the cause, visited a firm of attorneys in the village, and inquired of them if they could represent it in the said action, and that the said firm of attorneys informed the mayor that they could represent the village; and that the mayor, after some further conversation with said firm about the action, the particulars of which are not stated, left the attorneys’ office “under the definite and positive impression and belief” that he had engaged the attorneys to represent the village in the said action, and that the attorneys had agreed to do it; that the mayor, relying upon such understanding, gave no further time or attention to the interests of said village in said action; that it did not discover that the'judgment had been taken during the term of the court at which It was rendered, nor until tlie 1 si day of September, 1891, when it learned of it by a letter from the attorney for the Eastport Savings Bank, mentioning the judgment and inquiring -what action the Tillage expected to take in reference to it; and concludes this part of the statement of its ease with the allegation, “nor could this plaintiff with reasonable diligence have discovered the facts hereinbefore mentioned and stated.” The petitioner then proceeds to make a statement of what is the defense which it conceives it was entitled to make, the substance of which is that the judgment was rendered for a sum due upon the coupons of bonds of the village which had been issued by it in aid of a railroad enterprise under a statute which purported to authorize the issuance of such bonds, but which statute it alleges was unconstitutional, for reasons set out at length in the statement of the proposed defense. It appears that the bonds were of the same class of bonds as those which were held void by this court in Aetna Life Ins. Oo. v. Pleasant Tp., 10 O. O. A. 611, 62 Fed. 718, and subject to the same defense as was therein sustained. The petitioner concludes by praying for an order enjoining the enforcement of the judgment during the pendency of this action, and that the said judgment be set aside and held for naught; that its said defense may be allowed to be set up, and for any other relief to which the petitioner may be entitled. There was no prayer for process in the petition; nevertheless process appears to have been issued in the form of a subpoena, and a temporary restraining order was issued as prayed in the petition.</p> <p>The bank appeared and answered the petition, and for its first defense, after admitting that the bank had recovered the judgment as stated in the petition, and that the attorney for the bank informed the mayor of the village of the recovery of the judgment as stated, denied all the other allegations of the petition respecting the circumstances of the supposed employment of an attorney to look after the defense of the village, the reliance upon the supposed arrangement made for that purpose, and the understanding of the attorneys who were expected to defend, except such other of the allegations of the petition as were admissions of fact. For its second defense, the bank set forth that for eight years previously the village had duly levied and collected a sufficient sum of money for the special purpose of paying the coupons upon these bonds, and that the money so collected was then in the treasury of the village devoted to the payment, among other things, of the bank’s claim.</p> <p>The case was tried by the court below upon an agreed statement of facts, substantially as alleged in the pleadings, and the finding was that the plaintiff is not entitled to the relief prayed for in its said bill, and thereupon the court ordered that the bill should be dismissed, and that the defendant recover its costs. Thereupon the village of Celina filed its motion for a new trial, which was overruled. A bill of exceptions was settled and signed, in which it is stated that the petitioner excepted to the judgment of the court and the order refusing a new trial. From the action of the court below the petitioner appeals.</p>

<p>This was a suit by H. M. Horton and Joseph M. Parsons against David M. McKee and Frank F. Moore for specific performance of a contract for the sale of real estate. The defendants demurred to tbe bill.</p>

The bill in this case alleges that on or about the 7th day of October, 1890, the appellee (who was the complainant below) and the defendant George O. Stevens, entered into a contract of partnership, for the purpose of buying, selling, and negotiating sales of phosphate lands located in the state of Florida, by which contract the complainant and the said defendant Stevens were to share equally in the profits realized or to be realized from the business of said copartnership,…

In Equity. Bill by tbe Farmers’ Loan & Trust Company against the Chicago & Northern Pacific Railroad Company, the Northern Pacific Railroad Company, and others to foreclose a mortgage. Louis Daenell and the state of Illinois prayed leave to file petitions in intervention.

This was an action by Cornell University against the village of Maumee, Ohio, upon coupons cut from bonds of the village. The case was tried by the court without a jury.

<p>1. Customs Duties — Sufficiency of Protest.</p> <p>P. & Co. imported a quantity of moss, which w*as classified by the collector as dyed moss, dutiable, under section 4 of the tariff act of October 3, 3.890, at 20 per cent, as an unenumerated manufactured article. P. & Co. filed a protest, claiming that the moss should be subject either to a duty of 30 per cent, under paragraph 24 of the act, or free, under paragraph 653. as they were unable to detect that the moss had undergone any process of manufacture. IIeld, that if the moss was free, either under paragraph 653 or paragraph 560, the protest was sufficiently definite and precise.</p> <p>2. Same — Mosses—Paragraphs 24 and 560, Tariff Act of 1890.</p> <p>It seems that paragraphs 24 and 560 of the tariff act of 1890 cover only such articles as are drugs, and that' mosses, which are not used as drugs, and are crude and unmanufactured, are properly classified under paragraph 653 of the act. In re Kraft, 53 Fed. 1016, doubted.</p>

<p>1. Customs Duties — Lien von Payment.</p> <p>In respect to a single consignment of goods covered by a single entry, the lien ot the government for payment of the whole duties attaches to each ami every part thereof; and where the whole consignment is warehoused under bond, and parts of it are fraudulently withdrawn without payment of duties, the collector is entitled to hold the remainder until the duties on the entire consignment are paid, and is not hound to surrender the same upon tender of the amount of duties payable upon that part alone.</p> <p>2. Same — Payment op Duties.</p> <p>To constitute a payment of duties upon any particular consignment of goods, there must be an intent, both on the part of the importers and of the collector, to apply the money to that consignment, field, therefore, that where a check was given by the importers to an employe with directions to pay the duties upon a particular consignment, but he absconded with the same, and it afterwards came into the hands of the collector, and was applied by him to the payment of duties upon a different importation, this was not a payment of the duties upon the former consignment.</p>

<p>This was a bill by William 0. Horn, president of Koch, Sons & Co., an unincorporated joint-stock company, against Frederick Bergner and others, for infringement of a patent.</p>

<p>Practice — Findings—Suit against the United States.</p> <p>Where, in an action brought against the United States, pursuant to the act of March 8, 1887 (24 Stat. 505), the facts are undisputed, no answer being interposed on behalf of the government, but questions of law only being argued on the plaintiff’s pleadings, an opinion in writing, by _tfie court, which expressly or impliedly finds all the necessary facts, and gives judgment for the amount allowed, though it does not state separately findings of fact and conclusions of law, Is a sufficient compliance with the requirements of the statute as to the decision of the court, although it is (he better practice to make such separate findings and conclusions.</p>

<p>1. Removal op Causes — Motion Noticed apter Application — Waiver op Irregularity.</p> <p>Where, after a petition and bond for removal of a cause from a state court have been filed, but before they have been called to the attention of or passed, on by such court, a motion is made therein by the defendant, which is afterwards brought on for hearing in the federal court, the plaintiff waives any irregularity, by seeking an adjournment of the hearing in the federal court for his own convenience, without objection on such ground.</p> <p>3. Same — Appearance.</p> <p>A petition for removal of a cause from a state to a federal court, winch is qualified by a statement that the attorneys for the petitioner appear specially for the purpose of such petition only, does not constitute a general appearance or cure defects in the service of process.</p> <p>3. Service op Process — Privilege op Suitor.</p> <p>A suitor who has come from his home into a foreign jurisdiction, upon the request of his counsel and for the purpose of consultation with such counsel during the argument of a demurrer, is privileged from the service of process, in any part of such jurisdiction, during the argument and pending a temporary adjournment thereof for the convenience of the court.</p>

This is an action of assumpsit to recover damages for tbe alleged breach of a contract, which the declaration claims was committed in the state of Michigan. The'plaintiff is a corporation organized and existing under the laws of the state of Michigan. The defendant is a corporation organized under the laws of California, and has its office at San Francisco’, in that state.

<p>1. Courts — Teems.</p> <p>Unless sooner adjourned, a term of a United States circuit court may extend from the beginning of one term to the opening of the succeeding statutory term, and does not necessarily end at the opening of a term held, pursuant to statute, in another place in the same district.</p> <p>2. Adverse Possession — Tennessee Statute.</p> <p>Under the Tennessee statute (Mill. & V. Code, §§ 3459-3401) providing that any person having had seven years’ adverse possession, under color of title, of lands granted by the state, is vested with a good and indefeasible title in fee, adverse possession, with color of title, for the statutory period, extinguishes the title of the excluded owner, and bars him from recovering the land even from one whose title is defective.</p> <p>3. Same — Color oe Titi.ts.</p> <p>A grant of land from the state, void because of the existence of a prior grant, and a sheriff’s deed, purporting to convey land not embraced in an attachment from which the sole right of the sheriff to convey arose, are both sufficient color of title, under the Tennessee statute, of adverse possession.</p> <p>4. Same — Accumulation op Disabilities.</p> <p>Under the Tennessee statute of adverse possession, the disability of an heir, who is beyond the limits of the United States at the time- of descent cast, cannot be added to that of his ancestor, who was also beyond such limits during the period of adverse possession.</p> <p>5. Abandonment — Title to Land.</p> <p>There can be no abandonment of a legal title to land by mere failure to assert it, in the absence of adverse possession.</p>

<p>This was a suit by the American Graphophone Company against the Edison Phonograph Works. On replication to plea to the bill.</p>

This ivas a suit by the Gferman-Ameriean Investment Company of New York against the city of Youngstown, Ohio, for the construction of an act of the legislature, and for othei relief. The cause was heard upon the bill and answer.

<p>Action by the Mechanics’ Savings Bank & Trust Company against the Guarantee Company of North America and others on a bond.</p>

<p>1. Contbacts — Law or Place.</p> <p>Plaintiff, an Ohio corporation, having its principal placo of business at A., in that state, made a contract with defendant, a resident of Michigan. The contract was executed by defendant in Michigan, and subsequently countersigned by plaintiff’s agent in that state and approved at plaintiff’s main office at A., pursuant to a provision, contained in it, ihat it was “not valid unless countersigned by our manager at L. and approved at A.” Held, that the contract was made in Ohio, and was not within the terms of a statute of Michigan relating to contracts made in that state.</p> <p>3. Interstate Commerce — Taxation—Michigan Statute.</p> <p>The statute of Michigan (Act No. 182 of 1891, as amended by Act No. 79 of 1893), providing that “every foreign, corporation * * * which shall hereafter be permitted to transact business in this state * * ® shall pay to the secretary of state the franchise fee of one-half of one mill upon each dollar of the authorized capital stock. * * * All contracts made in this state * * * by any corporation which has not first complied with the provisions of this act shall be wholly void,”- — is void, as a regulation of interstate commerce, as applied to the business of a foreign corporation engaged in selling its wares by itinerant agents in the state of Michigan.</p>

<p>The defendant, Moses Hannan, was indicted in the United States district court at Leavenworth, Kan., in 1888, for depositing in the mails of the United States an obscene paper, in violation of section 3893, Rev. St., amended. On trial before a jury he was found guilty, and thereupon sentenced by the court to “be imprisoned in the Kansas state penitentiary for five years, and that he pay a fine of $300.” On writ of error, sued out to the United States circuit court, under Act Cong; March 3, 1879 (20 Stat. 354, c. 176), this judgment was reversed, for the reason that the statute directs that the imprisonment must be “at hard labor,” which words were omitted from the sentence. The cause was remanded “with instructions to proceed therein according to law.” See 50 Fed. 921. By assignment, the cause comes before me on motion of the district attorney for resentence of the defendant.</p>

<p>Proceedings by arrest to determine (lie right of Loo Way, a Chi-naman, to remain in the United States.</p>

<p>Í. Patents — Invention and Mechanical Skill — Evidence.</p> <p>. The fact that three skillful mechanics, acting independently of each other, suggested the same devices for improving a defective machine, is persuasive evidence ihat such change involved mechanical skill only, and not patentable invention.</p> <p>2. Same — Plate-Glass Polishers.</p> <p>The Haslem reissue, No. 10,872, for improvements in plate-glass polishers, held void for want of invention, and because, even if patentable, Has-lem was not the first inventor.</p>

<p>Appeal from the Circuit Court of the United States for the District: of New. Jersey.</p> <p>This was a hill by the Standard Paint Company against James S. Reynolds and Henry J. Bird for alleged infringement of a patent. The circuit court denied a motion for a preliminary injunction (43 Fed. 304), but afterwards entered a decree for complainant upon final hearing (05 Fed. 509). Defendants appeal.</p>

These were suits in equity by Thomas A. Edison and others against William O. Hardie, and against the Pomeroy Duplicator Company and others, respectively, for infringement of a patent relating to autographic stencil sheets for the multiplication of writings.

<p>1. Equity Jurisdiction in Patent (Lises.</p> <p>The ground upon which a court of equity takes cognizance of an infringement suit is the relief through an injunction. There is nothing peculiar to infringement suits for damages and profits whereby equity jurisdiction may be maintained, and it must appear that the remedy at law is inadequate.</p> <p>2. Save — Laches ot? Patent Owner — Effect of Assignment.</p> <p>The negligence or acquiescence of the former owners of a patent in an alleged infringement has, in equity, the same effect upon an assignee’s rights as his own neglect or acquiescence.</p> <p>3. Sami;.</p> <p>Fourteen years’ delay by a patent owner and his predecessors in interest. in making any attempt to assert their rights against an alleged infringing company, openly engaged in making and selling a rival and competitive machine, and without even serving notice of infringement, held such laches as to require dismissal of the bill.</p> <p>4. Same.</p> <p>Laches is a defense which may be made by demurrer, or by plea, or by answer, or presented on argument either upon preliminary or final hearing. It need not be formally set up in answer.</p>

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>This was a bill by Matthew Griswold against W. H. Wagner and others for infringement of a patent relating to waffle irons. The circuit court dismissed the bill (65 Fed. 518), and complainant appealed.</p>

<p>Patents — License by Implication — Invention by Employe.</p> <p>An inventor was employed at a salary by a manufacturer of machines to devise a new and improved machine and superintend the making of patterns therefor, with full knowledge that his employer intended to construct the machines for sale. A successful machine was accordingly made. Soon afterwards the inventor left the employment and obtained a patent, but the manufacturer continued to make and sell the machines. The original patterns were subsequently destroyed by fire, but new ones were made and the construction of the machines continued. The inventor claimed a royalty, but the manufacturer refused to pay it, on the ground that he was entitled to make the machines. After the expiration of 10 years, an infringement suit was brought against users of the machine who bought it of the manufacturer. MeldI that, under the circumstances, there was an implied license to the manufacturer to make and sell the machines, and that the same was not terminated by the destruction of the original patterns.</p>

<p>Appeal from tbe District Court of the United States for the Southern District of New York.</p> <p>This was a libel by William E. Walsh and others, owners of the tugboat Olive Baker, against the steam ferryboat Dakota (the Brooklyn & New York Ferry Company, claimant), to recover damages for a collision. The district court dismissed the libel (60 Fed. 1020), and the claimant appeals.</p> <p>The opinion of the district court, delivered by BEOWN, District Judge, was as follows:</p> <p>“The ferryboat Dakota, while crossing from her slip at Broadway, Brooklyn, to Grand street, New York, came in collision with the libelant's tugboat Olive Baker, at about half past 6 in the morning of August 15, 1893. The starboard bow of the ferryboat struck the starboard side of the tug about amidships, at an angle of from 2y2 to 3 points. The time was about an hour and a half after low water at Governor’s Island; and as the current in the East river continues to run down for about an hour and a half after low water, although there is a little upward current along the shores somewhat earlier, it is certain that there could not have been much flood tide to cause the ferryboat to deviate very greatly from a straight course across the river.</p> <p>“Beyond the fact that the Dakota gave a signal of one whistle, almost every other circumstance in the case is a subject of most flagrant contradiction. The general theory of the libelant, to tire effect that after the Dakota had given one whistle, and the Olive Baker had passed to the right, so that the boats were really out of all danger of collision, the Dakota, when pointing astern of the tug, and nearly straight down river towards the navy yard, gave two whistles and swung still more to port towards the Brooklyn shore until she ran upon the Baker far on the Brooklyn side of the river, is not only improbable in the highest degree, but is contradicted throughout by the respondent’s witnesses. Such navigation by the ferryboat is inconceivable and cannot be credited. The burden of proof is upon the libelant. I cannot regard any part of his case as established. The Dakota gave no signal of two whistles;, but after her first single whistle, she gave only an alarm signal of three whistles. The collision was near the New York shore. I find that the ferryboat pursued her customary course towards the Grand street slip; that there was but a slight flood current, and that she did not head down river, or towards the navy yard at any time, nor towards the southwest, though the pilot’s mistake and confusion in testifying, or some error in his compass, gives a slight color to the libelant’s contention in that regard. As soon as the Olive Baker was seen coming up near the New York side, threatening to go between the Dakota and her slip, the Dakota properly gave a signal of one whistle, slowed down, and afterwards stopped and backed as soon as danger from the Baker became apparent. This was in accordance with the rules of navigation. When her whistle was given, the Olive Baker had the Dakota on her own starboard hand, and was bound to keep out of the way. She could easily have done so, either by going to the right, as was her duty to do, or by stopping and backing; neither of which she did.</p> <p>“I find that the Dakota did all that was required of her, by stopping and backing as soon as such action on her part was apparently needful to avoid collision; and that the collision arose from the failure of the Olive Baker to take proper and timely steps to keep out of the way.”</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This was a libel by John W. Sullivan against the steam yacht Norma, Charles H. Merrill, claimant, to recover for labor and materials employed in making certain repairs. There was a decree in favor of libellant for §2,150.95, with interest, and the claimant appealed.</p>

<p>CONSTRUCTION op Will — Estates Tail — Barring Remainder.</p> <p>A testator devised land to E., “to have and to hold the same to the said E. and the heirs ot her body, provided, however, that the children of the said E. do not marry or be given in marriage to any of the children of my uncle J., or to any of his grandchildren, or great-grandchildren, or other lineal descendants of the said J.; but should any of the children of the said S. marry any of the descendants of the said J., the share of my estate of he, she, or they so marrying as aforesaid shall go to and become vested in the other child or children of the said E., share and share alike”; and the testator charged. E. with tne payment of a legacy of 82,000: HeVd, that E. took an estate tail, which became converted into a fee simple absolute by her deed executed agreeably to the Pennsylvania statute for the baning of estates tail.</p>

<p>I. Railroad Companies — Stockholders' Bill for Receiver — Property in Gremio Lmuts.</p> <p>Where a stockholders’ bill asks for ihe appointment of a railroad receiver, not with a view to enforcing’ any lien or debt, hut merely to secure a "better management of the property until arrangements can be made for discharging its debts, the mere filing of the bill and service of process do not draw the property of the company into the possession of the court, so as to prevent the company, prior to the appointment of a receiver, from surrendering steel rails lying along its right of way, but not yet attached to its road, to the creditor from whom they were purchased, as part of a larger lot, in partial extinguishment of debt for the purchase price.</p> <p>3. Insolvency — Fraudulent Preferences — Corporations.</p> <p>The surrender by a railroad company of certain steel rails and other property lying upon its right of way, hut not yet attached to the road, to the creditor from whom they were purchased, as part of a larger lot, in partial extinguishment of the purchase price, is not a fraudulent or unlawful preference, though made pending a motion for the appointment of a receiver under a stockholder’s hill which seeks to procure a better management of the property until its debts can be discharged by the stockholders.</p>

This was a suit by Homer Lee against the Electric Typographic Company for the specific performance of a contract. Defendant demurred to the bill.

<p>1. Constitutional Law — Suit against State.</p> <p>The mere fact that a defendant in ejectment is sued as comptroller of a state does not deprive the federal courts of jurisdiction, on the ground that the suit is against the state, where it is alleged in the complaint that the plaintiff is seised and entitled to the possession of the land in controversy, and that the defendant withholds possession unlawfully.</p> <p>2. Same — Laws op New York 1893. On. 711, § 13.</p> <p>Laws of New York 1893, c. 711, i 13, providing that, under certain circumstances, the comptroller of the state shall be deemed -to be in possession of wild, vacant, or forest lands, and that such possession shall continue until the comptroller has been dispossessed by the judgment of a court of competent jurisdiction, sanctions the bringing of a suit against the comptroller, as such, to recover possession of lands so in liis possession.</p>

This was an action by Pierre B. Cornwall against Erwin Davis upon a judgment recovered by the plaintiff against the defendant in a court of the state of California. The circuit court rendered judgment for the plaintiff. Defendant brings error.

This was an action of ejectment by Hiram 33. Wheeler against the city of Chicago. The defendant pleaded the general issue and a special plea denying possession. The case was heard by the court without a jury.

<p>Credit Insurance — Meaning or “Loss.”</p> <p>A policy of credit insurance insured the holder, to an amount not exceeding 810,000, against “loss sustained hy reason of the insolvency of debtors owing the insured for merchandise.” It also contained, besides various provisions as to loss to be first borne by the insured, other insurance, limitation of loss on individual debtors, disposition between insurer and insured of debts on which settlements were made or offered, etc., a provision that “in adjusting losses, * * * before determining the percentage of loss to be borne by the company, there shall first be deducted all sums paid, offered, and accepted, settled or secured, and the value of any security or collateral * ® Held, that the “loss” insured against meant, not the whole amount due from an- insolvent debtor at the time of his suspension, but the amount remaining due after deducting from such indebtedness any payments made by the debtor, and that a clause in the policy providing that when only a part of a loss was covered by it the proportionate part of everything realized should be credited to so much of the loss as the policy covered, did not change such meaning, but if said clause did not refer to the case of -other insurance, and introduced an ambiguity, the doubt should be resolved against the insurance company, which prepared the policy.</p>

<p>This was an appeal from the decision of the board of general appraisers affirming the decision of the collector of the port of New York as to the assessment of duty upon certain merchandise imported by one Dickson.</p>

<p>This was an appeal from the decision of the board of general appraisers affirming the decision of the collector of the port of New York as to the imposition of duty upon certain merchandise imported by Percy Kent.</p>

<p>Criminal Procedure — Erroneous Sentence — Undetermined Issue.</p> <p>A defendant was convicted, under Rev. St. § 4046, of embezzling moneys received by bim as assistant postmaster. By consent of tbe district attorney, in view of the insolvency of the defendant, a verdict was taken upon the issue of embezzlement alone, without any finding of the amount embezzled; and the court sentenced the defendant to imprisonment only, without rendering judgment, by way of fine, for the amount embezzled. For this error the judgment was reversed and the cause remanded for further proceedings according to law. Held, that the trial court was without authority to fix the amount of the fine without the verdict of a jury, and, as the two issues must he tried together, the defendant, having been once in jeopardy on the issue of the amount embezzled, must bo discharged.</p>

<p>1. Tbade-Mabks — Descriptive Name.</p> <p>The word “Momaja,” as applied to a blend of Mocha, Maracaibo, and Java coffees, is not so far descriptive as to be objectionable as a trademark.</p> <p>2. Same — Inebingemext—“Moma.ta” and “Mojava.”</p> <p>A trade-mark consisting of the word “Momaja,” as applied to a blend of coffee, is infringed by the use of the word “Mojava,” applied to another blend of coffee.</p>

This was a suit by G. Garcia Cuervo against the Owl Cigar Company and others to restrain the use of certain labels. A preliminary injunction was granted at the commencement of the suit. Gomplainant now moves for leave to file a supplemental bill, and for a second preliminary injunction against the defendant company.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a bill by the United States against the American Bell Telephone Company and Emile Berliner to cancel patent No. 463,569, for combined telegraph and telephone. The circuit court entered a decree for the cancellation of the patent (65 Fed. 86), and the respondents appeal.</p>

This was a bill by the Chemical Rubber Company against: the Raymond Rubber Company and others for alleged infringement of certain patents relating to the art of treating rubber waste for the recovery of rubber therefrom.

<p>Collision — Steamers in Harbor — Crosstno Courses.</p> <p>Only a dire emergency will excuse a steamer navigating a harbor from complying with rule 36, which requires her to keep out of the way of another steamer with which she is on crossing courses, when the latter is on her starboard hand; and she is not excused by the fact that a third steamer is on crossing courses with her, in such a position as to be required to keep out of her way, there being sufficient room for both to avoid danger by a timely observance of the rule.</p>

<p>Cherokee Indians — Citizenship.</p> <p>The Indians belonging to the Eastern Band of Cherokees in the state of North Carolina have never become citizens of the United States, and the federal courts have jurisdiction to entertain a. suit brought by the United States, as guardian of such Indians, for the protection of their interests.</p>

This was a foreclosure suit brought by William Bayard Cutting against the Tavares, Orlando & Atlantic Railroad Company, in which the Florida Central & Peninsular Railroad Company intervened. On a former appeal certain decrees of the circuit court were reversed, and the cause was ordered to be referred to a master for certain purposes stated. 9 0. C. A. 401, 61 Fed. 150.

<p>This was a suit by the Western Union Telegraph Company against John Henderson, auditor of the state of Indiana, to restrain him from certifying valuations of the property of the complainant. The court granted a temporary restraining order. The defendant moves to dissolve such order, and also demurs to the bill.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>On March 6, 1894, the circuit court* for the district of Nebraska rendered a decree to the effect that William Roggenkamp, the appellant in' this case, held the title to 40 acres of land in trust for, and that he should convey the same to, the appellee John Roggenkamp,- Jr., a minor, and that the appellee Emma Simons, as his guardian, was entitled to recover from the appellant the rental value of this tract of land, less the taxes he had paid and the value of the improvements he had made upon it during the time between April, 18S3, and April, 1893. The appeal challenges this decree. The facts upon which it rests are these: In April, 1883, John Roggenkamp, Sr., died, intestate. He was the son of the appellant, the father of the appellee John Roggenkamp, Jr., and the husband of the appellee Emma Simons, who has since his death been again married. Before his death he had purchased of one McOlay a contract from the Burlington & Missouri Railroad Company in Nebraska, for the tract of land in question, and had paid $172, and had agreed to pay about $1,000 more for the title to the land. He was residing upon- this land with his wife and child when he died. His.son, John Roggenkamp, Jr., was his only heir at law. At the time of his death he owed about $2,000 in addition to the $1,000 required to pay for this tract of land, and he had some farming implements, a small amount of stock, some corn and wheat, and his right to this tract of land, but no other property. No one applied for the appointment of an administrator of his 'estate, and none was appointed. The appellant took his widow and child to his residence, a few miles distant, and they lived there about six months, when the widow returned with her child to her parents. For the purpose of saving the expense of administration through the court, the appellant, with the consent of the widow, took all the personal property of his deceased son, except some of the furniture of the house and two cows, which the widow retained, and sold it for the best price he could obtain, and paid the debts of the deceased. He also completed the purchase of the 40 acres of land, took the title to it in his own name, and from the death of his son until 1891 paid the taxes upon it, made some improvements upon- it, and received the rents and profits from it. In 1890 he made a contract to convey this land to one John Bratt, who is not a party to tMs suit; and on November 24, 1891, he conveyed it to him. The decree was rendered on the ground that the appellant had purchased the land with the proceeds of the personal property of the deceased, and that he therefore held it as trustee for the heir.</p>

<p>This was a suit by the Southern Pacific Railroad Company against Otto Groeck and others to establish the complainant's ownership of certain land, and compel a conveyance thereof. Defendants demurred to the bill.</p>

This was a bill of review filed by Thomas M. Hobbs against the State Trust Company and others to review and reverse a decree rendered in a suit by the State Trust Company against the Decatur, Chesapeake & New Orleans Railway Company and Thomas M. Hobbs for the foreclosure of a mortgage. The circuit court dismissed the bill. Complainant appeals.

<p>This was a suit by the Fidelity Insurance, Trust & Safe-Deposit Company against the Roanoke Iron Company for the foreclosure of a mortgage. The receiver of the property of the defendant company petitioned for leave to issue receiver’s certificates, for the purpose of carrying on the business of the company.</p>

This was a suit by Henry B. Keiper and Lanious B. Keiper against Charles Miller to restrain the infringement: of a patent. The cause was heard on the pleadings and proofs.

<p>1. Pleading — Negligence—Unsafe Appliances.</p> <p>A complaint, in an action for personal injuries resulting from the insufficiency or unsafe condition of the appliances furnished by an employer to his servant, which does not allege that such insufficiency was known, or might have been known, to the employer, and was unknown to the servant, is fatally defective.</p> <p>2. Negligence — Risks oe Employment.</p> <p>Plaintiff, who was in the employ of a telegraph company, engaged with others in stringing wires on its poles, was instructed to climb a pole belonging to another company, to get certain wires out of the way. Plaintiff climbed the pole by means of iron spikes driven into it, did his work, and, while descending, fell, in consequence of one of the spikes being insufficiently secured or loosened by the rotting of the wood. Held, that the danger from which the accident resulted was one of the risks of plaintiff's employment, which was assumed by him, and for which his employer was not liable.</p> <p>3. Same — Líatíility of Kmi'loyer — inbtaxa Statute.</p> <p>The statute of Indiana, (Act; March 4,1893) providing that “every * * * corporation, * * * shall be liable in damages for personal injury suffered by any employfi while in its service, * * * where such injury resulted from the act or omission of any person done or made in obedience to any rule, regulation or by-law of such corporation, or in obedience to the particular instructions given by any person delegated with the authority of the corporation, * * *” dot's not impose liability upon the employer for injuries resulting from (he act or omission of the person injured.</p>

This was an intervening petition filed by J. W. Oliver, in the suit of the Central Trust Company of New York against the East Tennessee, Virginia & Georgia Railroad Couipany, claiming damages for personal injuries. The petition was referred to a master, who reported adversely to the petitioner. Exceptions to the master’s report were duly filed.

This is an action of ejectment, brought on the 25th day of July, 1S94, by the plaintiffs, as heirs of Juan Filhiol, against the defendant, for a tract of land including the hot springs in the city of Hot Springs, in this state. The plaintiffs rely for title on certain documents, copies of which are filed with the complaint, and are made exhibits hereto, and which are as follows: 1.

<p>L Habeas Corpus — Killing by Deputy Marshal Making Arrest.</p> <p>Sections 753-701 of the Revised Statutes, controlling the writ of habeas corpus considered and applied for the protection of deputy marshals, who necessarily killed, while attempting to arrest, a party indicted for conspiracy and murder.</p> <p>8. Same.</p> <p>l'n re Neagle, 135 TJ. S. 1, 10 Sup. Ct. 658, discussed and followed.</p> <p>3. Same.</p> <p>The dissenting opinion of the chief justice and associate justice in that case does not controvert the right to habeas corpus when the act involved is done in pursuance of a law of the United States or an order of a court of the United States.</p> <p>4. Same — Arrest by State Authorities — Jurisdiction oe Federal Courts.</p> <p>When deputy marshals of the United States are attempting to execute a warrant of arrest of parties charged with conspiracy and murder, where the offense is indictable under the laws of the United States, and are met with such violent resistance as compels them to take the life of the party resisting, either in their own self-defense, or for the purpose of executing the warrant, and the deputies, as a consequence, are arrested for murder by the state authorities, the courts of the United States have jurisdiction to issue the writ of habeas corpus, and, on the return, to summarily hear the evidence, and dispose of the accusation against the officers, as law and justice may require. ' ;</p> <p>5. Same.</p> <p>This is true, notwithstanding there is no provision of law for trial by jury in the enactments of congress providing for the writ of habeas corpus and the procedure thereunder.</p> <p>3. United States Marshals — When Justified in Killing — Protection by Federal Courts.</p> <p>. Where a party defendant to a bill in equity in the United States court refuses to respect the subpoena, writ of injunction, or attachments issued appropriately by said court, and, when arrested under attachment, violently resists with deadly weapons the arresting officers; is rescued by a mob of his friends; takes the life of an employs of the party in whose favor the injunction issued, while said employs is working on lands in controversy; is indicted for this murder; leaves his home; dwells habitually in the woods and swamps, and with his two sons, all habitually armed with deadly weapons, sends messages of defiance and disrespect to the officers of the law, and that he will kill them if an effort is made to arrest him; and, when finally summoned to surrender by the arresting officer, opens fire with a magazine rifle on the officer making the summons, and a duel ensues, in which several shots are exchanged and the accused is finally killed, — the killing is justifiable, the officer has committed no offense whatever, and is entitled to and will receive the protection of the United States courts against any prosecution brought against him elsewhere for alleged offenses growiug out of the performance of his duty in pursuance of the laws of the United States and the orders of the court</p> <p>7. Same — Habeas Corpus — Supremacy of Federal Laws.</p> <p>The laws of the United States (sections 753-761, Rev. St., inclusive), providing for the issuance, trial, and disposition of proceedings by habeas corpus, are the supreme law of the land. They extend to every foot of ita soil, and, under the circumstances described above, are controlling, as expressive of the sovereignty of the United States, in a matter within the bounds,of its jurisdiction. A judgment of acquittal by the courts of the United States thereunder will, as to the issues involved, protect the. relators from prosecution or molestation, elsewhere.</p>

These were bills by the National Company and Otis Brothers & Company against Thomas IT. Belcher, and against Edwin F. Morse and Carlton F. Williams, respectively, for infringement of certain patents relating to elevators.

<p>This was a libel by Hustede and others, owners of the steamer Felix, against: the Atlantic Refining Company, to recover damages caused to the vessel by fire while lying at defendant’s dock.</p>

<p>1. Jurisdiction of Federal Courts — Citizenship of Parties — Interveners in Equity.</p> <p>Wliore jurisdiction rests upon the diverse citizenship of complainant and defendant, and, during the proceedings, a third party, who is a citizen of the same state with defendant, intervenes, the court will have no jurisdiction of his controversy with defendant, unless the controversy between complainant and defendant is one which draws to the court the possession and control of defendant’s property, in which the intervener claims some interest.</p> <p>2. Corporations — Eights of Purchasers of Btocr.</p> <p>As a general rule, a purchaser of stock in a corporation is not allowed to attack the prior acts and management of the company.</p> <p>3. Same — Appointment of Receivers.</p> <p>A court of equity will not appoint a receiver to take the property of a corporation out of the hands of the managers elected by the stockholders, except as a last resort, and when it is absolutely necessary for the preservation of the trust fund. Where, therefore, it appears ihat the appointment of a receiver, with the extraordinary expenses incident ihereto, would probably render the corporation insolvent, the court will endeavor to give relief by enjoining the managers from the further execution of contracts resulting in the diversion of corporate funds, and from committing other acts of mismanagement.</p>

Bill by Jane M. Gray and others against the Quicksilver Mining Company for a decree declaring defendant to be a trustee for plaintiffs of certain mining property.

Action by the Central Trust Company of Yew York against the Chattanooga, Rome & Columbus Railroad Company, in which a receiver was appointed. Petition in intervention by Miller & Gar-mony to attach by garnishment proceedings the wages of certain employés of such receiver.

. Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. These were actions by the Home Insurance Company of Hew Orleans against the Imperial Fire Insurance Company of London and the Royal Insurance Company- of Liverpool upon policies of reinsurance. Judgment was rendered for the plaintiff in the circuit court. Defendants appeal.

This was an action by Joseph H. Redding against the Western Assurance Company on a policy of insurance. Judgment was rendered for the plaintiff in the circuit court. Defendant brings error.

<p>Design Patent — Validity and Infringement — Saloon-Bar Fixtures.</p> <p>’ The Rothschild patent, No. 22,222, for a design tor saloon-bar fixtures, found not anticipated, and held valid and infringed.</p>

<p>This was a bill by William H. Woodard and L. D. Benedict against the Ellwood Gas Stove & Stamping Company, for infringe* ment of a patent for a vapor-burning stove attachment. Complainants moved for a preliminary injunction.</p>

<p>Admiralty Practice — Taking Evidence on Appeal.</p> <p>Upon the hearing of a cause in admiralty, the claimant, who did not live in the city where the hearing took place, failed to appear. The libelant’s evidence was taken, and the case adjourned to a future day. On such adjourned day claimant again failed to appear, and his proctor was unable to give any reason for bis absence, whereupon the case proceeded to judgment for the libelant. It appeared that claimant had been ill, had expected to be present on both days, hut had been prevented by his disease from attending or advising with his proctor. Held, that a proper case was made out for permitting claimant to take evidence pending an appeal.</p>

This was a suit by the American Association, limited, against the East era Kentucky Land Company and others for the partition of lands. The Eastern Kentucky Land Company filed its answer denying plaintiff’s title, and thereupon demurred to the bill for want of jurisdiction.

<p>Federad and State Courts — .TrursDroTiON.</p> <p>Tlie trustees named in a deed of trust executed by a hank for the benefit of its creditors instituted a suit in a state court against the hank and all its stockholders and creditors, for the purpose of administering the assets of the bank, under the direction and with the aid of said court. While such suit was pending, two of the creditors, who were parties to it, instituted a suit in a federal court against the hank, its officers, and the trustees, to set aside the trust deed, secure the appointment of a receiver, and an accounting. Held, that the jurisdiction of the state court, which attached to the parties and the subject-matter, upon the institution of the suit therein, was exclusive, and that the federal court was without jurisdiction.</p>

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

<p>Costs on Ait ral — Dismissal for Want of Jurisdiction Below.</p> <p>When a judgment is reversed, and the cause ordered dismissed because the record failed to show jurisdiction, all the costs, both of the circuit court and of the appellate court, should be taxed against plaintiff.</p>

Court of the United States for the District of Kentucky. This was a suit by Oliver Watson and Letitia Souther, as executrix of Henry Souther, deceased, against the Society of Shakers at Pleasant Hill, Ky., Kapoleon D. Brown, James W. Shelton, and Mary Jane Sutton, trustees of said society, to subject the property of the society to a charge for the payment of a note. The circuit court rendered a decree for the complainants. Defendants appeal.

<p>'Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>This was a suit by Horace Kleinhans and D. G-. Simonson against Samuel H. Jones and Elizabeth Dunbar Jones for the specific performance of a contract. The circuit court dismissed the bill. Complainants appeal.</p> <p>This case was originally brought in tlio chancery division ot' the Jefferson circuit court, in Kentucky, hy petition. Subsequently the defendants, upon tiling their proper petition and bond, procured the removal of the case into the circuit court of the United States for the district of Kentucky. In the latter court the complainants reformed their pleadings, and converted their petition into a bill in equity. The object of the suit was to obtain a decree to conypel the speciiic performance of a contract for the sale of a lot and the building thereon in the city of Louisville known as the “Mozart Hall Property." of which, at the time of the making of the alleged contract, the defendant Samuel H. Jones was the owner; the other defendant named in the pleadings (Elizabeth Dunbar Jones) being his wife. The complainants were copart-ners engaged in business in Louisville under the firm name of Kleinhans & Simonson, and were citizens of Kentucky. The defendants were citizens of the state of Pennsylvania. One Outran Cope, a resident of Louisville, had for some, time previously acted as the local agent of the defendants in the care and management of the Mozart. Hall property. The defendants, having it in contemplation to make a sale of this property, had authorized Pope to receive, and communicate to them, any offer that might be made by an intending purchaser, and to receive from the defendants, and communicate to such party, the response which they might think proper to make to such offer. A t the time of the negotiations which are alleged to have resulted in the contract upon the basis of which the suit is brought, a firm by the name of Crutcher & Stark were in the occupation- of the building. The supposed contract upon which the complainants rely was made by correspondence, — by letter and telegram. The bill sets out the correspondence from which the contract is claimed to have resulted, and prays for a specific performance thereof. The substance of the answer of the defendants is that no contract was established by the correspondence sot out by the complainants. Upon this issue the controversy mainly depends. The complainants, through John A. Stratton & Co., their agents, on the 2d day of October, 1893, submitted an offer to Pope for the Mozart Hall property, to be communicated by him to his principals. This otter was in the words and figures following:</p> <p>“Will pay. Cash . 1 year, on or before 2 years, on or before. 3 years, on or before 4 years, on or before 5 years, on or before (j years, on or before. 7 years, on or before 8 years, on or before. 9 years, on or before, 10 years, on or before. $120,000 .$10,000 . 11,000 . 11,000 . 11,000 . 11,000 . 11,000 . 11.000 . 11,000 . 11,000 . 11,000 . 11,000</p> <p>"Will take up notes at the end of five years, if money can be gotten at six per cent. Will pay taxes for 18i)i. Will pay interest semiannually. Will insure for at least $25,000 for benefit of deferred payments. Will improve immediately. They want immediate possession within sixty days after deed is made. If any note or installment of interest is not paid within thirty days after maturity, all are due. This contemplates Mr. Jones paying comm.</p> <p>“ISigned] Kleinhans & Simonson.”</p> <p>On the same day Mr. Pope assumed to communicate this offer to Mr. Jones by the following telegram:</p> <p>“Bona fide new party will give one hundred and twenty thousand for Mozart. Ten thousand cash, balance ten notes payable annually, with six per cent, interest payable semiannually. Privilege of paying all notes on or before five years. Agree, if money is easy, to pay all notes, if desired, at the end of five years. Will pay ninety-four taxes. Will improve at once, and insure to secure you. Possession to be given sixty days from date. This is the top notch, and parties better than gold. It is a paying, safe, solid investment. Answer at once.</p> <p>“[Signed] Curran Pope.”</p> <p>Jones replied, postponing any definite answer to the proposition until he should get some further information and advice from another party _ in reference to the subject. No definite reply to the offer having been received by Pope from Jones, the complainants on the 10th day of October, 1893, submitted another form of offer .for the property, which was in the words and figures following:</p> <p>“Louisville, Ky., Oct. 10, 1893.</p> <p>“John A. Stratton & Co., Agents: You are authorised to offer $120,000, payable $10,000 cash, balance in ten equal annual payments of $11,000 each, payable on or before maturity, to be secured by lien, and the premises to be insured for at least $20,000 for benefit of deferred payments, and notes bearing interest at the rate of 6 per cent, payable semiannually; and should any of the notes become due, and is unpaid, and remain unpaid for the space of sixty days, the whole amount, at the option of holder, to be deemed due. Possession to be given within thirty days after date of deed. We pay taxes for 1894, and seller to pay your commission for selling the property belonging to S, H. Jones, fronting 99 feet on east side of Fourth street, by a depth of 83 feet on Jefferson street, the south line of which binds on Jefferson street. Mr. Jones to make us a good title, and give general warranty deed, free of all incumbrances.</p> <p>“[Signed] Kleinhans & Simonson,</p> <p>“Per John A. Stratton & Co., Agents.”</p> <p>This communication does not appear to have been transmitted to Jones at the time. On the following day, — that is to say, October 11, 1893, — Jones telegraphed to his agent, Pope, as follows: “I accept the offer in your telegram of October 2nd, provided the notes are properly secured on the property. [Signed] Sam. H. Jones.” And on the same day Pope indorsed upon the complainants’ offer of October 19th the following acceptance: “Accepted. Sam’l H. Jones, by Curran Pope, acting under authority of telegram of October 11, 1893,” — and attached the telegram, or a copy thereof, to his acceptance. At the time of the making of this acceptance the complainants paid to Pope, for Jones, as part of the purchase money, $1,000 in cash, which was receipted for by Pope, in the following form:</p> <p>“Louisville, Ky., October 11, 1893.</p> <p>“$1,000. Received of Kleinhans & Simonson one thousand dollars ($1,000) in part payment, as per contract, on $10,000 cash payment on 99x83 feet, northeast corner Fourth and Jefferson streets, for which I am to make a good title, free of all incumbrances, and give general warranty deed. If unable to make said deed, am to refund the one thousand dollars.</p> <p>“Sam’l H. Jones, By Curran Pope, Agent.”'</p> <p>The possession of the property was not delivered, but continued in Crutcher & Stark. On the 21st day of October, 1893, the complainants addressed the following communication to Pope in reference to the occupation of the property:</p> <p>“Dr. Curran Pope, Agent S. H. Jones — Dear Sir: We agree to extend time ' for possession of property, 99x83 feet, northeast comer Fourth and Jefferson streets, to sixty days from date of deed, provided you cannot get possession in thirty days; but you must do all in your power, legally and otherwise, to get possession within the tipie originally agreed.</p> <p>“Kleinhans & Simonson.”</p> <p>But in the meantime Crutcher & Stark, without any communication with Pope upon the subject, sent a telegram to Jones offering $130,000 for the property, stating that they had been informed by his agent that it was not for sale. After some correspondence by letter and telegram between Jones and Pope, in which the former complained of Pope that he had not obtained as good a price as he ought from Kleinhans &'Simonson, and on the other hand, by Pope, that the offer of Crutcher & Stark was a dishonorable attempt at circumvention, and insisting that the agreement with Kleinhans & Simonson had been made in good faith, and that Jones was hound, in law and morals, to carry it out, Jones at length refused to perform the agreement of Pope with Kleinhans & Simonson, and entered into a contract for the sale of the property to Crutcher & Stark for the sum of §125,000, of which $25,000 was to he paid down. This last-mentioned contract was made on the 30th day of Oc-ioher, 1893, and on the same day Crutcher & Stark, with sureties, executed a hand in the penal sum of $25,000, which, after reciting the sale from Jones to Crutcher & Stark, and iliat Kleinhans & Simonson might set np a claim as prior purchasers of the property, and might institute suit for damages, or specific performance, and that Pope might demand commissions from Jones upon the sale of the properly to Kleinhans & Simonson, obligated the makers of the bond to indemnify and hold Jones harmless against any loss or damage he might he put to by reason of any such suit, including any costs for attorney’s fees and expenses incurred in defending it, that might be brought by Klein-hans & Simonson, or by Pope. On the (ith day of November , following, Klein-hans & Simonson brought this suit for specific performance of the contract which they claim Jones liad made -with them for the sale of the property, by his telegram of acceptance, of October ,11th, of tlieir offer of October 2, 1893. .Elizabeth Dunbar Jones demurred to the bill in the United States circuit court, alleging that it contained no equity upon which the court could give a decree to the complainants against her. By leave of the court the complainants’ hill was amended on the 19th day of April, 1894, and the substance of that amendment was that it contained an allegation that the contract sought to be specifically enforced by complainants in their bill was that set forth in the communication from Pope to Jones on the 2d day of October, 1893, and accepted by Jones by his telegram to Pope of October 11, 1893, both which communications have already been set out in the foregoing statement. There is much correspondence, as is shown by the record, between Jones and Pope, and between Jones and Crutcher & Stark; hut as the questions to he decided hinge upon the construction and effect of the communications between the parties which have been above exhibited, the other correspondence in no wise materially affecting the same, such other correspondence will not he further referred to. There is also some oral testimony by witnesses in the record, hut that does not affect the vital parts of the case. The case was heard in the court below upon pleadings and proofs as to the defendant Samuel H. Jones, and upon the hill and demurrer as to the defendant Elizabeth Dunbar Jones. That court, being of opinion that there had been no meeting of the minds of the parties complainant and the defendant Samuel H. Jones, whereby they had assented to the same terms of agreement, held that there was no legal contract between them, and that, therefore, the hill could not be sustained. The biil ivas accordingly dismissed, and complainants bring the case here by appeal.</p>

This was a suit by the American Harrow Company against Joseph B. Shaffer, commissioner of the revenue for Wythe county, Ya., and others, to restrain the defendants from collecting penalties for the nonpayment of taxes.

<p>Judgments — Priority over Mortgages — North Carolina Statutes.</p> <p>Under the North Carolina Code, which provides, in section 6S5, that conveyances by corporations, whether absolute or by way of mortgage, shall be void as to existing creditors and torts previously committed, provided such creditors or persons injured shall commence suit within 60 days after the registration of the deed; and, in section 1255, that mortgages by corporations shall not exempt their property from executions on judgments for labor or materials furnished, or for torts by which any person is killed or person or property injured, — a judgment against a railroad company for a tort causing injury to the person is superior to a mortgage executed after the tort was committed, though the action was not brought within 60 days from the registration of the mortgage.</p>

This was a suit for an accounting by Edmund D. Halsey and Ann Caroline Teese, executors of Mary D’Arcy, deceased, against Prentiss D. Cheney. The circuit court dismissed the hill. Complainants appeal.

<p>1. Equity Pia-jading — Multifariousness.</p> <p>A hill alleging that complainant had been induced, by false representations of certain individual stockholders and officers of a corporation, to purchase stock therein, which has proved worthless, and also alleging numerous grounds upon which a dissolution of the corporation and an accounting are sought, is multifarious in joining a cause of action against the individual defendants, for deceit, with one against the corporation for dissolution and accounting.</p> <p>2. Corporations.</p> <p>A bill by a stockholder, seeking dissolution of a corporation and accounting, alleged that business had been suspended, “among other things,” because of the worthlessness of a patent under which it had been carried on, but without slating that that was the controlling reason; that the officers were misapplying the funds, but without stating that any effort had been made to have the corporation bring suit; that the officers had tampered with the books, but without stating in what manner; that certain assets had not been entered in the books, but without charging concealment or intentional wrong. Held, that the allegations were too general and iiuleii-nite to justify granting relief.</p> <p>3. Equity Practice — Parties.</p> <p>Where a bill for dissolution of a corporation and accounting seeks to have full payment made to the complaining stockholder for ills investment before any payment to the transferees of certain other stockholders, such transfe.rc.es are necessary parties.</p>

<p>1. CONSTITUTIONAL I1AW — LEGISLATIVE AND JUDICIAL POWEBS.</p> <p>It is within the power of the legislature of a state, whose constitution denies to the legislature the power of creating municipal bodies or enlarging or contracting their boundaries by special act, and requires such changes to be provided for by general laws, to confer upon the courts the power to determine whether the conditions exist prescribed by law for the creation, enlargement, or.contraction of a municipal body.</p> <p>2. Same — Underlying Principle op Bight.</p> <p>A court cannot declare void an act of the legislature of a state which violates no provision of the state or federal constitution on the ground that it is wrong, unjust, or oppressive, or that it violates the genius and spirit of our' institutions.</p> <p>8. Same — Due Process op Law — Taking Private Property — Taxation/</p> <p>A court cannot say that the levy of a tax, however great the hardship' or unjust the burden, is a taking of property without due process of law, or without just compensation; nor that a tax is unconstitutional- because its proceeds may be applied to the payment of a debt incurred in excess of a constitutional limit.</p>

<p>1. Mechanics’ Liens — Priority—North Dakota Statute.</p> <p>The statute of North Dakota relating to mechanics’ liens (Comp. Laws, § 5470) provides that the claimant of a lien may file a statement of his account with the clerk of the district court within 90 days after the completion of the work, hut that a failure to file such account within the time shall not defeat the lien, “except against purchasers or incumbrancers, in. good faith, without notice, whose rights accrued after the 90 days and before any claim for the lien was filed.” Held, that a lien, the account and claim for which is filed more than 90 days after the completion of the work, is superior to a mortgage made and filed within such 90 days.</p> <p>3. Same — Effect of Taking Notes.</p> <p>The holder of a mechanic’s lien, who takes, for his account, notes of His debtor, maturing within the time allowed for foreclosure of the lien, which he discounts, and afterwards pays, does not thereby waive or lose his rank as a lienholder, or his right to file and enforce his claim to a lien.</p>

<p>1. CORPORATION Bonds — Salk below Par not Usury — By-Laws—Publication —Computation op Time.</p> <p>The Brazil M. S. Co., a Now York corporation, issued its bonds at 80 cents on the dollar by vote of directors oloetod at a meeting on the 28th, of which notice was first published on the 8th, the by-laws requiring notice to be published “not less than 20 days previous.” Held, that under the law of New York usury was not available as a defense either to the corporation or to judgment creditors, as against a mortgagee of the company’s ships to secure the bonds; and that the notice of publication was sufficient.</p> <p>2. Surplus Proceeds of Vessels — Equitable Mortgage by Contract — Assent of Stockholders — Refiling.</p> <p>A mortgage of three steamships already built, covered also two others begun but not finished, and not then registered; the mortgage covenanted for the execution of supplementary mortgages on the latter vessels when completed, which were afterwards executed; hut in the meantime a state statute required the assent of two-thirds of the stockholders to a corporation mortgage, and this assent was not sought or obtained. Held: (1) that the statute did not apply to mortgages giyen in execution of contracts made before the act was passed, and made upon valuable consideration already paid; and that (2) if it did, the original mortgage and contract for further mortgages on the new vessels, created an equitable mortgage upon the vessels and the proceeds in the registry superior to the subsequently accruing claims of the contesting judgment creditors.</p>

<p>1. Contracts — Reformation—Evidence.</p> <p>The proofs in this case do not bring it within the rule that to justify the reformation of a written contract, on the ground of mistake, the testimony must be clear, unequivocal, and convincing.</p> <p>2. Same.</p> <p>A statement, made by a deceased beneficiary in an insurance policy issued two years before, as to his understanding of the terms of the policy, is not admissible to show mistake in the policy.</p> <p>3. Same — Pleading.</p> <p>In a bill of this character it is sometimes permissible to charge fraud or mistake in the alternative. •</p> <p>4. Same — Allegations—Fraud.</p> <p>In this case defective allegations as to citizenship in a petition for removal from a state court were made good by reference to other parts of the record.</p>

This was an action by William H. Morton against Knox county upon a county warrant:. The defendant, in its answer, set up the general statute of limitations. The (circuit court: sustained a demurrer to this defense. 65 Fed. 369. Defendant brings error. Knox county, in the state of Missouri, the plaintiff in error, sued out iliis writ to reverse a judgment against it upon a county warrant.

<p>Contracts — Mutuality.</p> <p>A contract to sell and deliver 10,000 barrels of oil, at a stipulated price, in such quantities per -week as the buyer may desire, to be paid for as delivered, but which contains no agreement on the part of the buyer to purchase and receive any particular quantity of oil, is not binding, for want of mutuality.</p>

<p>This was a bill in equity by the city of Carlsbad and others against Hermann Kutnow and others for an infringement of the trade-mark or trade-name “Carlsbad Sprudel Salts.”</p>

<p>1. Evidence — Judgment.</p> <p>An action of ejectment, to recover certain land in Mississippi, was ■brought by W., claiming under deeds from tbe heirs at law of A., a former owner, against K., claiming under deeds from devisees to charitable uses udder the will of A., who resided and died in Louisiana. Upon the trial, the defendant offered in evidence the record of a suit in Louisiana, to which both the heirs and devisees of A. were parties, and of the judgment therein. Held, that such record was admissible to prove that the will of A. was valid in Louisiana, that it devised all his real estate, that the devises to charitable uses were valid and the donees capable of talcing-the same, all of which points were decided by the judgment, which was binding on both parties to the action of ejectment as privies to the parties to the Louisiana suit.</p> <p>2. Winns — Interpretation—Pkopekty.</p> <p>The term “property” embraces both- real and personal estate, and a gift of the residue of “property and effects,” in the general residuary clause of the will of a resident of Louisiana, is sufficient to pass real estate in Mississippi not specifically devised.</p> <p>3. Same — Time op Tatcist; Effect.</p> <p>A devise of real estate takes effect upon the death of the testator, and its operation is not postponed to the time of proving the will in the stale where the land lies.</p> <p>4. Charitable Uses — Perpetuities.</p> <p>The rule against perpetuities cannot he invoked to defeat a devise to charitable uses.</p> <p>5. Fawn — Laws and Public Policy of Mississippi.</p> <p>There was no law or public policy in force in Mississippi in 1886 which prohibited a foreign ecclesiastical corporation, authorized b.y its charter and the laws of its domicile to take and hold lands for charitable uses, from taking and holding land in Mississippi in trust for such purposes, nor did the constitution of 1890 take away any rights vested in such corporations prior to its adoption.</p> <p>6. Trusts — Capacity of Trustee.</p> <p>Where a devise of land has been made upon a valid trust, the heirs at law of the testator have no right to inquire into or contest the right of Sie trustees to lake or execute the trust.</p>

This was a suit by Thomas F. Oakes, Henry 0. Payne, and Henry O. Rouse, as receivers of the Northern Pacific Railroad Company, against William Y. Myers, treasurer of Jefferson County, Mont;., to enjoin the collection of a tax. The defendant demurred to the bill.

This was an action by the Montana Central Railway Company, which claimed to own certain land by virtue of conveyance from the patentee of a placer mining claim, against A. F. Migeon and others. The action was brought in support of an adverse claim filed by plaintiff against an application by defendants for a patent for a lode or vein mining claim, which was located upon part of the lands covered by the placer patent subsequent to the issuance thereof.

<p>1. Practice — Limited Appearance.</p> <p>One who intervenes in a pending suit to protect a supposed interest, and therein presents all the issues he wishes, and makes all the defense he cares to make, cannot be permitted to avoid the effect of the judgment rendered upon such issues by limiting his appearance to the imrpose of protecting his right and disclaiming an intention to make himself a party to the suit.</p> <p>2. Judgment — Estoppel.</p> <p>Three several creditors of the T. Co. commenced suits against it by attachment of its property and service of process. W. and others, claiming to be liquidating commissioners appointed upon a dissolution of the T. Co., and entitled to the possession and control of its imoperty, filed motions in these suits, alleged to be for the sole purpose of protecting their possession and control, and without intention to make themselves parties to the suits, and, suggesting the dissolution of the corporation and their appointment, asked for the dismissal of the suits. After a full hearing upon such motions, in which W. and his associates introduced evidence, and examinen and cross-examined witnesses, the motions were denied, and judgments given against the T. po., and the attached property sold. No appeal was taken from these judgments. Held, that W. and his associates were estop-ped by the judgments, rendered upon their intervening motions, to set up a claim to the property sold under the attachment and executions, based on the same grounds upon which their intervening motions were based.</p> <p>3. Corporations — Dissolution.</p> <p>It seems that the voluntary dissolution of a corporation, insolvent or otherwise, without public notice, and after its creditors have been, driven into the courts, should be viewed with suspicion, and strict compliance with all legal formalities should be required.</p>

<p>This was an action by Minnie Robinson against the United States Mutual Accident Association of the City of New York on a policy of insurance upon the life of Emile O. Moore. The case was tried by the court, without a jury.</p> <p>The policy sued on insured E. O. Moore, “subject to the by-laws and all conditions indorsed hereon, against personal bodily injuries. v * * through external. violent, and aecidenial means,” and against death resulting from such injuries. The first condition indorsed upon the policy provided that the insurance should not “extend to or cover accidental injuries or death resulting from, or caused, directly or indirectly, wholly or in part by, * * * duelling, fighting, or 'wrestling, * • * or voluntary exposure to unnecessary clanger; nor extend to or cover accidental injuries or death hapx)ening ' * * * while or in consequence of violating the law.”</p>

TMs was an action for personal injuries by Joseph A. Lowry against the Mt. Adams & Eden I’ark Incline Plane Railway Ooui-pany. Upon the trial the jury gave a verdict for the plaintiff for $7,500. The defendants moved for a new trial.

This was an action by Charles R. McConlcey against the Peach Bottom Slate Company to recover $7,000, alleged to have been paid under a contract broken by the defendant. { The circuit court gave judgment for the defendant. Plaintiff brings error.

<p>In Error to the Circuit Court of the United States for the Southern District of Florida.</p> <p>This was a proceeding under Rev. St. Fla. § 1690, by the Polk County National Bank against the Foote Commercial Phosphate Company to eject the defendant from certain lands. Judgment was rendered in the circuit court for the defendant. Plaintiff brings eiTor.</p>

This was an action by the Atlantic Trust Company against the town of Darlington, S. C., to recover the amount of certain coupons cut from bonds of the town. The circuit court, upon a trial by the court without a jury (63 Fed. 76), gave judgment for the plaintiff. Defendant brings error.

<p>Negligence and Contributory Negligence — Evidence—Question eor Jury.</p> <p>In an action to recover damages for a personal injury sustained hy a workman by being crushed under an elevator, where there was evidence tending to show that the boy running the elevator and other agents of defendant had been warned to stop it, held, that the questions both of negligence and contributory negligence were for the jury.</p>

This was an action by Eliab W. Metcalf against the city of Water-town, Wis., on a judgment. The case was twice carried to the supreme court on error. See 9 Sup. Ct. 173, 128 U. S. 586, and 14 Sup. Ct. 947, 353 U. S. 671. A judgment having been entered on the mandate of the supreme court on the second appeal, the plaintiff now brings error to this court

This was an action by Louis Bucki & Son against the Florida Central & Peninsular Railroad Company for damages for breach of a contract. Judgment was rendered in the circuit court for the plaintiffs. Defendant brings error.

This was an action by William McFarlin, John B. Wright, ajid Charles Baird, executors of the estate of T. W. Cornell, deceased, and others against the First National Bank of Kansas City, Kan., and W. T. Atkinson, its receiver, to recover hack certain moneys paid to the bank. The circuit court overruled a demurrer to the answer. Plaintiffs bring error.

<p>1. Pleading.</p> <p>An answer to an action on an accident insurance policy which attempts to set up that the contract was not fully consummated, because requiring the assent of the home office to the acts of an agent, but which shows that the agent was placed in a position to deliver a completed policy, and did so. and does not aver knowledge by the insured of the excess of authority, and which also attempts to set; up concealment of material facts, and false representations, but states no particulars, is insufficient.</p> <p>2. Life Insurance.</p> <p>A policy of accident insurance provided that the company’s medical adviser might examine the body of the insured at any time. No request was made for an examination till some weeks after the insured’s burial, when a request ivas made, not to 1he beneficiary, but to decedent’s widow, and was refused. Held no defense to an action by the beneficiary.</p> <p>8. Same.</p> <p>G. took out a policy of accident insurance on his own life, paying the premium thereon, the benefits of -which were payable to himself, unless he sustained an accident which resulted fatally, in which event the sum due on the policy was directed to be paid to B., the nephew7 of the insured. In an action by B., C. having sustained an injury which resulted in death, held, that B. need not allege or prove an insurable interest in the life of O.</p>

<p>Road-Improvement Certificates — Validity—Kansas Statute.</p> <p>Road-improvement certificates issued by persons purporting to act as road commissioners under Laws Kan. 1887, c. 214, for improvements on thoroughfares which are not in fact county roads, but are either located on private property or are streets within the limits of duly-organized cities, are not binding obligations of the county.</p>

<p>This was an indictment against John Matthews for perjury.</p>

<p>Criminal Law — Removal of OffendeRs — Section 1014, Rev. St. — Insufficiency of Indictment — Free Passes — Act Thus. 4, 1887.</p> <p>The act of February 4, 1887. forbidding certain preferences, means preferences in transportation of persons or property. An indictment alleging only the issue of a free written pass, hut not alleging any use of the pass, or of transportation under it, is fatally defective in substance, and therefore not a sufficient basis for removal under section 1014, Rev. Si.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Florida.</p> <p>These were writs of habeas corpus, issued upon the relation of Antonio Arteago and 39 other Italian immigrants, who were held in custody by immigrant inspectors at tbe port of Key West for tKé purpose of deportation under the contract labor laws. The circuit court entered an order discharging the relator in each case, and the United States appealed.</p> <p>The above-entitled cases are similar as to fact and th'e law applicable thereto, and, having been heard together, are disposed of together. About the 8th of January, 1894, the relators, cigar makers by trade, arrived in this country from Cuba, paying their own passage, and not under any contract or agreement of any kind with any person to labor’ in this country. On their arrival they were inspected and examined by the immigrant inspector at the port of .Key West, and were permitted to land. Soon after landing, they obtained employment as cigar makers, and up to the time of the proceedings in the circuit court hereinafter mentioned were continuously employed supporting and maintaining themselves by . their labor. On the 6th of February followirig the arrival of the relators in this country, the honorable secretary of the treasury issued a warrant directed to Frederick Deshler and William Bethel, immigrant inspectors, wherein it was recited as follows:</p> <p>“Whereas, from proofs submitted to me, I have become satisfied that all alien immigrants, who landed in the United States at the port of Key West, Florida, on the 8th day of January, 1894, came into this country from Havana, Cuba, per S. S. Mascotte, contrary to the prohibition of the acts of congress approved February 26, 1885, February 23, 1887, October 19, :.S88, and March 3, 1891, commonly known as the ‘Alien Contract-Labor Laws’; and whereas the period of one year after landing has not elapsed: I, John G. Carlisle, secretary of the United States, by virtue of the power and authority vested in me by the above-cited acts of congress, do hereby command you to take into the custody the said * * *v alien immigrants, and return them to the country whence they came, at the expense of the vessel importing them. For so doing, this shall be your sufficient warrant. Witness my hand and seal this sixth day of February, 1894. John G. Carlisle, [Seal.]</p> <p>“Secretary of the Treasury.”</p> <p>The relators were taken into custody under this warrant, and thereupon sued out in the circuit court a writ of habeas corpus, alleging in their petition therefor as follows: “The petition of Joaquin J. Amor respectfully shows unto your honor that he is now a prisoner, illegally confined and held in the custody of F. Deshler and W. Bethel, immigration inspectors, in the city of Key West, Fla., and within the jurisdiction of this honorable court, under and by virtue of an alleged warrant issued by secretary of U. S. treasury, in which warrant petitioner is charged with a violation of the immigration laws of the United States, and by which warrant petitioner is ordered to be forthwith removed from the United States; a copy of which warrant is refused. Petitioner alleges: That he came to the United States from Cuba about the Sth day of Jany., 1894, and was examined upon his arrival by the U. S. inspector of immigration at the port of Key West, and by him was decided to be entitled to land in the United States as a lawful immigrant; and, having so landed, petitioner has ever since lawfully dwelt in said city of Key West That petitioner has never heard of any appeal being taken from said decision of said immigrant agent, and has had no notice of any complaint or proceeding against him, and has had no opportunity to meet and answer any charges preferred against him. And petitioner avers that he has violated no law of the United States, or of the state of Florida; that he has had no hearing or trial, and it is proposed by said Deshler and Bethel, in whose custody petitioner now is, to remove the petitioner at once from the United States, without any hearing or investigation; that said arrest of petitioner, and the summary proceeding to deport him, is illegal, and is an invasion of the rights of petitioner. Wherefore your petitioner prays that a writ of habeas corpus be issued against said Deshler and Bethel, to the end that the petitioner may be discharged from said unlawful arrest and detention.” The immigrant inspectors made return to the writ, showing that the relators were in their custody under and by virtue of the above-mentioned warrant. On the hearing the United States attorney for thé Southern district of Florida appeared, and moved the court lo dismiss the petition for habeas corpus, for the reason that upon the return of the writ it is shown that the petitioners are held under a warrant issued b.v the honorable secretary of the treasury, and it. appearing that, the secretary had jurisdiction and authority in the matter of issuing said warrant,- tiie matter is not reriewabie by this court. This motion having been overruled, witnesses were examined, .the facts staled m the petition for habeas corpus nnd the above-recited facts were proved by witnesses, and thereupon the court ordered in each case as follows: “It not appearing that the petitioner had come into the United States in violation of law, it is ordered that the petition be granted, and he [naming petitioner] be discharged from custody," whomipon the United States appealed to this court, assigning errors as follows: "hirst, that the court erred in refusing- to grant the motion of the said attorney to dismiss the petition upon the ground set forth in said motion: ¡second, that the court erred in permitting any evidence to be introduced at the hearing; third, that the court erred in discharging the petitioner.”</p>

These were writs of habeas corpus issued upon the relation of Joaquin •). Amor and live others, who were held in custody by immigrant inspectors at the port of Key West for the purpose of deportation under the contract labor laws. , The circuit court entered an order discharging the relator in each case, and the United States appealed.

<p>On March 8, 1895, Mr. Dana, editor of the New Fork Sun, was held by Commissioner Shields in this district, under section 1014- of the United States Revised Statutes. for trial in the District of Co-lnmbia upon an indictment there found against him and William Laffan for libel against Frank Ik Noyes, a director of the Associated Press, contained in an editorial article printed and published in The Sun of February 22, 1895, and circulated in "Washington. The defendant Laffan not having' been found, application was made to the district judge for an order removing Mr. Dana to Washington, for trial in the supreme court of the District of Columbia, where the indictment was filed on March 7,1895.</p> <p>The complaint before the commissioner was made by the United States attorney for this district, in a brief affidavit, which did not itself charge any offense, but alleged, upon Information and belief, the finding of the indictment, as above stated, and that the defendant was in this district. Attached were an authenticated copy of the indictment., and a copy of the bench warrant issued thereon by the chief justice of the court, directing' the marshal of the District of Columbia to arrest the defendants if found in that District</p> <p>The indictment contained three counts. The first stated that the Sun Printing & Publishing Association was a New York corporation, engaged at the city of New York, in the business of printing and publishing The Sun newspaper daily; that Mr. Dana was Its editor, and as such, composed, and procured for publication in Tlie Sun, the editorial articles that appeared in the daily issues thereof; that the defendant Laffan was the manager of the paper, who had charge and superintendence of the printing, publication, and sale thereof; and that as such manager Laffan published and sold, and caused to be sold the issues of the paper in the city of New York, and at other places in the United States, among them, at the city of Washington; and that 800 copies of The Sun were regularly sent to Washington, and were sold by said Laffan as such manager for circulation there, as Mr. Dana well knew; that Mr. Dana, so being editor, and Mr. Laffan, manager, of The Sun, did, at the city of New York, on the 22d of February, 1805, maliciously write and publish, and cause and procure to be written and published in The Sun. in the form of an editorial article, the libelous matter complained of, entitled “The Work of Rascals”; and on the same day maliciously and unlawfully sent and caused to be sent to the city of Washington, for circulation there, 300 copies thereof, containing the libelous matter referred to; and did then and there on February 22, 1895, at the District of Columbia, unlawfully publish, and cause to be published, the libelous matter in the editorial article above referred to.</p> <p>Two other counts in the indictment are of the same purport substantially, except that they make no reference to the publication of The Pun in New York, or to any acts of the defendants In New York; but aver that tlie defendants on the 22d day of February, 1895, did, at the said District of Columbia, write and publish, and cause and procure to be written and published a certain other libel, in the same words as stated in. the first count. Mr. Dana, on notice of the proceedings, appeared before the commissioner. His identity was proved; and also that he was not in Washington, but in New York, during all the period alleged in the indictment, and had nothing to do with the sale or circulation of the paper; he denied the existence of probable cause, the sufficiency of the papers presented to the commissioner, and offered evidence to show want of probable cause, which was excluded, the commissioner ruling that only the question of identity was before him. The question of removal was elaborately argued before the district judge orally, and upon briefs after-wards submitted.</p>

This was an action by the United States against John Ken worthy, surviving partner of T. Kenworthy & Bro., to recover duties. At the first trial the court directed a pro forma verdict for the government, reserving the right to carter judgment for the defendant after argument. Upon argument, the court directed a new trial (59 Fed. 570), upon which a judgment was entered for the defendant. Plaintiff brings error.

<p>This was an appeal by Alexander Murphy and others, importers, from a decision of the board of general appraisers sustaining the action of die collector of the port of New York in respect to the classification for duty of certain merchandise.</p>

<p>This was a bill by William W. Everett against John W. Haulen-beek and others for infringement of a patent for an improved method of preparing peas.</p>

This was a bill by the Union Switch & Signal Company and others against the Philadelphia & Reading Railroad Company and others for infringement of five patents relating to apparatus for electric railway signaling. Defendants demurred to the bill.

This was a bill by the Union Switch & Signal Company and others against the Philadelphia & Reading Railroad Company and others for infringement of five separate patents relating to improvements in electric signaling apparatus for railroads. The bill was heretofore, on demurrer, held bad for multifariousness. 68 Fed. 91B. Complainants now move to vacate the order sustaining the demurrer, and for leave to amend the bill.

<p>This was a bill in equity by Kate J. Collins against Thomas Jay Gleason for infringement of a patent for bindings of leather for celluloid card cases and book covers.</p>

<p>This ivas a libel by Nelson H. Salisbury, as executor, etc., against 70,000 feet of lumber and Horace P. Burroughs, Sr., to recover de-murrage.</p>

<p>Carriers — Damage to Cargo — Sea Femes — Leaky Deck — Unseaworthiness —Harter Act — “Dun Diligence” Required of Superintendent of Repairs.</p> <p>Tlie Mary L. Peters with a cargo of sugar from Sagua La Grande to New York met extraordinary weather in February and March, and the sugar was damaged by water through leaks about tlie waterways, and hatches, and through the decks; the evidence showed the deck in poor condition before sailing, and unlit for such a voyage and cargo. He,Id (1) that the vessel was answerable for the damage from leaks through the deck; (2) that there was no such “due diligence’’ exercised by the persons employed by the owners to see to the repair of the ship as to exemjit the ship and owners.</p>

<p>This was a libel by Wilfrid Hiñe and others against the New York & Bermudez Company to recover charter hire of the steamship San Domingo, together with certain port of refuge expenses, and for detention during the voyage.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana.</p> <p>This was a libel by the Southwestern Transportation Company against the Western Assurance Company, to recover upon a policy of marine insurance insuring the model barge Charlie Fierce in the sum of $1,250.' The damage for which recovery was sought was occasioned by the springing of a leak in the barge while she was lying at blew Orleans moored on the outside of another barge; and the cause thereof, as alleged in the libel, was the surging and straining of the Charlie Pierce against the barge to which she was fastened, by reason of heavy winds and the waves caused thereby and by passing steamers. The defense was that the barge was not seaworthy, and that: the loss was not caused by any peril insured against. The issues raised were wholly of fact, and the court determined them in favor of libelant, and referred the cause to a commissioner to ascertain the damages suffered by libelant. The commissioner reported the damage to be $1,275.83, and Ms report was confirmed by the court, and a decree entered against defendant for $1,250, being the full amount of the policy, with interest. From this decree the defendant appealed.</p>

This was a libel by the Southern Cotton Oil Company against the Western Assurance Company to recover upon a policy upon a cargo of cotton seed shipped on board the model barge Charlie Pierce and damaged by the filling of that barge while moored at New Orleans. See Western Assur. Co. v. Southwestern Transp. Co., 68 Fed. 923. There was a decree below, based upon the report of a commissioner, in favor of libelant for $6,35499. Defendant appealed.

This was a libel by the Gulf City Coal & Wood Company against the steamship George Dumois, Johan Bru, claimant, for supplies! The district court dismissed the libel. 66 Fed. 353. Libelant appeals.

<p>Pilotage — Tender at Sea — Ship Liable.</p> <p>The display of the customary pilot signals on the usual cruising ground of pilot boats at sea, and the visible approach of the boat towards an incoming vessel, are a sufficient tender of oif-shore pilotage, with the cus‘tomary waiver of extra charge; and if the vessel does not heed the tender, but comes in without a pilot, she is liable under the statute for the usual pilotage fees.</p>

<p>Pilots — Unknown Obstruction — Failure of Proof.</p> <p>The keel of the G. P. while being to.wed through the middle channel in Hell Gate rubbed some object unknown. Subsequent examination of the bottom showed no obstruction in the location where the libelant’s evidence placed the course of the G. P. Held, that the evidence failed to show any negligence or lack of nautical skill in the pilot, and the libel was dismissed without costs.</p>

<p>Salvage — Employment by Insurers — Account of Whom tt may Concern— Rule 19.</p> <p>Upon the sinking of a steamer in the North river under suspicious circumstances, the insurers employed the lihelant to raise her. and not to permit owners to hoard or examine her till after their own examination. Upon some conflict as to whether the service was rendered “on account of whom it may concern,” and upon the sole credit of the wreck, field, that the direct pecuniary interest of the insurers in the raising and examination, and their employment of the lihelant, made them liable under Sup. Ct. Rule 10, in admiralty, for the salvage compensation of $u,000, as agreed upon.</p>

<p>Salvage — Negligence—Recoveby Over — Joint Negligence oe Tug and Tow —Salvage Costs.</p> <p>The libelant’s scow, while left temporarily by her tug, having drifted out to sea through insufficient anchoring, and $1,200 adjudged against her for salvage having been paid by libelant, held, that libelant was entitled to recover against the tug in fault, but not for costs of the salvage suit; and it appearing that it was the duty of the libelant’s man on board the scow, as well as of the tug’s captain, to attend to suitable anchoring, held, that but half of the salvage paid was recoverable.</p>

<p>This was a libel against the steamship Merjulio for salvage.</p>

<p>Salvage — Ice—Standing Bt — Proof of Benefit.</p> <p>Barges in Huntington Bay were in a situation of apprehended danger from ice in a sudden gale; the tug O., upon request, stood by, and for 18 hours did various services in aid of the barges. Held, that the service was of a salvage nature, and presumably beneficial, and that absolute proof that the result would have been worse but for such help was not requisite; and upon a value of $3,000, $250 was allowed.</p>

These were libels filed respectively by the Barney Dumping-Boat Company against the schooner John T. Williams, and by Ivans D. Applegate against the steam tug K. J. Moran, to recover damages resulting from a collision.

<p>These were three libels for collision, the first two of which were brought respectively by Charles B. Fisher and another and by one Morris and others against the steam tug Henry A. Crawford and the barge Blanche L. The third was filed by Bresette and others against the Crawford and the scow Thompson.</p>

<p>COLLISION — -Right of Wat — Starboard-Hand Rule — Leaving Dock — Contrary Signals.</p> <p>Tiie large steamer E., on leaving her dock in North river, gave a signal of two whistles to the tug F., which was coming down river on the E.’s starboard hand with a tow on a hawser. The attention of the master of the F. was then occupied with another tug which was crossing nis how, and he did not hear the E.’s signal, hut soon gave to the E. a signal, of one whistle, which was not heard on the E.; and the E. came in collision with the tow about N00 or 1,000 feet outside of the piers: Held, that the E. was alone to blame for uot stopping in time, as she might have done, after the course of the F. was seen; and that the E.’s failure to get a signal in reply to her two whistles was equivalent to a dissent hy the F., which held the E. hound to observe the starhoard-hand rule, a?id go astern of the F., which had the right of way.</p>

<p>MaRine Insurance — Collision—Damages—Abandonment — Titee — Biu, of Sark — Delivery in Escrow.</p> <p>Upon a marine insurance of a yat-M by a valued policy for $12,000, tlie libelant upon an abandonment by liim to the insurers, sued as for a iota! loss, for alleged damages by collision exceeding $6,000; his title, and his right to abandon were denied. The evidence showed a sale to libelant by the former owner for $12,500, of which $5,000 was paid down, and the rest in two notes, and that the bill of sale was delivered to a trustee upon a contract that if either of the notes should not bo paid, the money paid should be forfeited, and the yacht, and the bill of sale returned; and the former owner agreed to deliver tlie yacht seven days after the contract “ill perfect order ready for use.’’ Tlie yacht was delivered to the libelant, but not in good order; the first, note was paid; the former owner refused to make compensation for tlie bad condition of the yacht, and before the second note became due sold and indorsed the note “without recourse” to a bona fide purchaser who had no knowledge of the above dealings. Held (I) that the trustee was not a trustee of the title, but of the bill of sale only, for tlie former owner’s benefit; (2) that the latter could not have enforced forfeiture, except on nonpayment after he had made compensation for Ills own default; (3) that by the sale “without recourse,” and without reference to tlie contract, he had waived all further interest in the contract and its conditions; (4) that the libelant was sole owner at tlie lime of the loss, and that the abandonment by him was valid and timely.</p>

<p>Í. Circuit Courts-Jurisdiction — Amount in Controversy.</p> <p>Where an action commenced in a state court by attachment of property of the defendant exceeding in value $2,000, upon a claim of less than 82,000, is removed into the circuit court l>y a receiver of the defendant’s property, who has been made a party because he claims the exclusive possession of the attached property, the amount in controversy, so far as it relates to the receiver’s right to remove the cause, is the value of the property attached.</p> <p>2. Sayo; — Proper District — Waiver.</p> <p>The objection that a suit in the circuit court, when the jurisdiction depends upon the citizenship of the parlies, is not brought in the district where either the plaintiff or the defendant resides, is waived by a general appearance or pleading to the merits; and the court can proceed io hear and determine the cause.</p>

This was an action by Maria A. E. Voss and others against Maria A. Neineber and others, commenced in the superior court of Cincinnati, Ohio, and removed by the defendants to this court.

<p>1. Federal Courts — Effect of State Decisions — Validity of State Legislation UNDER THE FEDERAL CONSTITUTION.</p> <p>Decisions by the supreme court of a state that certain state legislation is not in contravention of the constitution of the United States, while entitled to the greatest respect, do not absolve the federal courts sitting within the state from the duty of exercising an independent judgment upon the same question.</p> <p>2. Same — Questions of General Law — Eminent Domain.</p> <p>The federal courts are not conclusively bound by decisions of the state supreme courts that certain uses for which private property is to be taken under state legislation are public uses, and so within the power of the state in respect to the appropriation of private property. Nor are the federal courts bound by a legislative declaration in the statute by which the appropriation is authorized to be made that the use is a public use.</p> <p>3. Eminent Domain- — What is Public Use — Irrigation- Laws.</p> <p>The taking of private property within limited districts organize&as irrigation districts under a state law (St. Cal. 1887, p. 29), for the purpose of furnishing water to the landowners alone, and not for the general use on equal terms of all inhabitants of the district, is not a public use such as will legally justify the exorcise of the power of eminent domain.</p> <p>4. Constitutional Lanv —Due Process — Assessments eor Local Improvements — Irrigation Laws.</p> <p>A state statute providing for the creation of irrigation districts of such extent as to conrprise lands susceptible of one mode of irrigation, from a, common source and by tlio same system of works, upon the petition of 50 or a majority of the landowners therein, confirmed'by a vote of two-thirds of the qualified voters residing within the district, with power to issue bonds, levy assessments to pay the same, and to condemn lands for the construction of canals, works, etc., cannot be sustained under the power to make assessments for local improvements, where the county supervisors to whom tlso petition is to he addressed have no amhorii v to adjudicate upon the merits thereof, and no opportunity is given to landowners to contest the validity of the petition, or the proceedings thereunder, which may finally result in the taking of private property. Such a statute is invalid as authorizing the taking of private property without due process of law; nor can this fatal defect in the foundation of the proceedings be cured by the fact that each landowner is entitled to be heard in determining the valuation of his land for purposes of assessment, or by the fact that, by an amendatory act (St. Cal. 1889, p. 212) the board of directors of an irrigation district are, in their discretion, authorized to institute a special proceeding in the courts to determine the validity ol" the proceedings, previously had, organizing the district, on publication of notice, and with the right in any person interested to appear and contest the same.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the District of Washington.</p> <p>This was a suit by the Pacific Rolling Mills Company against the James Street Construction Company to foreclose a mechanic’s lien. The circuit court dismissed the bill. 61 Fed. 476. Complainant appeals.</p>

<p>1. Corporations — Rights op Stockholders — Enjoining Management.</p> <p>A lumber company on the one part, and certain individuals on the other, owned together a large tract of inaccessible timber land, and the latter party also owned certain adjoining tracts. By agreement they joined in organizing a railroad company and building a road to reach the lands, each party falsing half the stock therein. Afterwards tlie corporation sold to the individual party its interest in the timber. The purchasers exhausted all the timber within reach of the road, and, being in the majority in the directory of the railroad company, passed a resolution authorizing an extension of the road to reach timber lands owned by them alone, and appro-printing the money in the treasury for that purpose. The rate agreed on for carrying lumber from the new tract was the same that was originally fixed by both parties. The road was useless, except for transporting the timber, and would be entirely worthless without the extension. Held, that the lumber company, as a stockholder in the railroad company, was not entitled to enjoin the proposed extension on the ground that it was solely in the interest of the individual party, as o.wner of the timber land, anil against the interest of the stockholders in the railroad company.</p> <p>2. Same — Constitutional Law-Carriers.</p> <p>The provision in the constitution of California (article 12, § 18) forbidding an officer of a company to engage “in the business of transportation, as a common carrier of freight or passengers over the works owned, leased, controlled, or worked by the company,” does not apply to the act of an officer of a railroad company in causing his own freight to be transported over the company’s road.</p>

<p>Trusts- — Foulowino Trust Property.</p> <p>The owner of property intrusted to another, by whom it has been misapplied, is not entitled to a general lien upon the assets of the trustee for tile value of such properly, and can only follow the same so far as it can be traced, either in its original form or in other forms into which it has been converted.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the District of Washington.</p> <p>This was a suit by the city of Spokane against the First Yational Bank of Spokane and F. Lewis Clark, its receiver, to impress a trust upon assets of the bank in the receiver’s hands. The circuit court sustained a demurrer to tlie bill for want of equity. Complainant appeals.</p>

In Equity. Suit by Mary Dugan and others against Roger O’Donnell to declare respondent a trustee for complainants of an interest-in the estate of Hugh O’Donnell, deceased, to set aside a probate decree for distribution of the estate, and for an- accounting.

<p>Appeal from the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>This was a spft b,y the Northern Pacific Railroad Company and Thomas P. Oakes, Henry C. Payne, and Henry C. Rouse, its receivers, against the Musser Sauntry Land, Logging & Manufacturing Com-' pany and the Chicago, St. Paul, Minneapolis & Omaha Railway Company to quiet the complainants’ title to certain lands. The circuit court sustained a demurrer to the bill. Complainants appeal.</p> <p>The appellants, complainants belowT, claim title to the lands in controversy under the third section of an act of congress approved July 2, 1864, which, so far as it bears upon the questions involved, is as follow's: “Sec. 3. And be it further enacted, that there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific Coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adoirt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and w'henever on the line thereof the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office; and whenever prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections: provided, that if said route shall be found upon the line of any other railroad route to aid in the construction of which lands have been heretofore granted by’the United States, as far as the routes are upon the same general line, the amount of land heretofore granted, shall be deducted from the amount granted by this aci: provided further, that the railroad company receiving the previous land grant may assign their interest to said Northern Pacific Railroad Company, or may consolidate, confederate, and associate with said- company upon the terms named in the first section of this act.” 13 Stat. 3G7. The Northern Pacific Railroad Company, hereafter called the “Pacific Company,” accepted this grant on December 29, 38(54. On .Inly 30, 1870, it fixed the general route of its road, extending through Wisconsin, within 20 miles of the lands in controversy. Thereafter it proceeded with the survey and location of its line, and on duly (>, 1882, definitely fixed that portion of its line extending opposite these lands by filing a plat thereof in the office of the commissioner of the general land office. The lands in controversy are within the limits of the grant, as defined by the plat of definite location filed ,Tuly (5, 1882. By September, 1882, the Pacific Company had completed the line of its road coterminous with these lands; and such line, having been examined by commissioners appointed for that purpose by the president, was reported by them to have been completed in a -good, substantial, and workmanlike manner, as required by the act of congress; and thereafter, on September 1G, 1882, the president approved said report, and ordered that patents for the lands earned by the construction of the road should be issued to the company. These facts show that the legal title to these lands is vested in the Pacific Company, if not within tlie exceptions enumerated in the granting act Whether ¡hese lands are within any of these exceptions depends upon the following facts: By an act entitled “An act granting lands to the state of Wisconsin to aid in the construction of railroads in said state,” approved June 3, 1850 (11 Stat. 20), congress granted co that state, for the purpose of aiding in the construction of a railroad from Madison or Columbus, by way of Portage City, to St. Croix river or lake, between townships 25 and 31, and thence to tlie west end of Lake Superior and to Bayfield, every alternate section of land designated by odd numbers, for six sections in width, on each side of said road. The act further provided that in ease it should appear that the L'niied States had, when the line of said road was definitely located, sold any sections or parts thereof granted as aforesaid, or that the right of pre-emption had attached to the same, then it should be lawful for any agent or agents to be appointed by the governor of the state to select, subject to the approval of the secretary of the interior, from tlie lands of the United States nearest to the tier óf sections or parts of sections above specified, so much lands, in alternate sections or parts of sections, as should be equal to such lands as the United States had sold or otherwise appropriated, or to which, the right of pre-emption had attached: provided that the lands so located should in no case be furtner than 15 miles from the road, and selected for and on account of such road. The state accepted this grant, and bestowed that portion of it which pertained to the line from the St. Oroix river or lake to the west end of Lake Superior and to Bayfield upon the St. Oroix & Lake Superior Railroad Company, On September 20, .1858, this company definitely located the' line of its road between these points. The lands in controversy did not fall within either the place or indemnity limits as established under this grant. By an act approved May 5, 38(54 (18 Stat. GO), entitled “An act granting lands to aid in the construction of certain railroads in the state of Wisconsin,” it is provided: “Section 1. That there be and is hereby granted to the state of Wisconsin, for the purpose of aiding in the construction of a railroad from a point on the St. Oroix river or lake, between townships twenty-five and thirty-one, to the west end of Lake Superior, and from some point on the line of said railroad, to be selected by said state, to Bayfield, every alternate section of public land, designated by odd numbers, for ten sections in width on each side of said road, deducting any and all lands (hat may have been granted to the state of Wisconsin for the same purpose, by the act of congress of June three, eighteen hundred and fifty-six. upon the same terms and conditions as are contained in the act granting lands to tlie state of Wisconsin, to aid in the construction of railroads in said state, approved June three, eighteen hundred and fifty-six. But in case it shall appear that the United States have, when the line or route of said road is definitely fixed, sold, reserved, or otherwise disposed of, any sections or parts thereof, granted as aforesaid, or that the right of pre-emption or homestead has attached to the same, then it shall be lawful for any agent or agents, to be appointed by said company, to select, subject to the approval of the secretary of the interior from the public lands of the United Si ates nearest to the tier of sections above specified, as much land in alternate sections or parts of sections, as shall be equal to such lands as the United States have sold o.' otherwise appropriated, or to which the right of pre-emption or homestead has attached as aforesaid, which lands (thus selected in lieu of those sold, and to which pre-emption or homestead right has attached as aforesaid, together with sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by said state for the use and purpose aforesaid: provided, that the lands to be so located shall in no ease be further than twenty miles from the line of the said roads, nor shall such selection or location be made in lieu of lands received under the said grant of June three, eighteen hundred and fifty-six, but such selection and location may be made for the benefit of said state, and for the purpose aforesaid, to supply any deficiency under the said grant of June third, eighteen hundred and fifty-six, should any such deficiency exist.” The state accepted this act March 20, 18Ü5, and on the same day conferred all the lands, rights, and privileges granted by the above section upon the St. Croix & Lake Superior Itailroad Company. That' company accepted the grant April 22, 1S65, and, hy a resolution of its executive committee, adopted the line as already located under the act of June 3, 1856, as the line of the read under the act of May 5. 1864. On May 5, 1865, copies of these resolutions, and of the act of the legislature of Wisconsin conferring this grant upon the St. Croix & Lake Superior Itailroad Company, were filed with the secretary of the interior. On February 28, 1866, the commissioner of the general land office directed the register and receiver of the district land office to withhold the odd-numbered sections within 10 and 20 miles of said line, so fixed, from sale or location, x>re-emption settlement, or homestead entry. This order was received and filed in the district land office on March 17, I860.</p> <p>The lands in controversy lie within the 20-mile limits of this withdrawal, hut are more than 15 miles from the line as fixed. The St. Croix & Lake Superior Itailroad Company having failed to construct said railroad, the grant to it was declared forfeited to the state. In February. 1882, the apxtelloo the Chicago, St. Paul, Minneapolis & Omaha Railway Company, hereinafter called the “Omaha Company,” succeeded, under'the legislation of the state, to the rights of the St. Croix & Lake .Superior Itailroad Company; and during that year it completed the road' past these lands and to the west end of Lake Superior. On May 12, 1883, and June 14, 1883, one W. IT. Phipps, as agent for the Omaha Company, filed lists for selection of indemnity lands claimed as inuring to said company under said grant, including, among others, the lands in controversy. These selections were, allowed liy the officers of the district land office, hut were never approved by the commissioner of the general land office nor hy the secretary of the interior. The governor of the stale caused patch)s for the lands in controversy, with other lands, -to he issued to the Omaha Company. In 1885 and 1886 the Omaha Company executed deeds for those lands to the grantors of the Musser Sauntry Land, Logging Manufacturing Company, which company acquired whatever ¡Merest in these lands was convoyed to the Omaha Company hy the state. The secretary of the interior having completed the adjustment of the grants made hy the acts of 1856 and 1864, ic was ascertained in 1889 that these grants were satisfied without the lands in controversy; and on November 25, 188!). the Omaha Company relinquished these lands, with others, and requested that the attempted selection should be canceled, which cancellation was made in February. 1890. In November, 1889, the Musser Sauntry Company, having ascertained that these lands would not inure to the railroad company under the grant, axxplied to purchase the same, under the provisions of an act of congress approved March 3, 3887. The register and receiver of the district land office, disregarding the Pacific Company's protest, allowed the apxfiication, and accepted the cash tendered for the lands. In February, 1890, the secretary of the interior, in a ruling made in the course of the adjustment of the Omaha Comxmny’s grant, held that the indemnity lands, under the act of May 5, 1864. reserved hy order of the commissioner of the general land office of February 28. 1866. were, by reason of such reservation, excepted from the operation of the grant to the Pacific Company in the act of July 2, 1864. On December 19, 1890, this ruling was reaffirmed, and is still in force. On March 5, 1891, in accordance with the rulings of the secretary of the interior, the Musser Sauntry Company made a now application to pureluiso Hie lands in controversy. vhich ivas allowed; and on May 5, 189'!. tlie Mussov Gauntry Company was allowed to, and did, make a cash entry of these lands. The Pacific Company appealed from this allowance, lint, on October li, 1892, the commissioner of the general land office affirmed it, holding that: these lands were excepted from the operation of the grant to the Pacific Company by the withdrawal order of 1866. To the complainants’ bill setting out these tacts, and praying that their title to these lands might be quieted, and that the defendants be enjoined from receiving or accepting patents therefor from the United States, and from cutting and removing the timber therefrom, the defendants interposed a demurrer, on the ground that the bill did not state a case entitling the complainants to any equitable relief. The demurrer was sustained, and. the complainants electing to stand upon their bill, a decree was entered dismissing the same for want of equity. Prom this decree the present appeal is prosecuted.</p>

This was an intervening petition, filed by A. P. Stewart on behalf of the state of G-eorgia and county of Pulton, and by the city of Atlanta, in the cause of William T. Walters against the Western & Atlantic Railroad Company, to enforce the payment of certain taxes by the receivers appointed in that cause. The receivers demurred to the petition.

<p>1. Judgments — Privies—Stockholders in Corporation.</p> <p>Persons who, at the time of the commencement of a suit against a corporation and the rendition of judgment therein, hold, as collateral security, stock in such corporation, which has been transferred to them on the books of the corporation, and who participate actively in the management of such corporation, are so far stockholders as to he privies to the judgment, and estopped to attack it in a collateral proceeding.</p> <p>3. Federal Courts — Following State Decisions — Change of Ruling.</p> <p>When a federal court has made a decision respecting the rights of parties before it in particular property, based on the rulings of the highest court of a state as to the interpretation of a statute of such state, and the state court afterwards reverses its ruling, it is not the duly of the federal court to reverse its decision as to the rights of the parties in the same property in proceedings subsequently arising.</p> <p>3. Corporations — Ratification op Unauthorized Acts — Rights of Third. Parties.</p> <p>An instrument claimed to he a mortgage was executed on September 13th hy officers of a corporation, without authority of the hoard of directors and without the corporate seal. It was not delivered on that day, hut on September 15th was placed with a hank which, on that or the next day, made an advance of money. On September 15th a mechanic’s lien accrued on the property alleged to be covered hy such mortgage. On October 29th the mortgage was ratified hy the directors and stockholders of the corporation, and a formal instrument executed under the corporate seal, antedated to September 13th. Held, that such mortgage could not oi>erate to create a lien superior to the mechanic’s lien accruing before the ratification.</p> <p>4. Same — Liability of Stockholders.</p> <p>A corporation was organized in July, 1800, and its stock subscribed but not paid for. In September the corporation agreed with A. and W. that its entire stock should be transferred to them as collateral security for moneys to be advanced. On October 2d certificates of stock were issued to the subscribers, and immediately transferred by them in blank to A. ami W. Soon after, upon request of A. and W.. these certificates were surrendered and new ones issued to A. and W. in their own names, for which they gave receipts to the original subscribers stating that such stock wots held by them as collateral for moneys to be advanced. A. and W. also subsequently caused the stubs of their certificates to be indorsed with mem-oranda that the shares were held as collateral. In January, 1891, the original subscribers assigned all their interest in the stock and in the company to dummies nominated by A. and W., and were thereupon released from liability as indorsers on notes given to A. and W. for advance's to the corporation, which was thereafter actually managed and controlled by A. and W. Held, that A. and W. became by these transactions the absolute owners of the stock, and liable for the amounts unpaid thereon to the extent necessary to discharge the indebtedness of the corporation.</p>

This was a libel by Zelmira de Castro G-uimaraes, and others, against the proceeds '¡o-f the steamship Seguranca, to recover for alleged loss and damage upon a consignment of oil in cases.

<p>Damages by Collision — City Vessel — Advertiré» Bros.</p> <p>The city’s vessel being damaged by collision, bids lor the repairs were advertised for, as required by the state law, and the city accepted the one bid offered, and claimed that amount as the measure of damages. Upon a hearing before a commissioner, he found the actual damage to be much less than the amount paid under the accepted bid. Held, that the reasonable cost of the repairs was the rule of damages, and not the amount paid; especially, as there appeared to be negligence in the city officers in not procuring' surveys on notice, as usual, nor ascertaining the probable damages before accepting the bid.</p>

<p>This was a libel by John C. Montvet arid others, owners of the schooner Clara E. Simpson, against the steamship Dorian, to recover damages resulting from a collision.</p>

This was a libel by Marvin Briggs, owner of tbe lighter M. S. Bernite, against tbe ferryboat Whitehall, to recover damages for a collision.