Volume 70 — Federal Reporter

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

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>Oil the 1st day of November, 1889, the Denver-Arapahoe Land Company, a Colorado corporation, executed to the appellant John R. Hanna its trust deed on 11,320 acres of land in Arapahoe and Douglas counties, Colo., to secure to the appellant Rufus Clark the payment of its promissory notes aggregating the sum of $97,000. On the same day the same corporation executed to the Mercantile Trust Company of New York, as trustee, a deed of trust on 4,480 acres of land in Arapahoe county, Colo., to secure an issue of its first mortgage bonds amounting to $140,000. On the 1st day of March, 1890, the Denver Water-Storage Company, a Colorado corporation, executed to the State Trust Company of New York, as trustee, a deed of trust on about 1,100 acres of land in Douglas county, Colo., together with the Castle-wood dam and reservoir, irrigating canals, ditches, etc., to secure the payment of its first mortgage bonds amounting to the sum of $300,000. Each of these deeds of trust covers different properties, and is the first and valid lien upon the property covered by it. On or about the 1st day of May, 1891, the Denver Land & Water-Storage Company was organized, pursuant to the laws of Colorado, by the consolidation of the Denver-Arapalioe Land Company and the Denver Water-Storage Company, and by virtue of such consolidation acquired, subject to the deeds of trust above described, all of the property covered by or embraced therein. Immediately after its organization the Denver Land & Water-Storage Company executed a deed of trust upon the entire property acquired by the consolidation mentioned, subject to the several deeds of trust executed by the constituent companies, and above set forth, to the State Trust Company of New York, as trustee, to secure an issue of its general or consolidated mortgage bonds to the amount of $800,000. On the 4th day of June, 1894, the State Trust Company of New York, as trustee in the consolidated mortgage last above mentioned, filed its bill of complaint in the circuit court of the United States for the district of Colorado against the Denver Land & Water-Storage Company, alleging that it liad made default, and failed to pay the taxes on its lands or interest upon its bonds, and that it was insolvent, and prayed for the foreclosure of its mortgage and the appointment of a receiver. This bill admitted the priority of the underlying deeds ol' trust executed by the constituent companies, and that any relief granted in the suit, by foreclosure or otherwise, must be subject to the rights and equities existing under the prior mortgages. On the day the bill was filed the Denver Land & Water-Storage Company appeared and answered; admitting its insolvency, and confessing all the allegations to the bill. The court thereupon appointed a receiver. On the 24th of July, 1894, the- State Trust Company filed its amended and supplemental bill of complaint, to which the Mercantile Trust Company of New York,'and the appellants, John It. Hanna and Itufns Clark, were made defendants. This amended bill prayed relief as follows: That the said Mercantile Trust Company, John It. Hanna, and Rufus Clark might be brought in as defendants in the action, and required to set up their respective rights upon the real estate covered by the deeds of trust executed by the Den ver-Arapahoe Land Company; that the respective rights of the trustees under the several mortgages or deeds of trust might be judicially ascertained and determined by the court; that the properties covered by the respective deeds of trust might be marshaled, and judicially ascertained and adjusted; that the amounts due upon the notes and bonds issued under tlie several deeds of trust might be adjudicated and determined; that the said deeds of trust might be foreclosed; that the receiver theretofore appointed in the action might be continued as receiver of all the property covered by each and all of said deeds of trust; that the said John It. Hanna, Rufus Clark, and the Mercantile Trust Company, and the holders of any of the notes, bonds, or securities issued under said deeds of trust, might be enjoined and restrained from commencing any action or proceeding in tlio circuit court of the United States for Colorado, or any other court, for the foreclosure of the said deeds of trust, and from enforcing their said notes and bonds, or for the collection thereof, against the Denver. Land & Water-Storage Company, or its property and effects, except in this action.</p> <p>On the 10th day of August, 1894, a special master appointed in the cause made a report, from which it appears that the company was endeavoring to carry on a colonization business, and was engaged in selling small tracts of land, for fruit raising and garden purposes, to settlers, or those who proposed to become settlers, or colonists; that in many cases the company sold these tracts of land (usually 10 acres), under executory contracts, for small amounts of cash down, and deferred iDayments extending over a period of five years, when the various purchasers were to receive the deeds. The company agreed to plant thése tracts with fruit trees, and cultivate and care for them during the five years. On the 16th of August the receiver filed his petition, stating, substantially, that the property of the Denver Land & Water-Storage Company consists of 17,000. acres of land in the counties of Arapahoe and Douglas, Colo., and an extensive dam or reservoir, known as the “Castlewood Dam,” and a system of canals and irrigating ditches connected therewith, and a large number .of land-purchase contracts and land-purchase notes, referred to in the report of the special master; that the original plan of the Denver Land & Water-Storage Company contemplated the colonization of these lands; the amount of the land-purchase contracts and notes, as shown by the report of the special master; the agreements made by the Denver Land & Water-Storage Company to plant and cultivate the lands, already referred to, and that in consideration thereof the various purchasers have made large payments, and have a right, in justice and equity, to demand performance of the contracts of the Denver Land & Water-Storage Company, and that otherwise the fruit trees upon tlio tracts sold under the planting and cultivation contracts will die, and the payments made by the purchasers will be absolutely lost; and that, moreover, it is of vital importance to the company that it should collect the balance due upon the land-sale notes and contracts mentioned, -which collection is entirely dependent upon the keeping up of the tracts of land, and the performance by the company of the contracts with the purchasers aforesaid. The petition then presents a number of reasons and arguments why, in the judgment of the receiver, certificates should be issued, and calls attention to the default in taxes upon the company’s lands, alleged to amount to about $4,000. The particulars of the three underlying mortgages and the consolidated mortgage are then given, and the receiver calls the court’s attention to the opportunity which presents itself for engaging in the colonization of the company’s barren lands, if he is authorized to issue certificates of indebtedness to raise funds with which to properly present the merits and advantages of the Denver Land & Water-Storage Company’s property. On the loth day of September, 1894, the court made an order, upon the receiver’s petition, which authorized the issue of receiver’s certificates to pay taxes due upon the lands, and to redeem the same from tax sales, and making such certificates a first and paramount lien upon the property upon which the taxes were paid. The order also contained this provision: “(5) It is further ordered, adjudged, and decreed that in addition to the amounts which may be necessary to pay the taxes now in arrears upon the property set forth and described in paragraphs 2, 3, and 4 of this order, the receiver shall have, and is hereby granted, authority to borrow such additional sum of money as shall, together wit'h said amounts for taxes, amount in the aggregate to a sum not exceeding $10,000, and to issue therefor his certificates of indebtedness, which said certificates of indebtedness shall be first and paramount liens upon all the property, rights, and franchises now owned or controlled by the said the Denver Land & Water-Storage Company, defendant herein, wheresoever situated, and subject to the jurisdiction of this court. And said additional sums of money shall be used and applied by said receiver for the purpose of preserving the property of the Denver Land & Water-Storage Company in his possession and custody, and carrying out and maintaining the contracts of the company now in existence, under and by which the company has heretofore sold (rads of land to various partios, which said contracts are referred to in the report of said receiver, and for such other purposes as are set out in said petition, with references to the maintenance, preservation, and protection of the property of the company, or as the court may from time to time direct.” From this order, John U. ilnima, trustee in the deed of trust dated November 1, 188!), and Itufns Clark, the beneficiary named therein, and the holder of a large amount of the bonds secured by the mortgage to the Mercantile Trust Company, appealed to this court.</p>

This was a suit by John and James Dobson against Samuel P. Snider, the Union Bank oí Minneapolis, and others, to set aside certain deeds as fraudulent. > The bill sets forth that on April 6, 1S92, complainants obtained a judgment against defendant Snider in the sum of $10,295.82, on two promissory notes, of $5,000 each, executed by M. L. Hallowell, Jr., & Go., a partnership, consisting of M.- J. Hallowell’ and S. P. Snider, to the order of and indorsed by the latter, on…

<p>Equity — Granting New Trial op Action at Law.</p> <p>When a motion for a new trial of an action at law has been made in the trial court, under a statute authorizing it, and has been heard on the merits, and denied, equity will not entertain a bill for a new trial of the action, based upon the same grounds.</p>

<p>This was an action by Charles Mitchell against the Northern Pacific Railroad Company to recover damages for personal injuries.</p>

<p>Accident Insurance — Notice to Insurer.</p> <p>The O. F. Ace. Ass’n issued to one E. an “accident certificate,” by which it agreed to pay to him, or to a beneficiary, named therein, certain sums of money as compensation for injuries or death resulting from bodily injury, effected through external, violent, and accidental means, causing an external visible marls upon the body. It was provided that, for such injury, effected during the life of the certificate, which should immediately disable E. from pursuing his occupation, a weekly indemnity should be paid, for certain specified mutilations certain sums should be paid, and, if death should result from such injuries alono, within' 90 days from the date of the accident, $5,000 should be paid to the beneficiary. It was also provided that written notice should be given to the insurer, within 10 days of the date of the accident and injury for which claim should be made, stating the circumstances of the accident and nature of the injury, that there should be no claim to indemnity for disability unless disability occurred within 30 days from the date of the accident, of which the insurer should have had notice within the 10 days, nor any claim to death benefits unless death resulted within 90 days from the accident, of which accident the insurer should have had notice within 10 days. While the certificate was in force, E. stepped on a wire nail, inflicting a small, but visible, wound in Ms foot. lie continued to pursue Ms occupation for It days, and was then taken ill and died from lockjaw resulting from the wound. No notice of the accident. was given /within 10 days of the occurrence of the accident, but proofs of death were furnished in due time. Held, that the terms of the certificate did not require notice to be given within 10 days of the happening of ail accident which did not immediately disable hi. from pursuing his occupation, and did not, within such 10 days, give rise to a claim for indemnity or death benefit, and that the beneficiary was entitled to recover.</p>

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>This was an action by Andrew Roalefs against the Delaware, Lackawanna & Western Railroad Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Practice oh Appeal — Objection not Raised Below.</p> <p>Where it clearly appears from a record on appeal that the case w'as tried in the lower court upon the theory that all the averments of the complaint were put in issue by the answer, and the testimony was introduced and instructions given on that theory, without objection from either side, the plaintiff will not be xiermitted to question the sufficiency of the denials of the answer in the appellate court.</p> <p>a. Railway Companies — Rules por Employbs-v-Contributory Negligence.</p> <p>The rules of the K. Ry. Co. provided, among other things regarding the duties of section foremen, that they should “carefully flag their truck and hand cars against special and extra trains or engines, which may be run at any time,” and that “special care must be taken in running hand ears and truck cars on all sections of the road, where, by reason of fogs, sharp curves, or other circumstances, risk or danger is involved.” and that hand cars “must always be protected by a flag when a clear track cannot be seen for a safe distance.” Q., a section foreman in the employ of the K. Ry. Co., while riding on a hand car, approached a high bridge, at the further end of which was a sharp curve; the track near the curve, which ran on a down grade, being also concealed by timber, and a high wind blowing at the time in the direction which would carry away the sound of a whistle at the curve. Q. did not flag his hand car for a spiecial train, nor take any special care on account of the sharp curve or other dangerous circumstances, except to stop and listen before entering on the bridge. The hand car was struck by a spiecial train, and Q. was killed. Held, that the rules above stated were reasonable, and that Q.’s disregard of them constituted such negligence on his part, contributing to the accident, as to bar any recovery against the railway company by his representatives.</p>

<p>Iii Error to Hie United States Court in the Indian Territory.</p> <p>This was an action by Charles Waters against the Kansas & Arkansas Valley Railway Company, for personal injuries. The plaintiff recovered judgment in the circuit court. Defendant brings error.</p>

This was an action by Orville II. Briggs against the town of Phelps, X. Y., upon coupons of bonds issued by the town. The case was tried by the court without a jury.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>This was an intervening petition, filed by W. H. H. Riley, by his next friend, C. C. Riley, in the consolidated suit of the St. Louis Trust Company against the Capital Street-Railway Company, and the Atlantic Trust Company against the City Electric Street-Railway Company, to procure payment out of the earnings of the defendant railway companies of a judgment in the sum of $5,000, recovered against them in an action for personal injuries. The court below' held that this claim was entitled to be preferred in payment from the earnings of the property over the lien of the mortgage debt. The two trust companies and the receivers of the roads, S. W. Fordyce and Allen N. Johnson, thereupon appealed to this court.</p>

<p>United States Government — Mistake in Settling Claim — Vacating Satisfaction of Judgment.</p> <p>Tbe United States recovered a judgment for $5,577 against B. and E. Tlie defendants made an offer to settle the judgment for $1,000 and costs, which was accepted, and the judgment satisfied. Subsequently, the officers or the treasury department discovered that two items of $344 and $434, respectively, were due to B. on the treasury books, and had been allowed before the recovery of the judgment, and retained to await the result of the suit. The United States attorney, by direction of the secretary of the treasury, then moved to set aside the satisfaction of the judgment on the ground that the settlement had been inadvertently made, in ignorance of the claims due to B. Held, that the existence of the indebtedness to B. alone, which was not shown to have any connection with the transactions out of which the judgment arose, was no ground for setting aside the settlement of the judgment against B. and E. jointly.</p>

<p>1. Parties to Actions — Indemnity Bond.</p> <p>The claimant of property attached by a sheriff as the property of another may sue in his own name on a bond of indemnity given to the sheriff, either as the real party in interest or by virtue of the statute of Arkansas (Mansf. Dig. § 3024).</p> <p>2. Fraudulent Conveyances — Evidence.</p> <p>In an action on an indemnity bond given to a sheriff upon attaching, as property of one N., certain goods claimed by plaintiffs, it appeared that N., a retail merchant, owed plaintiffs, wholesale merchants, about $4,000; that he sold his stock of goods to them for $2,000, credited on this indebtedness; that in a circular notice sent by plaintiffs, in accordance with their custom, shortly before this transaction, to their attorney, who also represented other creditors of N., plaintiffs had stated N.’s indebtedness as $54.46, but that this included only the amount due on open account, and not two notes also outstanding; that previously N. had given plaintiffs a. mortgage on certain land to secure the notes, which had not been recorded, but there was no evidence that the failure to record was due to any intent to defraud. Held, that there was nothing to impeach the bona, tides of the sale by N. to plaintiffs.</p>

<p>This was an action by the United States against one Banister to recover a penalty. On motion to dismiss a writ of capias.</p>

<p>1. Constitutional Law — Self-Incriminating Testimony — Fifth Amendment to United States Constitution.</p> <p>Tlie provision in tbe fifth amendment to the constitution of the United States, against compelling- a person in a criminal case to be a witness against himself, is not intended to shield a witness from the infamy or disgrace resulting from incriminating testimony, but only from actual prosecution and punishment.</p> <p>2. Same — Act Feb. 11, 1893.</p> <p>The act of congress of February 11, 1893, providing that no person shall be excused from testifying in xiroeeedings under the interstate commerce act, on the ground that his testimony may incriminate him, but -that no person shall be prosecuted or subjected to penalty for anything concerning which he may testify, does not contravene the provisions of the fifth amendment to the constitution of the United States, since it affords the witness a protection as broad as the constitutional provision. U. S. v. James, 60 Fed. 257, disapproved, o</p>

This was a suit in equity by the United States Printing Company against the American Playing-Card Company for alleged infringement of a patent for an improvement in machines for printing playing cards.

This was a bill in equity by the National Heeling-Machine Company and the Ross Heel Company against William T. Abbott for alleged infringement of letters patent No. 220,920, issued October 28, 1879, to Henry A. Henderson and Hollis C. Paine, for an improvement in heel-trimming machines. An injunction pendente lite was granted February 2, 1895. The cause is now before the court on final hearing.

<p>1. Patents — Limitation op Claims — Amendments in Patent Oeeice,</p> <p>Where the original application for a bicycle patent was for a tire in combination with a wheel having a grooved rim with supplemental grooves, and the only rim shown in the drawing had supplemental grooves, and the specification and claims underwent several modifications and amendments on reference to’ other patents, but the drawings remained unchanged, and there was no intimation that the supplemental grooves could be dispensed with, until, by a final amendment, all mention of them was omitted from one of the claims, it seems that this claim should be limited by reading into it the supplemental groove. Otherwise, it would seem that the patent would be void for enlargement beyond the scope of the original application, which alone was supported by the required oath.</p> <p>2. Same— Infringement — Bicycle Tires.</p> <p>The first claim of the Brown and Stillman patent,.No. 488,494, for a pneumatic tire made inextensible circumferentially by means of circumferential reinforcements along two lines within the edges and above the bottom of the groove, whereby the tire is made to seat itself on inflation, and the necessity for mechanical connection with the rim is obviated, held not infringed by a tire made according to the Moomey patent, No. 513,-617, which is not retained upon the rim by internal air pressure alone, but requires binding cords in addition thereto, besides other points of difference. 66 Fed. 558, reversed.</p> <p>3. Same — Equivalents.</p> <p>In applying the doctrine of equivalents, a distinction is made between inventions of specific devices and inventions of combinations. In a simple invention the range of equivalents is much wider than in a combination. In the former a change which would be held to be a substitution of equivalents may in the latter be considered to be an introduction of a new idea of means.</p>

<p>Appeal from tlie Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a bill in equity by Otto and William Thum against John A. .Andrews, William Y. Wadleigh, B. F. Ilullard, and William A. Dole, trading under the name of John A. Andrews & Co., for alleged inflingen lent of letters patent No. 278,204, issued May 22, 1883, and No. 805,118, issued September 16, 1884, both to Otto Thu«n, for improvements relating to iiy paper. The circuit court rendered a decree for complainants (58 Fed. 84), and defendants appealed. A petition to dismiss the appeal was denied by this court (12 O. C. A. 77, (it Fed. 149); and, the case being afterwards heard on the merits of the appeal, a decree was entered reversing the decree below, and remanding the cause, with directions to dismiss (he bill. 15 0. 0. A. 67, 67 Fed. 911. After the entry of this decree, the present rehearing was allowed.</p>

<p>1. Patents — Prima Facie Validity — Operative Machine.</p> <p>> The fact that no machine has been constructed and put into practical operation under a patent is not, of itself, sufficient to show that the patent *is inoperative, or to overcome the prima facie presumption of its validity from the fast of its issuance. If the proofs do not overcome this presumption, and the device is of such a character, or relates to such special and peculiar subject-matters, that it does not come within the range of common experience or judicial knowledge, the prima facie showing must stand.</p> <p>2. Same — Sufficiency op Specifications.</p> <p>Where it is claimed that a patent, under which no machine has been put into practical use, would be inoperative because of a difficulty pointed out, it is only necessary that the specification should be such that a mechanic of ordinary skill in the art should be able, by the aid thereof, to overcome such difficulty.</p> <p>8. Same — Anticipation—Utility op Anticipating Machine.</p> <p>Where a machine is relied on only as an anticipation of the patent in issue, it is not necessarily of importance to inquire whether the same possessed utility or not, or was in all respects patentable.</p> <p>4. Same — Invention—Anticipation.</p> <p>A patent for a combination is not necessarily invalid by reason of the fact that all its elements could be brought together by selecting parts from various known machines of the same character, though this may require a strict construction of its claims.</p> <p>5. 'Same — Machine for Setting and Feeding Lacing Hooks.</p> <p>The Eppler patent, No. 255,076, for a machine for feeding and setting lacing hooks, held void as to claims 1, 6, and 7, and valid as to claim 3, which is also held infringed by a machine made in accordance with the Smith patent, No. 809,166. 67 Fed. 115, modified.</p>

<p>Appeal from tlie Circuit Court of tlie United States for the Northern District of Illinois.</p> <p>This suit was brought by the appellant, the Thomson-Houston Electric Company, against the appellees, tlie Western Electric Company and Enos M. Burton, for infringement of letters pa lent No. 288," 115, issued March 1, 1SS1, to Elihu Thomson and Edwin J. Houston, for a current regulator for dynamo-electric machines. Proof .was made of a number of patents both in the prior and later art, but the controversy, as waged here and in the circuit court (65 Fed. 615). turns mainly upon a comparison of the patent in suit with the earlier letters, No. 226,659. granted January 20. 1880, to the same patentees. For this reason, and because they disclose the prior art, as it was known to Thomson and Houston at least, the specifications, claims, and drawings of each of these patents is given in full. They are as follows:</p> <p>No. 228,659.</p> <p>“Be it known that we, Elihu Thomson and Edwin J. Houston, both oí the city and county of Philadelphia, Pennsylvania, have invented a novel method and device for the automatic adjusting of the collectors or brushes applied to Hie commutators of dynamo-electric machines, whereby an automatic adapiation to variations of circuit resistance is secured, and the burning and destructive effects of false adjustments obviated.</p> <p>“It is a fact well known in the art that the greatest freedom from burning and irregular action is secured when the collecting brushes occupy a certain position, dependent in any given case on the speed of motion, and resistance interposed in the outside circuit. A variation of either the speed or the resistance occasions a necessity for readjustment of the commutator collecting strips. After an adjustment lias once been made no readjustment would be required, were it practicable to maintain a uniform speed of rotation of the armature, and a constant resistance of the circuit. Attempts have hitherto been made to adjust the commutator-collectors by causing a centrifugal device to move forward said collecting brushes on an increase in the speed of rotation of the armature, and to retract or reverse sal'd motion on a decrease in the speed of running. Such an arrangement fails in its purpose when variations in tlie circuit resistance are occurring at the same time. By combining the force of centrifugal action, dependent on speed, with magnetic force, dependent on current variation, a more perfectly operating device is secured. Fig. 1 shows one of the ways in which said actions may be combined for securing the automatic adjustment of the commutator collecting brushes. The commutator, K, is mounted on a rotating shaft. O, C, are the collecting brushes, applied to said commutator. A spring. S, tends to more the collectors, C, O, in the opposite direction to that of tile revolution of the commutator, ⅛, as shown by the arrow. A. flexible cord, t, attached to the supports of the collecting brushes, O, C, passes around a pulley, P, supported by the lever, L. The supports of the collectors, G, 0, are free to move around the commutator axis. The lever, L, and pulley, P, are maved by an electro-magnet, M, whose coils are traversed by the current of the machine, or a shunted portion thereof, attracting its armature, N, as shown. The other end of the cord, t, is attached t© a lever, L’, the position of which is regulated by the centrifugal action of the governor, G, in a well-lmown manner. The adjustments are sueli that an increase in the current strength, or an increase in the speed of rotation, or both together, act to cause the collectors, G, 0, to move forward in the direction of rotation, as shown by the arrow, and against the tension of the spring, S, which spring serves to cause an opposite motion of the collectors on a decrease in the current, or a decrease in the speed, or both.; but the proper adjustment of the range of motion to be imparted in each •case is an operation requiring great nicety, to obviate which we have devised a method of operating by which the amount of motion to be imparted to tho collectors is directly dependent upon the action of the collectors themselves in receiving current from the commutator. We are thus enabled to dispense with the centrifugal regulation.</p> <p>“The principle of our present invention may be briefly stated: We provide, in addition to the ordinary collecting brushes, small accessory brushes (one or more), which serve to receive current from the commutator segments after they have passed out of contact with the main collecting brushes. The current received by the accessory collectors passed through the coils of an electro-magnet serves to throw in or out of action any suitable motor device attached to the collecting brushes for their adjustment. After passing through said electro-magnet, the current from the accessory collector joins that from the main collector. The device for moving the commutator may be adapted to move by the current, or by the motive power, or by suitable clockwork, or other mechanism adapted to be thrown in or out of action by an electro-magnet, and constitutes, therefore, an une's-sential feature of the invention. In the description which follows, we have assumed that the motor device selected is to be operated by a shunted portion of the current developed by the machine, and this we find, in practice, to be a most convenient disposition for the purpose. In Fig. 2, K, K,’ Iv,” represent the segments of a commutator arranged.in a suitable manner, and of which any number may be employed. O, 0, are the main collectors, as ordinarily used. In addition to these, we apply accessory collectors, C2, O2 (one or more), which may be of much smaller width than the main collectors, C, C, and which rest upon the segments, I-C, IC’, IC”, somewhat in advance of the main collectors C, O, as shown. The accessory collector, C2, which in the figure serves to operate the adjusting device, is electrically connected to the main collector corresponding thereto through the coils of an electro-magnet, A, which, attracting its armature, B, can establish electrical contact between the contact pieces, p, q, as shown. A regulable spring, g, holds the armature, B, away from the magnet, A, when no current is passing. The collectors, C2, 03, are mounted upon a swinging bar, R, so as to rock concentrically with the shaft bearing the commutator, K, K’, IC”. A connecting rod, 1, joins the rocking supports, R, R, of the collectors, and the lever, L, is moved by the attraction of the electro-magnet, M, upon its armature, N, against the regulable tension of the spring, S’. A dashpot, D, serves to prevent too sudden and violent change of position of the lever, L. The coils of the electro-magnet, M, are placed in a shunt-circuit through the contact points, p, q, around a part of the conducting wire of the machine — as, for example, the field-magnet coils— the object being simply by the contact of the points, p and q, to divert a sufficient portion of the current through the electro-magnet, M, for the movement of the collecting brushes, C, O, as determined by said contacts. As we have before stated, any motor device operated by the magnet, A, or its armature, B, and serving to fulfill the purpose of the magnet, M, and lever, L, may be used, as convenience determines.</p> <p>“Our invention may be applied to any commutator composed of segments or conducting strips arranged around an axis, the principle of operation remaining the same. When applied to the Paccinotti commutator, in its various forms, we prefer to polarize the armature, B, or the electro-magnet, A, or both, so that on the passage of a current through the magnet, A, in one direction, it shall attract its armature, B, but when the current is in the other direction said armature shall be released or repelled.</p> <p>Dra wings of No. 228,659.</p> <p> </p> <p>“The method of operation is as follows, viz.: Assuming the segments, K and K’, to be in contact at a certain part of the revolution with the brushes, Q2 and O, .respectively, and that said segments are of unequal electrical potential, and in consequence the brushes, C2 and O, respectively, in contact therewith, are also of unequal electrical potential, a current will flow during said difference of potential through the electro-magnet coils, A, tending to equalize the potentials of C2 and 0. The armature, B, is therefore attracted and the electrical contact made at p and q, thus causing current to circulate through the coils of the electro-magnet, M, which, in turn, attracts its armature, N, the lever, L, being moved thereby, and its motion transmitted to the commutator collectors, G, 0, C2, C2, through the connecting rod, 1, and the rocking supports, It, It, thus effecting such an adjustment of said collectors as will equalize their potentials, at which moment the current through the electro-magnet, A, ceases, the spring, ⅝ breaks the contact at p, q, and the armature, N, in consequence, being released, motion in the opposite direction is begun, to be immediately checked or resumed in the former direction when a difference'" of potential of the brushes, C2 and O, again manifests itself. The accessory collector, C2, may be used, if desired, to assist C2, or it may be directly connected to the main collector, O, or in certain cases completely dispensed with, as, with a proper adjustment effected on one side of the axis, the opposite collector may be set in a position corresponding thereto. When the brushes, C2 and 0, are thus secured of an equal potential, the operation of the commutator is characterized by the absence of burning or sparks, and other indices of irregularity. Figs. 3 and 4 exemplify the application of the accessory collector, C2, for the automatic adjustment of the main collector, C, and when the coils of the armature are connected in a closed circuit, as in the Gramme. Siemens, or other similar forms. The dotted lines in Figs. 3 and 4 are supposed to pass through those segments on opposite sides of the commutator possessing the maximum positive and negative potentials, or through ttiose segments at which the two branches of the circuit through the armature coils join. When, in this instance, the accessory collector, C2, is in contact with the most positive segment, as shown in Fig. 3, the current circulates through it, and through the coils of the contact-making electro-mag-net, A, to the main collector, C. In consequence of said current in the magnet, A, contact is effected between points, as in Fig. 2 (p, q), followed by an adjustment of commutator collectors, O2, C, etc.,, in the direction as shown by the arrow, X (Fig. 3), — that is, in the direction of revolution of the commutator, — bringing in this manner the main collector, O, over the dotted line, or segments of greatest positive potential. If, now, from any cause, the collectors, 0, C2, are too far forward for effective action, an opposite movement of said collectors is' necessary. This condition is shown in Fig. 4, where the dotted line indicating the i>oints at which the two branches of the circuit through the armature coils join is on the other side of collector, G, from that shown in Fig. 3. In this ease the current through the electro-magnet, A, is in the opposite direction to that in Fig. 3, in consequence of the accessory collector, G2, being in contact with a commutator strip or segment less positive than O. The magnet, A, or its armature, B, being permanently polarized, as we have already stated, the current passing, as in Fig. 4, producing the opposite effect from that in Fig. 3, a readjustment of the commutator collectors, C2 and G, takes x>lace, as shown by the arrow, Y, (Fig. 4) opposite to the direction of revolution of the commutator, thus bringing the main collector, O, again over the segment through which the dotted line passes, viz. the segment of highest xmsitive polarity. The closeness of these adjustments is regulated by the tension given to the spring, S (Fig. 2), which serves to modify the action of the electro-magnet. A, ui)on its armature in closing the contact, p, q. When the contact, p, q (Fig. 2), is open, the magnet, SI, being inactive, the spring, S’, moves the collectors in one direction; and when said contact is closed the magnet, M. being active, moves said collectors in the opposite direction. During normal action, however, an intermittent contact at p, q, takes xDlaee, in consequence of the constant tendency of the sx>ring, S’, to move the collectors. This results in an intermittent action of the magnet, SI, just sufficient to counteract said constant tendency of the spring, S’, when a slight movement of the collector has been caused by the spiring. Thus, a feeble vibratory movement of the collectors is xxroduced, moderated by the dashpot, I). A condition of equilibrium between the force of the spring, S’, and the intermittent impulses of the magnet, SI, is therefore assumed and maintained. By means of the adjusting device thus described, the injurious effects of closed circuits in armatures, the coils of which are connected in a continuous series, may be greatly lessened, and the construction simplified by the employment of a smaller number of coils upon said armatures. From the foregoing description, it will be readily understood that the accessory collector, C2, serves, as it were, the purpose of a feeler, the design of which is to test the electrical condition of the segments of the commutator at the moment of leaving the collectors, and to originate from said condition an adjustment of said collectors in whatever direction is needed to secure edi-ción ¡ action.</p> <p>“Wo claim:'’ (1) “The hereinbefore described art of automatically adjusting the collecting-brushes of a dynamo-electric machine, consisting in nut Icing said adjustment directly dependent on the electrical condition of the commutator segments on leaving said collecting-brushes.” (2) “In combination with a, commutator for dynamo-electric machines, an accessory collecting brush (one or more), placed in advance of the main collecting brush, the current, taken up by said accessory collector being utilized in the manner substantially as shown, to determine the adjustment of the commutator collecting-brushes, and to hold said collectors in adjustment during operation.” (¡5) “The combination, with a dynamo-electric machine, of a main c-ollociing brush and an aeoesspry collecting brush, connected to one another through the coils of an electro-magnetic devices by the operation of which an automatic adjustment of said collecting-brushes is effected.” (1) "'iii a dynamo-electric machine, for the purpose of controlling the adjustment of the commutator collecting brushes, an electro-magnetic device, polarized or unpolarized, operating as a contact maker by means of the current derived from an accessory collecting brush, substantially as described.” tr>) “The combination in a dynamo-electric machine, with main and accessory commutator collecting brushes, of an electro-magnetic device operated by a current resulting from a difference (if potential of said main and accessory collecting brushes, which electro-magnetic device serves, in turn, to operate a suitable motor for the automatic adjustment of said commutator collecting brushes.” ((>) “As a motor for effecting the adjustment of the commutator collecting brushes, an electro-magnet, M, traversed by the current, or a portion of the current, of tlie machine, whose attraction upon its armature, X, moves said commutator collecting brushes in one direction, motion in the other direction being obtained by the action of a spring, substantially as described.” (7) “The combination, in a dynamo-electric machine, of a contact maker operated by the current resulting from a difference of potential of the main ami accessory collecting brushes with an electro-magnetic motor placed in a shunt or derived circuit around any portion of the tieid-magnet coils; said shunt or derived circuit to he closed.or opened by said contact maker as may he required for the automatic adjust-' meat of the commutator collecting' brushes.”</p> <p>No. 2:18,315.</p> <p>“He it known that we, Kliliu Thomson and JOdwin J. Houston, both of the city and county of Philadelphia, Pennsylvania, have jointly invented certain new and useful improvements in the regulation of electric currents developed by a dynamo-electric machine by si movement of its comnrain tor-brushes, of which the following is such a description as will enable those skilled in art to make and use the same:</p> <p>“The object of our invention is to provide improved means for'controlling automatically the strength of an electric current flowing over a circuit com-’ postal of a dynamo-electric machine and one or more electric lamps, or «••'her appliances, through which the current passes, and to obtain said control without the introduction of resistances, as such, and without, varying the speed or field of the dynamo-electric machine, and at the same time, if desired, to utilize the reaction principio for the magnetization of said ’dynamo-electric machine, or, in other words, to cause the current generated to pass through the field-magnet coils. We accomplish these results at. the same time that the power expended to drive the dynamo-electric machine varies directly in accordance with the changed resistance of its circuit;' being less as the resistance is less, and greater as the resistance is greater.' Lei us suplióse, for the purpose of elucidating the principles of our invention. a dynamo-electric machine running at a constant speed, and having in Us circuit twelve lamps of the arc type; the current from the machine passing successively through all the lamps, and through the field magnots of the machine. If the electrical resistance of the circuit remains uniform, the current will remain uniform. Let, now, half of.the lamps be removed from the circuit, by switching around them, in the ordinary manner. The resistance of the circuit being thus rendered much less than before, the current produced will be greatly increased; increasing the intensity of the light from the remaining six lamps, throwing a great strain upon the motive power, caused by the increased current, due to the circuit being of small resistance, and giving rise to heating of the wire coils of the machine, and other disadvantages. If all the lamps but one be cut out of the circuit, these disadvantageous effects are enormously intensified, from the machine running on an almost short circuit. Yet, in practice, it is often desirable to reduce the light-giving capacity of a machine so as to either diminish the amount of light given out in each lamp, or to reduce the number of lamps in the circuit. The latter result has heretofore been accomplished by the introduction into the circuit, in place of the unused lamps, of equivalent resistances of iron wire, <jr the lite, or by modifying the speed of the machine, or by changing the field-magnet circuit, or the current traversing it. The first method, or that of resistance substitution, requires that the same power be expended whether all or but few of the lights be used; the second method is impracticable for continuous running; while the third involves si>ecial construction of the machine, or the use of apparatus which greatly complicates the working, and requires frequent adjustment of the commutator to be made, to avoid short-circuiting. In the improved system of operation provided by our present invention, we possess the ability to cut out lamp after lamp from circuit, and yet maintain a uniform current strength in the remaining lamps, and economy of motive power proportional to the diminished resistance, while the normal light-giving power of each lamp not cut out is maintained, and an absence of heating, or necessity for any other adjustments than those at the commutator of the machine, obviated. These adjustments are preferably made automatic, for we find that with the commutator used by us, as herein specified, a proper adjustment of the commutator being effected when a certain resistance is in circuit, a similar adjustment will, when the resistance is changed, give the same current. In our system we have employed a dynamo-electric machine in which the commutator is constructed of three insulated segments of a ring connected to three armature coils. The collecting brushes applied to said commutator are supported so as to be movable around the commutator without changing the relative positions of the two collectors. This movement of the collecting brushes is well known in the art.</p> <p>“Fig. 1 shows a commutator consisting of three insulated segments, K.’, K”, IC”, and supposedly attached to the armature coils in accordance with our former inventions. Bearing upon the commutator segments, and parallel and opposite to each other, are two strips of metal, C, O’, for conducting off the current from the segments, and called ‘commutator, collecting brushes.’ The slot between or separating two segments, IC, 1C’, is made at an oblique angle, as shown. When the two. ends of a slot are angularly displaced with respect to each other, twenty to thirty degrees circumferentially around the commutator, a single pair of collecting-brushes is used, the planes of which are tangent to the circumference of the commutator at opposite points, and iiarallel to each other, as before stated. These collecting brushes are supported on a bar, B, B (Fig. 1), moving concentrically with the center of the commutator, and enabling the collectors, C, O’, to be placed in different positions relatively to the commutator segments, while still remaining in the same positions relatively to each other. The ends of the bar, B, B, describe the arcs shown in the dotted lines. The supposed direction of revolution of the commutator is shown by the arrow. The collectors, O, O’, are mounted so as to be insulated from each other, and the current discharged into said collectors from the armature coils and segments, K’, K”, and K’”, attached to them, passes from said collectors to the coils of field magnets of the machine (indicated by M, M), and thence also into the circuit of the lamps, six of which are indicated as 1, 2, 3, 4, 5, and 6. At each lamp is placed a switch, S, by which any of them may be shunted round, or cut out of, the circuit. When the six lamps are being used, the collectors, 0, O’, are adjusted to the proper position, as to absence of spark, and other irregularities, and to carry off the current of the normal working strength. Supposing-, now, that three of the switches he closed, .so as to remove half the number of .lamps, a movement of the commutator collectors, 0, O’, forward in the direction of revolution of the commutator restores the current to its former working strength; and, even though all the lamps but one be switched from the circuit, we find that a similar movement may be given to the collectors, and that they may be set in such position as to discharge into the circuit a current of only the normal working strength. Any number of lamps in circuit may thus be put out of use, and a position of the commutator collectors found which will restore the normal current strength.</p> <p>Drawings of No. 238,315.</p> <p> </p> <p>“We are aware that in the operation of commutators of the Paccinotti type, such as the Uramme, Siemens, and the like, where the coils on the armature are numerous, and connected in closed circuit, end to end, a. movement forward or backward of the commutator collecting brushes around said commutator from the position of maximum effect, or the position when the commutator segments that are simultaneously in contact with a collecting- brush are of equal xiotential, results in decreased current; but the variation of- the current so obtained is attended with damaging-short-circuiting of the coils of the armature, — a fact well known in-the operation of such commutators when the position of equal potential mentioned is not maintained. In our system, short-circuiting of the armature coils is prevented. When the amount of separation of the carbon electrodes or length of arc of the lamps used in our system varies with the current strength, increasing or decreasing therewith, we are enabled, simply by changing the jrosition of the commutator collecting-brushes, to vary the amount of current passing through the lamps, and hence their light-giving power. In practice, therefore, by a single movement of the commutator collectors, O, O’, we are enabled to turn up or down the lights in the circuit. A motion in the direction of revolution, or in the direction of the arrow (Ifig. 1), diminishes the current-producing- power of the machine, while motion in the oxiposite direction increases it. These results are accomplished with a consumption of power depending on the electro-motive force of the current produced, and without short-circuiting any of the armature coils. We are not aware that these results, unattended by injurious effects, such as waste of power and short-circuiting, have ever before been realized.</p> <p>“The princiifie ux)on which our system is founded is substantially as follows: During- revolution the commutator segments have positions one hundred and eighty degrees from each other, of maximum positive and maximum negative x>olarity, resx>ectively. When the collectors, O, O’,-are set for the normal current, with the total number of lamps in circuit, the segments, K’, K”, K’”, will break contact with the collectors, 0, O’, shortly after passing their i)ositions of maximum electro-motive force. On removing some of the lanqps from the circuit, the current is increased, but may be restored to its normal strength by xfiacing the commutator collectors, C, O’, in such position that segments' are in contact with them when the electro-motive force is below its maximum, this being accomifiished by moving the collectors forward in the direction of revolution. The ability to so vary the electro-motive force by a simple motion forward of the commutator collectors in an armature coil system with three branches results from the fact that, for the major part of the revolution, but two armature coils and their- corresponding segments, as K’ and K”, are in connection with said brushes; the electro-motive force of the current produced in the armature being, when both armature coils — as those attached to I-C’ and K", respectively — are acting in the same direction to produce current, the sum of their electro-motive forces, and when they are acting opx>ositely to each other, as when the commutator brushes are ifiaced far forward in the direction of revolution, the difference of their electro-motive forces. In this latter case the segment, as IÍ’, may leave the collecting brush, 0, even after the armature coil to one terminal of which said segment is attached has passed beyond the neutral point; the current in said coil being prevented from reversing at the neutral point by the suixerior electro-motive force of the other armature coil, with which, for the time, it is conjointly acting, as that armature coil one terminal of which is attached to K”. The mo-monts wlion all three segments and their corresponding armaturt coils are simultaneously in direct contact with the collecting brushes correspond to the times when either of the collecting brushes, O, O’, is over a slot between any two segments. At this moment a transfer of the current takes place from the coil and segment, leaving the commutator brush to the succeeding coil and segment coming into contact therewith, which transfer is repealed at every slot in ilie commutator. This transfer occupies an appreciable time, and the current produced is due to the resultant action between i,he coils in their maximum position operating in conjunction with coils that have either passed, or have not attained, that position, when in circuit with the collectors, O, O’.</p> <p>“IVe have hereinbefore described our method of regulating the strength of the current, traversing the circuit by a movement of the commutator collecting brushes, so that whatever be the number of lamps in the circuit, up to the maximum, the normal current strength may be obtained; but as, in practice, the lamps are generally at a distancíe from the dynamo-electric machine furnishing the current, and as the switching out of circuit of one or more of the lamps would necessitate an adjustment of the commutator-brashes, as before described, we prefer to effect said adjustment automatically, and without the introduction of resistance coils, and maintain, notwithstanding changes in the number of lamps used upon the circuit, a practically uniform current strength without requiring the attendance of the oiterator. We find in practice, moreover, that we obtain with this automatic regulation of the current strength an independence of speed variations in the machine, it being only necessary to so adjust the speed of running that when the speed is at its lowest the machine shall yet be sufficient in power to maintain the number of lights placed in its circuit. YVe are therefore able to operate successfully under conditions of motive-power variations that have hitherto been recognized as fatal to steadiness of light obtained.</p> <p>“In united States patent No. 223,659 (January 20, 1880) before referred to, we have described a means of automatically adjusting the commutator collectors of dynamo-electric machines, which method is adaptable to the present ease of current regulation. When a single pair of commutator collectors, 0, O’, are employed with an inclined or angularly slotted commutator, as hereinbefore mentioned, the current of the machine is caused to traverso an electro-magnet, the variations in the power of which current and magnet either directly or indirectly serve to effect the adjustment of the commutator collectors, with or without centrifugal regulation, in a similar way to that shown and described in patent No. 223,650, before referred to. The regulation of the current strength is readily obtained by causing the main current of the machine, or a shunted portion thereof, to traverse an electro-magnetic controlling- device, operating to throw into or out of action an electro-magnet or equivalent motor device, which, in turn, imparts motion to the commutator collecting brushes. As in our former invention. already referred to. the motor device used may he adapted to move by the current, or by the motive power, or by suitable clockwork, or other mechanism adapted to be thrown in or out of action by an electro-magnet, and constitutes, as before, a minor feature of our present system. Our present method of operating, therefore, so far as it relates to automatic regulation, is based upon the same principles of operation as our previous invention; and it consists in an improved construction and mode of use of the apparatus employed in patent No. 223.659.</p> <p>“In Fig. 2 the diretit current of the machine is convoyed through the coils of the electro-magnet, I), plae.ed in the circuit of the machine at any convenient point. Its armature, E, is suitably supported so as to he movable to and from the electro-magnet, as by the lever, F, and held a,way from the magnet by an adjustable spring, /. Two contact pieces, p, q, are provided. adapted to be closed or opened by movements of the lever, F, due to valuations in the power of the electro-magnet, 1>, following changes in the current. The contact pieces, p, q, serve as a shunt of small resistance or short circuit around an electro-magnetic coil, (}, provided with a movable core, H, suitably supported in the axis of the coil. The core, H, is hung upon a lever, L, connected by a rod, R, with the swinging bar, B, B, of the commutator collecting brushes; a dashpot, J, being irrovided to prevent too sudden and violent motions of the lever. Variations in the magnetic pull of the coil, G, upon its iron core, H, opposed by the action of spring, S, or equivalent counterbalance weight, imparts motions to said core, which motions are, in turn, imparted by the rod, R, to the supports of the commutator collecting brushes, 0, O’, thus varying their position with respect to the segments of the commutator.</p> <p>“The mode of oireration is substantially as follows: The cutting out of one or more lamps from the circuit of the machine, or an increase in the speed of rotation of the latter, causes a corresponding increase in the current traversing the circuit of which the coils of the electro-magnet, D, form a part, and a necessity for readjustment of the commutator brushes to prevent a continued increased current and sparks at the commutator. The increased attraction upon the armature, E. opposed by the spring, Z, opens the contacts, p, q, diverting the current of the machine through the coil, G, which, in attracting its core, H, readjusts the collecting brushes, G, O’, thus bringing the current strength again to the normal, at which moment the armature E, is released by the magnet, D, and the contacts, p, q, are again closed, and are ready to allow the same action to be repeated on a further increase of current strength. On the decrease in the current strength, due to any cause, the armature, E, not being attracted sufficiently to open the contacts, p, q, the current is diverted through them from the coil, G, which, failing to attract its core, H, a counteracting spring), S, moves tho commutator-collectors, 0, O’, so as to increase the current, or raise it to the normal. A dashpot, J, with oil or glycerine, prevents violent motions of the lever, L; and during normal action a sufficient number of makes and breaks at the contacts, p, q, occur to maintain the current at its proper strength, and the collectors, 0, O’, in their proper position to maintain that strength, and avoid injurious burning. An automatic readjustment of position is thus made to follow every removal of a lamp from, or introduction into, the circuit.</p> <p>“Fig. 3 is a plan of the pants shown in Fig. 2, the parts visible in said plan being designated by similar letters to those in Fig. 2, as described.</p> <p>“In Fig. 2 the various parts are shown as occupying positions separate from one another; but in practice we sometimes combine the motor coil, G, and core, H, with the rod, R, dashpot, J, and spring, S, into a single, compact device. This combined device forms the subject of a separate apiffioation for letters patent.</p> <p>“The magnet, D, and armature, B (Fig. 2), instead of acting to open and close contacts, p, q, may serve to throw in and out of action a mechanical motor device by movements imparted to a friction clutch, or its equivalent. In this case the power which moves the commutator collectors or brushes is obtained either directly from the rotary motion of the machine, or by clockwork, or other suitable mechanism, thrown in or out of action by variations in the strength of the current traversing the magnet, D. As a type of this modified use of the controlling electro-magnet, D, we refer to Fig. 5. The coils of the electro-magnet, D, are, as before, placed in any convenient part of the circuit of the machine. The armature, E, is mounted upon a lever, F, suitably supported, and free to move. The lever, F, bears a roller. R’, against which hangs the rod, R, attached to the swinging support, B, B, of the commutators. Held by a spring, Z, away from the magnet, D, the armature, E, is free to respond to variations of its attraction. The rod, R, is suitably guided and attached to B, B, by a double point or link. A wheel or roller, W, rotated in the direction of the arrow by any suitable means, is placed at a small interval from the rod, R, as shown, so that the rod, R, is almost a tangent thereto. A band of rubber preferably surrounds the edgie of the wheel, W. The remaining parts, S, B, B, and O, O’, are as in Fig. 2, and serve the same functions.</p> <p>“The operation is essentially as follows: On an abnormal increase of the current strength, the magnet, D, attracts its armature, E, and so moves the lever. F, as to throw the rod, R, against the periphery of the rotating wheel, W. The friction of the wheel, W, upon the rod, R, so produced, results in a movement of the rod, R, and the parts to which it is attached, against the elastic force of the spring, S, resulting in a readjustment of the collectors, O, O’, as hereinbefore described. A corresponding decrease of the current strength, and release of the armature, 15, the rod, it, being thown out of frictional contact, with the wheel, 'VY, by the spring, ⅞ is followed by a readjustment in the contrary direction by the action of the spring, S. In practice, a position of equilibrium is soon attained between the counteracting fri-iinences, such as to maintain the current at a practically normal working strength. ></p> <p>“We claim: (1) In a current regulator for a dynamo-electric machine, the combination of a device responding to changes in the mam or generated current, a- shifting commutator for said machine, and mechanism controlled by said responsive device to shift the commutator to those positions where the current taken up by said commutator shall be constant. (2) In a current regulator for a dynamo-electric machine, an electro-magnetic device acted ui)on by variations in the main or generated current, an adjustable or shifting commutator for the machine, and mechanism controlled by said electromagnetic device to adjust the commutator to those positions where the main or generated current taken up by said commutator shall be constant.”</p> <p>The following summary statement of the prior art is taken from the teoii-mony of Mr. Charles 15. Scribner, an export of conceded intelligence and skill, who was examined in behalf of the appellees: “To recapitulate, there are two ways by which current regulation may be obtained: (1) By varying the circuit resistance, which plan lias, been employed since 1878, both manually and automatically; such employment, however, not having been so extensive of late years as that of the other method, which is the more economical. This is best shown in Siemen’s patent, No. 220,022, of .Tuly hi, 1880. (2) By varying the electro-motive force, which method has had a very extended use since 1878, manually, and since 1879, automatically. There are three ways in which the electro-motive force of a dynamo may be thus re ¿au-la ted: (a) Varying the speed of rotation of tile armature of the dynamo, (b) Varying the strength of the field of magnetism, (c) By varying the length of the armature wire which is producing the electro-motive force, which is always accomplished by shifting the brushes. The method of automatically regulating by automatically controlling the speed of the armature is shown in patent 205,305, of June 25, 1878, to lawyer and Man; also, in English patent No. 4,705, of November 39. 1878, to Frederick John Oheesbrougli; and in various publications. The method of automatically regulating the current by varying the strength of the field magnetism is shown in patent 22-1,5; 1, of February 17, 1880, to Charles F. Brush, and in oilier publications. The method of regulating the current by varying the length of the armature wire which is producing the electro-motive force is shown, as employed manually, in patents 211,311, of January 14, 3870, and 233,823, of October 20, .1880, both to Edward “Weston; and, as employed automatically, in patent 223,059, of January 20, 1880, to Thomson and Houston, and patent 228,543, of June 8, 1880, to Hiram S. Maxim; and in other publications. In each instance of automatic regulation of the electro-motive force, and thereby Uio current, a responsive device connected with the main current of the dynamo has been employed; such device controlling the supply of current to maintain it constant upon any variation of the current, taking place, from any cause. Of the three methods of regulating the electro-motive force, and thereby the current of a dynamo mac!lino, the most efficient, in the economy of power, is the method of regulating by varying; the strength of the field magnets by cutting into and out of circuit a portion of the field-magnet coils, as shown in the patent to Brush, No. 224,511 (February 17, 3880).”</p> <p>A general knowledge of electric dynamos, and of their modes of operation, is assumed. They have been elaborately explained, both by the exports and by counsel, with all the clearness possible, probably, for subjects so abstruse; but it is not deemed necessary, and, within reasonable limits, it would be impracticable, to follow, step by step, the excursions which have been made into the tangled fields, from which the judge below was constrained to confess that he came hack more bewildered than enlightened. The essence and the intricacy of the case are to be found, and are sufficiently illustrated, in the following questions hy Mr. Taylor, and answers from the cross-examination of Mr. Scribner, whom counsel have called the “architect of the defendants’ ease,” and whose accuracy, in most particulars, is conceded:</p> <p>“O. Q. 31. If I understand your theory of the operation of the apparatus of Fig. 2 of ijatent 223,050, when applied to a series dynamo running at constant speed under varying load, it is substantially this: (1) A change in the external resistance causes a change in the main current of the machine. (2) The change thus produced in the main current of the machine causes a change in the relative potential of the adjacent commutator segments under the brushes. (3) This change in the relative potential of the adjacent segments causes a change in the current flowing in the accessory circuit and through the magnet, A. (4) By the changes, of current thus produced in magnet, A, its contact points, p, q, are opened or closed, as the case may be, and the motor mechanism thus set in operation to move the brushes backward or forward, as the cage may require, to bring them to that position on the commutator where there will be the least difference of potential between the adjacent segments under the brushes. Is that substantially correct? A. My theory of the mode of operation of this apparatus, constructed in accordance with the patent, and operated upon such a dynamo, I have arrived at by a study both of the patent, and of the apparatus in operation. Magnet, A, in operation, is ait all times in a position of some difference of potential between adjacent segments. This difference of potential is varied by variations of the current strength. It is increased upon an increase of the current strength, and decreased upon a decrease of the current strength. The change of main current, pointed out in paragraph numbered 1 in your question, causes a change in the difference of potential, as pjointed out in your second paragraph, and this change causes a change in the current flowing in the magnet, A, as stated in the third paragraph; and the effect of this is to move the brushes back ward and forward, as may be required, to bring them to that position on the commutator where such a condition of difference of potential may exist between adjacent segments as will effect an intermittent opening and closing1 of contact points, p, q, to maintain the brushes in feeble vibration at the point upon the commutator where the commutator segments are substantially of equal potential at -the instant such segments pass out of contact with the brush. This.results in the maintenance between the brushes, main and accessory, of substantially constant difference of potential for variations of circuit resistance, the amount of difference depending upon the particular machine upon which the apparatus is employed, and upon other conditions.</p> <p>“O. Q. 32. It was my desire to make the question a fair and exact statement of the whole operation involved in the use of the apparatus of Fig. 2 of patent 223,059, according to your view of it, as expressed in various connections in your preceding testimony. You will see that it is not assumed in the question that there will ever be a condition in which there will be absolutely no difference of potential between the adjacent segments, or absolutely no current in magnet, A. On the contrary, subdivisions two and three assume that such difference of potential and current will always exist, in some degree, subject to variation by the causes stated. I gather from your answer that the fourth subdivision of my question does not express the idea which I intended to convey with absolute exactness, ana so I will amend that subdivision to read as follows: ‘(4) By the changes of current thus produced in magnet, A, its contact points, p, q, are opened or closed, as the case may be, and the motor mechanism thus set in operation to move the brushes backward or forward, as the case maj'' require, to bring them to that position on the commutator where there will be the predetermined minimum difference of potential between the adjacent segments under the brushes at the instant of separation between the main brush and the forward segment.’ With the explanation thus given, and the amendment thus made, does my question fairly express your theory of the operation of the apparatus ? A. The amendment of the fourth subdivision of your previous question brings the matter under what may be termed instantaneous observation, and while it provides for a condition of things oecm--ring at one instant for every segment in rotation with relation to the accessory brush, it does not provide for the average condition of difference of potential between adjacent segments observed during oiieration. A, dynamo in operation lias its adjacent segments at the same potential only at tin' precise instant, ol' time when a condition oí balance is created between the different coils of the armature and tlie main circuit. If we consider tlie action as it; occurs in tIn» oiieration of a dynamo, aiul observe the comiition between adjacent segments when they are passing under a two-part commutator brash, we tinel Hint when tlie two segments have, In their rotation, first arrived at ihe position of contact with the two brushes, there will be a positive difference of potential between the two segments. As the armature advances, and commutation is effected, this difference of potential decreases; and. as (he armature further advances, this difference of potential ai rives at its practical minimum at (he precise instant of time when the forward segment breaks contact from the forward brush during its rotation. This results in an average difference of potential between adjacent segments for (he period of this excursion under tlie brushes, and this average difference of potential may vary as the apparatus of the adjuster Is applied to different machines. It may vary with the same machine as the spread of iIm* two brushes, main and accessory, is varied. Tlie fourth subdivision of your former question, failing to take cognizance of this condition of practice, called for the extended answer 1 gave. Your amended fourth subdivision, assuming a condition which occurs only at one instant of time, and continues only during the time occupied by a point in passing a point, will not permit a categorical answer to tlie question.</p> <p>"C. Q. 33. 1 see the propriety of your criticism, and I will restate subdivision -1 of my question to read as follows: ‘(4) By the changes of current thus produced in magnet, A, its contact points, p, q, are opened or closed, as the case may be, and the motor mechanism liras set In operation to move ihe brushes backward or forward, as the ease may require, to bring them to that average difference of potential between the adjacent segments under the brushes which will result in securing the minimum of difference of potential at. tlie instant of the separation of the forward segment and the main brush, and so «('curing a practica,1 minimum of siiarking.’ Is this a substantially correct: statement of that part of the operation covered by subdivision I of my question, according to your views? A. Tt is.</p> <p>‘‘C. Q. 34. You have, in your testimony' in this case, described the opera - üon of a number of devices exhibited as reproductions of the apparatus of Fig. 2 of patent 223,(559, — some of them by the complainant, and some by the defendants; and yon have stated, I believe, (liat in every such case the mode of operation of file device, when applied to a series dynamo running under varying load, was, in your opinion, tlie same as the mode of operation of llie apparatus of the patent in suit, as therein set out. Hid you, in (lit! expression of that opinion in all these cases, have in mind the mode of operation of the apparatus of Fig. 2 of patent 223,(55!), set out in my O. Q. 31, as amended in my last preceding question? A. I certainly' had in mind the mode of operation of the apiiaratus as it had been observed, and tlie modi' of operation as pointed out in your last question is substantially that of the apparatus as 1 witnessed it. in operation. This mode of operation, as pointed out in your previous question, subdivision -1, and O. Q. 31, subdivisions 1, 2, 3, of tlie apparaius 223,550,' employed in connection with a, series arc-lighting dynamo, is llie mode of operation of file apparatus of the jiatent in suit: 11 > A change in the external resistance causes a change in the main current of the machine. (2) The change thus produced in the main current of tlie machine causes a change in the relative potential of the adjacent commutator segments under the brasiles. Tn the patent in suit there are" hut (we brushes upon a three-part commutator, and these brushes always rest upon adjacent commutator segments. (3) 'Fids change in the relative potential of these' adjacent segments cause's a change in the current flowing through the magnet in the patent in suit which corresponds with magnet, A, of pat-era 223,(55!). (1) By the changes of current thus produced in this responsive' magnet, its contact: points, p, q, are opened or closed, as the case may lie, and the motor mechanism thus set in operation to move the brushes backward or forward, as the case may reepiiro, to bring tliem to that position on the commutator where there will bee the same difference of potential between the adjacent segments under one of the collecting brushes as will secure the minimum difference of potential at the instant of separation of the forward segments and the main brush, and so secure a practical minimum of sparking. In the patent in suit the difference of potential between the two terminals of the responsive electro-magnet is maintained constant by this mode of operation; it being placed in the main current, and this effect taken advantage of. In patent 223,659 the difference of potential between the terminals of electro-magnet, A, is also maintained constant, and the same advantage is taken of this effect to control the operation of the apparatus. The mode of operation of both depends upon the capacity of the responsive magnets to maintain a constant difference of potential at their terminals by their control of the shifting brushes.</p> <p>“O. Q. 35. Professor Cross states that in the spark-adjuster apparatus constructed under his directiop. the resistance in the accessory and main circuits was such, to the point of their junction, relatively, that, when the accessory and main brushes were connected in parallel with the same source of current, no appreciable current flowed in the accessory circuit; and you have stated that in one of the spark adjusters constructed by you the same relation existed. I will ask you whether or not, in your opinion, this is a proper feature of construction to be given to the apparatus of Pig. 4, of patent 223,659, in order to give effect to the mode of operation set forth in that patent? A. If we assume the brush, C, shown in Pig. 2 of patent 223,059, to have an appreciable resistance, then magnet, A, might be varied in resistance through the ordinary range of magnet winding, and no appreciable current would flow through it, under the conditions mentioned in your question. It is only upon the assumption that an appreciable resistance is had in the path through the main brush, 0, to the junction of the two circuits, that proportioning of the resistance of magnet, A, to the resistance of the main brush circuit would have any effect. As to the propriety of proportioning these resistances, the patent gives no information upon which to base an opinion. The proportioning of these resistances, one way or the other, would not necessarily affect the mode of operation of the apparatus. I believe Professor Cross has expressed substantially the same opinion in his answer to C. Q. 236, 237, and 338, page 819 of complainant’s record.</p> <p>“C. Q. 36. I take it from your answer that you regard the method of construction pointed out in my last question as a proper, but not, in your opinion, necessary, method of construction, in order to realize the invention of the patent. Am I, correct in this? A. I do not think that the patent contemplates any proportioning whatever o'f these paths. That a proportioning of these paths to secure the result of no current in the accessory circuit might be had, which would be improper, is quite certain. If the resistance of the accessory path were proportioned so high, relatively to the main circuit, as to prevent effective current to flow through the accessory circuit, even when the main and accessory brushes were on different segments, we would have an improper construction of this apparatus. It may be so proportioned with respect to these resistances as to insure proper construction, and the invention of the patent realized. The same adjuster, applied to one machine, and submitced to this storage-battery test under consideration, might be found to be properly proportioned for that machine, but when submitted to the same test with another machine, although fulfilling the requirements of the test as before (that is, having no current through magnet, A, 'under the conditions named), would now be found to be improperly proportioned, and possibly inoperative upon the new machine.</p> <p>“O. Q. 37. I think, possibljr, you have taken my question in a sense which I did not intend. What is the resistance, or is there any, of appreciable amount, in the main brush itself, including the resistance of its contact with the commutator upon the dynamo, as ordinarily used? A. There is an axipreciable resistance in the main brushes, and their contacts with the commutator segments in rotation; the amount of this resistance depending upon the condition of the commutator cylinder, upon the length and cross section and material of the main brushes. I should say this resistance might be as high as one-tenth of an ohm, possibly higher. I think, in the Brush dynamo, it might be "found to be higher, and in the old forms of the Thomson and Houston dynamo as well, although I cannot speak with positiveuess upon this point.</p> <p>•‘U. Q. 38. In order that the current flowing in magnet, A, shall he due at all times to the difference of potential between two adjacent commutator segments, — one in contact with the main brush, and the other with the accessory brush, — it is necessary, is it not, that the resistance of the accessory circuit shall be sufficient to exclude all appreciable current from it when the two brushes are connected in parallel with the same source of current? A. If I understand your question, the meaning of which is a little uncertain to me, I must say that I do not think that this is necessarily so.</p> <p>"O. Q. 30. If there is not this relative difference between the resistance of the accessory circuit and the main brush circuit, will not tlie accessory brush act. in effect, as a. mere subdivision of the main brush, and take up more or less current which is not immediately due to the difference of potential between the two adjacent commutator segments under the brushes? A. Kven if there is this relative difference between the resistances of the accessory circuit and the main brush circuit, some current will flow in the accessory circuit when the two brushes are on the same segment, as a result of the self-induction of the magnet, A. Your present question, and the one preceding it, call for a consideration of the operation of this adjuster apparatus from instantaneous views of the same at two different moments during the rotation of the commutator; one instantaneous observation being had at a moment when tlie main and accessory brushes are on different commutator segments, tlie other instantaneous observation being made when these two brushes are in contact with the same segments. The electro-mag-net, A, iu operating to open and close contact points, p, q, requires, in order to operate these points, sufficient current to enable its magnetism to overcome the pull of the retractile spring, ⅜ of the armature. When there is a sufficient difference of potential between (he main and accessory brushes, by reason of their resting upon adjacent commutator segments, to give sufficient current to magnet, A, to overcome the pull of spring, S, then the contacts, p, q, would be operated, and the brushes adjusted In response. When both brashes are on the same segment, if the resistance of the circuit of the main brush should bo so great as to still create a difference of potential between the ends of magnet, A, current would flow through magnet, A, as a. result of that difference of potential. If, now, this difference of potential, and the current resulting from it, Is of less value than that secured when tlie brasiles are on adjacent segments, then magnet, A, would not be strong-enough to overcome the retractile spring, ¡S, and no effect of adjustment of the brushes would bo had. Magnet, A. before it can operate to move the brushes through the control it has over 1he motor mechanism, must have sufficient current flowing through it to overcome this retractile spring, ⅜ thus closing contact points, p, q. Any current flowing through this magnet, of less strength than that required to overcome spring, fS, would be of no suhnantial effect upon the action of the apparatus. It would be, In a measure. like the polarizing of electro-magnet, A, simply creating a condition of magnetic tension in this magnet, the real control and operation of the magnet being dependent upon the current resulting from (lie larger differences of potential to be found when (lie brushes are upon adjacent segments. At the moment of either of these two instantaneous observations of tlie apparatus, the current which flows in magnet, A, results from a difference of potential between tlie two brushes; In the one case the difference of potential being caused by the brushes resting upon different portions of the commutator at which there is a difference of pressure, and in the other case the difference of potential results from a difference in the resistance of the two paths through which tlie current of tlie machine may flow.</p> <p>‘‘O. Q. 40. I think I understand your answer, and I gather from it that, in .vour opinion, there might always be found flowing in the accessory circuit some current other than that due wholly to tlie difference of potential between the adjacent segments; that the effective operation of the apparatus would not depend on that current (which might be more or less without materially changing the result), but upon the variable current produced by the variable difference of potential between adjacent segments. Am I right? A. In my answer to yonr last preceding question, I sought to make it clear that a material current might.flow in magnet, A, without substantially changing the mode of operation of the apparatus, if this current were of less value than that resulting from the differences of potential between adjacent segments. Of course, the presence of such currents would have an effect up-, on magnet, A, to magnetize it; but the control of magnet, A, over the movements of the adjuster, would be determined by the changing of its condition through the variations of potential difference of adjacent segments. With this explanation, I answer your question in the affirmative.</p> <p>“C. Q. 41. Why is it that a change of the strength of the main current changes the relative potential of the adjacent segments of the commutator under the brush ? A. I have, 1 think, answered this question in my consideration of the subject of the actions which take place in a dynamo under changes of circuit resistance, in my first deposition in this case; for example, in answers to interrogatories 4 and 10. I will endeavor to make a brief answer to your question. The current of most dynamo mach.nes is the result of the sum of the differences of potential of several coils upon the armature. In the Thomson-Houston three-coil dynamo, the current is the result of the difference of potential of two coils at any one time. The difference of potential that exists at a given moment between the two ends of any particular coil of the machine is determined bjr its' own electromotive force, which is at that moment generating, modified by the difference of potential of all of the other coils of the machine, together with the condition of circuit resistance that exists at this moment. The difference of potential that exists at any moment is thus controlled. If we consider the actions which take place in a dynamo machine during the period of rotation of the armature when the two brushes of a pair are on adjacent segments, the condition which will prevail at the tips of these two brushes will depend upon the electromotive force of the coil upon whose segments the brushes rest, upon the electromotive force of all of the other coils of the armature, upon the resistance in the main circuit operated by the machine, and upon the resistance of the different coils of the machine. A variation from the prevailing condition at this moment occurs, as a result of a variation of the circuit resistance, or by a variation of the speed of the dynamo, either of which variations produces a different condition of potential strength at the different coils of the machine, including the coils upon whose segments the brushes are supposed to rest. It is thus that a variation of the speed of the machine, or a variation of circuit resistance, by varying the strength of the current of the main circuit and the current flowing in the coils of the armature, causes a change of current in an accessory circuit derived from the armature.</p> <p>“O. Q. 42. The summary which you have given in your last answer is not intended to modify or change the views expressed by you in your former deposition, to which you have referred, is it? A. I have answered this last preceding question without reference to the correctness or incorrectness of any opinion as expressed by me in giving my former testimony in this case. My answer is based entirely lipón my understanding of tlio matter as arrived at after several years of careful study of this subject. It is even possible that I may have, in,the past two years, somewhat modified my opinion on subjects treated of in my earlier deposition. If it is your wish that I ■should examine that deposition, and make corrections in the testimony, based upon my later investigations, I shall be glad to do so.</p> <p>“O. Q. 43. I do not know that it is necessary, for the present inquiry, to go over so much ground as was occupied in your former discussion of the ■subject. All that I care for is to be sure that I understand your views upon some particular points. From your former deposition, I have gathered the impression that the prevention of spark at the commutator depends upon the introduction of the coil, which is at that instant changing its relation from one side of the dynamo to the other, in such a manner that it shall not produce any shock, or offer any resistance to the flow of the current which is being generated upon that side of the dynamo into which the coil is being introduced, and that this requires that the current iu the incoming coil, due to its self-induction, shall have been extinguished, and its ohmic resistance overcome, and a current set up in it equal in value to the current which it is to receive from tlmt side of the dynamo into which it is entering hy the in-slant at which the forward tip, or the forward commutator brush, breaks contact with the leaving segment, so that the current of tlie dynamo shall find at that instant in the newly-introduced coil a path of no resistance. Is 1lxm. substantially correct? A. I think you have obtained a substantially correct impression of the explanation I have made of the cause of sparking. A coil in that portion of the armature, traveling under the influence of one pole of tlie field, lias current flowing in it. resulting from a difference of potential caused hy such motion. This same coil, passing out of the influence of tlie first field, and into the influence of the other field, has current flowing through it in a reverse direction, it is in the transposition of the coil from one field to the other that the changes pointed out in your question are taking place; and tlie overlap of the brushes, and the adjustment of the brushes upon the eommutator with relation to tlie strength of the current flowing in tlie other coils and in the main circuit, and the resistance included in the main circuit, determine the instant when the necessary condition pointed out in your question shall be arrived at.</p> <p>"O. Q. 4-1. During the time that these changes are taking place, it is necessary, is it not, that the incoming coil shall he short-circuited by contact of the brush with the two adjacent commutator segments into which its terminals are connected? A. Yes; or hy some equivalent means.</p> <p>“0. Q. 45. The length of time necessary to effect these changes in tlie incoming coil — that is, to extinguish its current due to self-induction, overeóme its ohmic resistance, and set up ill it a current, equal in value to tlie current of the dynamo — depends, does it not, upon the effective strength of tlie magnetic field through which it is passing? A. The strength of tlie field through which the coil is passing is one factor upon which this length of time depends. The other factors upon which this length of time depends are numerous. The amount of overlap of tlie brushes, — that is to say, the distance the coil rotates while under the brushes, the number of turns of wire upon, the coil itself, the amount of iron included within tlie rotating armature, tlie strength of the current flowing' through the different parts of the apparatus, are all factors in determining the length of time. The reaction of circuit resistance changes in the main circuit upon tlie field magnet Itself, and upon the armature is an importan! factor in determining this length of time.</p> <p>‘V. Q. 40. I liad in mind, in asking my question, that most of the factors which you have named should be regarded as given. For greater clearness. I will put my question in this way: X assume that the dynamo, in all its parts, has been designed and constructed to produce a current of given value; that it is to run at a constant speed, and under a constant load. This fixes, X think, all the conditions which affect, the transposition of tlie incoming coil from one-side of tlie dynamo to the oilier, except the length of time during which it shall remain short-circuited, which is, I suppose, another way of saying the length of time during which its terminals shall lie connected by the commutator brush. Now, assuming all these conditions, is it not true that the length of time during which that short-circuiting is to continue depends upon the effective strength of the magnetic field through which it passes? A. Assuming all of the factors which affect this time as fixed, the length of this time will depend directly upon tlie effective strength of the magnetic field from which tlie short-circuited coil obtains its electromotive force. A variation in the strength of field would vary this time, or a variation of any of the factors would vary this length of time.</p> <p> </p> <p>*‘(\ Q. 5)3. Tlie view which you have expressed in regard to tlie electrical actions which take place in the operation of tlie spark adjuster and the current regulator, respectively, seem to me to involve, from your standpoint, ¡líese distinctions: 1. In the curreni regulator, tlie variations of current in the controller magnet upon which its action depends are tlie identical variations from tlie standard current which are sought to he corrected. Hence, the variations of current in the controller magnet of the current regulator are not, in any true sense, caused by the variations in tlie main current, lie-cause they are those very variations in tlieir original, unmodified form. 2. Ill the spark adjuster the variations of current in the controller magnet which determine its action depend directly upon variations in the relative potential of the adjacent commutator segments under the brushes. This relative potential is affected by: (a) The strength of the main current; (b) the length of time during which the incoming coil is short-circuited by the commutator brush; (c) the effective strength of that portion of the magnetic field through which the incoming coil passes while short-circuited. These are all variables. The current is varied by changes of resistance in the circuit; the length of time during which the incoming- coil is short-circuited is varied by change in the collecting area of the brushes; and the effective magnetic strength of the field in which the short-circuiting takes place is varied by changes of the whole field strength, or changes in the place occupied by the coil in the field while short-circuited, if the field is not uniform. In actual operation, one of these elements may vary, while two remain constant, or two may vary and one remain constant, or all three may vary at once. In a constant current series dynamo, so constructed as to possess a uniform field, and provided with brushes of unvarying overlap, the current alone of the three variables named will vary during operation under changes of load. In a constant current series dynamo having a nonuniform field and unvarying overlap, the current and the effective magnetism of that part of the field in which short-circuiting takes place will vary in operation under changes of load. In such a machine having an adjustable spread in its brushes, all three of the elements will vary together. Traced to its source, the effective variation of current in the controller magnet of the current regulator depends directly on one variable, -viz. the resistance in the circuit. Traced to its source, the effective variation of current in the controller magnet of the spark adjuster depends directly on the variation of the relative potential of the adjacent commutator segments under the brushes, and that depends on the three variables named. The action of the controller magnet of the current regulator is an immediate and proximate consequence of a change in the current of the machine. The action of the controller magnet of the spark adjuster is a secondary and remote consequence of a change in the current of the machine, such remote consequence resulting directly from an intermediate consequence of such change, viz. a change in the relative potential of the adjacent segments under the brush. I do not ask you to express an opinion whether these differences are material, or not, or whether one of these modes of controlling the controller mag-net is the equivalent of the other, or not, but to state simply whether the differences which I have pointed out do or do not exist. For simplicity, I assume throughout my question the presence of a uniform speed in the dynamo. A. The views which I have expressed in regard to the electrical actions which take place in the operation of the spark adjuster and the current regulator do not involve, from my standpoint, the distinction you make in your question. In the‘current regulator the variations of current in the controller magnet, upon which its action depends, result from variations of potential at the terminals of this magnet, these variations of potential being caused by the variations in the main current. Precisely the same statement is the truth with reference to the controller magnet of the spark adjuster, and the statement in your question, under the second subdivision, with reference to the controller magnet of the spark adjuster, is equally true of the controller magnet of the current regulator, to and including the second division (a). Subdivisions b and c should not be variables, but should be constants, and in the Thomson-I-Iouston three-coil ’79 dynamo, and in the Weston dynamo, and other dynamos of that period, they were constants. Where they are not constants they merely modify the effect which changes in the main current produce upon the controller magnet. The action of this controller magnet in no wise depends upon either ‘(b) the length of time during which the incoming coil Is short-circuited by the commutator brush,’ nor upon ‘(c) the effective strength of that portion of the magnetic field through which the incoming coil passes while short-circuited’ for its operation. These affecting conditions (b and c) acting simply and solely to shunt a portion of the main current through the controller magnet of the spark adjuster. The current which flows from the main circuit through the controller magnet of the current regulator is precisely tlie same current as that which flows through the coni roller magnet of the spark adjuster. Changes in the strength of tlie main current are changes in the current of tlie controller magnet of either device. Your question assumes a dependence of tlie controller magnet upon variable actions, which variables are themselves made variable by changes in the current, and suggests an indirectness of action of Hie main current upon the controller magnet. This is not correct. Tlie variations of current In che controller magnet of the spark adjuster are the original variations of current as caused by changes of circuit resistance. The variables which are affected simultaneously with the change of the condition of the controller magnet of the spark adjuster are affected by the same change of current which controls the controller magnet. The difference of potential between the main and accessory brushes in the spark-adjuster apparatus is caused by the current flowing in the circuit, just as the difference of potential at the terminals of the controller magnet of the current, regulator is caused by the current flowing in the main circuit. As a result of this difference of potential, a part of the main current is shunted through ¡he controller magnet of the spark adjuster, and this current, In its variation. effects the adjustment of the brushes. While 1 have already endeavored, all through my testimony, to make it (dear that the difference of potential between adjacent segments and the amount of such difference of potential depended upon the strength of the magnetic Held, the amount of collecting area of the brushes, and the strength of the main current, X have also endeavored to make it clear that these things acted simply to determine a condition, and that the result of this eondiiion 11ms determined was ¡ho flow of a portion of the main current through the controller magnet of the spark adjuster. Magnet, A, of the spark adjuster, is therefore in a position where a difference of potential causes a portion of the main current !o flow through its coils, this difference of potential resulting from tlie pressure of the main current to flow through the short-circuited coil. A variation in the strength of the main current is a variation in the current of the controller magnet. Of course, it is at the same' time a variation in the potential difference between adjacent, segments, and at the same time a variation in the strength of the held magnet of the dynamo. These collateral effects have no part in determining the variation of the controller magnet. Traced to its source, the effective variation of current in the controller magnet of the current regulator depends directly on one variable, viz. the resistance of the current. Traced to its source, the effective variation of current in the controller magnet of the spark adjuster depends also on one variable, and the same variable upon which depends tlie effective variation of current in the controller magnet of ihe current regulator, viz. the resistance in the circuit. Your question states that, ‘traced to its source, the effective variation of current in the controller magnet of (he spark adjuster depends directly on the variation of the relative potential of the adjacent commutator segments under the brushes, and that depends on' the three vil,riahies named.’ This is entirely incorrect. The action of the controller magnet of both the current regulator and the spark adjuster is the immediate and proximate consequence of a change in the current; of the machine, and the action of the controller magnet of the spark adjustor is in no wise a secondary and remote consequence of a change in the current, of the machine. You attribute to a result to be corrected for the importance of a controlling condition. The real controlling condition is a. change of current which in the spark adjuster acts directly upon the controller magnet, simultaneously producing the new eondiiion of potential difference. By response to tlie change of current the current is corrected.</p> <p>•‘C. Q. 01. A careful reading of your last answer has led me to doubt whether, after all that has been said. I have an entirely correct understanding of your view of the operation of a dynamo during the transposition of a cell from one side of the field to another. 1 shall recapitulate very briefly the points upon which 1 want to be entirely clear. I understand, first, that it is necessary, in order to transfer a coil from one side of the field to the other without a shock to the current, that during the period of the transposition it shall lose Us current In one direction, and acquire a current in the other direction, even [equal] to that flowing in the coils with which it is to talce its place in series; and, in order that this 'reversal shall take place, the incoming coil must he short-circuited through the segments of the commutator, at its terminals, for a long enough time for the change to he effected. This short-circuiting, as I understand it, is accomplished by causing the commutator brush to make simultaneous contact with those two segments, and keep up that contact until the necessary period of short-circuiting has elaijsed. Is this a correct statement of the matter, so far, according to your views V A. A comparison of my last answer with my testimony given in response to your interrogatories does not show me any cause for the doubt which you express. I have endeavored to arrive at a perfect understanding of your interrogatories, and have, to this end, freely discussed, off from the record, all questions upon which I was not clear. I have gone so far as to give a full explanation of the actions occurring in dynamos, and, by a discussion of those actions, have sought to facilitate the framing of questions to insure a perfect understanding between us as to the true meaning of such questions. I confess myself surprised at the statement contained in your last preceding interrogatory, to the effect that my "expressed views would seem to involve the distinctions pointed out in that interrogatory, as well as the expression of doubt contained in your present interrogatory, your statement in the present interrogatory of the necessary actions to insure the proper transfer of a coil from one side of the armature (not field) to the other is, I believe, substantially correct.</p> <p>“O. Q. 95. I did not intend to intimate that there has been any want of fullness and clearness in your answers. If I have not exactly understood them, I am entirely willing to admit that it has been my own fault. Pursuing for a moment further the subject of the last question, I will say that, for the purpose of short-circuiting the incoming coil, it is not material, as I suppose, what precise form of brush is used, so it makes and preserves the short circuit for the necessary length of time. This may be accomplished by a single flat brush and spirally slotted commutator, or a flat, flexible brush, or a compound brush, all operating in substantially the same way, provided they make and maintain the short circuit at the x>roper time, and for the necessary length of time. I recognize, of course, the necessity of special construction where it is desired to vary the overlap during operation. Is this also correct? A. Properly interpreting your statement with reference to the necessity of a special construction to secure variable overlap, your supposition is correct. This special construction is necessary where the spark-less condition is adjusted for during variations of circuit resistance in the particular types of machines we have considered which possess improperly proportioned pole pieces. Where it is necessary to secure sparkless commutators for variations of circuit resistance by an adjustment of the brushes, a construction of the djmamo which will permit this adjustment without other injurious actions must be employed. In an arc-lighting series dynamo, a variation of circuit resistance varies the current. Decreasing this resistance increases the current. Violent sparking accomxranies the action. We have here, then, two abnormal conditions to be adjusted for. An adjustment which corrects for the one, and does not correct for the other, would be of no value, and no one would contemplate its enrployment. The sxrarking would destroy the commutator. The excessive current would destroy the coils of the machine, and render the lamps ineffective in their action. Therefore, in adjusting the brushes for the injurious effects resulting from changes of circuit resistance, such a construction of the brushes and commutator must be employed as will admit of rotation of the brushes .and a reduction of the total electromotive force of the machine at the same time the sparking is mitigated. To secure this the proixer action resulting from overlap must be acquired by the emx>loyment of a suitably constructed commutator and brush. If we confine your question to a consideration of sirark-ing alone, and leave out of consideration the question of variations of circuit resistance, then your supposition I believe to be correct.</p> <p>“O. Q. 96. I will suppose, for my present question, the enrployment of a compound brush of invariable sx>read,- and that its two divisions are separated so far that they will form contact with the two adjacent segments of ihe commutator simultaneously. At the instant after contact has been formed between the forward brush and the segment, passing under it, one of these brushes resting on one segment, and the other on the one following, the short-circuiting of the incoming coil would be complete through the compound brush. Now, if i understand you rightly, at that instant of time the incoming coil presents a high resistance to the flow of current from that, side of the armature in which it is (touting; and henee, 1 take it, (.he greater part of the main current must how by way of the forward segment and the forward brush. As tlie short-circuited coil loses its self-induced current, and acquires current in the other direction, the resistance which H offers to the ilow of the main current decreases until at the instant when the forward brush breaks contact with tlie leaving segment. Lf the commutation has been perfectly performed, it, presents no resistance to the flow of the main current, and hence the main current takes that path without any spark between the commutator segment and the brush. Is that a correct statement of that part of tlie process'!1 A. It is.</p> <p>“C. Q. S>7. It follows, 1 take it, therefore, that tlie amount of current which flows through tlie forward brush passes through a variation from a maximum to a minimum between (lie time of its iirst contact with each segment and its separation from that segment; tlie maximum including substantially the whole current from Uie coils on that side of the armature, and minimum, in the case of perfect commutation, a. practical aero? A. Yes; this is a correct way to take an instantaneous view of each possible position of the apparatus during the excursion of a segment under a brush. The practical effect of this is to procure an average division of tlie main current of both halves of the armature through tlie two members of the brush. Your question would lie a 'more strictly correct statement if, for tlie phrase, “the maximum including substantially the whole current, from the coils on that side of tlie armature,’ you substitute tlie phrase, ‘tlie maximum being substantially the whole current of the dynamo.’</p> <p>“0. Q. 08. In such a case, is the relative distribution of the current between (he two brushes affected by the completeness or incompleteness of the commutation; and. if so, how? A. The effect upon this forward brush of incomplete commutation would be to slightly vary the value, of (lie current flowing through the forward brush, hot us lake a practical case for consideration. AVith a dynamo operating a series of arc lamps, and the brushes of the type under consideration operating to collect the current, with proper and complete commutation, we have the condition point*.id out in your last preceding question and my answer thereto. Now, if we cut out a part of Ihe lamps, and observe the actions at the dynamo and in the main circuit, we will And a largely increased current in the main circuit and in the coils of the dynamo, and we And the condition of incomplete commutation. Before making the change in the number of lamps, the current in each member of the compound brush possessed an average value. This average value for each brush we And increased in proportion to tlie increase of the current in the circuit, modified slightly by the effect of underoommulation. The current in both brushes increases. That, of one brush will increase slightly more than that of tlie oilier, because of the effect of undercommutation.</p> <p>•‘(J. Q, 90. The effect of undereommutation is to increase the resistance of the incoming coils to the flow of current from that side of the armature, is it not, and lienee to increase slightly the rola live ilow of current through the forward brush? A. You do not slate it all. The effect of undorcommu-laiion is io increase the apparent resistance of ihe coil to current flowing up from tlie .forward coils of the armatures, and also to decrease the resistance of this coil to the current flowing up from ¡he hack coils of the armature. Thus the value of the definite portion of the total main eumnit, which shall flow through the forward brush is determined, Once determined, any variation in this current is likewise variation of the current in the forward brush. Indeed, it, is upon this fact that, my answer to your interrogatory 9,‘> was based, and I have practically demonstrated tlie correctness of the fact.</p> <p>Q. 100. If a magnet were placed in circuit with (he forward brush in such case, but not with the rear brush, the current in the magnet would experience not only tlie direct changes of the main current strength of the dynamo under changes of resistance in the circuit, but also a class of minor changes depending upon variations in the completeness of commutations produced by such changes in the main current. Is that correct? A. Taking an instantaneous view of the condition of this magnet, it would theoretically experience minor changes resulting' from the effect of improper commutation. These minor changes would not determine in any degree the variations in the magnet, but would possibly modify the effect of such changes to a limited extent. Practically speaking, the result of such a construction, which, of course, is that employed in the adjuster apparatus of patent 223,059, is to produce in this magnet an average current which is a fixed and definite portion of the main current, the changes in which control the actions of this magnet. In practice, the modifying effect of improper commutation is of no importance, and is the effect of a collateral condition brought about simultaneously with the change in current strength. To take a practical case, if such a structure were employed upon a dynamo carrying a given load, with proper commutation had at the brushes, a definite portion of the current of both halves of the armature would be directed through the forward brush and through the electro-magnet connected to that brush, as suggested in your question. Now, upon cutting out a portion of the lamps, the strength of the current of the machine would be substantially increased, and, of course, the strength of the current in this electro-magnet would'be increased. Another result of the increase in the strength of the current would be undereommutation, which will have the effect to again slightly increase the current flowing through the magnet. It does not produce a current in the magnet, but simply acts to increase very slightly the proportion of the main current which at that instant flows through this magnet. Upon an adjustment of the brushes to reduce the main current, the current of the forward brush is likewise reduced and at the same time the result of proper commutation is secured.</p> <p>“C. Q. 101. Are these variations the variations to which you have referred in your previous testimony as determining the action of the controller magnet in 'the adjusting apparatus of Fig. 2 of patent 223,659? A. Yes; they are. This controller magnet is in circuit with the forward brush, and a definite portion of the main current is shunted through its coils by virtue of these actions which I have described. It is in response to the variations of this current that the controller magnet of the adjuster apparatus shifts the brushes to the point upon the commutator where proper commutation is effected, and where this definite portion of the main current flowing through the controller magnet is maintained constant, and consequently where the main current in the exterior lamp circuit is maintained constant. That this action of the apparatus of the automatic adjuster was contemplated by the inventors is apparent by a consideration of the drawing, Fig. 2, and the specification. The statement on page 2, lines 89 and 95, inclusive, as follows: ‘The accessory collector, O, may be directly connected with the main collector, 0, or in certain cases completely dispensed with, as, with a proper adjustment effected on one side of the axis, the opposite collector may be set to a position corresponding thereto,’ — means that brush, Os, connected directly to bíush, C, forming a direct compound brush, is the equivalent of, and produces precisely the actions of, brush, C2, connected through magnet, A, to brush, O. J It is apparent that these acts of commutation that I have described are to take place alike in both the upper and lower compound brushes. It is also evident that the resistance of magnet, A, must be low enough to offer no substantial interference to proper commutation. It was upon a consideration of this portion of the specification, and the knowledge I possessed of the actions in commutation, that I employed a low resistance in magnet, A, of the apparatus I constructed, which apparatus has been' introduced in evidence by the defendants in this case. The magnets employed by the complainants in their exhibits of the same adjuster apparatus, while of higher resistance than that employed by me, were still of low-enough resistance to permit the proper operation of the apparatus as an adjuster, but were, from my standpoint, of too high resistance to permit proper commutation after the manner pointed out in the patent. In all of í lie apparatus employed by tlie complainants to represent the adjuster of patent 223,(55!), proper commutation was secured by means of an overlap or collecting area of the brushes, independent of that secured by the accessory brush. The magnet to represent magnet, A, in complainant’s apparatus was purposely made high to preclude tlie possibility of the accessory brush and its circuit through magnet, A, acting to produce commutation. That tlie patent did not contemplate such a construction is certain, and the evidence of tills fact may be found in the portion of the specification quoted, when taken in connection with the diawing and the rest of the specification.</p> <p>“O. Q. 102. I perceive now dearly whore it is that I have been proceeding under a misunderstanding' of your views throughout tills' entire cross-examination. I have assumed throughout that,'in the construction of the spark-adjuster apparatus, there was provided, first, a main collecting brush sufficient for the purpose of commutation without spark, provided it was set at tlie right place on (lie commutator, and. that the accessory brush was something additional to that. Being now advised that you have, all along, held a different view, viz. that the accessory brush of the spark adjuster of patent 223,<>.'>!> is simply the forward half of a compound brush, your whole testimony assumes a new meaning; and I was therefore entirely wrong in propounding question 93 in the supposition that I was looking at the matter from your standpoint. I take it, from what you now say, that in the apparatus made by yon, and in all the testimony given by you in respect to the operation of the apparatus of patent 223,H5!>, we are to understand that what is called 1he ‘accessory brush’ Is simply the forward member of a. compound brush. Am 1 right in that? A. In your present question. you appear io have discovered a distinction between a main brush and an accessory brush, employed together upon a commutator, and a structure known as a ‘compound brush.’ No distinction can be made between these nvo structures. They are one and the same, mechanically considered; and ¡lie operation of the apparatus is the same, whether either structure is employed. Upon the addition of an accessory brush to an existing structure, such accessory brush or feeler becomes at once a part of tlie compound brush, and at once enters into, and partakes of the functions and duties of, such compound brush. If this were not true, the apparatus would be incapable of operation. There is no real basis for a misunderstanding' between ns on this point, I think this will be evident to you if I suggest a question you might have put to me, and its answer, viz.: ‘Q. If a magnet were placed in circuit witli tlie forward brush in such a case, but not in circuit with tlie rear brush, what would be the effect of the resistance of the magnet upon the current which ordinarily finds passage through such forward brushV’ This question, if asked after O. Q. 99, would be answered as follows: ‘A. The presence of the resistance of an electro-magnet in circuit with the forward brush acts to vary its capacity to effect commutation to an extent dependent upon the amount of such resistance. Tlie forward brush, in this event, becomes an accessory brush, and performs a smaller portion of tlie commutation, the rear brush performing a larger proportion of the commutation. In case of the employment of such a magnet, the proportion of (lie main current which shall flow through the accessory brush and magnet and the rear brush will depend upon tlie resistance of the magnet.’ (End of answer.) Your assumption in your present interrogatory that throughout there was provided, first, a main collecting brush sufficient for the purposes of commutation without spark, provided it was set at the right place on the commutator, and that the accessory brush was something additional to that, is quite correct, if you assume, as it seems to me you must assume, that tlie added accessory brush, when added, becomes a part of the system of commutation. Sparking always takes place at the tip of tlie brush last in contact with tlie moving segment. This, in the adjuster apparatus, is the tip of the accessory brush. Tlie distinction drawn is a dis-unction of words only. The real misunderstanding, if indeed there be a substantial misunderstanding between us, is found in your supposition made in O. Q. 93, — that the magnet in the accessory brush circuit responded to differences of potential between adjacent segments in a secondary manner; that is to say, a change in the main current caused a new condition, as to potential difference, to exist between the segments, and in response to this new condition a new current was set up in the magnet. The fact is, this new condition of potential difference at the segments, while being a result to be corrected for, is but a collateral condition, and in no wise a determining condition. Even assuming the correctness of the distinction you seek to make in your present question, I fail to find a basis for the statements (•obtained in your interrogatory 93 of the operation of the adjuster apipara-tus in the supposition of your understanding of my standpoint, as stated in your present question. I have made a thorough and a practical demonstration of my views, and am satisfied as to the correctness of these views, i have- employed dynamos in which a main brush upon a spirally slotted commutator performs the commutation in conjunction with an accessory brush placed in advance of that main brush. Such accessory brush became at once an operative part of the main brush precisely in the manner contemplated in patent 223,(⅞9. This construction was realized in the employment of the Weston five-light dynamo of ’79, and in the Tliomson-Houston ’79 three-coil dynamo. I have also employed a compound brush with a straight-slotted commutator, which is the precise arrangement of the patent with the electro-magnet, A, of the adjuster apparatus connected in circuit with the forward member of the compound brush, this forward member becoming an accessory brush by reason of the connecting into its circuit of a magnet. 'I’liis construction was realized in my operation of the apparatus of patent 223,059 upon the Sperry dynamo, and upon the Western Electric dynamo, as well as upon the Weston five-light dynamo, in which latter case, in one of my demonstrations, I removed the spirally-slotted commutator, and substituted therefor the straight-slotted commutator and the precise brush arrangement shown in patent 223,059. I have, also, in these demonstrations, employed various resistances in the winding, of the controller magnet representing magnet, A, of patent 223,059. These practical demonstrations showed conclusively that in every employment of this apparatus there was but one mode of operation, and that the variations which did occur were < variations in degree, and not in kind. A variation in the resistance of the magnet varied the amount of current flowing through that magnet, but not the effect of that current. ’ A variation in the first adjustment of the amount of overlap varied again the amount of current in magnet, A, but in no wise did it vary the effect of the current upon the apparatus to adjust the brushes in response to changes in circuit resistance. Variations of the distribution of the overlap between the main and accessory brushes, which is the point directly under consideration, affected the amount of current in magnet, A, but not the effect of that current upon the magnet.</p> <p>“O. Q. 103. Your answer is altogether pertinent to the general subject-matter of discussion, but does not quite meet the precise point of my inquiry; that is, whether we are to regard your testimony throughout the case as predicated upon the assumption that it is a proper construction of the apparatus of 'Fig. 2, of patent 223,(¡59 to use what is there called the ‘accessory brush’ as the forward division of a compound brush, and thus cause the entire process of commutation to take place between the contacts of what is there called the ‘main brush’ and the accessory brush. A. 1 sought, in my last preceding answer, to make it perfectly clear that in any possible construction of this apparatus the accessory brash at once entered into, and became a portion of, the main brush, in the process of commutation.' A brush could not be placed upon a commutator in advance of a main brush, and be connected to that main brush, without becoming a forward division of .a compound brush; and in the employment of any possible construction of this apparatus, if a sparkless condition is maintained at the brushes, this accessory brush must, in some degree, take part in the entire process of commutation.</p> <p>“O. Q. 104. You still have not answered my question. I don’t ask you whether any assumption that you have heretofore made is right or wrong, or to justify it. I simply ask whether we are to regard your testimony throughout the case as predicated upon the assumption that it is a proper construction of the apparatus of Fig. 2 of patent 223,059 to use what is there called the ‘accessory brush’ as the forward division of a compound brash, and so causo flic eniiro process of commutation to take place between the contacts of wlmt are there calk'd the 'main and accessory brushes.’ A. I have stated that an accessory brush, having a magnet included in its circuit, and applied to a commutator in addition to the already existing main brush, formed a compound brush. The accessory brush would bo the forward division of this compound brush. My testimony in this case is based upon the assumption that it is a proper construction, and, indeed, the only possible construction, of the apparatus of Fig. 2 of patent to employ this structure, and to thus cause the entire process of commutation to take place between the different members of this compound brush, consisting of a main and accessory brush.</p> <p><). lor>. It is a necessary result of the const,ruction of the apparatus, mentioned in your last answer, is it not, that, in order to secure a. i>roper working of the dynamo, a large fraction of the main current — approaching to half of it — shall flow through the accessory brush? A. No, indeed; it is not. if ihe accessory brush is connected direct, to the main brush, then this would be irue; hut if connected through a resistance, an of magnet A, this is not true. In Fig. 2 of patent 22,'!,(>7>9, accessory brush, 0», is shown connected direct, to the main brush, (’, and substantially half of the current of the machine will flow through this accessory brush, C»; that is to say, there will be conducted through accessory brush. (J;i, an average current substantially equal to half of the main current. Likewise, through the main brush, c\ ii> winch accessory brush, (?», is directly connected, there will ¡low an average current etpial to half the current of the machine; but with accessory brush, (⅛, which is connected through magnet, A, to main brush, C, 7lie presence of the resistance of magnet. A, in its circuit, creates a condition in commutation pointed out in my previous answers, the result of which is to cause a smaller proportion of the entire main current to flow through ibis accessory brush, 0», and magnet, A. If the magnet is of low resistance. as ! believe the patent, contemplates, a larger proportion will flow through accessory brush, (X than would flow through this brush with a high resistance of magnet, A.</p> <p>“(’. Q- loti. In the a pitara tus constructed by you as a reproduction of the spark-adjuster apparatus the proportion of the current flowing- in the accessory circuit was, in a number of cases, substantially half of the entire current. was it net? Í refer to the apparatus described by you in your original (¡('position in this case. A. The current varied in these original automatic adjustors. In some of them an average current, substantially half of the main current, was found to flow through the forward brush and magnet, A. In some cases this average current was equal to'less than half of the mam current, and in some cast's even more than half. The resistance of magnet. A, in iht'se early devices, was very low. which, indeed, is the proper construction of magnet. A. as indicated by the patent. In the later structures. based upon patent 22;5,(>r>!), a much higher resistance was given magnet. A, and (lie average current through this magnet was, with this construction, much smaller.</p> <p>‘V. (). 107. In the apparatus put in evidence by the complainant as reproductions of Fig. 2 of parent 22:i.t>r>9, and which you saw in operation at. Lynn, there was. as I remember, a complete provision for commutation by the main brush independently of the accessory-. 'Phis was accomplished iii the case of spark adjuster No. 1, which was applied to the 1870 T. ii. dynamo by a flat brush and a spirtilly-slotted commutator. In the one applied to the Brush machine, this was accomplished by flit' alternating distribution of the commutator segments. In the one applied to the Fuller-Wood machine, it was accomplished by a compound brush. In each of these eases file machine was supplied with a brush suitable for the process of commutation, provided it was set in the right place independently of the accessory brush. Is not this your recollection of the construction of those devices? A. Mach dynamo was certainly provided with a commutator and brushes providing overlap, as suggested in your question; but, when put in operation, each dynamo was provided also with accessory brushes, and the accessory brushes were connected to the main brushes. In the process of commutation the accessory brushes performed the distinct functions of the main brushes in combination with them. In the Thomson-Houston throe-coil ’79 dynamo, a spirally-slotted commutator was provided. Two main brushes, one above and one below, bore upon this commutator. An accessory brush in advance of the upper main brush also bore upon the commutator, and was connected through magnet, A, of the apparatus, and thence to the main brush. Another accessory brush was placed in advance of the lower main brush, the second accessory brush also bearing upon the commutator, and being connected directly with the main brush. The complete act of commutation took place through the medium of the compound brushes thus formed. A removal of either of the accessory brushes, without an adjustment of the brushes in a rotary direction, produced violent sparking, showing conclusively that the overlap provided in the main brush was not alone sufficient to produce perfect and proper commutation, under the existing conditions of use. Indeed, I was informed by Mr. Harthan that the lower accessory brush was necessary to balance the upper accessory brush to secure sparkless commutation. The same or equivalent arrangements were found in the other dynamos shown me at Lynn. In the American dynamo shown me at Lynn, the upper brush was composed of two separate brushes connected directly together, and an additional accessory brush which was connected through magnet, A, of the adjuster apparatus, and thence to this double upper brush; the whole structure forming a compound brush, of three leaves. I have criticised this structure as being something of a departure from the construction pointed out,in the patent, in which but two brushes are shown, viz. a main and an accessory brush, in either of the compound brushes of the apparatus.</p> <p>“C. Q. 108. During the operation of those several devices, measurements were made of the currents flowing in the. accessory circuits, and they were found to be relatively small, were they not? A. They were, and this was due to the amount of resistance in the magnet, together with the distance the accessory brush waá placed in advance of the main brush, and also to the amount of overlaid given to the main brush. In Pig. 2 of patent 223,039, no overlap is provided in the main brush, the entire overlap of the apparatus being equally divided between the main and accessory brushes. This variation from the construction indicated in the patent produces the effect noted, viz. that a small proportion of the main current found its way through the accessory brush and magnet, A.</p> <p>“O. Q. 109. If we suppose the dynamo represented in Pig. 2 of patent-223,659 to be provided with a spirally-slotted commutator, and the main brush to be a broad one, would not the construction there indicated result in an overlap of the main brush? A. Yes, it would; and in such a case the proper place to connect magnet, A, would be directly in the main circuit. In fact, the inventors, when applying this same automatic adjuster to precisely such a modified construction, did so connect this magnet. An examination of the file wrapper and contents of the patent in suit, No. 238,315, reveals the following statement: ‘"V^hen the two ends of a slot are angu-larly displaced with respect to each other, 20° to 30° circumferentially around the commutator, the accessory collecting brushes of patent No. 223,659, above referred to, may be dispensed with, and a single pair only be employed, as O, O', the planes of which are tangent to the circumference of the commutator at opposite points, and parallel to each other, as before stated.’ The italicized portion of the language here quoted was stricken •out by an official action before the patent issued. Your present interrogatory is fully answered by the inventors themselves, in this language. My statements that the main and accessory brushes together performed the commutation of the dynamo in the construction of the apparatus of patent 223,659 are' entirely in harmony with this language quoted from the file wrapper and contents of the patent in suit. Quoting again from the file wrapper and contents of the patent in suit, No. 238,315: ‘Our present method of operating, therefore, so far as it relates to automatic regulation, is based upon the same principles of operation as our previous invention, and consists in an improved construction and mode of use of the apparatus employed in Pat. 223,659. Fig. 2 of the present invention corresponds to Fig. 2 of Pat. No. 223,659, but since only a single pair of collecting brushes, C, O, Fig. 2 {of our present invention), replanes, when used in connection with an obliquely-slotted commutator, the double pair, Fig. 2 {of our former invention), we use the contact-making electro-magnet, A, of our former invention, by placing it in the main circuit of the machine, so as to act in a substantially similar manner to the electro-magnet, M, Fig. 1 {Fat. 223,(559)/ that is, by variations of the main current itself.’’ The italicized portion of which quotation being matter stricken out before the patent issued, we iinrt matter which also bears directly on the point in question. The inventors here state that the operation of commutation being secured witli a single pair of collecting brushes used in connection with an obliquely-slotted commutator, instead of with the double pair in Fig. 2 of patent 223,05b, magnet, A, of the former invention is placed in the main circuit. It becomes an easy matter to interpret the specification of patent 223,05% and 1o determine the intention of the inventor, when we read the language as quoted above.</p> <p>“0. Q. 110. You speak of these quotations as having been stricken out by official action. They were stricken out by the applicants themselves, were they not, by their own amendment of their application? A. Of course, the applicants themselves, by amendment to their application, caused the matter in question to he stricken out. The official action of the examiner in this ease, dated December 7, 1880, suggests to the inventors the striking out of these portions relating to the prior patent, and by an amendment of .January 1, 1881, the inventors, complying with the suggestion of tlie examiner, order these portions referred to stricken from the specification.”</p> <p>The argument for the appellant lias been summarized in ten propositions, which are said to be undisputed, and nearly every one of them either stated in the examination, or admitted on cross-examination in the testimony of Mr. Scribner. They are the following: (1) The running' of a dynamo without spark at the commutator depends upon the proper adjustment to one anothor of three factors which enter into tlie operation. Tlie volume of tlie current affects one of them directly, but there are two others equally important. (2) Tlie variation of any one of these factors produces sparking, and requires a readjustment among them in order to restore the nonspark-ing condition, which it may or may not bo possible to effect by mere movement of the brushes, depending on the type of dynamo to which the apparatus is applied. (3) When tlie adjustment is restored by the movement of the brushes, that movement may or may not restore the former strength of current, depending, as before, on the type of the dynamo. (4) The typos of dynamo here referred to are distinguished as dynamos having a uniform field, and dynamos having a nonuniform field. Both of these types are in common and successful use, and each lias advantages peculiar to itself, in respects that do not iiave any place in this discussion. As a general proposition, it cannot be said that cither type is better than the other. Both are good. (5) The defendants selected for their experiments with tlie spark adjuster dynamos haying uniform fields. Upon such dynamos, when sparking is caused by a variation in tlie volume of current, the movement of the brushes necessary to restore the adjustment upon which nonsparking depends operates also to restore the former current. Hence, oil such dynamos the spark adjuster (subject to the fatal defects in its practical operation already pointed out, resulting from the feebleness of the accessory current, and the instability of its adjustment) will operate as spark adjuster ami current regulator both; performing both functions at the same time, and ny the same movement of the brushes. (6) For the same reason the current regulator applied to the same kind of dynamo will operate as current regulator and spark adjuster both; performing tlie same functions at the same time, and by tlie same movements of the brushes. In such a case, when sparking results from a change of current, and the current regulator restores the former current, it at the same time, and by that process, restores the adjustment of the three factors on the equilibrium among which non-sparking operation depends. (7) But these results do not follow when either of these devices is applied to a dynamo having a nontmiform field, in that case, when a change of current produces sparking, and the spark adjuster moves the brushes to the nonsparking point, it does not restore the former current. And so, also, when a current regulator is applied to such a dynamo, and, upon a change of current, moves the brushes to the point where the former current is restored, it does not, by that movement, restore the nonsparking adjustment. (8) These differences of action are a consequence and proof of the fundamental and essential differences of principles on which the two inventions operate. The spark adjuster looks for tlio point on the commutator at which is found the equilibrium of forces upon which nonsparking depends. Kxcept as affecting that adjustment, it is entirely oblivious to changes in the current. It will follow the law of its organization, and put the brushes at the nonsparking point, and hold them there until the current burns tip the machine. On the other hand, the current regulator cares nothing about sparking, or the maladjustment of forces by which sparking is produced. Upon a change of current, it will move the brushes to the point on the commutator where the former current will' be restored, without the least regard to sparking. If that happens to be the point where the adjustment for nonsparking is restored, well and good. If not, the sparks may melt the commutator before it will stir. (9) To state the distinction in its broadest form: The current regulator depends for its operation on the variation of a single factor in the dynamo, — the volume of its current. The spark adjuster depends upon the intervariation or variation of adjustment among themselves of three factors in the dynamo, of which the current is one, or, to be exact, of which the current controls one. (10) Since the invention of the current regulator, another invention has been made, which supplements the motion of the brushes iiroduced by that apparatus for the regulation of the current by another action, which preserves the adjustment necessary for nonsparking. So that, as the current regulator is now most commonly used, it operates, in full accordance with the law of its organization, to shift the brushes to the points of constant current, entirely regardless of the effect as to siiarking. That is controlled by a distinct and supplementary device.</p>

<p>This was a bill in equity for the alleged infringement of a patent relating to furnace tuyeres.</p>

<p>1. Towage Contracts — Indefiniteness.</p> <p>It is doubtful whether an alleged oral agreement by the master of a steamer to tow a barge on the Great Lakes during an entire season, the master to pay commissions, and the barge owner to give him one-third of the gross earnings, is sufficiently explicit to be enforced.</p> <p>2. Same — Damages for Breach.</p> <p>Where a steamer which had been towing a barge on the Great Lakes abandoned her at Buffalo, in violation of an alleged contract to tow her during the entire season, held, that no damages were recoverable, in the absence of any evidence that if she had been taken along with the steamer and her other barges to Cleveland, she would there have been able to obtain a cargo, or that she would in any event have earned more freight during the remainder of the season than she in fact did earn by employing another steamer to tow her.</p>

This was a libel in personam, exhibited in the court below by the appellee against the owner of the steamer Robert Holland, claiming damages for the death of Erik Anderson, in a collision between the schooner William Aid-rich and -the barge Parana, which barge, with the barge Stevenson, was af the time in tow of the steamer Robert Holland. The collision is asserted to have been causéd by the fault of the Robert Holland.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <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 in the circuit court on the pleadings and proofs, and the bill dismissed. 68 Eed. 627. ■Complainants appeal.</p>

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

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

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>On September 18, 1894, in an action in the court below in which the United Waterworks Company, a corporation of the state of New York, was plaintiff, and the American Waterworks Company, a corporation of the state of New Jersey, was defendant, a judgment for the sum of $1.18,512.50 was rendered in favor of the former, and against the latter. On September 20, 1894, É. HydejRust, the receiver of the-defendant corporation, the plaintiff in error, filed in that court a petition that the execution upon that judgment be stayed, that the judgment be vacated, and that he be permitted to appear specially in the action, and plead to the jurisdiction of the court to enter the judgment, and to make such other defenses to the action as there might be on behalf of the defendant corporation. The United Waterworks Company answered this petition, the plaintiff in error filed a reply to this answer, a hearing was had upon these pleadings, and a judgment was rendered in the court below that the prayer of the petition be denied. The writ of error in this case was sued out to review this judgment.</p> <p>The material facts admitted by these pleadings are these: The American Waterworks Company was a corporation organized under the general laws of the state of New Jersey. Those laws provided that whenever a corporation organized under them became■ insolvent, and was not about-to resume its business with safety to the public and advantage to its stockholders, the chancellor might enjoin its officers and agents from exercising- any of its privileges or franchises, from collecting or receiving any debt, or from paying out, selling, assigning, or transferring any of the estate, moneys, funds, lands, tenements, or effects of the company, and might appoint a receiver or trustee, with full power to demand, sue for, collect, receive, and take into his possession all the goods and chattels, rights- and credits, moneys and effects, lands and tenements, books, papers, ehoses in action, bills, notes, and property of every description, belonging to the company at the time of its insolvency or suspension of business, and to sell, convey, or assign all the said real or personal estate. Those laws further provided that the receiver or trustee so appointed should be taken to be a receiver or trustee for the creditors and stockholders of the company for which he was appointed, with full power and authority to institute suits at law or in equity in his or its name, as receiver or trustee, for the recovery of any property or demands existing in favor of the company, and with full power and authority to compound and settle with any debtor of the company, or any person having possession of its property, or in any way responsible to the company on such terms as the receiver or trustee should deem beneficial. Revision 1877, p. 189 et seq., §§ 70, 72, 77. On April 8, 1892, certain creditors and certain stockholders of the American Waterworks Company, which was then insolvent, filed a bill in the court of chancery in the state of New Jersey for an injunction against its officers and agents, and for the appointment of. a receiver or trustee, pursuant to these statutes. On July 20, 1892, the chancellor appointed the plaintiff in error receiver of the property of said eorporation, upon this bill, with xiower to discharge all the duties imposed upon him by the statutes of New Jersey and by the appointment of the chancellor, and enjoined the corporation, its officers, directors, agents, and attorneys, from receiving any debts due to the corporation, from paying or transferring any of its money or property, from continuing its business, from exercising any of the franchises and privileges of its charter, and from attempting to use the name of the corporation, or any of its privileges or franchises, for any purpose whatever. In February, 1892, Clarence II. Venner was, and ever since has been, one of the vice presidents of the American Waterworks Company, and that corporation had no president. In February, 1892, lie employed Messrs. Teller & Orahood as attorneys for the American Waterworks Company in the state of Colorado, and authorized them to appear for that company in all litigation in which the corporation was interested in that state. Teller <& Orahood subsequently became members of the firm of Teller, Orahood & Morgan. Clarence H. Venner and the American Waterworks Company appeared in tlie chancery court of New Jersey, and do-: fended the suit, which resulted In the appointment of the plaintiff in erról-as receiver and trust.ee for the creditors and stockholders of that corporation, and in enjoining- him, his corporation, and all its agents and attorneys. from exercising any of the powers or franchises, or using the name, of that corporation, for any purpose whatever. In January, 1894, Messrs. Teller & Orahood were fully advised of this injunction, and of the appointment of the plaintiff in error as receiver and -trustee under these statutes of New Jersey, and of his qualification as such, pursuant to the decree of the chancery court of New Jersey. Clarence H. 'Venner was in 1894 the president of the defendant in error, the United Waterworks Company, at the same time that lie was vice president of the American Waterworks Company. On August 18, 1894, the United Waterworks Company tiled its complaint in the court below for the recovery from the American Waterworks Company of 8100,000 and interest, upon certain promissory notes, which had been made in 1891 by the American Waterworks Company, by O. H. Venner and another of its officers, which were, payable i.o the order of G. H. Venner & Co., and which, the United Waterworks Company alleged, had been purchased by it for value. The American Waterworks Company was not then doing' business in the state of Colorado, nor had it been for many months, but the summons in that action was, on the same day that the complaint was filed, served on Clarence H. Venner, in Denver, Colo., as a stockholder and a vice president of that corporation. On the same day Messrs. Teller, Orahood & Morgan entered tlie general appearance of the American Waterworks Company in that action, hut they never demurred, answered, or took any further steps therein. Upon this service and appearance a default was entered, and the clerk of tlie court, on September 18, 1891, entered a judgment on this default for $118,512.60. The plaintiff in error alleged, in his petition to vacate this judgment, and the United Waterworks Company, in its answer, denied, that tlie American Waterworks Company had a defense to the promissory notes on the ground that C. H. Venner & Co. owed tlie Waterworks Company more than tlie amount of the notes, and that the United Waterworks Company took them subject to this defense. Upon this state of the case, the court below denied the application of the plaintiff in error for a stay of execution on the judgment, for its vacation, and for leave to interpose pleas to the jurisdiction of the court, and defenses to the recovery this judgment evidences. This ruling is xlie foundation of all the assignments of error in this case.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Iowa.</p> <p>This was an action by Mayer Wile, Isaac Wile, and Herman Wile, doing business as Wile Bros. & Co., against the Farmers’ State Bank of Charter Oak, Iowa. The circuit court, before which the case was tried without a jury, gave judgment for the defendant. 08 Fed. 759. Plaintiffs bring error.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>This was a snit by D. McDonald against M. D. Good and Thomas Kirby for the dissolution of a partnership, and to secure the cancellation of a chattel mortgage. The circuit court rendered a .decree for the complainant. Defendant Kirby appeals.</p> <p>On the 1st day of June, 1892, M. D. Good and D. McDonald formed a co-partnership to conduct a retail dry-goods business at Abilene, Kan., under the firm name of M. D. Good & Co. The original capital of the partnership was 84.000, of which each partner contributed one-half, which was invested in the xuirehase of a stock of goods. On December 31, 1892, 82,000 was added to the capital of the firm, of which each partner contributed 81,000. Each partner paid his share of the caintal to tlie firm in cash. McDonald resided at St. Joseph, Mo., and Good at Abilene. Kan., but he was a commercial traveler, and much of the time away from home. The firm employed one C. G. Hawk to conduct the business. Good, without the knowledge of his partner, borrowed from the appellant, Tilomas Kirby, the money to make up his share in the capital of the firm, giving his individual note therefor, signed by his wife, Annie Good, as sunny, and indorsed by O. G. Hawk. This note was renewed three or four times. When the capital was increased to ¾>,000 Good borrowed from the appellant his share of the increase, namely. 81.000; and that sum was added to the 82,000 previously borrowed, and a note given for $3,000, signed as the first note and the several renewals thereof had been. On November 7, 1893, tlie appellant, Thomas Kirby, brought suit by attachment against M. D. Good, Annie Good, and G. G. Hawk on the last renewal of the ,83.000 note. On the 8th of November, 1893. the appellant, Kirby, brought suit by attachment against D. McDonald, the appellee, to recover the 83,000 loaned to Good, alleging that the $3,000 was loaned to M. D. Good & Co., and was a debt of the partnership, and on the 9th of November, 1893, the appellant induced M. D. Good to give him a note for the 83.000 of borrowed money, signed in the firm name of M. D. Good & Co., and on the same day Good, without the knowledge or conseut of his liarrner, executed, in the firm name, a chattel mortgage on the slock of goods belonging to the Arm, to secure tlie note last above mentioned. As soon as the appellee heard of these transactions, lie filed this bill, on the 13th of November, 1803, making M. D. Good and the appellant, Kirby, defendants. and praying for a dissolution of the partnership between himself and M. D. Good, and a winding up of the partnership affairs, and that the chattel mortgage executed by Good in the firm name on the partnership stock of goods to secure the note given by him to the appellant, Kirby, on the 9th of November, 1893, be declared void, and that the $3,000, borrowed by Good from the appellant, Kirby, be decreed to be the personal debt of Good, and not a liability of the firm of M. D. Good & Co. Good did not answer the bill. The appellant, Kirby, answered alleging the $3,000 was loaned to Good for partnership purposes. The lower court rendered the decree substantially as prayed for in the bill, and the appellant, Kirby, brought the ease here by appeal.</p>

<p>Laches — What Constitutes — Fraud—Rescission of Conveyances^</p> <p>The right to rescind conveyances, arising out of the collusion of the vendor’s agent with the purchaser, and their concealment of the fact that the land was valuable for coal-mining purposes, as well as the right to recover damages from the purchaser, held to have been lost where, after obtaining knowledge of the facts, the vendor received the notes and mortgages for deferred payments, and thereafter neglected to dis-affirm the sale for three years and three months, during which the lands were conveyed to other parties, who expended large sums in prospecting and developing them.</p>

<p>Appeal from th.e Circuit Court of the United States for the District of Kansas.</p> <p>This was a suit by the Central Trust Company against the Newton Water Company for the foreclosure of a mortgage. John E. Ford filed an intervening petition, praying for payment of a claim against the water company out of the property in the receiver’s hands. The circuit court dismissed the petition. The intervener appealed.</p> <p>On the 15th day of January, 1887, the Newton Water Conrpany, a corporation of Kansas formed for the purpose of supplying the city of Newton, in that state, with water, executed a mortgage to the Central Trust Company of New York, on its xilant and all additions thereto which might thereafter he made, to secure the payment of its first mortgage bonds. Default was made in the payment of the mortgage debt, and in a suit brought'to foreclose the mortgage a receiver was axiiiointed on the 31st day of July, 1891. In 1888 the water company undertook to improve its plant by putting in a number of “Wag-ner Steam Wells.” The intervener, Ford, was the superintendent of the water company from 1885 to 1891, at a salary of $000 per year. He was also a plumber, and had the privilege of tapping the mains and doing plumbing. He agreed with the water company to make the connections between the Wagner Steam Wells and the mains and pipes of the company, and to furnish the labor and materials therefor. This work was completed on the 14th day of Ai>ril, 1889. The water company failed to pay for this work and materials, which amounted to $3,424, and on the 1st day of October, 1890, executed and delivered to Ford its two negotiable promissory notes, due in 60 and 90 days, resxiectively, — one for the sum of $2,320.45, and tlie other for tlio sum of $2,000. The sum of these two notes included the amount due Ford for making' the water connections, and, in addition thereto, $000 for his salary as superintendent for the year 1800, and 10 per cent, interest on the whole from the 1st day of .January, 1800. Before the maturity of these notes, Ford indorsed and transferred them to one of his creditors, as collateral security. In his testimony he says: “I turned the notes oyer for security for a debt that I owed the United States Wind-Kngine & Pump Company of Batavia, Illinois, at Kansas City, Missouri. I presume they have them yet.” The total cost of the Wagner Steam Wells and connections was $5,151.20. To enable the water company to pay for these wells and connections, the bondholders consented Unit the trustee in the mortgage might deliver to the water company $10,000 of the company’s first mortgage bonds; and the bonds were delivered accordingly, and sold for $0,000 or $0,500, but only $2,500 of the sum realized therefor was applied on the debt incurred for the wells and connections. The wells and connections proved to be of little utility, and added little or nothing to the value of the plant. Early in 1800 the water company authorized Ford to collect all past-due water rents and all rents to accrue, and to apply the same to pay his “salary and for other work.” In pursuance of (his authority Ford collected water rents amounting' to more than the sum due for making the connections with the Wagner Steam Wells; but these collections were not applied to pay the debt created for making such connections, but were applied to pay Ford’s salary as superintendent, and for work done by him during the years 1890 and 1891. On the 22d day of February, 1892, Ford filed his petition of intervention in the foreclosure case: praying that the receiver therein might be directed to pay him the amount of the claim for making the connections with the Wagner Steam Wells, and that, if the receiver had not sufficient funds to pay the claim, it be paid out of the proceeds of the sale of the property. The court below dismissed the petition, and the intervener, Ford, brought the case here on appeal.</p>

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

<p>Bill by the Northwestern Mutual Life Insurance Company against the Cotton Exchange Real-Estate Company and the directors and stockholders therein.</p> <p>Between 1S75 and 187S, William D. Black, one of the respondents, — a cotton commission merchant and general speculator, — conceived the project of erecting a large building in a part of the city of St. Louis which, prior to about 1875, was the business center of the city; but the tendency of trade and commerce to other parts of the city had greatly depreciated real estate in the given locality. His scheme was to bring back this trade and business to its old anchorage. Accordingly he bought a site for the proposed building, at a cost of about $25,000. Shortly afterwards he failed in business, and, unable to carry out his scheme he induced the respondents William T. Wilkins and Leonard Mathews to come into the undertaking; and with him they organized a business corporation, under the state laws, known as the St. Louis Cotton Exchange Building Conrpany, designated hereafter the “Building Company,” with a capital stock of $50,000, divided into shares of $100 each, and about equally distributed among said parties. Thereupon Black transferred to this cori>oration said building site for the nominal consideration of $40,000,— $10,000 in cash, and $30,000 in the bonds of the company. In order to cover said bonds, and raise $20,000 to lift incumbrances on said property, and aid in the erection of said building, in March, 1881, the company issued $50,000 in bonds secured by deed of trust on said property. The evidence shows that said Black, as further inducement to said Wilkins and Mathews to enter into said undertaking, turned over to each of them $10,000 of said bonds.' He had also succeeded, while working up his scheme, in obtaining, by way of bonuses from persons owning real estate in that locality, subscriptions amounting to $40,000, which were turned over to the corporation. After the company had proceeded in the erection of said building to a point where only about $8,000 or $9,000 were required to complete it, the stockholders and directors, who were one and the same, conceived the project of organizing another coriioration, with a capital stock of $125,000, with like purposes of the first, and transferring to the new company the iwopcrty and good will of the old company. This charter was obtained about March 30, 1882, under the corporate name of the Cotton Exchange Real-Estate Company. The capital stock of $325,000 was divided into 1,250 shares, of $100 each, one-half of which was certified by the stockholders to have been .paid in cash. But the'matter was arranged substantially as follows: The real estate and building were valued in the transfer at $200,000, of which $125,000 was called cash, and the remaining $75,000 was paid in bonds of the new company, which were divided among the three stockholders. The $125,000 so-called cash payment was thus paid by the transfer of the real estate. William L. Black, before the consummation of this reorganization scheme into a new company, failed in business, and to liquidate his indebtedness to the other respondent, A. G. Black, his brother, residing in the city of Xew York, all of his stock in the old company was transferred to A. G. Black, except one. share, which was retained by William L. Black to enable him, as a resident of the state, to act as director of the corporation in the place of A. G. Black. When the stock was issued in the new concern, and the $75,000 bonds were issued, the same was issued and hold in the name of the other respondent, Silas B. Jones, .in trust for the benefit of said A. G. Black; the said William Tj. Black continuing- io hold a share of stock in the now company to enable him to act as director, hut which in fact belonged to A. G-. Black. The $75,-000 of bonds aforesaid were sold to the complainant, a nonresident corporation. In 1887 the real-estate company defaulted in 1he payment of interest on said bonds: and in April, 1888, the deed of trust given by the company on said building to secure their payment was foreclosed, and at the sale ¡hereunder the complainant became the purchaser, at the price of 850,000, leaving'at, that time about $80,000 of the debt unsatisliod. The plaintiff obtained judgment, against the corporation for the balance of said debt, amounting at the date of rendition to about $85,000. After return of nulla bona on the execution issued thereon, the complainant brought this suit to recover front the stockholders the amount of said judgment. The hill counts upon two principal grounds of recovery: First, that the defendant stockholders had not fully paid tip the amount of their stock subscribed; and, second, ¡hat the defendant directors and stockholders, after they knew the corporation was insolvent, appropriated its remaining- assets to the payment of unsecured debts claimed by them against the corporation, thereby preferring themselves, as creditors, to the exclusion of all other creditors of the corporation.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>These suits involve a controversy in-regard to the right of the respective parties to an artificial ice plant in the city of Chicago, and to the lot on which the same is situated. The facts and the evidencie are quite voluminous. There are hills and answers, and cross hills and answers, all finally consolidated in one suit. The matters involved have heen several times referred to a master, and reports made. The first and principal report was set aside, in the main, hy the court upon exceptions, and a decree rendered against the opinion and conclusions of the master.</p> <p>The facts, so far as may he necessary to state them for the proper consideration of the questions involved, are substantially these: Arthur It. Clark and F. O. Pierson, being desirous of engaging in the manufacture of artificial ice in the city of Chicago, applied to Thomas Purcell in December, 1890, to buy or lease from him some ground on which to construct'a plant for that purpose. They wanted a lease; for ten years, but Purcell did not wish to let them have the ground for more than five years, except ui>on a revaluation. The final agreement between the parties was lhat Clark and Pierson should take a lease for five years at a monthly rent of $50 a month, and pay the taxes and water taxes, with the privilege of another five years at a revaluation at the end of the first five, to be settled by arbitration or otherwise, as the parties should agree. By its terms the lease was to commence to run on .January 3, 185)1. The premises leased were the N. 175 feet of the W. ½ of lot 3, and the 10. 22 feet of lot 4 in block 1 in Cook and Anderson’s subdivision of the W. ½ of the N. 10. ¼ of section 24, In township 39 N., range 13 B. of the third P. ¾1., otherwise known as “Street No. 3278,'’ on West Twelfth street, in the city of Chicago, Cook county, 111. The understanding was that a written lease was to be executed, embodying these terms, and also giving to Clark and Pierson the right of ingress and egress at the rear of the lot demised. Clark and Pierson paid a month’s rent in advance, and went, into possession, and built a valuable building and plant for the manufacture of ice, with the knowledge and consent of Purcell, who was to cause to be made out a written lease to be signed by the parties. Purcell did soon after have duplicate leases drawn up, but Clark and Pierson declined to sign them, because there was no provision for ingress and egress according to the verbal agreement, and for the privilege of a renewal for five years upon a revaluation; whereupon Purcell promised to have other leases drawn, embodying such provisions, which was never done. As the suit is brought by Trumbull and Cheverton, the successors of Clark and Pierson, who afterwards formed a corporation to run the plant, known as the People’s Artificial Tee Company, to enforce a specific performance of this oral agreement for a five-years lease, and ns the principal contest has been over the question whether it was a contract which a court of equity would enforce specifically, we give the substance of the testimony taken before the master upon the question of what it was.</p> <p>F. O. Pierson testified: “A. R. Clark and myself first saw Thomas Purcell about this property in the fore or middle part of December, 1890. We told him that we were going to erect an ice plant, and asked him if he had any ground that ho could either sell or lease us. He said he had something near the elevator, and we made an appointment with him for that afternoon. In the afternoon we looked at these promises. He told us of what opportunities and benefit there were for us to get near the railroad. There was nothing particular done excejrt that he said he would lease it to us at the rate of $50 a month, but that, was not carried very far, or much done at that meeting. We made an appointment to meet Purcell, and Clark and myself met him at his house. We talked about the length of the lease mostly. We wanted a lease for ten years at $50 a month. Purcell refused to do that. Then we went on with some other little agreements. He made a note of it on a little piece of paper. The only filing I remember that we could not agree upon was the five years of the lease. We wanted it for ten years, and he would not lease it for that price more than five, and then renewal for five more at a revaluation. There was nothing further said, only we told Purcell that we thought we would take the premises, but wanted a few days to consider the matter, and talk with Anderson. I can only remember that we disagreed on the five or ton years, and it was at that time it was dropped. He consented to leasing it to us for five years with the privilege of renewal. We were to have.the land for live years at $50 a month. At the end of five years it was to he renewed for five years more, at a revaluation, which could he settled by arbitration or otherwise to suit ourselves. The lease was to begin January 1, 1801. We were to pay taxes, water taxes, etc. Our talk covered fifty feet frontage, and clear back to the other street or alley, — 200 and some feet. About three or four days after that, we had another conversation with Purcell; I think Clark was along. There was not anything particular, except that I handed him $50 for the rent, told him that we had concluded to t^ke the place, and asked him to make out leases. He said he could leave that for his attorney to attend to some time. We took possession of the premises within two weeks after that; I think between Christmas and New Year’s. We placed the material on the ground, after paying the first month’s rent. Purcell’s coal yard adjoins this property on the west. Purcell was around- when the material was hauleij, upon the premises. It was then vacant. We then commenced to build. Purcell was around at that time. Prom the 1st of January to the 21st of June, we .were making these improvements. We started up first on the 21st of June. We paid rent to Purcell for those six months. We always paid it to him in person. He also gave us a receipt. The receipts are with Clark or the receiver, if in existence. Purcell executed the lease of the premises to us or the artificial ice company. I think the leases are with the receiver; I won’t be positive though. I gave them to Clark or the receiver. The leases were never presented to me .signed by Purcell. His attorney drew them up, I suppose, tie did not tell me so, but said he was going to his attorney to have them drawn up. That was in June. The leases were drawn to the People’s Artificial Ice Company as lessee. They were not accepted by the People’s Artificial Ice Company for several reasons. One was on account of the depth of the land. He agreed that we should have the land clear through to 200 and some odd feet, and the lease read 170 or 180 feet. That gave us no outlet if he had a mind to blockade the rear. We told Purcell of it, and. he said he would fix that all right. He would not give us the full depth under any circumstances, but he could make another lease, or put a clause in it that we should have the right of using the land for hauling, the same as himself, and for ingress and egress. This was in June, 1891. In January, 1891", he had shown us the full depth, and wanted to sell it to us. I think ■ the People’s Artificial lee Company was organized in February, 1891. When the leases were iDresented to us, we told Purcell we could not sign those leases the way they read. We wanted the full depth. The length of time of the leases was understood when we first talked with him. When we objected to the leases, Purcell said he would produce other leases, and put in a clause the right to use the rear of the lot in common with themselves. The People’s Artificial lee Company continued to pay rent after that. We paid our rent right along until we fell in arrears late in August, 1892. I think in July we ran behind, but we paid him in the latter part of July or the first part of August. I have no receipt showing payment of rents during July and August of 1891. I have only one receipt, and now produce it. It is signed by Purcell. When we were building the property, I saw Purcell around there. He made no objection to our making improvements upon that land. He assisted us in the work. He helped us get in cinders there for filling up. That was the only way he helped. It was filled in where the building went in the first place, — where the freezing tank stands. He was paid for his work. Around the boiler room was also filled up, but Purcell did not do that. We bought some of the cinders from Purcell, and they are now a part of the ground around- the masonry. Purcell was around when we were, building the masonry, and did not make any objection.”</p> <p>Arthur R. Clark testified as follows: “I live at Irving Park, Chicago, and am manufacturing distilled water. I was associated with Pierson in the artificial ice company. I know Purcell and Cheverton. I have seen Trumbull. My first business transaction with Purcell was in October or November, 1890. Pierson and myself were looking for a place to locate our Ice factory. When we first met Purcell, we were talking about buying some land on Tallman street. Purcell suggested some land he had on the corner of 12th street. Pierson, Purcell, and myself went and looked at it. We did not settle anything that day. That was on Sunday, and we were not talking about the lease or anything of that kind. Pierson and myself went to Purcell's house Holiday, and saw Purcell; and Pierson gave him $20 on the land, and said it was all satisfactory; we would make arrangements. I think Pierson and myself saw him again Wednesday at his house. We told him we were going to take the land at $50 a month’s rent, and Pierson gave him the balance of the month’s rent, — $30. I wanted to get the land for ten years, but Purcell did not want to let it go for but five years. Purcell got the $50, and gave Pierson a receipt, and said he would see Munroe about making a lease for five years. The only terms talked about were just as I say. 1 wanted to get the place for ten years, but he did not want to let us have It over five. He said that we could have it five years, and promised to let us have it for another five years at a revaluation. Pie made some memoranda of the terms of the lease.- There was some dispute, lie wanted to have a track through to the comer, so 'he would not let the whole of the land. There are 265 feet there, and he would not let the whole go. He agreed that we could have the right of way over that land. He said there would always be an outlet in the rear there. We were to pay the taxes and water. After about a week or ten days from paying the rent, we began to haul the material upon the land in controversy. The terms of the lease were to begin January 1, 1891. We were about six months building the plant. Pierson paid right along. Until we got the factory started, we were never behind rent. The July rent wus the first we were behind. Purcell was around all the time we were building the plant. He sold us some cinders for if. He never made any objections to our building there. I -never said anything to Purcell about the lease, but Pierson gave me a lease that Purcell handed him, and we looked it over, but it was not satisfactory, and it was never signed. I was not present when Purcell handed the leases to Pierson. They were not in compliance with the agreement that ho had made with us, or something of that kind; I don’t remember in what regard, — some thing about getting in and out of the place. There wore several things. I took possession of the leases prepared by Purcell. I don’t know whether I gave them to the receiver or not. I got the leases from Pierson at Aurora, and brought them to the city. Nobody requested me to do so. I showed them to the receiver, and to James Taylor and to Burry. 1 gave them to some one of the three, and I don’t know as 1 ever saw them again. Taylor and Huszagh told me the leases were of no account to anybody. At the time we were trying to sell to Given, Mr. Burry saw and examined the leases, and said they were of no value. He liad some prepared in his own office. The building is constructed on sills 12x12, and they are on posts. The building is not connected with the machinery part of it at all. There is masonry under the boiler and engine, but not under ihe building. The foundations for the engine, etc., are of the usual character. The foundation of all engines is the same as that, — about twenty cord of stone, and built down in the ground about seven feet. It could not be built any other way. In the case of the engine and compressor, the bolts run through the foundation the same as ordinary. The boiler has a brick and stone foundation. ’There is about 18,000 to 30,000 bricks in it. It is built in the way that boilers are always built. To remove the machinery, we would have to unbolt it, — take the nuts off the bolts. The bolts nm through the foundation, and the machine sets over that; and you take the nut off, and that leaves the foundation and the bolts there, and the machinery can be taken away. There are about twenty-five bolls through that. It would not damage the machinery to take it away. The pipes are all put together with union connections. You would not have to tear up the foundation to take the machinery away. The building would not be any good but kindling wood. It is a temporary structure covered with corrugated «iron.”</p> <p>Thomas Purcell, a witness called on behalf of Puller and others, testified as follows: “I live at No. 156!) West 12th street, and am in the wood and coal business. I own the property at the Southeast corner of West 12th street and Taiman avenue, with one hundred and forty feet frontage on West 12th street. I know the property in controversy, and it is a1 part of the said property that I own. It is fifty feet front on 12th street, and I occupy the other ninety feet front with my coal yard. On the fifty feet referred to, there is an ice manufacturing plant. I receive ground rent for the premises.1 A. R. Clark and F. 0. Pierson first spoke to me about renting the property. That was about two years ago. We have had a good many conversations about it. They first spoke to me of some property on Filmore street, west of Kedzie. Then they wanted fifty feet front of my property running back two hundred and sixty-three feet to Wasliburne avenue. There was a good deal of discussion in relation to the matter. They wanted a ten-year lease, etc., a five-year lease, and they seemed sat-isfid with anything they could get. I told them I wanted fifty dollars a month ground rent for the fifty feet front and one hundred and seventy-five feet deep, and that I would not rent over one hundred and seventy-five feet deep, because it would interfere with my coal business at a 'railroad switch that I wanted to use. . They talked over in a slipshod kind of a way that, if they were successful, they would buy the property in a year probably. I said I would bfr glad to soli any time they were ready to buy it, if we could agree. Nothing was said about the price. The first notice I had that they were really in earnest was when I saw a pile of lumber on the ground, and'a carpenter ready to go on with the building. Clark and Pier-son put the lumber there. Only what I have stated took place before they took possession. It was after the lumber was on the ground that they paid me the first month’s rent of fifty dollars. I never entered into a written lease with them, or agreed with them on the terms for a written lease. They said they wanted the property to erect an ice manufacturing plant on it. They did not describe definitely the character of the improvement. I never 'before saw an ice manufacturing plant, and did not know what it looked like. It was not discussed as to whom the plant would belong to after it was put up, or who had any right to remove the building they might put on the premises.”</p> <p>On cross-examination, Purcell testified: “When Clark and Pierson came to me, they wanted to buy some cheap property upon which to erect an ice manufacturing plant, and I showed them the cheapest we had. The property suited them very well, but they did not have any money. I told them I would not sell without a payment down, and then asked them how they would like to lease a ifiece 0f property, and I took them down, and showed them this property in controversy. There were some objections to the location, and they thought it too expensive. They went off to look up something else. They called at my house a week or two afterwards; I think it was Mr. Pierson. I think he called around and wanted me to make an appointment with him and Clark for the following Sunday. On the following Sunday, I told them I would lease them fifty by one hundred and seventy-five feet for fifty dollars per month, and I told them I would give them an outlet at the rear, of course. They wanted a lease for ten years. I told them I would not tie up the land for that length'of time, but was willing to give a lease for five years, and that they might have the property for five years. That was the only conversation we had. There never was any agreement. I wanted them to call around, and I would draft them something on the terms and conditions' of the lease that would be satisfactory to make with them, but they never called on me afterwards. I did not agree with them as to the terms of a lease that I would execute to them. I did not fix the'time at five years with the privilege of a five-years extension. Yes, sir; I stated that the amount of rental would be ?G00 a year-fifty dollars per month. That was as far as we went, that the lease should be fifty dollars per month.”</p> <p>The 'evidence shows that the People’s Artificial Ice Company, which succeeded to the rights of Clark and Pierson, went on in the winter and spring of 1891 and built a plant costing about $30,000; that Purcell had his business office immediately adjacent to the lot leased, and knew that, the improvements were being made; that he furnished the ice company coal to use in their business upon the lot, and furnished cinders to put in the foundation for the building; and received monthly rent up to about August,, 1801, but that no written lease was ever executed. Purcell, though daily about the premises, made no objections to the,putting in of the improvements. Purcell testified, on cross-examination, that Clark and Pierson were to pay rent from January 1, 1891; that his coal office adjoined the property; that the understanding was they were to have a right of way across the strip of land back of the 175 feet, and for free access back and forth; that they wanted- to know how they could go out, and he told them they would have to get out the same way he did with the coal; that he saw them making improvements, and did some work for them, and hauled cinders to put under the machinery; that he was in the neighborhood at the time they were making these improvements on the ground, and made no objection, and did not see why he should. IVlien asked, if there was but a month io month letting, why he did not object to tlieir making improvements on his ground, his reply was: “1 should think it would be foolishness for me to object,” and that lie did not consider it his business to stop them. The factory so built was a rather extensive one, consisting chiefly of valuable.machinery, the engine and ice-making machine being placed upon stone foundations, the whole inclosed with a wooden structure covered with iron. It was put into opera!ion about June 20, 1801. The cost of the factory greatly exceeded the estimates, so that, when completed., the company was about $15.000 in debt, which they owed to various creditors, and were much embarrassed and pressed for payment. In ibis condition of affairs, the evidence shows that Purcell refused to execute a lease according to their oral agreement, unless the company should pay him for coal advanced as well as for the rent due. In October following, the promoters of the enterprise applied to the Cook county circuit court for the appointment of a receiver. Thomas Tiiylor was accordingly appointed, and gave a bond in the sum of 830,000, and took possession of the plant, placing a custodian in charge of the building until a sale was made by the receiver, under order of the court, dated ¡March 14, 1892. The receiver’s report of sale, dated March 18, 1892, shows that he sold the plant io A. W. McDougald on March Kith, at public vendue, for the sum of $7,200, which report of sale was duly confirmed by the court on the day of its date. Objections were made by Mr. Burry, in behalf of Fuller (who had succeeded In the meantime, hut with full notice, to Purcell’s interest in the property), to the confirmation, claiming that the bidding of McDougald was the result of collusion. Burry had bid at ihe sale against McDougald, and had run this property up to $7,195, or within $3 of McDougald’s bid. Burry asked to have a resale, and in that case offered to take the property at $7,500. The master to whom the matter was referred found that the sale was fairly made, hut recommended a new sale, which the court refused to allow, and made final confirmation of the sale made by the receiver. Bo that Trumbull and Cheverton, in whose in-rerest the sale was made, succeeded to the interest of the People’s Artificial Ice Company, whatever that might be, in the premises; taking a deed pursuant to the sale from the receiver, and being put in possession by him. Previous to the sale, and about February 5, 1892, Purcell signed a notice directed to the receiver and the ice company, notifying them that he had elected to terminate (heir tenancy, describing the premises, on March 31st, and requiring them to surrender possession on or before April 1st ensuing, which notice was served upon the receiver. Thereupon the general creditors made strenuous efforts to have Olieverton and McDougald, his counsel, see Purcell, and endeavor to get him to evidence his agreement for a. five-year lease in writing, and co-operate with them in getting a fair sale for the benefit of nil creditors, Purcell being one; but this Purcell declined to do, saying he had parted with his interest in the premises. After the sale, on March l(5tli, McDougald tendered to Purcell the rent then due under the lease, and also tendered to him for execution a lease of the premises. Purcell refused to accept the tender or to execute a lease, but directed McDougald to deposit the money in the West Chicago Bank, with the leases, saying, if he decided to execute the leases, he would call at the bank in a few days, and execute them and receive file money. Subsequently, and on April 1, J892, Mr. McDougald again tendered to Purcell the full amount of rent due to him under the lease up to and including the month’s rent which accrued due upon that day. Purcell again refused -to receive the rent, saying that he had “parted” with the premises, but, upon request, he refused to say who was entitled to receive the rent.</p> <p>On April 2, 1892, Trumbull and Gheverton filed their bill in the circuit court of Cook county against Thomas Purcell, in which Alley set up substantially the facts heretofore set out in regard to the lease, the receivership) proceedings, and the tenders of rent, and prayed for a specific performance of the agreement for a five-years lease at $50 a month, and payment of taxes. Process was served on April 6th, and subsequently a demurrer was filed on the part of Mr. Purcell by James E. Munroe, his solicitor. This suit was afterwards removed to the United States circuit court. Afterwards, on April 18, 1892, Bichard B. Puller appeared in the United States circuit court, Northern district of Illinois, and filed his bill in equity against Thomas Purcell, Trumbull, and Gheverton, setting up as against the former a contract or option given to Mr. Burry for the purchase of the premises in controversy, for the sum of $10,000, which option was on about the 31st of March, 1892, assigned in writing to said Puller; that, on April 11th, Puller notified Purcell of his election to purchase, and offered to perform, but Purcell refused; and, as against Trumbull and Gheverton, that they claim and pretend that in March, 1892, they purchased the remainder of the term, took possession of the premises, and refused to surrender possession to Purcell, which refusal Purcell assigns as his excuse for not carrying out his contract; and Purcell’s refusal to dispossess Trumbull and Gheverton; that the ice manufacturing plant situated upon said premises has become affixed to the realty, /and ought not and cannot be severed therefrom. The prayer is that Purcell be required to make a deed, and that it be found and declared that Trumbull and Gheverton have no interest in the premises. Trumbull and Gheverton filed their answer, denying the allegations of the bill, and setting up their interest in the plant under the sale from the receiver, and their right to a five-years term, commencing January 1, 1891. Purcell defaulted. Afterwards, and on the same day (April 13th), said Puller commenced in the same court, on the law side thereof, an action in forcible detainer against Trumbull and Gheverton for the restoration of the premises in controversy. Process was duly served, and instead of filing a plea in that action, apparently by inadvertence, Trumbull and Gheverton filed an appearance only; whereupon a default was taken against them, and judgment entered forthwith for possession, without their knowledge or presence in court. Promptly upon the expiration of the statutory five days, a writ of restitution was issued, under which the marshal, accompanied by Mr. Burry, took possession of the premises for Puller, May 11, 1892. Application was made before Judge Blodgett to set aside the judgment and allow i>leas to be filed. An affidavit was produced, setting-up the facts in regard to the possession of Trumbull and Cheverton; and the claim was made upon the motion that the lease under which Trumbull and Gheverton claimed, while invalid at law for the full term agreed upon, yet inured at law, after possession taken and rent paid or tendered, as a tenancy from year to year, determinable, under the statute, only upon 60 days’ notice given within the 4 months preceding the end of the year; and that such notice had not been served; and that, therefore, there was a good legal defense to the action. The court, however, on the authorities produced to him, at that time, was of opinion that in no event was a verbal agreement for a term in excess of the period allowed by the- statute valid for a longer time than 30 days at law; and, further, that, if the forcible detainer action were on trial, he would have to instruct a verdict accordingly, since, the lease beiDg void under the statute, there were no merits to try at law, — for which reason the motion to open the judgment was denied, the court at the same time suggesting that the defendants might have equities with regard to the right to remove the plant, etc., which could not be there determined, and that a suit in equity was already pending to determine the rights of the parties. Supplementary bills were afterwards filed in the suits pending on both sides, and the cause consolidated and heard together.</p> <p>The cases arising on these bills, cross bills, and suiiplementary bills were referred to a master to take testimony, and report the same with his conclusions. -The master reported the evidence, and found that no valid lease was over made by Purcell to Clark and Pierson, and iliat tiie improvements placed upon the promises by the artiiicial ice company were a portion of the real property and belonging to it, and that Trumbull and Cheverton had no interest in them; that tiie contract which they relied upon in the hill for specific performance was obnoxious to tiie statute of frauds; that it was too indeiiuite to support a decree for specific performance, and was violated and terminated before any offer was made to perform it; and recommended chat tiie hill be dismissed for want of equity. The master also reported that tiie material facts set out in the hill of Puller and others were established by die proofs, and that the agreement entered into by Purcell for the conveyance of the premises mentioned in his bill to the People's Pure Ice Company was a valid agreement, which should bo enforced in that suit. Exceptions taken to tiie master’s report being filed, and argument had, tiie circuit court rendered a decree in favor of Trumbull and Cheverton, finding: That a parol lease of the promises was made, with a reasonable right of way over the rear or south end of said premises for ingress and egress, for the term of live years from January 1, 1891, at a rental of $50 per month, payable monthly in advance, and taxes, tiie premises being then vacant and unoccupied. That, under said agreement and parol least!, the said tiie People's Artificial Ice Company entered and with the knowledge and consent of said Purcell, erected and built a house, and therein placed machinery, a steam engine and boiler, a compressor, and other matters constituting a ‘‘plant” for tiie manufacture of artificial ice, of great value, and which were trade fixtures, which said ice company and its assign or assigns, and all other iiersons claiming from, by, through, or under it, were entitled to remove, and were capable of being detached, and, at the will of said ice company or its assigns, removed from said premises during said term, leaving said premises in the same condition as when entered upon by said ice company, doing no unnecessary damage to the freehold in effecting such removal. That, by reason of the premises, said agreement for a lease is taken out of the operation of tiie statute of frauds and perjuries, and that tiie said tiie People’s Ice Company was, and said Itollin II. Trumbull and Edwin G-. Cheverton, as its assigns, are, in equity and good conscience, entitled to a specific performance of said agreement and parol lease of tiie said premises hereinabove described and set out, for the said term of five years from tiie first day of January, A. i). 1891, upon tiie terms and conditions aforesaid, and upon payment of the rent at the rate aforesaid, for the month of .inly, 1891, to and including the month of -May, 1892, to wit, the sum of $550, with interest on the same to date of payment from the 1st day of each of said months,, as the same accrued. That the complaiiianls Itollin II. Trumbull and Edwin G. Cheverton became, and were at tiie time of filing their bill of complaint herein, duly vested with all the said rights and property of the said tiie People's Artificial Ice Company, and in ilie possession thereof, until evicted therefrom, as alleged in their supplemental bill. That said Hollín II. Trumbull and Edwin G. Cheverton be let into possession of said premises, and remain in possession thereof until December 31, 1895, npon tiie payment into court of said sum of 8550 and interest as aforesaid, for rent heretofore accrued, to abide the further order of the court as hereinafter provided, and upon continuing to pay the rent of $50 per mouth in advance for each month from the delivery or tender of possession under this decree to ilie end of such term, such payments of subsequent rent to he paid into court, to abide the further order of the court: until there shall be satisfaction of any damages which may be awarded said complainants, as hereinafter provided. It is further ordered, adjudged, and decreed that said Trumbull and Cheverton are entitled to damages as against said Thomas Purcell, Iticliard 1?. Puller, and tiie People’s Pure Ice Company for such damages and loss as they may have suffered from deprivation of Hie possession and use of said premises and plant, and for any injury which has been caused to the machinery and plant during the time they have been deprived of tiie possession thereof; and that those causes are now referred to E. B. Sherman, Esq., master in chancery, to take and state an account of such damages, and report the same to tiie court with ail proper dispatch; and that said Trumbull and Cheverton put in their evidence within ten days from this date, and said defendants therein within ten days thereafter; and that said complainants close in rebuttal within three days thereafter; and that, upon the coming in of the master’s report, application may be made thereupon for a further judgment, at the foot of this decree, in respect to such damages and as to the disposition of any money in court.</p> <p>Upon reference to the master to take proofs of deterioration of the premises and damages for the detention, the master made his report of the testimony at great length,, and found that Trumbull and Cheverton were entitled to recover for damages and loss sustained by reason of being deprived of the plant and premises by Purcell and the People’s Pure Ice Company the sum of $2,033.33, and for deterioration the sum of $2,500; making a total of $4,533.33. Upon hearing, the court affirmed the report of the master, and entered a supplemental decree in accordance with its recommendations. Trumbull and Cheverton in the meantime had determined that they did not want the premises, and asked the court to modify the decree so as to give them the value of the premises in damages, which value the referee found to be $20,000, in lieu of the premises themselves. But this the court refused to do. Both parties, being thus dissatisfied with the, decree of the court, have brought these appeals, to have the decree reversed or modified to suit their views of the justice of the case. There is a great mass of testimony taken in the cases, both in the original reference and on that for the ascertainment of damages, and a great many facts not herein stated, but these may, perhaps, be considered sufficient for the purposes of this opinion.</p>

<p>1. Equity — Assriitiitg Titee to Land.</p> <p>A complainant who has only an equitable title to land cannot maintain a suit in chancery to recover possession of the land from an adverse occupant, unless such occupant holds the legal title and the complainant seeks to obtain it, or unless the adverse occupant acquired possession of the land under the alleged equitable title, or is so connected therewith that it may he asserted against him. Accordingly, held, that a complainant asserting an equitable title to land could not maintain a suit in chancery to enforce it and to recover possession from occupants who were alleged in the bill to be without any title, legal or equitable, to the land, and therefore occupied the position of mere trespassers.</p> <p>2. Sauk — Laches.</p> <p>The R. Church of Latter-Day Saints brought suit, in 1891, against one H., trustee, and others, to assert an alleged equitable title to land occupied by the defendants, and hold by them for another church. It was alleged in the bill that the person from whom both parties deduced title had, in 1839, conveyed the property in question, with other lands, in trust for a church of which the complainant was successor. It appeared that this trust deed was not recorded until 1870, and its existence was unknown until then. It was then recorded, and its existence thenceforth well known to the complainant and its predecessors, but no claim to the property was asserted until 1887, when a demand was served on the defendants by the complainant’s predecessor. No suit, however, was commenced until 1891. In the meantime the widow and heirs of the original-holder of the title had conveyed all the land alleged to be granted by the-deed of 1839 by a deed executed and duly recorded In 1848, under which titles had been made to numerous persons who had built upon and improved the property, down to the bringing of the suit in 189.1, and parts of the land had been laid out and plotted as additions to a city, and maps thereof filed. The defendants and their predecessors had paid all the taxes upon the land in controversy from the year 1867, and, liad limit a church tliereon and occupied it since the year 1S88. It also appeared that, some years before the commencement of the suit, the R. church had erected a building for church purposes near, but outside of, the land in controversy, which was at the time occupied and used by the church for which the defendants held it. Held, that the complainant and those \yhom it rexiresepted had been guilty of such, laches as should bar them from relief in equity, even though it were established that the original grantor had held the land charged with a trust for complainant or those whom it represented.</p>

This was a suit by Charles D. McLure against F. W. Sherman and the Sunrise Mining & Milling Company, of Phillipsburg, Mont., for the specific performance of a contract. Plaintiff moved for a preliminary injunction.

<p>Appeal from the United States Court in the Indian Territory.</p>

<p>Negligence — Contributory Negligence — Action' for Personal Injuries— Pleading.</p> <p>In actions for personal injuries, brought in the federal courts, plaintiff is not required to plead or prove freedom from contributory negligence. Such negligence is matter of defense to be averred and proved by defendant.</p>

This was an action by John R. Drexel, Anthony J. Drexel, George W. Drexel, James W. Paul, Jr., John It. Fall, John Lowlier Yfelch, and Richard C. Dale, surviving executors and trustees under the will of Anthony J. Drexel, deceased, against the Minnesota Title Insurance & Trust Company, on- a policy of title insurance. The plaintiffs recovered judgment in the circuit court. Defendant brings error.

This was an action by T. M. Grubbs, surviving partner of T. M. and L. It. Grubbs, as Grubbs Bros., against Thomas B. Needles, United Slates marshal for the Indian Territory, for a failure to return certain, executions. The circuit court gave judgment for the defendant. Plaintiff brings error.

<p>1. Contracts — Ptibijc Pomar — How Determined.</p> <p>The public policy of a state or nation must be determined by its constitution, laws, and judicial decisions; not by the varying opinions of laymen, lawyers, or judges as to what the interest of the public demands."</p> <p>2. Same.</p> <p>A party who seeks to put a restraint upon the freedom of contract in any ease must make it plainly and obviously clear that the contract in question, is against public policy.</p> <p>3. Same — Federad Courts — Fot,lowing State Decisions.</p> <p>Whether or not, in a lease by a railroad company of part of its right of way, a provision exempting it from liability for any damage to buildings or personal property situated thereon, resulting from the negligence of its officers or agents, or from fire communicated from its locomotives, is against public policy, is a question of general law, in regard to which the federal eouiis, while regarding the state decisions as persuasive authority, must in the end exercise an independent judgment. (52 Fed. 904, affirmed. Caldwell, J., dissenting, on the ground that the proposition is wrong in principle, and its decision is not necessary to the decision of the case.</p> <p>4. Same — Railroad Companies — Contracts— Liability por Negligence.</p> <p>A lease by a railroad company of a portion of Its right of way, upon condition that the company shall not be Hablo for any damage to buildings or personal property situated thereon by reason of fire originating from its locomotives, or for damage resulting from the negligence of its employes or agents, is not void, as against public policy, either under the Iowa decisions or upon general principles. 62 Fed. 904, affirmed.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>On the 26th of February, 1890, Richards & Co., a firm of building contractors, entered into a contract with the county of Montgomery, Iowa, for the erection of a courthouse for the county. Afterwards Richards & Co. entered into several contracts with Carnegie, Phipps & Co., the plaintiffs in error, whereby the plaintiffs in error undertook to furnish and put in place materials for building the courthouse. On the 2d day of February, 1891, while the plaintiffs in error were engaged in performing these contracts, and before the same had been completely finished and performed, and for the purpose of preventing the plaintiffs in error from filing a claim against the county of Montgomery for the value of the materials furnished by them, Richards & Co., acting under a statute of Iowa authorizing them to do so, executed, delivered, and filed with the county treasurer of Montgomery county their bond, with J. H. Hulbert, E. A. Blum, H. B. Drexel, Albert Foil, and E. J. Refregier, the defendants in error, as their sureties. The following is a copy of the bond:</p> <p>“Whereas, Richards & Company, contractors, of Omaha, Nebraska, have heretofore entered into a contract with Montgomery county, Iowa, for the purpose of erecting a courthouse for said county at Red Oak Junction, Iowa; said Richards & Company agreeing to furnish all labor and materials used in erecting said courthouse and to pay for the same; and whereas, said Richards & Company have proceeded with the erection of said courthouse under said contract with said county; and whereas, large quantities of labor and material have been used, and are to be used in said courthouse, the roof of said courthouse being now put in place; and whereas, the laws of Iowa provide that all persons furnishing labor and materials in the erection of public buildings, such as the courthouse above mentioned; and whereas, on the 28th day of January, 1891, the Northwestern Terra Cotta Company filed a claim against said courthouse fund for materials furnished Richards & Co., for use in constructing said courthouse; and whereas, other furnishers of labor and materials may hereafter claim the right to file such claim against said courthouse fund: Now, therefore, we, Richards & Co., as principals, and H. P. Drexel, E. ,T. Refregier, E. A. Blum, J. H. Hul-bert, and Albert Foil, as sureties, for the purpose of releasing the claim now on file with the auditor of Montgomery county, Iowa, in favor of the Northwestern Terra Cotta Company, which claim is a mechanic’s lien against a. public corporation, to wit, Montgomery county, Iowa, and for the purpose of preventing the filing of any mechanic’s lien for material furnished or work and labor performed in the building and erection of said courthouse, for which the persons furnishing sa.id material and performing said labor would, under the laws of the state of Iowa, be entitled to file a mechanic’s lieu against said public corporation to wit, Montgomery county, Iowa, and for the use and benefit of the said Northwestern Terra Cotta Company, and for the use and benefit of such other persons who now have or shall hereafter have a right to file mechanic’s lien against said public corporation, Montgomery county, for materials furnished or work and labor performed, and for the purpose of paying any and all sum or sums found to be due the said Northwestern Terra Cotta Company from Richards & Company, aforesaid, and for the purpose of paying any and all sums due from said Richards & Company to any and all persons for materials furnished or to be furnished, or for work and labor done or to be done, for which any of said persons have now or may hereafter have a right to file a mechanic’s lion against said public corporation, Montgomery county, Iowa, for said labor, work, or material done or furnished, — this obligation is executed, and we bind ourselves and assigns to pay any such sum or sums so found to be due said Northwestern Terra Cotta Company, or any person or persons, as hereinbefore mentioned. This obligation is executed for the use and benefit of all persons who ¡;ow have, or may hereafter have, a right to file a mechanic’s lien against Montgomery county, Iowa, under and by virtue of the provisions of sections B32(>, 8!527, 8828, 3329, of McClain’s Annotated Code of Iowa (edition 1888), being the Laws of the 20th G. A., chapter 179, sections 1. to 4, inclusive, for materials furnished or to be furnished, or work and labor done or to be done, in the building and erection of the courthouse at Red Oak Junction, Montgomery county, said courthouse being erected and built by the said Richards & Co. aforesaid. Richards & Co.</p> <p>“H. P. Drexel.</p> <p>“E. J. Refregier.</p> <p>“E. A. Blum.</p> <p>“J. H. Hulbert.</p> <p>“Albert Foil.</p> <p>“Witness: B. G. Burbank.”</p> <p>The bond was indorsed as follows:</p> <p>“It appearing to me that the Northwestern Terra Cotta Company of Chicago, Ill., has now and claims the right to file a mechanic’s lien or claim against Montgomery county, for 'materials furnished in the building of the courthouse for said county; and it also appearing to me that Carnegie, Phipps & Co. claim to have the right now and hereafter to file a lien against said county for materials furnished and labor performed and to be hereafter furnished, and each of said corporations and persons having consented in writing by me now held, that nonresident sureties may file a bond. Now as to the Northwestern Terra Cotta Company and Carnegie, Phipps & Co., the within and foregoing bond is now by me filed and approved this February 9th, 1891. Joel Carey,</p> <p>“Treasurer of Montgomery County, Iowa.”</p> <p>The following is the act in pursuance of which, the bond recites, it was given:</p> <p>“Chapter 179. Acts of the 20th Assembly. An act to protect sub-contractors for labor performed and material furnished for public buildings and improvements (additional to ch. 100 of the Acts of the Sixteenth General Assembly).</p> <p>“Be it enacted by the general assembly of the state of Iowa.</p> <p>“Section 1. Every mechanic, laborer or other person who as sub-contractors, shall perform labor upon, or furnish materials for the construction of any public building or bridge or other improvements not belonging to the state, shall have a valid claim against the public corporation constructing such building, bridge or other improvements, for the value of such services and material, in an amount not in excess of the contract price'to be paid for the building, bridge or other improvements, nor shall any such corporation be required to pay any such claims at any time before, or in any manner different from that provided in the principal contract.</p> <p>“Sec. 2. Such claim shall be made by filing with the public officer through whose order the payment is to be made, an itemized and sworn statement of the demand within thirty (30) days after the performance of the last labor or the furnishing of the last portion of the material,' and claims shall have priority in the order in which they shall be filed.</p> <p>“Sec. 3. Any party in interest may cause the adjudication as to the amount, validity, priority and mode and time of payment of such claim by equitable proceedings in any court having jurisdiction. In such case the court may assess a reasonable sum to be taxed as attorney’s fees against the party failing in such action in favor of such corporation.</p> <p>“See. 4. The contractor may at any time release such claim by filing with the treasurer of such corporation a bond, to such corporation, for the benefit of such claimants in sufficient penalty with sureties to be approved by such treasurer, conditioned for the payment of any sum which may be found due such claimant. And such contractor may prevent the filing of such claims by filing in like manner a bond conditioned for the payment of persons who may be entitled to file such claims. Suit may be brought on said bond by any claimant within one year after the cause of action accrues, and judgment shall be rendered against the principal and sureties for any amount ■due said claimant. (Secs. 3326-3329, McClain’s Annotated Code of Iowa.)</p> <p>“Approved April 7, 1884.”</p> <p>The ease was tried to a jury, and a special verdict taken, in which the jury found, among other things: That “about the 2d day of February, 1891, while the said plaintiffs were engaged in performing the said contracts and furnishing said material and labor, and before the same had been completely finished and performed, and for the purpose of preventing the plaintiffs from filing a claim against the county of Montgomery for the value of their material and labor, the defendants herein executed and delivered and filed with the county treasurer of Montgomery county” the bond in suit. That plaintiffs in error relied upon this bond, and assented to it as a valid bond under the laws of Iowa, and were thereby induced to abstain from filing a claim against the county of Montgomery for the value of their labor and material, and continued to perform their contracts in reliance thereon, and continued to rely thereon until the time for filing such claims under the statute of Iowa had expired, and until after Richards - & Co. had become insolvent. That the sureties in this bond were nonresidents of Iowa, and not freeholders in that state, and, at the instance and request of Richards & Co., Carnegie, Phipps & Co. waived objection .to the bond on that ground, and, at the instance and request of Richards & Co., the county treasurer then approved the bond in the manner shown by his indorsement thereon. That the plaintiffs performed their several contracts, and also furnished' extra labor and material; and that, if they were entitled to recover upon their cause of action, and the facts found, they were entitled to recover the sum of $17,-303.06.</p> <p>Upon the coming in of the special verdict, the plaintiffs in error filed a motion for judgment against all the defendants thereon, which was overruled, and, on motion of the defendants in error, judgment on the verdict was rendered for them. These rulings of the court were duly excepted to, and are assigned as errors.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>This was an action by the Northwestern Terra Cotta Company, a corporation of Chicago, Ill., against Henry P. Drexel, 'E. J. Refregier, E. A. Blum, .T. H. Hulbert, and Albert Foil, to recover upon a bond given under the Iowa statu! (> i of April 7, 1884, for the purpose of procuring the release of certain mechanics’ liens upon a courthouse, and preventing the filing of others thereon. In the court below judgment was entered in favor of complainant, and defendants brought error.</p>

The plaintiff 'in error, the Western Coal & Mining Company, owned and operated a coal mine, and employed the defendant in error, Marcena Ingra-ham, to work therein.

<p>1. Practice on Apmi. —- Assignment of Errors — Rule 11, Circoit Court op Appeals.</p> <p>An assignment of errors which merely states that the court erred in admitting and rejecting testimony, that the verdict is contrary to law, and not supported by the evidence, and that the court erred in instructing 1he jury to find a verdict for the plaintiff, and in rendering judgment for the plaintiff, brings nothing to the attention of the appellate court, and to i ally fails to comply with rule II of the circuit court of appeals. 11 C. 0. A. cii., 47 Fed. vi.</p> <p>2. Same-. — Request por Direction op Verdict.</p> <p>An assignment of error that a verdict is not supported by the evidence cannot be noticed if the objecting party has failed to ask, at the close of the whole evidence, for the direction of a verdict in his favor.</p>

<p>1. COMMERCIAL Papiík.</p> <p>An instrument made in Kansas contained a promise to pay to K. or order, for value received, !S:!,000, live years after date, with interest at 8 per cent., payable semiannually according to the tenor of interest coupons annexed, together with an agreement that the instrument should bo governed by the laws of Kansas, where it was made payable; that the “note” and coupons should draw 12 per cent, interest after maturity, and should all mature upon default on any coupon; and a recital that the instrument was secured by mortgage on real estate. Held, that this was a negotiable commercial instrument.</p> <p>2. Same — Liability oe Indoiikkh.</p> <p>When a negotiable note is assigned by the payee, without indorsement, and is afterwards indorsed by the assignee to a third party, such indorser is liable upon his indorsement to liis indorsee, though the original assignment has relieved the maker from his promise to pay “to order,” and subjected the paper to defenses by him in the hands of subsequent indorsees.</p>

<p>This was an action by the United States against the American Exchange National Bank to recover the amount of a pension draft which defendant had collected, as collecting agent of another bank; it appearing that the name of the payee had been forged upon the draft after her death. The court directed a verdict for defendant, and plaintiff moved for a new trial.</p>

This was a libel by Hugh Bamsay against the steam yacht Lucille Manor to recover compensation for repairs. The cause was referred to a commissioner, to whose report exceptions have been filed.

<p>This was an application by William H. Dodge for a writ of habeas corpus. Defendant was arrested, and, after a preliminary hearing before a United States commissioner, was committed on the charge of violating the postal laws, by “depositing in the United States mails for transmission and delivery a letter inclosed in a black envelope, addressed in white ink, calculated by the style of display, and obviously intended, to reflect injuriously upon the character of another.” The commissioner held that the offense was within the meaning of the act of congress of September 26, 1888'(25 Stat. 496).</p>

<p>This was a hill hy the American Trotting Register Association against W. H. Gocher and A. W. Parrish for alleged infringement of a copyright. Complainant moves for a temporary injunction.</p>

<p>Patents — Invention—Trusses.</p> <p>Patent No. 455,771, to L. A. Smith and another, for a truss for hernia, held valid, in view of thd simplified and improved construction, which results in giving greater freedom of motion to the limbs and body, without impairing the effectiveness of the instrument; and held, also, that the first claim was infringed by defendant’s device.</p>

This was a suit in equity by the Union Paper-Bag Machine Company and. the Hollingsworth & Whitney Company against James M. Waterbury and others for alleged infringement of a patent relating to the manufacture of paper bags. The circuit court rendered a decree for complainants, awarding an injunction and an accounting. 39 Fed. 389.

<p>Patents — Invention—Street-Railway Switch.</p> <p>The Moxham patent, No. 333,474, for a railway switch for street cars, and which covers a device that is merely an adaptation of a previous railroad switch, is void for want of invention over the previous patent of May, 1885, to the same inventor, for a switch intended for the same purpose. 67 Fed. 940, affirmed.</p>

<p>Admiralty — Practice—Interrogatories Annexed to Akswer to Deeike the Issue.</p> <p>In a suit lor. damage to cargo, tbe libel stated a contract, by bill of lading, to deliver tbe cargo in good order, and tbe failure to do so. Tbe defendant set up numerous exceptions in tbe bill of lading, as well as tbe Harter act of 1893, and averred that tbe loss happened from a failure to close tbe valve of No. 3 tank in tbe necessary discharge of one of tbe ballast tanks on the voyage, and annexed to tbe answer interrogatories under rule 32 of tbe supreme court in admiralty, calling upon tbe libel-ants to specify any charges of negligence, other than that alleged in tbe answer, or of unseaworthiness, or of lack of due diligence in equipping tbe ship, if any such matters were relied on. On exceptions to tbe interrogatories: Held, that tbe libel being evidently designed to avoid stating any particulars of tbe claim, in the first instance, and tbe absence of any other appropriate means for ascertaining and defining tbe issue to be tried, tbe interrogatories should be allowed.</p>

<p>This was a petition by Robert Hutson for payment of a decree in personam against the United States & Brazil Mail Steamship Company out of the proceeds of the Allianea, Vigilancia, Heguranca, and Advance, which vessels were owned by that company.</p>

<p>This was á libel by William H. Van den Toorn against Thomas Leeming and others to enforce payment of a general average contribution from defendants as consignees of certain cargo shipped on board the steamship Schiedam.</p>

<p>These were petitions filed by John Crosby Brown against the proceeds of the Seguranca; by the London Assurance Company and the British & Foreign Marine Insurance Company, respectively, against the proceeds of the Allianca; and by Hard & Rand against tlie proceeds of the Advance.</p>

<p>This was a libel by the Reliance Marine Insurance Company against the Yew York & Cuba Mail Steamship Company and James E. Ward & Co., trustees, to recover compensation in general average.</p>

<p>These were separate libels by the Empire Transportation Company and by the' Mitchell Steamship Company against the Philadelphia & Reading Coal & Iron Company to recover demurrage for delay in unloading vessels.</p> <p>June 30, 1894, defendant chartered the steamer Gilbert, whereof the Empire Transportation Company was owner, to carry a cargo of coal from Buffalo, N. X., to West Superior, Wis., there to be delivered to itself as consignee. The bill of lading is as follows: “Shipped in good order and well conditioned, for account, and at the risk of whom it may concern, on board the W. H. Gilbert, whereof G. A. Minor is master, the following described property, to be delivered in like good condition as addressed in the margin, or to his or their assignees or consignees, upon paying the freight and charges as noted below, if cargo is delivered during the current season of navigation. If not so delivered, then the freight is to be paid at going rates when delivered (the dangers of navigation, fire, and collision excepted).” The Gilbert arrived at the dock of the consignee at West Superior on July 4, 1894; but that day being a holiday, according 'to custom, the work of unloading. was not commenced. On the morning of July 5th the work of discharging the cargo was proceeded with, and continued throughout the whole day with a full crew; but on the 6th the men failed to appear for work. On the afternoon of July 5th a general strike was ordered, and took effect on all the coal docks at Duluth and Superior, as a result of which work on all docks was immediately suspended in both ports. No warning of the impending strike was given; no complaint was made or grievance claimed to exist; but the men quit work simultaneously on all the docks in both ports. On July 6th or 7th the following written notice was served on claimant’s superintendent:</p> <p>“At a joint meeting of the Duluth and Superior committee of the Goal Handlers’ Protective Union the following scale of wages was agreed upon: 5(fe per hour for boatmen; $2.25 per day for hoisters; 20c per hour for dock hands; and that this scale be binding between employer and employés for one year from date, this 5th day of July, 1894. Ten hours to constitute a day’s work. * * ⅜ Coal Handlers’ Protective Union No. 6,263.</p> <p>“American Federation of Labor, West Superior, Wis. [Seal.]”</p> <p>The price theretofore paid boatmen was 40 cents an hour. Plenty of men were willing to work at that rate, and that was the amount paid when work was resumed.</p> <p>The defendant, 'with all other dock owners, refused to accede to this demand, and attempted to hire men outside, in order to resume operations, but ■was unable to do so with any xwaetical result by reason of threats and intimidation on the pert of the strikers, who made a cordon round the docks, and kept men from goinf? to work. The docks were then guarded by sherilt's and policemen furnished by the authorities, but eyen with this protection the men were afraid to hire out, for fear of violence, and many of them quit work by reason thereof. The work of unloading was suspended from the (ith to the 13th of July, inclusive. July 14th it was resumed; the vessel cleared on the 17th; and it is for this delay that the libel is filed.</p>

<p>Appeal from the District Court of the United States for the District of Aew Hampshire.</p> <p>On November 3,1893, Isaac, Hi. Grant filed a libel in the court below against the schooner Robert Graham Dun to recover for loss of the schooner Captain John, by collision, on the evening of ¡September 20, 1893. The owners of the Dun (Peter II. Crowell and others) filed their claim and answer in the cause. On February 14, 1894, ihe.y filed in the same court a petition to limit liability for all losses and damages sustained by mason of the collision. On April 2, 1894, the following order was entered by the court in (he proceeding to limit liability:</p> <p>“X'lie hearing on the questions involved in the opinion tiled this 2d day of April, A. I). 1804, was begun in Isaac M. Grant against the schooner Robert Graham Dun, and after argument, and before decision, the petition for the limitation of liability was filed; and, upon consent of counsel, decision was rendered in the limited liability proceedings upon (he evidence previously taken, and such decision is to be treated as rendered in this case. All the evidence and arguments were submitted and considered by the court in this proceeding, and the evidence, opinion, and orders shall be tiled therein, and become part of the record thereof.”</p> <p>The opinion referred to in i:be foregoing order is reported in 63 Fed. 167, and is there entitled as in the case of Grant v. The Robert Graham Dun. In that, opinion it was held that the Dun was in fault, and responsible for the collision, and a decree accordingly was entered in the proceedings for a limitation of liability. From this decree the petitioners have appealed.</p>

<p>1. Jurisdiction of Oriionir Courts of Aim’kal — JrRisnroTroiVAL Questions.</p> <p>The circuit courts of appeal liave no jurisdiction to entertain an appeal in which the only question at issue is as to the jurisdiction of the court below over the cause. Act March 3, 1891, §§ 5, (>; 26 Stat. 826.</p> <p>2. Same.</p> <p>A libel was filed to enforce a maritime lien against a vessel which, at the time of her arrest thereunder, was in possession of an assignee for the benefit of creditors, under the Oregon statutes. The assignee air poured ass claimant, and upon his petition a decree was entered dismissing the libel for want of jurisdiction, and ordering the vessel to be restored to him. The libelants appealed io the circuit court of appeals, and the claimant moved to dismiss the same for want of jurisdiction in the latter court. Held, that the only question for review was whether the district court had jurisdiction of the cause, and that the circuit court of appeals therefore had no jurisdiction of the appeal under the fifth and sixth sections of the act of March 3, 1891.</p>

In Equity. On motion to quash return of service. Suit by the American Cereal Company against the Eli Pettijohn Cereal Company. Defendant moves to quash the sheriff’s return of service of summons.

This was an action commenced by John W. Cookerly, as administrator of James Wright, deceased, against the Great Northern Railway Company and others, in a court of the state of Washington. The defendant the Great Northern Railway Company removed the cause to this court.

This was a bill by Eli Scott against E. B. McFarland and 14 others to procure a cancellation of certain notes held by them, and purporting to have been made by complainant.

<p>Suits by the Central Trust Company against the Louisville, St. Louis & Texas Railway Company for foreclosure of mortgages. Heard on demurrer to intervening petition of Mchols, Watkins & Co., and others.</p>

Bill by Charles Lewis, alleging equitable ownership of 128 acres of land, situated in Pierce county, state of Washington, for a decree establishing his title to said land, and to have the defendant John C. Shaw, to whom a patent has been issued by the United States, declared a trustee of said title. The land in question was entered by one Charles C. Miller on March 1C, 1883, as timber land, under the act of congress of June 3, 1878. On final hearing. Decree for complainant.

<p>In Error to the Circuit Court of the United Htates for the District of Colorado. i</p>

<p>1. Ratt/road Companies — Reorganization—Warranty op Title.</p> <p>In 1857 the D. Ky. Oo. mortgaged its property, including certain lands granted to it by the United States and tiie state of Iowa, to secure an issue of bonds, the mortgage providing that the trustees should have sole management of such lands, with power to sell the same on such terms and conditions as they deemed best, and that the railway company would warrant the title of the lands to the trustees and their assigns. One AVI purchased a part of the lands from the trustees, paying the purchase price in bonds of the 'company, and receiving a deed by which the trustees covenanted in their official capacity that the railway company would warrant the title. Subsequently litigation arose between the D. Ry. Co. and other companies as to the title to the lands, which continued for many years. In 1800 the mortgage on the propei ty of the I). Ey. Co. was foreclosed, and a new company, the S. Ry. Go., succeeded to the property under the terms of a decree by which it was provided that the bonds of the I). Ey. Co. should be exchanged for preferred stock of the new company, the stock for common stock of the new company, and that the unsecured creditors of the D. Ry. Co. should be paid the amounts due them in common stock of the now company. During' the pendency'of the litigation as to title to the lands W. carried on a correspondence witli the officers of the S. Oo. in regard to her rights, throughout which that company took the position that AV.’s title was good, but that, if it finally failed, the company would be liable for and would pay to her “the purchase money and six per cent, interest”; and W. thereupon, at the S. Co.’s request, refrained from bringing suit. The title to a part of the lands conveyed to AV. was finally decided never to have been in the D. Ry. Co., and W. thereupon sued the S. Co. for the amount of the purchase price. Held, that upon the covenants contained in the trustee’s deed to AV., as well as upon its independent promise to pay her the amount of the purchase price of the land if the title failed, the S. Co. was liable to AV. for such purchase price and interest.</p> <p>2. Payment — In Stock — Waiver.</p> <p>Held, further, that the agreement of the S. Co. to pay “the purchase price with interest” was a waiver of the right to pay W.’s claim in stock.</p> <p>3. Trustees — Power or Sale — Warranty.</p> <p>Held, further, that the trustees, under the provision of the mortgage authorizing them to sell the lands on such terms and conditions as they should deem best,, were authorized to warrant the title of the lands sold by them to W.</p> <p>4» Corporations — Officers—Powers of President.</p> <p>Held, further, that the president of the S. Co., who was vested by the by-laws with general supervision and control over its affairs, and who had general charge of all its matters and conducted its business, had power, by his dealings with W., to bind the S. Co. in respect to its liability under the warranty.</p>

<p>Constitution at. Law —Judicial Power,— Certifying Compensation of Informer — Act .Tune 32, 1874, ⅜ 6.</p> <p>The provision in section 6 of the act of congress of .Tune 22, 1874, that no payment shall be made to an informer furnishing information which leads to the seizure of smuggled goods in a case where judicial proceedings have been had, unless the value of his services shall have been certified by the court or judge for the information of the secretary of the treasury, who, however, shall not be bound by such certificate, is an attempt to confer upon the court or judge a power not judicial, which congress has no power, under the constitution, to require the judiciary to exercise; and, accordingly, the courts and judges are without jurisdiction to make such certificate.</p>

This was a proceeding to procure the deportation of Charlie Tye, a Chinaman, who was arrested in the United States without having in his possession a certificate of his residence, as required by- Act May 5,1892.

Assumpsit by Henry C. Godell against the Wells & French Company on an agreement to pay royalties under a patent. Pleas: General issue; special pleas attacking validity of patent (1) for want of invention, and (2) because anticipated in the prior art; and notice of special defenses, under section 4920, Eev. St. Demurrer to special pleas, and motion to strike notice from, the files.

<p>Charter Party — Barranquilla—Refusal to Enter Unfrequented Magdalena River — Bill of Lading — Customary Port — Return Delayed — Damages — Reasonable Time.</p> <p>Tbe steamship Z., drawing 13 feet, being chartered to run three months “between U. S. and ports of South America,-” cleared from Philadelphia with a, cargo deliverable, according to the bill of lading, “at Barranquilla.” Por ten years previous to arrival, steamers of her class had not gone up the river, to the city of Barranquilla, 20 miles up the river, but had delivered their cargoes at Puerto Colombo, a mere place of delivery, from which there was transportation by rail to Barranquilla. The consignee, insisted that the master should go up the river with the steamer, and tliat it was shfe to do so. In making preliminary soundings, the channel way being wholly unbuoyed, the captain and the only local pilot lost their lives. Thereafter the mate was advised by the captains of other steamers that the attempt would be dangerous, and he was warned by the agent of the insurers that the insurance of the ship would be forfeited by the attempt to go up the river; he thereupon refused to make the attempt. The consignee refused to take the cargo at- Puerto Colombo, and after three months of ineffectual endeavors at settlement the ship returned with her cargo, and brought this suit for charter hire; while the consignee, who was the principal in the charter, sued for damages for a breach of the charter in not going up to the river port of Barranquilla, and for the value of the cargo. Held (1) that the mate was justified in refusing to go up to the river port, and in returning with the cargo, upon the consignee’s refusal to receive it at Puerto Colombo, there being no place for its storage; (2) that the ship could not recover for her delay at Puerto Colombo beyond a reasonable time after the ultimate refusal of the consignee to accept the cargo at the Puerto Colombo was known, and that the period of six weeks after arrival, up to the time of the expiration of the charter, was a reasonable and sufficient time, and recovery of damages beyond that xieriod was disallowed.</p>

<p>Maritime Liens — Supplies—Stale Claim.</p> <p>A schooner was leased to her master, who was to receive 60 per cent, of her earnings. The owner had previously advertised that he would not be responsible for supplies furnished on the order of the master or crew. Over a year after the expiration of the contract, claims for supplies were presented, in which nearly all the items were more than two years old. The owner had no notice of the claims until a few days before the libel was filed. Held, that libelants were guilty of inexcusable laches, and the libel must be dismissed.</p>

<p>Bum or Ladino Signed ijy Ciiakteeeb, — Captain’s Assent — Vessel Held foe Goods on Deck.</p> <p>Goods being delivered to the charterers of the steamship S. at Antwerp, they signed clean bills of lading for the same “pour le capitaine,'’ with the knowledge and assent of the master. The vessel being subsequently filled below deck, 10 bales of a consignment of wool remained, which were stowed on deck, for which a clean bill of lading had been |>ro-viously given as above stated. On the day of sailing the master gave a single bill of lading to the charterers for all the goods of the different shippers, naming the different shippers, and stating that the 10 bales were on deck. The 10 bales being injured by sea water, suit was brought by the shipper for damages: Held, that though the charterers merely as such had no.authority to bind the ship by signing bills of lading, they could do so under the master’s assent and authority, which was in this case to be inferred from the circumstances; and that the ship was liable upon the clean bill of lading delivered to the shipper.</p>

This 'was a libel by William F. Marshall, a licensed pilot, against the steamship Earnwell, to recover pilotage fees, alleging that she refused to accept his services when offered. The district court rendered a decree in favor of libelant for the sum claimed (68 Fed. 229), and the Earnwell Steamship Company, Limited, claimants of the vessel, appealed.

<p>COLLISION — Steamer and Sail — Mutual Fault.</p> <p>Where a tug with tow collided with a schooner in a fog on the open sea, hold, that both were in fault; the schooner for not using a proper mechanical fog horn, and the tug for not standing by after the collision, notwithstanding that the schooner was in a sinking condition.</p>

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

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

This was an action at law by Samuel W. Frescole against the city of Lancaster, Pa. Plaintiif has applied for an order on defendant to produce certain papers for inspection.

This was a suit in equity by tlie Campbell Printing-Press & Manufacturing Company against George -V. Harden and Edward T. liowell, copartners as Harden & lío well, for infringement of letters patent No. 292,521, issued January 8, .1884, to Wellington P. Kidder, for a printing machine, and No. 379,053, issued January 3, 1888, to John J-T. Stonemetz, for a web printing machine. Heard on motion to open the decree for the admission of new proofs.

This was an action by Eli H. Murray, as receiver of the California Savings Bank of San Diego, against the American Surety Company of New York, upon two bonds of indemnity. The defendant demurred to the complaint, and the demurrer was sustained. 59 Fed. 345. Plaintiff then amended the complaint. The defendant again demurred, and the demurrer was sustained. 61 Fed. 273. Plaintiff brings error.

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>Tins was a suit by the United States against Jane L. Stanford, as executrix of the will of Leland Stanford, deceased, to esta Wish a liability of the estate of the decedent as a stockholder in the Central Pacific Railroad Company. The defendant demurred to the bill. The circuit court sustained the demurrer. 69 Fed. 25. Complainant appeals.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the District of Washington.</p> <p>This was an action by John S. Day and Michael Day against the Sunset Telephone & Telegraph Company to recover the value of certain poles. The plaintiffs recovered judgment in the circuit court. Defendant brings error.</p> <p>The defendants in error, plaintiffs in the court below, sued plaintiff in error, defendant in the court below, to recover the sum of $5,717. For convenience we shall designate the parties, as they appear in the controversy in the court below, as plaintiffs and defendant. The cause of action, as stated in the complaint, is that defendant employed plaintiffs to furnish it, at San Pedro, Cal.. 2,005 telephone poles at $3.20 each, and 226 poles at $6 each, to be paid for on delivery at the who rf at San Pedro, and that plaintiffs duly performed the contract; that the price of the poles amounted to §7,772, of which §2.800 lias been paid, leaving due $5,472. The second cause of action is that plaintiffs, in accordance with agreement, “shipped and freighted,” by tlie schooner Bangor, — the schooner which also carried the telephone poles,— 7,000 cross-arms for telephone poles, at the agreed price of 3½ cents for each cross-arm, malting the sum of §245, which has not been paid.</p> <p>The answer of defendant alleges that the contract with plaintiffs was in writing, and attached a copy to the answer, which is as follows:</p> <p>“Agreement, entered into this bill day of April, 1892, by and between Day Brothers, of Seattle, state of Washington, and Sunset Telephone and Telegraph Company, of San Francisco, a corporation existing under the laws of the state of California. Said Day Brothers hereby covenant and agree 1o furnish and deliver on wharf at San Pedro, California, and the sa.id Sunset Tehvphone and Telegraph Company hereby agree to take and pay for, the following described poles at (lie prices herein stipulated: Two thousand (2,000) round telephone poles, thirty (30) foot long and not less than seven (7) inches in diameter at the smallest .end. Price for the same to be throe dollars and twenty cents (§3.20) per pole. Total, $0,400.00. Five hundred (500) round toiexihone x>olos, forty feet long, and not less than eight (8) inches in diameter at the smallest end. Price for same to be six dollars (§6.00) per x>ole. Total, §3,000.00. All of above poles to lie. of good, sound, live cedar, to be insiiected and approved, prior to shipment, by an agent appointed by said Sunset Telephone and Telegraph Company before loading, and to be all delivered in good condition on said wharf, at San Pedro, Cal., by said Day Brothers, to be shipped within fifty (50) days after date. Each cargo to be paid as follows: Thirty (30) xmr cent, after inspection and loaded on vessel; forty-five (45) per cent, after delivery on wharf at San Pedro, Cal.; twenty-five (25) per cent, after completion of contract, — this per cent, to be retained in lieu of damages for uoncompletion of contract. In addition to the above, said Day Brothers agree to take, on same vessel with cargo of poles, live thousand (5,000) cross-arms, to lie landed on said wharf at San Pedro, Cal., with poles, at three and a half (8½) cents each. In witness whereof, the said parties have set their hands and seals this fifth day of April, 1892. Day Brothers. [Seal.]</p> <p>“Accepted for Sunset Telephone Telegraph Oo>,</p> <p>“By Jno. Lawrence, Geni. Supt.</p> <p>“Witness: A. Clark.”</p> <p>Defendant also admits the contract of affreightment of the cross-arms. As affirmative defense, it alleges: That, prior to the commencement of the action, it had fully piaid plaintiffs,• and, further, that plaintiffs did not perform their contract in this: that they did not furnish 500 poles 40 feet long, nor deliver said poles or the cross-arms at the wharf at San Tedro. That they did not ship the same within 50 days, and did not pay the freight or discharge the lien of the schooner Bangor for the carriage of said poles and cross-arms. That they only procured and shipped 2,000 pioles 30 feet long, and 276 poles 40 feet long, rexiresenting and pretending that they were the owners of said poles. That about 1,000 of said poles wore unlawfully cut and procured from the lands of the Puget Mill Company, a corporation, without its permission or authority, and mixed with the other poles shixiped so that their identity could not he established. That, upon the arrival of the schooner at San Pedro, the Puget Mill Company did separately demand from the master of said schooner, and from the managing owner thereof, the possession of said poles, making separate demands, as a matter of lireeaution, for 1,200 poles; also, for 100 poles; and the said poles being mixed and confused with other xioles constituting the cargo, so that the same could not be identified, or said demand complied with, the said company did likewise demand the whole of said cargo of poles. Bach and every of said demands was refused by said master and by said owner. That there was due for freight $4,000, for which the schooner was entitled to a lien on the cargo, or so much thereof as was owned by plaintiffs. That there was no'market for said xioles and cross-arms at San Pedro, and defendant was, at said times, the only jmr-chaser, and required forthwith the amount of poles and cross-arms embraced in said cargo, and if the same or any portion thereof were taken or held by liroceedings at law to establish the title or right of the Puget Mill Company, or by proceedings in admiralty to establish the lien of the vessel for freight, the defendant would have been compelled to purchase the poles it required elsewhere, and the market for said poles would have been destroyed. That thereupon, and by reason of the aforesaid facts, and the emergency existing as aforesaid, the master and managing owner of said vessel did take charge of said cargo, and did sell the same to this defendant for the sum of $3,717, which is the amount which would have been due plaintiffs thereon under the contract (Exhibit A), had plaintiffs complied with the terms and conditions thereof, and paid the aforesaid sum of $4,000 freight thereon, and had plaintiffs likewise been the owners of the whole of said cargo. That the cargo ■was delivered to defendant in pursuance of said sale, and not otherwise, and in pursuance of said purchase it paid the said sum of $5,717 to the master and managing agent of said vessel. And defendant alleges, on information and belief, that the said master, upon proof and assurance of the title of the Puget Mill Company, paid it, out of the proceeds of said sale, $2,200, and the balance is retained to pay the freight on the cargo.</p> <p>The case was tried by a jury, and the instructions of the court were as follows:</p> <p>“This is a suit by the plaintiffs, the firm of Day Bros., to recover a balance claimed to be due for a cargo of telephone lióles, which were furnished under a contract with the defendant, and delivered at San Pedro, in California. It is conceded that-the contract on which the suit is founded was entered into; that the telephone poles were xirocured by the plaintiffs, and shipped to San Pedro, and the defendant has received them at San Pedro. A part of the purchase price agreed upon has.been paid to the plaintiffs, and, in addition to that, the defendant has paid or settled for the freight which the plaintiffs were required to pay to the vessel for transpiorting the icoles to San Pedro, leaving a balance on the contract price for the pioles yet unpaid. In addition to the amount claimed for the poles, the contract lirovided that the vessel, which the plaintiffs were to charter to carry the íxiles, would take some cross-arms for the.defendant, for which the defendant was to pay the lilaintiffs. This vessel did carry some cross-arms, and for the transportation or freight on the cross-arms there is due the plaintiffs, from the defendant, $245. They are entitled to a verdict for that amount, at least, in this case. Now, whether there is any balance due them for the telephone poles depends upon your determination of the question whether the plaintiffs were the owners of all of (lie timber which they iiut into that cargo. That is the question in this case for this jury to decide. The defendant has pleaded several defenses, but they are all either merged into this one, or abandoned on the trial. So that the question of title-ownership of the timbers — is the question to which the vase is narrowed down, and that is the question which is to be submitted to this jury. If the plaintiffs, without the consent of the owner of the land where the timber grew, went upon the land, and cut it, and undertook, under their contract, to furnish that timber to the defendant, and the owner consequently Juid a right to claim that timber, as against them, or as against their vendees, then it would bo the owner of the land that would have a legal claim against the defendant for the price or vaiue of the timber, and not the plaintiffs; and for the value of so much timber as was unlawfully taken — if any of it was unlawfully taken — by the plaintiffs from the premises of the Puget Mill Company the defendant would have a right to claim, as it does claim, that a deduction should be made. You have heard the evidence and the arguments of counsel. Upon a fair consideration of the whole case, you are to determine whether this evidence establishes that any number of these polos were cut on the lands belonging to the Puget Mill Company; and if you so find, you will endeavor, from the evidence, to fix the value of so much of the timber as was thus taken from the Puget Mill Company's land, and deduct it from the whole contract price; and if there is yet a balance, after making such deduction, if there is yet a balance due the plaintiffs, award them a verdict, for that balance. If there is nothing- over and above that deduction, and the credit that lias been paid, and the money that has been paid to the plaintiffs, still coming to the plaintiffs, you will not award the plaintiffs any inore than !p2-13. Now this claim that the timber was cut on the land of. the Puget Mill Company is an affirmative defense, set up by the defendant, and it is therefore incumbent upon the defendant to establish, by at; least a fair preponderance of the evidence, that the timber was cut on the land of the Puget -Mill Company, — some of the very timber that went into this very cargo. The defendant cannot, in this case, claim anything on account of timber cut at any other time, or any other timber, if any was ever cut by Day Bros., unless it was part of this same cargo. The defendant is not required to identify any particular sticks of timber of that cargo, but it is incumbent upon the defendant to prove that some of the timber that went into that cargo was timber taken from the Puget Mill Company’s land, and to fix, by the evidence, upon that timber, — that is, the timber taken from the Puget Mill Company’s land, and put into that cargo. If it should appear to you from the evidence that some timber was taken from the Puget Mill Company's land and included in this cargo, and the evidence is too indefinite to enable you to determine how much, or the value of it, you can only allow a nominal sum to bo deducted from the contract i>rice of the timber. You are exclusive judges on the question of the evidence involved in the ease, and it is your province to weigh the evidence, and determine its value, and pass upon the credibility of the witnesses, and determine, from a fair consideration of the evidence in the case, what the truth is.”</p>

<p>In Error to the Circuit Court of the United States for the District of Indiana.</p> <p>This was an action by George A. Braun against tbe board of commissioners of Benton county, Ind., upon certain bonds and coupons. Judgment was rendered in the circuit court for the defendant. 66 Fed. 476. Plaintiff brings error.</p>

This was a motion for a new trial.. The action was brought b,y plaintiffs to recover damages for the death of their husband and father, alleged to have been occasioned by the defendant’s negligence. Among the issues raised by the pleadings and submitted to the jury was that of the citizenship of the plaintiffs. One of the plaintiffs, Sirs.

This was a suit by the Royal Baking Powder Company against George E. Raymond to restrain the infringement of complainant’» trade-mark. The cause wás heard on the pleadings and proofs.

This was a bill in equity by the Bonsack Machine Company and the American Tobacco Company against W. F. Smith and Sterling Smith, copartners as W. F. Smith & Co., for alleged infringement of certain patents relating to cigarette machines.

<p>Salvage — Compensation.</p> <p>A steamship valued, with her cargo and freight, at $426,000, becoming utterly helpless from a broken shaft, about 300 miles from New York, was towed to that port by another steamer In two days and two hours, without difficulty, during weather which was line, excepting that a dense fog prevailed about half the time. The towing steamer was a slow vessel, to which the loss of a few days was not important. Held, that the service was a salvage service l'or which »17,r>00 was a proper award, including therein some §700 of expenses. The Daniel Steinrnan, 111 Fed. 919, di' tinguished.</p>

<p>Removal oe Causes — Citizenship—-Isdiass.</p> <p>A member of an Indian tribe residing within the limits of the United States, who lias not been naturalized, is not a citizen of the United States nor of the state of his residence, nor is he a citizen or subject of a foreign state, within the meaning of the constitution or the statutes conferring jurisdiction on the federal courts; and such unnaturalized Indian cannot remove into a federal court a civil suit, brought against him in a state court, unless if; appears upon the face of the complaint or declaration that • a federal question is necessarily involved.</p>

<p>This was a suit brought in the common pleas division of the Jefferson circuit court, state of Kentucky, by the Fidelity Trust & Safety-Vault Company against the Newport News & Mississippi Valley Company. The case was removed by defendant .to this court, and plaintiff has made a motion to remand it to the state court.</p>

<p>JURISDICTION OB’ FEDERAL COUBTS — ACTION B’OR PENALTY UNDER STATE STATUTE —Damages foii Death by Negligence.</p> <p>The Massachusetts statute provides that in cases of death resulting from negligence of a railroad or street-railway corporation, or from the unfitness, gross negligence, or carelessness of its servants or agents, the corporation shall he ‘‘punished by fine of not less than §500, nor more than §5.000, to bo recovered by indictment,” and paid to the executor or acl-•ministrator for the use of the widow, children, or next of kin. The statute further provides that railroad corporations shall also bo liable in damages not exceeding §5,000, nor less than §500, “to be assessed with reference to the degree of culpability of the corporation or of its servants or agents,” and to be recovered by an action of tort by the executor or administrator, for the use of the same persons. But only one of these remedies can be pursued. HcU, that an action at law by the executor or administrator under the statute is in effect an action to recover a penalty trader a state statute, and therefore cannot be maintained in a federal court, because (1) the statute, viewed in the light of the decisions of the supreme judicial court of Massachusetts, and also in the light of its general purposes and nature, and the character of the procedure prescribed, is a penal statute, and because (2) the action is not a “civil action,” within the meaning of the acts defining the jurisdiction of the federal courts.</p>

<p>Federal Courts — Jurisdiction—-Diverse Citizenship — Arrangement op Parties.</p> <p>The trustees of O. College, an Ohio corporation, filed a bill in a federal court in West Virginia against one B., as trustee and individually, M., A., P., IC, and the personal representative and heirs of one G., all of whom were citizens of West Virginia, and the P. Co., a Pennsylvania corporation. It was alleged in the bill that certain land claimed by O. College and also by K. and G. had been conveyed to B., as trustee, to sell and pay over the proceeds to the college and K. and G.; that B. subsequently entered into a conspiracy with M., P., and A., who upon the death of G. had qualified as his personal representative, and, in pursuance of such conspiracy, the land having greatly increased in value in consequence of a discovery of oil, sold it to M. for much less than its value, fraudulently concealing from the trustees of the college the fact of the increase. It was also alleged that the consent of K. to such sale had been obtained upon the understanding that he was still to retain a one-fifth interest in the land, the other four-fifths being held by A., who joined in the scheme with the intent to defraud G.’s heirs, M., P., and B., the trustee, and that, after the title had been conveyed by B. to M., the land was leased by these parties through M. to the P. Co. for a bonus much larger than the price accounted for by B. to his cestuis que trustent, with a royalty on the oil taken from the land, and other rentals and payments. The bill prayed that M., B., A., P., and K. should be decreed to account for and pay over to the college, K., and the heirs of G. the sums received from the P. Co., and that the P. Co. might be required to attorn to such beneficiaries of the original trust, and pay to them the royalties and rentals under its lease. Held, that the real controversy in the suit was as to the fraud alleged to have been committed by B., A., M., P., and K., and the existence of the trust arising from such fraud, of which B. and his co-conspirators would be the trustees, and the college and the heirs of G. the beneficiaries; that in such controversy the college and the heirs of G. were, upon the one side, opposed to the other parties; that the heirs of G. were indispensable parties to the suit; and, being citizens of the same state as the parties on the opposite side, when all the parties were arranged according to their real interests, the federal court was without jurisdiction.</p>

This was a suit by the American National Bank of Denver, Colo., against the National Benefit & Casualty Company and Fred. C. Kil-ham, trustee. The suit was commenced in a court of the state of Colorado. George N. Wiswall, receiver of the National Benefit & Casualty Company, filed an intervening petition and a petition for removal, and applies to docket the case in the federal court.

<p>Railroad Mortgage Foreclosures — Same Trustee under Different Mortgages — Bondholders as Parties.</p> <p>In a suit by a trust company which is trustee under several necessarily conflicting mortgages upon the railroad and its various branches, such trustee is not in a position to fairly represent both, sides ot the resulting controversies; and the court will therefore permit representatives of the bondholders under the different mortgages to be made parties, to the end that each set of bondholders may be represented by some one whose single object is to secure all to which they are entitled, unhampered by any obligation to opposing parties. Farmers’ Loan &" Trust Co. v. Northern Pac. R. Go., 66 Fed. 169, followed. Clyde v. Railroad Co., 55 Fed. 445, disapproved.</p>

<p>CORPORATION'S — TrANSEBR OR STOCK BY EXECUTOR — ESTOPPEL.</p> <p>One D., a stockholder in the W. bank, died in 1882, leaving a will by which he gave all his property to his wife for life, “to be hers absolutely,” and at her death to go to his son and daughter, to be divided between them as his wife might think proper. D.’s wife qualified as executrix, and took possession of the estate, but did not transfer the bank stock. She died in 1888, leaving a will disposing of the property, upon the assumption that she had entire power of disposition of it, and her disposition of it was acquiesced in by her son and daughter. One F., who was appointed executor of Mrs. D.’s will, qualified as such, and thereby became executor of D. He caused the bank stock to be transferred into his name “as executor,” and testified that he meant thereby executor of Mrs. D. The bank officer who made the transfer testified that he understood the stock was transferred to F. as executor of Mrs. D. At the time of the transfer, in 1888, the bank was solvent and prosperous. The stock was held by F. as part of a trust fund created by Mrs. D.’s will for her daughter, as a means of paying a debt from D. to the daughter, in such a way as to keep the money beyond the control of the daughter’s husband. The W. bank failed in 1891, and the receiver sought to hold the estatfe of D. responsible for an assessment on the stockholders. Held that, as the stock could only have been transferred by the act of D.’s executor, and as F. declared, and the bank understood, when the transfer was made, that if was made to him an ex cení or of Mrs. D., and ho had power to receive it in that capacity, without regard to the terms of the wills, the bunk, and consequently the receiver, were estopped to claim that IX and his estate had not ceased to hold stock at the time of the transfer, there being no ground to impute bad faith to any of the parties.'</p>

<p>1. Equity JintrsDroTroN — Fraud---Impeaching Award.</p> <p>The N. Ins. Go. issued a policy of insurance to one L. L. claimed a loss under such policy, and, the company objecting- to the proofs of loss, procured an appraisement, under the terms of the policy, and a report by the appraisers finding- a certain sum to be due. The company filed a bill in equity, alleging that the proofs of loss were fraudulent, that the appraisement was procured by fraud, and that L. was about to apply for the sale of securities, deposited by the company with the state superintendent of insurance, in order to pay the award, and procured an injunction restraining L. from enforcing the award in any way until the further order of the court. L. afterwards filed a cross bill alleging that she had been prevented by the injunction from suing the company within a period of limitation fixed by the policy, and praying for a decree against the conrpany for the amount of her loss. Sold, that the court had jurisdiction of the original bill, by reason of the absence of an adequate remedy at law against the fraud alleged to exist in the appraisement, the report of the appraisers, though not technically an award, presenting the essential qualities of an arbitration. ,</p> <p>2. Equity Practice — Cross Bill.</p> <p>Held, further, that the cross bill was properly filed, its object being to procure a complete determination of the matters involved in the original bill, and no ground of equity, as against the plaintiff in the original bill, being necessary’to support it.</p> <p>3. Same — Statute oe Limitations.</p> <p>Sold, further, that the expiration of the contractual period of limitation before the filing of the cross bill was no bar to the relief sought by it, since the bringing of an action within such period had been prevented by the action‘of the court itself in issuing its injunction against L.</p>

<p>i. Public Lands — Sutt to Cancel Patent — Act of March 3, 1887.</p> <p>■ One E. made a homestead entry on public land in 1806, which was completed in 1871 and a patent issued to him in 1870. A patent for the same land was issued to the D. R. Co. in 1809 by the state of Iowa, under the grant to that state in aid of the improvement of the Des Moines river by the act of congress of 184(5, extended in 1802. In 1871, as a result of negotiations between the state of Iowa and the United States in regard to the limits of the grant, certain selections by the state, including the land patented to E. and to the railroad company, were approved by the interior department, and confirmed to the state and its grantees by act of congress of Match 8, 1871. In 1870 one S., holding the railroad company’s title, brought a suit in equity against F. to quiet his title to the lands, and obtained a decree. In 1885 one W., having acquired the railroad company’.s title from S., sued F. in ejectment and recovered the land-, F. having in both suits asserted his title under his homestead entry. In 1891 F. brought this suit in the name of the United States to cancel the patent to the D. It. Go. and to quiet F.’s title. Held, that the ease could not be regarded as one brought by the United States under the act of congress of March 3, 1887, providing for the adjustment of railroad land grants, since the power given to the secretary of the interior by that act, to adjust grants and cause suits to be brought to cancel patents, is confined to grstnts previously unadjusted, and the effect of the approval of the secretary and the confirmation by congress in the act of March 3, 1871, was to adjust the grant to the state of Iowa, so far as concerned the lands the title to which was confirmed by the act.</p> <p>3.- Same — Practice.</p> <p>It seems that, the United States having, after the act of March 3, 1871, no interest in the lands, the suit could not be brought in its'name, and should be dismissed.</p> <p>3. Same — Defenses.</p> <p>Held, further, that the effect of the clause in the act of March 3, 1871, saving the rights of parties claiming any of the lands under the homestead or pre-emption -laws, or as smmp lands, was not to reserve any interest in such lands to the United States, but to the claimants, and accordingly, if the suit could be maintained in the name of the United States at all, it was open to the defenses of laches and the statute of limitations.</p> <p>4. Same — Res Judicata.</p> <p>Held, further, that the adjudications in the equity suit and the action of ejectment brought by S. and W. against F. were a complete bar to F.’s claim, which could not be avoided by any supposed new right of action created by the act of March 3, 1887, since that act did not apply to a case where an adjustment of the grant had been made, and in this case there was in fact no readjustment.</p> <p>5. Same — Laches.</p> <p>Held, further, that in any event the delay of F. in bringing this suit amounted to laches sufficient to bar any claim.</p>

The Charlotte & South Carolina Railroad Company was incorporated hy the slates of North Carolina and South Carolina, and the Columbia & Augusta Railroad Company hy the states of South Carolina and Georgia.

<p>1. Appeal — Final Decree — ínter venino Petition.</p> <p>One SI. tiled an Intervening petition, in a railroad foreclosure suit, claiming- priority over the mortgage, for a judgment recovered by her against the railroad company for personal injuries, under the statute of South Carolina, giving priority to such judgments over mortgages. A decree was entered on such petition, adjudicating priority to the judgment. finding the amount due, and decreeing that the priority must be secured in any order of sale of the railroad thereafter made. Held, that such decree substantially and completely determined the rights of the parties, and was appealable, though the main suit had not reached a final decree.</p> <p>⅛ Eq triTY Practice — Intervention—Parties.</p> <p>The complainant in a foreclosure suit Is bound to take notice of an Ini ervehtion in the suit and the proceedings thereunder, and, if such complainant does not ask to be heard, or take measures to procure a rehearing, or show objections to rhe decree, he cannot, on appeal therefrom, object that lie was not made a party to the intervention. McLeod y. City of New Albany, 1:5 O. C. A. 525, (5(5 Fed. 978, followed.</p> <p>8. Same — Hearing.</p> <p>A court of equity may hear an Intervention, without a reference to a special master.</p>

This wsis a suit by Patrick Meehan and James Meehan against Ray W. Jones to quiet title to certain lands. The cause was heard on the pleading and proofs.

<p>Appeal from the Circuit Court of the United States for the Southern District of California.</p> <p>This was a suit commenced by John S. Doe against the Waterloo Mining Company, pursuant to Rev. St. §§ 2325, 2326, to determine the right of possession of mining lands for which conflicting applications for patents had been filed. A demurrer to the complaint was overruled (43 Fed. 219), and a decree was rendered for the defendant (55 Fed. 11). Complainant appeals.</p>

This was a suit by Edward D. Merrill, Roniain Shier, Amos Houlton, Nathaniel Crockett, Horatio Houlton, and Joseph Cagnon against the Chicago, St. Paul, Minneapolis & Omaha Railroad Company to cancel a patent for certain lands and restrain the prosecution of actions of ejectment. The circuit court dismissed the bill.

<p>1. Bills and Notes — Parties—General Law.</p> <p>By the general commercial law, parties who place their names on the back of a promissory note, before its delivery, for the purpose of giv- . ing credit "to the maker,' are joint makers of the note,' and will be so treated in the. federal courts, though the note is made in a state whose courts hold such parties to be indorsers.</p> <p>2. General Commercial Law — Right of States to Change.</p> <p>The several states are not without power to change, by statute, the general commercial law, but each state has the right to impose such conditions and limitations upon contracts, not inhibited by the term of its own or the federal constitution, as it may see proper.</p> <p>8. Same — Massachusetts Statute..</p> <p>. The Massachusetts statute (St. 1874, c. 404) providing that “all persons becoming parties to promissory notes payable on time, by signature on the back thereof, shall be entitled to notice of non-payment thereof the same as endorsers,” is a valid exercise of the power to change the general commercial law, and becomes a term of the contract, evidenced by a note made in Wisconsin, while such statute was in force, and delivered, and payable in Massachusetts.</p> <p>4. Bills and Notes — Indorsers—Notice—Known Insolvency of Maker.</p> <p>The fact that the maker of a note is known by the indorser, at the time of the indorsement, to »be insolvent, does not dispense with the necessity of notice to the indorser of the dishonor of the note.</p> <p>o. Same -Directors op Corporation.</p> <p>Nor does tlie fact that tlie indorsers constitute a majority of the board of directors of a corporation (the maker of the note) dispense wiih the necessity of such notice. Hull v. Myers, 10 S. E. 053, 90 Ga. (>74, disapproved.</p>

This was an action by William Deavers against Samuel Spencer, E. W. Huidekoper, and Reuben Foster, receivers of tbe Richmond & Danville Railroad Company, to recover damages for personal injuries. Judgment was rendered in tbe circuit court for tbe defendants. Plaintiff brings error.

This was an action by R. L. Sabin against J. B. Fogarty. The case was heard on a motion to punish J. C. Lloyd and W. M. Stinson for contempt for disobeying and resisting process of the court. In an action at law by R. L. Sabin against J. B. Fogarty, a writ of attachment against the property of the defendant was sued out in this court, and, by virtue thereof, a levy was made upon real and iiersonal property, including live hogs, as the property of the defendant.

<p>Perjury — False Affidavit by Purchaser of Timber Lands.</p> <p>Applicants to purchase limber lands are required by statute to file an affidavit that the land is unfit for cultivation, uninhabited, and unimproved, and, to the best of the applicant’s belief, contains no Valuable mineral deposits, etc. The land department, by its regulations, has prescribed the additional requirement that the applicant shall swear that he personally examined the land. Held, that a charge of perjury may be predicated upon a false statement in the affidavit that the applicant personally examined the land; for the statute defining perjury in such cases (Act March 3, 1857; 11 Stat. 250) includes affidavits made in compliance with “orders, regulations, or instructions” concerning public lands issued by the department officials, as well as those made in compliance with acts of congress.</p>

This was an action by Ililand II. Wheeler against Joseph E. Cobbey for damages for infringement of a copyright. The defendant demurred to the petition.

<p>Patents — Construction op Claims — Hammocks.</p> <p>Tlie Palmer patent, No. 271,510, for a “liammock or bed bottom,” construed liberally, as covering a very useful and novel invention, and being of a primary character; and claim 1 thereof held infringed, claim 2 hel-i not infringed.</p>

This was a bill in equity by tbe P. H. Murphy Manufacturing Company against the Excelsior Car-Roof Company for alleged infringement of a patent for an improvement in car roofs.

This was a suit by Charles Head against Samuel W. Porter for alleged infringement of a patent. On motion to dismiss the bill on the ground that the suit has been abated by the death of the defendant.

This was a libel by Louis Bolden against S. Jensen and J. M. McLean to recover damages for cruelty and personal injuries inflicted upon him as a seaman upon a Chilian ship. Defendants, having been taken in custody under a warrant of arrest issued pursuant to admiralty rule 2, moved the court to quash the same and discharge them, and exonerate their sureties. This motion was heretofore denied. 69 Fed. 745. The cause is now heard upon the merits.

<p>1. Admiralty Practice — Libels in Eem — Intervention by Mortgagee.</p> <p>A mortgagee of a vessel may intervene in a suit in rein, for the purpose of resisting liens sought to be established by libelants.</p> <p>2. Maritime Liens — State Statutes — Supplies in Home Port.</p> <p>Liens given by state statutes for supplies furnished in the home port may be enforced in the federal courts, and are entitled to priority over a previously recorded mortgage; but they are subject to tlie conditions imposed by the state statute, and must be enforced within the statutory limit of time.</p> <p>15. Same — Laches.</p> <p>Liens for wages accruing subsequently to a recorded mortgage have priority; and, where the mortgagor has control of the vessel, the rule of laches will not be as rigidly enforced as when subsequent rights have intervened. No fixed period of time will be established as air inflexible rule for the determination of laches, but every case must depend upon its peculiar equitable circumstances.</p>

<p>Removal of Causes — Tlvik of Application.</p> <p>Under the practice in Virginia, a summons against a defendant is made returnable at a rule da.v of the court following its issue. Upon tliat day, if the defendant fail to appear and plead, an order is entered that judgment go against him, unless he appear and plead at the next rule day; and at such next rule day (he defendant may plead to the merits, but any dilatory plea must be filed on the rule day to which the summons is returnable. llfhl, that a petition and bond for removal of a cause to a federal court, filed on the second rule day, at which a jilea to tile merits is due, is filed in time. Alariin’s Adm’r v. Railroad Co., 14 Sup, Ot. 533, 151 U. S. 078, distinguished.</p>

This was a suit by the town of Andes, N. Y., against Mary E. Millard and others to vacate a judgment or enjoin its collection. The defendants demurred to the bill.

This was a suit by the Mercantile Trust Company against the Atlantic & Pacific Railroad Company and others for the foreclosure of a second mortgage. The United States Trust Company, trustee ■in a first mortgage, and a party to the suit, petitioned for leave to bring an independent suit for foreclosure of such first mortgage.

This was a bill by O. X. Nelson against the First National Bank of Killing-ley to vacate a judgment in favor of defendant. Complainant moved for an injunction pendente lite to stay execution on the judgment.

<p>L ADVERSE POSSESSION — LIMITATION OR ACTIONS.</p> <p>Under the Ohio statute which provides that “an action for the recovery of the title or possession of real property can only be brought within twenty-one years after the cause of action accrues” (Smith & B. Rev. St. § 4977), and the construction placed tliereou by the supreme court of the state, an open, notorious, exclusive, and adverse possession of land for 21 years, with or without color of title, whether continuous in the first possessor, or tolled- in persons claiming under him, and whether with or without knowledge of the existence of another title, confers upon the original possessor, or those claiming under him, an indefeasible title in fee.</p> <p>2. Courts — Following State Decisions — Rule on Property.</p> <p>State decisions construing the state statute of limitations in respect to real property, and declaring' wliat constitutes adverse possession, and the effect thereof when continued for the period of limitation, constitute a rule of property binding- on the federal courts of law and in equity in adjudicating upon titles to lands within that state.</p> <p>3. Tenancy in Common — Disseisin.</p> <p>The rule that a tenant in common in possession is presumed to hold in the right of his cotenants, .as well as himself, until notice is brought home to thorn of an intention to disseise them, lias no application to any case except where the possession was avowedly begun as a tenant in common, or under a deed which defined his title as such. 47 Fed. 154-, reversed.</p> <p>4. Same — When.Entry is an Ous'tek.</p> <p>An entry and possession under general warranty deeds in foe simple, with claim of exclusivo ownership in fee, is an ouster of all other persons claiming an interest in the land at and from the time they have a right of entry, and it is immaterial that such deeds actually vest only a life estate or an undivided interest, filie extent of the estate purporting to be conveyed characterizes the entry and subsequent possession. 47 Fed. 154, reversed.</p> <p>5. Same — Ouster uy Adverse Possession.</p> <p>Where one having a life estate executes deeds in fee simple, with covenants of general warranty, and (he grantees take possession thereunder, claiming exclusive ownership in fee, and continue such possession in the same manner after the death of the life tenant, such continued possession is an ouster of persons 'claiming to be cotenants, whose right of entry accrued on the death of the life tenant. 47 Fed. 154, reversed.</p> <p>6. Same — Purchase oe Outstanding Interest.</p> <p>One in possession under a deed which purported to convey a fee-simple title, hut which in fact vested only a life estate (because the grantor had no more), procured another to buy in undivided interests in remainder claimed by certain’ heirs, and afterwards took from such purchaser a .deed conveying a fee-simple title, in language necessarily implying that there were no other heirs to the property, other than those whose interests were thus conveyed. Held that, whether the possession of the grantee was thereafter to be reférred to this deed or to his original deed, his claim of title was wholly inconsistent with, and necessarily excluded, any implied admission or avowal that he was holding in common with or for the benefit of any other persons,who might claim an interest in remainder by heirship or otherwise. 47 Fed. 154, reversed.</p> <p>7. Same — Evidence oe Adverse Claim — Conveyances.</p> <p>It seems that a tenant in common of one continuous tract of land, who has entered thereon under color of title to exclusive possession, may show subsequent conveyances by him in fee, to others, of a much larger part of the tract than the share which he is admitted by his cotenants to have, for the purpose of establishing that his possession of the remainder was inconsistent with and adverse to the claim of such cotenants.</p> <p>8. Same-Adverse Possession — How Shown.</p> <p>A grantee entered into possession under a deed purporting to convey a fee-simple title, but in fact conveying only a life estate. Thereafter, and before the termination of the life estate, he executed mortgages in fee of the whole tract. He also brought a bill to quiet title, and averred therein his exclusive ownership in fee of the property. In a subsequent suit brought by him to perpetuate testimony, he made the same averment, except as to a small interest, which he first contested and then bought in. Shortly after the falling in of the life estate he gave mortgages in fee simple, covenanting that his title was clear, free, and unin-cumbered. In an action of ejectment afterwards brought against him by certain heirs to recover the whole tract, he pleaded not guilty. He also bought in the title claimed by c.ertain heirs, and took deeds reciting ' that he was holding adversely. Eeld, that these acts were sufficient to show that he claimed possession adverse to all the world.</p> <p>9. Same — Ouster oe Cotenant.</p> <p>The possession of a tenant in common, who entered as such, may become adverse to his cotenants without giving to the latter actual notice of their ouster or disseisin. He must “bring home” to them the knowledge of the disseisin, but he may do this by conduct, the implication of which cannot escape the notice of the world about him, or of any one who, though not resident in the neighborhood, has an interest in the property, and exercises that degree of attention in respect to it which the law presumes in every owner. 47 Fed. 154, reversed. In re Brod-erick’s Will, 21 Wall. 503; Webster v. Society, 50 Ohio St. 1, 33 N. E. 297; State v. Standard Oil Co., 49 Ohio St. 137, 30 N. E. 279; Williams v. Coal Co., 37 Ohio St. 583; Howk v. Minnick, 19 Ohio St 462; Hogg v. Beerman, 41 Ohio St. 81; Youngs v. Heffner, 36 Ohio St. 232, — followed. Chandler v. Ricker, 49 Vt 128; Zeller’s Lessee v. Eckert, 4 How. 289,— distinguished.</p> <p>10. Adverse Possession — Estoppel—Purchase oe Outstanding Title.</p> <p>A vendee is not estopped to deny the title of his vendor, and a person in possession under a claim of complete ownership has the right to fortify his» title by the purchase of any real or pretended titles without thereby holding possession in subordination to them.</p> <p>11. Same.</p> <p>Whether the acceptance of a deed of an outstanding interest by one In possession shall affect his adverse possession depends on all the cir-cumstanees surrounding it. Generally, if liis possession began under a claim of title in foe, the purchase of another title is not to be regarded as a change of attitude.</p> <p>12. Same— Unknown Heirs.</p> <p>Eren if the purchase by one in possession of the outstanding interests of certain heirs is to be construed as an admission that the vendors had title superior to that of the vendee, and as controlling' evidence of an intention on the part of the vendee to claim under the title thus acquired, the deeds cannot he held to he admissions of title in other heirs, and as evidence of an intention to claim under them, whore the existence of such other heirs was not. at the time known or suspected by the purchaser. A claim of title under an ancestor is not a claim of title under the lieir, when the heirship was not known or admitted; and acquiescence in the title of one lietr is entirely consistent, with a possession adverse to n coheir, when the fact of the relationship between the two is unsuspected, or is the point in dispute. 47 Fed. 154, reversed.</p> <p>13. Same.</p> <p>Persons in possession under a notorious, distinct, and specific claim of title in fee are not required, in order to make their possession adverse to all the world, to show that they have used due diligence in hunting up unknown heirs, and have failed to discover them.</p> <p>14. LIMITATIONS OR ACTIONS — Co.UMENTEMENT OP SlTITS IN DIFFERENT COURTS.</p> <p>The bringing of one action does not slop the running of the statute of limitations, when pleaded in a later action in respect, to the same property. Therefore, 1 lie beginning, before the expiration of the limitation period, of a partition suit in one court, does not stop (.lie miming of the statute, so as to avail the complainants in another partition suit instituted in another court after the period of limitation had expired.</p> <p>lo. Same — Disabimty op Coverture.</p> <p>In a statute making the period of limitation in respect to real estate 21 years, with a saving to married women of 10 years after the re moral of the disability of coverture (Smith & B. Rev. St. Ohio 1<SÍ)0, §§ -1077, 4978). the saving clause has no application to a case in which the disability was removed more than 10 years before the expiration of the 21 years.</p> <p>16. Equity Jurisdiction' — Waiver op ■Objections — Ai’peau.</p> <p>In a case usually cognizable in equity, as a suit for partition, an objection that, for a, special reason, the rights of the parties should first, he established at law, may he waived, and is waived, so far as an appellate court is concerned, by a failure to object: to the equity jurisdiction in the court below.</p> <p>On Petition for Rehearing.</p> <p>17. Appeat.ahue Decrees -Ftnauity — State Procedure.</p> <p>The question of the finality of a decree, for purposes of appeal or otherwise, in the federal courts, is not affected by the procedure in the state courts, but must be governed by the statutes of the United States and the procedure and rules of decision in the United States courts.</p> <p>18. Same — Partition Deoree.</p> <p>In a. partition suit a decree was entered settling the various undivided interests of the parties, finding that the parties demanding it were entitled to partition, and appointing commissioners to make the same, with authority to survey and allot the respective shares, and with directions, in case they found partition of any tracts impracticable, to report the facts to the court, to appraise every tract with and without improvements, and to fake testimony on all these matters and report their proceedings. The decree also referred the cause to a special master to report special facts as to improvements, rents, profits, taxes, and assessments, and required him to reduce the evidence to writing and report the same. The court: expressly reserved all questions as to improve merits, accounting of rents and profits, and allowances of taxes and expenses, for further order. Held, that this was not a final, appealable decree, and that consequently errors arising thereon could he assigned as error upon an appeal taken more than two years later from a subsequent final decree made in the cause. Green v. Fisk, 103 U. S. 518, followed.</p> <p>19. Same — Appeal—Action of Court Below.</p> <p>Upon an appeal from a final decree the appellate court, in determining the question whether a prior decree in the same cause, entered more than two years before the appeal was taken, was a final decree, so that no errors could be assigned thereon upon the present appeal, will give weight to the fact that the court below treated the former decree as merely interlocutory, by permitting amendments and by refusing the allowance of an appeal therefrom.</p> <p>SO. Limitation of Actions — Running of Statute — Doubtful Rights.</p> <p>The fact that the right of parties claiming an interest in lands by right of heirship and as remainder-men was considered very doubtful for several years after the falling in of the life estate, and until their rights were made clear by a decision in a suit between other parties, is no ground for holding that the statute of limitations was in the meantime suspended as against them.</p> <p>21. Appeal — Waiver and Correction of Irregularities.</p> <p>Where, by a misprision' of the clerk of the appellate court, an appeal is docketed as of a date prior to the time when the decree appealed from was in fact entered, but it appears that immediately after the filing of the transcript the appellees moved to dismiss the appeal on other grounds, which motion was overruled, hold, that this was a waiver of the irregularity, and that the same should be corrected so as to make the record speak the truth.</p>

In Eitot to tbe Circuit Court of tbe United States for tbe Western Division of tbe Southern Distinct of Obio. These were eight actions of ejectment brought against J. H. Sea-well and others by Melissa Allen and others, Susanna Brock and others, Urban Hidy and others, Maria Trumper and others, William Gates and others,.John Yates and others, Jane Smith and others, and Maria Loveless and others, respectively, to recover an undivided interest in certain land in Ohio.

<p>This was a petition of intervention filed by Charley Johnson against Thomas F. Oakes and others, receivers of the [Northern Pacific Railroad Company, to recover damages for personal injuries, received while in their employment.</p>

This is a bill in equity, filed by 10. T. Halsey, as receiver of the Kentucky Union Land Company, against the Clay City National Bank.

<p>Conversion — Measure op Damages.</p> <p>Plaintiff made a contract with one J. to sell him, for cash, the timber on certain pine lands. J., without paying the cash, used the timber to fulfill a contract with defendants to sell them lumber, to be made from the timber, at agreed prices, parts of which were to be advanced to him by defendants when the logs were skidded, and at other stages of their manufacture into timber; J. agreeing that the title to the logs should pass to defendants, and warranting the title. Defendants were ignorant of plaintiff’s rights. Held, that the proper measure of damages for defendants’ conversion of the logs, they being innocent purchasers, and having advanced the money expended in improving the value of the logs on the faith of a good title thereto, was the value of the logs at the time when they were skidded, and when the first advance was made by defendants. Wooden-Ware Co. v. U. S., X Sup. Ct. 398, 106 ü. S. 432, distinguished.</p>

,Tohn J. Iteimers, doing business as John 3. Reimers & Co., is a citizen and resident of Chicago, Ill. The Seatoo Manufacturing Company is a corporation organized and■ existing under the laws of the slate of Washington. The Michigan-Peninsular Car Company is a corporation of the state of Illinois, having an office and doing business in the state of Michigan, at Detroit.

<p>1. Clerks of Court — Suits for IJees — Auditing Claims.</p> <p>It is not a defense to an action by the clerk of a federal court against the government, to recover his fees, that his claim has not been audited by the officials of the executive department, nor that it has been disallowed by such officials.</p> <p>2. Same — Fees—Issuing Commissions.</p> <p>The clerk of the circuit court is entitled to a fee of one dollar for issuing each commission to a supervisor of election, appointed pursuant to Rev. St. §§ 2011, 2012.</p>

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

<p>In Error to the Circuit Court of the United States for the Northern District of California.</p> <p>This is an action to recover damages for the alleged wrongful expulsion of the defendant in error from a passenger car of the plaintiff in error. It was commenced in the superior court of tlie city and county of San Francisco, and, upon motion of the plaintiff in error, was removed to the United States circuit court. The complaint alleges that on the (Sth day of September, 1892, the plaintiff (defendant in error) became and was a passenger upon a train of cars operated upon the railroad of defendant (plaintiff in error), running from Seattle, Wash., to Portland, Or., for the purpose of being transported from Seattle to Portland, and had paid to the defendant the fare for such transportation; that while he was a passenger upon said train the defendant .wrongfully, maliciously, wantonly, and willfully assaulted, insulted, and maltreated the plaintiff, and by force and arms ejected him from the said train; that by reason of said acts the plaintiff suffered both physical and mental injuries, — and prayed for damages .in the sum of $10,000. The answer denies these allegations of the complaint. The case was tried before a jury, and a verdict was rendered in favor of the plaintiff for the sum of $310,</p> <p>Upon the trial, the plaintiff, to sustain the issues upon his part, introduced evidence to the effect that he was a merchant engaged in business at San Francisco, Cal., and at Seattle, Wash.; that he had purchased of the defendant a round-trip ticket from Portland to Seattle and return, which, among other things, required that the holder must be identified as the original purchaser of the ticket by writing his or her signature on the back thereof, or by other means, if necessary, in the presence of the ticket agent of the Northern Pacific Railroad at Seattle, Wash., who will witness the same, otherwise it will not be honored for passage; -that he had. made the trip from Portland to Seattle on this ticket; that on the 6th day of September he sent a messenger to the ticket office of defendant at Seattle to reserve a sleeper; that about 10 o’clock on the evening of said day he went to the ticket office, and asked the agent if he had a sleeper; that the agent replied, “What is your name?” and then asked him for his ticket; that he handed over the ticket in question; that the agent took it, and- laid it on the board, and gave him a pen, and said to him, “Please sign that”; that he signed it, and handed it to the agent; that the agent took it to the rear end of the ticket office, and came back with a ticket berth for the sleeper; that the agent folded both tickets together, and handed them over to the plaintiff, who thereupon paid to the agent the sum of two dollars for the sleeper ticket; that plaintiff then put the folded tickets in his pocket, got on the train, and, after getting a check for his sleeper berth, went to bed. As to what occurred on the train the plaintiff testified as follows: “I was asleep when the conductor came around, and he asked for my ticket. I had put my ticket under a pillow, in order not to be annoyed, so I could get it when asleep, — under my pillow, in order to' have it handj>- when the conductor comes. So I handed him the ticket, and he looked at it, and he told me that I could not ride on that ticket. I was surprised, and thought may be I gave him the wrong ticket or something, and I asked him what the trouble was with it, and he said, ‘That ticket won’t go,’ and I explained the' matter to him. X looked at the ticket, — examined the ticket, — and seen where there was a place where it says, ‘Station agent stamp here,’ and I seen there was no stamp on it. I explained the matter to him, and X says, ‘I have done my part.’ I presented the ticket in the presence of two of our men from the store, and I described to him what I had done in regard to it, and that the ticket was all right; that I got the ticket, and paid for it, and signed it in his presence, — all that was required of me to do; and he says, ‘That don’t make any difference. I know my business, and the ticket ain’t no good, and you cannot ride on it.’ I told him I had positively paid for the ticket, and it was my own until I had used it up, and ‘I am going to ride on it.’ He says, ‘You cannot; and I know my business; and you cannot ride on this ticket.’ And -we talked the matter over for some time, and I hated to get out of bed,.and told him so. And he says: ‘You have either got to pay your fare or get off.’ I told him: ‘You mean, according to that, I have got to get out of bed and dress myself?’ He says, ‘That is what you have got to do,’ and'I got up and dressed myself, and before I got through dressing the train stopped, and the conductor came .to me, and I was not quite done yet, and he waited until I got through, and he says, ‘Now get off the train.’ I told him: ‘No, I would not. I wanted to ride on the train, and I had paid my fare, and I did not want to get off.’ He says, ‘All right; I will put you off.’ I says, ‘All right; you will have to' put me off. I won’t go until I am put off.’ He says, ‘Have you any baggage,’ and I says, ‘Yes,’ and I pulled a satchel from under the bed, and I am not positive, but I think the porter took my satchel, and he led me out of the train onto the platform. When I was on the platform, it looked really — I could not see any light — only a small station there, and asked him if he knew where I could find a hotel or place to stop over night, and he says he don’t know; he don’t care a damn. I looked around tiiere, and did not like to lay out all night, and did not see any place where I could go to. I told him, ‘I think 1 had better pay my fare and go on,’ and 1 went on the train, and paid iny fare, and went on. * * * Í was excited, and felt bad on being put off of the train. Never had anything of that kind happen to me before, and T travel a great deal. I felt naturally insulted and degraded, and consider I was treated just like a tramp in being put off the train. 1 talked to the conductor in reference to the affair, and told liim who I was, and told him I was certainly put off the train wrongfully ; explained the matter to him; told him how the whole thing- happened; told him the same thing over again before he put me off; and the conductor told mo he was satisfied in his mind that r -was the right man, that it was my ticket, and that 1 was the rigid; parly; and 1 told him that I belonged to the firm in Seattle, and he 1old me that he had Ills instructions, and lie had to do according- to his instruct ions.” There was a conflict in the evidence as to what occurred al lite ticket office between the agent and the plaintiff. The defendant, at the close of the case, moved the court to instruct the jury to find a verdict for defendant, which motion was denied. The court, after stating the conditions on the ticket, and the notice given to the passenger “that it will not be good unless so signed, witnessed, and stamped,” and Hint this notice was substantially a part of the terms of the ticket, charged iho jury as follows: “Therefore it was the duty of the plaintiff to present the ticket to an agent for signing and witnessing- and stamping. When so presented and signed, it was the duly of the agent, to witness and stamp 11. There is a controversy, between the plaintiff and defendant as to what was done, which you are to decide from the testimony; and If you find from the testimony and evidence that the plaintiff did present himself to an agent, and sign the ticket in his (the agent’s) presence, and the agent took the ticket, and returned it in such a way and under such circumstances as to justify plaintiff in believing that he, the agent, had witnessed and stamped the ticket, and plaintiff, so believing, entered the train, he was a legal passenger: and if you find from the evidence, further, that he explained to the conductor the circumstances, he had a right to refuse to pay or deposit a fare with the conductor; and his removal from the train, if you find from the evidence he was removed, was unlawful.”</p>

<p>1. Obtminai. Pleading — Conspikacy—Itev. St. § 5440.</p> <p>In an indictment under Rev. St. § 5140, for conspiring to defraud, tlie United States, it is sufficient to charge an unlawful combination and agreement as actually ma.de, and in addition to describe any act by one of the parties, as an act relied on ¡o show the agreement in operation, without showing liow such act would tend to effect: the object, or that the object was actually effected.</p> <p>2. Sauk.</p> <p>An indictment under Rev. St. § 5410, against B. and R., for conspiracy to defraud the United States, charged that B. and R. on a certain day did conspire together, etc., to defraud the United Status of ¡⅞2,500, in the manner following: That they, knowing that a contract had been made between one S'., a United States deputy surveyor, and the United States surveyor general for California, for the survey of certain lands, to be made by E. personally, and the field notes thereof filed with the surveyor general, upon approval of which payments were to be made (the contract being set out in detail), and in pursuance of the conspiracy B., with the intent to effect tlie same, caused a fraudulent, fictitious, and pretended survey of the lands to be made, and fraudulent field notes to bo made, whereby the surveyor general was deceivécl into certifying tlie amounts due to If. Held, that the indictment was sufficient, though it failed to show how the acts charged would tend to effect the fraudulent object, or that B. and ft. had actually profited by the conspiracy.</p>

<p>1. Federal Courts — Jurisdiction—Habeas Corpus — Rev. St. § 753.</p> <p>The treaty between the United States and the Bannack Indians, made in 18C8, xu'ovided (article 4) that the Indians should have the right to hunt on the unoccupied lands of the United States, so long as game should be found thereon, and so long as peace should subsist between the whites and Indians on the borders of the hunting district. The state of AVyo-ming, after its admission to the Union, passed an act making it a misdemeanor to hunt or kill elk, and some other kinds of game, within.the state, at certain seasons. One R., a member of the Bannack tribe, in a time of peace between the whites and Indians, killed a number of elk during the prohibited season, upon a tract of country, about 30 by 30 miles in extent, within the boundaries of the state of AAryoming, of which tract a small xiart had been surveyed by the United States, and opened to settlement, and the remainder was unsurveyed. A few settlers, not exceeding seven in number, had established ranches at points within the tract, and cattle ranged in the valleys and along the streams, wild game being also abundant throughout the tract, and the country being generally mountainous and wooded. The point at which the elk were killed was not within the limits of any settlement. E. was arrested and prosecuted by the officials of the state of AAryoming for violation of the statute, and applied to the United States circuit court for discharge ux>on habeas corpus. Held, that the federal court had jurisdiction, under Rev. St. § 753, to issue the writ, and to determine whether or not R. was restrained of his liberty in violation of the treaty.</p> <p>2. Indian Treaties — Hunting Rigiits — Unoccupied Lands.</p> <p>Held, further, that the tract of country within which the elk were killed constituted unoccupied,lands of the United States, within the meaning of the treaty with the Indians, notwithstanding the presence of a few settlers thereon, and the fact that it was within the boundaries of the state of AVyoming.</p> <p>3. Same — Effect of Admission of State.</p> <p>Held, further, that the admission of AVyoming as a state, upon an equal footing with the original states, as well In respect of the exercise of the police power as otherwise, did not abrogate the provisions of the treaty in reference to the rights of the Indians in the lands within the state.</p> <p>4. Same — Inconsistent State Laws — AVyoming Statute.</p> <p>Held, further, that, as the iirovisions of the state statute were inconsistent with the treaty, and as the latter, under the constitution, was paramount, the statute could not he enforced against the Indians, and that R. should he discharged from custody.</p>

<p>TbADK-MauxS — MlSRErBKPKWTATrON.</p> <p>One C. B., father of complainant, in 1837 began the business of manufacturing and selling boots and shoes of liigli grade, upon all of which he placed his name “0. B.,” as a trade-mark. In 1860 ho took complainant into partnership under the firm name “O. B. & Son,” which was thereafter affixed to the boots and shoes as the trade-mark. In 1874 0. B. sold his interest in the linn to complainant and his two brothers, whose interests were bought in 1875 and .1877 by complainant, who thereafter continued the business alone; the name “0. B. & Son” being-continuously used from I860 as the name of the firm, and as the trademark oil the boots and shoes, which had become known by that name, and liad acquired a reputation for their quality, llehl, that complainant was not guilty of any misrepresentation, in so continuing the use oC the name without indicating the changes in the actual manufacturers of the boots and shoos, such as to bar the right in equity to restrain infringements of the trade-mark.</p>

This was a suit in equity by Camille Poirier against Gabriel Olementson, Jr., Tobias Olementson, and Martin Olementson, for alleged infringement of a patent for an improvement in pack straps.

This was a bill by the Westinghouse Air-Brake Company against the Burton Stock-Car Company for alleged infringement of letters patent No. 370,837, granted January 21, 1888, to George Westinghouse, Jr., for an improvement in air brakes.

<p>This was a suit in equity by the G-ould Coupler Company against Pascal P. Pratt and others for alleged infringement of two patents relating to car-couplers.</p>

This was a libel by Deo Lomm, master of the steaming Dauntless, against the steamship Olandeboye, W.'ll. Strickland, master, claimant, to recover compensation for salvage service. The circuit court rendered a decree awarding salvage in the smn of $10,000, from which the claimanl has appealed.

<p>Appeal from the District Court of the United States for the Eastern District, of Pennsylvania.</p> <p>This was a libel in rem by Nathaniel T. Bacon to recover the steamer Poconoket from the possession of the Interstate Steamboat Company. The cause was heretofore heard on a rule against libel-ant for security for damages and for increase of security for costs. 61 Fed. 106. Subsequently the libel was dismissed upon the merits (67 Fed. 262), and the libelant appeals.</p>

<p>1. JURISDICTION OF FEMORAL COURTS — DIVERSE CITIZENSHIP — FArMTRE TO ÜE-EKN I>.</p> <p>Where a federal court once acquires jurisdiction l>y reason of tlie diverse citizens hip of the parties to an actual controversy, such jurisdiction is not arrested by the fact that, after the action is begun by service of process, defendant does not continue to resist complainant’s demands.</p> <p>2. 8 V M K- -- A P COIN TM K.N T OP RaIT.KOAD RECEIVERS.</p> <p>In a suit against a railroad company by a citizen of another state than that of its incorporation, to enforce an express lien on accrued earnings and. income, without, seeking to dislur 1) any superior liens, a federal court lias jurisdiction to tain1 possession of the railroad and appoint receivers, In advance of an application for foreclosure of a mortgage; and it may sell the propei i.v subject to all superior liens, and distribute the proceeds equitably among those entitled thereto.</p> <p>8. ['¡YMK- CITIZENSHIP OF ÍNTKISYENKJtS.</p> <p>Whore a federal court has acquired jurisdiction, by reason of diverse citizenship, of a suit against a railroad company, and has appointed receivers, it does not lose jurisdiction when other parties interested in the properly inierveue, and a re mudo parties, even though some of them be citizens of the same stale with those whose interests in the property are adverse to the interveners.</p> <p>4. Sauk — Foniíci.osriiE op Intervener's Mortgage.</p> <p>¡duit vas brought by a citizen of Vermont to enforce, an express lion on income and earnings of a New York railroad corpora lion. The court took possession of the railroad, and appointed receivers, with tlie consent of I he company. A mortgagee, which was also a New York corporation, intervened. and filed a. cross bill for foreclosure, and an independent foreclosure suit also commenced by it was consolidated with the sail in question. Ihld. that the court, having properly acquired jurisdiction of tlie property in the first place, retained it for ÜK1 purposes of foreclosure and sale, and to dispose of idle claims of all parties, whatever their citizenship.</p>

The appellants are the holders of receiver’s certificates Issued by the receiver of the Birmingham, Powderly & Bessemer Street-Railroad Company, appointed in two causes in the court below, In each of which the appellees’ were complainants and ¡lie said street-railroad company was defendant.

Tins was an action by Henry B. Lowe against the Pioneer Threshing Company and W. E. Blodget and others, its directors, for an injunction and receiver.

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>In equity. Bill by Leo. A. Brigel and Logan C. Murray, trustees, against the Tug River Coal & Salt Company and others, to foreclose a mortgage, and for further relief. There was a decree for complainants, and the Tug River Coal Sc Salt Company appealed. The circuit court of appeals reversed the decree for failure of the bill to show jurisdiction in the circuit court, though the objection was not raised below, and remanded the case, with instructions to dismiss the bill, in the absence of an application to amend so as to show jurisdiction. The circuit court of appeals awarded the appellant costs in the circuit court, and divided the costs of the appeal. 67 Fed. 625, 14 O. C. A. 577.</p> <p>The appellees moved (1) to modify the judgment as to costs, so as to show affirmatively that whatever judgment is rendered is against the appellees as trustees, and not in their individual capacities, on the ground that this was not a proper case in which to charge trustees personally with costs; (2) to modify the judgment so as to allow any judgment for costs to be set off against the debt due by the appellant to the appellees as trustees; (3) to vacate so much of the judgment as awarded to the appellant the costs in the circuit court, on the ground that the circuit court of appeals,- on reversing for want of jurisdiction in the circuit court, cannot award such costs.</p>

<p>1. Warranty of Chattels — Remedies for Breach.</p> <p>When a chattel is sold with a warranty of quality, accompanied by an agreement that if it xiroves to be inferior in quality it may bo returned to the seller, or exchanged for another article, the buyer, uiion breach of the warranty, is not restricted to such special remedy, but may waive it and sue for the breach of warranty.</p> <p>2. Same.</p> <p>Defendants sold plaintiffs a stallion, warranting him to be a reasonable foal getter, and agreeing, if he should prove not to be so, to replace him with another horse, if returned as sound and in as good condition as when purchased. The stallion having proved not to he a reasonable foal getter, held, that plaintiffs were not hound to return him to defendants, or give them an opportunity to simply another horse, but might sue defendants for breach of the warranty.</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the Northern District of Ohio.</p> <p>This was an action upon an open account, begun in the- Lucas county court of common pleas, and removed by the defendant, upon the ground of diversity of citizenship, into the circuit court of the United States. The account upon which the salt ivas brought embraced very large transactions, and ivas for coal sold and delivered to the plaintiff in error, or on his order, to the amount of $272,898.8(5, and was credited with payments aggregating $2(50,(522.152. Tile suit was for a balance claimed to be due, of $7,27(5.48. The defendant, by pleadings authorized by the code practice of Ohio, denied any liability. After issue had been duly made up, a written stipulation was tiled, by which the. parties agreed that an order should be made referring the issues to a special master, to be appointed by the court, who should take evidence and report same to the court, together with his conclusions of fact and law. It was further provided that either party might lihi exceptions to this report, to be disposed of by the court, and the report confirmed, modified, or re-referred, and that “the rights of the parties hereto shall in all respects be as though the said action was one within the provisions of section 5222 of the Revised Statutes of Ohio.” in compliance with this stipulation, a special master was appointed, and a reference ordered-in accordance with the agreement entered of record. A large mass of testimony was taken in writing, by this special master, bearing upon the issues submitted, and much documentary evidence received, all of which he reported to the court, together with his special findings of fact and his conclusions of law, upon which he found in favor of the plaintiff for $2,251.-5(5, with interest from February R!, 1888. To the report the defendant filed a number of exceptions, all of which were overruled. The court then confirmed the report, and rendered judgment in favor of the plaintiff for the amount reported due. This judgment concludes with the recital that “to all of which orders and rulings of the court overruling said exceptions of defendant, and ghing judgment, upon said report, the defendant hereby excepts.” This constitutes the only statement of exceptions reserved upon the trial by the court. A bill of exceptions was drawn and allowed, which includes the stipulation for a reference, the report of the special master, including the whole of the evidence filed by him as an exhibit to his report or findings, and the exceptions filed by plaintiff in error to that report. Plaintiff in error then sued out this writ of error, and has assigned as error ihe action of the court: in oierruliug the several exceptions filed to the report of the special master.</p>

<p>1. Judgment — Correction op Errors — End or Term.</p> <p>Courts liave power to correct their judgments (as distinguished from altering or amending them), after the end of the term, so as to make them conform to the fact; that is, to the actual proceedings in court, and the judgment directed to be entered thereon. This power, however, should be cautiously and discreetly used.</p> <p>2. Same — Notice to Parties.</p> <p>Judgments may be corrected after the end of the term in two classes of cases: (1) Where the necessity for the correction, and the matter from . which it is to be made, appear upon the face of the record; (2) where justice requires a correction to be made from matters resting in the recollection of the judge, or in evidence aliunde. In the former case, notice to the parties is unnecessary; in the latter, if the matter rests in the recollection of the court, it is doubtful whether notice is required; if it rests in evidence aliunde, notice is necessary, and the correction would be void without it.</p> <p>8. Same — Judgment on Cognovit Notes.</p> <p>Where an action'was brought on 12 promissory notes, each containing a warrant of attorney authorizing any attorney at law to confess judgment, and a cognovit was filed by an attorney styling himself as such, hut the judgment entered recited that the cognovit was filed by defendant’s •‘attorney in fact,” and that the judgment was for the amount clue “on the note,” held, that the judgment might he corrected in these particulars, after tl^e end o’f the term, by an order nunc pro tunc, without notice to defendant.</p> <p>4. Same — Warrants op Attorney — Joinbek op Causes op Action — Promissory Note.</p> <p>Where 12 promissory notes were given by the same party at the satne time, each containing a warrant of attorney authorizing any attorney at law to confess judgment thereon, and all the notes came into the hands of jplaintiff, who sued upon all in one action, held, that the authority given by the warrant of attorney extended to the filing of a cognovit in that action covering all the notes, and that it was not restricted to confessing judgment upon each note in a separate suit thereon.</p>

<p>1. Limitation of Actions — Disability op Coverture — Joint Suit by Husband and’ Wipe.</p> <p>The exception in the statute which prevents the limitation from running against a married woman during the disability of coverture (Itev. St. Tenn. [Mill & Y. Code 1884] § 3431) does not disqualify her from suing to recover damages for personal injuries, before the disability is removed, if she joins her husband as a nominal plaintiff.</p> <p>2. Torts — Personal Injuries to Wife — Separate Causes op Action.</p> <p>Two entirely separate causes of action may arise from an injury to the person of a wife during- the disability of coverture, — one for the injury to her, and the other for the damages resulting to the husband from the loss of her services and society, as a consequence of the injury. Though these rights of action have their origin in the same injuries, the damages are distinct, and cannot he recovered in one action.</p> <p>3. Same — Joint.Suit—Wipe's Cause of Action.</p> <p>The only damages resulting from personal injuries to a wife which may be recovered in a joint action by husband and wife are those accruing to the wife herself, and which would survive to her on the death of her husband.</p> <p>4. Limitation of Actions — Waiver of Exceptions — Personal Injuries to Wife — Joint Action.</p> <p>The fact that a wife who has sustained personal injuries during- the disability of coverture elects to sue upon her cause of action before the disability is removed, and to that end necessarily joins her husband as nominal plaintiff, does not operate as a waiver of the exception in her favor, contained-in the statute of limitations; and she may bring such suit any time during coverture, even though the husband’s separate cause of action would be barred.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the District of Washington.</p> <p>Tliis is an action at law to recover damages for personal injuries received by McLaughlin, the defendant in error, .while in the employ of the railway conrpany, plaintiff in error. The action was commenced in the state court, and thereafter removed, on motion of the railway company, to the United States circuit court. The complaint alleges, in substance, that McLaughlin, 0⅞ the 5th of November, 1892, was in the employ of the railway company, engaged in loading steel rails in the material yard of the company near Spoicane; that ho and his colaborers were working under the direct charge, supervision, and .control of the superintendent of the yard in putting iron and steel rails upon the flat cars of the railway company; that while he and his colaborers were pushing a steel rail upon two steel or iron skids one of the skids slipped, and fell down, causing the rail to fall back upon him, striking him upon the thighs near the abdomen, and throwing him backward across a pile of angle bars and over and upon a pile of steel rails, bruising and wounding his abdomen and thighs; that the steel rail rebounded, and'struck him upon the left leg, immediately above the ankle, lacerating and wounding his leg and injuring the bone; that in falling back he was thrown with great force, coming in contact with the steel rails, so as to injure and bruise his right hip and kidney, 'and for a long time paralyzed his legs and hips; that all of said injuries caused him great bodily pain; that said injuries were caused by the gross negligence and carelessness of the railway company, its agents and servants, and without fault on his part; that the injuries were caused by the use of improper skids for the purpose of loading steel rail's upon the cars, and the improper and negligent placing of the same by the railway company, its agents and servants; that he was totally ignorant of the danger in which he was placed, and of the imperfect skids used for loading the rails, and of the negligent and careless way in which the skids were placed. The injuries which McLaughlin received, and the expenses incurred by reason thereof, are particularly stated. After the removal of the cause to the circuit court, the railway company filed a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. On the same day, without any action being asked for or taken upon the demurrer, the railway company filed its answer, admitting the employment of McLaughlin, and that he was injured while in such employ; but. denied that he was under the direct charge, supervision, or control of any superior officer of the company, and, for affirmative defense, alleged that it furnished due and proper means and appliances for the loading of its cars; that the injuries which McLaughlin received were caused by his own unskillfulness and negligence and that of his colaborers, who were fellow servants, in using the means and appliances furnished by the conrpany; and that he was not injured by any of its fault or negligence. Upon the issues thus made the cause was tried before a jury, and a verdict rendered in favor of McLaughlin for $5,000. The railway company moved the court for a new trial, which was denied.</p> <p>-The testimony at the close of the trial tended to show that a Mr. Tubby was the general superintendent and storekeeper of the yards for the railway company; that one Johnson was the general foreman of the yard; that he hired and discharged the workmen and directed and controlled their movements, and had supervision of the loading and unloading of the iron'and steel rails in the yard; that on the morning of the injury to McLaughlin there were three or four gangs of men engaged in loading cars at the same time, each gang consisting of from eight to twelve men, and each having a boss or head workman; that there were eight or ten pairs of skids lying along the track and scattered about in the yard, of different lengths, which had been used off and on for about two years; that some were shorter than others; that they were ordinary steel rails, some of them having fishplates or angle bars fastened on one end and bolted, and when used one end of the skid was placed on the side of the flat car and the other end rested on the pile of steel or iron to be loaded; that the workmen generally selected the skids for use and put them in place; that the iron pile grows lower as the rails are loa.ded, and the load on the car grows higher, and the angle of the skids steeper; the rails are slid up the skids by sticks used by the workmen; that McLaughlin had been employed in tlie business of loading the cars in this manner for about two weeks, and had, at different times, assisted in putting up tlie skids; that on the morning of the injury Johnson directed him to go to Collins’ gang, and help them load tlie car; that he went there, and some one said, “The oil can is dry;” that he took the can, and went away, tilled the can with oil, and upon his return a. fellow workman oiled the skids: that he went to work, with others, shoving up the rails on the skids; that when tlie third or fourth rail was partially moved about six. or seven feet upon the skids, the one furthest from him fell, the rails dropped, and he received the injuries set forth in Hie complaint; that while McLaughlin was absent Johnson picked out the skids to be used on this car, and directed the workmen present to put them up; that when the skids were brought to the car the workmen hesitated, and objected to putting them up, on tlie ground that one skid was shorter than tlie others, and told Johnson they were not safe; that Johnson (lien examined tlie skids, and saw (hey were of different lengths, and thereupon lie said to (he men that ilie skids were all right, and ordered them to go ahead, and put them up, and go to work loading the car, as ho was in a hurry to have it loaded; that (he cause of tlie injury was occasioned by the defect in the skid that, fell being too short, and a little crooked; neither of the skids had fish plates attached thereto; that McLaughlin had no knowledge or information of the defect in the skids, did not know their lengths, or (.he manner in which they were put up, or whether they were tit for the purpose for which they were used; that he did not examine them, and had no reasonable opportunity to do so, and lie testified that he would not have engaged in the work of loading the car liad he known that either of the skids was imperfect; that it was the shortest skid that fell, it being seven or eight inches shorter than the others, and unfit to use for that purpose; that Collins was in charge of the gang when the rail fell, Johnson having gone away.</p> <p>There was more or litss conflict in the evidence as to whether the injury was caused by the defective skid, or by the negligence of tlie workmen in irregularly pushing up tlie rails on the skids. There was also some conflict as to Johnson’s authority to hire and discharge men, and as to whether he was a vice principal of the railway company or a fellow servant with McLaughlin.</p>

Tills was an action at law by tlie Woodbridge & Turner Engineering Company against J. Rush Ritter upon a judgment rendered by the supreme court of the state of RTeiv Jersey. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal to Supreme Court.</p> <p>The jurisdiction oí the court is not drawn in question by the denial of the right of the plaintiff to the judgment entered in its favor, nor is the authority of the court to enter the judgment put in question by the.allcgation that it is erroneous, so as to allow a writ of error from the circuit court direct to the supreme court, under the act establishing circuit courts of appeals.</p>

<p>1. Federal Courts — General Law — -Imputed Negligence.</p> <p>The quesiion whether or not tjse negligence of a parent should be imputed to' a child of tender years is one of general law, upon which a federal court will be guided by its own views of that law, and is not bound by the decisions of state courts.</p> <p>2. Negligence — -Imputed—Parent and Child.</p> <p>The negligence of a jjarent, in permitting a child of tender years to wander from home alone, will not be imputed to the child if it is injured by another’s negligence while so wandering alone.</p> <p>8. Same — Child oi<’ School Age.</p> <p>It seems that, even if negligence of a parent were to be imputed to a child, it is not negligence to permit a child of school age to go alone, through the streets of a city, to school.</p>

This was an action brought by the plaintiff in error, a citizen of Alabama, to recover on a promissory note for $14,486.67, executed by the defendant in error, a citizen of New Jersey.

<p>1. Internal Revenue — Regulations Prescribed by Commissioner.</p> <p>Regulations made by the commissioner pursuant to the statutory authority, with the approval of the secretary of the treasury, in respect to the assessment and collection of internal revenue, have the force of statutes; and the acts of the commissioner are presumed to be the acts of the secretary.</p> <p>2. Same — Office Records— Privileged Communications — Defuty Coi,lector as Witness.</p> <p>A deputy collector of internal revenue cannot be compelled to testify, in a criminal proceeding in a state court, as to statements made to him by an applicant for a special retail liquor dealer’s tax stamp, which statements wore ma.de for th'e purpose of being reduced to writing and embodied in the records of the internal revenue ofiice. To divulge such statements would be to divulge the contents of the records themselves, which is forbidden-by the internal revenue regulations.</p> <p>3. Habeas Corpus — Jurisdiction op Federal Courts.</p> <p>The federal courts have jurisdiction, under Rev. St. § 753, to issue the writ for the purpose of releasing a deputy revenue collector from imprisonment for alleged contempt of a state court in refusing to testify to the contents of the records of the internal revenue office.</p>

<p>Trade-Marks — Uinr air Competitiox.</p> <p>Plaintiff manufactured a remedy for tlie tobacco babit, to which it gave the name “No-To-Bac.” The remedy was prepared in the form of tablets, five-eighths of an inch in diameter, weighing 2S to the ounce, of a light gray color, odorless, and having the word “No-To-Bac” in raised letters on the surface. It was put up in tin boxes, of dark red color, bearing the word “No-To-Bac” and plaintiff’s name and address, conspicuously printed in black, with a description of its alleged qualities and effects, and directions for use, of which the first was an instruction to discontinue the use of tobacco. Defendant manufactured a remedy for the same habit, to which it gave the name “Baco-Ouro,” and which was also prepared in the form of tablets, but less than one-half inch in diameter, weighing 41 to the ounce, of a dark brown color, having a strong odor of licorice, and with a smooth surface. Defendant’s remedy was xiut up in tin boxes, of size and shape similar to plaintiff’s, but nearly white in color, having the word “Baco-Ouro” and defendant’s name and address conspicuously printed in green, with a description of its alleged qualities and effects, generally similar to that of plaintiff’s remedy, and directions for use, of which the first was an instruction not to discontinue tlie use of tobacco, followed by a warning against remedies which required the user to discontinue such use of his own free will. Held, that defendant’s methods of putting up and advertising his goods indicated no intention to deceive the public into buying its remedy as tlie plaintiff’s, and did not constitute unfair competition with plaintiff.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>This was a bill in equity by the National Cash-Register Company against the Capital Cash-Register Company for alleged infringement of letters patent No. ’253,50(5, issued February 14, 1882, to Michael Campbell, for improvements in cash-registering apparatus. The circuit court made an order granting a preliminary injunction, from which order the defendant appealed.</p>

<p>This was a bill by Benjamin S. Codman and others against Joseph Amia for alleged infringement of letters patent No. 447,064, issued February 24, 1891, to Asabel M. Shurtleff for an improvement in atomizers.</p>

<p>1. Patents — Novelty and Invention — Analogous Use.</p> <p>The use, in a huffing wheel composed of superposed scraps of fibrous material, of spiral instead of radial stitching, or stitching in concentric circles, for the purpose of remedying such defects as whipping out of stitches, variations of density, and uneven wearing away at. tlie periphery, is not so analogous to tlie previous employment, in composition grinding and polishing wheels, of metal strips imbedded (.herein, and running spirally outward from the center for the purpose of strengthening resistance to centrifugal strain, as to deprive such spiral stitching of its claim to novelty and patentable invention.</p> <p>2. Same — Invention—Failure of Prior Experimenters.</p> <p>The fact that two persons skilled in (he art, having before them the same problems as the patentee, attempted to solve them, and failed, is jiersuasive evidence that the successful device of the patent involves invention.</p> <p>3. Same — Prior Use — Presumption from Patent.</p> <p>'file presumption created by the patent is not overcome by evidence of prior use, which, when viewed in its most favorable light, merely raises a doubt whether the patentee was the original inventor of tlie device.</p> <p>4. Same — Buffins Wheels.</p> <p>Tlie Binns patent. No. 30(1,4(54, for a buffing wheel, shows patentable invention, and is valid.</p>

This was a suit in equity by Sherwood Ferris and others against George C. Batcheller and others for alleged infringement of two patents.

<p>1. Design Patents — Validity—Invention.</p> <p>To sustain a design patent issued under Rev. St. § 4929, the design must disclose originality, and the exercise of the inventive faculty.</p> <p>2. Same — Design foe Street Cars.</p> <p>There is no invention sufficient to support a design patent in merely substituting for the open platform previously used on the rear end of an existing street car an open compartment with seats, precisely similar to an open compartment already in use on the front end of the same car.</p> <p>3. Same.</p> <p>The Hammond patent, No. 21,042, for a design for street cars, is void for want of invention.</p>

A libel in rem against the tug Lindrup was filed July 11, 1894, a monition issued, and the vessel seized, according to the marshal’s return, “in the open waters of Lake Superior, about 3,000 feet from the pier at Sault Ste. Marie, Michigan.” The St. Mary’s river,-at Sault Ste.

<p>Collision between Steamer and Satl — Yaciit Moored in River.</p> <p>A yacht moored in shallow water at a dock on the extreme edge of the channel of a narrow river, in a place where she might lawfully have anchored if no dock had been there, was struck by a steamer, which was navigating the channel under the ordinary conditions of wind and tide. Held, that the steamer alone was liable, even if the dock was built without compliance with the regulations in regard to obtaining permission to build docks.</p>

<p>Federal Cotots-Jurisdiction — -Enjoining Criminal Proceedings.</p> <p>A federal court lias no jurisdiction in equity to enjoin state police and judicial officials from commencing or prosecuting criminal proceedings in the courts of tlie state, under the laws thereof, though such laws are alleged to be in violation of the constitution of the United States.</p>

This was an action by S. B. Thompson, receiver of the First National Bank of Ravenna, Neb., against W. W. Pool and Rollin L. Downing upon a draft. The defendants moved to dismiss for want of jurisdiction.

<p>1. Circuit Court op Appeals — Perfecting of Appeal — Citation.</p> <p>An appeal from the district court to the circuit court of appeals will be dismissed when no citation is sued out of either court.</p> <p>2. Same.</p> <p>The appeal will also be dismissed if no citation has been served on the appellee or his proctors, or either of them.</p> <p>3. Same — Sufficiency of Bond.</p> <p>An appeal and supersedeas bond is insufficient if conditioned to prosecute the appeal to effect, and answer all costs and damages “in the event the decree is affirmed,” instead of “if it fails to make its plea good.”</p>

This was a suit by J. Simpson Africa, trustee, against the board of mayor and aldermen of the city of Knoxville, Tenn., and the Citizens’ Railway Company, to enjoin the laying of street-railway tracks in certain streets of the city of Knoxville.

This was a suit by Theodore F. Wood against the 'New York & Hew England Railroad Company and others, with which was consolidated a suit by William T. Hart and others, against the New York & New England Railroad Company for the foreclosure of a mortgage. Receivers of the road were appointed. The Carnegie Steel Company,' Limited, filed an intervening petition asking payment by the receivers of a claim for supplies.

<p>Receivers — Compensation--Counsel Fees.</p> <p>Five thousand dollars held a sufficient compensation, under all the circumstances of the case, to a receiver, for operating- 13 miles of street railroad for about three years and a half; and $2,500 held to be adequate counsel fees for services rendered to Mm during- the same period.</p>

<p>1. Eminent Domain — Legislative Authority.</p> <p>Express legislative power is necessary to authorize the condemnation of private property for public use, and statutes claimed to confer such power must be strictly construed.</p> <p>2. Same — Acts Cong. March 2, 1889, and March 3, 1893.</p> <p>Act Cong. March 2, 1889, authorizing the secretary of the treasury to establish a lighthouse on St. Catherine’s Island, Ga., at a point to be selected by the lighthouse board; and Act Cong. March 3, 1893, appropriating $20,000 for the establishment of a lighthouse near the entrance to St. Catherine’s Sound, — do not authorize proceedings for the condemnation of private property, since neither act gives express power to take such property.</p>

This was an action of ejectment by William F. Cockrill against Byron Woodson and Helen Woodson. The cause was heard by the court on the following agreed statement of facts: The above-named parties stipulate and agree as follows: That the ease shall be submitted to the court sitting as a jury on tbe following statement of the facts: (1) That the title to the real estate in suit was formerly in the plaintiff.

<p>This was an action by Caroline M. AJcVickar against Frank Jones to enforce a liability as stockholder in a Kansas corporation. Defendant demurred to the declaration.</p>

<p>1. Contracts — Consideration.</p> <p>Where an assignment of a judgment belonging to a bank is made by one of its officers, in its name, to an individual, who, in consideration thereof, transfers property to the bank officer, such transfer constitutes a valid consideration moving to the bank, since a trust results in its favor as to the property transferred to its officer.</p> <p>S. National Banks — Powers of Officers — Presumptions.</p> <p>The officers of a national bank, acting for it, are presumed to liave the powers which they assume publicly, with the knowledge and acquiescence of the board of trustees, who are jiresumed to see what is made apparent before the eyes of the public in the aciions of their agents.</p> <p>3. Same — Transfer of .Judgment — Authority.</p> <p>IVhen a judgment belonging to a national bank is transferred without collecting it, the presumption is that the transfer is unauthorized.</p>

<p>1. Negligence — Proximate Cause — Delay by Railway Company in Delivering Goons.</p> <p>Goods were shipped over the E. Ry. to plaintiff on May 18th. Between that time and June 5th, plaintiff, having been advised of the shipment, inquired several times for the goods, but -was told by the agent at his station that they had not arrived. On Saturday, June 5th, plaintiff again inquired for the goods, and was again told by the agent that they had not arrived; but, on personal investigation,.he found them in the station. It being too late to remove them on that day. plaintiff left them to be removed on Monday. On Sunday, June 6th, the station and its contents, including plaintiff’s goods, were destroyed by fire, without fault of the railway company. Held, that the negligence of the railway company in failing to deliver the goods was the proximate cause of their loss, and that the railway company was liable for their value.</p> <p>2. Carriers — Source of Obligations — Liability to Passengers or Shippers.</p> <p>The liabilities of a carrier of passengers or freight, who has entered into contract relations with passengers or shippers, depend not only on his contract, but also, ⅛ part, on the obligations imposed by law, as a matter of public policy; and an action may be brought agdinst the carrier, either upon the contract, or for negligent omission of a duty imposed by law, independently of the contract, or for an injury done to person or iiroperty, as the case may be.</p> <p>3. Railroad Companies — Damages in Operating Road — Priority of Judgment and Mortgage — Tennessee Statute.</p> <p>A judgment against a railroad company for damages for the loss of property, caused by the negligent omission of the railroad company to deliver goods promptly to the consignee, in consequence of- which they were destroyed by a fire in the company’s station, is one for damages done to property in the operation of the railroad, within the statute of Tennessee (Laws 1877, c. 12) providing that no railroad company shall have power to give a mortgage valid as against a judgment for such cause.</p>

In re order to show cause why H. J. Summer!) ayes, a member of the grand jury of the district court of the United States for the Northern District of California for the July, 1895, term, should not be punished for contempt of court in disobeying an instruction of said court.

<p>Customs Dutibk — Construction of Laws-Fresh B’isii.</p> <p>in the tariff act of August, 1894, the free list (paragraph 481) enumerates “Fish, frozen or packed in ice fresh.” The schedule relating to dutiable fish enumerates (paragraph 210) “Herrings, pickled, frozen, or salted, and salt water fish frozen or packed in ice, one-half of one cent per pound.” Held that, under the rule of construction requiring each part of a law to he made effective if possible, the paragraph in the free list must he held as generic, and paragraph 210 as exceptional or specific.</p>

<p>In Error to the Circuit Court of the United States for tbe Southern District of New York.</p> <p>This was an action at law by Samuel E. Merwin, trustee, against Daniel Magone, collector of the port of New York, to recover certain duties paid under protest. The circuit court directed a verdict for defendant, and entered judgment accordingly, t'o review which the plaintiff sued out this writ of error.</p>

<p>In Error to tbe Circuit Court of tbe United States for tbe Southern District of New York.</p> <p>Tills was an action by Arthur Origet against Daniel Magone, collector of the port of New 'York, to recover duties alleged to have been illegally exacted. The circuit court directed a verdict, for the plaintiff, and entered judgment accordingly. The defendant; appeals.</p> <p>In 188?' Arthur Origet imported into the port oí Now York, by the vessels La Champagne, Aurania, Adriatic, and Umbria, merchandise specified in four invoices and lour entiles, which consisted of woolen cloths, to he used for over-coa rs, and cut into lengths suitable for single garments. The general appraiser found that the market value of the goods was greater than the invoice valuation, and, upon the importations by the Aurania, Adriatic and Umbria, increased the valuation more than JO per cent, above the invoiced and entered value of each of said importations. The collector exacted duty upon the value so increased, and an additional duty of 20 per cent, thereon under section 2000 of the Revised Statutes. Upon ilio importation by La Champagne, the appraiser advanced the market value over the entered value to an amount less than 10 per cent, thereof, and the collector liquidated the duty upon the value as thus increased, without penalty. Upon the importer's application for a re-appraisement, the collector appointed Mr. Abram Iiaudoine as a merchant appraiser to act with the general appraiser upon the entry of La Champagne, and appointed Mr. Julius Ball in as a merchant appraiser to act niton the re-appraisement of the merchandise specified in each of the other entries. Upon these reappraisements, the advanced valuations first made by the general appraiser were sustained. The importer, in proper season, protested against the exaction of duty by the collector on the increased valuations, the protest, stating, in divers forms, that the reappraisement included, in its estimate of value, charges and items which were expressly excluded by section 7 of the act of A larch, 1883 (22 Stat. 523), and that, therefore the reappraisement included illegal items and proceeded upon a principle prohibited by the statute. The protest implied, if it, did not express, That one of the merchant appraisers was not experienced in the merchandise in question and familiar therewith. Argument upon the sufficiency of this part of the protest was made in the briefs of counsel; but as no mention of: this point was made in the assignment of errors, it was disregarded by the court, in accordance with Rule 11. 11 C. O. A. oil, 47 Fed. vi.</p> <p>Two questions of fact, only, were presented on the trial in the circuit court. One related to the competency of Mr. Baffin. The oilier was wholher the items, if any, which were added by Mr. Baudoine and his associate to tlie net cost of uncut goods were the identical hems which the statute required to be disregarded. The two merchant appraisers were the only witnesses in flic ease. At the close of the testimony, neither party ásked to go to the jury upon a disputed question of fact, and each asked for a direction for a verdict in his favor. The court was of opinion, from Mr. Baffin’s own testimony, that he was not an experienced merchant, who was familiar witli the character and value of the goods in question, and. from Mr. Baudoine’s testimony, that lie added to the net cost of goods in lengths, the cost of ticketing ami tying up the cut goods and making them ready for shipment, and directed a verdict for the plaintiff. To this direction the defendant excepted.</p> <p>Section 2007 of the Revised Statutes provided as follows:</p> <p>"in determining the dutiable value of merchandise, there shall he added to the cost or to the actual wholesale price or general narket value at the time of exportation in the principal markets of the country from whence the same lias been imported into the United ‘hates, the cost; of transportation, shipment, and iransshipmcnt, with all the expenses included, from the place of growth, production, or manufacture, whether by land or water, to the vessel in which shipment is made to the United States; the value of the sack, box or covering of any kind in which such merchandise is contained; commission at the usual rates, but in no case less than two and a half per centum; and brokerage, export duty, and all oilier actual or usual charges for putting up. preparing, and packing for transportation or shipment.”</p> <p>Section 14 of the act of .Tune 22, 1871 (18 Stat 186), entitled “An act to amend the customs laws and repeal moieties,” firovided as follows:</p> <p>“That whenever any statute requires that, to the cost or market value of any goods, wares, and merchandise imported into the United States, there shall be added to the invoice thereof, or, upon the entry of such goods, wares, and merchandise, charges for ⅞ ⅜ ⅞ any other incidental expenses attending the packing, shipping, or exportation thereof from the country or place where iDurchased or manufactured, the omission, without intent thereby to defraud the revenue, to add and state the same on such invoice or entry shall not be cause of a forfeiture of such goods, wares, and merchandise, or of the value thereof; but in all cases where the same, or any part thereof, are omitted, it shall be the duty of the collector or appraiser to add the same, for the purposes of duty, to such invoice or entry, either in items or in gross, at such price or amount as he shall deem just and reasonable (which price or amount shall, in the absence of protest, be conclusive), and to impose and add thereto the further sum of one hundred per centum of the price or amount so added; which addition shall constitute a part of the dutiable value of such goods, wares, and merchandise, and shall be collectible as provided by law in respect to duties on imports.”</p> <p>Section 7 of the act of March 3, 1883 (22 Stat. 523), provided as follows:</p> <p>“That sections twenty-nine hundred and seven and twenty-nine hundred and eight of the Revised Statutes of the United States, and section fourteen of the act entitled ‘An act to amend the customs revenue laws, and to repeal moieties,’ approved June twenty-second, eighteen hundred and seventy-four, be, and the same are hereby, repealed, and hereafter none of the charges imposed by said sections, or any other provisions of existing law, shall be estimated in ascertaining the value of goods to be imported.”</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>This was a suit in equity by Robert Hoe and others against Walter Scott for alleged infringement of letters patent No. 331,280, granted December 1, 1885, to R. Hoe & Co., assignees of Luther C. Crowell, for improvements in machines for folding paper and other materials. The circuit court rendered a decree for complainants. See 65 Fed. 606, where the facts are fully stated in the opinion of Acheson, circuit judge. Defendant appeals.</p>

<p>This was a bill by the St. Louis Car Coupler Company against the Shickle, Harrison <& Howard Iron Company for alleged infringement of a patent for an improvement in car couplers.</p>

<p>This was a bill in equity by the Lowell Manufacturing Company against William J. Hogg for alleged infringement of a design patent.</p>

<p>This was a bill in equity by James C. Covert against Travers Bros. Company for alleged infringement of letters patent No. 208,157, granted to complainant September 17, 1878, for an improvement in rope clamps.</p>

<p>In Equity. Suit by the Electric Gas-Lighting Company against John F. Wollensak.</p>

<p>This was a libel against the George Urban, Jr., and the Thomas Ohester.-</p>

This was a libel by Joseph Robinson & Sons, owners of the steamship Ixia, against the Franklin Sugar Refining Company, to recover a balance of freight alleged to be due upon a cargo of sugar.

<p>1. Makine Insurance — Abandonment.</p> <p>In the absence of a requirement thereof in the policy, it is not necessary that an abandonment to the insurer of the interest of the assured, so fax as covered by his policy, in a vessel of which there has been a constructive total loss, should specify the exact fractional interest conveyed.</p> <p>2. Same — Waiver of Formal Objections.</p> <p>An absolute rejection by a marine insurer of an abandonment which contains an offer to make any further conveyance or assurance of title to the abandoned vessel which may be required is a waiver of the right to object to the form of the abandonment.</p> <p>3. Same — Presumption op Title.</p> <p>Where a person is shown to be the owner of a ship, or an interest therein, and conveys the same, with an agreement to warrant the title as free and unincumbered, there is a presumption, in the absence of other evidence, that the title is unincumbered.</p>

This was a libel by Silas Denty against the steam propeller Martin Dallmau to recover damages for a collision. The court below rendered a decree dismissing the libel, and libelant appealed.

<p>This was an action by tlie Boston Safe-Deposit & Trust Company against John W. Mackay, E. S. Stokes, and the United Lines Telegraph Company, commenced in a court of the state of New York. The plaintiff was a citizen and resident of the commonwealth of Massachusetts; John W. Mackay, one of the defendants, was a citizen and resident of the state of Nevada; while the two remaining defendants, E. S. Stokes and the United Lines Telegraph Company, were citizens and residents of the state of New York. The defendant Mackay filed a petition and bond for removal to the United States circuit court for the Southern district of New York, and filed a transcript of the record in that court. The plaintiff moved to remand.</p>

<p>Wbit of Ebeoe — Final Judgment — Question not Raised Below.</p> <p>A writ of error was sued out after the time limited by law, and thereafter the plaintiff in error moved in tlie appellate court to dismiss the same on the ground that no final judgment had been entered in the court below. The record entry in that court was as follows: “Verdict for plaintiff, and his damages assessed at $1,000, besides costs, & judgment accordingly.” EeW, that under the peculiar circumstances of the case the appellate court would not determine the question whether such entry was valid and conclusive of judgment, but would remit the case to the' court below in order that it might first have an opportunity to pass upon the question.</p>

This was a suit by the Guarantee Trust & Bafe-Deposit Company against the Duluth & Winnipeg Railroad Company, the North Btar Construction Company, and the Safe-Deposit & Trust Company of Maryland, for the foreclosure of a mortgage. Certain stockholders petition for leave to intervene and defend.

<p>National Banks — Liability of Stockholders — Pleading.</p> <p>In an action by the receiver of a national bank to enforce the individual liability of a stockholder, an allegation in the complaint that on a given date the comptroller, having ascertained and determined that the assets, property, and credits of the bank were insufficient to pay its debts and liabilities, and as provided by the act of congress, made an assessment and requisition on the shareholders of the said bank of a given sum upon each share held and owned by them, respectively, at the time of its default, and directed the receiver to take all necessary steps to enforce the liability, is sufficient. Kennedy v. Gibson, 8 Wall. 498, distinguished.</p>

This was an action brought upon a judgment in favor of the plaintiff and against the- defendant rendered in the district court of Arapahoe county, Colo. The defendant was a Nebraska corporation, but had been doing business in Colorado, and had filed a written appointment of an agent upon whom process might be served in Colorado, as required by the laws of that state. The record showed service on such agent.

<p>Patents for Improvements — Construction of Claims — Stitch Breakers for Looped-Fabric Sewing Machines.</p> <p>Tbe Traver patent, No. 431,957, for a “stitch-breaking and raveling attachment for machines for sewing looped fabrics,” shows patentable invention over the previous patent to the same inventor (No. 410,720); but, as it is only for improvements thereon, the claims must be restricted to combinations in which the loop breaker and guide are essentially of the structural character and relative arrangement of parts which differentiate them from those of the earlier patent, and the claims are not infringed by a device which cuts instead of breaks the fabric, and employs a guide plate of a different construction, and having a different function, from that of the patent. 62 Fed. 933, reversed.</p>

This was a bill in equity by George Westinghouse, Jr., and the Westinghouse Air-Brake Company against the Boyden Power-Brake Company, George A. Boyden,1 president, Charles D. Mann, secretary, and William Whitridge, treasurer, for the infringement of a patent relating to quick-action air brakes.

<p>1. Patents — Limitations of Claims — Amendments in Patent Ofitop,.</p> <p>Where an applicant narrows his claims in consequence of objections raised by the patent office, he cannot, after the patent is allowed, broaden them by construction, so as to drop out any element which he was compelled to include in his combination in order to obtain the patent.</p> <p>2. Same — Can-Headino Machines.</p> <p>Where a patent for a can-heading machine, as finally allowed after amendments introduced to meet objections of the paient office, made an annular space in the clamping mold and a piston for forcing the can head thereon essential elements of the combination, held, that no device which omitted these elements or their mechanical equivalents would be an infringement.</p> <p>í>. Same.</p> <p>The Norton patent. No. 2U7.014, for a can-heading machine, analyzed and construed, and held not infringed, as to any of its claims, by the Wheaton i>atont. No. 477,581, which omits some of the essential elements of the combination covered by the claims of (he Norton iiatent. 57 Fed. 927, reversed. (The construction placed upon The Norton patent by this couit in Norton v. ,Tensen, 1 O. O. A. 452, 49 Fed. 859, modified upon new evidence, consisting of the tile wrapper showing the proceedings in the patent oiliee.)</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a bill by the American Cable Railway Company against Oh; mayor, aldermen, and commonalty of the city of New York, and ihe city of Brooklyn, for alleged infringement of a patent relating to cable railways. The circuit court rendered a decree for complainant, and defendants appeal.</p>

This was a bill in equity by George A. Long and others against the Pope Manufacturing Company for alleged infringement of a patent relating to steam road vehicle..

<p>Í. Patests — Limitation of Glams — Combinations.</p> <p>The use of the words “substantially as described” in a combination claim is an express limitation, restricting the patentee to the peculiar and specific combination of elements and parts of which his machine is composed.</p> <p>¾. Same — Mechanical Equivalents.</p> <p>The inventor of a machine, consisting of a new combination of old and well-known elements, which is shown hy experiment to be impracticable and valueless for the purpose intended, cannot, after obtaining a patent therefor, abandon his Hiiecifi rally described novel invention, and substitute, as a mechanical equivalent, therefor, the methods of old machines which he claimed to have improved upon, and then sue as infringers persons employing the old device In the old way.</p> <p>3. Same — Improvements—Combinations.</p> <p>Patents for mere improvements, consisting in combinations of old elements and ingredients, should be limited, by a strict construction of their claims and specifications, so as to leave the unappropriated field of the art open to other improvers.</p> <p>4. Same — Mechanical Equivalents.</p> <p>In general, a mechanical equivalent which may be properly substituted for an omitted mechanical element, device, or agency in a patented machine is one that performs file same function by applying the same force to the same object, through the same mode and means of application. As applied to combination patents, it is special in its significance, and materially narrower in its range than when applied to an invention consisting of a new device or an entirely new machine.</p> <p>5. Same — Tobacco Flavoring Machine.</p> <p>The King patent, No. 494,9(50, for an improvement in tobacco flavoring machines, is void for want of useful novelty, and as accomplishing no new and valuable result, and no old result in a better and cheaper manner.</p>

<p>On - rehearing.</p> <p>This was a libel by the Pacific Coast Steamship Company against E. W. Ferguson, Elida F. Hobson, and John Cook, partners, doing business under the firm name of Moore, Ferguson & Co., to recover a balance of freight alleged to be due.</p>

<p>Shipping — Loading Cargo prom Lighter — Loss op Goods.</p> <p>A ship was loading heavy packages of goods from a lighter by means of a boom projecting over the lighter’s rail, no guy being used with the sling. The eases had been piled in tiers next to the lighter’s rail, each tier being-composed of three layers of cases. There was a space of some 12 to 18 inches between the outside tier and the one next to it. In raising the topmost case of the outside tier, which case was much broader than the one immediately beneath it, the latter was shoved over the rail and lost, by the sinking of the back edge of the upper case into the space between the two tiers as the front edge was raised by the sling. Edd that, as it was the duty of the lighter’s master to place the cases within the reach of the ship’s tackle, the lighter was responsible for the manner in which the cases were piled along the rail; that, if a guy was necessary, it was the duty of the lighter’s master to notify the stevedore stationed on the deck of the ship of such necessity; and that, if there was any negligence, it was due to the manner of piling the cases, and the ship was not liable for the loss.</p>

<p>1. COLLISION — INJURIES TO PASSENGER — LIABILITY OF VESSEL.</p> <p>A steamer guilty of culpable, negligence contributing to a collision is liable for resulting injuries to passengers on the other vessel, although the latter also may be guilty of fault contributing to the disaster. 59 Fed. 797, affirmed.</p> <p>2. Same — Fog—Excessive Speed.</p> <p>A steamer which deviates from her proper course and continues at full speed in a fog, notwithstanding the known proximity of another vessel, as indicated by her fog horn, is guilty of fault in case of a collision between them. 59 Fed. 797, affirmed.</p> <p>3. Same — Death of Passengers — Suit for Damages — Admiralty Jurisdiction.</p> <p>The personal representatives of passengers killed in a collision can maintain a suit in admiralty in a federal court against the vessel in fault, where the collision occurred within the jurisdiction of a state whose laws give a right of action in such case, and makes the damages a lien on the offending vessel. 1 Hill’s Code Wash. § 1678; 2 Hill’s Code Wash. §§ 138, 148. 59 Fed. 797, affirmed.</p> <p>4. Admiralty Jurisdiction — Divisions of District — Waiver of Rights by Claimant.</p> <p>The right of a claimant in a libel in rem to have the suit commenced in the division of the district in which he resides and in which the ship was seized (if any such right he have) is waived by appearing in the suit as claimant, and securing the release of the vessel by giving bond and stipulation, and procuring a transfer of the case to the division of his residence. . ■,</p> <p>5. Same — Intervening Petitions — Liability of Sureties on Release Bond.</p> <p>A stipulation given for the release of a vessel upon a libel to recover damages caused by a collision does not bind the sureties thereon to respond to claims set up by intervening petitions filed subsequently to the release; and the court cannot entertain jurisdiction of such petitions. The Oregon, 15 Sup. Ct. 804, 158 U. S. 186, followed.</p>

<p>At law. An action by Mary 0. Wood to recover damages for false imprisonment. Motion to remand.</p>

<p>t. Terms of Court — Aujouiitíment.</p> <p>A term of a United Status circuit court may be adjourned, in the discretion of tlie presiding judge, to a distant day, and its regular and continuous session may be resumed on such day, as a part of the same term, though another term of the court has been held, during the adjournment, at another place.</p> <p>2. Rui.es op Court.</p> <p>The rules of the circuit court of appeals in regard to t;lie return day of appeals and to the filing- of tlie transcript are directory, and it is within the sound discrol ion of the court to relieve parties who have not complied therewith.</p> <p>3. Practice ox AppEAi. — Fn.rxG Transcript — Relief from Default.</p> <p>After the dismissal of a bill by the circuit court, and at the same term, the complainant filed in open court a prayer for an appeal to the circuit court of appeals, which, was allowed, and a.n order made allowing the .appellant 90 days from a day named to file the record, but fixing no return day. The respondent at the same time consented to the filing of an informal appeal bond. The order was not filed with the clerk of the appellate court, and after the expiration of 30 days the appeal was docketed and dismissed b> the clerk, on the respondent’s application, under rule 16 of the circuit court of appeals. The appellant, within the 90 days allowed by the order, presented a transcript of the record, but tlie clerk declined to file tlie same or (locket the cause. Held, that although the requirements of rules 14 (11 O. G. A. civ., 47 Fed. vii.) and 10 (110. O. A. evi., 47 Fed. viii.), as to fixing a return day and filing the order of enlargement, had been disregarded, for which the appellant was responsible, yet as the transcript had been presented at and before the first term of the appellate court after the appeal, and as it appeared that no injuiy would result from the nonenforce-meni of the decree, the appellant should be permitted to docket the cause, on condition of paying all costs of the appellate court.</p>

<p>These were two actions for libel, brought by Tyndale Palmer against the Chicago Herald Company and the Chicago Evening News Company, corporations organized under the laws of Illinois. The actions were commenced in tlie supreme court of New York by service of summons, in each case, upon one Thaddeus B. Biker, as a managing agent of the respective defendants, under the provision of Code Civ. Proc. N. Y. § 432, that service may be made upon a foreign corporation, where no officer can be found, and the cause of action arose within the state, upon a managing agent. The defendant in each action appeared specially in the state court, and moved to set aside the service, on the ground that Biker was not its managing agent. This motion having been denied, and the denial affirmed by the general term of the state court, the defendants removed the cases to this cour t, and moved to set aside the service of the summons. The defendant in each case, in its moving papers, alleged that it had no place of business, officer, agent, or property in the state of New York, and denied that Biker was its agent or authorized to receive service of legal process in its behalf. It appeared”, however, that Biker was authorized to solicit advertisements in New York for the papers published by the several defendants, to make contracts therefor at schedule rates, and to transmit applications for special rates to the home offices of the papers in Chicago; that advertisements were inserted in a trade paper describing Biker as the Eastern representative of the papers published by the defendants; and that the names of both papers were painted on the door of the office occupied by Biker.</p>

. This was an action by George T. Kimble against the Western Union Telegraph Company to recover damages for personal injuries. Defendant moved for a stay of plaintiff’s proceedings.

This is a writ of error to the circuit court for the district of Connecticut. Lewis E. Stanton, United States attorney for said district from January 2, 18X5, to April 2, 1888, duly filed his petition under the act of March 3, 1887 (chapter 350), to recover certain items in his accounts as district attorney which had been suspended or disallowed by the accounting officers, or which, although allowed, have not been paid. Issue being joined, the case came on for hearing.

<p>1. Parol Evidence — Contemporaneous Writing-.</p> <p>Where parties make an agreement partly in writing and partly by parol, and do not profess to reduce the entire contract to writing, but only a certain part thereof, it is competent to show by parol evidence the entire contract; but — per Jenkins, Circuit Judge, dissenting — the oral agreement must be consistent with and must not contradict the stipulations of the written contract.</p> <p>B. Same — Witnesses—Competency and Credibility.</p> <p>Where nephews who had taken possession of their uncle’s lands under a written lease from him, and had made extensive improvements at their own expense, claimed, after his death, that the lease was only a part of the contract, and that there was a further parol agreement that upon his death they were to have the lands as their own, held, that while, under the statute of the United States, their own testimony was admissible as against devisees of their uncle, yet the court would be unwilling to decree in their favor upon their testimony alone, but would do so where their evidence was sufficiently corroborated.</p> <p>8, Deeds — Delivery to Executor.</p> <p>A delivery of deeds, pursuant to an oral contract under which the grantees were to have the lands after the grantor’s death, to one of the grantees, as' the executor of the grantor, to be opened after his death, is not a delivery such as will immediately pass the title; and, if the deeds are afterwards recalled, the transaction is a nullity.</p> <p>4. Parol Evidence — Admissibility—Contradiction op Writing — Additional Agreement.</p> <p>Certain nephews went into possession of lands belonging to their uncle, executing a written lease thereof. They also received of him some $15,000, for which they gave their notes, with interest at 10 per cent. They spent the money mainly in making improvements, and after his death claimed that there was an oral agreement, in addition to the lease, that upon his death the land was to be theirs absolutely, and that their notes for the borrowed money were also to be void. The lease was renewed from time to time during the uncle’s life, and rent and interest were regularly paid. The lease contained some expressions apparently inconsistent with the alleged oral agreement; and in the last extension a condition was added that “the party of the second part will quit and give up possession of said premises at the expiration of any one year in case the party of the first part shall sell or convey all or any part of said lands, or in the event' that either party should die or become dissatisfied,” or upon failure to pay rent or interest. The nephews testified that they signed the extension containing this condition because their uncle insisted upon it, assuring them that it would make no difference, and they should have the lands just the same, and because he was aged, infirm, fretful, and with evidences of insanity, which made them afraid to oppose him. Their testimony was strongly corroborated, both as to this point and as to the existence of the oral agreement. This extension was executed some months before the expiration of the then existing term, and never went into operation, because of the uncle’s death before that tim£. Hdd ⅛£⅛ assuming the nephews had a valuable equity in the land, there was no consideration for this release of their rights, except as the seal to the agreement imported a consideration; that in a suit by the nephews against persons to whom the uncle had devised the lands the lease did not operate as an estoppel by deed, because it came In question only in a collateral way; that it did not operate as an estoppel in pais, because no person was induced by it to change his condition to his prejudice; that its highest effect was as an admission by the nephews under seal that their relation to their undo was only that of landlord and tenant; that tho court could consider the evidence showing the existence of the parol agreement; that it was competent for tho court upon a proper and reasonable basis to reconcile the inconsistencies between tho leases and the parol evidence; and that, upon the whole evidence, the parol agreement was sufficiently established to enable the court to award a specific performance thereof in respect to the conveyance of the lands. Jenkins, Circuit Judge, dissenting-, on the ground that the alleged parol agreement was not ma.de out by clear and satisfactory evidence, was in direct contradiction of the written documents signed and sealed by the parties, and was, therefore, Inadmissible to control the meaning 1 hereof;' and that on tho whole case there was no such equity in favor of the complainants as would justify the court In excepting the case from the rule forbidding tho contradiction of written contracts by parol evidence. 51 Fed. 113, reversed.</p> <p>5. Same.</p> <p>Held, further, that as the notes for the borrowed money were given upon a full consideration, and were valid obligations at law, they stood upon different ground, and, although there was evidence that the uncle Intended to give the nephews the principal at his death, there was no such equity in favor of complainants as would warrant the court in enjoining the enforcement of judgments at law obtained upon the notes by the uncle’s executors.</p> <p>ti. SAME — COMPETENCY OR WITNESSES — DEATH OF PARTY TO CONTRACT.</p> <p>Where it is sought to claim real estate, after the death of the owner, under an alleged parol contract, in addition to a contract in writing, that the parties making the claim were to have the land upon the owner’s death, the parol contract may be supported by the testimony of the claimants as against devisees of the owner, as the statutes of the United States only exclude the testimony of surviving parties as against the executors or administrators of tho deceased; hut such evidence should not stand upon equal ground with the testimony of a party who can he confronted with the one whose declarations are in question, and a court of equity should not only apply the general rule that the evidence of the undertaking should be clear and satisfactory, but should also Insist that such evidence should in all essential particulars stand uncontradicted, and be fully corroborated. Per Jenldns, Circuit Judge, dissenting.</p> <p>7. Attorney an» Orient — Phivtleued Communications — Death of Client.</p> <p>The lips of an attorney are forever closed as to statements made to him by a client, unless opened by the client, and this does not cease by the sundering of the relation, nor upon the death of the client. The inhibition of the law is enduring, prohibiting at any timo and under all circumstances the disclosure of the confidential communications of the client. Per Jenkins, Circuit Judge, dissenting.</p>

This was a creditors’ hill tiled by Iwan Von Auw and others, against the Chicago Toy <& Fancy-Goods Company, its directors, and others. Defendants demurred to the bill for want of jurisdiction, and on the ground of multifariousness. The demurrer was heretofore overruled. 69 Fed. 448. Afterwards the order overruling the demurrer was set aside, and the cause was reargued.

The petition of the United States set out the act of congress approved August 1, 1888 (Supp. Eev. St. U. S. p. 601), the act of the legislature of Pennsylvania approved June 8, 1874 (Purd. Dig. p. 501, pi. 2), the act of congress of March 3, 1893, the sundry civil appropriation bill for fiscal year ending June 30,1894, providing, inter alia, as follows: “Monuments and Tablets at Gettysburg.

These were actions brought against the Texas & Pacific Railway Company by R. J. Thompson and S. M. Dietz, respectively, to recover damages for personal injuries sustained by them, while in'its employment, through the explosion of a locomotive boiler. In each case there was a verdict and judgment for plaintiff, and the defendant brings error.

<p>1. Public Land — Effect of Entry — Withdrawal from Sale.</p> <p>Land upon which an entry of record, valid on its face, was made under the treaty with the Chippewa Indians, dated September 30, 1854, was thereby appropriated and withdrawn from entry or sale as public land,</p> <p>a samf..</p> <p>The fact that the certificate or scrip under which the first entry was made may have been illegally issued by the commissioner of Indian affairs, and that the action of the secretary of the interior in instructing the register of the land office to permit location may have been unauthorized, would not alter the effect of the entry as withdrawing the land from further disposition' or sale; the scrip being valid on its face, and the' land office records showing an acceptance of the entry.</p>

Plaintiff in error is a corporation, chartered under the laws of the state of Colorado, engaged in the business of stock raising, with one of its ranches ■in Bailey county, Tex. The defendant in error is a resident citizen of Travis county, Tex., with a ranch in Castro county, Tex., some til) miles from the ranch of plaintiff in error.

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was an action by A. Howard Ritter, executor of the last will of William M. Runk, deceased, against the Mutual Life Insurance Company of New York, to recover upon policies of life insurance, aggregating $75,000. Upon the trial in the circuit court (09 Fed. 505), the jury rendered a verdict for the defendant. Plaintiff brings error.</p>

^lilt's B. Tlmrman and .Toseyli B. Thurman, resident citizens, respectively, of die states of Illinois and Kansas, brought their action in the United States circuit court for the Western district of Texas, against the Western Union Beef Company, a corporation organized under the laws of the state of Colorado, having its principal office In the city of Denver, Colo., and a local agency in San Antonio, Bexar county, Tex., to recover one-third of a league of land in Pecos…

<p>SURVIVAL os' Actions — Trespass on the Case — Colorado Statute.</p> <p>An action for damages for personal injuries, which, under the common-law forms of procedure, would have been an action of trespass on the case, does not survive to and against executors and administrators by virtue of the statute of Colorado (Rev. St. 1868, p. 682, § 154), which provides that “all actions at law whatsoever, save and except actions on the case for slander, or libel, or trespass for injuries done to the person,” shall so survive.</p>

<p>1. Grand Jury — Persons in Military Prisons.</p> <p>Act Cong. Marcli 3, 1873, providing that prisoners under confinement in military prisons undergoing sentences of court-martial shall be liable to trial and punishment by courts-martial for offenses committed during said confinement, is not in conflict with Const. Amend. 5, providing that no person not in the land or naval forces or in the militia shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.</p> <p>2. Same.</p> <p>The statute is applicable to one confined in a military prison, though at tlie time of his sentence to such confinement he was likewise sentenced to be discharged from the service.</p>

<p>1. Criminal Procedure — Preliminary Examination — Hearing before Judge.</p> <p>When the examination of a person accused oí a crime against tlie United States is held before the district judge, instead of a United States commissioner, the powers of the judge are simply those of a United States commissioner.</p> <p>2. Same — Powers of United States Commissioner.</p> <p>' United States commissioners have no judicial power to hear and determine any matter. Their duties are those of examining magistrates, and, uxion the examination of a person accused of crime, they hare only to determine whether there is probable cause to believe that an offense was committed by the defendant, and have no authority to pass upon the credibility of testimony, or to find any fact.</p> <p>8. Criminal Law — Aiding Military Expedition — Probable Cause.</p> <p>Upon the preliminary examination of one H: for aiding a military expedition in violation of Rev. -St. § 5286, there was evidence that the steamship of which H. was captain, after leaving the port of New York and passing outside Sandy Hoolc, stopped two or three miles from shore; that two tugs approached, and put on board 35 men, with several boxes and three boats; that the boxes were opened, and guns and other arms taken out; that during the voyage the men so taken on board were constantly drilled; that said men spoke Spanish, and some of them said they were going to Cuba to fight; that the steamer approached the coast of Cuba at night, with her lights extinguished; that the men disembarked there, taking their arms with them, and using their own three boats and one lent by the steamer; and that, after their landing, the steamer proceeded on her voyage to Jamaica. H-cld, that there was probable cause to believe that H. had violated the statute, by providing or preparing the means for a military expedition to be carried on against a foreign state, and he should be held for trial.</p> <p>4. Same — Place of Trial.</p> <p>Held, further, that all the acts constituting such offense were committed on the high seas, — the taking on of provisions at New York, in addition to those required for the crew, not constituting an overt act in furtherance of the enterprise, or evidence of intention to commit such an act, — and, accordingly, that H., under Rev. St. § 130, must be tried in the district where he was arrested, and could not be removed thence to the Southern district of New York.</p>

<p>This was a proceeding by the United States against the River Spinning Company to recover the statutory penalty provided for the importation of laborers under contract. There was a demurrer to the declaration.</p>

This was an action at law by Robert Vom Cleff and another against Daniel Magone, late collector of the port of New York, to recover duties paid under protest. In the circuit court upon the first trial there was a verdict for defendant, but the same was set aside and a new trial granted because of error in the charge. 57 Fed. 198. Upon the second trial there was a verdict for plaintiffs, and judgment accordingly, from which the collector has appealed.

This was a bill in equity by the Trip]) Giant Leveller Company against Morris V. Iírosnaban and others for alleged infringement of a patent. The cause was heard upon a motion for a preliminary injunction.

This was a bill in equity by the Singer Manufacturing Company against the New Home Sewing-Machine Company for alleged infringement of a patent for an improvement in sewing machines.

<p>This was a bill by the American Sulphite Pulp Company against the Howland Palls Pulp Company for infringement of reissued patent Ho. 11,282 (original Ho. 445,235) for an improvement in wood pulp digesters.</p>

<p>Appeal from the circuit court of the United States for the District of Now Jersey.</p> <p>This was a hill by the Tannage Patent Company .against William Zahn for infringement of patents for processes of tanning leather. The circuit court dismissed (lie bill on the ground that the patents were’lacking in novelty. (56 Fed. 986. Complainant appeals.</p>

This was a suit in equity by'Mellen Bray and others against the United States Net & Twine Company and others for infringement of a patent for an improvement in fly-books for anglers.

<p>This was a bill in equity by William H. Golding against the F. Wesel Manufacturing Company for alleged infringement of a patent.</p>

<p>Final Hearing in Equity.</p> <p>This action is for infringement, founded upon letters patent, No. 480,217. granted August 9, 1892, to Alfred Caldwell for improvements in the mode of attaching tips to flexible tubing for gas. The patent is owned by the complainant. The specification says:</p> <p>“The flexible tubing now in use (February, 1892,) is attached to the tip or socket referred to by placing the small end of the same within the end of the tubing and then "winding with thread or fine wire to retain the connection of the two parts and prevent the escape of the gas. This method of attachment requires much time and care and cannot always be relied upon to make a perfectly tight joint. The object of my invention is to make a more complete and perfect union between the tubing and the tip or socket by which it is attached to the stove, drop-light, or source of supply and at the same time permit the parts to be more quickly and easily united. My invention is m’ore particularly designed to be used in connection with a flexible gas-tubing having an interior spiral wire supporting the same, although it may be used with good effect in tubing in the construction of vffiich such spiral wflre is not employed.”</p> <p>The specification further states, in substance, that the joint is made by placing the cap over the end of the flexible tube. The hollow shank is then screwed in. The interior of the tube is spirally wound with wire which engages with the screw threads on the shank and thus the parts become so firmly united that they cannot be separated. The relative diameters of the screw-shank, the cap and the tube are such that the introduction of the shank into the tube expands the tube within the cap to an extent sufficient to form a perfectly tight joint and prevent the escape of gas. The connection is made in a moment and no special care is required to secure a tight joint. Tubing which is not provided with an interior spiral wire may be used with fairly good results although the attachment of the i>arts will not be as perfect as when the tubing is provided with.the interior wire.</p> <p>The claims are as follows:</p> <p>“(1) The combination, with a flexible tube having a coiled wire lining upon its interior, of a cap upon the end of the tube, the outer end of which is contracted and provided with a short cylindrical portion of a diameter slightly greater than the interior diameter of the lining of the tube, substantially as set forth.</p> <p>“(2) The combination, with a tip or socket having a screw-threaded shank, of a tube having a coiled-wire lining upon its interior and a cap upon its exterior, the outer end of said cap being reduced and provided with a short cylindrical portion of a diameter slightly greater than the interior diameter of the lining and adapted to engage with the end of the wire lining at. one fend and with a shoulder upon the end of the tip at the other end, the exterior diameter of the shank of the tip being slightly greater than the interior diameter of the lining, substantially as set forth.”'</p> <p>The defenses are lack.of invention and anticipation by various patents and by the prior use of the defendant Mark M. Nicholls.</p> <p>Infringement is proved beyond a doubt.</p>

<p>Patents — Construction op Claims— Infringement — Rolling-Mill Plants.</p> <p>The Garrett patent, No. 2S9,524, for improvements in'rolling-mill plants, designed to produce a plant for working blooms and billets and reducing them to wires and rods at a single heat, and reeling them as delivered from the rolls, is strictly confined, by the prior state of the art and by the express limitations of the specification, to a direct feed from one pass of the billet train into a. pair of rolls, and a direct line of feed from said pair of rolls to the rod train, both being in a direct line and in the same direction of feed, and the patent is not infringed by a mill built according to the Kilmer patent, No. 440,863.</p>

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

Appeal by the defendant from an order of the circuit court for the Eastern district of New York, which granted an injunction pendente lite against the defendant’s causing to be manufactured or selling silver-plated ware stamped with the words “Wm.

<p>Appeal from the District Court of the United States for the Northern District of Illinois.</p> <p>This was a libel by Frank Clark, owner of the steam barge Maggie Duncan, against 505,000 feet of lumber, constituting her cargo, and 1L l’aepcke & Co., consignees, to enforce a lien for freight The district court dismissed the libel, and libelant appealed. On. December 14, 1894, (his court reversed the decree, and remanded the cause, with directions to enter a. decree in favor of libelant. 12 C. C. A. 628, 65 Fed. 236. The appellee has Hied a petition for rehearing.</p>