Volume 71 — Federal Reporter

<p>1. Writ ok Error — 'Time for Allowance — Jurisdiction of Circuit Courts of Appeals.</p> <p>The six months within which a writ of error from the circuit court of appeals to review a judgment at law may be sued out (26 Slat. 829, § 11) must be computed from the date of entering the judgment, and not from the end of the term. To give the appellate court jurisdiction, the writ musí be actually sued out and tiled in the court below within that time; and, if this he not done, it is of no avail that an intention to obtain review was fully disclosed at the trial, or that the court was held open to ,he legal end of the term, to allow time for preparing a bill of exceptions.</p> <p>S. S.-uru — Isw?\N(!B of Whit — Powers of Juduk.</p> <p>A writ of error to review a judgment at law in the circuit court of ap-, peals issues from that court; and a judge, in passing upon an application for the writ, must exercise the powers of that court, and is bound' by its limitations. He cannot, therefore, issue the writ after the expiration of the time limited by law.</p>

<p>Jurisdiction — Diverse Citizenship — Separable Controversy.</p> <p>In a suit to foreclose a mortgage against tbe mortgagees and the purchaser of tbe equity of redemption, tbe second mortgagee was, on bis request, made a party, and be filed a cross complaint ashing for a foreclosure of bis mortgage, and to tbis tbe mortgagors filed an answer. Tbe only question litigated was whether tbis second mortgage was based on a legal consideration. Held, that it was error to remove tbe ease to tbe federal court upon tbe application of tbe owner of tbe equity-of redemption, a resident of another state, since neither tbe complaint nor tbe cross complaint showed more than a single cause of action, and tbe fact that different defendants bad different defenses did not create separable controversies.</p>

<p>The complainant in this cause is a citizen of the state of Indiana, and the defendants are all citizens of the state of Michigan. Defendant Charles H. Manley is administrator of Elijah W. Morgan, deceased. Defendants Kitine and Johnson are the surviving executors and trustees of the last will and testament of Lucy W. S. Morgan, deceased; and defendant Lucy D. S. Parker is sued individually and as administratrix of the last will and testament of her deceased husband, Franklin L. Parker.</p> <p>The facts upon which relief is sought by the bill, which is professedly hied as well for the complainant as all other creditors of Elijah W. Morgan, deceased, late of Washtenaw county, Mich., who will come in and contribute to the expenses of this suit, are as follows:</p> <p>On the 20th day of November, A. D. 1873, said Elijah AV. Morgan executed and delivered to Hattie O. Eames his three promissory notes, copies of which are annexed to the bill as exhibits, two of which are for the sum of $1,000, with interest at 10 per cent., payable 18 months after date, and the third for the sum of $1,333, payable, with like interest, 18 months after date. These notes were all indorsed on the 10th of September, 1876, by the payee, to George Lant, Sr., the complainant, for a valuable consideration, as is claimed by the bill. Suit was brought upon these notes by Lant in the circuit court for the county of Washtenaw, in which, on the 12th day of July, 1881, Lant recovered judgment against Morgan for the sum of ,$5,-882.72, damages, and costs. On the 2d day of February, 1891, an action of assumpsit was brought in this court upon said judgment recovered in AVashtenaw county, and in this action a writ of attachment was taken out and delivered to the marshal of this district, against the lands, tenements, goods, chattels, moneys, and effects of Elijah W. Morgan, not exempt from execution. On the 13th day of February, 1891, the marshal levied the writ of attachment upon certain pieces or parcels of land in the county of Washtenaw, in this district, which the bill avers “then were, and still are, in the possession of said defendants Kinne, Johnson, and Parker, and Franklin L. Parker, or some of them, as is hereafter specified.” The summons issued in the cause was served upon Blorgan, as appears from the return of the marshal on file. The averment of the bill is that the lands attached then were and now are of the value of $2,000, and upward. Blorgan appeared in this action by attorney, and filed a plea of the general issue to the plaintiff’s declaration. On the 28th of January, 1892, Blorgan died, intestate, leaving Lucy G. Eames, of Kalamazoo, in the Western district of Michigan, his heir at law. On the 20th day of December, 1892, letters of administration upon the estate of Blorgan were duly issued out of the probate court for the county of AVashtenaw, in the Eastern district of Blichigan, to defendant Oharles H. Blanley, who, on the 3d day. of February, 1893, in obedience to a writ of scire facias issued at the instance of Lant, and the suggestion upon the records of this court of the death of Blorgan, Charles H. Blanley, administrator of Blorgan, appeared in the cause in this court by his attorney; and on the 10th of February, 1893, an order was made in this court reviving thé cause herein against said Blanley as such administrator of Blorgan. The bill avers that Blanley thereafter seasonably caused to be served upon the defendants Johnson and Kinne, and upon Franklin L, Parker, now deceased, notice in writing of the pendency of the suit brought by complainant against Morgan, and after his death revived, as aforesaid, against Manley, as administrator; and that Blanley then offered to interpose any defense to said action which the parties notified might desire. June 2, 1893, complainant recovered judgment in said cause against Manley, as administrator of Morgan, for the sum of $8,702.20, damages, and costs, and was awarded execution therefor against the lands, tenements, goods, and chattels of the estate of said Elijah W. Morgan, deceased. Upon this judgment a writ of fieri facias was issued, and delivered to the marshal of this district, commanding him to make said sum of $8,702.20 out of the lands, tenements, goods, and chattels of the said Blorgan. This writ was returnable August 25, 1893. September 8, 1893, the marshal made a return of nulla bona on said writ. On the 21st of February, 1894, complainant caused an alias writ of fieri facias to be issued on the judgment, returnable April 2, 1894. This writ was levied upon the lands and tenements upon which the writ of attachment issued at the institution of the suit in this court had been levied. The title of record of the lands levied upon under this alias writ was then in the defendants, as executors of Lucy W. S. Blorgan and Franklin L. Parker.</p> <p>Lucy W. S. Morgan, the wife of Elijah W. Morgan, died May 12, 1887, leaving her 'last will and testament, whereby defendants Johnson and Kinne and Franklin L. Parker, now deceased, were appointed executors and. trustees, and ’to them were devised and bequeathed all her estate, for the purposes specified in her will. This will was probated June 20, 1887, by the decree of the probate court of the county of AVashtenaw, and letters testamentary thereunder were granted to Parker, Kinne, and Johnson, the executors named in the will, who duly qualified and entered upon the execution of their trust. Defendants .Johnson arid Kinne are still acting as such executors and trustees. Franklin L. Parker, the third executor, died on the 20th of February, 1804, leaving a. last will and testament. whereby he devised and bequeathed all of his estate, real and personal, and the proceeds thereof, to his wife, defendant Lucy D. S. Parker, in trust for the purposes specified in his will, and appointed her sole executrix thereof. Parker’s will was on the 26th of March, 1804, duly admitted to probate by the probate court for the county of Washtenaw: and the administration of his estate was granted to Lucy D. S. Parker, who qualified as executrix, and entered upon execution of her duties as such, and still is in the administration thereof.</p> <p>The bill alleges complainant has reason to believe, and does believe, and so charges the fact to be, that the estate of Elijah W. Morgan has properly, deeds, and other equitable things In action, or effects, of the value of more than $2,000, exclusive of all prior just claims thereon, which complainant has been unable to reach by execution on his said judgment against Morgan and his estate; denies' collusion with either of defendants or any other lie]',son; and avers that the bill is brought solely for the purpose of compelling payment and satisfaction of the judgment recovered against defendant Manley, as administrator of Morgan, and for the benefit of such other creditois as may be entitled to share; that defendants have possession of personal property belonging to the estate of Elijah W. Morgan, or in which that óslate is in some manner beneficially interested; and alleges that defendants hold personal property, judgments, mortgages, deeds, and dioses in action, etc., in trust for the benefit of the estate of Morgan, and also that defendants hold in like trust real estate in this or some other state or territory, or chattels real, contracts relating to real estate, stocks, etc., oí which it jirays a discovery, and of the purpose for which the same are held, the amount, kind, value, and particulars thereof, and the terms and conditions on which the same are held. The bill then sets forth descriptions of pieces or parcels of land situated in Washtenaw county, of which, on information and belief, it charges that Elijah W. Morgan was seised and possessed on the 20th of November, 1873, stating their value to be upward of $2,000; and that defendants Jonnson and Kinne, as surviving executors of the Iasi will aud testament of Lucy W. 8. Morgan, deceased, claim to be the owners, and whereof they are and have been In possession under such claim, by virtue of sales and conveyances from Elijah W. Morgan to Lucy W. ¡8. Morgan. These conveyances, it is charged on information and belief, were merely colorable, and made wilii a view of protecting the property and effects of the grantor from the claim of complainant and other creditors of said Morgan, and to enable him to control and enjoy the same and the avails thereof; and the bill prays a discovery of the amount anti value of the lands so conveyed, terms and conditions of such conveyances, and the disposition made of the avails thereof. Like charges are made by the bill relative to the conveyance by Morgan of other lands situated in the city of Ann Arbor, the value whereof is stated to he upwards of $2,000. which are now in the possession of defendant Lucy W. S. Parker, executrix of the last will and testament of Franklin L. Parker, deceased, who claims to bo (he owner thereof as such executrix; that said Franklin L. Parker was in possession of said lands from the death of Morgan until his own decease, claiming under deeds from Morgan, which are alleged to he merely colorable, and made to protect the property and effects ol’ Morgan against the claims of the complainant and other creditors. Other lands described in the frill are, upon information and belief, allege^ to have been conveyed to defendant Lucy D. S. Parker, who claims and has been in possession thereof, under claim of ownership, since the death of Elijah W. Morgan. These conveyances, the bill charges, were of the same nature as those made to Lucy W. S. Morgan and Franklin L. Parker, and for the same purpose, and a discovery is also prayed of the tenure and trusts under which the same are held.</p> <p>Upon information and belief, complainant alleged that Elijah' W. Morgan, on January 14, 1873 and March 20, 1874, had interest in lands described in Exhibit D, attached to the bill, which, about the last-named date, said Morgan, for the purpose of hindering, delaying, and defrauding complainant and his other creditors, did, together with his wife, convey by deed bearing date January 14, 1873, to Franklin L. Parker, in consideration of one dollar and of said Parker’s liability as surety for said Morgan; that this conveyance was recorded June 15, 1875, in the office of the register of deeds for the county of- Washtenaw; and that, when said deed was executed and delivered, Parker was in no way liable as surety for said Morgan, nor was Morgan indebted to Parker; and that Parker did not pay, nor did Morgan receive, any .consideration for said conveyance, but the same was purely voluntary, and it was given and received by the parties thereto for the purpose of concealing the property of Morgan, and of defrauding his creditors; and that such deed was delivered and received upon a secret trust with Parker, who held the lands conveyed for the benefit of Morgan, and to sell and dispose of the same as trustee for Morgan. And, upon information and belief, it is further alleged that Franklin L. Parker sold and conveyed a large number of the parcels of land described in Exhibit D, and has received large sums of money therefor. The particular parcels conveyed by Parker are not known to complainant) who asks a full and complete discovery of the trusts under which said lands were received and held by Parker, and of the property, money, and effects received by him ■therefor. It is further charged, upon information and belief, that in the year 1873, and until the death of Lucy W. S. Morgan, in 1887, Elijah W. Morgan .was indebted to complainant and other persons in large amounts, and was insolvent; that, in 1874, Morgan combined with his wife, Lucy, her nephew Franklin L. Parker, and the latter’s wife, Lucy D. S. Parker, to conceal and protect his property from his creditors; and that all of the conveyances under which the defendants claim title to the lands described in the bill were made in pursuance of such confederacy; and that the grantees knew the insolvent condition of Morgan, and acted with him to effect his fraudulent purpose in making such conveyances. Upon information and belief, it is alleged by complainant that Morgan was on the 5th day of April, 1889, and for several years prior thereto had been, incompetent to have the charge of his person and the management of his property, and on the last-named date, upon the application of defendants Kinne, Parker, and Johnson, as such executors, Franklin L. Parker was, by the ■order and decree of the probate court of Washtenaw county, appointed guardian of the person and estate of Morgan; that he qualified as such, and entered upon his duties, and continued to act as such guardian until Morgan’s death. On information and belief, it is further alleged that for many years prior to the time when he became Incompetent, and up to the time of his insolvency, Morgan had been and was a man of large property and business interests in the city of Ann Arbor, engaged in business there, and possessed of real and personal estate, in the county of his residence and elsewhere, of the value of more than $100,000; that he was careful and precise in the keeping of books, accounts, and papers, and generally in his business methods, and accumulated a large number of deeds, agreements, books of .account, receipts, vouchers, aDd other documents relative to his property rights and interests and business dealings; and that these deeds, books, etc., at some time came into the possession of defendants Kinne, Johnson, and Parker, who have since retained the same, and now have them in possession, with a large number of other papers, books, accounts, etc., belonging to said Franklin L. Parker, and relating to the right, title, interest, and claim of Morgan in and to his real and personal estate and property. Discovery is prayed of these books, papers, and documents. The bill charges, upon information and belief, that defendant Manley has used due diligence .to find and take into possession the real and personal estate of Morgan, but has not succeeded therein, because of. the actings and doings of the other defendants, and has not possessed himself of property belonging to Morgan in his lifetime sufficient to discharge any considerable portion of the debts owing by Morgan at his death, because of the fraudulent transfers, conveyances, and combination of Morgan, his wife, Franklin L. Parker, and his wife, Lucy D. S. Parker.</p> <p>As excusatory of the apparent delay of complainant in enforcing his claim against Morgan and his alleged fraudulent grantees, the bill states: “That ¡from the year A. D. 1876, until the time of the filing of this your orator’s bill of complaint, lie lias, by all moans at bis command, and with all due diligence', endeavored to discover property and assets belonging to said Elijah W. Morgan and his estate out of which to satisfy said claim, demand, and judgment, but bj reason of tlw aforesaid fraudulent actings and doings of said Elijah W. Morgan, Lucy W. S. Morgan, and Franklin L. Parker in tlieir respective 'die limes, and of tlieir representatives since their decease, and of said defendant Lucy 1). Parker, and by reason of their fraudulent concealment of tlie aforesaid equitable interests, claims, demands, causes of action, real and personal estate, goods, and chattels belonging to said Elijah \V. Morgan and his osiüto, your orator has been prevented hitherto from so obtaining satisfaction ol his aforesaid debt, claim, demand, and judgment; and also that your orator did not discover the facts hereinbefore stated until a few months prior to tlie commencement of bis said suit against tlie said Elijah W.Morgan in said circuit court of tlie United States for the Eastern district of Michigan; and also from that time your orator 1ms with all due diligence, and by all ways and means in Ms power, endeavored to discover such assets of said Elijah W. Morgan and his said estate to obtain satisfaction of his said debt, claim, demand, and judgment out of such assets.”</p> <p>A large number of interrogatorios are appended to the bill, to be answered by the defendants, or some of them. The bill prays that defendant Manley set forth an account of tlie personal estate of Morgan, tlie amount and particulars thereof possessed by him, iiow much thereof has been disposed of by hint in payment of the intestate’s debts and otherwise, what debts and amounts remain unsatisfied, and a discovery of the real estate of which Morgan was seised or entitled; that an account may iso taken under the direction oi this court of the debts owing by Morgan to complaina.nl and others, and of the personal estate, of Morgan now in the hands of defendants, or any of them: that tlie same may be applied to the payment of the debts of Morgan; :i.e.i. the real estad! described in file bill, or so much as is necessary, may lie decreed to be sold for tlie payment, of the. indebtedness owing by Morgan; that a receiver of the money, property, things in action, real estate, chattels real, and other property and effects of the estate of Elijah W. Morgan may bo appointed; and that defendants may be directed to assign, convey, and deliver to such receiver all the property, equitable interests, effects, notes, bonds, mortgages, deeds, hooks of account, contracts, papers, and securities relating to Morgan’s estate; and that defendants appear before the master of fids court, and submit to an examination in relation to any matters which they may be legally required to disclose; and that the defendants, and each of them, may bo restrained by injunction from receiving the rents and profits t>L The real ostale belonging to Morgan, and from collecting and receiving any of such outstanding personal.óslate, and from assigning and selling, transferring-, convoying, or. in any manner disposing of or intermeddling with the said real and personal property, effects, etc.; and for other relief.</p> <p>To this bill, tlie defendants Kinne and .lolmson, as executors, have demurred, and defendant Lucy D. 8. I’arker lias also filed a demurrer. Each oi these pleadings sots forth seven grounds of demurrer. In the view taken by the court of the bill, only the second and the seventh need be considered. These are as follows: “Second. That it. appears by the said bill that the entire subject-matter concerning which any relief or discovery is asked is, and was at the time of filing said bill, entirely and exclusively within the cognizance and jurisdiction of tlie probate court for Uie county of Washtenaw, Eastern district of Michigan; that tlie said estate of Elijah W. Morgan and said estate, of Franklin L. I’arker are both in process of administration by said probate court; and that the same have not been fully administered upon; and that tlie laws of the state of Michigan give to its probate courts exclusive jurisdiction over the estates of deceased persons.” “Seventh. That said bill is entirely winding in equity, and does not set forth any facts upon which complainant is entitled to any relief whatever.” These demurrers are verified by tlie defendants, and are certified by counsel to be well founded in point of law. as required by general equity rule ,‘U.</p>

<p>This was a bill by Epbraim Lumley against the Wabash Railway Company. Heard on demurrer.</p> <p>The complainant is a citizen of the province of Ontario, in the dominion of Canada, and filed his bill in this cause to obtain the cancellation and annulment of a release under seal, hy him executed on the 7th day of October, 1890, which discharged and released the defendant from all actions, causes of action, damages, etc., which had accrued to complainant hy reason of the alleged negligence of the defendant, whereby the plaintiff, who was traveling in one of the defendant’s freight cars, in charge of horses, was injured hy the concussion of tlie cars in making up the train at Detroit. He claims to have suffered, in addition to a fracture of his arm and a slight injury to his head, a severe and permanent injury to his right shoulder; and the release which he seeks to have canceled, it is the claim of the bill, covers, and was intended to cover, only the injury to his arm and head; and he now seeks compensation for the more serious and the permanent injury to his shoulder. For this, in March, 1894, he sued the defendant in the circuit court for the county of Wayne. On the 27th of that month the defendant filed its petition for.the removal of the cause to this court, alleging therein that the plaintiff was an alien and a subject’of the queen of Great Britain and Ireland, and that the defendant was and is a corporation organized and existing under the laws of the state of Missouri, and a citizen and resident of said state. An order of removal was made upon this petition, and the transcript from the state court was seasonably filed in this court. The cause thus removed was, by stipulation between the attorneys for the respective parties, discontinued on the 27th day of June, 1894, and on the 19th of September, 1894, the plaintiff, describing himself as “a resident and citizen of the province of Ontario, in the dominion of Canada” (being in terms the same averment of his citizenship as was made in the cause removed and subsequently discontinued), filed his declaration in this court, as commencement of suit, describing the defendant as a corporation organized and doing business under the laws of the state of Michigan. The form of action was case for the alleged negligence of the defendant, whereby the plaintiff suffered the injuries mentioned above, while being transported over the defendant’s road; and the declaration also contains a count based upon the alleged failure of the defendant to provide a competent surgeon and physician to treat and care for the injuries of the plaintiff, by reason of which failure and the alleged want of care and skill of the physician employed by the defendant, to whose care the plaintiff submitted himself, the plaintiff did not receive proper treatment, and his injuries were greatly aggravated, and were rendered permanent and incurable, and have disabled the plaintiff, and rendered him wholly unfit to labor or earn his living. The ad damnum of the declaration is $20,000. The defendant pleaded the general issue. The cause came on for trial at the November term, 1894, of this court, and after the close of the evidence the defendant moved the court for an instruction to the jury to find a verdict for the defendant on the ground that the cause of action was barred by the release executed by the plaintiff. The following is a copy of the release in evidence by the defendant:.</p> <p>“Exhibit A. Form 2,105.</p> <p>“Whereas, on the 3rd day of October, A. D. 1890, I, Ephraim Lumley, of Kidgetown, Ontario, Canada, was a passenger of the Wabash Railroad Company, and as such passenger was engaged in the discharge of my duty, in caring for horses loaded in car, — said car standing on tracks in R. R. yard, Detroit, Mich., at which time said car wherein 1 was was run against & upon by a locomotive, giving car heavy shock, whereby I was injured, — on the 3d district, E. division, of said railroad; and whereas,- I, the said. Ephraim Lumley, received certain injuries, to wit, severe contused and lacerated wound on forehead, right side, fracture of right arm between wrist and elbow, and various injuries and contusions, both internally and externally, in and on various parts of my body; and whereas, I, the said Ephraim Lumley, believe that my injuries are the direct result of the negligence of said railroad company, its officers, agents, and employes; and whereas, the said railroad company denies any and all negligence on the part of itself, its officers, agents, and employes, and denies any and all liability for damages for the injuries so as aforesaid by me sustained, but by reason of an offer of compromise made by me, the said Ephraim Lumley, for the purpose of avoiding litigation, to receive and accept the sum of seventy-five dollars in full accord and satisfaction for all claims for damages which I may or might have, either át common law or by virtue of any legislative enactment of the state of Michigan, for the injuries aforesaid, have paid to me the said sum of seventy-five dollars: Now, therefore, in consideration of the premises, and of the payment to me of the aforesaid sum of seventy-five dollars, the receipt whereof I do hereby acknowledge, remise, quitclaim, and forever discharge the said the Wabash Railroad Company, its leased and operated lines, of and from all actions, suits, claims, reckonings, and demands for, on account of, or arising from injuries so as aforesaid received, and any, every, and all results hereafter flowing therefrom. .Witness my hand and seal this 6th day of October, A. D. 1890.</p> <p>his</p> <p>“Ephraim X Lumley. [Seal.] mark</p> <p>“Signed, sealed, and delivered in presence of H. W. Morehouse.</p> <p>“Witnessed by Jno. Kniffen.”</p> <p>Upon the intimation of the court at the close of the argument that this release, being under seal, could not he avoided at law, under the testimony, but only upon a bill in equity, the court, upon the application of the plain! iff, permitted him to withdraw a juror, on condition that he should file a bill in equity in this court within 80 days for the cancellation of said release. In compliance with this condition, the bill of complaint in this cause was filed duly 7, 1895. This bill describes the complainant as a “resident of the province of Ontario, dominion of Ganada, and a citizen of the dominion of Canada.” It sets forth substantially as stated in the declaration the particulars of the accident of the 8d of October, 1890, in the yards of defendant at Detroit; that, except the injuries to his head and the fracture of his right arm, plaintiff was ignorant of the other injuries by him received, and for which he sought compensation in the cause at law; that plaintiff continued liis journey to his destination, Danville, 111., where he arrived October 5, 1890, where his arm was treated by the chief surgeon of the defendant; that on the morning of October 6, 1890, be went to said surgeon’s office, where he met one Austin, an agent of defendant, who expressed his desire to settle with plaintiff for the fracture of his arm and the contusion of his head; that said surgeon then and there stated that the contusion was trivial, and that the fracture would be entirely healed in about six weeks, and that plaintiff would be entirely well, and able to resume his regular employment, in not to exceed eight weeks; that plaintiff’s wages at that time were $8 per week, and Austin offered to pay plaintiff for eight weeks’ time at that rate, and a small sum for such additional medical attendance as he might require, — in all, $75. This proposition complainant accepted, as his hill avers, upon those conditions, viz. “that lie should he well in not to exceed eight weeks, and that he would accept the said seventy-five dollars in satisfaction of said injuries so talked about,” and executed the release, receiving the $75 therefor. The bill avers that the claim agent, Austin, “pretended to read the paper to which your orator set his mark, but that he read the same with great rapidity. Whether he read all of it, your orator does not know; but your orator charges That he did not, and that the only portion which was read so that complainant could understand it was that relating to the receipt of $75, and the expression ‘fracture of the arm.’ ” The further charge of the bill is that, “in so far as 1lie paper recites that there was a controversy as to the liability of the company, it is false and fraudulent, and was imposed upon your orator fraudulently, and without, proper reading on the part of said claim agent, and tha.t your orator never intended to execute any such paper, and no such agreement was ever made between the parties”; that it was executed wholly on the absolute and unqualified statements of defendant’s chief surgeon “tha.t complainant would be entirely well and able to resume his employment in not to exceed eight weeks, and the implicit confidence in said statements by said plaintiff, who believed the same to be true, and he would not have set his mark to said paper except for such representations and statements, nor would he have accepted the $75 as satisfaction for the forearm and the wounds on his head”; that, before this settlement, complainant’s right shoulder and right part of his body adjacent began to pain him to such an extent as to alarm him, but the surgeon assured him that such pain was merely sympathetic, and arose from the fracture of the arm. Plaintiff returned to his home on the 7th of October, 1890, where his shoulder and the muscles and parts adjacent again distressed him greatly, so ,hat he could not remove his coat alone, and the same was necessarily cut, off his person. He denies that any examination was made by the surgeon at Danville of any part of his body, except the forehead and right arm, and asserts that, from the time of complainant’s arrival home, his shoulder grew rapidly worse, but, relying upon the assurance given him by the,defendant’s surgeon, he did not call a physician until the pain had become unendurable, and such as to cause him alarm; that he still suffers from such injuries; that the “injury to the shoulder is permanent, and is variously described by surgeons whom he has consulted as adhesion of the right shoulder joint, atrophy of the muscles and injury to the nerves of the right side, and in addition thereto, and as a consequence thereof, the loss of</p> <p>mobility of the fingers 'of tbe right hand,' and that his shoulder has been dislocated and fractured in said collision; that by reason of said injury he has been totally helpless since October 7, 1S90, unable to pursue his calling as a carpenter, suffering from excruciating pain day and night, unable to clothe or wash himself or to put on or remove his shoes and other articles of apparel; that for a number of weeks after his return home he believed that the injuries to his shoulder would disappear with the healing of his Eight arm, but he then discovered that the injury was independent and distinct from the fracture of the forearm, and was permanent, and thereupon notified the chief surgeon of the defendant of such injuries, as additional to those for which said surgeon treated him, and notified the defendant that hé should insist that he was not bound by the receipt of seventy-five dollars paid to him at Danville, Illinois, as a consideration of the release, and that he should insist upon his rights in the premises”; that he kept no copy of the release signed by him, and he disclaims recollection after his return home of the contents thereof, except that it recited the receipt of $75, and something about the fracture of the arm, so that he was unable to tell his friends or his attorney what the contents of that paper were. The bill further alleges that, “in the conversation preceding the execution of the release by complainant, nothing was said about any injury, except that to the forearm, and that it was not the intention of the parties to settle any other matter or thing. The complainant denies that he ever freely or deliberately, or with knowledge, executed any paper releasing or discharging the defendant for any injuries to his person whatsoever, except the fracture of the arm and the slight contusion of the brow, and that ini so far as said alleged release covers', expressly or impliedly, any other injuries, it was obtained from his surreptitiously and fraudulently; that he ia. comparatively an ignorant person, unused to such business; had traveled but little on the railroad; that he never had any business, to speak of, with professional persons, and stood in great awe of persons of the eminence and standing of said claim agent and chief surgeon, and trusted entirely to the assurance of the former that he would rapidly recover, and he did not employ counsel, or examine the papers which were prepared for him, but relied upon the good faith and honesty of said officers of defendant; that if said release was not obtained by actual fraud on the part of the officers, and by the suppression from your orator of the truth concerning his physical condition by said surgeon, that then it was given and received under a mutual mistake of the vital facts concerning your orator’s injuries; * * * that either said surgeon knew of the same, or surmised the same, and suppressed the facts from your orator, or all the parties, when said alleged release was made by your orator, were in total ignorance of said severe injuries, and said agreement which was arrived at was made under a total, complete, and vital misapprehension of fact on the part of all the parties concerned; and that in either cáse said alleged release was never binding upon your orator.”</p> <p>As an excuse for the delay in bringing his action, he alleges that he “was without means to enforce his rights against the defendant; that he resides in Ontario, and had scarcely means to meet his necessary living expenses; that his financial condition was such that he was obliged to receive aid from a Masonic association of which he is a member; that he had no money wherewith to fee lawyers to prosecute his claims, and was without the necessary means to pay for proper surgical .and medical attendance, although he did receive surgical attendance out of the kindness of heart of local surgeons who were willing to wait for their pay; * * * that during all the years from his said injury, until the present time, he has been unable to earn, and never has earned, a single dollar, although up to the time of his* said injury he was well, hearty, and strong, and of full earning capacity, and constantly employed. * * *” He further says, after protesting against the necessity of repaying the $75 and interest, “that in June, 1894, the defendant furnished his attorney with a copy of the release, and, under the' instructions of - said attorney, complainant tendered on the 28th day of June, 1894, the seventy-five dollars and interest, — in all, $94.60, — which the defendant declined to accept. * * *” The bill recites the commencement of the suits in the Wayne circuit court and in this court, and formally tenders the $9:1.<50 io defendant, and prays that' the court will' declare the alleged release to he no settlement l'or the Injury to complainant’s right shoulder and the adjoining parts of the body, and that the voucher accompanying such release may also be hold for naught, and that the court will, by its decree, wholly rescind or so reform the release as to limit its operation to the fracture of the forearm and the contusion of the brow, and in tike manner reform the terms of the said voucher, and hold such instruments to be no bar to the recovery of damages by the plaintiff.</p> <p>To this bill defendant filed a demurrer on several grounds: First The jurisdiction is not made to appear by any averment in said bill. Second. That, by reason of the terms of the release, the same cannot be altered or set aside on" parol testimony of the alleged facts set out in the bill. Third. ’Chat the same cannot be set aside as improvident. Fourth. That it cannot be set aside because, as alleged, the plaintiff failed to inform himself of the contents of the release when he signed it. Fifth. That the release cannot be set aside on the ground that the same was executed by complainant in reliance upon the opinion expressed by the surgeon of defendant that “the complainant would he well in not to exceed eight weeks.” Sixth. That complainant’s expenditure of the $70 iiaicl by defendant, with knowledge of the settlement, for nearly four years, before offering to return it, was a ratification of the settlement, which, once made, was final and binding on complainant. Seventh. That complainant did not on his return home in Ocíobar, 1890, and particularly after he was advised, as the bill avers, by an rmineni surgeon, in March, 1891, of the nature and extent of the injuries s.o Ills shoulder, announce his purpose to rescind such settlement, and adhere tú finch annoraicemont, and offer to return the money, but continued to treat the money as his own until the 28th of June, 1894. Eighth. That the poverty of the complainant, and his inability to fee lawyers, is no excuse for his delay. Ninth. That the delay of complainant from the fall of 1890 and from March. 189!, when he was fully advised of his legal rights, until the spring of 1895. before filing his bill, is such laches' as bars the relief prayed.</p>

<p>Suit by the Farmers’ Loan & Trust Company against the Detroit, Bay City & Alpena Railroad Company to foreclose a mortgage. On pel ilion" by Thomas Keating, by his next friend, to have a lien dedared in Ms favor on certain funds in the hands of the receiver appointed in the suit.</p>

<p>Foreclosure Proceedings — Intervention by Bondholders’ Committee.</p> <p>When, in the course of a proceeding to foreclose a railroad mortgage, it develops that differences of opinion existed between committees representing different bondholders, so that probably no order for sale can be made which will command the consent of the parties in interest, it is proper to allow such committees to be made parties.</p>

<p>1. Railroad Aid Grant — Time of Taking Effect.</p> <p>Lands within the primary limits of a land grant in aid of a railroad are identified, and segregated from the public domain, by the filing with and acceptance by the secretary of the interior of the map of definite location of the line of the railroad in aid of which they are granted, and the grant of these lands then takes effect as of the date of the approval of the act making the. grant. .</p> <p>2. Same — Indemnity Lands.</p> <p>Lands within the indemnity limits of such a land grant remain the property of the United States, and subject to disposal by them, until such lands are selected by the beneficiary in lieu of lands lost within the primary limits. Lands within the indemnity limits are not reserved until they are either thus selected, or are withdrawn from market by the see- • retary of the interior, pursuant to the terms of the act.</p> <p>8. Same — Reservation from Operation of Grant.</p> <p>Lands within the primary limits of the grant of July 4,1866 (14 Stat. 87), and within the indemnity limits of the grants of March 3, 1857 (11 Stat. •195), and of March 3, 1865 (13 Stat. 526), which had not been withdrawn from market by the secretary of the interior under the latter acts when the map of the definite location of the line of the Hastings & Dakota Railroad Company was filed with and approved by the secretary of the interior, were not reserved or excepted from the operation of the act of July 4, 1866, grafting lands to aid in the construction of the railroad of that company, but passed under that act.</p> <p>4. Same — Withdrawal from Market.</p> <p>Act March 3, 1865, increasing the quantity of land granted to the state of Minnesota by Act March 3, 1857, to aid in the construction of a railroad by the First Division of the St. Paul & Pacific Railroad Company, provided that, as soon as the governor of the state should file with the secretary of the interior maps designating the routes pf said road and branches, it should be the duty of the.secretary of the interior to withdraw such lands from market. Held, that the act. did not effect such withdrawal in the absence of the filing of a map or any action by the secretary.</p> <p>■ 5. Same.</p> <p>Nor was it the duty of the secretary to withdraw such lands from market until the governor filed maps as required hy the act.</p> <p>6. Same.</p> <p>The fact that in 1857 a map was filed in the land office designating the line of the road was immaterial, the commissioner having refused to accept such designation because the lands were not surveyed, and the company having- acquiesced in such ruling.</p> <p>7. Sami;.</p> <p>Since Act March 3, 1865, expressly required the filing of maps designating- the route of the railroad, and in view of the facts that the commissioner had notified the railroad company in 1857 that no action could be vaken as to a part of the line on the map filed in that year until a supplemental map was filed, and the company had notified the commissioner that it intended to change this part of its route, and he consented to such chango, a letter written in .Tune, 1865", by the governor of the state to the secretary of the interior, asking whether It was necessary to again file maps of the land pertaining to that part of the route, and stating that, if it was not necessary, he requested the withdrawal of the lands designated upon such map previously filed, could not be considered as an adoption by him of this map, nor did it impose on the secretary any duty to withdraw the lands exhibited by it on that part of the route.</p> <p>8. Same — Duties of Commissioner.</p> <p>It is within the powers and duties of the commissioner of the land office to determine whether the railroad was located in good faith on as direct a line as the topography of the country would permit, or was unnecessarily deflected to increase the land grant.</p> <p>9. Same — Acquiescence in Commisstoneb’s Decision.</p> <p>A eomijany which accepts a ruling rejecting its map ol' definite location, and' 6 years later agrees with the officers of the land department, that its line is not definitely fixed by the filing of the rejected map, and receives permission to relocate its line and change its terminus on that account, without legislation, cannot, after its own and conflicting land grants have been administered with this view for more than 20 years, insist that its line was definitely fixed by the filing of its rejected map, on the ground that the error of the commissioner could not affect its rights.</p>

<p>Foreclosure of Lien — Preliminary Injunction.</p> <p>A bill filed to foreclose a lien for money due for machinery furnished to a street-railway company claimed a lien upon all the real estate, rolling stock, and track of the company. It appeared that the property was worth more than $100,000, and that the building in which the machinery furnished was erected was worth more than $24,000, and that it contained other machinery ■ worth $5,000. Held, that the court would not issue a preliminary injunction to restrain the company from removing the machinery from the building in which it was placed on the ground that this would lower the value of the property subject to the lien, so .as to constitute waste.</p>

<p>SAY,® under Railroad Mortgage — Purchase by Bondholders’ Committee.</p> <p>Upon a sale under a railroad mortgage, a committee representing a part of the bondholders purchased the property for cash. The committee had previously advertised its purpose to protect the property, and its invitation to all bondholders to share the expense and result was kept open till the sale. The committee and the mortgage trustees were all parties to the foreclosure suit and took an active part therein. Held, that bondholders who did not accept the invitation and were not represented by the committee could not claim a priority in the distribution of the cash consideration paid by the committee merely because the latter immediately resold the property for sufficient to pay the par value of the bonds represented by it, the order for sale having directed a distribution of the fund received on the sale pari passu among all the bondholders.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>This is an appeal from a decree dismissing a bill brought by the appellants, R. G. Atkinson and E. B. Houston, to enjoin the appellees, James H. Allen, Thomas West, and J. G. Bush, from prosecuting an action at law against the appellants upon their promissory note and contract. From 1877 to 1886 the appellants were merchants at Fine Bluff, in the state of Arkansas, and the appellees were commission merchants at New Orleans, in the state of Louisiana. Between July, 1877, and February, 1885, the appellees advanced moneys to the appellants at various times, and the latter shipped cotton to the former, which was sold by them on commission, and its proceeds were credited to their account. During a large portion of this time the appellants agreed to pay to the appellees 8 per cent, per annum interest, and 2y2 per cent, commission, on the amount of the advances they received, and also agreed to ship to them each year one bale of cotton for every $10 of their indebtedness, to be sold by the appellees on commission, and that, if they failed to ship that number of bales during each year, they would pay to the appellees $1.25 on each bale of their deficiency. The appellees frequently rendered to the appellants statements of their account, and in each statement they added the interest and commissions to the date of the statement, and then treated the balance, which was always against the appellants, as a new principal. During these years the appellees sold cotton for the appellants which realized about $500,000, and at all times after 1879 the latter were so heavily indebted to the former that they could not pay them, and their credit would have bgen impaired, and they might have been financially ruined, if the appellees had sued them for the balance of their account; and by these circumstances they were compelled from year to year to renew their agreement to pay these commissions and this interest, in preference to standing an action at law for their debt. The appellants were partners as R. G. Atkinson & Co. in all these transactions, and in February, 1885, Atkinson went to New Orleans, examined, allowed, and settled the account of the appellees against his firm, which disclosed all the, charges for interest and commissions of which the- appellants now complain. This account showed that Atkinson & Co. owed the appellees $17,-929.84, and the latter demanded that the appellants should then give them their promissory notes for that amount, and should agree to ship to them during the year commencing September 1, 1885, 1,793 bales of cotton, and to pay them $1.25 for every one of that number of bales which they failed to so ship, and threatened that, if they did not execute such notes and such an agreement, they would sue them for the balance of this account in New Orleans, before Atkinson could leave that city. Thereupon Atkinson allowed the account, and signed the notes and agreement with his firm name. One of these notes was for $3,250, payable in December, 1885, and the appellants paid it at maturity. The other was for $14,679.84, and was payable in January, 1886. The appellants paid this note, with the exception of $4,886.09 and interest from maturity, but they did not ship any of the cotton according to their agreement. In December, 1886, the appellees brought an action at law against the appellants in the United States district court for the Eastern district of Arkansas, to recover the balance due upon this note and the 82,213.25 which the appellant had agreed to pay for their failure to ship the 3,795 bales of cotton. Thereupon the appellants brought this suit in equity, alleged that the notes and contract were tainted with usury, and were obtained by duress, and prayed that the appellees be enjoined from prosecuting the action at law; that the account which had been settled by the notes be restated, purged of all illegal, unjust, and improper charges and exactions; and that they recover of the appellees any amounts found due them on such restated account. The complaint of the appellants in this court is that the court, below dismissed tlielr bill upon this state of facts.</p>

Bill by Kent K. Hayden, receiver of the Capital National Bank of Lincoln, Neb., against David E. Thompson and others. From a decree dismissing the bill (67 Fed. 278), complainant appeals. Keversed.

<p>1. Public Lands — Railroad Grant — Forfeiture.</p> <p>Tbe condition in Act June 3, 1850, granting public lands to the state of Alabama to aid in the construction of certain railroads, that, if any one of said roads is not completed within 10 years, no further sale shall be made, and the lands unsold shall revert to the United States, cannot be enforced except by congressional action.</p> <p>2. Same.</p> <p>Nor, in the absence of such action, are sales and transfers made after the expiration of such 10 years invalid.</p>

The appellant, as complainant below, instituted this suit against John W. Burford and wife, Matilda F. Burford, on their joint note, payable to the order of complainant, for 814,000, loaned to them by complainant, and interest thereon at 10 per cent, per annum from December 10, 1889, and 10 per cent, attorney’s fees.

<p>1- iteviB/w on Akphal — -Equity Jurisdiction.</p> <p>When both parties assume in the circuit court that the bill stated matters of equitable cognizance, and the case was within the jurisdiction of that court, the circuit court of appeals can dispose of the controversy on its merits, though the relief sought might have been given in a suit at law.</p> <p>2. Inscuvnck — Renewal of 'Policy — Estoppel by Agent’s Declaration.</p> <p>When the agents of an insurance company, who are duly authorize*! to solicit and make contracts of insurance, deliberately represent to the assured that a given policy issued by the company has been renewed, and subsequently receive and appropriate money which they have good reason to believe is paid to cover the cost of such extended insurance, the company will be estopped, after a loss has occurred, to allege that the policy was not renewed.</p> <p>8. Same — Statements by Agent’s Clerk.</p> <p>Acts done and information given by an employs of an agent of a company in the line of Ms duty is binding upon the company.</p> <p>4. Same — Insurable Interest — Purchase of Mortgage Note.</p> <p>A consummated agreement for the sale of a deed of trust and of a note secured thereby, which is in the vendee’s possession, vests an equitable title in the vendee, so as to give him an insurable interest in the property covered by the deed, though tlie note is not indorsed by the vendor.</p>

<p>1. Trial by Court — Findings or Fact.</p> <p>When a trial court is called upon to state the ultimate propositions or facts established by the evidence in the form of a special finding, it may of(or bo eonytelted to embody in the finding some legal inferences as well as inferences of fact, as when the ultimate fact to be found relates to the acquisition or ownership of property.</p> <p>S. Same.</p> <p>The conclusive effect of a special finding of fact cannot he made to depend upon the character of the proof on which it rests.</p> <p>3. Same — Review on Appeal.</p> <p>When a. jury is waived, and the court makes a special finding, an appellate court cannot look into the evidence? except to ascertain whether there was error in admitting or excluding testimony.</p>

<p>1. Trial — Exceptions to Charge.</p> <p>If the entire charge is excepted to, or a series of propositions contained in it are excepted to in gross, and any portion of what is excepted to is sound, the exception cannot be sustained.</p> <p>2. Same.</p> <p>The attention of the court must be distinctly called to the portions of rhe charge excepted to before the final submission of the cause to the jury.</p> <p>8. Same.</p> <p>It is error to charge the jury upon an assumed state of facts to which no evidence applies.</p> <p>4. Same.</p> <p>It is proper to refuse to charge as requested by counsel, when the rules of law embodied in the request are properly laid down in the general charge.</p> <p>5. Excessive Verdict.</p> <p>It is not a ground of exception that a verdict is excessive.</p>

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

<p>Writ ok Kins on — Limitations.</p> <p>Under Act Mareli 3, 1891, § 11, a writ of error must be sued out within six months in order to authorize a review by the circuit court of appeals.</p>

<p>Appeal — Harmless Error,</p> <p>in an action against a city on interest coupons, the city cannot complain of error in admitting the coupons, without proof of their execution, if it subsequently itself offered evidence amply sufficient to establish the due execution and delivery of the bonds to which the coupons were attached.</p>

<p>Tu Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>The defendants in error, Ai. E. Fuller, John A. .Johnson, and Edward M. Fuller, brought this action in the United States circuit court for the Second division of Ihe district of Minnesota, against the plaintiffs in error, H. F. Ilojipensiedt and Ernst Bierman, to recover a quarter section of land. A jury was waived, and the court made the following special findings of fact and declarations of law:</p> <p>“One F. VV. Bierman entered the land under the timber act of congress, and received a paient for the same February 3, 1888. On April 25, 1888, he and bis wife executed a mortgage of the premises to one G. K. Gilbert, and on February 8, 1889, executed a second mortgage thereon to one Barnliard II. Franzen. Both mortgages were duly recorded about the time they bear date. On April 27, 1891, the latter mortgage was purchased by the defendant Hoppenstodt, and lie also purchased the Gilbert mortgage on May 13, 1891, which was assigned to him, and all the instruments were duly recorded. Default having been made in the Gilbert mortgage the owner, Hoppenstedt, foreclosed by advertisement under the statute, and it was sold June 29, 1891, and bid in by him for the sum of 8323.91, which .was the amount due. On April 5, 1890, Ihe firm of Fuller & Johnson obtained a judgment against F. \V. Bierman for the sum of 8091.40, and $11.00 costs. This judgment was obtained upon nol.es executed before the patent issued to Bierman under the timber culture act, and, by the terms of that act, the judgment obtained would not be a lien upon this property. On February 23, 1891, Spicker Bros, obtained a judgment against Bierman for the sum of 8157.17, which was duly .assigned to Fuller & Johnson, and became a lien upon the land in question. On June 28, 1892, Fuller & Johnson, the survivors of the old firm of Fuller & Johnson, one of the partners having died, filed through their agent, Peterson, notice of an intention to redeem from the sale under the Gilbert mortgage, in time under the statute; and the same agent also, on June 29, 1892, made an affidavit staling the amount due on the two judgments owned by the plaintiffs, which was in excess of the amount actually, due as a lien, by the amount of the first judgment. The amount required to redeem under the foreclosure from the assignee of Gilbert was given to the sheriff of Sibley county, and also certified copies of the judgment, and the proper certificates evidencing the lien under which the right to redeem is claimed were produced. It appears also that a certificate of redemption was duly made in coup pliance with the statute, by the sheriff of said county, and delivered to plaintiffs, bearing date June 29, 1892, and duly recorded. Also another certificate of redemption was executed by the sheriff, dated August 23, 1892, and duly recorded. This last certificate was issued merely to correct an error in the date of the time specified in the certificate of June 30, 1892, which fixed June 29th as the day of redemption, when in fact redemption was actually made on June 30, 1892, which was after the year had expired, of which fact there is sufficient evidence in the ease. Fuller & Johnson, as creditors, being lien holders under the statute, had a right to re.deem them, but not before that time. Defendant Hoppenstedt has never received or accepted from the sheriff of the county of Sibley the moneys paid by said plaintiffs to said sheriff in attempting to make redemption from the foreclosure sale of the premises hi controversy to Hoppenstedt, and such money has not in fact been paid to him by the sheriff, nor demanded by Hoppenstedt from the sheriff; but the sheriff duly tendered him the amount so paid to him, for the purpose of redemption, and the full amount necessary to redeem the premises from the foreclosure sale. The mortgagor, Bierman, never. redeemed, and Hoppenstedt never filed any notice of intention to redeem as a subsequent mortgagor, nor took any steps required to set forth his rights under the Franzen mortgage.</p> <p>“I find, as conclusions of law, that Peterson, as the agent of Fuller & Johnson, had a right to sign the notice to redeem and the affidavit of the amount due the creditors, and that the statute has been complied with in that respect; that Fuller & Johnson could redeem without paying the junior mortgage owned by Hoppenstedt; and that they could lawfully use the name of the old firm as was done by them. I find that plaintiffs are entitled to possession of the premises. Judgment therefor will be rendered accordingly, with costs. ft. ft. Nelson, Judge.”</p> <p>Upon these findings of fact and declarations of law, judgment was rendered for the plaintiffs, and the defendants sued out this writ of erroi^</p>

The first National Bank' of Kansas City, Mo., the defendant in error, sued J. W. Rush, the plaintiff in error, in the circuit court of the United States for the district of Kansas, to recover the amount due on a promissory note which was executed by the defendant in the following form: “$3780. Kansas City, Mo., Feby. 5, '1894. “Sixty days after date, I promise to pay to the order of 1st Nat.

<p>: In Error to tlie Circuit Court of the United States for the District of Nebraska. ■</p> <p>• Proceedings in error by Charles E. Summers against Frank E. .White, United States marshal, Farrington Power, deputy marshal, Lewis Boehme, deputy marshal, the Nebraska-Moline Plow Company, and Kingman & Co., and by Charles E. Summers, sheriff of Fillmore county, Neb., assignee, against the Nebraska-Moline Plow .Company and Frank E. White, and by Charles E. Summers, sheriff ■of Fillmore county, Neb., assignee, against Kingman & Co. (incorporated) and Frank E. White.</p> <p>. These eases grew out of the same transaction, and involve a common question, for which reason they have been considered together, and may be disposed of by a single opinion. On July 10, 1893, J. M. Burk made a general .assignment for the benefit of his creditors to Charles E. Summers, 'the plaintiff in error, who was at the time sheriff of Fillmore county, Neb. The assignment was made to said Charles E. Summers in his official capacity ,a^ sheriff, pursuant to the requirements of the assignment law of the state of Nebraska. Consol. St Neb. 1891, c. 4, § 235. The deed of assignment was not witnessed. The sheriff recorded the assignment on July 11, 1893, •took ppssession of the assigned property on that day, and remained in pos- . session thereof until July 17, 1893,' when the property was taken from his custody by Frank E. White, United States marshal for the district of Nebraska, under a writ of attachment issued by the circuit court of the United State's for the district of Nebraska in a suit begun by Kingman & Co., a corporation, against J. M. Burk. Subsequently, on June 19, 1893, another ■levy- was made by thé marshal on the same property under a writ of attachment issued at the instance of the Nebraska-Moline Plow Company, in a suit begun, by it .against J. M. Burk in the circuit court of the United States for the district of Nebraska. Subsequently Charles E. Summers intervened in the two attachment suits thus brought, claiming the attached ■property as assignee of J. M. Burk under the deed of assignment for the general benefit, of Burk’s creditors. Summers, as assignee, also brought an action of replevin against Frank E. White, United States marshal, and against Farrington Power and Louis Boehme, deputy marshals, and also against the Nebraska-Moline Plow Company and Kingman & Co. The action of replevin ■Was instituted in the district court of Fillmore county, Neb., but was subsequently removed therefrom by the defendants to the circuit court of the United States for the district of Nebraska. The replevin suit aforesaid was eventually tried in- the circuit court of the United States before a jury. The jury returned a special verdict, and on the return thereof the court entered a judgment in favor of Frank JO. White, United States marshal, and against Charles 10. Summers, assignee. At the same time it entered an order in each of the aforesaid attachment suits directing that the intervening petition of the assignee in each of said suits he dismissed at the assignee’s cost. The record in each of said suits has been removed to this court by a writ of error sued out by the assignee.</p>

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

<p>t. Pledgee of Notes — Duties and Liabilities.</p> <p>A person having notes in his possession as collateral security for a debt is hound, so far as the general owner of the notes is concerned, to. use reasonable diligence to protect the security so held, and see that it. is not outlawed.</p> <p>2. Same - Negligence.</p> <p>A hank having in its custody, as collateral security for a debt, notes secured by a chattel mortgage on live stock and farming implements on a farm, is hot necessarily negligent, as respects the owners of the notes, because it fails to collect the notes as they mature, though the mortgaged property is at that time adequate for the purpose, since, under certain conditions, sncli as a failure of crops, a prudent creditor would allow the mortgagor some indulgence.</p>

<p>£u Error to the Circuit Court of the United States for the Eastern-District; of Pennsylvania.</p>

<p>Id Error to the Circuit Court of the United States for the District of Colorado.</p> <p>This action ivas brought in the United States circuit court for the disiriet of Colorado by Alfred Stows, the defendant in error, against the London A Lancashire Fire Insurance Company, the plaintiff in error, to recover the smn of §4,000 on a policy of lire insurance issued by the plaintiff in error to the defendant in error on his dwelling house and barn, which were destroyed. by fire on the 5th day of November, 1893. The complaint alleges that the value of the property insured and burned was more than the total amount of insurance thereon. As respects the value of the property burned, the complaint counts exclusively on an appraisement thereof, touching which it contains this averment: “And plaintiff further alleges that, after life Add tire, there was a disagreement between plaintiff and defendant as to the amount of the loss occasioned thereby, and the question as to the amount: of such loss was thereupon, by agreement between the plaintiff and defend-.«n, and in accordance with the provisions of the said policy of insurance, duly referred for ascertainment to two competent disinterested appraisers, .'ini' of whom was selected by the plaintiff, and one by the defendant; that unid appraisers thereafter estimated and appraised the loss of the plaintiff by said fire, and made an award to plaintiff, in the words and figures as iVfllows, to wit:</p> <p>“ ‘Denver, Colo., Dec. 20th, 1803.</p> <p>ATe, the undersigned builders, agree on the A. Stows buildings at the following values at the time of loss by lire, Nov. 5th, 1893:</p> <p>Now barn and fix.......................................................... 8 7,154 00</p> <p>«Hd Kirn and fix........................................................... 750 00</p> <p>Dwelling.................................................................... 4,059 75</p> <p>Him k and no ok house.......„............................................. 816 50</p> <p>Hull pon ............................................................... 8550</p> <p>t fog house............................................................ 723</p> <p>lr<;o house and fence.................................................... 000</p> <p>1,873 00</p> <p>814,683 25</p> <p>“ ‘Thomas C. Run die.</p> <p>“ ‘Thomas Freeman.’ ”</p> <p>The answer denied these allegations of the complaint. Touching the appraisement, the answer st ates that “plaintiff admits that, after the alleged lire, there was a disagreement between the plaintiff and defendant as to the amount of the loss occasioned by said lire; but defendant denies that the question as to the amount of such loss was thereupon, or at any time, by Agreement between the plaintiff and defendant, or otherwise, or in accordance with the provisions of said policy of insurance, or a.t all, referred for ascertainment to two competent disinterested appraisers, or to any appraisers, eiiher selected by the plaintiff and defendant, or at all. Defendant denies that the said pretended appraisers estimated and appraised the loss of the plaintiff, by said fire, and denies that the said pretended appraisers made an award to plaintiff in the words and figures set out In the complaint, ind denies that said pretended appraisers, or any appraisers, made any award to (he plaintiff, in any manner or form, or at all.” The following are the provisions of the policy relating- to appraisement: “This company shall not bo liable beyond the actuiil cash value of the property at: the time any loss ««■ damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided, * * In the event of disagreement as to the amount of loss, the same -shall, as above provided, be ascertained by two competent and disinterested appraisers, — the insured and this company each selecting one, — and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage; and, failing to agree, shall submit their, differences to the umpire, and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire.” The answer set up numerous affirmative defenses, based on alleged noncompliance of the insured with the conditions of the policy, but, in the view the court take of the case, these conditions were waived, and need not be set out or further considered. There was insurance on the property in other companies, but, after the appraisement, these companies settled their losses. There was a trial to a jury, and a verdict and judgment in favor of the plaintiff, and the defendant sued out this writ of error.</p>

<p>1. Adverse Possession — Parol Contract or Sale.</p> <p>A vendee of land in possession under a parol contract of sale holds adversely to his vendor from the time that the contract is executed by the payment of the purchase money.</p> <p>2. Contract of Sale — Estoppel of Vendor.</p> <p>If the vendee has not been in possession so long as to render the statute of limitations available, he may likely plead the contract of sale and the payment of the purchase money by way of estoppel in bar of an action in ejectment by the vendor.</p> <p>8. Adverse Possession.</p> <p>The possession of one taking land in payment for a debt is adverse as against all the world.</p> <p>4. Instructions — Special Verdtc-t.</p> <p>■ When the jury are required by the court to return'a special' verdict, it" is unnecessary and improper to give instructions upon general principles of law applicable to the case.</p> <p>5. Same — Harmless Error.</p> <p>When the verdict returned is a special one, error in instructions given relative to general rules of law is not ground for reversal if the judgment actually rendered is clearly warranted by the verdict.</p> <p>6. Evidence — Declarations as to Title. v</p> <p>Declarations made by one in possession of land as to the-nature of his claim to the land are admissible to show the character of his possession, whether they are in disparagement of his title or otherwise.</p> <p>7. Inadmissible Evidence — Failure to Object.</p> <p>There can be no review of the admissibility of evidence given in response to questions propounded by appellant’s counsel, to exclude which no motion was made.</p> <p>8. Evidence — Declarations against Interest.</p> <p>Where plaintiff claims under the foreclosure of a mortgage given by a former owner, and defendant claims title by adverse possession, deelara- . tions by such former owner, since deceased; made before the making of the mortgage, that he owed defendant some money, and that, not being able to pay it, he had given him some land in a certain section of a city; in which section the land in dispute lies, are admissible, as being against - the interest of the party who made them, to show that defendant took possession of the property as owner under a parol contract of sale.</p>

<p>Railroad Aid Association — Acceptance of Benefits — Release of Claim.</p> <p>Where a railroad relief association, composed of associated companies and their employés, is in charge of the companies, who guaranty the obligations, supply the facilities for the business, pay the operating expenses, take charge of and are responsible for the funds, make up deficits in the benefit fund, and supply surgical attendance for injuries received in their service, an employe’s agreement, in his voluntary application for membership, that acceptance of benefits from the association for an injury shall release the railroad company from any claim for damages therefor, is not invalid as being against public policy, or for want of consideration or mutuality.</p>

This was an action by Joseph Henry Yickers against the Chicago, Burlington & Quincy Railroad Company to recover damages for personal injuries received in its service. Defendant moved the court to direct a verdict in its favor.

<p>1. Injury to Employe — Defective Telephone Pole.</p> <p>When, in the course of the erection of a telegraph polo by a telegraph company, an occasion arises for the casual and sporadic use of a telephone pole belonging to another company, to remove an obstructing wire, the lelogiaph company is not at fault because it directs an employs to climb such telephone pole without making a previous inspection to ascertain whether it is safe.</p> <p>2. Same — Assumption ov Risk.</p> <p>The risk from defects in such a pole is incidental to the service of the employe, and is assumed by him, unless he insists on an inspection of the pole.</p>

<p>1. Actiox agaixst Railroad Compass' — Injury to Employe — Comuso Cars.</p> <p>In an action against a railroad, company for injuries received by an employé, while coupling cars, through the disparity in heights of the drawheads of the cars, which was alleged to bo due to the sagging of one of the drawheads, caused by defects in the carrier iron, defendant asked the court to charge that defendant was not bound to furnish plaintiff absolutely safe machinery, but owed him the duty of furnishing such as would be reasonably suitable,' and to exercise ordinary care to see that it was kept in like condition, and that, in determining this, the jury might consider whether it was usual for defendant to have on its line cars with different heights of drawheads, and also whether those engaged in the transportation and inspection of cars would, in the exercise of reasonable care, consider snch defects as were shown by the evidence as such that would likely occur which might be reasonably anticipated by employés. Held, that it was error to refuse such charge, the substance thereof not being covered by any charges given.</p> <p>2. Same.</p> <p>One paragraph of the charge conveyed the idea that if plaintiff actually knew the condition of the drawhead on the defective car, lie could nor recover, but that if he did not know which particular car he was coupling, and did not know whether the defective drawhead in that car liad been repaired, he would be free from contributory negligence. The evidence was conflicting as to whether plaintiff did identify this car, and as to whether he should have identified the car, or known whether it had been repaired. Held, that it was error to refuse to charge that, though the drawhead had been allowed to become lower than it should have been, plaintiff could not recover, If he knew of this fact, or should have known of it by the exercise of reasonable care.</p>

The defendant in error, the Adler-Goldman Commission Company, on the 13th of November, 1894, brought an action in the United States court for the Eastern district of Arkansas against J. Loewen on a promissory note for 84,735:83, and caused an attachment to issue In the action, which was levied on Looweifs property; and on the 11th day of December, 1894, judgment was rendered in tbe action, by default, for 85,126.28 and costs, and the attachment was sustained.

<p>In Error to the Circuit Court of the United States for the Bisitrici: of Minnesota.</p>

B. Hardy, the plaintiff in error, on June 13, 1893, became surety in a bail bond which was executed by Abram H. Kelly, as principal, to secure the personal appearance of said Kelly, before the United States court in the Indian Territory, at the next term thereof, “then and there to answer what might be objected against him.” The bond was taken and approved by Moran Scott, a commissioner of the United States court in the Indian Territory.

Wrongful Use of Mails — Scheme to Defraud. An indictment, under Rev. St. § 5480, for using the mails for promoting “a scheme and artifice to defraud,” must show that there was a motive of gain on the part of defendant, since the general language of the statute must be limited to such schemes and artifices as are ejusdem generis with those siieeifieally named, and these latter are of the kind which are gainful to the wrongdoer.

<p>1. IXPRTXOKMEXT OP TrADIO-MAHX.</p> <p>The mere use by defendants of their own firm initials, “B. & S,,” upon articles sold by them, is not an infringement of a registered trade-mark for the two letters, “S. B.,” arranged in that order.</p> <p>3. Federad Jijiusdiotiox — Fraud ox Public.</p> <p>The fact that the similarity between goods manufactured by defendants and complainants is such as to show an intent by the latter to deceive the purchasing public is not ground for the assumption by the federal court of jurisdiction of a suit to restrain defendants.</p>

<p>Tbadb-Marks and Trade-Names — Infringement—Unfair Competition.</p> <p>Complainant acquired the right to manufacture and sell in this country “Johann Hoff’s Malt Extract,” under labels and trade-marks long used in Germany. This compound had been known for many years in this country both as “Johann Hoff’s Blalt Extract” and as “Hoff’s Malt Extract,” and was dealt in under the latter name quite as much as under the former. Afterwards defendant acquired the right to import and sell here “Leopold Hoff’s Blalt Extract,” which is made by an alleged different formula at Hamburg. Held, that defendant had no right to sell this compound in bottles having a label bearing conspicuously, at the top, the words “Holt’s Blalt Extract,” although on a different part of the label and on a separate label the fact was stated that it was made by Leopold Hoff in Hamburg; and that defendant should be enjoined from using those words, unless preceded by the word “Leopold,” so as to read “Leopold Hoffs Malt Extract.”</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This wa,s a hill in equity by the city of Carlsbad and others against Hermann Kutnow and others, composing the Arm of Kutnow Eros., for an alleged infringement of the trade-mark or trade-name “Carls-, bad. Sprudel Salts.”</p> <p>The appeal is from an interlocutory decree of the circuit court, Southern district of New York, enjoining the defendants from using the name “Improved Effervescent Carlsbad Powder,” and the name “Improved Carlsbad,” or the name “Carlsbad,” to designate the preparation heretofore used and sold by them, and from using said names to designate any preparation, compound, or article substantially the same as the preparation heretofore sold by them, and from using or'applying in commerce the name “Carlsbad” with or to any preparation or compound not a genuine Carlsbad product, so as to represent that such preparation or compound is genuine Carlsbad salts or .powder, or which is liable to cause said preparation or compound of the defendants to be known in the market as genuine Carlsbad salts or powder.</p>

<p>1. Tkadk-Makk — Pbiobity of Adoption.</p> <p>Complainants, who claimed the name “Green Mountain” as a trade-mark for a variety of grapevine raised and sold by them, had obtained the cuttings from which the vines were propagated from one P-, in 1885, and after some years of experimental cultivation began to sell the vines, in 1889, under the name “Green Mountain.” It appeared that P. had discovered the original wild vine in the Green Mountains, in 1884 or earlier, and in that year sent one of the vines to one H., in New York, with whom he had discussed the question of a name for the vine, and had settled upon “Green Mountain,” which name he attached to the vine sent to H.; that in 1883 he sent another such vine to H., who propagated vines from it to some extent, and sold them, under the name “Green Mountain,” to various persons, including the defendant, who in turn propagated and sold the vines under the same name. Held, that complainants had not shown priority of adoption and use of the alleged trade-mark, though P., at the time he sold the cuttings to them, had agreed not to sell to any others, and had informed complainants that no vines had been sold which would interfere with them.</p> <p>2. Same — Geographical Name.,</p> <p>A geographical name, denoting the place of origin of the article to which it is given, as the name “Green Mountain Grapes,” applied to grapes and grapevines, the product of a stock originally obtained from the Green Mountains, cannot be appropriated as a trade-mark. Canal Co. v. Clark, 13 Wall. 322, and Columbia Mill Co. v. Alcorn, 14 Sup. Ct. 151, 150 U. S. 460, followed.</p> <p>8. Same — Organic Article.</p> <p>The protection of a trade-mark cannot be obtained for an organic article, such as a species of grapevine, which, by the law of its nature, is reproductive, and derives its chief value from its innate vital powers, independent of the care or ingenuity of man.</p>

<p>Appeal from the Circuit Court of the United States for the-District of \>w Jersey.</p> <p>This was a bill by the Chemical Rubber Company against the Raymond Rubber Company and others for alleged infringement of certain patents relating to the art of treating rubber waste for the recovery of the rubber contained therein. The circuit court dismissed the bill, holding that, according to its construction of the patents, there was no infringement. 68 Red. 570. Complainant appeals.</p>

<p>Patents — Construction ov Claims — Valve Looks.</p> <p>The Stiner patent, No. 413,794, for an improvement in valve locks, whereby the performance of one act (such as turning off tho water in a building at night) is insured by making it impossible to perform another act (such as locking the front door of the building) until the water is turned off, covers an invention sufficiently meritorious to warrant a liberal construction of the claims, and the application of tho doctrine of equivalents. Helé, therefore, that the patent was infringed by a mechanism which, though different in appearance, was composed of parts which, in function and operation, were the counterparts of the elements of the first claim.</p>

This was a suit in equity by Royal E. Robbins and Thomas M. Avery against the Dueber Watch-Case Manufacturing Company, John C. Dueber, its president, and Winthrop A. Moore, its secretary and treasurer, for alleged infringement of a patent.

This was a bill in equity by tbe Thomson-Houston Electric Company against tbe Winchester Avenue Railway Company and others for alleged infringement of certain patents relating to electric railway contact devices..

<p>This is an action of assumpsit, brought upon the policy of marine insurance issued by the defendant, August 1, 1892, upon the propeller “Flint and Pere Marquette, No. 2,” styled in the pleadings and evidence in the case “F. & P. M. No. 2.” The policy ran from noon of August 1, 1892, to noon of December 5, 1892, and insured the plaintiff in the sum of $15,000. The risks covered by the policy are thus defined in that instrument:</p> <p>“Touching the adventures and perils which the said insurance company is content to bear and take upon itself by this policy, they are of the lakes, rivers, canals, jettisons, that shall come to the damage of the said vessel or any part thereof; excepting all perils, losses, misfortunes, or expenses consequent upon, and arising from, or caused hy, the following or other legally excluded causes, viz.: Damage that may be done by the vessel hereby insured to any other vessel or property; ineompetency of the master, or insufficiency of the crew, or want of ordinary care and skill in navigating said vessel, or in loading, stowing, or securing (he cargo of said vessel; rottenness, inherent defects, overloading, and all other unseaworthiness, theft, barratry, or robbery; charges, damage, or loss in consequence of the seizure or detention hy reason of any proceedings at law, in equity or in admiralty, or hy reason of any illicit or prohibited trade or any trade in articles contraband of war; the violation of any law, ordinance, or regulation to which the said vessel may be subject. * * *”</p> <p>The other provisions of the policy are such as are found in the usual form of lake hull policy, and are not mal erial here.</p> <p>The insured steamer, laden with a cargo of flour, bran, feed, and shorts, was, when stranded, on a voyage from Duluth, Minn., to Ogdeusburg, N. Y. Having stopped at Amherstberg for fuel, she left that place at 12:20 p. hi. of the 18th of November, 1892, the wind being then W. S. W., blowing hard, and continued so. About 12 a. m. of the 19th of November, she met with light snow, which continued until about 8 o’clock a. m., when, as the protest states—</p> <p>“It snowed so hard wo could not see more (ban the length of the boaf. At (his time we were steering E. X. E. At ;i:55 o’clock we checked the vessel down so she was making from four to live miles per hour, and ran at that speed for one hour and forty minutes, when it cleared up somewhat, and we thought we saw the land, and hauled her out a point. The second mate commenced to throw the lea.d, and, finding no bottom, ordered her hack on her course again, hut continued to throw the lead, it shut in thick again, and the man at the lead sang out, ‘8 fathoms!’ We were still under check, and the master ordered the wheel hard a-starboard, and signaled the engineer to give her full speed; and, when the vessel headed N. by W., site stranded on Use beach about six miles northwest of Long Point light, in Take Erie. We made every possible effort with the vessel’s own power to release her, and failed. In this condition, the vessel pounded hard, and commenced leaking.”</p> <p>The protest further recites the efforts made to release the steamer, and that her deck cargo and a large part of that in the hull were necessarily jettisoned before she could he floated.</p> <p>The defendant pleaded the general issue, which, under the practice of Michigan, in actions at common law, puts in issue every fact which ii: is necessary for the plaintiff to establish upon the trial. Both parties expressing their readiness to proceed with a trial, a jury was impaneled, and the plaintiff submitted its evidence in suppoii of its claim upon the policy. Home evidence was adduced hy the defendant: condemning the navigation of the vessel just preceding the stranding, and also to the effect that, hy reason of the condition of her rudder, the steamer was unseaworthy. It appeared in the evidence of the plaintiff that, a few minutes before the stranding, the master of the vessel, thinking- that he saw land about a point or a point and a half on the- port bow, changed the steamer’s course to a point to the southward, but, learning from the soundings which were made by the second mate that he could get no bottom, concluded he was mistaken, and hauled her back to her course. The lead was again cast, and eight fathoms found; and this indicating to the master, as he says, that he was too close in shore, and noting a change in the appearance of the water, the steamer’s wheel was put hard a-starboard, and the engine rung up to full speed, until, when heading about 3sT. by W., on her swing, the steamer struck the beach. The master was asked whether it was snowing at the time he put his helm hard a-starboard. He replied: “Well, it was snowing in squalls, and then it would clear up, and snow again. I cannot say it was snowing- at that instant. I didn’t see land when I struck the beach.” The steamer stranded in ten feet of water. Her draft was twelve feet. The distance from the point where the soundings found eight fathoms to the place of stranding the master thought to be about a mile and a half, and the wheel was star-boarded, he says, because he knew he “had no- business in eight .fathoms of water.” He also stated that the coast line at the place of stranding is about E. and W.; that to have cleared the land by porting required him to head about E. by S., his regular course being E. H. E.; and that, if he had ported and swung- 3 points, he would have cleared the land, if he did not fetch up; and that, in order to clear the land under her starboard wheel, he would have to swing 13 points. The wheel was starboarded instead of ported, to clear the land on the vessel’s port side, because of the condition of the vessel’s rudder stock, which the mate states “was twisted up in the Portage river some two trips before that, and we had it partly straightened out at Hancock or Houghton, and, when we got to Buffalo, we had a kind of a kink put in the tiller, — that is, instead of straightening the rudder, we crooked the tiller, and they didn’t get that entirely straight; and for that reason, when we put the wheel a-starboard, she would go around a great deal quicker than she would by putting it a-port. We could put the tiller over, but the rudder would not get as far over as it would by going starboard. There was quite a little difference in her swing.”</p> <p>It further appeared by the plaintiff’s own witnesses that at the time of the stranding, and for some time prior thereto, the only persons upon the deck forward engaged in the navigation of the vessel were the master, the second mate, and the wheelsman, who was at his post at the wheel; that the second mate was engaged in heaving the lead up to about the time of the stranding or until the order “Hard a-starboard!” was given, under which the vessel was running when she struck. There was no person forward on duty as lookout. From about 3 o’clock a. m. to the time of the stranding, it had been snowing very hard, at times lighting up, and again coming in squalls so thickly that it-was impossible at times to see more than the -length of the steamer. The steamer struck about 6 o’clock a. m. while running at full speed under her hard a-starboard wheel, as stated, and when she had swung only about 3 points of the 13 which were necessary to take her clear of the land.</p> <p>At the conclusion of the testimony, on the motion of defendant’s counsel, the court directed a verdict for the defendant, on the ground that, under the evidence in the case, the stranding of the steamer and the damage consequent thereon were caused by perils excepted from the policy.</p>

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

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

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the District of Idaho. W. W. Woods, for axspellant.</p>

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

<p>Removal of Causes.</p> <p>In this case ¡.he petition, for removal to a federal court was not filed until after the time allowed by the state court for'filing pleas in abatement, and it was field that the circumstances did not show a waiver of the matter of time, and the case must be remanded.</p>

This was a suit brought by Alexandre De Beaumont, and continued after his death by his administratrix, against Warren Webster, for an accounting. The cause was heard on the pleadings and proofs, and at the same time a motion was made to strike out certain testimony of Warren Webster.

<p>1. Subrogation.</p> <p>A contract for the construction of a United States courthouse provided that the government might withhold any part of the sums to be paid the contractor, in case of the latter’s failure to promptly pay laborers and material men. A bank, from time to time, lent money to the contractor, with the expectation that it would be used in carrying out his contract, but without any obligation to that effect, and some of it was used by him for paying laborers and material men. Held1, that as the laborers and material men had no enforceable rights against the government, and the payment by the bank of the money used to pay their claims was purely voluntary, there was no room for the application of the principle of subrogation in the bank’s favor.</p> <p>2. Sam® — Beneficial Expenditures.</p> <p>Nor was the equitable principle allowing to a bona fide holder compensation for beneficial expenditures applicable in favor of the bank, since the money paid by it was not used in removing an incumbrance resting on a title, or in paying debts having behind them a quasi lien or a trust.</p> <p>8. Building Contract — Right to Withhold Funds.</p> <p>The government being given the right to withhold part of the fund only in case of the nonpayment of laborers or material men, the bank could not ask that this right be exercised in its favor, as tlio representative of claims of the laborers and material men which had been paid.</p> <p>4. Same.</p> <p>In such ease, since the laborers and material men had no right to the fund withheld by the government, which belonged wholly to the contractor, the bank could not acquire any rights in such fund as the representative of such laborers and material men.</p> <p>5. Payment.</p> <p>A note is not payment of an account, unless it be expressly accepted as payment, or produce payment.</p> <p>6. Same.</p> <p>Where one to whom a draft is given for payment of an account accepts it and sells it to another, without assuming any guaranty or personal liability, neither of them can make any claim under the original account.</p> <p>7. Counsel Fees — Payment Out of General Fund.</p> <p>Where a contract with the United States authorized the latter to withhold payment of part of the contract price in case of failure to promptly pay laborers or material men, no one but the contractor could bring procecdings for the distribution of a fund so withheld; and hence his counsel, bringing such proceedings, are entitled to compensation out of such . fund.</p>

<p>Bill by Newell Nightingale against Milwaukee Furniture Company and others. Bill dismissed.</p>

Suit by the Farmers’ Loan & Trust Company, a New York corporation, against the Northern Paciñc Railroad Company. On petition by Chaimcey W. Griggs and Addison G. Foster, interveners, asking that a certain judgment be paid by the receiver Andrew F. Burleigh out of current earnings.

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri</p> <p>■ This was a suit by the Reorganized Church of Jesus Christ of Latter-Day Saints against the Church of Christ at Independence, Mo., to assert iitle to certain lands in the city of Independence. A decree in the complainant’s favor rendered by the circuit court (60 Fed. 937) was reversed by the circuit court of appeals (70 Fed. 179). Complainant moved for a reargument. Denied.</p>

<p>Review on Error — Waiver of Jury — General Finding.</p> <p>Where a jury is waived, pursuant to Rev. St. §§ 649, 700, and the court makes a general finding, which alone is assigned as error, the only question for review is whether the evidence supports the finding. Whether it would have justified a different finding is immaterial.</p>

<p>1. Party as Witness — Pees.</p> <p>A party called and examined as a witness on his own behalf is not entitled to fees for travel and attendance.</p> <p>8. Costs — Copies of Testimony.</p> <p>The expense of copies of testimony taken de hene esse, obtained solely for the convenience of counsel, cannot be taxed as part of the costs, in the absence of an agreement to that effect.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action by William S. O’B. Robinson, receiver, against Gustavus D. Parker, executor and trustee. There was a judgment in favor of plain ¡iff, and defendant brings error.</p>

<p>In Error to the Circuit. Court of tlie United States for the District of Nebraska.</p> <p>Actions by Jennie S. Stevens and Jennie S. Stevens as next friend of Maud Stevens, — one against the Northwestern Mutual Life Insurance Company, and the other against the Bankers’ Life Association of ' Minnesota. Judgments were rendered in favor of plaintiffs in each</p> <p>case, and defendants bring error.</p>

<p>L False Imprisonment — Justification—Legal Writ.</p> <p>Imprisonment by virtue of a legal writ in due form, issued by a court' of competent jurisdiction, and served in a lawful manner, is not false imprisonment, though the writ was wrongfully issued.</p> <p>B. Contempt of Court — Disregard of Subpcena.</p> <p>One duly served with a subpoena, who neither appears nor takes means to bring to the court’s attention facts excusing him from attending, is guilty of contempt, and the disclosure of such facts after his attachment for contempt is not a bar to his punishment therefor.</p>

<p>Rehearing Denied.</p> <p>This was an action at law by Philo B. Pierson, as administrator with the will annexed of Mary B. Wood, against the Dubuque & Sioux City Railroad Company, upon a covenant of warranty. In the circuit court there was a verdict for plaintiff, and judgment accordingly. The defendant brought the case on error to this court, which, on October 1, 1895, rendered an opinion affirming the judgment. 70 Fed. 303. The defendant has applied for a rehearing.</p>

Action by Maria S. Erskine, executrix of the last will of Wilbur P. Erskine, against the Chino Valley Beet-Sugar Company, a corporation. On motion by defendant for peremptory instructions. Plaintiff, as executrix of the last will of her late husband, Wilbur E. Erskine, deceased, brought this action to recover of the defendant damages for the death of said Erskine.

<p>1. Chinaman — Rtght to Naturalization.</p> <p>A native of China of the Mongolian race is not entitled to be admitted to citizenship.</p> <p>2. Same.</p> <p>A certificate of the naturalization of a Chinaman is void on its face.</p> <p>8. Same — Effect of Passport.</p> <p>A passport issued by the department of state is not evidence that the person to whom it was issued was a citizen of the United States.</p>

<p>1„ Decision on Habeas Comma — Conclusiveness.</p> <p>A judgment oí a federal court discharging on habeas corpus a Chinese immigrant from detention on board the vessel and permitting her to land is conclusive as to her right to come into the country.</p> <p>3. Exclusion of Immigrant — Decision of Collector..</p> <p>The decision of a collector denying an alien admission into the country is final unless reversed on appeal to the secretary of the treasury.</p> <p>8. Habeas Corpus — Right to Writ.</p> <p>An immigrant held iu custody on board a vessel by the master under directions from the customs authorities is “in custody under or by color of the authority of the United States,” within the meaning of Rev. St. § 753, authorizing the issuance of a writ of habeas corpus in such a case.</p> <p>4. Baku — Chinese Immigrants.</p> <p>The jurisdiciion of the federal courts to issue the writ in such a case is not taken away by the Chinese restriction act.</p> <p>5. Judgment*-Collateral Attack.</p> <p>A judgment is not open to collateral attack because based on a fraudulent instrument or perjured testimony.</p>

<p>1. Chinese Exclusion Act.</p> <p>Under Act Oct. 1, 1888, a Chinaman who left the United States in 1893, being at the time a laborer, cannot return.</p> <p>2. Construction of Stipulation — Chínese Merchant.</p> <p>A stipulation in a proceeding for the deportation of a Chinaman, that “up to the 1st of August, 1893, the defendant was a merchant,” does not by implication admit that ho was a merchant after that date.</p>

<p>1. Record on Appeal — Instructions.</p> <p>The rule applied that a charge to the jury does not become part of the record unless incorporated in the bill of exceptions.</p> <p>2. Same — Presumpitons—Correctness op Charge.</p> <p>On a prosecution for resisting the service of process by a United States officer, where the only exception which the record shows to have been taken during the trial is one to an instruction that “the only wrong of the officer which would have justified” defendant’s action “would have been seizing him” without giving notice of his official character, “and that he was in discharge of the official duty in executing that warrant under the circumstances of this case,” and what constitutes these “circumstances,” does not appear, it will be presumed that the charge as a whole was correct.</p> <p>8. Resisting Oppicer — Execution op Process — Indictment.'</p> <p>An indictment under Rev. St. § 5398, for assaulting a United States officer while engaged in the execution of a warrant, need not allege that the warrant was given to the officer to be by him executed, or that it was in his hands at the time of the alleged assault, or that the officer had any orders, directions, or authority to execute the warrant.</p> <p>4. Same.</p> <p>Nor need the indictment set out the warrant or its purport.</p> <p>5. Same — Allegation op Knowledge.</p> <p>An indictment under Rev. St. § 5398, directed against one who “knowingly and willfully” assaults an officer engaged in executing any process or warrant, must allege the scienter as to all the elements involved in the offense.</p> <p>6. Same.</p> <p>But in an indictment for this class of offenses, in the usual form for the class, the words “knowingly and willfully,” iñ the first part thereof, apply to all which follow them, though the grammatical connection is not strictly made.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Appeal by H. Wolff & Co. from a decision affirming a decision of the board of general appraisers, which sustained the collector’s classification for duty of certain imported merchandise.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>On the application of Jeanne Magnon the circuit court, reversed a decision of the board of general ajipraisers which sustained the collector of the port of New York in his classification of 28 live snakes belonging to her as dutiable articles (66 Fed. 151), and the ■United States appeals.</p>

<p>Final hearing in equity, on hill filed to restrain alleged unfair competition in business.</p>

<p>' Appeal from the Circuit Court of the Únited States for the Southern District of New York.</p> <p>This was a suit by Anna A. Carrington against Silver & Co. for alleged infringement of letters patent No. 419,827, issued January 21, 1890, and No. 420,225, issued January 28, 1890, both to James H.’ Carrington, for improvements in gas stoves. The circuit court •held that neither patent was infringed by defendant, and dismissed the bill. See 64 Fed. 854, where a full statement of the facts will be found. Complainant appeals.</p>

This was a suit: in equity by Thomas W. Eeed and others against John P. Pomeroy and others for alleged infringement of a patent .

This was a suit, in equity hy the Columbia Wire Company against the Freeman Wire Company and others for alleged .infringement of a patent relating to barbed-wire machines.

This was a suit by the.Pairpoint Manufacturing Company against the Eldridge Company for injunction, and to recover the statutory penalty for infringement of a design patent

<p>1. Charter Party — What Constitutes.</p> <p>Sellers of a cargo of lumber chartered a vessel to take the lumber to Africa, where it was to be delivered, and had drawn up an instrument purporting to be a charter party between the shipowners and the purchaser of the lumber, which was signed by the respective agents of these parties, and which stated the rate of freight to be $16.50 per thousand feet. On the same day the sellers of the cargo signed a document stating that they had that day chartered the same vessel to B., who was the agent of its owners, and in this paper they agreed, “in consideration of E. making a charter party with” the purchaser’s agent “at $16.50 per thousand feet,” to pay said E. “the difference between amount of freight collected by vessel at Africa and $5,900, amount of charter,” and there was a further recital, “All other conditions to be according to C. P., dated” the same day, between the purchaser’s agent “and E., agent of vessel.” Both instruments were written on letter heads of E. Eeldt, that the latter instrument was a charter which, by reference to the other instrument, embodied and adopted all the terms and conditions contained therein, saving the matter of freight.</p> <p>2. Same — Unilateral Contract.</p> <p>Though the instrument was not signed in behalf of the ship or her owners, it having been delivered to and accepted by them, and the ship having entered on its performance, it was binding upon both parties.</p> <p>3. Same.</p> <p>A vessel may be chartered by parol.</p> <p>4. Demurrage.</p> <p>When, in the charter party, Sundays only are excepted from running days, the charterers are not exempt from demurrage for holidays and days on which laborers will not work.</p> <p>5. Same.</p> <p>When a cargo is to be delivered within reach of the ship’s tackles, the charterers are not exempted from demurrage by a breakdown of one of the lighters.</p>

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>Action by Laurette Estelle Horne, administratrix, against the George H. Hammond Company. There was a judgment rendered for defendant, and plaintiff brings error.</p>

<p>' This was a libel in rum by John Bradley and others against the • barkentine J. M. Griffith to recover seamen’s wages.</p>

This is an appeal from a decree of the circuit court of the United States for tiie Middle district of Tennessee, dismissing a hill in equity. Blaekmore, the appellant, is the receiver of the Commercial National Bank of Nashville, a corporation organized under the laws of the United States, which became insolvent, lie filed his bill in the court below against M. D. Woodward, administrator with the will annexed of J. T. Matthews, and Mrs. N. O. Matthews.

<p>1. Res Judicata — Exemption from Taxation.</p> <p>By Act Eeb. 11, 1852, the state of Tennessee established a scheme of internal improvements, and provided for the loan, of bonds of the state to railroad companies, to aid them in constructing their roads, reserving a lien to the state, as security, upon all the property of such companies. By-Act Feb. 25, 1856, the K. Ry. Co. was incorporated and the capital stock, dividends, and property of the company were exempted from taxation, with a proviso that, when the dividends should reach the legal rate of interest, taxes might be imposed, but not so as to reduce the dividends below the legal rate of interest. Bonds of the state were loaned to this' company under the act of 1852. The aided railroads having defaulted in their debt to the state, and an attempt to sell the roads by commissioners appointed directly by the legislature having failed, an act was passed, on December 21, 1870, which provided that a bill should be filed in the chancery court in behalf of the state against the railroad companies and all others interested, to foreclose the state’s lien, invested the court with full jurisdiction to hear and determine all questions of law and matters of controversy touching the rights and interests of the state and all others, and make all such orders and decrees as should be necessary to a final adjustment of the rights of all parties, and to define what should be the rights, duties, and liabilities oí a purchaser of the state's interest, and provided that, upon sale of the franchises of either of the railroad companies, all the rights, privileges, and immunities appertaining thereto should vest in the purchaser. A subsequent act, of January 20, 1871, provided a method for substituting' the purchaser of any road to all the rights, privileges, and immunities of the act of incorporation of such road, and for changing its name upon petition to a chancery court. Before the passage of these acts, a new constitution had been adopted, on March 20, 1870, providing that all property should be taxed. On January 20, 1871, a bill was filed, pursuant to Act Dec. 21, 1870, upon which, after duo proceedings, an interlocutory decree was entered, determining, among other things, that the roads should be sold, and that, upon a sale of any of the franchises of either of the railroad companies, all the rights, privileges, and immunities appertaining thereto, under the charter of the company or amendments thereof, should be transferred to and vested in the' purchaser. The K. Ry. Co. was entitled to no immunity except its exemption from taxation. Pursuant to such decree, the roads were sold and that of (he K. Ry. Co. was hid in for $950,000, which bid was accepted and reported, and the sale confirmed, and the state accepted and retained fho purchase money. The purchaser afterwards took the proper steps, under the act of January 20, 1871, to be invested with the rights, etc., of the charter of the K. Ry. Co., and to have its name changed to the K. & O. Ry. Co., and, after such steps had been duly taken, a decree was made in the state’s suit vesting in the K. & O. Ry. Co. the lights, privileges, and immunities of the K. Ry. Co. Subsequently, the taxing officials of the state proceeded to assess the property of the K. & (). Ry. Oo. for taxation, and that company filed a bill to enjoin them from such action. Held, that the questions of the application of the immunity from taxation to the franchises as well as the property of the K. Ry. Co., of the effect of the constitution of 1870 upon the exemption, and of the passing to the purchaser of the road of the K. Ry. Co., and the new company organized by him, of the rights, privileges, and immunities of the K. Ry. Co., including Hs exemption from taxation, having been properly submitted 1:o the state chancery court for its determination, and having been determined in favor of the purchaser, were res judicata as between it and the state, which had accepted the proceeds of the sale under the decree in that suit, and the state was estopped afterwards to claim a right to tax the company.</p> <p>2. Stack Dkojsis — Coktbovmksibs Ovkb Taxes.</p> <p>Though a judgment in a suit, involving taxes for a previous year cannot be used as an estoppel in a, controversy over the taxes of a subsequent year, the rule of stare decisis applies to a decision made upon a particular question raised in the earlier case and again arising in the later case.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>This was a suit by J. Walter Thompson against It. W. Kelson, E. It Anderson, C. C. Menzies, the E. L. Anderson Distilling Company, and others to cancel certain stock, and set aside a conveyance of real estate. A motion in the circuit court for a preliminary injunction was denied. Complainant appeals.</p>

<p>In Error to the United States Circuit Court of the Western District of Michigan.</p> <p>This was an action by Benjamin H. Throop against the city of Gladstone to recover the principal and interest on five bonds, each of which was of the form following:</p> <p>“United States of America, State of Michigan, Village of Gladstone.</p> <p>“No. $2,000.00.</p> <p>“One year after date, for value received, the village of Gladstone promises to pay to Exchange Bank, Gladstone, or bearer hereof, the sum of two thousand dollars, in lawful money of the United States, at the office of the village treasurer of the said village, with interest at the rate of seven per cent, irer annum, payable semiannually, as shown by and upon the annexed coupons, as they severally become due. This bond is one of a series of five bonds of like tenor and date, issued for the purpose of raising money for the payment of local improvements, voted by the legal qualified voters of the said village, at the annual election of the said village, duly called and held on the Gth day of March, A. D. 1888, and in conformity with Act 62 of the General Laws of 1875. The faith and credit of the village of Gladstone are hereby pledged for the punctual payment of the principal and interest of this bond. In testimony whereof, the undersigned officers of the village duly authorized to execute this obligation in its behalf have hereunto set their signatures this first day of November, A. D. 1S88.</p> <p>“(The Village of Gladstone. Incorporated 1887. Delta Co., Mich.)</p> <p>“Jas. J. Miller, Village President.</p> <p>“Attest: Robert W. Davies, 'Village Clerk.”</p> <p>Attached to each bond was a coupon for six months’ interest. The defendant, the city of Gladstone, which had succeeded to the obligations of the village of the same name, made the defense that the bonds were void because issued without statutory authority and without the necessary vote of the people. The, plaintiff had paid full value for the bonds before they fell due, without other notice of the circumstances of their issuance than what was contained in the recital of the bonds, and in the following certificate of the village clerk:</p> <p>“Office of the Village Clerk.</p> <p>“Gladstone, Mich., Nor. 1st, 1888,</p> <p>“Certified copy of proceedings of the village council as to their authority and the regularity of issuance of bonds to pay for local improvements:</p> <p>“ ‘Council Meeting, Feb. 13th, 1888.</p> <p>“ ‘On motion the petition for paving both Delta and Minnesota avenues, signed by property owners, was adopted, and it was resolved that the question of bonding the village for I he sum of ©15,000) fifteen thousand dollars for the purpose of raising funds for paving and curbing be submitted to a vote of the people as soon as may be, and in accordance with the laws of the state of Michigan. Said bonds to bear interest at the rate of seven (7 %) per cent per annum, payable semiannually, at the office of the village treasurer of Gladstone.’</p> <p>‘“Council Meeting, March 01 h, 188S.</p> <p>“ ‘Result of election as to paving Delta and Minnesota avenues and issuing bonds to the amount of ($15,000) fifteen thousand dollars was presented, and same ordered filed. Vote standing: “For bonds, .135; against bonds, 28.” ’</p> <p>“ ‘Council Meeting, March 19th, 1888.</p> <p>“ ‘Moved by Trustee Wilson that the expense of paving Delta avenue be assessed to the abutting property by the assessor at the time of the regular assessment, and that the same be spread upon the tax roll and collected at the same time and manner as the general tax. Carried. Call of ayes and nays.’</p> <p>f‘ ‘Council Meeting, Oct. 29th, 1888.</p> <p>“ ‘Moved by Trustee Allen that the pavement of Delta avenue he accepted from D. .T. Kennedy, contractor. Carried.’</p> <p>“ ‘Council Meeting, Oct. 30th, 1888.</p> <p>“ ‘On motion of Trustee Buchanan, the committee of five, of which the president is chairman, appointed to arrange for funds with which to pay D. J. Kennedy, contractor of Delta avenue pavement, is hereby authorized to issue ($10,000) ten thousand dollars of bonds, being five bonds of ($2,000) two thousand dollars each, payable in one year after November 1st, 1888, bearing interest at seven per cent, per annum, payable semiannually, same bonds to be signed by the village president, attested by the clerk, whose actions are hereby confirmed. Carried on call of ayes and nays.’</p> <p>“I hereby certify that the foregoing is a true and correct copy of the proceedings of the village council as appears from the records.</p> <p>“[Village Seal.] Robert W. Davies, Village Clerk.”</p> <p>The facts shown by the village records were as follows: The village of Gladstone was incorporated in November, 1887, under the general provisions of chapter 82 of Howell’s Annotated Statutes, which was enacted in 1857 and entitled “An act for the organization and incorporation of villages.” In February, 1888, a petition of property owners was filed with the council asking that Delta avenue be paved. The petition was accepted, and an ordinance for paying the street was passed. In March, council passed a resolution assessing the expense of paving Delta avenue to the abutting property holders, same to be spread on tax roll and collected at same time and manner as general tax. roll. Bids were advertised for, and the hid of Kennedy was accepted. The contract was made accordingly in May. In July the assessment roll was approved and placed in hands of marshal for collection. An additional assessment of two dollars was imposed on lots abutting on Delta avenue. The work was done and accepted on October 29th. On October 30th, ata meeting of council where all members but one were present, a committee was appointed to arrange to secure funds to pay contractor, and authority was given to issue (he five bonds of $2,000 each here in suit. The bonds were sold to one McKinney, who was cashier of Exchange Bank, and also treasurer of the board, with an agreement to pay him 5 per cent, commission, which never was in fact paid. The money for the bonds was paid: $4,000, November 23,1888; $2,000, January 1,1889; $2,000, February 1,1889; $2,000, February 28, 1889. There were collected from assessments: In December, about $10,000; in January, 1889, about $300; and in February, about $6,000. The total of assessments and proceeds from bonds amounted to $27,448.84. After paying the contractor what was due, there was left a balance of $6,069.-43. This sum was devoted by the city council to take up $6,500, face value, of village bonds issued to pay for paving the street intersections on Delta avenue. These were a different series of bonds from that here in suit, and the circumstances of their issue were as follows: In February, when' a petition from the property holders was filed in council praying for the improvement of Minnesota and Delta avenues, the committee to whom it was referred recommended that it be granted, subject to the action of the voters of the village in authorizing the issue of bonds to pay for the paving of the street intersections on both avenues. Accordingly the council granted the petition, and also resolved “that the question of bonding the village to the amount of fifteen thousand dollars for the purpose of raising funds for paving and curbing the street intersections in Delta and Minnesota avenues * * * be submitted to a vote of the village as soon as may be, and in accordance with the laws of Michigan. * * *” The council passed a resolution in favor of bonding the village for this purpose. The election was held on March 6, 1888, and resulted in a vote of 185 for the bonds and 28 against bonds. On June 4, 1888, the council passed the following resolution: “Whereas, it appears that the $15,000.00 of bonds authorized to be issued by this board by its resolution of February 13, 1888, is in excess of the amount allowed by the statute of this state: Therefore be it resolved, that instead of said amount there be issued bonds under the authority of the election held March 6, 1888, to the amount of $6,500 in lieu of the amount previously voted.” The theory upon which this correction was made was that the power of the village in such a case was limited to an issue of bonds to be paid by general taxation, not to exceed 2 per cent, of the total assessed valuation of the property in the village, which was $379,800. These bonds were issued, and the proceeds were used to pay the amount due from the village to the contractor for intersections on Delta avenue. When they fell due, as already stated, instead of paying them by levying a general tax, as provided by law, the council ordered the treasurer to take them up with the $6,069.43 surplus in the Delta avenue paving fund created by the issue of the $10,000 of bonds here in suit. The certificate of the village clerk exhibited to the plaintiff was, therefore, incorrect, in the statement that the issuance of the $10,000 of bonds here in suit was voted for by the people. The vote was only upon the question of issuing intersection bonds. The learned judge at the circuit, at the close of the evidence, directed the jury to return a verdict for the plaintiff, on the ground that the council had authority to issue the bonds without a vote of the people, and that, even if the statutory requirements had not all been fulfilled to render the bonds valid as such, the village, and its successor, the defendant city, were liable for money had and received to its benefit from plaintiff’s assignee.</p>

<p>1. Usury — Contract to Release Debt in Case of Death.</p> <p>One K., having applied to defendant for a loan of $2,000, entered into a contract with it which provided that K. should give 10 promissory notes for $360 each, payable in installments of $30 per month, to be secured by mortgage on real estate, and that in case of K.’s death before the full payment of the notes the remainder of the debt should be released by defendant, K. agreeing to pass a medical examination before the execution of the contract. The notes and mortgage were given according to the contract, K. receiving in cash $1,970, and installments amounting to $1,230 were paid. It appeared that defendant had an arrangement with a life insurance company for indemnity against loss by K.’s death, for which it paid much less than the amount which K. had agreed to pay in excess of the loan and legal interest. Held, that the contract was contrary to public policy and tainted with usury, and that K. was entitled to a cancellation of the notes and mortgage.</p> <p>2. Same — Tendering Back Proceeds — Minnesota Law.</p> <p>In Minnesota it is not necessary for the maker of a usurious contract to tender back the money received, as a condition of obtaining relief from such contract.</p>

This was a hill in equity by the Central Trust Company of New Y ork against the East Tennessee Land Company to foreclose a mortgage made by the blast Tennessee Land Company, August 28, 1891, to secure $1,000,000 of bonds, dated and issued October 1, 1890, part of which had been sold and negotiated prior to the execution of the mortgage. The form of the bonds was incorporated and made . part of t:he mortgage.

<p>Contracts — Conditional Sale oe Stock.</p> <p>. The M. Co., which held a contract for the construction of a public work, and M., its president, entered into an agreement with one C., by which it was provided that in consideration of $25,200, paid to the M. Co. by C., there should be assigned and issued to him 126 shares of the stock of the M. Co., then owned by M.; that C. should be elected a director and vice president of the M. Co., and should personally assist in managing its affairs; that C. should be entitled to 50 per cent, of the net profit derived from the construction contract, which was guarantied by the M. Co. and M. to amount to $25,000, not including the $25,200 “invested in the sto^k,” which should be returned to C. before any division of profits, and upon receipt of which C. should reconvey the block to M, It w’as then provided that, .as security for the guaranty of $25,000 profit, there should be delivered and assigned to C. 99 shares of stock of the M. Co. owned by M., to be held as collateral to the undertaking and security for the guaranty of profits; that the construction contract should be delivered, but not assigned, to C., to be held;, in connection- with the stock, for the guaranty and as security for any other sums C. might advance, with the intention of permitting C. to control the contract ih case of the failure of the other parties to carry out the contract with him. Finally’ it vas provided that, in the case of failure, of the M. Go. and M. to perform their agreement, the 99 shares of stock should become the propdrtj) of O. as liquidated damages, and that, upon lull performance of all- the stipulations, all the stock issued to 0. and held by him in his own’name or as collateral should be reassigned and returned to 3VI., and the construction contract returned to the M. Go., and the agreement he at an end, but that all the increment and betterment of the assets of the’ Mi Co. and all additions thereto, made after the date of the agreement, should be the joint and equal property of the parties. Held, that such contract effected a conditional sale to C. of ihe 126 shares of stock first mentioned, for the price of $25,200, to be resold by him, for the same price, at the termination of the agreement, and not a loan by C. of $25,-200, upon the security of the stock; and that, upon the insolvency of the M. Co., O. was not entitled to share in the distribution of its assets as a creditor.</p>

<p>Error to the Circuit Court of the United States for the Middle District of Tennessee.</p> <p>This was- an action by James W. Blaekmore, receiver of the Commercial National Bank of Nashville, Tenn., against the Guarantee Company of North America and William H. Scoggins, upon a bond of indemnity. The circuit court dismissed the suit Plaintiff brings error.</p>

<p>Action by Bobert H. Jenlts, Guy Gray, and others against Mark Iiichardson to recover money lost at gambling.</p>

<p>In Error to the Circuit Court of the United States for the District of Indiana.</p> <p>The defendant in error, Edward Hawkins, as receiver of the Indianapolis National Bank, brought suit against the plaintiff in error, the Citizens’ State Bank, alleging his appointment by the comptroller of the currency of the United States as receiver of the national bank; that the assets of the bank were insufficient to pay its indebtedness, and that on the 23th of October, .1893, the comptroller of the currency, in order to pay the liabilities of the insolvent banking association, made an assessment upon all of the shares of its capital stock of 100 per cent, upon the par value thereof, and ordered payment thereof on or before the 25th day of November, 1893; that the Citizens’ State Bank, at the time of tile suspension of the national bank, was, and since has been, the owner of 79 shares of its capital stock, of the par value of $100 each, and, notwithstanding uotice of the assessment and demand of payment, made default, and recovery is sought for the sum of $7,900, the amount of such assessment.</p> <p>The Citizens’ Bank appeared to the suit, and made answer, inter alia, as follows: “The defendant, a banking corporation organized and existing under the laws of the state' of Indiana as a state bank, answering, says: It is not liable herein, for that it did not become the owner or holder of .the shares of stock in the Indianapolis National Bank, described in the declaration, either as a pledge or upon execution or any compromise or settlement of a doubtful or bad debt, but, on the other hand, in the manner following, and not otherwise; that is to say: Theodore P. Haughey, being the president of the Indianapolis National Bank, and at the same time president of this defendant, purchased the said shares for this defendant, and as its president, on the 31st day of July, 1885, of William Wallace, receiver, who was then the owner and holder thereof; and he, the said Haughey, having so purchased the same, as the president of and for this defendant, did then and there, as the president of the Indianapolis National Bank, cause the said shares to be transferred to this defendant on the books of the Indianapolis National Bank, in whose name the same have ever since stood. And this defendant says it is not liable herein, for that, under the act of congress governing national banks, the said Haughey, as president of the Indianapolis National Bank, had no power or authority to transferí the same to this defendant, being an artificial person, to wit, a corporation of the state of Indiana. And this defendant had no power or capacity to receive the same, and to become or continue the holder or owner thereof, because by the laws of the state of Indiana authorizing the creation of state banks, and the manner of carrying on their business, this defendant was not authorized by law to become the holder or owner of shares in the Indianapolis National Bank, and so was prohibited from so doing. And defendant says that he, the said Theodore P. Haughey, from the date of said purchase until the failure of the Indianapolis National Bank, was at all times the president thereof, and so also of the defendant.” To this part of the answer a demurrer was interposed, which demurrer was sustained by the court. On the 13th of December, 1894, the Citizens’ Bank withdrew its general denial to the declaration, and declined to answer further, but elected to abide by the ruling of the court on the demurrer to the paragraph of the answer referred,to; whereupon the cause was submitted to the court, and a judgment rendered against the state bank for the amount claimed.</p> <p>The statute of Indiana (Rev. St. 1881, § 2687; Rev. St. 1894, § 2924) determining the powers of banking corporations provides that they “may exercise, under this act, all the powers incidental and proper, or which may be necessary and usual in carrying on the business of banking as a bank of discount and deposit; may receive deposits, buy and sell exchange, gold and silver coin and bullion; and may loan money, negotiate, sell and guaranty such loans, and promissory notes, bonds, drafts, bills of exchange, and other evidences of debt, and any security thereof; and may become and act as the trustee for' the same as fully as private persons may; but no such association shall issue notes, bills, or other evidences of indebtedness in the form or similitude of bank notes, and intended to circulate as bank notes or bills or as money. And such association may contract for, charge, take, reserve, and receive on loans and discounts for, charge, take, reserve'and receive on loans and discounts the highest rates of interest allowed by the law of this state to be contracted for, taken and received by individuals.”</p>

<p>Corporations — Ultra Vires — Lawful Act for Unlawful Purpo.se.</p> <p>The decision in Bank v. Hawkins, 71 Fed. 369, followed and applied to the case of an insurance company, authorized to hold stock of a national hank as an investment of surplus, but not of capital, which had invested a part of its capital in such stock.</p>

<p>1. Mutuality in Contracts.</p> <p>Alleged want of mutuality in an agreement guarantying the performance of the contract of another is no defense* .where the contract had become executed. . .</p> <p>2. Construction of Contract.</p> <p>Where the agent of a sewing-machine company contracted to purchase from the company “all parts and attachments,” held, .that by “parts” was meant portions or pieces of machinery such as may be used for-repairs; and by “attachments,” mechanisms belonging to the original machine.- ‘ -</p> <p>3. Liability of Guarantor — Alteration of Instrument.</p> <p>held that, under the evidence, the guarantor'was not released from his liability. ■ i</p>

■ Action by Rosa Elliott and others against the Texas & Pacific Railway Company. There was a judgment for plaintiffs, and defendant brings error.

<p>Citizenship — Child oe Chinese Parents.</p> <p>A person born within the limits of the United States, whose father and mother were both persons of Chinese descent, and subjects of the emperor of China, but, at the time of the birth, were both domiciled residents of the United States, is a eitizen of the United States, within the meaning of the fourteenth amendment to the constitution of the United States. In re Look Tin Sing, 21 Fed. 905, 10 Sawy. 353, and Gee Fook , Sing v. U. S., 1 C. O. A. 211, 49 Fed. 146, 7 U. S. App. 27, followed.</p>

<p>Customs Duties — Act Aug. 28, 1894 — Classification—Paintings on Plaques.</p> <p>Free-hand paintings on plaqnes, painted with jected to a process of firing, which sets and changes the colors, held to be dutiable at 35 per cent, ad valorem, as “plaques * * painted in any manner,” under paragraph 85 of the tariff act of August 28, 3894, and not free as “paintings, in oil or water colors, 9 » * not otherwise provided for in this act,” and “not made wholly or in part by * 9 9 mecli.-mical process,” under paragraph 575 of said act</p>

<p>■1. Customs Duties — Classification—Preparations of Coal Tar — Acids.</p> <p>Tie act of October 1, 1890, contains the following provisions: “All preparations of coal tar, not colors or dyes, not specially provided for in this act, 20 per cent, ad valorem.” Paragraph 19. “Acids used for medicinal, chemical or manufacturing purposes, not specially provided for in this act” Paragraph 473, free list. Held, that in respect to the elassification of sulphotoluic acid, which is both an acid and a preparation of coal tar, but not a color or dye, the presence, in both provisions, of the words “not specially provided for,” neutralized their effect in each, so that each might be read as if these words were omitted, and that the article would then fall within the specific designation “acids,” in the free list.</p> <p>2. Construction of Tariff Laws.</p> <p>In cases of doubt in the construction of tariff laws, the courts resolve the doubt in favor of the importer. Hartranft v. Wiegmann, 7 Sup. Ct. 1240, 121 U. S. C09, and Twine Co. v. Worthington, 12 Sup. Ot 55, 141 U. S. 468, followed.</p>

<p>1> Patents — Two Patents foe Same Invention — Identity of Claims.</p> <p>• In determining whether two patents to the same person cover the same invention, so as to render the later one void,' the test of identity is whether the claims of both, when properly construed in the light of the descriptions, define essentially the same thing.</p> <p>■2. Same.</p> <p>A machine or structure may embody several different inventions; and, while two or more inventions residing in the same combination or strueture may be covered by different claims in the same patent, they may, at the option of the patentee, be secured by different patents. And it is immaterial that both inventions originate at the same time, and from a single conception.</p> <p>3. Same — Minor Improvements.</p> <p>The granting of patents for distinct and specific structural improvements pending an application for the broad invention will not invalidate á patent subsequently granted for the latter, although the elements covered by its claims were described and illustrated, but not claimed, in the earlier patents. 69 Fed. 257, affirmed.</p> <p>4 Same — Electric Railway Trolley Switches.</p> <p>The Van Depoele patent, No. 424,695, for improvements in suspended switches and traveling contacts for 'electric railways, considered, and held, that claim 2, which is for an overhead conductor arranged to receive a traveling underneath contact, in combination with a switching device secured to and depending from the conductor, is void for want of patentable novelty; that claims 3, 11, and 19, which relate especially to a switching plate attached to the wire, disclose patentable invention, and are infringed by defendant’s combination; that claims 9 and 10, which relate specifically to the conductor switch, are void for want of patentable novelty; that claims 4, 20, 23, 25, 26, and 27, which relate .to the arrangement of the track switch in such relation to the conductor switch and the trolley that the movement of the forward part of the car onto the branch track will deflect the trolley wheel, so as to guide it naturally into the proper compartment, show patentable novelty, and are infringed by defendant; that claims 32 and 33, which relate to the centralizing spying controlling the lateral movement of the trolley arm, show patentable in- . vention, and are infringed; and that claims 15, 16, and 17, relating to the ■combination of a pivoted trolley arm and its weight and spring mechanism, are not infringed by defendant’s devices. 69 Fed. 257, reversed.</p>

This was a suit in equity by William Eoemer against T. B. Peddié & Co. for alleged infringement of a patent for an improvement in bag or satchel handles.

This was a suit in equity by the Allington & Curtis Manufacturing Company and others against Arthur C. Lynch and George W. Christoph for alleged infringement of certain patents for improvements in dust collectors.

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>This was a bill in equity by the S. F. Heath Cycle Company against Thomas Hay and V. B. Willcts for alleged infringement of a patent for a device for inflating pneumatic tires. In the circuit court the patent was sustained, infringement declared, and a decree entered for complainants accordingly. 67 Fed. 246. The defendants appeal.</p> <p>This is a suit for damages and to enjoin infringement of letters patent of the United States No. 509,224, for an “inflating device for pneumatic tires,” issued October 24, 1898, to Hastings H. Johnson, assignor of the appellee. The respondents {the appellants here) answered, denying invention and infringement, and setting up as anticipations the devices and inventions shown in letters No. 144, issued to Dexter Pierce, March 11, 1837; No". 2,537, to Thomas W. Harvey, April 6, 1842; No. 9,469, to A. O. and O. N. Clow, December 14, 1852; No. 20,298, to N. M. Phillips, May 18, 1858; No. 35,798, to Adoniram J, White, July 1, 1862; No. 46,295, to Anthony Clark, February 7, 1865; No. 80,770, to J. W. Russell, August 4, 1868; No. 143,907, to James P. Hyde, October 21, 1873; No. 183,408, to J. McGeorge, October 17, 1876; No. 193,721, to S. G. North and A. M. Norton, July 21, 1877; No. 210,716, to John Simpson, December 10, 1878; No. 318,091, to A. E. Dart, May 19, 1885; No. 396,-625, to O. Thum, January 22, 1889; No. 411,708, to William B. Bradshaw, September 24, 1889; No. 413,392, to George J. Engert, October 22, 1889; and British patent No. 18,147, dated August 10, 1891, to William Hillman.</p> <p>The following are the claims of the patent, which, with annexed drawings, corresponding to figures 2, 3, and 4, will be readily understood without the aid of quotations from the specifications: “(1) The combination, with an air-pump hose within the end of which the pneumatic tire nipple may be inserted,' of means for compressing said hose about said nipple to form an air-tight joint between the tube, said means consisting inva loop, a follower, and a device for forcing in said follower, substantially as and for the purpose specified. (2) The combination with an air-pump hose wherein a pneumatic tire nipple may be inserted, of a loop surrounding said hose, a follower or gib adapted to operate within said loop, and a thumb screw arranged in the end of said loop pressing on the end of said gib, whereby said hose may be tightened on said nipple, substantially as and for the purpose specified.”</p> <p> </p>

<p>1. Patentable Invention—Changing Old Device.</p> <p>There is no patentable invention in the conception and making of a folding screen of three panels out of two panels of the old style, joined by means of crosspieces pivoted in any of the known modes, even where this results in dispensing with two of the six standards before employed, and producing a screen callable at once of standing by its own strength, and of adjusting itself to irregularities of surface.</p> <p>2. Same—Removal of Surplus Material.</p> <p>Under ordinary circumstances the removal of surplus material, or needless parts of a physical structure, without changing the relation, connection, or operation of the essential elements, cannot involve invention.</p> <p>8. Same — Folding Scbeens.</p> <p>The Campbell patent, No. 447,461, for an improvement in folding screens, is void for want of invention.</p>

<p>Patents — Validity and Infringement — Box Machines.</p> <p>The Beach reissue, No. 11,107 (original No. 447,225), for impro vementsin machines for attaching stays to the corners of boxes, held valid and infringed both as to claims 1, 2, and 3, which cover broadly every device for affixing stay strips to the outside of box corners by the combined action of a feeding mechanism, a cutting mechanism, and a pasting mechanism, in combination with any opposing clamping dies whose faces diverge, and also as to claims 4, 5, and 7, which have the same combinations, with the added element of a turning-in feature, and contemplate the affixing of the stay strip to both the outside and the inside of the box corner. 63 Fed. 597, affirmed.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Wisconsin.</p> <p>This was a libel by J. Henry Norton and others against the schooner Richard Winslow’ to recover damages to a cargo of corn. The circuit court dismissed the libel with costs (67 Fed. 259), and the libelants appeal.</p> <p>On tlie Kith day of November, 1893, Henry Norton and Edward S. Worthington, the libelants, shipped on board the schooner Richard Winslow, then lying at the port of Chicago, a cargo of white com amounting to 59,779-iz/aa bushels, to be carried by the schooner from the port of Chicago to the port of Buffalo. The property was shipped under a hill of lading in the usual form, except as hereinafter stated. By the terms of the hill of lading the property was to be delivered at the port of Buffalo to the ‘‘order of Norton and Worthington, care of Tilomas O’Brien, Buffalo, for shipment to care of ——New York.” The bill of lading contained the following provisions: “Bake freight to Buffalo, three (3) cents per bushel. Including free storage in vessel in Buffalo harbor until April Bst, 1894, to be unloaded at shipper’s option on or before April 1st, 1894.” The vessel proceeded on her voyage, and arrived safely at the port of Buffalo on the 22d of November, 1893, when her hatches were opened, the cargo examined, and found to ho in like order and condition as at the time of shipment. The hatches were then put on, and covered witii tarred paper and canvas covers. The schooner was then moored at a place designated by the shippers or their agent in the harbor of Buffalo. The vessel was stripped for the winter, the crew discharged, and the vessel remained in the care of a shipkeeper. In February, 1894, while the schooner was so lying in the harbor of Buffalo with tlie cargo stowed in her holds, heavy gales from the northeast prevailed, suddenly lowering the water in the harbor from thine to four feet, causing the schooner to take the bottom, and straining the butts of her deck, hatch combings, and mast apartment. In consequence of such straining, some 820 bushels of the cargo were damaged and rendered in had condition, and the remainder to some extent injured by reason of the discolored and damaged portion of the corn mixing with tlie sound portion. The libel was filed to recover for such damage, it being claimed to have been caused by the negligence of the vessel and her owners. At the hearing below, the libel was dismissed upon throe grounds: First, that the contract was not within the cognizance of the admiralty; second, that the liability of the owners at the time of tlie injury was that of warehouseman, and that there was no neglect or warn, of ordinary care; third, that there was no liability under the “Harter Act” (27 St. 445, c. 105, § 3).</p>

<p>Dismissal of Appeal in Admiralty.</p> <p>Tliis was a libel by It. It. Freeman against H. E. Wellman and others to recover demurrage alleged to be due for delay of the steamer Annie E. Iiranz in discharging’ a cargo of lumber. The district court entered a decree for libelant in the sum of 8540, with interest from the date of the libel. 07 Fed. 796. The respondents appealed.</p>

<p>Salvage Compensation.</p> <p>Ten thousand dollars awarded to a tug which, on receipt of telegraphic intelligence, promptly proceeded from New York, a distance of 80 miles, to the assistance of a steamer grounded on the coast of Long Island, in a position of some danger, with a cargo largely perishable, and succeeded after three hours’ labor, by putting her engines to their utmost capacity, in pulling her off uninjured, being aided by the vessel’s own engines and sails; the tug being worth upward of $50,000, and the steamer, cargo, and freight from $95,000 to $100,000, and it appearing that another wrecking outfit was on the way to the ship’s relief, and would have gotten her off on the next day.</p>

<p>Appeal from the Circuit Court of the United Stales for the District of Maine. This was a bill in equity by Walter T. Bowers, administrator of the estate of Roscoe L. Bowers, and Sarab C. Bowers, against tbe New York Life Insurance Company, to reform a policy of insurance. The bill was dismissed (6.8 Fed. 785), and complainants appeal.</p>

<p>Error to Supreme Court óf New Mexico.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts.</p> <p>This was a libel by James G. Tarr and others against the Helen Story (Arthur D. Story, claimant). From a decree of distribution, the claimant appeals.</p>

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

<p>Error to Circuit Court of the United States for the Western District of Virginia.</p>

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

<p>Appeal and cross appeal from Circuit Court of the United States for the District of South Carolina.</p>

Tbit was a bill in equity by Laurie M. Moves against the Stirling Company ior injunction and damages. The bill was filed in the state court of Pennsylvania, and was removed by defendant to this eonrt.

<p>Terms of Court — Change — Term Held at Wrong Date — Act Cong. June 9, 1890.</p> <p>Under the statutes m force on September 14,1889, one term of the United States district court for the district of Kansas was appointed to be held at W., in that state, on the first Monday of September in each year. Un September 14, 1889, defendant became surety on a recognizance in the district court at W. for the appearance of one G. at the next term of the court, to be held at W. on the first Monday of September, 1890. By an act of congress of June 9, 1890 (26 Stat. c. 403), the district of Kansas was divided, and the terms of the courts at W. were appointed to be held on the first Monday of March and the second Monday of September. The district court convened at W. on the first Monday of September, 1890, and, before the second Monday, G. having failed to appear, his recognizance, on which defendant was surety, was declared forfeited, and ordered to be prosecuted. Held, that the act of June 9, 1890, repealed the former provisions regarding the terms of court at W., and, accordingly, that the session of the district court, held there on the first Monday of September, 1890, was without authority of law, and its proceedings, including the forfeiture of G.’s recognizance, were inoperative and void.</p>

<p>PAcnrro Railways — Interest or Government — Intervention jn Suit.</p> <p>Act May 7, 1878 (Thurman Act), gave to the United States government such a substantial interest in the revenues of the Union and Gentry 1 Pacific Railroad Compare!as to authorize intervention by the government in a proceeding involving the validity of an order made by state railroad commissioners reducing the rates chargeable by one of such companies.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>The hiil in this case was brought by Caroline M. Forsyth, a citizen of Illinois, against the city of Hammond, Xnd., and William Kleihege, treasurer of that city, to enjoin the collection of taxes levied upon lands of the complainant for the use of the city, and, after hearing and denial of a motion for an Injunction pendente lite, was dismissed for want of equity. Forsyth v. City of Hammond, 68 Fed. 774.</p> <p>The substance of the bill is: That the complainant is the owner of lands described, in Lake county, Ind., to the number proximately of 650 acres; that by cor lain proceedings commenced before the hoard of commissioners of that county in June, 1893, and carried by appeal to the Lake circuit court, and thence, by change of venue, to the Porter circuit court, the city of Hammond pretended to have annexed, and now claims jurisdiction over, and the right to assess for taxation, and for the year 1894 has levied taxes on the lands and personal property thereon to the amount of 83,500, which the treasurer is proceeding and threatening to collect; that the land is used solely for pasturage and other agricultural purposes, has a rental value not exceeding one dollar per acre, has no market value, but only a prospective and speculative value, dependent upon the location, yet unsecured, of manufacturing establishments there, whose market and offices are in Chicago, and is in no degree helped by the neighborhood of Hammond, and, by taxation there, will be rendered unsalable and of little value; that no part of the land has been platted with a view to sale, and no such step is contemplated; that there are but 21 dwelling houses on the land, 10 of them being in a row together near Whiting, a town of rapid growth, containing 2,500 or 3,000 inhabitants, at which the tenants of the 10 houses do business or work; that the other houses on the land are in' wide apart clusters of 2 or 3; that the houses on the land are 4% miles distant from any police station, fire engine house, or gas lamp of Hammond, so that, in the nature of things, the complainant cannot receive any benefit from the government of that city; that the lands were valued for taxation by the city of Hammond at the rate of $250 to $500 per acre, making the taxes about $5 per acre, which is excessive, oppressive, and extortionate; that, at the time of the attempted annexation, Hammond contained, and still contains, not more than 7,000 inhabitants, and had territory about three miles long north and south, and two miles wide, extending on the west to the state line, adjoining which line is the most populous portion of the city, beginning about one-fourth of the way from the north line, and extending to the southern boundary, the northern frontier of the city consisting of about two square miles of land, no part of which has been laid oft into lots or blocks, and upon which there were but seven houses and one road when the attempt was made to annex complainant’s lands, which lie beyond and northward of the two square miles mentioned; that the part of Hammond laid off in lots is much larger than is now or is likely to be required for city purposes for many years to come; that (upon information) the city has a bonded debt of $100,000, and a floating debt of $60,000, and taxable property in th.e city proper of little more than $400,000; that the territory attempted to be annexed contains about five square miles of practically vacant lands, extending from the northern limit of Hammond to the shore of Lake Michigan; that immediately on the north, and overlapping the limit of the city, are two lakes (Wolf Lake and Lake George), shallow and of marshy shores, between which is a narrow neck of low swampy land about a mile long, over which, by a low and muddy road, is the only direct route from Hammond to the property of value sought to be annexed, the most populous and most valuable portion of which lies in the northern part of the tract, near the trunk lines of railroad along the shore of Lake Michigan, and near Chicago, and from four to five miles distant from the business portion of Hammond; that, before the attempted annexation, 20 acres in the northeast corner of the land had been laid out in town lots, and platted by Agnes Roberts with reference to the adjoining town of Whiting, and without reference to Hammond, which is between four and five miles away, and two tracts, aggregating 35 acres, in the northwest part, had' been laid off and platted by Edward Roby and Edward A. Shedd, with reference to South Chicago, and denominated Roby & Shedd’s Addition to Chicago in Indiana; that, except the parts so platted, the lands sought to be annexed consist in part of sand ridges and sloughs, and are used for pasturage and agricultural purposes solely, being sparsely and thinly inhabited, the dwelling houses and buildings thereon, except the small portion in the northeast corner, being widely separated from one another; that the inhabitants have no need of municipal government, and, from the nature of the situation, can possibly derive no Denefit from being included within the corporate boundaries, and burdened with the taxation of Hammond; that the lands have not been enhanced in value by reason of proximity to Hammond, and would be greatly impaired in value if brought within its limits, the sale thereof being greatly hindered, if not made impossible, by reason of the heavy and excessive taxes imposed; that this attempted extraordinary and unreasonable enlargement of the boundaries of the city was. not needed for roads, streets, alleys, or for any legitimate purpose, but was an abuse and violation of the franchise of the city, and a contemplated fraud upon the law of the state granting to cities the right to make reasonable annexations; that this attempt was dictated above all by covetousness and greed and a corrupt desire on the part of the authorities of the city to "subject the lands of complainant and others in the new territory to the burdens of taxation for the sole benefit of the city, to raise means to pay off its heavy indebtedness, relieving the inhabitants of the city proper, without rendering any service or benefit to the new subjects of taxation; that the debt of the city was and is about 4 per cent, of the valuation of its taxable property, or twice the amount limited by the constitution of the-state, and tlie purpose was by annexing new territory at an exaggerated valuation to lift tlie city out of its constitutional dilemma, without regard to the question of benefits or advantages to the property annexed; that the city is not only thus attempting to levy and collect taxes on said lands for municipal purposes, hut is about to commingle the moneys so collected with other funds of tlie city, and to use the same in payment of its debts in excess of the constitutional limit and in the payment of ordinary municipal expenses, but no part oí the city’s funds has been or is to be expended for the benefit of complainant’s property, which is completely without lights, water, police, and fire protection, as before the pretended annexation ivas had.</p> <p>If, is further averred that, in the proceedings recited, the board of commissioners of Lake county refused to order the annexation prayed for, whereupon the city of Hammond undertook to appeal to tlie Lake circuit court, whence there was a pretended change of venue to the Porter circuit court, which, upon tlie verdict of a jury, gave judgment in favor of the annexa.tion; that the appeal and the change of venue were, as tlie complainant is advised, without authority, and the proceedings thereon void, for that the annexation of territory to a city is a matter of legislative, and not of judicial, cognizance, which it is not competent for tlie legislature to commit to the- determination of courts and juries; that, when the proceedings for annexation were begun, a strip of land lying between the territory to he added and the northern boundary of Hammond, about a quarter of a mile wide, and extending from the western boundary of the city of East Chicago westward to the state line, had been, with the consent of the owners thereof, annexed to, and was then wholly under the jurisdiction, control, and government of, the last-mentioned city, thus separating and cutting off all contiguity of the boundaries of Hammond and the territory proposed to he annexed. I'rayor, among other tilings, that the annexation be declared void, and that the city of Hammond be enjoined from collecting taxis or otherwise asserting jurisdiction over the complainant’s lands.</p> <p>Tlie proceedings for annexation were had under the following provisions of the act of March 14, 1807, touching the incorporation and powers of cities, the numbers given of the sections referring to Burns’ Revised Statutes of Indiana of 180-4, and to the Revision of 1881, respectively: Section 3059 (3190): * If any city shall desire to annex contiguous territory not laid off in lots, and to the annexation of which the owner will not consent, the common council shall present to the board of county commissioners a petition setting forth the reasons for such annexation, and at the same time present, to such board an accurate description by metes and bounds, accompanied with a plat of the lands or territory proposed or desired to be annexed to such city. Tlie common council shall give thirty days’ notice, by publication in some newspaper of tlie city of the intended petition, describing in such notice vhe territory sought to be annexed.” Section 3000 (3197): “The board of comity commissioners, upon the reception of such petition, shall consider tlie same, and shall hoar the testimony offered for or against such annexation, and if after inspection of the map and of the proceedings had in the ease such boaid is of the opinion that the prayer of tlie petition should be granted, it shall cause an entry to lie made in Hie order hook specifying the territory annexed, with the boundaries of the same, according to the survey, and they shall cause an attested copy of the entry to be filed with tlie recorder of such county, whch shall lie duly recorded in his office, and which shall be conclusive evidence of such annexation in ail courts of this state.”</p> <p>A rigid of appeal in sucli proceedings was given by the act of May 31, 1879, from which we quote the portions pertinent here: Section 4224 (3243): “in proceedings before the board of cotmfy commissioners for the annexation of territory to cities and towns against the will of the owner, the petitioner and tlie owner of any portion of tlie territory proposed to be annexed, may appeal to the circuit court by filing within thirty days with the auditor, a bond,” etc. Section 422(5 (3245): “’s * * The appeal shall he tried and determined as an original cause.” Section 4227 (3246): “* * * The court may make a final determination of the proceeding and compel its execution or may send its decision to the board with directions h.ow to proceed, and require compliance.”</p> <p>The constitution of Indiana contains the following provisions: Article 3: “The powers of the government are divided into three separate departments; the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution expressly provided.” Article 4, § 23: “In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state.” Article 11, § 13: “Corporations, other than banking, shall not be created by special act, but may be formed under general laws.” This provision has been held to apply to municipal corporations. Wiley v. Bluff-ton, 111 Ind. 155, 12 N. E. 165. Schedule, cl.' 4: “All acts of incorporation for municipal purposes shall continue in force under this constitution until such time as the general assembly shall, in its discretion, modify or repeal the same.”</p>

<p>1. Judgments — Coij.aterag Attack — Determination by Board op Assessment.</p> <p>The property of the K. & I. Bridge Co., which owned a bridge over the Ohio rivor from the Kentucky to tho Indiana shore, having been placed in tho hands of receivers, tho treasurer of 1<\ county, Ind., in which county the terminus of the bridge lay, intervened in the sub in which the receivers were appointed, alleging that the state board of equalization had .assessed the property of the bridge company for taxation at $200,000, and asking that the receivers be ordered lo pay the taxes levied' upon such assessment. The receivers answered, alleging their willingness to pay the tax upon a proper assessment, but averring that the board of equalization had been led, through misrepresentation, to believe that the property of the bridge company in Indiana included all its property extending to a point in the river near the Kentucky shore, whereas the boundary of the state and the bridge company’s property therein extended only to low-water mark on tile northern shore, and that, by mistake and error, said board had determined, against the statements of protest of the bridge company, that its property extended to the further limit, and had accordingly assessed its property in Indiana at $200,000, when the same was not in fact worth more than $45,000. These averments of the answer were siricken out, on motion of the intervener, and the taxes were ordered to be paid. Held, that as the board of equalization, in determining what property was to be assessed, and in fixing the amount of the assessment, acted judicially, and had jurisdiction to determine such questions, its judgment could not bo questioned collaterally, and the order should be affirmed. ''</p> <p>)% Constitutional Law — Due Process op Law. •</p> <p>Veld, further, that the opportunity afforded to the bridge company to be beard before the board of equalization, of which it appeared that it had availed itself, was sufficient to satisfy the constitutional requirement of-due process of law.</p> <p>Showalter, Circuit Judge, dissenting.</p>

<p>1. Receivers — Interference with Possession.</p> <p>A court of equity may enter a rule requiring one to show cause why he should not surrender to a receiver appointed by it certain real estate, and may on the hearing determine and enforce the rights of the receiver against the party accused of interference with his possession or management, unless the answer should set up some right or title of which a trial by jury is claimed.</p> <p>2. Estoppel by Record — Admissions in Pleading.</p> <p>Any confession or admission made in pleading in a court of record, whether express, or implied from pleading over without a traverse, will preclude the party from afterwards contesting the same fact in any subsequent suit with his adversary, though there is no adjudication upon the point.</p> <p>3. Estoppel by Pleadings — Inconsistent Positions.</p> <p>Where one, in a pleading, bases his right to possession of land on the ground that a lease to him has not yet expired, and his adversary accepts this as an assurance that his possession will not become hostile to the latter’s title, and that it cannot, except upon an open change of his attitude, become adverse, he cannot thereafter claim title by adverse possession.</p> <p>4 Estoppel — Ignorance op Facts.</p> <p>Ignorance or mistake, if it arises from culpable negligence, will not prevent an estoppel.</p> <p>5. Weight of Evidence — Withdkawal of Question fbom Juky.</p> <p>Wlien the truth of the matter is so manifest upon the entire evidence that it will be the plain duty of the court to set aside any verdict to the contrary, it is proper, by a peremptory instruction, to withdraw the question from the jury.</p> <p>6. Declarations as to Title — Estoppel.</p> <p>Where one’s possession of a tract is of the whole, as a single body of land, so that an unqualified declaration or claim by him in respect to his possession or ownership of a part by necessary implication includes the whole, an estoppel in pais arising out of such declaration extends to the whole of the tract, in the absence of facts in evidence limiting its scope.</p>

<p>This was an action by William T. Preston, as administrator of che estate of Arthur U. Preston, deceased, against the Mutual Life insurance Company of ’Now York, upon a policy of insurance dated June 1, 1892, to recover the sum of $5,000. The defendant relied upon an agreement and warranty upon the part of the insured, Arthur TJ. Preston, that he would not die by his own act, whether sane or insane, within a period of two years from the date of the policy, and alleged that in violation of said agreement and warranty he died by his own act, by committing suicide within the time specified, namely, by drowning, on the 24th of September, 1893. Upon the body of the insured was found a paper reading as follows, which was put in evidence by defendant: “Goodbye Mother, Minnie. Lizzie & Will, T could not be a burden — God have mercy on my soul. Arthur.” The jury returned a verdict for the plaintiff in the sum of $5,260, and defendant has now moved for a new trial.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>Action by H. Brace, S. H. Davis, and others against W. R. Sutherland. There was a judgment for plaintiffs, and defendant brings error.</p> <p>This was an action of- replevin brought by the defendants in error to recover possession of some 90 piles of pine lumber of the value of $33,000. In April, 1$94, a written contract was executed between the parties, by which the defendants in error sold and transferred to the plaintiff in error some 10,000,000 feet of logs. The contract contains the following provision: “The said logs are to be placed in towing booms at the mouth of Iron river and Flag river in Bayfield Co., Wis., — said boom's to be furnished by' the party of the second part (plaintiff in error), as fast as needed by the parties of the first part (defendants in error), and as wind and weather will permit; the said parties of the first part agreeing to furnish said logs with all due diligence and dispatch as needed by the party of the second part. From the time of the said delivery of said logs at the towing booms, the logs and lumber manufactured therefrom shall be at the risk of the party of the second part, and he shall pay in full for any logs or lumber that there may be thereafter lost or destroyed. The party of the second part shall begin’ the removal of said logs from the place of delivery promptly upon the opening of navigation in the spring of 1894, and continue the same as fast as logs are ready for delivery to his points of manufacture, and said logs shall all be converted into lumber on or before the 1st day of October, 1894. The said parties of the first part shall have a lien upon said logs, and the lumber manufactured therefrom, for any and all amounts due or unpaid upon this contract by the said party of the second part, and the lumber manufactured from said logs shal,l be kept in separate piles by the said' party of the second part and marked ‘H. B.,’ and said lumber shall not be shipped any faster than the same is paid for, but a sufficient quantity of said lumber shall be retained on the dock and in the yard of the party of the second part, and not shipped, sufficient to fully secure any amount which may be due to said parties of .the first part. In case of the failure of the said party of the second part to carry out his part of this contract, the said parties of the first part are hereby authorized to take possession of said lumber, sell the same, pay themselves out of the proceeds of such sale the amount which may be due them under this contract, and pay the balance over to said party of the second part.”</p> <p>Claiming a large sum to be due under the contract, the defendants in error, on the 1st of November, 1894, demanded possession of the lumber manufactured from such logs, then in possession of the plaintiff in error and described in the complaint, which demand was refused, and, according to the allegations of the complaint, the plaintiff in error “has ever since unlawfully and wrongfully detained, and still detains, the same from the plaintiff at the place aforesaid, to the damage of the plaintiff in the sum of $33,000.” The property described was taken under a writ of replevin, and subsequently returned to the plaintiff in error upon the execution and delivery of an undertaking therefor, as provided by the statute of Wisconsin. The answer alleged, substantially, a failure and neglect to furnish the logs described with due diligence and dispatch, and resulting damages to the amount of $10,000. At the trial it was disclosed that the defendants in error ran down to the rafting grounds, at the mouth of Flag and Iron rivers, something over 9,000,000 feet of logs; that about 8.000,000 feet of the logs were towed to the mills of the plaintiff in error at Ashland, and there manufactured into lumber; that after deducting the amount paid, there was, at the commencement of this action, a balance due the defendants in error for the 8,000,000 feet of logs, — some $11,000. It further appeared that some 1,300,000 feet of these logs were lost at the mouth of the Flag river by reason of storms, and that their value was some $11,000. The logs were driven down the Flag and Iron rivers to Lake Superior, there made up into rafts by being placed in towing booms, and then towed by rugs to Ashland, a distance of some 70 miles. The towing boom consisted of a string of long logs or timbers connected by short chains, within which the logs are placed. The manner of filling the boom is this: The boom is placed at the end of the piers extending out into the lake at each side of the mouth of the river, ono part of the boom being opened and the ends fastened to either side of the inside of the piers from 200 to 300 feet from the outer end. That part of the boom outside the piers is held in position either by the tug or by anchor. The logs contained in the dam above, some 800 feet from the mouth of the river, are then discharged through a sluice-way and driven into the boom. When the boom is filled the ends are fastened, and the raft is In condition for towing. The loss of logs in question occurred through the intervention of storms arising while the ends of the boom were open, and the contention at the trial was whether it was the duly of the defendants in error, under the contract, to have closed the boom, or whether their duty was performed when, the logs had been driven into the boom; it being claimed upon the one part that a complete delivery was made when the logs were driven into the towing boom, and that, under the contract, the risk then shifted to the plaintiff in error. Upon tne other part it was contended that there was no completed delivery until the ends of the towing booms next to the shore had been fastened together, so as to make a completed raft. It was undertaken at the trial to show that the latter construction of the contract was warranted by a certain local custom and by the acts of the party. At the close of the evidence the plaintiff in error moved the court to direct a verdict in his favor “for the reason that the action of replevin would not lie, and that the only remedy to enforce the plaintiff’s lien, under the contract upon which the plaintiff brought this action, is in equity,” which motion was overruled, and to which ruling the plaintiff in error duly excepted. The jury found by their verdict that the plaintiffs (defendants in error) had, at the commencement of the action, a special property in the property described, by virtue of a lien thereon, and were lawfully entitled to the possession of the property by virtue of their special property therein; that the property described was wrongfully detained by the defendant (plaintiff in error); that the value of the property was $30,000, and the value of the special property of the plaintiffs therein was $21,705.08, and that they had sustained damage by reason of the detention of the property in the sum of $300.24. Whereupon judgment was rendered, pursuant to the statute, for the damages and costs, amounting in all to $23,081.67; to review which judgment this writ of error is sued out.</p>

<p>.hi Emu- to the Circuit Court of the United States, for the East-3i‘ji District of Wisconsin.</p> <p>The plaintiff in error, assignee of James Morrison, brought suit upon a policy of tire insurance issued by the defendant in error on the (ith day of May, 1889, insuring against loss or damage by tire, to the amount of $1,100, a certain dwelling house, granary, “farm products while contained in said granary or barn,” and other property, all situated in Ransom county, in the t’.usi territory of Dakota. The policy provided “$5,000 other insurance concurrent herewith permitted,” and contained the following provision: “The Insured, under this policy, must obtain consent of ibis company for all additional insurance or policies, valid or invalid, made or taken before or after the issue of this policy, on the property hereby insured, and for all changes^ that may be made in such additional insurance, and have such consent indorsed on this policy; otherwise, the insured shall not recover in case oft loss. And in case of any other policies,- whether made prior or subsequent to-the date of this policy, the insured shall be entitled -to recover of this com-, pany no greater proportion of the loss sustained than the sum hereby bears,,, to the whole amount of policies thereon; and in case of the insured holding,'' any other policy in this or any other company on the property insured, sub-' ject to the conditions of average co-insurance, this policy shall be subject to-average and co-insurance in like manner, at the option of this company. All fraud, misrepresentation, or concealment in procuring this insurance, and all fraud or attempt at fraud, or false claims, and all false representations or' statements to this company or its adjusting agents, and any false Swearing-en the proofs or adjustment of a loss, shall cause a forfeiture of all claim on the insurer, and shall be a full bar to any recovery for loss under this policy., ’ The use of general terms, or anything less than a distinct specific agreement, clearly expressed, and indorsed on this policy, and signed by a duly-author-' ized agent of this company, shall not be construed as a waiver of any printed' condition or restriction herein; and no notice to, and no consent or agreement by, 'any local agent shall affect any condition of this policy, until such consent or agreement is indorsed hereon in writing.”</p> <p>At the trial the plaintiff in error, under objection, tendered evidence going to prove that, -in the fall previous, Morrison applied to one O’Rourke, the local agent of the defendant in error at Lisbon, Dak., for insurance on his' farm property. O’Rourke at the time was also the agent of the Insurance Company of North America, and of the Phoenix Insurance Company of Hartford, and was also the attorney of Morrison. O’Rourke at that time issued to Morrison a policy in each of the three companies. The one in the Insurance Company of North America was for $4,500.00, and that in the Phoenix Insurance Company of Hartford was for $2,500.00; the latter covering only 5,000 bushels of wheat contained in the granary.. Soon after, the defendant company canceled its policy, being unwilling to accept a risk on a threshing machine and separator, and returned to its agent, to be paid to Morrison, the premium which the company had received. Morrison at that time had left Dakota, and was in Wisconsin. Upon being notified of the cancellation,. he directed O’Rourke to keep the premium returned for him until he should take out a new policy. Upon his return to Dakota, in the spring of 1889, the policy in suit was issued by O’Rourke on Morrison’s renewed application on the 6th of May, 1889, covering the same property as the former policy, with the exception of the threshing machine and separator.</p> <p>The following table declares the distribution of the total insurance upon the property covered-thereby:</p> <p> </p> <p>• It was also proven ihat the policy in the Phoenix Insurance Company was upon wheat contained in the granary, which Morrison did not then wish to dispose of, and was for a period of six months. Morrison testified at the trial that O’Uourke told him In the fall of 1888, and at or before the time of issuing the three policies, that the other two policies had nothing whatever to do with the policy in the Phoenix Company, and would'not interfere with it. The tíre occurred 1G days after the date of the defendant’s policy, and 4 days before the expiration of the Phoenix policy. The defendant company was not informed of any other insurance in excess of 85,000, nor was such additional insurance indorsed upon the policy. At the time of the Are there were some 3,500 bushels of wheat in the granary, for which, with other loss, a recovery is here sought of the defendant in error for its proportionate share of the loss. There was evidence at the trial tending to prove certain other defenses with respect to incumbrances upon the property, which need not be considered, in view of the ground upon which the judgment of the court proceeds. At the conclusion of the evidence, the court below directed the jury to return a verdict for the defendant, to review which judgment this writ of error is prosecuted.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>This was an action by Daniel F. Comstock against the Chicago Lumber Company upon a contract for the sale of lumber. The plaintiff recovered judgment in the circuit court. Defendant brings error.</p> <p>The defendant in error, being the owner of a number of mills and extensive grounds, yards, and buildings at Merrill, Wis., and a large quantity of manufactured lumber, in December, 1887, sold the entire plant, with the exception of the manufactured lumber, to the Wisconsin Valley Lumber Company, agreeing to remove the lumber and deliver the plant by the 15th day of the following June. He thereupon entered into negotiations with the plaintiff in error for the sale of the lumber, and subsequently, in February, 1888, the parties entered into a formal written contract, antedated to January 1, 1888, in the words following:</p> <p>“Chicago, January 1st, 1888.</p> <p>“Contract made this first day of January, 1888, between D. F. Comstock, of Big Rapids, Mich., and Chicago Lumber Co., of Chicago, Ills. D. F. Com-stock sells to Chicago Lumber Co. his full stock of lumber at Merrill, Wis., less the amount 1,200 M. feet sold the Chicago Lumber Co. previously. All lumber they desire to be dressed under instructions from Chicago Lumber Co., and loaded on cars, at the same price as rough stock. Price for the above is- ten and 75-100 dollars ($10.75) per thousand feet, loaded on cars; payments as follows: Settlements to be made first of each month following shipments by Chicago Lumber Co., giving their paper at nine and twelve months from date, with interest at 6;á after ninety days. This contract gives Chicago Lumber Co. possession of lumber from this date. The above lumber is to be removed by June 15th, 1888.</p> <p>“Chicago Lumber Company,</p> <p>“N. T. Green, President..</p> <p>“L. F. Comstock.”</p> <p>At the date of the contract, a low or cut-freight rate prevailed between Chicago and points west of the Missouri river. It was asserted that the lumber-was bought by the company for shipment to Western points during the prevalence of such low freight rate. On the 24th of March, 1888, the freight rate referred to was increased $1.50 per 1,000 feet. Up to the 24th of March orders by the lumber company for the dressing and shipment of lumber to the extent of from 170 to 200 car loads were not complied with by the defendant in error, owing to the refusal or inability of the railway company to furnish cars at Merrill for such shipment. Cars sufficient to meet the demand were not furnished until after the increase in the freight rate. About the middle of April, 1888, Comstock wired the company: “Railroad company say they can furnish plenty of cars. Can we ship anything?” In response to which the company answered, under date of April 19th, as follows: “D. F. Comstock, Esq.: We will do our best in placing the orders for lumber. You know the railroad is at fault for not giving you ears, when you had the order. We could not prevent their canceling orders when rates went, up, and you had failed to get but few cars when rates were down. The railroad company is to blame. Hope to send you plenty of orders soon.” On the 25th of April, 1888, the company writes, inclosing an order for lumber: “You can hurry forward this order as fast as you like. We note what you say in your favor of the 24th, and will continue to send you orders as fast as possible. You are aware, of course, that we had a large portion of this lumber placed before the rates went up; and it was not our fault, neither was it yours, that the lumber has not gone forward faster. Had the railroad furnished you cars, you would have had a large amount of lumber shipped, which you now have. We will do our best to send you orders.” The lumber was not all moved prior to June 15th, according to the contract, and Comstock incurred certain costs and expenses with respect to the same subsequent to that date, for which, with a conceded amount due for lumber, a recovery was had at the trial. There was testimony tending to show that the lumber company agreed to pay the expenses which might be incurred by reason of the failure to move all the lumber prior to the date stated in the contract.</p>

This was an action by the Lancaster Mills, of Clinton, Mass., for the use of the Insurance Company of North America, against Anthony J. Thomas and Charles E. Tracy, receivers of the Cairo Division of the Wabash, St. Louis & Pacific Railway Company. From a judgment in favor of plaintiff (63 Fed. 200), defendants appeal. The Cairo Division of the Wabash, St. Louis & Pacific Railway, extending from Cairo, 111., to Tillen, 111.

<p>1. Contributory Negligence — Instructions.</p> <p>In an action for injuries caused by a movement of a street car while plaintiff was trying to enter thereon, where witnesses testified that at the lime plain!iff endeavored to board the car, which was in motion, they got on without difficulty, it was error to refuse to charge that plaintiff could not recover if the injury was occasioned by tbe want of ordinary care and prudence on Ms part, and to refuse to instruct the jury what was meant by ordinary care.</p> <p>2. I) «images — Instructions.</p> <p>Where the basis for the assessment of the damages is not explained iu The ho<ly of the charge, it is error to instruct: “If you find for the plaintiff in this ease, the verdict will he: ‘We, the jury, find the defendant guilty, and assess the damages at - — whatever you think proper, not exceeding the amount mentioned in Ihe declaration.”</p>

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

<p>In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>Assumpsit by the plaintiff in error, John ft. Sneed, as the indorsee of a promissory note, whereby on the Gth day of March, 1888, at Chicago, as it is averred in the declaration, the defendant in error promised to pay to the order of J. W. Provard on or before September G, 1888, the sum of 87.000, for value received, at the State National Bank, El Paso, Tex., with interest at the rate of 6 per cent, per annum until paid. It is further alleged that Provard, on the day of its date, indorsed the note to Joseph G. Fuller, who indorsed it to George G. Hunt, who indorsed it to the plaintiff in error. At the trial, which, by agreement in writing, was had before the court without a jury, it was stipulated that all special pleas filed, and the replications thereto, be considered withdrawn, and “that the cause proceed under the general issue, with the privilege to the defendant to prove defenses thereunder with the same effect as if special pleas had been filed.” Excepting slight verbal changes, not affecting the sense, the court made the following special finding of facts and statement of legal conclusions: On the 6th day of March, 188S, the board of directors of the Sabinal Mining & Milling Company held a meeting at its office in Chicago, 111. J. W. Provard, who was a stockholder, director, and manager of the company, reported at the meeting that he had expended in and about the management of the company’s business in Mexico, where its mine was located, a large sum of money. He stated that the company then owed him on account of expenditure, and for his salary, the sum of $7,000, and requested that the company give its note at six months for that amount. Directors Finn and James objected to giving Provard a note. Provard stated to the directors that, of the money expended by him, a part belonged to his wife, Mrs. E. N. Provard, and he therefore requested that the note be drawn in her favor. The attorney of the company, who was present with the board, drew up the note required by Provard, bearing date March 6, 1888, due six months after date, with six per cent, interest per annum, payable at the State National Bank of El Paso, Tex., with the name of E. N. Provard as the payee. Thereupon the note was duly, signed by the company, by John N. Dunphy, president, and B. J. Woodward, secretary, both of whom were present at the meeting. John N. Dunphy was one of the directors of the company. Immediately after the note was signed, it was delivered to J. W. Provard. Mrs. E. N. 'Provard was not presept. On the back of the note is found the following indorsement: “Pay Joseph G. Fuller. J. W. Provard.” Below the name “Provard,” the names of Joseph G. Fuller and George C. Hunt appear. The note was offered in evidence by the plaintiff, J. R. Sneed. The note in question, after its delivery to said J. W. Provard, was altered by changing the payee’s initial letters “E. N.” to “J. W.,” so that the note, as offered in evidence, is payable to J. W. Provard, instead of B. N. Provard, as originally made and executed. The alteration was made by or at the instance and request of Provard, within an hour after the note had been delivered to him, and before the board of directors had finally adjourned. When the • alteration was made, some of the directors were present in the room where the note was changed. John N. Dunphy, the president of the company, was not present when the note was altered, and was not aware of the change ■ until some months afterwards. Neither the directors, as a body, nor any of the officers of the company, consented to the alteration at any time. After the change was made, oue of the stockholders and directors of the company, Mr. James, then present at the meeting, was opposed to the execution of the note, and was not satisfied therewith until Provard indorsed upon the note, “I hereby waive all claims against Lightwood and James as stockholders,” — Lightwood and James being stockholders of the company. “From the facts found, the court found, ° as a conclusion of law, that the note had been materially altered by J. W. Provard, or by some person at his instance and request, but that the alteration was not fraudulently made.”</p> <p>It is contended in support of the appeal: (1) That Pigot’s Case, 11 Coke, 27, and the long line of English and American cases which followed its harsh rule, have become fossils or curiosities of the law, which have been superseded by the doctrine of later decisions that each ease must stand upon its own facts, and be determined by “the application of that more enlightened spirit which recognizes that the sole object of judicial investigation is to ascertain the right, and then enforce it.” Kountz v. Kennedy, 63 Pa. St. 190; Foote v. Hambriek, 70 Miss. 1.57, 11 South. 567. (2) That the facts of' the present case require a modified application of the general rule, because the matter was not complete, and the directors’ meeting still in. session, when, immediately after the signing, and before delivery of Hie note to the payee, the alteration was made, in the presence of the directors, by one of their number, who was the managin' of tlie company. Bingham v. Reddy, 5 Ben. 200, Fed. Cas. No. 1,414; Nicholson v. Combs, 1)0 ind. 515; 2 Pars. Notes «fe B. 573; Matson v. Booth, 5 Maulé & S. 223, 220. (3) That, if no’ alteration bad been made, J. W. Provard might have brought suit upon the note in his own name (Insurance Co. v. Allen, 110 Mass. 398; Huntington v. Knox, 7 Cush. 371; Garland v. Reynolds, 20 Me. 45; Railway Co. v. Benedict, 5 Gray, 5(51; Bank v. Rice, 107 Mass. 37; Ford v. Williams, 21 How. 287; New Jersey Steam-Nav. Co. v. Merchants’ Bank, (5 How. 380; Milliken v. Telegraph Co., 110 N. Y. 403, 18 N. E. 251; Ames v. Railroad Co., 12 Minn. 412 [Gil. 295J; Nave v. Hadley, 74 Ind. 155; Oelrichs v. Ford, 21 Md. 489), notwithstanding the wife furnished part of the money which entered into the consideration (Manufacturing Co. v. Fletcher,' 61 Md. 288); oral proof being admissible to show the real principal, though his name be not disclosed in the contract (Guano Co. v. Holleman, 12 Fed. <51; Baldwin v. Bank. 1 Wall. 234; Brooks v. Minturn, .1 Cal. 481; Ruiz v. Norton, 4 Cal. 355; Belohradsky v. lvulm, 09 111. 547). And (4) that, not changing the legal effect of the instrument, nor possibly affecting any right of the maker, the alteration is immaterial. Caldwell v. Meshew, 44 Ark. 564; Rand. Com. Paper, § 1(51; Tied. Com. Palter, § 88; Ryan v. Bank, 148 111. 349, 35 N. E. 1120; Holland v. Hatch, 15 Ohio St. 4(54; Magers v. Dunlap, 39 111. App. 018; Shepard v. Whetstone, 51 Iowa, 457, 1 N. W. 753. In support of the contrary contention — that the alteration was a material one — are cited 2 Daniel, Neg. Inst. § 1373; Robinson v. Berryman, 22 Mo. App. 510; Haskell v. Champion, 30 Mo. 136; Bank v. Fricke, 75 Mo. 179; Horn v. Bank, 32 Kan. 521, 1 Pac. 1022; Bell v. Mahin, 69 Iowa, 408, 29 N. W. 331.</p>

This was an action by the United States against Henry C. Marston and others, who were sureties upon his official bond as consul at Malaga. Hating, been in the consular service before, at Mauritius, he was transferred .to Malaga in 1880, and remained in charge there until the 26th day of October, 1890, when he was removed by the appointment of a successor.

<p>Appeal from Hie Circuit Court of tlie United States for the Northern Division of the Northern District of Illinois.</p> <p>The circuit court entered of record May 23, 1895, tbe following findings of fact and statement of the law of the case: “In this case Charles F. Gunther imported at Chicago, July 24, 1891, and entered for consumption, an oil painting portrait of Christopher Columbus, and a wooden frame, ujion which the collector of customs at Chicago assessed duty as follows: On the oil painting at the rate of 15% ad valorem, under paragraph 465 of the tariff act of 1890, and upon the frame at the rate of 35^ ad valorem, under paragraph 230 of the same act. The importer paid the duty as assessed, and protested according to law, claiming that the goods were free of duty, under paragraph 524 of the free list (Act Oet. 1, 1890), as a collection of antiquities. The prolesta.nl: claims, among other things, that the painting in question is the product of a period prior to tlie year 1700, and this contention is not disputed by tlie government. He also claims that the frame is an antique masterpiece of wood carving, and shows the skill with which such work was performed in the fifteenth and sixteenth centuries. It Is claimed the frame embodies one of the most remarkable and exquisite specimens of wood carving known in ancient or modern times; that it is allegorical of the life of Columbus, showing the drums, cannon, Indian arrows, and armor of that period, and is capped witli a Columbus coat of arms; that It is carved in wood, and has a distinctive value by reason of its antiquity. There is no testimony in the record, as returned by the general appraisers, to the effect that the claims of the protest: upon the point of antiquity of the painting and the frame” (is not true), “but the claim of the protest is supported by the affidavits oí W. M. It. French and Arthur Dawson, who certify, as experts, that in their opinion both the painting and the frame are products of the period prior to the year 1700. If this were the only question in the case, there could be no doubt as to allowing tlie claim of the importer to free entry. The paragraph of the free list referred to is as follows: ‘524. Oabinels of old coins and medals and other collections of antiquities, but tbe term “antiquities” as used in this act shall, include only such articles as are suitable for souvenirs or cabinet collections, and which shall have been produced at any period prior to the year 1700.’ The questions raised by counsel for the government are whether the painting and the frame in this case constitute a ‘collection of antiquities,’ and whether these articles are, within Uio meaning of the law, such as are described in paragraph 524. It is an acknowledged fact in this case that the importer is, and has been for many years, a collector of antique articles; that heretofore antique articles imported by him for bis collection have been admitted to free entry, and that he has one of the largest and most valuable collections of antiquities in the United States; and that the articles here in question were imported as additions to his already large collection. These questions seem to be disposed of by tbe decision of tbe circuit court of appeals for tbe Second circuit in Re Glaenzer and in Re Stem, 5 C. C. A. 225, 55 Fed. 642, and by tbe decision in tbe ease of Marine v. Robson, 47 Fed. 34, in tbe first of which it was decided that a sample vase of a collection was entitled to free entry, and, in tbe second, that four tapestries constitute a collection ^-entitled to free entry. In the last case a single' painting was declared to be entitled to free entry under paragraph 524, it being established that it was intended to be added to an already existing collection. Tbe court therefore finds that the painting and the frame in this case are entitled to free entry under the provisions of paragraph 524, Act Oct. 1, 1890, as claimed by the importer, and the collector is ordered to reliquidate the entry in this case in accordance with this finding.”</p>

<p>Appeal from the decision of the circuit court for the Southern district oí New York (66 Fed. 719), which affirmed the decision of the-board of general appraisers, which reversed the action of the collector in the assessment of duty upon imported Malaga grapes.</p>

<p>¡Customs Duties — Free List — Importation op Paintings eor Exhibition.</p> <p>A company incorporated in this country for the purpose of importing pictures and paintings, not for sale, but for purposes of exhibition and then re-exportation, and which is in fact established in part as an advertising adjunct of a commercial firm of art dealers and publishers, whose name it adopts, whose place of business it uses gratuitously for its exhibition. and whose employé is its general manager, is not an “association established in good faith * * * expressly and solely for the promotion and encouragement of science, art or industry,” within the meaning of paragraph 758 of the act of October 1, 1890, which permits the free importation of paintings, etc., by such associations. 66 Fed. 718, reversed.</p>

In tho matter of the petition of the secretary of the treasury for a review of a decision of the board of United States general appraisers In relation to the withdrawal for consumption of certain steel rails.

<p>CufiTOMg Duties — Tournay Carpets.</p> <p>Tournay velvet carpets being specifically made subject, by the act of 1894, par. 288, to a certain duty, they cannot be treated as “manufactures of wool,” within the meaning of paragraph 297, which provided that the rates of duties fixed by the act for manufactures of wool should take effect January 1, 1895.</p>

<p>1. Design Patents — Infringement—Penalty.</p> <p>A manufacturer who, after notice sufficient to charge him with knowledge! of a j>atented design, completes the manufacture of one lot of infringing goods, and delivers them to the purchaser, though he promptly gives orders to stop further production, is liable to one penalty of $250, under Act Feb. 4, 3887 (24 Stat. 387).</p> <p>2. Same — Enforcement of Penalty — Equity Jurisdiction.</p> <p>Qusere: Whether a federal court sitting in equity has constitutional power to enforce this penalty in the absence of a statutory provision for a trial of the issues of fact by a jury, subject to the fundamental rules of the common law. Untermeyer v. Freund, 7 O. O. A. 183, 58 Fed. 205, questioned.</p> <p>3. Same — Proof of Infringement — Comparison by Court.</p> <p>The court cannot in this case determine by mere personal inspection and comparison, in the absence of any explanatory proofs, that 1 lie pajier drawings of an earlier design patent anticipated the design of the patent sued on.</p> <p>4. Same — Costs.</p> <p>Costs will not be awarded to complainant though he obtain an injunction and a decree for one penalty of $250, where the infringement was not willful and defendant, before the suit was brought, offered to pay that sum and submitted to the patent.</p>

<p>Fatents — Ixyention—Horse Collars.</p> <p>The Brownson patent, No. 507,209, for an improvement in seams for horse collars, consisting- of a, welt bridging the joint, and a line of staples straddling the joint and passing through both welts, held valid, in view of the fact that it has gone into such extensive use as to practically revolutionize the trade.</p>

<p>This was a suit in equity by the Matthews & Willard Manufacturing Company , against the National Brass & Iron Works for alleged infringement of a design patent.</p>

<p>Decision on Appeal — Leave to Amend Pleadings.</p> <p>Where an appellate court affirms a decision dismissing a bill in a patent, suit, it will not, under the circumstances of this case, grant leave to the complainant to amend his bill so as to sue upon other patents not previously in issue. American Bell Tel. Co. v. U. S., 15 C. C. A. 569, 68 Fed: 542, 570, applied.</p>

This was a suit in equity by the Diamond Match Company against John H. Schenck and John M. Moore, trading as Dr. J. H. Schenck & Sons, and the Binghamton Match Company, for alleged infringement of a device relating to friction matches.

This was a suit in equity by the American Pneumatic Tool Company against Robert C. Fisher and others, constituting the firm of Robert C. Fisher & Co., for alleged infringement of a patent for a pneumatic drilling tool. In the circuit court a decree was rendered ■ for complainant (69 Fed. 331), and the defendants appeal.

<p>Admiralty Appeals — Salvage Awards.</p> <p>The amount of a salvage award will not be changed by an appellate court, except in an exceedingly strong case of abuse or palpable mistake In the exercise of discretion.</p>

<p>This was a libel by William H. Martin agajnst the bark Agathe to recover money alleged to have been illegally exacted from libel-ant’s consignees upon a wrongful claim for general average, and for which he had reimbursed them.</p>

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 of the cases there was a verdict for plaintiff, which was duly affirmed, upon writ of error. 70 Fed. 944.

<p>These were libels by Horace Fosbinder and tbe Union Marine Insurance Company against tbe steamer Owego, to recover damages resulting from a collision of tbe Owego witb libelants’ canal-boat. Tbe steamer Chicago and tbe tugs Townsend Davis and W. I. Babcock were subsequently brought in by petition of tbe Owego.</p>

The petitioner, Thomas Kelly, stands committed for trial upon mittimus, isi.ued by the commissioner of this court, upon the charge that, on October 29, 1895, ho assaulted, with a dangerous weapon, one Patrick Goglilan, with intent to kill and murder, at Northwestern Branch National Home for Disabled Volunteer Soldiers, “a place ceded to, and then and there being within the exclusive jurisdiction of, the United States,” and in said district, in violation of section 5891, liev.

<p>Practice — Depositions Taken in State Court.</p> <p>Depositions taken to be used in an action in a state court, which has been discontinued, cannot be used in an action afterwards brought in a federal court between the same parties for the same cause of action, although the state practice allows depositions taken in a pending suit to be used in a renewed suit between the same parties for the same cause.</p>

<p>Equity Practice — Ancillary Receiverships — Proof oe Claims.</p> <p>Receivers of a Missouri corporation were appointed by tbe circuit court for tbe Southern district of New York, at tbe suit of a New York corporation. Tbe same persons were appointed- ancillary receivers by tbe circuit court in Missouri, where tbe principal part of tbe business of tbe corporation bad been transacted; tbe order for their appointment containing a direction to appoint an agent in Missouri to receive service of process, notices, etc., with which the receivers complied. Subsequently, a creditor residing in Missouri applied to tbe circuit court there to determine tbe existence and amount of a claim against tbe insolvent corporation, arising out of transactions which took place in Missouri. Held that, although the New York court was tbe court of primary jurisdiction, and was the proper tribunal to pass upon tbe distribution of tbe fund in tbe receivers’ bands, tbe Missouri court would not dismiss tbe creditor’s application, but would entertain it, at least so far as to determine tbe existence and amount of bis claim, without requiring him to resort to a foreign jurisdiction to prove tbe same.</p>

<p>Appeal from the Circuit Court of the United States for the Southern Division of the Eastern District of Tennessee.</p> <p>The hill in-this case was filed in the chancery court of Tennessee for the purpose of obtaining the cancellation of a deed of trust executed to the defendant by a former owner of land now owned by the complainant, Fannie Grey liiggs, which she claimed had been satisfied, and the land exonerated, and for other relief. The case was removed into the circuit court of the United States by the defendant.</p> <p>The facts, as they appear from the record and the stipulation of the parties, are as follows: On March 0, 1888, Cordelia A. Kershner owned lots 14, 15, and l(i in Block 11, Highland Park, Hamilton county, Tenn., and on that day she subdivided them, and filed a new plat, and sold and conveyed the north 47% feet of lot 14 of the subdivision to S. K. Strothers. Thereupon Strothers conveyed the same to S. M. .Tones, as trustee, to secure a loan of $1,000 advanced by the Merchants’ & Mechanics’ Building & Loan Association. February 20, 1889, Strothers sold and conveyed said north 47% feet hack to said Kershner, she assuming the $1,000 mortgage. September 23, 1889, Mrs. Kershner sold and conveyed the said north 47% feet to S. F. Harley, who assumed the $1,000 mortgage. September 24, 1889, Harley sold and conveyed the same to J. J. Coulter, who also assumed the $1,000 mortgage. December 12, 1889, Coulter sold and conveyed the same to complainant for $2.500, of which $1,633 was in cash, and the balance was paid by assumption of the unpaid part of the $1,000 loan. All the above were warranty deeds, except as to the $1,000. This $1.000 complainant afterwards paid. January 5, 1889, Mi’s. Kershner executed to T. B. Clark, the defendant, a deed of trust of the south 92% feet of said lots 14, 15, and 16, and house and lot on East avenue, and house, and lot 17, Cameron Hill, to secure one note for $2,000, and one note lor $120, both due January 5, 1890, and one note for $120, due July 1, 1890. July 11, 1890, she executed to D. L. Grayson a deed of trust for said 82% feet, to secure one note for $1,020 ,to Dumas, and one note for $236 to the said T. B. Clark. June 17, 1889, Airs. Kershner executed to said Clark a deed of trust for the north 47% feet, to secure the same debt as the above deed of trust of January 5, 1889, $120 of which had been paid. This further security was given in pursuance of an agreement to substitute this in place of the East avenue lots included In the former trust deed to Clark, and which lots were released therefrom at the request of Mrs. Kershner. The bill alleges that Clark promised this last deed of trust should not be recorded, for the reason that he held other security for the debt, and other notes of Mrs. Kershner, but that in fraud of his promise Clark registered it. November 7, 1891, Clark had Grayson foreclose his deed of trust for the south 92% feet, and Clark bought it for $800. It was announced at the sale that it was subject to the deed of trust of January 5, 1889, and that the latter was a prior lien for the amount of the’ debt secured thereby. The bill alleges that the property was worth $3,000. Clark then proceeded to advertise for sale on the 21st of December, 1891, the north 47% feet, under the deed of trust of June 7, 1889. Mrs. Kershner was dissatisfied with the sale by Grayson to Clark under his trust deed, and with Clark’s proposed sale of the north 47% feet, under the trust deed to the latter, and on December 14, 1891, filed her bill to prevent this sale by Clark, to require him to foreclose his deed of trust of January 5, 1889, for the south 92% feet, and to make the debt out of that and the East avenue and Cameron Hill lots. On January 9, 1892, the court awarded a preliminary injunction. On March 28, 1892, Clark filed a cross bill; and on October 26, 1892, Mrs. Kershner dismissed her bill, Clark having on September 26, 1892, deeded' back to her the land conveyed by the Grayson trust deed, with the stipulation that the trustee’s sale should be held for naught, and all things should be restored to their condition previous to Grayson's sale to Clark; the purpose being to vacate and annul the whole proceeding, and restore the parties to their original rights. This the' complainant charges was the result of a conspiracy between Mrs. Kershner and Clark, she having become insolvent, and having removed out of the state. The dismissal of the bill was without the knowledge of the present complainant. The bill also alleges that Coulter, Harley, and Mrs. Kershner are all insolvent (and this is admitted); and, if Clark is allowed to proceed with the sale of the north 47% feet, she will lose the $1,600 paid in cash, and the amount she has paid the loan association. Complainant, at the time of her purchase, had no notice in fact of this deed of trust of June 17, 1889, and was informed by Mrs. Kershner that there was no other incumbrance except that of the loan association. Defendant is now readvertising sale under deed of trust June 17, 1889. It is admitted that the defendant, Clark, is the owner of all the debts secured by the several deeds of trust to him and to Grayson. It is admitted that at the same time (July 10, 1893) Clark advertised the north 47% feet, under the deed of trust of June 17, 1889, for salé, to be held on the 17th of August, 1893, he also advertised the south 92% feet under, the deed of trust of January 5, 1889, for sale, to be held on August 15, 1893; and on this latter date the 92% feet was sold for $400, of which $36.66 was credited to costs, and the balance applied on the debt. The prayer of the bill is that both deeds of trust of the 47% feet be canceled, or that the 92% feet be decreed the primary fund for the payment of the debt secured thereby; that the deed of trust of the 47% feet be decreed satisfied, or that the 92% feet, tlie East avenue and Cameron Hill lots, be first appropriated to the satisfaction of the debt; and for other and general relief. Upon the hearing in the circuit court the bill was dismissed, and the complainant has appealed.</p>

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

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>This was a suit in equity by T. Bissell Everson against the Equitable Life Assurance Company, praying a discovery and an accounting in respect to the amount due under a matured semi-tontine life insurance policy. A demurrer to the bill was, sustained by the circuit court, and the suit was dismissed. See 68 Fed. 258, where the opinion delivered by Buffington, District Judge, and which contains a full statement of the facts, will be found. ■ From- this decree complainant appealed. The part of appellant’s brief containing the comments upon the opinion bel'ow, which are referred to in the opinion of this court, is here given in full.</p> <p>Remarks upon the opinion of the court below:</p> <p>“The learned .judge recites the provisions upon the back of the policy, constituting the tontine contract, as follow's: ‘(1) That this policy is issued under the semi-tontine plan, the particulars of which are as follows: (2) That the tontine dividend period for this policy shall be completed on the 28th day of May, 1894. (3) That no dividends shall be allowed or paid upon this policy unless the person whose life is hereby assured shall survive the completion of its tontine dividend period as aforesaid, and unless this policy shall then be in force. (4) That all surplus or profits derived from such policies in the semi-tontine plan as shall not be in force at the date of their completion of their respective tontine dividend periods shall be apportioned equitably among such policies as shall complete their tontine dividend period. (5) That upon the completion of the tontine dividend period, on May 28, 1894, provided this policy shall not have been terminated previously by lapse or death, said T. Bissell Everson shall have the option either — First, to withdraw in cash this policy’s entire share of the assets, i. e. the accumulated reserve, which shall be $1,231.10, and in addition thereto the surplus apportioned by this society to this policy; secondly,’ etc. The court then says (and this is really the ground of the decision): ‘That by this contract of insurance the relation created between the parties was that of debtor and creditor is firmly established by numerous authorities.’</p> <p>“Upon this we observe that the provisions quoted create no contract of insurance, and are entirely separate and distinct from the insurance contract shown upon the face of the policy, yet it is upon these provisions that plaintiff’s right in this litigation exclusively rests. It is obvious that these provisions create the tontine, and relate solely and exclusively to tlie dispbsition of moneys accumulated out of tlie annual payments made by a large number of persons in carrying ‘such policies on the semi-tontine plan,’ after the insurance for which such payments were made has ceased and the insurance contract ended. They relate to tlie ultimate disposition of overpayments made for insurance and left in the hands of defendant through a period of years. They have nothing to do with the insurance, and only become available after the insurance is at an end. Mr. Everson terminated his insurance on May 28, !S!)4, and now stands upon the tontine contract expressed in these ‘provisions’ for the disposition of the overpayments lie, together with all others in liis class, have made during the last 10 years, in carrying their insurance, and which, throughout the said jieriod, they have left in the hands of tlie defendant to lie accumulated and divided as provided. We may admit that the insurance contract upon the face of tlie policy creates only the relation of debtor and creditor. By it Mr. Everson owes tlie company annually $272.50, and upon his death it owes his representatives $10,000. But that contract was terminated by its terms May 28, 1891, and since then exists l'or no purpose. During the running of it, however, the defendant was permitted, by agreement of plaintiff, to retain in its hands liis ‘surplus,’ or the moneys that he had paid in excess of the cost of ids insurance, wliieli is justly liis, and, except for his agreement, would have been returned to him annually. He also agreed with defendant and all other holders of such policies, and they with him, that if he died or lapsed during the period, still his surplus should remain with defendant until tlie end of the period, and he divided among all who have made similar agreements, and who have lived and paid through the period specified. This suit is to ascertain what has become of liie plaintiff's surplus or overpayments lie has made, which he has left with defendant for 10 years, ami the increment thereof by interest earnings and iorfeimres of others who have died or failed to pay through.</p> <p>“Surely this does not involve only the relation of debtor and creditor, hut also tlie duty of the defendant in the accumulation of a fund, and its equitable apportionment thereof at the end of the accumulating period. As was said by Judge Wallace, in Fuller v. Knapp, 24 Fed. 100: ‘Upon the ease made they were entitled to a portion of the fund, the amount of which necessarily involves an inquiry as to the number and amount of the policies of '«he class of 1,871, the dividends |surplus] which accrued upon them, the number that have been forfeited or have lapsed by retirement or death, the time when they lapsed or became forfeited, and of tlie interest due upon the investment of the dividends. In the management of this fund the company acts as the agent, in a limited sense, of the policy holders, and owes them the duty of keeping a correct account of the fund. * * * Whether, if discovery were not sought, the bill would be maintainable, it is not necessary to decide. It is sufficient that, being one for discovery as well as for relief, it falls within the class recognized by the authorities as cognizable in equity.’ It would seem to be obvious that when Mr. Ever-son. under the terms of an express agreement made with, defendant and with all others making similar agreements with defendant, permitted his surplus payments made to defendant, in carrying liis life insurance, to remain with defendant, instead of faking them out annually, as he otherwise would have done, «and the defendant, and other holders of such policio:: agreed that these retained dividends or surplus should he augmented from certain specified sources through a period of years, and then divided equitably among the survivors of the persons permitting them to he so retained, ihe defondani did. as Judge Wallace held, assume an agency in respect to the management and distribution of tlie funds so accumulated, and that in respeet of such agency it must lie held to a duty of accounting. To illustrate: Suppose 300 persons holding shares of stock in a hank make an agreement between themselves and tlie hank that no one of them would, through a. period of 20 years, withdraw from the bank any dividends declared upon such shares, but that the same should remain with the hanlt throughout the period, to he accumulated at compound interest, and at the end of the period the fund thus aceumulated should be divided by the hank exclusively among the survivors of the persons signing tlie agreement, could there be any doubt that, when the time for division came, any one of the survivors could file his bill against the bank to compel it to discover the number of shares in the pool, the dividends due to each, the accumulations thereon, and. the number and respective interests of the survivors among whom the fund is to be apportioned and methods of apportionment pursued? In such case is not the bank, if not the trustee, yet the agent of the tontine? Yet the case put does not differ one whit in principle from the case at bar. Certainly, there is something else beside the mere relation of debtor and creditor existing between the defendant and the subscribers to the tontine that it has promoted as an adjunct to its business of insurance.</p> <p>“Again, the learned judge says: ‘It would appear, therefore, that upon demurrer to a bill seeking both discovery and relief, it is sufficient to show that the complainant is not entitled to the relief which he prays, and that the addition of a prayer for relief to a bill seeking discovery will render such discovery dependent upon the title to relief.’ As we understand this, because the account, which we must have to ascertain the true value of our share in the tontine, is not such an account as equity would take jurisdicvtion of, alone and of itself, for purpose of relief, the discovery sought, and that is necessary to the statement of the account, will not enable the court to take a jurisdiction which it otherwise would not have. If so, it is contrary to all the authorities. Judge Story, after pointing out that the general jurisdiction of equity in cases of accounting only applies where the accounts are mutual, or there is to be an accounting on both sides, and not where the account is unilateral, lays it down as settled law, from the cases, that equity will take jurisdiction even of a unilateral accounting where discovery is sought and is material to the statement of the account. 1 Story, Eq. Jur. § 459.</p> <p>“The judge then refers to the magnitude of the accounting required. We surely are not responsible for this. It inheres in the nature of the contract the defendant has made, and the extent of its business in such contracts. In á suit at law we must have precisely the same information, in order to ascertain our true share and the damages to which we are entitled. So the defendant is saved nothing by remitting us to law. And in an action at law the account would be the first step in the testimony to show our loss.</p> <p>“And, further, it is said in the opinion: ‘On the other hand, if such a duty [to account] does not exist, — if the respondent has simply contracted to equitably apportion ■ the surplus and pay the complainant on that basis, and has failed to do so, — its breach of that contract would not impose an obligation to account where none primarily rested, and its broken undertaking must be redressed by another proceeding, and in another tribunal than the present one.’ In this the court fails into the error of assuming that the defendant has contracted to pay something out of-its own assets, whereas the plaintiff’s share is not in the assets of the defendant at all, but it is a sum held in the hands of defendant, and is, in truth and in fact, a liability, and not an asset of defendant. There is no obligation to pay out of its own resources anything. This is obvious from a careful reading of the fourth and fifth ‘provisions’ above quoted. The fourth is: ‘That all surplus or profits derived from such policies on the semi-tontine plan,’ etc. ‘Derived’ by whom? Surely not the company, because we could not speak of the company deriving profits from something it did not own, and these profits are to be derived from policies owned by the holders thereof. The ‘surplus or profits’ must be ‘derived’ by the holders of such policies, and be their property. Now, what shall be done with this property of such policy-holders? The ‘provision’ shows that if such holders shall not keep their policies, if they die or lapse, before the completion of the tontine period, then these surpluses and profits derived by them from their policies while in force —their property left with defendant — shall be equitably • apportioned among-the survivors of all such holders who have kept their policies through the term. In other words, this property of the policy holders dying or lapsing shall be divided up among those who survive and pay through. Is it not clear that here the creation of a specific fund is provided for, not out of the assets of the defendant, but of the property of other people, left in defendant’s hands, intrusted to it, for accumulation and apportionment among those entitled according to the terms of the contract? The fifth provision is: ‘That upon the completion of the tontine dividend period, on May 28, 1894, provided this policy shall not have been terminated previously by lapse or death, said T. Bissell Everson shall have the option either — First, to withdraw in cash tills policy’s entire share of the assets, i. e. the accumulated reserve, which shall bo 81,2.11.I I, and in addition thereto the surplus apportioned by this society to this policy.’ What does this mean? ‘To withdraw (not. that the society shall pay) in cash this policy’s entire share of the assets.’ What assets? Not assets of the society, but the assets of the class to which the policy belongs, hold In the hands of the society. We have already shown that the ‘accumulated reserve,’ which is to he withdrawn, belongs to the policy creating it, and none others, and this ‘provision’ recognizes this fact in describing it as a part of ‘this policy’s entire share of 1lie assets.' Besides this deposit, made by and belonging to this policy, it also has a share in the ‘surplus.’ This surplus is the retained dividends or profits ‘derived’ by the policy during 10 years (and which but for the contract of retention, contained in the third ‘provision,’ would have been paid annually), together with its share of ‘all surplus or profits derived from such policies’ as were not in force on May 28, 1891, — whose holders have died or lapsed and left tlieir surplus behind for division among the survivors, in neither of those provisions, therefore, is there any undertaking' of defendant to pay out of its resources anything. Its whole duty is as to handling and distribution of money belonging- to the class of policy holders described. In 1his proceeding -we go for our share of a specific fund belonging- to our class under the terms of the contract, and seek nothing from ihe genera! resources or assets of the defendant. It is not a personal obligation to pay that we seek to enforce, hut an ascertainment of our share in a specific fund which the defendant has undertaken to collect and manage.</p> <p>“But The court says: ‘As was said in a kindred case, there is in reality no specific or separate fund, as it is made up simply by a system of debits and credits contained in the hooks of the company, which debits and credits are made during the running ol' the tontine period.’ If this is so, the defendant has not kept its contract, as, clearly, the third provision names specific funds to go into the tontine fund for division, and of these they are hound to keep a precise and accurate account. It is of these funds that we seek an accounting, as to their management and apportionment among the parties entitled thereto, — the defendant having no title or interese m them. This accounting is of the most complicated and complex character, and we •submit that the grounds upon which the supreme court of Massachusetts and Judge Wallace have rested equity jurisdiction of such accounting are sound and irrefutable, and in agreement with the well-settled principles of such jurisdiction. As said by the Massachusetts supreme court: ‘Even if the amounts kept back from the plaintiff, and those of his class of policy holders, by the retention of those dividends which otherwise would have-been received, or of those sums accruing from (lie forfeiture of policies, either in whole or in part, do not constitute a trust fund, or place the defendant In a strictly fiduciary capacity, the defendant was bound to keep accurate accounts of (liem, and of all interest and profits thereon. All tlu> facts were entirely within its own knowledge, and it is only thus that it. cau be determined what equitably should he apportioned to the plaintiff. * But even if an action at law could be maintained where ail account is complicated, so tha.1, a full examination and settlement of previous accounts, transactions, or methods of business are necessary, and where ihe whole matter is entirely within the knowledge of defendant, it cannot so conveniently or accurately be investigated at common law as in equity. * * \ court of equity is the appropriate tribunal for dealing- with such an account, and ihe defendant is fairly hound to produce an account, from the data in its possession, which shall show that it has complied with its promise equitably to apportion to the plaintiff his share in the accumulations made through the operation of ihe tontine provisions in his policy.’ Pierce v. Assurance Soc. (Mass.) 12 N. E. 858.”</p>

This was a bill in equity by C. & A. Potts & Co. against Frank F. Creager and others for alleged infringement of patent No. 322,-393, issued July 14, 1885, to C. & A. Potts for improvements in disintegrating clay. This court heretofore entered a decree dismissing the bill (44 Fed. 680), but upon an appeal to the supreme court the decree was reversed and remanded, with directions for further proceedings in accordance with the opinion there rendered (155 U. S. 597, 15 Sup.

This was a suit by the United States against the Flournoy LiveStock & Real-Estate Company and others to require the removal of the defendants from certain lands claimed under leases from certain Omaha and Winnebago Indians, and to restrain the defendants from procuring other such leases. A demurrer to the bill was overruled. 69 Fed. 886. The defendants answered, and the canse was now heard on bill and answer.

<p>L Deeds — Of Married Woman — Statute Curing Defective Execution.</p> <p>One B., in February, 1855, acting for bimself and as attorney in fact for bis wife, executed a deed to one F. of land in Oregon belonging to his wife, and in July of the same year B.’s wife alone executed a deed of the land to F. The statutes of Oregon at the time gave no power to a married woman to convey land, except by deed in which her husband should join, nor any power to execute a power of attorney. Subsequently the legislature of Oregon passed an act providing that all deeds theretofore executed, which had been signed by the grantor in due form, should be valid, without any other execution or acknowledgment. Held, that such statute was intended only to remedy defective execution of deeds by persons having power to make them, not to validate deeds which the grantors had no power to make, and accordingly did not give validity to the deeds of B. and his wife, which passed only B.’s right of curtesy in the land.</p> <p>2. Judgments — Effect—Ejectment—Oregon Statute.</p> <p>The statutes of Oregon provide that in actions to recover real property the jury shall find the nature and duration of the estate or interest of the successful party in the land. Held, that a judgment in an action of ejectment, in which it was found that the defendant was entitled to a freehold estate in the land for the life of another, was conclusive as to the title of a grantee of the defendant in that suit in an action subsequently brought against such grantee by a grantee of the plaintiff therein.</p>

Assumpsit by the Philadelphia & Beading Coal & Iron Company against Louis Daube. There was a. verdict for plaintiff. Aloiion for judgment upon verdict rendered by the jury. The plaintiff is a corporation incorporated under the laws of Pennsylvania, and having a depot and yards in Chicago for the distribution and sale of coal. The firm of Daube A Rosenheim were copartners, and engaged in business at Chicago as coal dealers.

<p>1. Res Judicata — Defense Conducted by One not a Party.</p> <p>A corporation which assumes the defense of a patent infringement suit, brought against one who purchased the infringing articles from it, is estopped by the judgment to the same extent as if it had been a party.</p> <p>2. Same — Action on Same and Different Demands.</p> <p>An action for infringement by the making of certain articles is not an action upon the same claim or demand as a previous action for the making of other precisely similar articles; and a judgment in the previous suit will only be an estoppel as to the questions actually litigated. David. Bradley Manuf’g Co. v. Eagle Manuf’g Co., 6 C. C. A. util, 57 Fed. 980, disapproved. Cromwell v. County of Sac, 94 U. S. 351, applied.</p>

<p>1. JunuMKNTa — Collatkbaij Attack.</p> <p>1 Via‘ii a collateral attack is made on the validity of judicial proceedings. the question whether the court whose order or judgment is attacked could, under any state of facts, have had jurisdiction, is always open to examination; but if it appears that such court had jurisdiction over the general subject-matter, and the question is whether it had the right to proceed in the particular case brought before it, such right being dependent upon the existence of certain facts, the court, by proceeding, adjudges that it has jurisdiction in the particular case, and thereby adjudges the existence of the necessary facts; and this adjudication, being 'within its power io make, is, when made, binding upon all parties, unless reversed in a proper and direct proceeding, and is not open to collateral attack.</p> <p>2. Same.</p> <p>H. and others brought an action in a Nebraska court of competent jurisdiction against G. and others, nonresidents of that state, and filed in the clerk’s office an affidavit for the purpose of securing an attachment against the defendant’s property in accordance with the procedure in that state. The clerk accordingly issued the attachment, which was levied upon land, the record title to which stood in G.’s name. After-wards, by due proceedings, judgment was entered in the action, the defendants being served by publication, and not answering, and the attached property was sold under the order of the court, and bought by one L. Subsequently one K., to whom G. had conveyed the land before the commencement of the attachment suit, but whose deed was not recorded till after the sale to L., brought suit against L. to assert his title to the land, alleging that the affidavit upon which the attachment against G. & Co. was granted did not comply with the requirements of the Nebraska statutes. Held, that the validity of the judgment of the Nebraska court could not be collaterally attacked on such ground.</p>

<p>1,' Mortgages — Eokeclosubb—Sam in Inverse Order oe Alienation.</p> <p>The rule as to sale of mortgaged premises under foreclosure, in the inverse order of alienation by the mortgagor, will not be strictly applied where it w.ould work Injustice to any of the parties in interest.</p> <p>3. Same — Marshaling Liens.</p> <p>One S., owning a parcel of land which was subject to a mortgage to the P. Trust Co., divided the northern half of the parcel into three lots, B, O, and D, each of which he mortgaged, separately, to one M. Subsequently he sold lots B and D to other parties, subject to the mortgages to M., but agreeing to pay the mortgage to the trust company. The trust company afterwards brought suit to foreclose its mortgage on the whole parcel, and the owners of lots B and D asked that the southern half of the parcel and lot O should he sold, before the sale of lots B and D. Held, that such procedure, which might result in destroying the ser curity of M.’s mortgage on lot C, would be unjust to M.; and that, in order to preserve the equities of all parties, an appraisement should be had of the lots B, C, and D; that the southern half of the original parcel should be first sold, the costs of suit deducted from the proceeds, and the residue applied on the trust company’s mortgage; that the balance due on that mortgage should then be apportioned between lots B, 0, and D, according to their appraised value; that lot O should then be sold, and the proceeds applied first to the ascertained proportion of the trust company’s mortgage, and then to M.’s mortgage, and the balance, if any, paid into court; that lots D and B should then be sold in the order named, being the inverse order of alienation, and the proceeds disposed of as in the case of lot 0, the balance being paid to the owners of the lots.</p>

<p>In the matter of the receivers’ petition for authority to disaffirm contracts with certain leased lines. On exceptions to master’s report.</p>

<p>1. Corporations — Charters—Right to Charge Reasonable Rates.</p> <p>When a corporation is chartered with the right to manufacture and sell gas, the right to charge a reasonable rate for all gas furnished is implied, and forms a part of its contract with the state, which cannot be impaired by legislation.</p> <p>2.. Constitutional Law — Obligation oe Contracts — Corporations—Police Power.</p> <p>The legislature of Ohio, in 1846, chartered the C. Gas Co., to make and sell gas in the city of C., no power being then reserved, by the constitution of the state or otherwise, to amend the charters of corporations. The company obtained the consent of the city to the laying of its pipes in the streets, and commenced business. In 1851, a new constitution was adopted by the state, providing that the legislature should have power to regulate and alter charters. Subsequently, the legislature passed an act authorizing cities to fix the price of gas, under which the city of G., by ordinance, fixed the price at which the C. Gas Co. should sell gas at a sum much below its cost. Held, that such legislation of the state, and of the city under its authority, impaired the obligation of the contract contained in the charter of the gas company, was not justified by the police power, and was void, and that the enforcement of the ordinance should be enjoined.</p>

<p>Receivers — Repudiation of Executory Contracts — Pledge of Future Earnings.</p> <p>A pledge or assignment by an electric light company, as security for borrowed money, of revenues to be earned in the future, and paid monthly, under a contract for lighting the streets and public buildings of a city, is an executory contract, which tiie receivers of such company have the right, in the interest of their trust, either to carry out or renounce, at their election; and the iiling by them of a petition to enjoin the city from paying the money to the pledgees, is an election to renounce the contract;</p>

The appellants, complainants below, filed their bill In tbe circuit court, wherein, after the introductory part, they allege: “Thai on April 7, 1893, the defendants brought an action at law in this honorable (ourt. on the law side thereof, against your orators, and also Mrs. A. V. Morris and her husband, W. C. Morris. In form of an action of trespass to try title, which action is styled Geo. W. Denison et al. vs. W. 13.

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.</p> <p>This action was brought by George E. Paine in his lifetime against the Consumers’ Forwarding & Storage Company and the Pennsylvania Dock Company to recover two pieces of real estate in the village of Fairport, Lake county, Ohio. The land in controversy consisted of two parallel strips about 17 feet wide and 571 feet long, lying within the boundaries and on the east and west sides of a vacated street known as “Water Street.” The village of Fairport was first known as the town of Grandon, and was laid out in lots on the east bank of the Grand river and the south shore of Lake Erie by the original proprietors. The public grounds and streets were duly dedicated by executing and recording a plat in 1812. In 1815, before any of the lots south of Fourth street were sold, all the streets and public grounds south of Fourth street, except High street, were duly vacated by proper proceedings and decree in the proper common pleas court. The location of the two strips in controversy may be seen from the following diagram, showing a part of the vacated portion of the plat. , .</p> <p> </p> <p>Water street is described on the plat as live rods in width. The plat continues: “All the lots laid out in said town between the numbers hereinafter mentioned, inclusive, are of the length and breadth annexed to them, viz. ' * from 137 to 152 are each twenty-four rods long and four rods wide.” The measurement excludes from the lots any part, of Water street as platted. I>\ deed, the title to the entire tract was vested in one of the proprietors, Samuel Huntington, to hold for Lite beneiit of all. Division was made among the proprietors, and lots were sold by deed pending the trust. Huntington died before the execution of the trust, and in 183(5 a bill in equity was filed in the proper common pleas court by those in interest against his heirs to. compel a partition, and the conveyance of the legal title in accordance with the previous divisions and sales. Trior thereto, by division and transfer, Seymour Austin, one of the original proprietors, had become the owner of that part of the vacated tract lying between Fourth and Fifth streets. Ho died, leaving a widow, to whom he devised all his real estate in Fairport. His. (‘slate proved insolvent, and on a proceeding to sell land to pay debts all but, l/vio of the lots abutting on Water street between Fourth and Fifth streets wire assigned as a dower to his widow, and the residuary interest; in them was sold to Lemuel Storrs. The widow subsequently quitclaimed to Storrs all land owned by her in the town of Grandon. Austin’s administrator and his widow and devisee were made parties to the bill in equity already described, as well as Lemuel Storrs, the purchaser and grantee. By decree, it. was found and declared that Storrs had the legal title to all the vacated' parr of the plat lying between Fourth and Fifth streets, except lots Nos. 145- and 1445, which had been conveyed by Seymour Austin in his lifetime to Kiihu Spencer, and lots 148 and 349, which Storrs had conveyed before the decree to one Dexter Knight. The Spencer deed described the land conveyed as iollows: “Lots 145 and 34(5, according to the survey of the town plat of Grandon which wa.s first recorded, but now lying in the vacated part of said Grandon, and lor a more particular description of said lot, reference must be had to said first recorded survey oí said town plat.” The Knight deed described the land conveyed as “lots 148 and 149, according to<lhe original map aud survey of said town plat, and being in the block between Fourth and Fifth streets in said town plat, subject to all the streets and highways laid or to be laid out on or through the same.” Storrs, after the decree, quit-, claimed to one Wurts, “lot 150, according to the original map and plat and survey of the town plat of Grandon aforesaid.” He deeded to Henry Williams “lots 131 and 152, and also water lots opposite to and westerly of lots .149, 150, .151, and 152 in the original town plat of Grandon (now Fairport/, according to the original i own-plat survey and maps of the town plat of Grandon. aforesaid, subject to all highways.” Storrs, by similar descriptions, conveyed, lot 143, and water lots opposite to and west of lots 147 and 148. The only: remaining lot abutting on Water street not thus disposed of was water lot opposite lot No. 146, which it appeared that the plaintiff Paine had himself conveyed to one Paige. Thus it appeared by undisputed evidence that plaintiff had no title to the lots abutting on Water street, and the question was whether by the deeds of those abutting lots taking the title out of Storrs and himself title to the land lying in Water street also passed. There was some evidence tending to show a public use of part of Water street between Fourth and Fifth streets at various times, but it had been completely abandoned, and the defendants were admittedly in exclusive possession of it at the time suit was brought. The learned judge at the circuit instructed the jury that the deeds from Austin, Storrs, and Paine, conveying the lots abutting on vacated Water street, carried title to the middle line of Water street opposite the lots specifically conveyed, and therefore that neither Storrs’ heirs nor plaintiff had any title to land in Water street or the particular strips in suit. This instruction is made the basis for the chief assignment of error.</p>

<p>Attachment — Demand Atuking on Contract — Ohio Statutes.</p> <p>Plaintiff brought an action against defendant, alleging the making, by defendant to plaintiff, of an “oil and natural gas lease” giving to plaintiff the right to 1he possession of the promises described for the purpose of exploring for oil and gas, and also alleging facts which showed that, because of acts done by the defendant, a claim for damages had accrued to plaintiff, growing out of the contract of lease. Held that, whether or not the facts were ivell pleaded, It sufficiently appeared that the demand sued on was one arising upon contract, for the purpose of sustaining an attachment under Die statutes of Ohio.</p>

<p>1. Railroad Receivers — Liability for Negligence of Employes — Liability of Railroad Company.</p> <p>Receivers having the full possession, control, and operation of a railroad under the directions of a court are alone liable for the negligence or wrongdoing of their agents and employés in the operation of the road, and the railroad company itself is not liable to suit upon a cause of action so arising.</p> <p>8. Same — Leased Road — Liahimty op Lessor.</p> <p>Tbe OMo statute making a lessor railroad company liable for tbe acts, injuries, and wrongs indicted by tbe officers, agents, or employes of the lessee company does not operate to give a right of action against a lessor company for negligent ads of tbe employes of a receiver wbo is operating the road as receiver of the lessee company.</p> <p>8. Removal op Causes — Diverse Citizenship — Nominat. Parties.</p> <p>An action was brought by a citizen of Ohio against the receivers of a New York railroad corporation, who wore citizens of New York, to recover damages tor personal injuries sustained in the operation of a road belonging to an OMo corporation, but which had been leased to the New York corporation prior to the appointment of the receivers. Both the New York corporation and the Ohio corporation were joined as parties defendant with the receivers. Held, that the sole controversy was between the plaintiff and the receivers, and the latter were entitled to remove the cause to a federal court.</p>

Submitted on special findings of fact returned by jury, as follows: The Monticello Bank vs. Bostwiek and Dixon, Copartners. We, the jury in the above case, by the direction of the court, and with the consent of the parties hereto, make and return a special verdict in said ease upon the facts, finding as follows: (1) The plaintiff is a banking corporation created under the Jaws of the state of Iowa, at the town of Monticello, Jones county, Iowa, and was such in June, 1892.

This was an action by George W. Smith against: Paul G. Johnson and others to recover possession of certain lands formed by accretion io the bank of the Missouri river. Upon the trial in the circuit court, the jury found a verdict for the plaintiff. The defendants move for a new trial.

■ This was an action by Charles E. Rose, receiver of the Consolidated Mutual Fire Insurance Company of Chicago, 111., against the Northwest Fire & Marine Insurance Company of Portland, Or., fipon a judgment recovered in Illinois. A motion to strike out parts of the answer was denied. • 67 Fed. 439. Plaintiff demurred to the answer and to a counterclaim therein set up.

<p>Action by Charles E. Whittemore against the Western Union Telegraph Company.</p>

In Admiralty. This was a libel in personam by Frances Bussman, wife of Paul F. Bussman, against the Western Transit Company. The facts out of which this controversy arose will be found stated in Bussman v. Western Transit Co., 9 Mise. Bep. 410, 29 N. Y. Supp. 1006, which was an action by the husband of the libelant based upon the same transaction now involved.

On Demurrer to Plaintiff’s Declaration. ’Hie declaration in lids cause was in assumpsit, and, in substance, alleged: Thai heretofore, to wit, on the 24th day of February, A. D. 1892, at the village of Detour, in ilie county of Chippewa and state of Michigan, said plaintiff was engaged in The business and occupation of keeping and operating a ce; tain dock in said village, leased by him from one George Dawson for a term of years ending December 1, 1898, at a.n annual rental,…

This suit is for damages for alleged conversion of property.

<p>1. Carriers — Interstate Commerce Act — Indictment—Rebate.</p> <p>■ Under section 2 of tiie interstate commerce act, which makes it unlawful for carriers to receive greater or less compensation from one shipper than from another for whom the carrier renders like service, an indictment which states that a carrier gave a rebate to one shipper without stating any instance in which the carrier refused a like rebate to any other shipper- is defective, as not showing discrimination.</p> <p>2. Same.</p> <p>Under that clause of said act which forbids carriers collecting greater or less compensation than is specified in their published schedules, an indictment which charges that defendants were officers of a railroad company which was a common carrier between designated points in different states; that a certain rate was in force between such points; that defendants, during a certain period of time, received such rate from a certain shipper; and that, at a certain time, they unlawfully and willfully paid such shipper a certain rebate, — is good, even though it does not state the day or days when the shipments were made, nor allege that the defendants, when the shipments were made, intended to charge less than the schedule rate.</p> <p>8. Same.</p> <p>Under the clause of said act making it unlawful for a carrier, by means of false billing, classification, weighing, or by any other device or means, knowingly to assist or suffer any person to obtain transportation at less than the regular rate, an indictment will not lie for paying or receiving rebates.</p>

<p>This was an indictment charging the defendant, Fritz Spruth, with knowingly and negligently landing and permitting to land certain alien immigrants at the port of Philadelphia on the 14th day of July, 1895, contrary to the form of the act of congress in such case made and provided. • The defendant was the master of the steamship Markontanina, and after an examination and special inquiry before four officers acting as inspectors, duly designated by the superintendent of immigration to conduct said examination, the said immigrants were adjudged as persons likely to become public charges, and were ordered to be detained on board the said steamship, as he, the said defendant, then and there well knew.</p> <p>The indictment further charged that the said defendant “did knowingly, fraudulently, and willfully neglect to detain them, the said immigrants, on board the said vessel.” Upon the trial the jury, by instructions of the court, found the defendant guilty as indicted, and the court imposed upon him a line of 8200 and costs of prosecution. A motion for new trial was made on December 5, 1805, in support of which the following reasons, inter alia, were urged: (.1) The questions whether the defendant adopted due precautions to prevent the landing- of the Immigrants, and whether he knowingly or negligently permitted them to land, were questions for the jury, and should have been submitted to fhem; (2) because, under the act of March 3, 1891. defendant could not be convicted without a finding of the jury that he had failed to adopt due precautions, or had knowingly or negligently permitted the escape.</p> <p>The act of March 3, 1891 (2(1 Stat. 1084; 1 Supp. Rev. St. p. 934), creates two distinct offenses for which distinct and different penalties are adopted. The offense created by the eighth section is knowingly or negligently permitting io land any immigrant at any place or lime other than that designated by the inspection officers. The offense created by the tenth section is the neglect to detain on board immigrants who had unlawfully come to the United ¡Stales. The evidence showed that the immigrants escaped while being detained by the inspectors for a further hearing to determine the point whether they had unlawfully come to the United States. The case of Warren v. U. S., 7 O. O. A. 308, 58 Fed. 559, relates only to section 10 of the act.</p>

<p>Chinese Laborers — Deportation.</p> <p>Prior to October 1, 1894, and at tbe date of tbe passage of the Gearyact, of May 5, 1892, S. was a Chinese merchant residing in San Francisco. He obtained a lease, running from October 1. 1894, to September 30, 1897, of certain fruit land in California, on which he employed laborers; and he performed certain manual labor himself, — the extent of which did not appear, — in assisting such laborers to care for and gather the fruit. S. failed to register as a laborer under the Geary act, and proceedings for his deportation were commenced. Held, that S., haying been a merchant at the time of the passage of the act, and during the time for registration, was not made liable to deportation by subsequently becoming a laborer.</p>

<p>Indictment against John H; Mullin, under Rev. St. § 5398, for unlawfully resisting service of a legal writ, and application by William H. Garrett and John F. Meyers for a writ of habeas corpus. A motion to quash the indictment against Mullin, and the application of Garrett and-Meyers, submitted on the petition, return, and evidence taken before the court, were heard together.</p>

<p>Customs Duties — Bronze Statuary.</p> <p>Bronze statuary, made by casting from a clay or plaster model, made by the artist, is not dutiable under paragraph 465 of the tariff act of October 1, 1890, as “statuary * * * wrought by hand * * * from metal,” but as a manufacture of metal, under paragraph 215.</p>

This is an appeal from a decision of the circuit court, Southern district of New York (65 Fed. 420), affirming a decision of the board of general appraisers, which sustained the classification for duty by the collector of the port of New York of certain merchandise imported by the appellants.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an appeal by Shoellkopf, Hartford, and MacLagan from a decision of the board of general appraisers sustaining the action of the collector of. the port of New York in respect to the classification for duty of certain articles imported by the appellants. The circuit court affirmed the collector’s decision, and the importers thereupon appealed to this court.</p>

<p>Tkade-M auks--“ Kmsbr ” Beer.</p> <p>The word "Kaiser,” as applied io beer, which has become known in the United States, under that name, as the produel: of a particular German brewer, is a valid trade-mark in he United States, though, under the law of Germany, it could not be adopted as such.</p>

Thus was a bill in equity by the Consolidated Car-Heating Company against the Martin Anti-Fire Oar-Heating Company for alleged infringement of a patent for steam hose couplings. This is an equity suit for infringement based upon letters patent, No. 363.553, granted May 24, 1887, to James H. Sewall for an improvement in hose couplings adapted for use in steam-heating- apparatus used on American railways. The patent is now owned by the complainant.

This was a hill in equity by Mast, Foos & Co. against the Dempster Mill Manufacturing Company for alleged infringement of a patent relating to an improvement in windmills. The cause was submitted for final hearing on the pleadings and proofs.

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

Libel in rem for damages sustained while a passenger on board the Willamette Valley, the Oregon Pacific Railroad Company (Charles Clark, receiver), claimant. Decree for libelant in the sum of $300.

<p>1. Maritime Liens — Wages of Master and Part Owner — State Statutes.</p> <p>A state statute giving a lien for master’s wages (Code Ala. § 3054) will not be enforced by a federal court in favor of a master wbo is also a part owner, or where the services were not rendered upon the credit of the vessel.1</p> <p>2. Same — PBEstJMrTroNS.</p> <p>The presumption is that the master trusts to the personal credit of the owner for his wages. The Atlas, 42 Fed. 793, followed.</p>

<p>1. Charter Party — When Ship is Demised.</p> <p>By a charter party the owners were to provide all provisions, wages, consular, shipping, and discharging lees of the officers and crew, pay for insurance of the vessel, and for all room and deck stores, maintain the ship in efficient working condition, and victual and provide for all passengers, — charterers paying a fixed sum for each passenger per day. The charterers were to provide coal, pay port charges, pilotages, agencies, and commissions, and expenses or lading, hut were not to bo responsible for improper stowage. They were to have at their disposal all the steamer’s holds and decks, and all places of loading and passenger accommodation, reserving only sufficient space for the creiv, tackle, provisions, stores, and fuel. The captain was to be appointed by the owners, hut to be at (he direction of the charterers in respect to employment, agency, or other arrangements. Held, that this was not a demise of the vessel, as the owners did not part with the possession, command, and-navigation of her.</p> <p>2. Same — Agexoy of Master.</p> <p>Under such charter party the captain was the agent of the owners of the vessel, and it was his business to get suitable papers and proper entrance permits to the ports within the charter limits; and any error or default of his in 1hat respect was chargeable upon the owners.</p> <p>8. Same — Liability for Loss of Cargo.</p> <p>A. steamer was chartered, by a charter party not amounting to a, demise, expressly to carry perishable cargoes of fruits, etc., from Central America to Mobile. The charter party provided that the master should prosecute the voyages with the utmost dispatch, and that the steamer should not stop to assist or tow any vessel liable to cause detention, except for the purpose of saving human life. At Blueiiolds, Nicaragua, the master took on board as a passenger, without the direction of the charterers’ agent, a person not in danger of his life, who was without the health certificate which the master knew was required by the quarantine authorities at Mobile; and for lack of such certificate the vessel was detained in quarantine at that place until the cargo was lost by deterioration. Held, that Die ship was liable therefor to the charterers.</p>

This is an appeal from a final decree of the district court, Southern district of Yew York, entered December 22, 1894, in favor of libelant, against the Euripides and the claimant for $4,388.85, and against the sureties on her stipulation for value and costs in the sum of $3,750, for loss and damage to a cargo of sugar transported in the Euripides from Cienfuegos to Yew York, in February and March, 1892.

Petition for a limitation of liability of the owners of the wrecking schooner Sampson, under the provisions of section 4282 et seq.. Rev. St. Demurrer to petition, and motion to dissolve the restraining order issued upon the prayer of the petition. ■ Demurrer overruled, and motion denied.

<p>This was a libel by Alice P. Egbert against the St. Pan! Eire & Marine Insurance Company to recover indemnity on a towage poliev.</p>

This was a libel by the National Steamship Company, Limited, against the tank steamer La Hesbaye, to recover compensation for salvage services.

<p>1. Salvage Compensation — Derelict.</p> <p>In the caso of a derelict, even if the salvage services have been very meritorious, the fact that the vessel and cargo saved are of slight value, and insufficient even to compensate the salvors for their labor, does not authorize the court to award them the entire proceeds, especially where a claimant appears; for salvage, in its nature, implies a benefit to the owner of the property, and if he receives nothing, to deny him any share, is to repudiate the doctrine of salvage.</p> <p>2. Same — Nature of Salvage Interest.</p> <p>Salvage constitutes an interest in the property saved, and is subject to the risk of subsequent depreciation of the value of the property by subsequent accidents or otherwise.</p> <p>3. Same —Compensation.</p> <p>Where a derelict vessel was stranded in the harbor after the rendition of salvage services, whereby large expenses were incurred, so that the net jiroceeds were insufficient even to compensate the salvors for their work and labor, held that 75 per cent, of the net proceeds should be awarded.</p>

On the evening of August 20, 1895, the steam yacht Bung Brothers sank in the outer harbor of Buffalo, in or near what is known as the Beading Channel. She was about 50 feet in length and 10 feet beam, with an open cabin or awning extending over nearly her entire length. The Schlesinger is a propeller 835 feet long, 44 feet .beam, and,, on the day in question, her draft was about 16^ feet.

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

<p>Appeals from the Circuit Court of the United States for the Eastern District of Missouri.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado. James B. Belford and Thomas Ward, Jr., for plaintiff in error.</p>

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

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

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

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

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

<p>In Error to the Circuit Court' of the United States for the District of Kansas. Winfield Freeman, for plaintiff in error.</p>

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

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

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

At Law. Petition by the people, on the relation of M. E. Sweeney, against the Rock Isiand & Pacific Railway Company for mandamus. The case was removed to the United States court on the petition of the defendant.

<p>1. Jurisdiction of Federal Courts — Corporations.</p> <p>A corporation of one state which complies with the laws of another state wherein it does business, in respect to filing a copy of its charter and appointing an agent to receive service of process, does not thereby waive its right to insist that it shall only be sued in a federal court in the district and state of its incorporation.</p> <p>2. Equity Jurisdiction — Parties.</p> <p>Where a suit against a corporation is dismissed for want of jurisdiction, the court has no equitable cognizance in respect to its officers joined as defendants for the purposes of an accounting in behalf of the company.</p>

<p>Action by H. W. Benjamin against the city of New Orleans.</p>

This was a bill in equity by Otto and William Thum against John A. Andrews, William Y. Wadloigh, B. If. Bullard, and William A. Dole, trading under Hie name of John A. Andrews & Go., for alleged infringement of letters paliad No. 278,29-1, issued May 22, 1883, and No. 303,118 issued September 10, 18,V;, both to Otto Thum, for improvements in fly paper.

This was a petition for a writ of mandamus to be directed to tbe judge of the circuit court for the Northern district of Alabama, requiring him to vacate an order amending nunc pro tunc a judgment which had been affirmed by this court on writ of error.

<p>Mandamus — Power oe Circuit Courts op Appeal — Jurisdictional Question.</p> <p>of appeal have, no power to issue a mandamus directing a circuit court to dismiss a case in limine, on the ground that no jurisdiction has been acquired over the defendant- by the method of “ service pursued, for the circuit courts of appeal can only issue a mandamus in aid of their own jurisdiction (Act March 3, 1891, § 12; Rev. St. g 716); and they have no jurisdiction in a case in which; the only question involved is the jurisdiction of the court below, as such cases are reviewable on appeal only in the supreme court (Act March 3, 1891, §§ 5, 6).</p>

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

<p>1. Railroad Receiverships — Liens—Damage—Claims.</p> <p>In 1888 the T. Ry. Co. mortgaged its property to secure an issue of bonds. In September, 1889, a receiver of the property of the corporation was appointed by a state court, in quo warranto- proceedings for the forfeiture of the charter. While the railroad was in the hands of this receiver, one F., a passenger, suffered a personal injury. In October, 1889, the order appointing the receiver was vacated, as improvidently made, and the property was ordered to be returned to the company, and made chargeable with all expenses and liabilities of the receiver, as a lien upon such property. In 1890 F. sued the railway company and the former receiver in a state court to recover damages for his injury. In 1891 a sui,t •for the foreclosure of the mortgage on the railroad was begun, in a federal court, and a receiver appointed. This receiver was made a party to F.’s suit in the state court, but without leave of the federal court, and appeared and answered. Judgment was rendered for F. against the railway company and receiver, which judgment was declared to be a lien on the property of the railway company in the hands of the receiver. F. then intervened in the foreclosure suit, to obtain payment of this judgment out of the corpus of the property, if necessary, in preference to the mortgage. Held, that F.’s claim for damages did not, by virtue of the decree vacating the receivership in the quo warranto proceedings, or otherwise, become a lien on the railway company’s property superior to that of the mortgage previously executed,</p> <p>a. Same — Texas Receivers Act.</p> <p>Held, further, that while it did not appear that F.’s suit in the state court was one to which the receiver could, under the act of congress of August 13, 1888, be made a party, without leave, if he could for any purpose be so made a party, the court was not authorized, by the Texas receivers act (Rev. St. Tex. art. 1466 et seq.), or otherwise, to award F. a lien superior to that of the mortgage, which was executed before the passage of the receivers act.</p>

<p>Equity Practice — Nonresident Dependants — Act March 8, 1875.</p> <p>One F. filed a bill in equity, in the circuit court for the Southern district of Georgia, to remove an incumbrance or cloud upon the title to real property in that district, all the defendants but two, who were merely formal parties, being nonresidents of the state. Service was made personally upon the two resident defendants, and upon such service, treated as a substituted service (the resident defendants having previously acted as counsel for the others), a decree pro confesso was taken. Afterwards complainant, not relying on this decree, caused service to be made on the defendants by publication, and, such service having been perfected, took a second decree pro confesso. Within 10 days thereafter, the nonresident defendants filed objections to granting a final decree, and moved to have the decree pro confesso set aside, and for leave to file pleas. This motion was overruled, and a final decree entered. Held error, the evidence failing to show that the substituted service was sufficient to justify the first decree pro confesso, and the nonresident defendants having been entitled, under Act Gong. March 8, 1875, § 8, to come in and defend under the second decree.</p>

<p>1. Corporations — Ultra Vires — Abandonment op Corporate Purpose— Holding Stock in Other Corporations.</p> <p>The N. Co., a New Jersey corporation, the M. Co., a Michigan corporation, and two copartnerships, all being engaged in the manufacture of the same goods, entered into an agreement by which it was provided that the parties should organize a corporation to manufacture the goods; that the stock of such corporation should all be allotted to the several parties, in certain proportions; that the parties should convey all their property, of every kind, to the new corporation, and receive therefor mortgage bonds of such corporation, bearing 8 per cent, interest, to the amount of the appraised value of the property, — such bonds to be secured by mortgage of all the property of the new corporation, and the appraisal to be made by appraisers appointed by the parties in the manner provided by the agreement. Each of the parties agreed not to engage thereafter in the manufacture of the goods. The new corporation was organized under the laws of New Jersey. The stock was issued, and conveyances of the property of the parties to the agreement were made to such corporation, but it did not immediately take possession of the property of the M. Co., or issue the bonds. While still in possession of its property, the M. Oo. deferniined to withdraw from Its engagements, so notified the officers of the new corporation, tendered hack the stock, and demanded a rescission of the agreement. This was refused, and the new corporation, through its agents, attempted to gain possession of the property of the M. Oo. by force, and threatened to continue such attempts. Thereupon the M. Oo. filed its hill to cancel the agreement and restrain interference with Its property, and the new corporation filed a cross bill demanding specific performance of the agreement. The M. Oo. was organized to manufacture the goods which were manufactured by the other parties to the agreement and by the new corporation, and its. charter contained no authority to hold stock in other corporations. Held, that the agreement and transfers, forming part of one plan, by which the M. Oo. was to abandon the exercise of its corporate powers, and restrict itself to the holding of the stock of another corporation, through which its proper business was to be carried on, were ultra vires as to the M. Co., and void.</p> <p>8. Contracts— Illegality — Parties in Pari Delicto — Executory Contracts.</p> <p>Held, further, that as the agreement was still in large part executory, and had been promptly disaffirmed by the M. Go., the rule as to estopp'd upon parties in pari delicto did not apply, and cancellation of the agreement, with an injunction against interference with the property of the M. Oo., might be granted, as well as a dismissal of the cross bill praying specific performance.</p>

<p>1. Corporate Obligations — Use by Officers — Bona Fide Purchaser.</p> <p>One who takes corporate bonds from officers of the corporation to secure their private indebtedness is bound to ascertain their right to dispose of the bonds.</p> <p>2. Same — Declarations ob- Officers.</p> <p>The declarations of the officers as to their authority to use the corporate bonds for their private purposes are not binding on the corporation.</p> <p>8. Same — Validity of Contract.</p> <p>The acquiescence of all the directors and stockholders of a corporation will not validate a transaction outside the corporate powers.</p> <p>4. Same.</p> <p>No authority in a corporation to lend credit to another is to be implied from the fact that it ma.y be beneficial to the corporation to do so.</p> <p>5. Same — Bona Fide Purchaser.</p> <p>Plain tiff having- $15,000 invested as a partner in a firm which also owed him $10,000, and the two other members each owing him $15,000, he agreed to lend them money to buy him out and pay him off, — an arrangement most advantageous to him, if he could obtain good security. The other members had no property but stock in a corporation of which (hey were president and secretary, and the hoard of directors of which they controlled, and it was agreed that bonds of the corporation should be furnished him as security. His attorney accordingly drew up a resolution, which was passed by the board, reciting authority in the president and secretary to issue bonds, the receipt of a bid for the bonds from them as individuals, and the acceptance of the bid. The bonds were then delivered to plaintiff as security for bis claim against the president and secretary. The coupons were never presented for payment, but were canceled by him on their maturity. Held, that plaintiff was not a bona fide purchaser acting in reliance on the resolution so passed.</p> <p>6. Kamb — Authority of President.</p> <p>In such case, the president being an interested party, his decision that the terms of the bids for the bonds were complied with was not binding on the corporation.</p>

This was a bill by the Pullman’s Palace-Oar Company against the Central Transportation Company to enjoin it from prosecuting an action at law to recover rent under an alleged lease.

<p>Corporations — Suit by Stockholder — Equity Pleadings — Rule 94.</p> <p>A bill by a stockholder against a- corporation and its directors, alleging that a majority of the directors, in conspiracy with others, are attempting, through execution sale on an unauthorized judgment note, fraudulently to obtain title to the property of the corporation, and that the complainant learned of these transactions only a few days before the time for redemption expired, need not allege that complainant has demanded that the directors bring suit to set aside such sale, since such demand would be useless.</p>

This was a suit in equity by Delia De Beaumont, administratrix, against Napoleon W. Williames, for alleged infringement of a patent for an improvement in heaters and feeders for steam boilers.

<p>Taxation — Special Assessments — Sprinkling Streets.</p> <p>Sprinkling the streets of a city is not an improvement of the abutting property of such a character as to justify the imposition upon such abutting property of a special assessment for the expense thereof, and an act authorizing the imposition of assessments for such purpose is in violation of fundamental law, and not within the taxing power.</p>

In Equity. The complainants, creditors at large of Harriet V. Russell et al.; partners doing business as Russell, Vincent & Williams, filed a creditors’ bill setting up a claim for «$2,636.42, with interest, on account of goods sold and delivered. The bill charges that said defendants executed and delivered to Revi I).

<p>This was a suit, originally commenced in a court of the state of South Carolina, by the Pelzer Manufacturing Company against the Hamburg-Bremen Fire Insurance Company, to reform a judgment. A motion to remand was denied (62 Fed. 1), and a demurrer to the bill was overruled. The cause was now heard on the pleadings and proofs.</p>

<p>• 1. Interstate Commerce Act — Orders of Commission — On Whom Binding.</p> <p>Proceedings were commenced before the interstate commerce commission against the S. Ry. Co., which was at the time in the hands of a receiver. to enforce compliance with the long and short haul clause of the interstate commerce act. Before the decision therein, the railroad was sold under foreclosure, and conveyed and delivered to the purchasers. An order was made by the commission requiring a reduction of rates. A few days after ibis order was made, the railroad was conveyed by the purchasers at the sale to a new company. The order was served on the former receiver of the road, but not on the new company. Held, that such new company was not bound by the order, notwithstanding a provision in the order of sale of the road requiring the purchaser to pay and discharge all claims made against the receiver, and all obligations contracted or incurred by him and not paid by him before the delivery of possession.</p> <p>2. Bame — Long and Short Haul — Division of Joint Rate.</p> <p>Several independent, connecting railroads, forming a line from Memphis, Trim., to Charleston, S. €., agreed upon a charge of ID cents for .certain freight between those points, which sum was to be divided between them in certain proportions. Upon the same freight, from Memphis to S„ a point in South Carolina, but nearer Memphis, 28 cents was charged, the excess over the through rate all going, however, to the road which performed the transportation in South Carolina, anil the other roads receiving-only their proportion of the through rate. Held, that such charge was not a violation, on the part of such other roads, of the long and short haul clause of the interstate commerce act.</p> <p>8. Sami: — Similar Circumstances.</p> <p>Transportation of hay between Memphis, Tenn., and Charleston, S. 0., between which points there is competitive transportation by rail, by water and rail, and by water alone, is not performed under substantially similar conditions with transportation between Memphis and an interior town in South Carolina, which is reached only by one railroad.</p>

<p>Homestead — Rights of Wife — Law of Kansas.</p> <p>One S. induced bis wife, who was of unsound mind, to execute a mortgage on tbeir homestead, situated in Kansas, the mortgagee being ignorant of the wife’s incapacity. Upon the institution of a suit for foreclosure, to which S., his wife, and their children were made parties, S. set up such incapacity as a defense. Pending the suit, S.’s wife died, and the bill was' dismissed as against the children, at plaintiff’s request. Held, that as, under the laws of Kansas, the right of the wife in the homestead was only a right to be protected in its enjoyment during her life, the title remaining in the husband, S., could not, after his wife’s death, resist the enforcement of the mortgage.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an action by Gussie Leubrie against the Mutual Life Insurance Company of New York upon a policy of life insurance. In the circuit court a verdict was rendered for the plaintiff, and judgment entered thereon. The defendant brings error.</p>

<p>1. Contracts — Peufokmance—Affidavit of Defense.</p> <p>A contractor for certain government work, being sued on a subcontract,, under which a part of the work was to be done, set up, by affidavit of' defense (according to the Pennsylvania practice), that the work specified in the subcontract had not been completed according to the plans and specifications of the government architect, and had not been accepted by the government. Held, that the affidavit of defense was insufficient, in that it did not aver that the work was not done according to the contract between plaintiff and defendant.</p> <p>2. Same.</p> <p>An affidavit of defense, by a government contractor to the suit of a subcontractor, that the work undertaken by the latter was not completed according to the specifications of the government architect, and was not accepted by the government, field insufficient, for not stating that it was-hot completed according to the contract between the' contractors.</p>

<p>t. Mines and Mining — Right to Follow Dip — Making New End Lines.</p> <p>When the outcrop of a vein passes through one end line and one side line of a location, the locator may draw in the other end iine to tlie point of intersection of the vein with the side line, and abandon what lies beyond; and he will then have the same extralateral rights as if the claim had been so located in the first instance. 4 C. C. A. 329, 54 Fed. 284 and 9 C. C. A. 613, 61 Fed. 557. followed.</p> <p>2. Same.</p> <p>Even if the locator does not actually so draw in his end line, and abandon what lies beyond, a new end line will be considered as drawn at that point, and will have the same extralateral rights as if the claim had been so located in the first instance. 4 C. C. A. 329. 04 Fed. 284, and 9 C. C. A. 613, 61 Fed. 557, followed.</p> <p>3. Same — Following Dip — Prior Location.</p> <p>The owner of a location having extralateral rights cannot follow the dip within the side lines of a prior location, -which has the vein passing through both of its side lines, so that they are to be considered as end lines.</p>

<p>1. Master and Servant — Rule op Sane Place.</p> <p>Libelant, the mate of a vessel, was engaged in the between decks, with a gang of men, in loading lumber. A chute led from the wharf to a port In the vessel’s side, below the level of the wharf, and the pieces of lumber were placed in the chute by another set of men, under the charge of a foreman, on the wharf, and were allowed to slide down into the between decks. It was the duty of one of the men on the wharf to give a warning- cry when a piece of lumber was placed in the chute, in order to enable those below to get out of the way. If this warning cry was given, there was no danger to the men below, and the place in which they were working was in itself proper and safe, and the man to whom the duty of giving warning was intrusted was a competent and proper person. He omitted to give the warning at the time of sending a large piece of lumber down the chute, and libelant was struck by it, and injured. Held, that the master’s duty to furnish a safe place for his employes to work did not extend beyond employing a competent and proper person to give the necessary warning, nor include the actual giving of such warning in each particular ease.</p> <p>3. Y EGLIGENCE — FELLOW- SERVANTS.</p> <p>Held, further, that libelant and the workman on the wharf, who were 3>oth employed by the owner and engaged in the work of loading the vessel, were fellow servants, and the libelant, having been injured by the negligence of such workman, could not recover from the owner of the vessel.</p>

<p>L Customs Duties — Giant Umbrellas — Act Oct. 1, 1890.</p> <p>“Giant umbrellas,” being many-colored, fantastically decorated articles, of huge size, covered with paper, in the form of umbrellas, but not used or intended for use as such, are dutiable under paragraph 425 of the tariff act of October 1, 1890, as manufactures of paper, and not under paragraph 470, as umbrellas. 66 Eed. 783, affirmed.</p> <p>2. Same — Bamboo Blinds and Scrolls.</p> <p>Bamboo scrolls for wall decoration and bamboo blinds for window shades, composed of strips of bamboo, joined together by cords, are dutiable under paragaph 230 of the tariff act of October 1, 1890, as manufactures of wood. 66 Eed. 733, reversed.</p> <p>8. Customs Administrative Act — Practice — Failure-of Appellant to Appear.</p> <p>It seems that if an importer, who has appealed to the board of general appraisers from the decision of the collector as to the classification of merchandise, fails to appear pursuant to such board’s notification to show cause why the action of the collector should not be affirmed, the board is entirely justified in affirming the collector’s decision, without regard to its correctness.</p>

This was an' appeal from tbe decision of tbe circuit court reversing tbe decision of tbe board of general appraisers concerning certain articles imported by tbe Presbyterian Hospital in tbe city of New York.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an appeal from the decision of the circuit court (66 Fed. 740) affirming the decision of the hoard of general appraisers, concerning certain goods imported by Herman Oppenheimer.</p>

This was an appeal by Lahey & Duncan from a decision of the board of general appraisers, sustaining the action of the collector of the port of New York in respect to the classification for duty of certain imported goods. . The circuit court affirmed the decision of the board of general appraisers, and the importers appealed to this court.

<p>Trade-Mark — Monogram.</p> <p>One Alexis Godillot adopted a trade-mark consisting of the letters “A. G.” combined in a monogram, and used same for many years on groceries made by him in France, and sold hy him, and others under him, in the United States. In 1884 he sold the right to use the trade-mark in the United States to T. W. & Co., and such right afterwards passed to their successors, the T.-W. Co. In 1891 a receiver of the T.-W. Co. resold the right to Godillot. Afterwards the stock in trade of the T.-W. Co. was sold to the American Grocery Co., which began business at the former stand of the T.-W. Co., and adopted a mark consisting of the letters “A. G. Co.” in a monogram similar to Godillot’s, which it applied to cigars and coffee, and claimed the right to use, without restriction, in its business of dealing in groceries. Held, that the American Grocery Co. should be restrained from using such monogram.</p>

<p>Appeal from the Circuit Court of the United States for the East- • .era District of Pennsylvania.</p> <p>This was a suit in equity by the National Company and Otis Bros. & Co. against Thomas H. Belcher for alleged infringement of certain patents relating to devices for controlling the operation of elevators. Complainants appealed from a part of the decree below (see 68 Fed. 665) which declared certain of the patents sued on to be void.</p>

This was a bill in equity by John Rose against Hirsh & Bros, for alleged infringement of two patents for improvements in umbrellas.

<p>1, Patents for Inventions — Patentability—Novelty—Box Machine.</p> <p>Letters patent No. 244,919, issued July 26, 1881, to Gordon Munro, for improvements in machines for covering pasteboard boxes with paper, in which the paper is taken from a roll or coil and passed over a roller resting in a paste box, and over or under other rollers to a box resting upon a form adapted to revolve, are not void for want of novelty. Box Co. v. Wilson, 50 Fed. 425, followed.</p> <p>2. Same — Infringement.</p> <p>Said patent is not infringed by devices which do not use the alternate deflections of the strip of paper by means of rollers between the paste box and the construction frame, and do not support the strip in mid-air, after the manner of the patented machine.</p>

<p>1. Costs in Patent Suits.</p> <p>Costs will not be awarded to complainant, where some of the claims sued on are withdrawn at the argument, and others are adjudged not infringed, although the decree is in his favor as to others still.</p> <p>3. Practice in Patent Suits — Withdrawing Claims.</p> <p>The practice of withdrawing, at the hearing, claims of doubtful validity, is to be encouraged, as it simplifies the issues, relieves the ■ court and counsel of tedious and inconsequential investigation, and relieves the defendant from liability thereon, as completely as if they were declared invalid.</p>

This was a suit in equity by Harry Hardwick against Morris H. Masland and Frank E. Masland, trading as C. H. Masland & Sons, for alleged infringement of a patent for a carpet fabric.

<p>Patents — Anticipation—Box Straps.</p> <p>The Cary patent, No. 408,178, for a box strap having interlocking bosses struck up in it, for more strongly joining the ends, held not anticipated, valid, and infringed. 58 Bed. 786, reaffirmed.</p>

This was a libel by Francis Alexandre, owner of the steamship City of Alexandria, against, the steam tug Argus, to enforce an alleged lien arising from a collision of the steamer with a dredge in tow of the tug.

<p>Collision on River — Sloop with Steamer — Failure to Run Out Tack.</p> <p>A sloop which failed to run out her tack, but went about near mid-channel, without making- a careful observation of the river to see if she could safely do so, held solely in fault for collision with a steamer whose bows she then attempted to cross; it appearing that the steamer promptly re-' versed, which was the only thing she could do after the sloop’s intention became apparent. The alleged presence of certain mud scows in the path of the sloop held no excuse for not running out her tack, it appearing that she might easily have avoided them.</p>

<p>1. Admibalty — Negligence.</p> <p>The findings and conclusions in The Etona, 64 Fed. 880, in regard to negligence of the ship, approved.</p> <p>2. Same — Liability fob Acts of Pilot.</p> <p>When the cargo of a vessel is damaged in consequence of the negligence of a pilot in a foreign port, the bill of lading providing that claims for damage shall be settled by the law of England, without resort to the courts of any other country, the owner of such cargo cannot recover, here, in any event; for, if the ship could ordinarily be held liable for ■such negligence, either the stipulation in the hill of lading is valid, and prevents recovery, or it is invalid, and, the law of the United States governing, the third section of the Harter act protects the ship.</p>

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

<p>Injunction — Inequitable Contract — Banks and Banking — Corporations.</p> <p>A bill which seeks to restrain the sale by a bank of property pledged as collateral security to a note discounted by it, on the ground that the president of the bank secretly agreed that he would see to the payment of the note without sale of the collateral, does not state a casts for equitable relief, since such agreement, being against the interest of the bank, should not be enforced for the benefit of a party to it</p>

<p>Corporations — Mortgages—Virginia Statute.</p> <p>The F. Go., on August 2, 1890, conveyed certain land in Virginia to the 1\ Go. for a consideration, part of which was paid in cash, and the remainder W'as to be paid in deferred installments, secured by a deed of trust, which was executed, but not recorded. June 1, 1891, the P. Co. conveyed the same land to the G. Co. by a deed referring to the deed from the F. Go., and reciting an intention to transfer the property subject to all the terms of that deed. The G. Co. also expressly assumed the payment of the unpaid purchase money due the F. Go. Simultaneously, the G. Go. issued its bonds for the amount of such purchase money, payable to the F. Co. or bearer, and secured them by a deed of trust of the land. This deed of trust was recorded on December 30, 1891. At the time of the conveyance to the G. Go., the F. Go. executed a release to the P. Go. of, its mortgage, which release was recorded January 4, 1892. On June 27, 1892, the G. Go. was placed in the hands of a receiver appointed in a creditors’ suit. A general creditor of the company intervened, claiming that .the deed of trust made by the G. Go. to secure the bonds should be decreed to inure to the benefit of all the creditors- of the (J. Co. Bélá, that the provisions of section 1149 of the Code of Virginia, relating to liens created by corporations to secure preferences to creditors, did not apply, since the deed of trust was given to secure a debt contracted at the time, within the exception of that statute, and no ground of equity required the court to deprive a vendor of property of the lien created for the purchase money, for the benefit of general creditors.</p>

<p>Judgments — Lien—West Virginia Laws.</p> <p>Under the law of West Virginia, a judgment creditor, in order to reach the land of the judgment debtor, must file a bill in equity in aid of the execution, after a return unsatisfied in whole or in part. A judgment is a lien for 10 years upon the defendant’s land, if docketed in the county where the land lies. Plaintiff secured a judgment against H. in 1878, which was docketed in three counties. After the return of an execution unsatisfied, he commenced a suit in equity, in one of the counties, to subject land of H. in that county to the payment of the judgment. A final decree was entered in this suit in 1884, leaving the judgment partly unsatisfied. In 1893, plaintiff commenced a suit to reach lands in the other two counties where the judgment was docketed, which lands had in the meantime been sold to third parties. Held, that the first suit in equity was part of and ancillary to the judgment, as a mode of enforcing it, and kept that judgment alive, not only in the county where it was obtained, but in all the counties where it was docketed, until the entry of the decree in the equity suit, so that the 10-year period of limitation did not begin to run until that date.</p>

<p>1. Grant by State — Exclusive Privilege — New Jersey Constitution.</p> <p>The provision in article 4, § 7, par. 11 of the constitution of New Jersey, adopted in 1875, forbidding the grant to any corporation or individual of any exclusive privilege, immunity, or franchise, does not affect the validity of an act of the legislature, passed in 1861, authorizing a riparian proprietor to erect, hold, and enjoy a wharf in front of his land, and upon land belonging to the state, under tide water.</p> <p>2. Same — Consideration.</p> <p>Consideration is not necessary to a grant by a sovereign state.</p> <p>3. Same — Description.</p> <p>A grant to a riparian proprietor of the right to erect a wharf in front of his land is not objectionable for want of exact location, since that would be supplied by the wharf when built.</p> <p>4. Same — Estate Conveyed — Wharf.</p> <p>A grant to A. and B., their heirs and assigns, of the right to erect, maintain, and enjoy a wharf on land under water, belonging to the state, conveys a fee in the land under the wharf.</p> <p>5. Deed — Married Woman.</p> <p>A deed of land belonging to a married woman, which is executed by herself and her husband, and begins as a deed of both, but afterwards uses the singular number in referring to the grantor, and contains the husband’s covenants only, is sufficient to convey the wife’s title.</p> <p>6. Equity Practice — Premature Decree.</p> <p>In suit for foreclosure of a mortgage, the mortgagor was notified to appear on a day named and make answer. The bill was taken pro confesso on the day before. The mortgagor never appeared, and there was a final decree of foreclosure and sale. Held, that the mortgagor was concluded.</p> <p>7. Same — Irregularities—Decree of State Court.</p> <p>A suit was brought in a state court to quiet title under a former foreclosure suit. An administrator ad prosequendum of the estafe of the deceased mortgagor was appointed, and service was made upon him. A decree was made that nothing was due on the mortgage, and it was ordered to be canceled of record. The subpoena bore date of the return day. An appearance was entered for the administrator by the orator’s solicitors, and afterwards a decree pro confesso was taken, and an order for proofs made. Held, that none of these things constituted objections which could be urged against the decree of the state court.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>The Louisville, St. Louis & Texas Railway Company Is a corporation of the state of Kentucky, owning a line of railroad entirely within that state. Tinder bills filed by both general and mortgage creditors, a receiver was appointed in 1893 by the United States circuit court for the district of Kentucky, who has since been in the exclusive operation and possession of the entire railroad and other assets of the company. The Ohio Falls Car Manufacturing Company, claiming to be a creditor of the said railroad company, has filed an intervening petition, and claims priority of satisfaction over the mortgage creditors by reason of a statute of the state of Kentucky, passed March 20, 1870. That statute antedates both of the mortgages sought to be foreclosed in the principal suit. Sections 1 and 2 of that act read as follows:</p> <p>‘Section 1. When the property or effects of any railroad company, or of any owner or operator of any rolling mill, foundry or other manufacturing establishment, whether incorporated or not, shall be assigned for the benefit of creditors, .or shall come into the hands of any executor, administrator, commissioner, receiver of a court, trustee, or assignee, for the benefit of creditors, or shall in anywise come to be distributed among creditors, whether by operation of law or by the act of such company, owner, or operator, the employés of such company, owner, or operator in such business, and the persons who shall have supplied materials or supplies for the carrying on of such business, shall have a lien upon so much of said property and effects as may have been embarked in such business, and all the accessories connected therewith, including the interest of such company, owner, or operator in the real estate used in carrying on such business.</p> <p>“Sec. 2. The said lien shall be superior to the lien of any mortgage or other lucumbrance heretofore or hereafter created, and shall be for the whole amount due such employes as such, or due for such materials or supplies: provided that no president or other chief officer, nor any director, or stockholder of any such company, shall be deemed an employé within the meaning of this act.”</p> <p>The facts upon which the claim of priority is predicated are stated In the Intervening petition, and are substantially these: Prior to July 31, 1893, the Ohio Falls Car Manufacturing Company sold and delivered to the said railroad company, at Its special instance and request, a number of railway freight cars, for which a stated account was rendered July 31, 1893, showing a balance due of nine thousand dollars. The petition then alleges: “That on the 31st of July, 1893, and in consideration of the said indebtedness from said railway company to your petitioner, or to its use, the certain promissory notes of said railway company, Of said date, for the said sum of nine thousand dollars, due on August 30, 1893. Said note was, in form, payable to the Bank of America, of the city of New York; but it was executed to and for the use of your petitioner upon the consideration aforesaid, and it was indorsed and payment guarantied by . your petitioner.” It is further alleged that, upon default in payment by the railway company, the note was “taken up” by petitioner. The petition further charges that the said railway company, at the time it made the note, deposited with the Bank of America, to secure its payment, 14 mortgage bonds of the said company, of the denomination of $1,000 each, being second-mortgage bonds, and secured in one of the mortgages here being foreclosed. Concerning these bonds the petition says: “The said mortgage bonds your petitioner offers to produce and file for such disposition as the court may direct.”</p> <p>The note referred to is an exhibit, and is in these words:</p> <p>“$9,000. New York, July 31, 1893.</p> <p>“On August ilOth, 1893, after date, without grace, the undersigned, for value received, promise to pay to the Bank of America, or order, at its banking house, in the city of New York, in funds current at the New York clearing house, nine thousand dollars, having deposited with the said bank as collateral security for the payment of this and all other liabilities of the undersigned to the said bank, due or to become due. or which may hereafter be contracted or existing, the following property, viz.: Fourteen (14) general mortgage bonds of the Louisville, St. Louis and Texas By. Co., Nos. 4327 to 4340, both inclusive. The undersigned hereby agree to deposit with the said bank such additional collateral security as the said bank may from time to time demand, and also hereby give to the said bank a lien for the amount of all the liabilities aforesaid, upon all the property or securities at any time given unto or left in the possession of the said bank by the undersigned, and also upon any. balance of the deposit account of the undersigned with the said bank. On the nonperformance of the foregoing agreements as to furnishing additional collateral, or upon the nonpayment of any of the above-mentioned liabilities, then and in either such case the said bank is hereby authorized to sell, assign, and deliver the whole or any part of the said securities, or any substitutes therefor, or any additions thereto, or any other property at any time given unto or left in the possession of the said bank by the undersigned for safe-keeping or otherwise, at any broker’s board or at public or private sale, at the option of the said bank, or of either of its officers, without either advertisement or notice, which are hereby expressly waived. If such securities or property are sold at public sale, the said bank may itself purchase the whole or any part thereof, free from all right of redemption on the part of the undersigned, which is hereby waived and released. In the case of any such sale the said bank may first deduct all the-expenses for collection, sale, or delivery of the property or securities so sold, and may then apply the residue to any one or more or all of the said liabilities, whether due or not due, as either of its officers shall deem proper,, making proper rebate for interest on liabilities not then due,’ and returning the overplus, if any, to the undersigned, who shall remain liable to the said bank for any deficiency arising upon any such sale. The undersigned do hereby further authorize the said bank at its option, at any time, to -appropriate and apply to the payment of any of the said liabilities, whether now existing or hereafter contracted, any and all moneys now or hereafter in the hands of the said bank on deposit or otherwise, to the credit of or belonging to the undersigned, whether the said liabilities are due or not due. The undersigned further agree that, upon any transfer of this note, the Bank of America may deliver the said collaterals, or any part thereof, to the transferee, who shall thereupon become vested with all the powers and rights above given to the said bank in respect thereto; and the said Bank of America shall thereafter be forever relieved and fully discharged from any liability or responsibility in the matter.</p> <p>, “Louisville, St. Louis & Texas Railway Company,</p> <p>“[Seal.] ' - W. Y. McCracken, President." '</p> <p>Said noto is indorsed on back as follows:</p> <p>“In considera lion of the granting at m.v request, hereby made, of the loan evidenced by the within note, I hereby guaranty to the Bank of America, of the city of New York, its successors, indorsers, or assigns, the prompt payment of the said loan, and hereby consent that the securities for the said loan may be exchanged or surrendered from time to time, or the payment of said loan extended, without further notice to me or assent from me, and that I will remain bound upon this guaranty, notwithstanding such changes, surrender, or extension. The Ohio Falls Oar Man’f’g Co.,</p> <p>“By J. L. Smyser, Pt.”</p> <p>The petition asserted a lien, under the Kentucky statute, prior in right to any mortgage made by said company. The Central 'Trust Company, as mortgagee under both mortgages, demurred, in so far as any relief was sought against the mortgages. This demurrer was sustained, and the petition dismissed so far as it sought priority of satisfaction or asserted any lien against the property of the railway company.</p>

<p>Error to the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>This was an action at law by the United States against Gharles Loughrey and Miles H. Wheeler to recover the value of certain timber cut from lands which were included in the grant made to the state of Michigan by the act of congress of June 3, 1856, to aid in the construction of railroads. The case was tried to the court oh an agreed statement of facts, and judgment was given for defendants. Plaintiff brings error.</p> <p>The plaintiff in error sued the defendants in error in trover for timber cut from the N. % of the N. W. % of the N. E. % of section 13, township 44 N„ of range 35 W., in the state of Michigan. The complaint charges the cutting of the timber by one Joseph E. Sauve, and that he removed from the lands' 80.000 feet of timber so cut, and left the balance skidded upon the lands. The defendants are charged as purchasers from Sauve. The amount of timber cut by Sauve is alleged to have been 600,000 feet, and the time of the cutting in the winter of 1887-88, and prior to the 1st day of March. 1888.</p> <p>The case was tried by the court, without a jury, upon facts stipulated as follows: ’‘First. The defendants, prior to the 1st day of March, 1888, cut and removed from the north half (Y¿) of the northwest quarter (N. W. %), and the northwest quarter (N. W. Y¿) of the northeast quarter (N. E. %), and the southeast quarter (S. E. Yi) of the northeast quarter (N. E. %), of section thirteen (13), in township forty-four (44) north, of range thirty-five (35) west, in the state of Michigan, four hundred thousand (400.000) feet of pine timber, and converted the same to their own use. Second. That such cutting and taking of said timber by the defendants from said land was not a willful trespass. Third. That none of the -lands in question were ever owned or held by any party as a homestead. Fourth. That the value of said timber shall be fixed as follows: That the value of the same upon the land or stumpage, at $2.50 per thousand, board measure; that the value of the same when cut and upon the land, $3 per thousand, board measure; that the value of the same when placed in the river was $5 per thousand, board measure; that the value of the same wlien manufactured was $7 per thousand, board measure. Fifth. That the lands above described were a part of the grant of lands made to the state of Michigan by an act of the congress of the United States, approved June 3, 1850, being chapter 44 of volume 11 of the United States Statutes at Large, and that said lands were accepted by the state of Michigan by an act of its legislature approved February 14, 1857, being Public Act No. 126 of the Laws of Michigan for that year, and were a part of the lands of said grant within the ‘six-mile limit,’ so called, outside of the ‘common limits,’ so called, certified, and approved to said state by the secretary of the interior, to aid in the construction of the railroad mentioned in said Act No. 126 of the Laws of Michigan of 1857, to run from Ontonagon to the Wisconsin state line, therein denominated the ‘Ontonagon and State Line Railroad Company.’ ” Dated October 14, 1892. The finding of facts by the court was in accordance with the foregoing stipulation, Avith the additional finding that said railroad was never built, and said grant of lands was never earned by the. construction of any railroad. And, as conclusions of law, the court found: “First. That the cause of action sued on in this case did not, at the time of the commencement of this action, and does not now, belong to the United States of America. Second. That the defendants are entitled to judgment herein for the dismissal of the complaint upon its merits.” No exceptions Avere taken to the court’s findings of fact, and no requests to find were made. Exceptions were only taken to the- conclusions of law found by the court, and to its failure to find other and contrary conclusions.</p>

<p>1. Contracts — Validity—Membership in Railway Relief Fund.</p> <p>The Voluntary Relief Department of a railroad company was an organization formed to establish and manage a fund, made up of contributions by the members of the department and by the railway company, together with interest, gifts, etc., for the purpose of affording relief to disabled employés of the railway company, members of the department. Membership was confined to employés of the railway company, was purely voluntary, and could be terminated at any time. By the terms of his application, an employs of the railway company agreed that, if he should briug suit against tbe railway company for injuries suffered by him, payment of benefits from tbe relief fund should not be made till the suit was discontinued, or, if prosecuted, any payment on judgment or compromise should preclude any claim on the relief fund. Held, that the contract so made by an employé was valid.</p> <p>8. Constitutional Law — Liberty of Contract — Class Legislation.</p> <p>A statute of Ohio (87 Ohio Laws, p. 149) provides that no railroad company, insurance company, or association of other persons shall require any agreement or stipulation with any other person, in or about to enter the employment of a railroad company, whereby such person agrees to waive any right to damages from such railroad company for personal injuries, or any other right whatever, and all such agreements and stipulations shall be void. Held, that such statute violates the fourteenth amendment of the constitution of the United States, by depriving the persons affected by it of their liberty of contract, without due proeess of law, and also violates article 2, § 26, of the constitution of Ohio, providing that all laws of a general nature shall have uniform operation throughout the state; since such statute is class legislation, affecting only railroad employés, and accordingly that such statute is void.</p>

<p>1. .Ym;..soknci; of Railroad Company — Steer Running at Large.</p> <p>Where a steer, which, owing to its crippled condition, has been removed by a railroad company from a car to be killed, is allowed to recover, and, in an apparently vigorous condition, roam «.round the railroad yard, which ¡s open to the jiublic. without an attempt to control it. the company is liadle for one injured by the steer while passing through the yard.</p> <p>2. Samis — Independent Contractor.</p> <p>One engaged by a railroad company under a verbal contract to remove dead and maimed cattle from the railroad yard, who is paid in the same way and at the same time as laborers generally in the service of the company, and may be discharged in the same way, is not such an independent contractor That the company is exempt from liability for injuries caused by his failure to remove a crippled, but. dangerous, steer.</p>

<p>D. N. Brule was brought before the court upon a rule to show cause why he" should not be punished for contempt. The rule to show cause was issued upon an affidavit, duly filed, charging that Brule, on the 10th and 11th days of November, 1895, while the cause .of The United States v. James Heney was pending under indictment, and set for trial November 11th, knowing that one Joseph Langevin was a material and important witness for the United States in the Heney case, and that he would be subpoenaed by the government, did induce, persuade, and procure the said Joseph Langevin to avoid the service of any subpoena upon him, and to conceal and hide himself, and to that end paid to Langevin the sum of $400, and by that means did induce and procure Langevin to hide and conceal himself and to absent himself from the court, and did prevent the United States from using him as a witness upon the trial of the Heney ease. The materiality of the testimony of Langevin is fully set forth, as well as the knowledge of the facts by Brule. Brule appeared, and filed an answer denying all the averments in the affidavit. The jurisdiction of the court was questioned upon the grounds that appear in the opinion. All objections to the jurisdiction were overruled. Testimony was taken. The charges were sustained. Brule was adjudged guilty of contempt, and sentenced to three months in the county jail.</p> <p>Section 725 of the Revised Statutes reads as follows:</p> <p>“Tlie said courts sliall liave power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said courts.”</p> <p>Section 5399, Rev. St., reads as follows:</p> <p>“Every person who corruptly, or by threats or force, endeavors to influence, intimidate, or impede any witness, or officer in any court of the United States, in the discharge of his. duty, or corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three months, or both.”</p>

<p>Customs Duties — Classification—Pickled Herring.</p> <p>Herrings put up in kegs in a preparation of vinegar and spices, to which aro added small quantities of vegetables, such as onions and carrots, were dutiable as “pickled herrings,” under paragraph 294 of the act of 1890, and wore not subject to duty under paragraph 295.</p>

<p>Customs Duties — Classification—Gloves.</p> <p>Tinder paragraph 458 of the act of 1890, all gloves which aré not men’s gloves are to he classed together, as ladies’ or children’s gloves.</p>

<p>This was an appeal by Godwin & Sons from a decision of the board of general appraisers in respect to the classification for duty of certain merchandise imported by the appellants.</p>

<p>This was an appeal by (.he United States from a decision of the board of general appraisers holding that certain importations of sugar made by the American Sugar-Refining Company were not undervalued to the extent of 10 per cent., and consequently that the additional duty provided for by section 7 of the customs administrative act of 1890 in such cases could not be imposed.</p>

<p>This was an appeal by Zinn & Co. from a decision of the board of general appraisers in respect to the classification for duty of certain imported goods. The- board held that the goods were dutiable under paragraph 460 of the act of October 1, 1890, which reads as follows:</p> <p>“460. Manufactures of bone, chip, grass, corn, India rubber, palm leaf, straw, weeds, or whale bone, or of which these substances, or either of them, is the component material of chief value, not specially provided for in this act, 30% ad valorem.”</p>

<p>This was an appeal by the United States from a decision of the hoard of general appraisers in respect to the classification for duty of certain merchandise imported by Snow’s U. tí. Sample Company.</p>

<p>This was an appeal by E. S. Jaffray & Co., importers of certain velvet ribbons, from a decision of the board of general appraisers sustaining the action of the collector of the port of New York, in respect to the classification of the merchandise for duty.</p>

<p>Customs Duties — Classification—Verdigris.</p> <p>By the words “verdigris or subacetate of copper,” in paragraph 749 of the act of 1890, all merchandise which is known as verdigris, even though it be not subacetate of copper, was placed upon the free list.</p>

<p>Appeal on behalf of the United States from a decision of the board of general appraisers which reversed the action of the collector in assessing duty upon the merchandise in question.</p>

<p>Customs Duties — Classification—Periodicals.</p> <p>German novels translated into English, printed at stated intervals, and imported in pamphlet form, cannot be classed as “periodicals,” under paragraph 657 of the act of 1890, where there is nothing to show whether they were written in the present time or many years ago. Such publications are dutiable, under paragraph.423, as books, etc.</p>

<p>Appeal by the importers from a decision of the board of general appraisers which affirmed the classification of the collector upon the merchandise in question.</p>

<p>Customs Duties — Classification—Embroideries.</p> <p>Articles upon which the only embroidery consisted of a single, initial letter were not dutiable as “embroideries,” etc., under paragraph 373 of the act of 1890. U. S. v. Harden, 15 C. C. A. 358, 68 Fed. 182, applied.</p>

<p>Customs Duties — Classification—Toys.</p> <p>Para graph 436 of the act of 1890, and paragraph 321 of the act of 1894, in relation to toys, are identical in terms, except that the latter act imposes a duty of 25 per cent., instead of 35 per cent., and also provides that ■‘this paragraph shall not take effect until January 1st, 1895.” Held, that it was the manifest intent That the old paragraph should continue in force until the new one went into effect, and hence toys were dutiable thereunder until January 1, 1895.</p>

<p>Appeal on behalf of the United States from a decision of the board of general appraisers which reversed the action of the collector in assessing duly upon the merchandise in question.</p>

<p>Appeal by the importers from a decision of the board of géneral'appraisers which sustained the action of the collector in assessing duty, upon the importations in question.</p>

This was a suit in equity by Michael F. Davis against Henry Parkman for alleged infringement of two patents, relating, respectively, to improvements in rowlocks and in footboards for boats. In the first suit the bill was dismissed, and in the second there was a decree for complainant in respect to one claim of the patent in issue. 45 Fed. 693. Appeals were taken by both parties, and the records were consolidated.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a bill in equity by the Fuller & Warren Company against the town of Arlington for alleged infringement of letters patent No. 264,568, issued September 19, 1882, to William S. Ross, for furnaces for privies. The circuit court dismissed the bill, holding that the patent was void for want of patentable invention. 54 Fed. 166. ¡Complainant appeals.</p>

This was a suit in equity by Joseph Crossley against Frederick Duggan for alleged infringement of a patent relating to apparatus for molding earthenware.

This was a suit in equity by James Albert Caldwell and others, doing business as Caldwell & Co., against Charles S. Powell, for alleged infringement of a patent covering a design for a badge.

<p>1. Shipping — Parot, Charter Party — Bill op Lading.</p> <p>A parol charter party, actually made and established, will control a bill of lading which is inconsistent with it. Burrill v. Crossman, 65 Fed. 101, followed.</p> <p>2. Same — Demurrage—Arrival por Loading — Excusable Delay.</p> <p>A provision in a charter party that the vessel shall arrive ready for loading on a given day is subject to the perils of navigation, and failure, from such perils, to arrive on that day, does not excuse the charterers from performing their contract.</p> <p>8. Same — Lay Days.</p> <p>A stipulation for definite lay days binds the charterer to complete the lading within that time, and he is responsible for delay, even when caused without his fault, — as by a fire at the dock, which destroys the machinery depended on for loading. Burrill v. Crossman, 16 C. C. A. 381, 69 Fed. 750, and Davis v. Wallace, Fed. Cas. No. 3,657, followed.</p>

<p>Libel to recover $1,110.80 on a policy of insurance, covering a shipment of 500 cases of salmon on the bark Belle of Oregon on a voyage from Portland, Or., to New York. Decree for libelants in the sum sued for.</p>

<p>Maritime Liens — Wharfage—Contract witu Owners on Domestic Vessel.</p> <p>Where wharfage, together with the use of warehouses and piers for receiving and storing freight, were furnished to several vessels belonging to a domestic corporation for a single price per day, under a contract with it, held, that no lien arose — First, because the contract embraced other valuable considerations the supply of which would give no lien against th.e ship, and which could not be separated from the wharf-age proper; and, second, because the contract did not look to the credit of the ship, but only to the personal responsibility of the owner. 60 Fed. 760, affirmed.</p>

This was a libel in rem by William V. Abbott and others, owners of the schooner pilot boat D. J. Lawlor, against the fishing schooner Horace U. Parker, to recover damages for a collision whereby the Lawlor was sunk and lost. The district court rendered a decision holding the Parker solely in fault, and the claimants appeal. .