Volume 72 — Federal Reporter

<p>1. Error to Circuit Court of Appeals — Time of Suuxg Out Writ.</p> <p>The six months within which a writ of error to the circuit court of appeals must be sued out does not begin to run while a motion for a new trial is ponding. Railway Co. v. Murphy, 4 Sup. Gt. 497, 111 U. S. 488, applied.</p> <p>3. Same — Allowakoe of Writ.</p> <p>A formal petition for the allowance of a writ of error is not requisite to the vesting of jurisdiction in the circuit court of appeals. Therefore, where the writ was issued by the clerk of a circuit court without the filing of any petition therefor, or the allowance thereof by any judge, but the judge subsequently, and within the time limited, (signed a bill of exceptions and a citation, held, that this was sufficient to give jurisdiction to tlie appellate court.</p>

<p>Removal o> , bes — Separable Controversy.</p> <p>G., as administrator of J. F. 8., deceased, brought a suit in a court of the state of Indiana against W. H. B., a citizen or New York, and C., a citizen of Indiana, for an accounting of the affairs of a partnership composed -of J. F. B. and W. tí. B., the assets of which were alleged to consist in part of real estate purchased for partnership purposes. It was averred that such real estate was originally conveyed to C., who held it in trust for the lirm for a ti me, and then conveyed it to her mother, who held it in trust for the firm until she died, intestate, leaving C., J. F. B., and W. H. B. as. her heirs; and that, after her death, G. and J. F. B. conveyed their interests to W. H. B., in trust for the firm; but that both C. and W. H. B., respectively, claimed the land as their individual property, C. claiming that the deeds made by her were procured by'the fraud of W. Bí. B. Held, that C. was a necessary party to the suit, and there was no separable controversy between the plaintiff ana W. H. B. which could be removed to the federal court.</p>

<p>Federal Courts — Jurisdiction—Suit to Determine Validity of Will.</p> <p>The federal courts have no jurisdiction, either original or upon removal from a state court, of a suit instituted to determine the validity of a will, as a preliminary step in determining whether its probate should be granted or denied.</p>

<p>Circuit Court of Appeals — Jurisdiction— Bankruptcy.</p> <p>The circuit court of appeals has no jurisdiction to review the decisions of the circuit court in bankruptcy proceedings.</p>

This was a bill bj Benson Bidwell and others against the Toledo Consolidated Street-Railway Company for alleged infringement of a patent. The cause was heard upon an application by complainants for leave to amend their bill by making the General Electric Company a party defendant.

<p>This was a petition by Uriah B. Buskirk for a writ of habeas corpus.</p>

<p>1. Appeal — Injunction—Restraining Waste Pending Ejectment.</p> <p>Pending an ejectment, suit was brought to enjoin the defendant from cutting timber. The answer to the bill averred that defendant expected, on the trial in ejectment, to rely on a forfeiture of plaintiff’s title for nonpayment of taxes, and to show outstanding title in the state; but it made no allegations properly presenting the question of forfeiture to the equity court, there being no statement for what years the land was not entered for taxation, or for what years, or in what counties, it was delinquent and forfeited. Held that, as the question of forfeiture was not properly presented, and was evidently not considered by the court below before granting the injunction, it would not be considered on an appeal.</p> <p>2. Issuance of Injunction.</p> <p>Where an injunction is sought merely to preserve the status quo pending an action of ejectment by restraining defendant from cutting timber, complainant is not required to make out such a case as will entitle him ■to a decree on final hearing, and it may happen that an injunction is properly granted, although the ultimate relief s'ought is finally denied.</p> <p>3. Same.</p> <p>If the mischief complained of is irremediable, and destroys the substance of the property, as in the case of cutting of timber and extracting ores, an injunction will issue in order that the property may be preserved from destruction during such time as may be necessary to try the title at law.</p>

<p>Railroad Receivers — Ancillary Appointment — Court of Primary Jurisdiction — Comity.</p> <p>A creditors’ bill, by the Farmers’ Loan & Trust Company and other creditors, was filed against the Northern Pacific Railroad Company in the circuit court of the United States for the Eastern district of Wisconsin. The bill alleged that the railroad company had property in that district, and at the time it was operating the Wisconsin Central Lines within that district, which lines were subject to the Northern Pacific mortgages. That court appointed receivers, as prayed by said bill, and the appointment was consented to by the railroad company. Immediately afterwards similar bills were filed in other United States circuit courts in which the Northern Pacific Railroad Company had property. All these other courts, under the rule of comity, appointed the same receivers, as ancillary to the appointment in the Eastern district of Wisconsin. After the receivers had operated the Northern Pacific road, including leased lines in Wisconsin, about a month, the lease was canceled by the lessor, for nonpayment of rent, and the leased lines turned back to the Wisconsin Central Company. Shortly afterwards the Farmers’ Loan & Trust Company filed in the same court a bill to foreclose mortgages on the Northern Pacific Railroad, and this suit was consolidated with the first suit, and the same receivers appointed. Like foreclosure suits were brought in each of the other circuit courts, on ancillary bills of foreclosure, and the same receivers appointed in each court. The administration of the property continued for about two years under the circuit court for the Eastern district of Wisconsin, and with the consent of all parties to the suit.- The jurisdiction of that court had never been objected to or challenged in that court. In August, 1895, the railroad • company filed an affidavit in the ancillary suit pending in the circuit court for the district of Washington, and asked to have the order appointing receivers made in that court vacated. The ground alleged was that the railroad company had no railroad or property situated in the Eastern district of Wisconsin, and it was therefore claimed that the latter court had no jurisdiction, and other courts were not bound, under the rule of comity, to recognize its primacy and administer the estate as ancillary courts. It was held, after argument, in the circuit court for the district of Washington, that the said circuit court for the Eastern district of Wisconsin had no jurisdiction, and the court in Washington was bound to administer that part of the property lying within its territory in an independent manner. The circuit court for Washington therefore appointed its own receiver, and removed the receivers theretofore acting. Similar orders were made in the United States circuit courts for Oregon, Idaho, and Montana, each of these courts appointing its own independent receivers. Held, — overruling Farmers’ Loan & Trust Co. v. Northern Pac. R. Co. (Cir. Ct. Wash.) 69 Fed. S71, — that the circuit court for the Eastern district of Wisconsin should bé regarded as the court of primary jurisdiction, and that the proceedings in all other courts should be ancillary in character, and in aid of the proceedings in the court of primary administration.</p>

<p>1. Foreign Insurance Companies — Service op Process — Jurisdiction.</p> <p>The Indiana statute of 1883 makes it unlawful for any foreign insurance company to do business in that state until it has filed with the auditor of state a copy of a resolution of its directors consenting that, “in any suit against the company,” process may be served on any of its agents in the State, “with like effect as if such company was chartered, organized'or incorporated in the state,” and further agreeing that such service may be made “while any liability remains outstanding against such company in the state.” Burns’ Rev. St. Ind. 1894, § 4916. Held, that a foreign insurance company which has complied with these requirements may be validly served, in the manner above prescribed, not only in suits upon obligations arising out of business done within the state,. but in suits upon contracts of insurance made and payable in other states. Rehm v. Saving Inst, 25 N. E. 173, 125 Ind. 135, distinguished.</p> <p>2. Garnishment Process — Jurisdiction.</p> <p>In garnishment proceedings against a debtor of a defendant who cannot be personally served, because he resides out of the state, the jurisdiction of the court does not depend upon the situs of the debt, but upon the control which is obtained over the debtor by means of due process, duly served.</p> <p>8. Same.</p> <p>Where the principal debtor is a citizen of another state, a valid judgment may, by garnishment proceedings, be obtained against a foreign insurance company indebted to him, when, by the laws of the state and by its own consent, such company has become subject to service of process in the state “with like effect” as if it had been incorporated therein.</p>

<p>1. Customs Duties — Classification — Philosophical and Scientific Afpa-batus.</p> <p>Microscopes and a movable object table held to be “philosophical and scientific apparatus,” within the meaning of paragraph 677 of the act of 1890. Contra, however, as to a microscope case imported without a microscope. ' ‘</p> <p>2. Same — Philosophical Societies or Institutions.</p> <p>The College of Physicians and Surgeons, which is known as the “Medical .School of Columbia College,” is an “institution” for whose use ' philosophical and scientific apparatus may be entered free of duty, under paragraph 677 of the act of 1890.</p> <p>3. Same,</p> <p>A microscope imported by a physician or surgeon who swears that it is for use in his laboratory, of which he is the instructor (being evidently a laboratory for clinical purposes), is to be regarded as imported for the use of an “institution,” within the meaning of paragraph 677 of the act of 1890. But a microscope imported by- one who swears that he is to be instructor of a class of histology at Greenville, in the state of South Carolina, is not to be so regarded, in the absence of evidence to show that such a class is in existence.</p>

<p>Customs Duties — Classification—Needle Cases.</p> <p>Where needles not subject to duty are imported in cases of a form in which they have been imported for from 10 to Ü0 years, the court will not be justified in finding that such cases were designed for a different use, especially where they are evidently of cheap construction, and purport on their face to be needle cases. Therefore they will be entitled to free entry, under section 10 of (lie customs administrative act of June 10, 1890,and eannot be subjected 1o duty according to the imperials of which they are made.</p>

<p>Customs Duties — Classification—Parasol Covers.</p> <p>Parasol covers of silk, with an overwork finish of netting and figured silk, were dutiable as “manufactures of silk,” under paragraph 414 of the act of 1890, and not as “laces,” under paragraph 413.</p>

<p>Customs Duties — classification—Rattan Sticks Foe Whip Handles.</p> <p>Rattan sticks for whip handles, painted, polished, and nearly completed, were dutiable as “manufactures of wood,” under paragraph 230 of the act of 1890, and not as “reeds, wrought or manufactured from rattans or reeds,” under paragraph 229. In re Foppes, 56 Fed. 817, followed.</p>

<p>Customs Duties — Reimportation of American Manufactures — “Shooks. ”</p> <p>This was an appeal by one Merendante from a decision of the board of general appraisers imposing a duty upon certain barrels which had been manufactured in this country and exported in the form of “shooks.” The circuit court, per Wheeler, Circuit Judge, reversed the decision of the appraisers, delivering the following opinion:</p> <p>“Sbooks, when returned as barrels,” are free of duty; but proof of identity is to be “made under general regulations to be prescribed by the secretary of the treasury.” These are shooks so returned; but that proof of identity has not been made, for no such regulations appear to have been so prescribed. Such proof appears to have been provided for as a further safeguard of identity, but not as exclusive. The fact of identity has been made to appear, and is not disputed. Nothing more could be made to appear by any proof, however prescribed. The failure to prescribe leaves the fact without further requirement to have its effect. Judgment reversed.</p>

<p>Appeal by Dominici & Marino, importers, from a decision of the board of general appraisers which sustained the action of the col-1 lector in assessing duty upon certain merchandise.</p>

<p>Appeal by F. W. Stemmier & Co., importers, from a decision of the board of general appraisers which sustained the classification of the collector in assessing duty upon the merchandise in question.</p>

<p>Appeal by the importer from a decision of the board of general appraisers which affirmed the action of the collector in assessing duty upon certain merchandise.</p>

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

<p>Appeal by Stachelberg & Co., importers, from a decision of the board of general appraisers which sustained the classification by the collector of certain tobacco in bales.</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 relation to certain merchandise imported by Benjamin & Oaspery.</p>

<p>Customs Duties — Classification—Nail Cleaners.</p> <p>Silver-handle nail cleaners were dutiable as “manufactures of metal,” under paragraph 215 of the act of 1890, and not as “files,” under paragraph 168, though they may have had a file attached to them.</p>

Appeal by llenad, Bruckman & Lorbacher, importers, from a decision of tbe board of general appraisers which sustained the action of the collector in assessing duty upon the merchandise in question.

This was a suit in equity for infringement of a copyright in a painting entitled “Die Heilige Ciicilie.” The artist was Gustav Naujok, a citizen and resident of Germany. The painting was completed in 1891. From January, 1892, to March, 1892, the picture was publicly exhibited by' the artist at Berlin, Germany; and at Munich, in the summer of 1892.

This was a suit in equity by Ella B. Dunham', administratrix, against James M. Bent and otheis, for alleged infringement of a patent. Defendants demurred to the bill.

This is a suit by the Young Reversible Lock-Nut Company against the Young Lock-Nut Company and others, for infringement of letters patent No. 447,224, issued February 24, 1891, to Levi H. Young, for a device for locking nuts. A preliminary injunction was heretofore denied. 66 Fed. 563. The bill is based exclusively on the patent, as in ordinary infringement suits.

<p>1. Patents — Infringement—Carpet Sweepers.</p> <p>Where a patent for an improvement in carpet sweepers embodies mechanism whereby one end of the brush roller may be pressed downward, so as to sweep more heavily, simply by exerting additional pressure upon the handle, thus accomplishing a new and useful result, an infringement of the patent is not avoided by simply duplicating the mechanism so that the brush roller may be pressed downward at both ends; for this, though an improvement, is a mere change in degree, and a carrying forward of the same idea.</p> <p>2. Same — Claims for Improvements.</p> <p>Where a patent was limited to a specific improvement upon a certain part of the mechanism of carpet sweepers of the kind which have the brush roller operated by friction driving wheels, held, that it was not necessary that the claims should include, as an element of the combination, the brush roller itself, where the specifications fully described the' machine, and pointed out all the elements necessary to construct it; for a patent is addressed to those familiar with the art, and need only point out distinctly the part claimed as new, so as to advise the public as to the extent of the invention.</p> <p>3. Same — Sufficiency of Specifications — Description of the Function of a Patent.</p> <p>The function or principle which the inventor is required to clearly describe is the mode of operation proper to his mechanism or structure, and not the results, effects, or advantages achieved thereby; and if these results, effects, and advantages are the immediate result of the structure and mode of operation, the patentee is entitled to the benefit thereof, whether, at the time of applying for his patent, he understood all of its beneficial results or not.</p> <p>4. Same — Carpet Sweepers.</p> <p>The Plumb patent, No. 233,371, for an improvement in carpet sweepers, In which the brush roller is operated by friction driving wheels, and whereby the brush roller may, at the will of the operator, be pressed down, so as to sweep heavy or light, thus giving it a “broom action,” construed, and held valid and infringed.</p> <p>On Rehearing.</p> <p>6. Same — Limitation op Claims.</p> <p>Concluding a claim with the words, “when constructed as and for the purpose described,” held not to limit the patent to one only of the obviously beneficial functions of the combination, where the specifications themselves contained a broader declaration of the purposes and objects of the invention.</p> <p>6. Appeal prom Interlocutory Order por Injunction.</p> <p>On'appeal from an interlocutory order granting an injunction after a final hearing, where the circuit court of appeals necessarily considered and expressed an opinion upon the merits, held that, upon affirming the decree below, the court was not called upon, at that stage of the case, to determine the effect of this affirmance in case of a subsequent appeal from the final decree; and held, that the mandate should simply recite that the court finds no error in the decree awarding the injunction.</p>

In this case the original libel was filed by Jacob Nelson against the steamship Willamette to recover damages for personal injuries received in a collision. Several intervening libels were afterwards filed, a statement of which, and of the various proceedings heretofore had, both in the court below and in this court, will be found in the report of the decision rendered here on September 18,1895. 70 Fed. 874.

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

<p>Appeal — Dismissal—Delay in Furnishing Recoups and Briees.</p> <p>Where the ease is docketed and the record filed before the return day, as prescribed by rule 10 of the circuit court of appeals for the Fourth circuit (11 C. C A. cvi., 47 Fed. vil.), the appeal will not be dismissed, although the appellant so long delayed the filing of the record that it was impossible for him to file and furnish to the opposite parties the printed copies of the record and of his brief within the times prescribed by rules 2S and 24 (11 C. C. A. lii., 48 Fed. iii.).</p>

<p>■Equity — Jurisdiction—Adequate Remedy at Law — Suit to Remove Cloud on Title.</p> <p>A suit in equity, to remove a cloud upon complainant’s title to land and exclude defendant from such land, cannot be maintained, in a federal court, when the defendant is in possession of the land and the complainant is not, the' remedy at law being adequate and complete; and a local statute, permitting the bringing of such suits in the state courts, does not enlarge the power of the federal courts to entertain the same.</p>

<p>Practice — Allowance to Counsel — Appeal.</p> <p>An order making an allowance to counsel in a foreclosure suit, made after investigation by tlfe court with the aid of experts, should not be disturbed on an appeal taken by parties who had full opportunity to make objection to the order, but produced no evidence tending to indicate their own view of what the allowance should be.</p>

<p>1. Homestead — Op Wipe Distinct prom Husband.</p> <p>During coverture, and while the husband and wife are living together, there can be no such thing as a separate homestead of the wife, distinct from that of the husband.</p> <p>2. Deeds — Alteration—Evidence.</p> <p>In order to justify a finding that material words, essentially altering the effect of the instrument, have been introduced into a certificate of acknowledgment of a deed after the execution of the deed and the signing of the certificate, the testimony that such alterations were so made should be quite convincing.</p>

<p>On application of Charles Hamlin and others to be made parties defendant.</p>

This was an action at law by W. Vance Brown and others, children and heirs at law of J. Evans Brown, deceased, and William B. Carter, against the Cranberry Iron & Coal Company, to establish title to an undivided half interest in certain mines and mineral interests, as tenants in common with the defendant. ' The action was brought pursuant to leave given in a suit in equity previously brought by the plaintiffs for partition.

This was a bill by W. Vance Brown and others, children and heirs at law of J. Evans Brown, deceased, against the Cranberry Iron & Coal Company, for partition of certain mining lands. The bill was dismissed by the circuit court, and complainants appeal.

<p>1. Pbacticb — Peeliminahv Ixjujíctiox — SeouhttY fob Damages.</p> <p>A suit was instituted by an agent of tbe complainant to restrain the production of a play by defendants. It appeared that complainant was entitled to a preliminary injunction, but the complainant being a nonresident alien, and the defendants questioning the right of his agent to bring the suit, held, that security for damages resulting from the Injunction, if the defendants should ultimately prevail, should be required, as a condition of granting it.</p> <p>2. Contracts — Breach—Waiver—Approval op Cast op Plat.</p> <p>L., a resident of London, made a contract with C., a resident of New York, by which he gave to C. the right to produce a certain play, upon the condition, among others, that C. should “submit to the said L. for his approval the names of the various artists to be engaged for the performance of the play.” On December 20, 1895, C. wrote to L. at London, sending him a list of the proposed cast for the play, and on December 25th, before the letter could have reached L., commenced the performance of the play. L. replied to the letter, without expressing disapproval of the cast, but it did not appear that he then Knew that performances had been begun. Held, that C.’s performance of the play before the letter submitting the cast could have reached L. was a violation of the contract, which, under a clause providing that a failure to comply therewith should forfeit all rights, entitled L. to an injunction, and that there had been no waiver of the breach by L.</p> <p>8. Same — Interpretation.</p> <p>Held, further, that the plain terms of the contract could not be affected by evidence of the purpose of such conditions or of the interpretation commonly placed upon them by theatrical managers.</p> <p>4 Same — Waiver—Second Breach.</p> <p>It subsequently appeared that O. informed L. of the performances commencing on December 25th, and remitted to him the agreed percentage of the receipts therefrom, which L. accepted without objecting to the cast, and this was claimed as a waiver of the breach; but it also appeared that O. had afterwards made substantial changes in the cast, without submitting the names of the actors to L. Held, that the waiver did not apply to the second breach, and the injunction should not be vacated.</p>

<p>1. Mortgage Foreclosures — Federal Equity Jurisdiction — Deed Absolute in Form — State Statutes.</p> <p>A deed absolute in form, given as security for a loan of money, and executed contemporaneously with the debtor's notes and with a bond to reconvey, given by the grantee, all in accordance with the provisions of the Georgia Code (sections 1969-1971), may be foreclosed as a mortgage, by''a suit in equity in a federal court, notwithstanding that the above Code provisions give a-special remedy at law; for the equity jurisdiction of the federal courts cannot be limited by state legislation.</p> <p>2. Same — Presentment oe Note for Payment.</p> <p>Failure to present a note for payment at a bank where it is made payable, but where the maker at the time has no funds, and in a state in which he does, not reside, is no' defense to a suit to foreclose a mortgage securing the debt, where the note contains an express stipulation that the maker and indorsers severally waive presentment for payment, etc. 69 Fed. 682, affirmed.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Alabama.</p> <p>This was a suit by A. II. Meader, trustee of the Blymer Ice Machine Company, against the Bridgeport Electric & Ice Company, to declare and foreclose an equitable mortgage. The circuit court rendered a decree for the complainant. Defendant appealed.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia.</p> <p>The appellant, administrator of O. O. Patterson, deceased, filed his petition-in the case of W. P. Clyde vs. Richmond & Danville Railroad Company, wherein receivers had been theretofore appointed'by the circuit court. His petition set forth, in substance, that his intestate had been employed by the receivers as a brakeman on one of their trains, and that on 21st June, 1892, while in the discharge of his duty as brakeman, the said Patterson met his death by an accident caused by the negligence of the said receivers or their agents. The prayer of the petition was, either that he be allowed to sue the receivers for damages in the circuit court for the Eastern district of Virginia on its law side, or that he be made a party in the main cause, and thereupon an issue be directed out of chancery to settle the facts and to award damages, pursuant to the provisions of a statute of the state of Virginia in such case made and provided. Hearing the petition, tho circuit court (his honor, Judge Goff, presiding) directed an issue out of chancery to ascertain the facts of the claim and award damages if proper. The petitioner was made the actor in these proceedings, and the issues were directed as follows; (1) Whether 0. 0. Patterson came to his death through the negligence of the receivers of the court in this cause, or their agents, as averred in the petition. (2) What damages, under the Virginia statute, the petitioner is entitled to recover from the receivers, and to whom and in what proportions said damages should be awarded.</p> <p>These issues were made up, and were tried in the circuit court before his-honor, Judge Hughes, and a jury. A verdict was found for the petitioner-in the sum of $5,0u0. The proceedings in the cause, with the testimony, re'quests to charge, rulings of the presiding judge, and his charge, were certified to the court of chancery; and, upon consideration thereof (his honor,. Judge Hughes, presiding), the verdict was set aside, and a new trial granted. The issues were again tried in the circuit court before his honor, Judge-Hughes, and a jury, and a verdict again rendered for the petitioner for $5,000. This verdict was set aside by the trial court, and all of the proceedings on the trial of the issue, with the testimony, the exceptions taken at the trial, requests to charge, and charge of the trial judge, and his ruling as to the verdict, were. certified to the court of chancery. In that court (his-honor, Judge Goff, presiding), the petitioner moved the court to confirm the-verdict. The court, having considered the petition, all the evidence adduced at the two trials heretofore ordered, and the verdicts and other proceedings had at said trials, held that the petitioner had no cause of action against ihe receivers because of the death of his intestate, and dismissed his petition. Thereupon the petitioner appealed to this court to reverse the decree.</p>

<p>In Error to the Circuit Court of the United States for the ^Northern District of Mississippi.</p> <p>“Declaration.</p> <p>“In the United States Circuit Court for the Eastern Division of the Northern District of Mississippi. To the October Term, 189-1.</p> <p>“J. H. Levy, Plaintiff, vs. S. Abraham, Defendant.</p> <p>“The plaintiff, J. H. Levy, a citizen of the state of Louisiana, complains of S. Abraham, defendant, a citizen of the Eastern division of the Northern district of Mississippi, of a plea of trespass on the ease upon promises, for that whereas heretofore, to wit, on the 7th day of December, 1891, the said S. Abraham was the indorser upon, and liable to pay, two certain promissory notes, dated Durant, Mississippi, February 28th, 1891, — one payable December 15th, 1891, for the sum of §2,674.77, the other dated at the same iimo and place, payable January 15th, 1892, for $2,094.63, — both payable to the Union National Bank at New Orleans, and payable in the city of New Orleans at their respective maturities, signed by L. Simon & Co., indorsed as aforesaid by S. Abraham, and which paper was then, on the 7th oí December, 1891, held by said bank; and for the payment thereof, with interest after maturity, the said S. Abraham was bound, and, being so bound, he, the said S. Abraham, on said last-mentioned date, requested plaintiff to pay off and protect said paper for him, the said S. Abraham, and promise to pay to plaintiff on demand the amount so paid out Dy plaintiff in paying' said notes, and any loss or expense that he, the said plaintiff, might sustain in the effort 1o collect said indebtedness, or any loss that ho might sustain in consequence of taking up said loan and the steps necessary to reimburse himself. Plaintiff now avers that, upon such request of defendant, plaintiff, on the 18th of December, 1891, paid to the Union National Bank, on account of the note maturing 15th of December, 1891, the sum of §2,674.77, and on the 38th of January, 1892, at defendant’s said request, plaintiff paid the other notes, maturing the 15th of January, 1892, to the Union National Bank, the sum of $2,691.63; that in order to collect the indebtedness represented by said notes from the said L. Simon & Oo., and thus protect the defendants, he brought suit against L. Simon & Co., and prosecuted the suit with due diligence, and received and collected from such suits on said indebtedness, on the 21st of February, 1894, ¡5330.81, and no other sum; that L. Simon & Co. are insolvent, and no more can be made from them upon said judgments. Plaintiff further avers that defendant was to pay 8 per cent, per annum interest upon the amount thus expended and paid out by plaintiffs from the date of such payments until the defendant should reimburse him; and so it is that, under and pursuant to said request and promise made by defendant to plaintiff, he has paid out the aforesaid sums, and on the 21st day ol February, 1894, rendered a statement to defendant, which is hereto attached, marked 'Exhibit A,' exhibiting a balance then at that time due by defendant to plaintiff of $5,966.21. The same consisting of the amounts paid to said bank, and interest thereon from dates of payment, calculated to March 1st, 1894, less the credit, $330.84, proceeds of collection on the judgment against L. Simon & Co., plaintiff stated and represented said account, exhibiting such balance dne, and demanded payment thereof from defendant; but the said defendant, though admitting the indebtedness thus due by his express contract, and promising to pay the same, has not paid said sum, or any part thereof, but wholly fails and refuses so to do; and thus it is that plaintiff has now incurred the other and further loss and expense of an attorney’s fee of 10 per cent, upon the amounts due, such attorney's fee being $596.62, in order to collect said balance from ihe defendant by bringing tills suit. Plaintiff therefore demands judgment against said defendant for 'the balance thus due him, and said attorney’s fee, with interest and costs of suit. Said notes, or copies thereof, are hereto attached, marked Exhibits ‘B’ and ‘O,’ and a copy of said promise and request Is marked ‘Exhibit D,’ and each and all thereof made parts of this declaration. Plaintiff demands a trial and judgment at first term.</p> <p>“July 21st, 1894. W. Y. Sullivan, Plaintiff’s Atty.”</p> <p>“Exhibit D.</p> <p>“Kosciusko, Miss., Dec. 7, 1891.</p> <p>“Mr. J. H. Levy, New Orleans, La. — Dear Sir: I now confirm a reguest to be delivered to you in person through Mr. Mose Shlenker, as follows: That you protect the two notes made by L. Simon & Co. to Union National Bank, maturing December 15-18, 1891, and Jany. In-18, 1892, for $2,674.77 and $2,-694.63, respectively, on which I am indorser; and 1 hereby waive protest and notice of protest on same, and ratify any action of yours in the payment of the two notes to the bank and in their collection, obligating and binding myself to be responsible to you, and to pay on demand any loss or expense that you may sustain in the premises.</p> <p>“[Signed] S. Abraham.”</p> <p>“Demurrer to Declaration.</p> <p>“The United States of America, Circuit Court, Northern District of Mississippi. October Term, 1894.</p> <p>“J. H. Levy vs. S. Abraham. 273.</p> <p>“And the said defendant, by his attorneys comes, and demurs to plaintiff’s declaration in this cause, and prays judgment if he shall make any other or further answer thereto. And he assigns the following grounds of demurrer, to wit: (1) Because the said declaration sets out no specific legal'grounds of action. (2) Because the declaration fails to state any cause of action in ordinary and concise language. (3) Because it does not appear from said declaration whether the plaintiff is suing upon promissory notes, or upon an account stated, or in assumpsit for money paid. (4) Because the defendant is impeded and hindered in his defense by the vague and indefinite character of the said declaration. (5) Because said declaration asks for eight per cent, interest upon a verbal contract. (6) Other good grounds of demurrer.”</p> <p>“Order Overruling Demurrer.</p> <p>“J. H. Levy vs. S. Abraham. 273.</p> <p>“Came the parties by attorneys, and thereupon came up to be heard, and was by the court heard, defendant’s demurrer to the declaration in this cause; and, after hearing the same and due consideration thereof by the court, it is considered by the court that said demurrer be overruled.”</p> <p>“Plea.</p> <p>“In the Circuit Court of the United States for the Eastern Division of the Northern District of Mississippi. October Term, A. D. 1894.</p> <p>“J. H. Levy vs. S. Abraham. 273.</p> <p>“And the said defendant, by his attorneys, comes, and defends the wrong and injury when, etc., and says that he did not undertake and promise in manner and form as the said plaintiff has above complained in his said declaration, and of this he puts himself niton the country.</p> <p>“Sykes & Bristow,</p> <p>“W. A. Haden,</p> <p>“Attys.”</p> <p>“Defendant’s Notice to Plaintiff'.</p> <p>“And the said defendant now gives notice that under the above plea, and on the trial of said cause, he intends to give in evidence the following: That at and before said plaintiff paid the amount of the two notes to the Union National Bank as alleged in his declaration, to wit, on or about December 5th, 1891, L. Simon & Co., the makers of these notes, paid to said plaintiff the sum of five thousand dollars in cash, for the express purpose and with the agreement and understanding that plaintiff would apply said sum of money so handed him to the payment of said notes, the note falling due December 15th, 1891, to be fully paid off out of said money by said plaintiff; and whatever was lacking to pay off said note maturing January 15th, 1892, was to be furnished by plaintiff under the agreement made by and between him and said L. Simon & Oo., at said time. It being further agreed and understood between plaintiff and said L, Simon & Oo. that this defendant, S. Abraham, who is and was a mere aceommodation indorser on said notes, should be fully protected and suffer no loss or inconvenience on account of same. And said defendant will further prove that at the time he made the writing Exhibit D, attached to plaintiffs declaration, he had no knowledge that the above sum of money had been paid to or deposited with the said plaintiff, as above set forth by the said L. Simon & Oo., or that the agreement and understanding aforesaid for his protection in the premises had been made and entered into between said plaintiff' and L. Simon & Go.”</p> <p>“Order Taking Cause under Advisement.</p> <p>“J. H. Levy, Plaintiff, vs. S. Abraham, Defendant. 273.</p> <p>“This cause having been tried and heard on a former day of this term of this court, the 5th inst., by the court, a jury being waived or dispensed with, by consent of parties, and the court, as yet not being fully advised in the matter, hereby orders and takes the same under advisement, to be decided in vacation as of the date of the trial as stated.”</p> <p>“Judgment Court, as of 5th April, 1895.</p> <p>“In the United States Circuit Court for Eastern Division of Northern District of Mississippi. April Term, 1895.</p> <p>“J. H. Levy, Plaintiff, vs. S. Abraham, Defendant. 273.</p> <p>" “This day came on this cause to be heard, and issue being joined, and a jury being waived, the court heard all the evidence and the argument of counsel pro and con, and, being satisfied in the premises, doth consider and so adjudge that the plaintiff, J. H. Levy, do have and recover of and from the defendant, S. Abraham, the sum of six thousand and eighty-three dollars and eighty cents, and all costs in this behalf expended, for which execution may issue. To which action of the court defendant then and there excepted, and was allowed sixty days in which to lile his bill of exceptions.</p> <p>“H. G. Niles, Judge.”</p> <p>And on the 8th day of October, 1895, a day of the regular October term, 1895, of said court, a judgment of said court was rendered in said cause, and entered on the minutes of said court, in the words and figures following, to wit:</p> <p>“Judgment Court, at Oct. Term, ’95.</p> <p>“J. II. Levy vs. S. Abraham. 273.</p> <p>“In this cause, it appearing to the court that at the last term of this court this cause was heard upon the pleading, proof, and argument of counsel by the court, a jury being waived, and all questions by consent being submitted to the judge, H. 0. Niles, sole presiding for decision, and the issue being-joined, and all proof heard and argument of counsel, the court took the cause under advisement; and the judge having filed on the 5th day of June, 1895, with the clerk of this court, a written opinion herein, and a judgment thereon having been improperly entered herein, on the-— day of June, 1895, as of the 5th day of April, 1895, as appears of record on page 291 of the minutes of this court, said judgment is hereby set aside as invalid and void, and the court, being now fully advised, and both parties being in court, doth consider that the plaintiff, J. H. Levy, do have and recover of and from the said defendant, S. Abraham, the sum of !?(>,083.80, and all costs in this behalf expended, for which execution may issue.”</p>

<p>1. Pkactice on Appeal — Exceptions Appeaking in Record.</p> <p>It is not indispensable that an exception to a ruling of the court on the trial of an action should be brought before an appellate court by a bill of exceptions, if it fully appears upon the record proper.</p> <p>S. Banks — Notice—Knowledge of Officers.</p> <p>The receiver of the C. National Bank brought an action against one W. on certain promissory notes, made by him directly to the bank. W. defended the action on the ground that the notes 'were given for the purchase money of an interest in a brickyard, which W. had been induced to purchase by the misrepresentations of C., the president of the bank. It appeared that the bank held sundry notes of the principal owner of the brickyard, which notes were worthless; that the notes made by W. were substituted for these; and that C. pretended to be interested, himself, in the brickyard, and to enter into a partnership with W. and the former owner of the yard, for the purpose of inducing W. to make the notes to the bank, which would replace the worthless notes it then held. There was also evidence tending to show that 0. was the active party in the transaction, and misrepresented the facts to W. Held, that the bank, being- the payee of the notes, could not be held to have been without notice of the fraud, or unaffected by G.’s knowledge thereof, and that it was error to direct the jury to render a verdict against W.</p>

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

<p>1. Evidence — Best and Secondary — Substantive Fact.</p> <p>Upon the trial of an issue involving the identity of a person to whom a Texas land certificate had been issued under the name of J. L., for services rendered in the Texan war of independence, a commissioner of the land office was called, and testified that, while the name of .1. L. appeared on the muster roll of a certain company in the Texan army, the bounty warrant for the same term which J. L. served was issued to-J. C. L., the latter being the true name of the person claimed by one of the parties to be the J. L. to whom -the land certificate was issued. Held, that such evidence was neither immaterial, nor secondary, nor a conclusion of the witness, but a substantive fact, which the witness' connection with the records enabled him to show.</p> <p>2. Evidence — Impeaching Witness — Contradictory Statements.</p> <p>Upon the trial of the same issue, a witness, having testified to certain facts as to the residence and occupation of one J. G. W. L., tending to show that he was the person to whom the land certificate was issued, was asked, on cross-examination, if it was not the fact that J. G. W. L. had resided at a different place, and if the witness had not so informed one B. at a certain time and place, to which the witness replied in the negative. B. and another person afterwards testified that the witness had made the statements referred to. Held, that such testimony was material, and that the foundation laid for it was sufficient.</p> <p>3. Evidence — Testing Recollection — Historical Fact.</p> <p>Evidence of a person, familiar with the particular department of history, as to the date of a historical fact, of which the court will take judicial notice, may be received for the purpose of testing the recollection of another witness who has testified to various facts and dates, material to the pending issue, some of which were fixed by the date of such historical fact.</p>

<p>Bills and Notes — Dufenriís—Bona Fide Holder.</p> <p>One L. made a note, and delivered it to the payee, upon an express agreement that it should be sold and discounted by the payee lor cash, whieh should be paid over to L. Instead oí so doing, the payee diverted the note; which passed" through the hands oí several parties, who had notice of the diversion, and who severally indorsed the note. The last of these parties, the D. Co., had the note discounted at its bank, which had no notice of the diversion, and received and used the proceeds. The note not being paid, the bank, at the request of the D. Co., sued the maker and all the indorsers exeejit llip D. Co. Held, that the fact that the bank had discounted the note solely in reliance on the credit of the D. Co., and that it had omitted to sue that company, in reliance upon the company's paying the note, if not collected from the maker or prior indorsers, though it enabled the D. Oo. to obtain an unfair advantage, was not a defense to the action.</p>

<p>1. Res Judicata — Contracts—Independent Stipulations.</p> <p>An inventor and owner of patents made a contract with a corporation, containing-, in separate clauses, the following provisions, among others: That he should be appointed general manager of the company at a fixed salary; that he should grant to it the exclusive use of his inventions, for which he was to be paid license fe.es of S3,090 a year; that, in case the contract were terminated, the company should have a license to use all of the inventions theretofore used, on paying therefor 86,500 a year. The contract was to continue ten years, subject to termination by either party, by giving one year’s notice in writing. After operating- under the contract for something- more than a year, until the latter part of 1887. it was then mutually agreed (as evidenced by letters in writing) that “the present contract” should bo terminated on July 1, 1888. But, on March 1, 1888, the company peremptorily discharged the inventor from its service. Held, that the several clauses of the contract contained independent agreements, and that a recovery of damages for breach of the contract of service was no bar to a subsequent action for license fees at the rate of S3,000 per annum up to July 1, 1888.</p> <p>3. Termination op Contract.</p> <p>The agreement to terminate the contract oil July 1, 1888, embraced the whole contract, so that, even if the company continued to use the inventions after that time, it was not liable for license fees at the rate of §6,500; but the only remedy against it was a suit for infringement.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>Mrs. Clara Spradling brought au action- in the judicial district court of Dallas county, Tex., against the Texas & I’acilic Railway Company, for personal injuries sustained by the alleged negligence of the employés of the defendant company. The cause was removed to the circuit court of the United States for the Northern district of Texas; whereupon the plaintiff filed an amended petition, with the following features: She claimed damages in the amount of $15.000. She alleged that she was a citizén of Texas; that the railroad of the defendant intersected the public highway from Dallas to Kaufman, about five miles east of Dallas, at a public crossing maintained and recognized by the defendant. On the 15th day of November, 1892, the plaintiff, with “Dock” Brock and a child named Jessie Rogers, was going along the Dallas and Kaufman Road in a two-horse wagon. They were going from Dallas to the home of the plaintiff. It is alleged that the plaintiff, with proper caution, attempted to cross the railway track of the defendant at the crossing above named; but, before she could do so, a westward-bound passenger train of the defendant struck the vehicle. This was totally demolished, and the plaintiff was thrown violently to the ground, and greatly bruised, injured, and shocked. This crossing, on account of the topography of the surrounding country and the conditions and grades of the public road and railroad, is described as dangerous and unsafe. This was well known, the petition states, to the defendant, for often theretofore at that crossing the trains had ■collided witn and injured divers and numerous vehicles and persons. On the occasion when the plaintiff' was injured, it is further stated that the employés in charge of the train rang no bell, and blew» no whistle, but negligently and carelessly and at a very rapid rate approached the crossing, without giving a warning signal of any kind whatever, to apprise the plaintiff of its approach and her danger. The plaintiff describes her injuries as consisting of two ribs crushed and broken on her left side, two ribs crushed and broken on her right side, her left arm broken below the elbow, her nose broken and crushed, and serious injuries, cuts, and bruises on her head and face, side, and liip, and serious and painful internal injuries in her side and chest. She suffered much pain, and was compelled to take medicine costing $25. Her medical attendance cost her $50, and the hire of a nurse $150. She is a widow, and was 40 years old at the time the petition was filed; and she states that prior to her injuries she was a remarkably strong and healthy woman, attended to her household duties, managed and superintended her farm and stock, earned, by such attention and management, $500 per an-num, and her attention and services were well worth that sum. Since her injuries, she has been an invalid, confined to her bed most of the time, and is wholly unable to attend either to her household duties, or to her farm and stock. She is dependent upon her own exertions for support. All of her injuries are in their nature permanent, and for the rest of her life she will he unable to do any work of any kind for her support, because of said injuries. She will be an invalid, and will require the constant attention of a nurse. She avers that she was guilty of no negligence or, want of caro herself, but that the negligence and carelessness of the defendant was wanton, gross, regardless of duty to the public and to the plaintiff, and slie therefore asks exemplary damages. These are the material averments. For answer, the defendant denies the allegations in the plaintiff’s petition, and, by special plea, contends that the plaintiff’s own negligent conduct, concurring with the negligence of her companion, one Dock Brock, was the immediate occasion of the accident, which otherwise would not have occurred, and she would not have been injured.</p> <p>The following evidence was introduced: The plaintiff’ testified: “I did not hear the passenger train that struck the wagon I was in. In approaching the railway crossing, I heard a whistle. We were then about forty or fifty yards from tlie railroad crossing when I beard the whistle, and I had the wagon stopped until the train passed, thinking that was the only train that was to pass. The dirt road there is below the grade of the railroad, and runs parallel with the railroad track to the crossing. After that train passed, we immediately drove onto the crossing, and, just as the wagon got on the railroad crossing, X looked around, and the train struck the hind wheels of the wagon. I did not have time, to speak or think. They did not ring a bell or blow a whistle. 1 had no knowledge of the approach of the train, and thought the tram that had just passed was the only train to pass. * * * We had to go up hill to get to the crossing. The crossing is almost right at the end or mouth of that cut. Tou cannot see an approaching train from the side of the track we were on, coming from the east out of that cut, until you get right on the crossing. The train that had just passed made noise, but this one I did not hear at all. * * * I heard the whistle of the train that passed, and I had the wagon stopped berore we went on the crossing, and we waited until it passed, i did not dream of another train, and could not see and did not Bear the train that hit the wagon until it was just on us.” Dock Brock was driving. He testified that, when he and the plaintiff were about 200 yards from the crossing, they heard a train coming from the east, going to Dallas. They stopped within 75 yards of the crossing for about a minute, and waited for that train to pass. As soon as it passed, they at once drove upon the crossing, going at an ordinary rate of speed, when they happened -to turn their heads to the left, and saw an engine of another train coming from the east, and within about 4 or 5 yards of the wagon. The witness stated that when he first saw the engine, the front wheels were just at the south rail of the track; that he struck the horse, and got the front wheels off the track. The train struck the hind wheels, tore them up, turned the wagon over, threw them out, and injured the plaintiff. The first train, which consisted of an engine and caboose, was about two minutes ahead of the passenger train which struck them. “I heard no noise of an approaching train,” he states, “until it struck the wagon. I could not possibly have gotten out of the way after I saw it. I used every effort to get .the team and wagon off the track. I was crossing said track somewhat slowly until I saw said train. I then made the horses move as rapidly as I could.” William Wilcox, the locomotive engineer, a witness for the defendant, testified that it was in violation of the rules of the railway company to run one train after another over the railroad in less than 10 minutes apart. He also stated that the train that struck the plaintiff’s wagon gave the usual signal for crossings. He was the engineer in charge of the train. He stated that the train was running 20 or 25 miles an hour, down grade, and it was about dark. He says: “We were about one hundred and fifty feet from the crossing when we first observed the parties on the crossing. X was on the right side of the engine, on the side the parties approached the crossing, and did everything I could to stop the train as soon as I saw them approach the crossing, not only for their safety, but my own. 1 suppose the cut is about eight hundred feet long.” The fireman testified that he saw a two-horse wagon coming up on the jxack about 1,U00 feet from tne crossing; that, when they came by the front of the engine, he could see the people; that they did not stop, but that the' driver was whipping the horses. Bohannon, Toni Davis, and E. Davis, witnesses for the plaintiff, testified that the view of the train east from the cut is obscured by the cut; that a traveler on the highway cannot see it until he’ gets directly on the track at the crossing.</p> <p>The jury found damage's for the plaintiff in the sum of $2,250. The circuit-court overruled a motion made by the defendant for a new trial; whereupon the defendant filed its bill of exceptions, with the following assignments of errors: (1) The court admitted, over objection of defendant, evidence tending to show that the engineer and fireman in charge of the engine and train which struck the wagon in which plaintiff was riding saw the plaintiff and the wagon approach the crossing, and that the employes,might have stopped the train thereafter in time to have avoided the injury,'to all of which defendant excepted, for the reason that there were no allegations in the petition to authorize such evidence, and then and' there preserved its bill of exceptions. (2) The court, after instructing the jury correctly, as conceived by defendant, on the issues raised by the pleadings, gave the following charges hereinafter complained of by the defendant, and refused special charges hereinafter complained of, which wore tendered hy defendant, as follows: The court charged as follows: "'Pile statute of Texas provides that each locomotive engine shall have on it a boil or steam whistle, and the bell shall be rung or the whistle blown at a distance of at least eighty rods from the place where a, railroad shall cross any road or street, and be kept ringing or blowing until it shall have crossed said road or stopped.” Defendant excepted to the same, on the ground that the statute provides as follows: “A bell of at least thirty pounds’ weight or a steam whistle shall be placed on each locomotive engine, and the whistle shall be blown or tlie bell rung at a distance of at least eighty rods from the place where the railroad shall cross any public road or street, and that such bell shall be kept ringing until it shall have crossed such public road or stopped.” (3) The court, charged as follows: “A person attempting to cross a. railroad track has llie right to expect that the railroad will give the signals required by law, and if ho is without fault, and such negiecl on the part of the railroad results in liis injury, then he can recover;" and thereby committed error, to which defendant excepted, because the use of the expression "has the right to expect” in connection with tne words quoted, was a clear error of law, and was most, likely misleading to the jury, in that the rights of the parties and their obligations as to the use of a crossing are reciprocal, and call for the exercise of care on the part of each, in no way predicated upon the expectation that the other will not be negligent. (4) The court refused to give defendant’s special charge No. 4, as follows: “You are instructed that neither the plaintiff nor thi' defendant hau file rigtit to rely upon each other exercising the care exacted hy law of both m tne use of the crossing, but it was tlie duty of eaeli in the use of the crossing to use that care that a person of ordinary prudence would have used under similar circumstances.” — to the refusal l<? give which charge the defendant excepted, and says the same was material error, in view oí the charge Hereinafter complained of (5) The court gave the following charge, requested by the plaintiff: "If the jury believe from tlie evidence that tlie agents, employes or servants of the defendant did see the plaintiff at a distance sufficiently remote from tne place of the accident; that, hy the use of the means and appliances in tlieir hands, they could have stoppi'd the engine tney were running before reaching tlie crossing where the accident occurred, so as to have avoided injuring plaintiff; and further find that they failed to so stop said (rain, — then and in that event you arc instructed that defendant is guilty of negligence, and you should find for tlie plaintiff,” — to which defendant excepted, because the same tendered an issue nowhere íaised hy the pleadings or justihed by the evidence, and submit!ed an incorrect proposition of law, m lids: (hose in charge of tlie engine were, if the issue had been properly tendered, under no obligation to stop the train or engine until the danger ol collision was apparent, and the charge contained no such qualification, (b) The court refused defendant’s special charge No. 5, as follows: “You are instructed that, in the consideration of whether or not defendant was guilty of negligence, you should coniine your deliberations to the issues presented, namely, whether or not defendant failed to give the signals required by law and presented in ilie general charge of the court, and whether such failure was tlie proximate cause of tlie injury. If yon conclude that tlie proximate cause of the injury is to he attributed to any oilier cause than the failure to ring tlie hell or blow the whistle, or that plaintiff's negligence contributed thereto, you will find for the defendant." — to which refusal the defendant excepted, as the said request to charge properly limited the consideration of the jury to the issues presented hy the pleadings.</p>

<p>This was an indictment against Warren E. McCord, Arthur E. Osborn, Harry J. Box, Robert C. Heydlauff, Gussie L. Andrews, and James B. Murray, charging that, on the 23d day of October, 1891, the said defendants unlawfully conspired together, and with divers other persons, to defraud ihe United States of its title and possession and dominion over certain unappropriated lands belonging to the United States, which are fully described in the indictment. There was also joined in this indictment; a count: for a conspiracy to commit perjury, but this count was nolled by the prosecution. The indictment was filed October 13, 1894. At the trial, after the evidence for the government was completed, the defendants moved the court to direct a verdict for the defendants, mainly upon the ground that the prosecution was barred by Ihe three-years statute of limitations, prior to the filing of the indictment.</p> <p>Tile proof introduced by the government showed that in December, 1890, or January, 1891, the defendant McCord had an interview with the witness Day, to the effect that the latter should obtain homestead settlers to go to the land office at; Ashland, in April, 1891. when the lands were to be offered for homestead entry, and have them make applications for homestead entries, and that McCord would furnish the money to pay their expenses, cost of living, cost of necessary homestead improvements, and for land-office fees, and necessary fees in case of contest, and for these sums was to have security upon the land when obtained by the homesteader.</p> <p>In The latter part of March, 3891, defendant McCord wrote a letter to Mr. Day, as follows:</p> <p>“1 am interested in the lands that are coming in at Ashland April 17th, and can get you a homestead in this way: You go there Tuesday, April 7th, and 1 will get you a place in the line, and then 1 will pay Calf of all the expenses, and you pay half, and let your family go and live on it, and when yon prove up you have half 1l>e profits and I half. We will allow the family so much a month to live on while they are there, and charge so much to get the estimates, — about $25, 1 think, — then the expense of making out papers and your expenses while filing, and then divide in the end.”</p> <p>In the early part of April, 1893, the defendant Box went to the house of the witness Hobbs, and represented to Mrs. Hobbs that if her husband would take up a homestead when the lands should be offered at Ashland, in April 1891, McCord would pay the expenses, and would expect to have one-half the land and timber in return for the payment ot sucb expenses. Mr. Hobbs, however, did not make any homestead application, in April, 1891, Mr. Day went to Ashland, in pursuance of the understanding had with McCord, and procured homesteaders to get into line at the windows of the Ashland land office, for the purpose of making applications for homesteads. This was done expressly under the previous understanding with McCord, and these men so procured to stand m line were expected to come into the arrangement which McCord had made with Day. Before the time of entry arrived, the secretary of tne interior suspended the sale, on the ground that violence and bloodshed were apprehended, and later the lands were again opened for settlement, on the 2d day of November, 1891. In the latter part of September or first part of October, 1891, Mr. Day arranged with the defendant James.B. Murray to go to Iron River,. Wis., in the vicinity of the lands in question, and make an entry upon land that would be pointed out to him by Day, and under which arrangement Murray was to be furnished with the entry fee, to be paid for his living expenses while on the land, for his improvements, and also for contest fees m case of a contest, and was then to give security to McCord upon the land so entered. Murray accordingly went to Iron River about the 28d of October, 1891, and thereafter made the homestead application mentioned in the first count of the indictment,, which was forwarded to Ashland, and filed November 2, 1891. Murray made a settlement upon the land, and improvements, and a contest was had in May, 1892, in the land office, the expense of which was paid oy the defendant McCord, and which was decided in favor of Murray. On May 18, 1892, the following' written agreement was entered into between McCord and Murray:</p> <p>“This agreement, made and entered into by and between James B. Murray, of Bayfield county, Wisconsin, party of the first part, and A. R. Osborn and W. E. McCord, parties of the second part, is as follows: The first party hereby agrees and binds himself to build a house and make such other improvements on as may be necessary, and move onto and maintain a residence on [here follows description of lands], and as soon as he receives a final receipt on the same to pay to the party ot the second part the sum of two hundred and fifty dollars for the numbers, and ten per cent, interest on all moneys furnished him to live, etc., or to give second party security for same on above-described land. Ana the secona party agree to furnish fifty dollars to build a house, five dollars per month to live on, and to pay the attorney fees aud land-omce fees in Ashland and Washington.</p> <p>“James B. Murray.”</p> <p>In 1893 the defendant Murray relinquished to the government bis homestead rights under his settlement, and the land was entered under the stone and timber act by one Hoover. No testimony was given on the part of the defendants, but, at the close of the case made by the government, a motion was made on the part or the defendants to direct a verdict for the defendants, on the ground that the statute ot limitations of three years had run upon the prosecution before the filing of the indictments.</p>

<p>Customs Duties — Destruction of Specific Items of Invoice — Cocoanuts in Bulk.</p> <p>Two cargoes of cocoanuts in Bulk were imported, invoiced at specified prices per thousand. On discharging, the number of cocoanuts fell short of the number stated in the invoice, the missing quantity appearing to be contained in a mass of broken and rotten cocoanuts not countable. Bold, that such shortage, resulting from the entire destruction of specific items of the invoice, was not a damage to the merchandise, under section 23 of the act of June 10, 1890, for which no allowance could be made unless it amounted to 10 per cent, of the total quantity of the Invoice, but that duties could be exacted only0 on the number of cocoanuts actually received as merchandise, excluding the worthless debris. U. S. v. Bache, 8 O. O. A. 258, 59 Fed. 702, distinguished.</p>

<p>In Equity. On demurrer to bill.</p> <p>Suit for injunction by the J. L. Mott Iron Works against J. B. Olow & Son.</p>

<p>This was a hill in equity by the International Tooth-Crown Company against Allen Gi. Bennett for alleged infringement of a patent relating to artificial teeth.</p>

<p>Appeal from the Circuit Court of the United States for the Dis-tricl of Massachusetts.</p> <p>This was a suit in equity by the Hammond Buckle Company against (Jeorge A. Welti and others, for alleged infringement of letters' patent No. 301,884, issued July 15, 1884, to Hammond & King, for an improvement in shoe clasps for arctic overshoes. The circuit court dismissed the bill; its action being apparently based upon the decision of the circuit court of appeals for the Second circuit in Hammond Buckle Co. v. G-oodyear Rubber Co., 7 C. C. A. 276, 58 Fed. 411, wherein the patent was given a narrow construction. The complainant appealed, and in this court one of the contentions was in respect to the effect which was to be given by this court to that decision.</p>

<p>The bill of complaint in this cause is filed by Warren H. Craig and others against the Michigan Lubricator Company and Frank W. Marvin, as its president and individually, for an alleged infringement of claims 2, 4, 5, 6, and 7 of letters patent No. 398,583, dated February 26, 1889, and issued to Craig for “improvements in sight-feed lubricators.” By stipulation, Max Nathan was made a party complainant, because of certain rights held by him under the patent.</p>

<p>Suit in equity for infringement of a patent.</p>

<p>1» Patents — Decision in Intkbekbenoh Pbocbedings — Conclusivenhss.</p> <p>The fact that a party to an interference proceeding permits the decision to go against him by default does not make such decision conclusive against him upon the question of the patentability of the machine in a subsequent suit against him for infringement. It is conclusive only upon the issue of priority of invention.</p> <p>2. Same — Two Patents to Same Inventob.</p> <p>The question whether two patents cover the same invention depends upon the scope of their claims. Claims are coextensive which specify the same combination of the same number of parts, with the same features, though the functions which are mentioned in the claims are not coextensive. But two claims are not coextensive which specify different combinations of parts of a process, machine, or manufacture, even where some of these parts are in each of the combinations. Miller v. Manufacturing Co., 14 Sup. Ct. 310, 151 U. S. L86.</p> <p>3. Same — Buttonhole Machines.</p> <p>The Osterhout patent, No. 447,791, for an improvement in machines for cutting and stitching buttonholes, shows patentable invention, and was not anticipated. Claims 21 and 22 cover, broadly, a combination having a normally elevated cutter, positively connected with, and unyieldingly •actuated and depressed at a certain time by, a depressor operated through or by means of the needle bar actuating mechanism, and a cam or device operating or rotating in unison with the feed cam, whereby the cutter is thrown into action. These claims are infringed by a machine made in accordance with the Tebbetts & Doggett patent, No. 438,(555.</p>

<p>1. Admiralty Appeals — Decree against Stipulators — Appeal by Claimant Alone.</p> <p>The sureties in a stipulation for the release of a vessel are not parties to the cause, though they are bound by the decree. Hence, where the decree is adverse to the stipulators, the claimant may appeal alone without any proceedings to effect a severance.</p> <p>8. Same — Defective Record — Oral Testimony.</p> <p>An admiralty cause was tried in the district court for the district of Maryland upon oral. testimony alone, there being no rule in that district requiring the testimony to be reduced 'to writing. An appeal was taken, but, as no notes of the evidence had been preserved, it could not be included in the record. The proctor for the appellant sought to supply the omission by retaking the testimony ot the witnesses Defore a notary, first giving notice to the proctors on the other side. The latter declined to be present, and, when the testimony was submitted to the judge, he •declined to certify that it was the purport of the testimony taken before him. The record was filed in the appellate court with these depositions attached. Held, that the judge below properly refused to make the requested certificate; that the depositions could' not be considered on appeal; and that, under the peculiar circumstances, the appellate court would not hear the case de novo, but would reman'd it without prejudice, and with instructions to grant a new trial, with a statement, however, that this proceeding is not to be regarded as a precedent, and that in future the party by whose omission the testimony is not taken, so that it can be incorporated in the record, must suffer the consequences.</p>

<p>Appeal from the District Court of the United States for the District of Maryland.</p> <p>This was a libel by George F. Patterson and Robert Ramsey against Elias A. Blaekshere to recover freight alleged to be due upon certain shipments of cattle. The district court rendered a decree in favor of libelants, and the respondent appeals.</p> <p>The libelants, Appellees here, are the agents of the Johnston Line of steamships between Baltimore and Liverpool, 'England. The respondent, appellant here, is a large shipper of cattle from this country 'to Europe. In April, 1894, the appellant made a contract with the appellees to ship cattle by their line of steamers from the port of Baltimore to Liverpool. Shipments were to be made during the four months from September 1, 1894, to December 31, 1894. The shipper was not willing to agree in advance on a fixed rate of freight, but evidently desired to take advantage of any fluctuation in the freight market. The libelants were willing to meet him in this regard. There are several ports in the United States from which cattle are shipped to Europe. Baltimore, Newport News, New York, and Boston enjoy the largest part of this business. Of these ports, Boston has an advantage over the others named, in that it is two or more days nearer to English ports than they are. Instead, therefore, of adopting as a standard of freight charge the rates of these other ports, or any of them, or the average rates from all the other American ports, the parties agreed to take the Boston rates as their measure of charge. The contract is in these words:</p> <p>“The freight is payable upon said cattle at the average rate of freight received by the Boston-Liverpool steamers, month by month, during the existence of this contract, British sterling per head on the number shipped at Baltimore, whether delivered alive, or not delivered at all, and is payable at Baltimore.”</p> <p>There were two linos out of Boston to Liverpool engaged in the transportation of cattle, one known as the “Warren Line,” and the other known as the “Leyland Line.” Those were the only lines carrying cattle, and the steamships of these lines were the only steamers which carried cattle between Boston and Liverpool during the four months specified in this contract. The Leyland Line had a contract with Swift & Co., large dealers in cattle and dressed meats, made in August, 1894, whereby the whole space room in their steamships in each succeeding voyage during each month was let at the rate of 46 shillings per head for each one of these months. The Warren Line had two contracts, one with Swift & Co., dated 31st July, 1894, the other with Hathaway & Co., dated the 23d of August, 1894, whereby the whole space in each of their steamships for the respective voyages during each of the four months from September to December was let at 50 shillings per head for each of these months. These rates were all fixed in advance. These steamships each received the freight at these rates. In the month of August the demand for freight room for cattle, which before that time had been very great and urgent, ceased, and, as the expression is, “freights broke.” The rates at other American ports fell. There were no other rates at Boston than those stated above. Libelants carried the cattle for respondent, and presented a claim against him for 48 shillings per head upon cattle carried by them under the contract above set forth. Forty-eight shillings is the average between 50 shillings, received by the Warren Line, and 46 shillings, received by the Ley-land Line. Respondent refused to pay this rate. The libel was then filed, the answer put in, and testimony taken. The fourth paragraph of the libel alleges that, during the months of September, October, and November, the average rates received by the Boston-Liverpool steamers, month by month, was 48 shillings British sterling per head for cattle. The answer to the fourth paragraph categorically denies it, and avers that the average rate of freight received during these months by the Boston-Liverpool steamers, month by month, was between 25 and 30 shillings British sterling per head of cattle. The district court decided in favor of the libelants, whereupon an appeal was allowed and taken to this court.</p>

<p>Appeal from the District Court of the United States for the Southern District of Alabama.</p> <p>This was a libel in rem by the Orr & Laubenheimer Company, Limited, against the Norwegian steamship Nicaragua (C. Nicolaysen, claimant), to recover, under a charter party, for damage to perishable cargo, accruing during detention of the vessel in quarantine at the port of Mobile. The district court rendered a decree for the libelant (71 Fed. 7215), and tlxe claimant appealed.</p>

<p>1. CmouiT Court — Jurisdictional Amount-Suit against Stockholders of Corporation — Colorado Statute.</p> <p>A statute of Colorado provides that "shareholders in banks * * * shall be held individually responsible l'or denis * * * of said associations in double the amount of the par value of the stock owned by them respectively.” Laws 1885, p. 264. HeW, that the remedy of creditors of such corporations under this statute, unless in exceptional cases requiring an accounting, is at law only, and that the claims of creditors against shareholders are several, and cannot be joined in one action to make up the amount required to give jurisdiction to the United States circuit court.</p> <p>2. Same — Costs.</p> <p>Under the circumstances of the case the order for dismissal by the circuit court must be without prejudice and without costs in that court, but with costs in the court of appeals.</p>

Hearing on Exceptions to Report of Master. This was a bill in equity by Pullman’s Palace-Car Company against the Central Transportation Company, and a cross bill by the Central Transportation Company against Pullman’s Palace-Car Company.

<p>Appeal from the Circuit Court of the United States for the District of South Carolina.</p> <p>This was a suit by the American Mortgage Company of Scotland, Limited, against Missouri A. Owens and Raymond Owens, for the foreclosure of a mortgage. The circuit court dismissed the bill. 64 Fed. 249. Complainant appeals.</p>

<p>Negligence — Cakjrif/rs of Passengkks.</p> <p>Plaintiff was a passenger on a steamboat managed by defendants. The boat arrived at the wharf, where plaintiff was to land, at 8:30 p. m., on an evening when the sun had set at 7:25, and the moon had risen at 8:21, there being some clouds in the sky. There was a lamp on the boat, the light from which was thrown by a reflector away from the gang-way by which passengers were to land, and there Was a light on the wharf, at some distance from the gang-way, which would be directly in the eyes of passengers landing from the boat. The gangway in the boat’s side was 4 1’eet wide, and was opposite a brow or slope in the side of the wharf which was over 6 feet wide, but the gang-plank by which passengers were to land was only 28 inches wide, and had no railing. In passing from the boat to the wharf, plaintiff fell, and was injured. Held, that defendants were negligent in failing to provide sufficient light to guide passengers in landing, and were liable for the damage suffered by plaintiff.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Mississippi.</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 the Exchange Bank of Yorkville, S. C., against Samuel T. Hubbard and others, doing business as Hubbard, Price & Co., to recover the amount of certain drafts, drawn on Hubbard, Price & Co. by the firm of Hope & Co. A demurrer to the complaint was overruled. 58 Fed. 530. Thereafter, upon the trial, judgment was rendered for the defendants, which was reversed on error, and a new trial granted. 10 C. C. A. 295, 62 Fed. 112. On the second trial, judgment was rendered for the plaintiff. Defendants bring error.</p>

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

<p>1. Contracts — Meeting of Minds.</p> <p>The M. Co., of Charleston, made a contract with the C. Co., of Raleigh, for the sale of a quantity of phosphate rock, at a fixed price, deliverable in certain quantities per month. The- time for delivery was extended, and, before delivery was completed, the market price of the rock fell, and negotiations were opened for a settlement and cancellation of the contract. One T., an agent of the M. Co., went to Raleigh, and submitted two alternative propositions to the C. Co., both including the giving of notes by the C. Co. for certain parts of the price of the rock contracted for. These propositions were declined, and T. returned to Charleston. On April 1, 1892, he returned to Raleigh, and made a new proposition, which the C. Co. declined, and proposed to give notes for less amounts than the M. Co. had required. T. telegraphed the M. Co., and received an answer, which did not authorize the acceptance of the offer, and suggested a modification. T., however, agreed to settle on the terms offered, and proposed that a written agreement be drawn up, and the notes signed. The 0. Co., however, declined, as T. had not the M. Co.’s copy of the original contract in his possession for cancellation. T. returned to Charleston. The M. Co. decided to accept the O. Co.’s offer, and drew up an agreement and notes accordingly, which were sent to the C. Co. The C. Co. added to the notes a reference to the contract, making them nonnegotiable, and returned them, signed in this form, to the M. Go. The M. Co. declined to accept such notes, and demanded and received back from the O. Co., to which it had been sent, the original contract. Held, that there was no meeting of minds of the parties on April 1st in any new contraed annulling the original one, and that the latter remained in force; that it was error to submit to the jury a question which did not depend for solution upon the pre-ponderative weight of testimony or the credibility of witnesses.</p> <p>2. Samis — Question for Court.</p> <p>Held, that it was for the court to determine whether a contract could be inferred from the facts proved granting to the testimony all the weight and probative force to which it was entitled.</p>

<p>Master and Servant — Assumption of Risks — Telegraph Lineman.</p> <p>A “lineman” engaged, as one of a crew, in repairing a telegraph line, under the immediate charge of a foreman having power to hire and discharge the men, assumes the risk of the falling of an insufficiently guyed “gin pole” (one guyed for the purpose of setting other poles), which he ascends by order of the foreman.</p>

<p>1. Customs Duties — Appeal from Board op Appraisers — Conflicting- Evidence.</p> <p>A decision by the board of general appraisers of a question of fact involved in great conflict of testimony, which is affirmed by the circuit court upon a like conflict of testimony, should not bo disturbed by the circuit court of appeals.</p> <p>2. Same — Manufactures of Jute and Flax — Burlaps.</p> <p>Articles woven of flax, and of jute and flax, less than 60 inches wide, used chiefly for stiffening collars and fronts of coats and other garments, and as bands in trowsers, etc., the goods being known commercially as “canvas,” “paddings,” “ducks,” “coatings,” etc., were dutiable as manufactures of flax, under paragraph 371 of the act of 1890, and as manufactures of jute and flax, under paragraph 374, and not as burlaps over 60 inches wide, under paragraph 364. 65 Fed. 788, affirmed.</p>

<p>Customs Duties — Classification—Inserting.</p> <p>“Insertions” or “inserting,” of silk, are dutiable at 45 per cent, ad valorem, under paragraph 302 of the act of 1894, as “manufactures of silk, or of which silk is the component material of chief value, * * * not specially provided for in this act”; and not as “articles made -wholly or in part of lace,” under paragraph 301, which imposes a duty of 50 per cent, ad valorem.</p>

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

<p>This is an appeal from a decision of the circuit court, Southern district of New York, affirming a decision of the board of general appraisers, which sustained the collector of the port of New York, in his assessment of duty upon certain importations as “tissue paper.”</p>

This is an appeal from a decision of the circuit court, Southern district of New York, reversing a decision of the board of general appraisers, which reversed a decision of the collector of the port of New York exacting a penal duty for undervaluation of certain kid gloves imported under the tariff act of 1890.

This was a bill by the Enterprise Manufacturing Company of Pennsylvania against Levi T. Snow and others, for alleged infringement of a patent for a meat cutter.

This was a bill by O. ¡á. Platt against the Bryant Electric Company for alleged infringement of a patent relating to electric switches for opening and closing electric circuits.

<p>This was a suit in equity by William H. Jackson and others against the Birmingham Brass Company and others for alleged infringement of a patent.</p>

<p>Patents — Ineringement—Bottle Stoppers.</p> <p>Tlie Morhous patent, No. 377,043, for an improvement in wire bail bottle-stopping devices, if patentable at all, must be strictly confined to the device described in tlie specifications and shown in the drawings, and is not entitled to the broad doctrine of equivalents. Held, therefore, that it was not infringed.</p>

<p>This was a bill in equity by the Edison Electric Light Company against the Electric Engineering & Supply Company for alleged infringement of a patent relating to sockets for incandescent electric lamps. On final hearing.</p> <p>The patent, No. 311,100, on which this action is founded, was granted to Sigmund Bergmann, January 20, 1885, for improvements in sockets for incandescent electric lamps. The improvements relate to sockets designed to receive lamps whose terminals are a screw-threaded 'ring and a plate on the base of the lamp. The object was to provide a compact socket, having few parts, a small amount of insulating material and a simple circuit-controller. The specification says, among other things,</p> <p>“A is a disk of insulating material. I prefer to use a non-combustible and non-carbonizable material, such as lava. This is desirable in a socket of this character, because the contacts and terminals are placed close together in a small space, so that there may sometimes be danger of a short circuit between them, and also circuit is continually being made and broken by the socket key, in some cases causing considerable spark. * * * The socket, constructed as described, is of a neat appearance, is very compact, has no useless mass of insulatingo material, being merely a metal skeleton with just enough insulation to separate the terminals, all the circuit connections being-carried by the single insulating disk instead of being divided among two or more insulating portions, as heretofore. The circuit controller making and breaking circuit upon the lamp tip employs fewer parts and is simpler in construction than any heretofore used, while it is very efficient in operation, and the whole may be put together or taken apart with great readiness, the parts being easily separable.”</p> <p>As stated by the patentee the socket is compact and simple. It is of the usual type and differs from those which preceded it in matters of detail only. No minute or extended description is necessary. The socket will be readily imderstood by reading the above excerpts in connection with the claim. The claims involved are as follows:</p> <p>“1. In a socket for an electric lamp, the combination of two circuit terminals, one a sleeve adapted to make contact with the band or ring terminal, the other a spring movable into and out of contact with the bottom terminal of the lamp, substantially as set forth.”</p> <p>“3. In a socket for an electric lamp, the combination, with a disk of insulating material, of a contact sleeve for making contact with the band or ring terminal of the lamp, a contact piece for making contact with the bottom terminal of the lamp, and two terminals for the circuit wires leading to the socket, all said socket contacts and terminals being carried by the said insulating disk, substantially as set forth.</p> <p>“4. In a socket for an electric lamp having two terminals for making connection with corresponding lamp terminals, the combination of a metal supporting portion and a disk of insulating material carried thereby and carrying all tlie terminals and contacts of the socket, substantially as set forth.-'</p> <p>“9. The combination, with a contact spring, substantially of the form described, of a separate turning key bearing against said spring, whereby it may be forced upward to make contact, substantially as set forth.”</p> <p>"13. In a socket for electric lamps, the insulating body which supports the terminals or connections, formed of non-combustible material, substantially as set forth.”</p> <p>Claims 1 and 9 relate to the circuit controller; the others to the insulating disk. The defense is that these claims, if valid, must be limited to the precise construction shown and, as so limbed, the, defendant does not infringe.</p>

This was a bill in equity by the Ypsilanti Dress-Stay Manufacturing Company against Wells Van Valkenburg and others for alleged infringement of two patents relating to garment stays. On final hearing. This action is based upon two patents granted to Enoch C. Bowling and now owned by the complainant. Both are for improvements in stays for garments. The patent principally relied on is reissue No. 11,009, dated July 2, 1889. The original, No. 362,568, is dated May 10, 1887.

<p>Salvage Services — Compensation.</p> <p>Assistance rendered by a tug to another tug and her barges, which had grounded in the East river in a place involving comparatively little danger, MIA a salvage service for which a total sum of $230 should be awarded, — $25 apiece being charged against two barges which were not aground, but which required assistance for the purpose of mooring, and $150 against a boat and cargo of coal, worth $4,000, which was aground, the remainder, of $30, being charged against the tug lor the assistance rendered her.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This was ¡i libel by Peter O. Ritscher and others against the yacht Grade May (Philip Carpenter, claimant), to recover the sum of $100.57, with interest and costs, for supplies furnished on board said yacht. The district court made a decree against the yacht, and the claimant appealed.</p>

<p>1. Shipping — Payment op Freight — Bum op Lading.</p> <p>Where the bill of lading is silent as to the time for payment of the freight, the law implies that it is .to be paid on delivery of the goods at the port of discharge.</p> <p>3. Same — Connecting Carriers — Damage to Cargo — Pro Rata Freight.</p> <p>Gorton in course of transportation from Southern ports by way oí New York to Liverpool, by various connecting carriers, but under through bills of lading, which stipulated that each earner should not be liable for loss or damage beyond its own line, was in part damaged and in part totally destroyed by fire while on the pier at New York awaiting shipment by another line of steamers to Liverpool. The owners abandoned to the insurers, and the cotton, which was damaged only, was sold at New York, with the knowledge; and acquiescence of the insurers, who received the proceeds less pro rata freight retained by the carrier. Held, that in respect to the cotton so sold the carrier was entitled to pro rata freight, because the acts of the insurers were in effect a voluntary acceptance of delivery at the intermediate port; but that pro rata freight was not payable upon that part of the cargo which was totally destroyed, since the contract to deliver at Liverpool was never performed or performance waived. 55 Fed. S2, affirmed.</p>

<p>Circuit Court of Appears — Jurisdiction—United States Court in the Indian Territory.</p> <p>The act of March 1, 1895 (28 Stat. 695, c. 145), creating a court of appeals for the Indian Territory, deprived the circuit court of appeals for the Eighth circuit of the power to entertain writs of error and appeals from the United States court in the Indian Territory, and writs of error to said circuit court of appeals allowed by the United States court In the Indian Territory after March 1, 1895, must be dismissed.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a suit by Otto Thum and others against John A. Andrews and others for infringement of patents No. 278,294 and 305,118, issued to said Otto Thum for an improvement in fly paper. The alleged infringement consisted in the sale by defendants of fly paper manufactured by Benjamin F. B. Willson, carrying on business under the name of Willson & Co. Upon complainants’ threatening suit against defendants for such infringement, John W. F. Willson and said Benjamin F. B. Willson had entered into an agreement with defendants, that in case any suit should be brought against defendants for infringement of any patent, by the use or sale of such fly paper, the said Willsons would assume the defense of such suit, and carry on the same to final judgment at their own sole expense; and that in case the plaintiffs, in any such suit, should obtain a judgment or decree, said Willsons would pay all sums that defendants should be adjudged to pay as damages, profits, or costs of suit. In accordance with this agreement, the Willsons assumed and carried on the defense of this suit. On February 7, 1893, the circuit entered an interlocutory decree, sustaining the patents, finding infringement, awarding a perpetual injunction, and referring the cause to a master, to take an account of profits and damages. 53 Fed. 84. On May 6, 1893, the Willsons filed a motion for defendants to reopen the ease, for the purpose of introducing a prior patent to a third party, alleged to be precisely similar to complainants’ patent, and also a motion to dissolve the injunction. On May 13, 1893, upon a stipulation by complainants, to which the nominal defendants consented, a final decree was entered, waiving the reference to the master, and ordering defendants to pay the complainants the sum of §2,500, as damages and profits for the infringement and as costs of the suit. Afterwards, and on June 23, 1893, the motions to reopen the case and to dissolve the injunction were heard, and an order was entered denying the same. On November 17, 1S93, the Willsons filed a prayer for appeal and an assignment of errors; and on the 5th day of February, 1894, the appeal was allowed, bond filed and approved, and citation issued. The cause having been docketed in this court, the appellees moved to dismiss the appeal on various grounds, which motion was denied on June 23, 1894. 12 G. C. A. 77, 64 Fed. 149. The case was afterwards heard upon the merits, and a decree was entered reversing the decree below holding that the patents sued on, or the claims thereof in controversy, were void for want of patentable novelty, and directing the court below to dismiss the bill. 15 G. 0. A. 07, 67 Fed. 911. A rehearing was afterwards allowed, which resulted in a re-affirmance of the previous decision. 16 C. G. A. 677, 70 Fed. 65. The case was afterwards heard in this court upon a question as to the form of the mandate. 71 Fed. 763. After the foregoing proceedings, a form of mandate was prepared by the clerk of the circuit .court of appeals, in accordance with the practice prevailing in this circuit. This mandate recited in full the interlocutory decree for an injunction and account which was entered in the circuit court on Ifebruary 7, 1893, and also the final decree of May 13, 1893, but made no reference to the order of the circuit court denying the motion to reopen the case and dissolve the injunction. After these recitals and the further recitals in relation to the hearing and arguments in the appellate court, the mandate continued as follows:</p> <p>“On consideration whereof, it is now, to wit, January 23, 1896, ordered, adjudged, and decreed as follows: The decree of the circuit court is reversed, and the case remanded, with directions to dismiss the bill, with costs. This court reserves to the defendants, John A. Andrews et al., liberty to file in the circuit court a petition for restitution of the sum paid by them to the complainants under the decree of the said circuit court of May 13, 1893, or to adopt other appropriate methods for presenting their claim for restitution, and to proceed thereon as that court may determine. Costs in said United States circuit court of appeals for which execution Is to issue from said circuit court against said Otto Thum et al., and in favor of said John A. Andrews et al., in whose name said John W. F. Willson and Benjamin F. B. Willson appealed, are taxed at three hundred and thirty-one dollars’and thirty-eight cents (§331.38). You, therefore, are hereby commanded that such execution and further proceedings be had in said cause, in conformity with the aforesaid decree of this court, as, according to right and justice and the laws of the United States, ought to be had, the said appeal notwithstanding. “Witness, the Honorable Melville W. Fuller, chief justice of the United States, the twenty-eighth day of January, in the year of our Lord one thousand eight hundred and ninety-six.</p> <p>“John G. Stetson,</p> <p>“Clerk of the United States Circuit Court of Appeals for the First Circuit.”</p> <p>The appellees thereupon filed a motion to stay the issuing of the mandate as thus prepared, and to direct the clerk as to the form thereof. The objections of the appellees to the mandate as drawn were stated in their motion as follows: “(1) Said mandate, as drawn, does not recite or reverse the decree of the circuit court of June 23, 1893, from which decree alone the appeal to this honorable court was taken, but does recite and reverse decrees of said court from which no appeal was taken. (2) Said mandate, as drawn, recites and reverses the decree of the circuit court of May 13, 1893, from which no appeal was taken, and to which no error was assigned in the prayer for appeal, and which was a decree by consent between the complainants, now appellees, and the defendants, acting by other counsel than the counsel of the appellants John W. F. Willson and Benjamin F. B. Willson, and in which decree the said appellants John W. F. Willson and Benjamin F. B. Willson have no- Interest whatever.” The appellees therefore moved that the said decree of June 23, 1893, should be set out at length in the recital part of the mandate, together with the proceedings had in this court; and they further moved that the decretal part of the mandate should read as follows: “On consideration whereof, it is now ordered, adjudged, and decreed as follows: The said decree of the circuit court of June 23, 1893, is reversed, and the case remanded, with directions to dissolve the injunction and dismiss the bill, with costs, as to the appellants John W. F. Willson and Benjamin F. B. Willson, from the date of the filing of their petition for appeal and assignment of error, November 17, 1893. This court reserves to the defendants, John A. Andrews et al., liberty to file in the circuit court a petition for restitution of the sum paid by them to the complainants under the decree of the circuit court of May 13, 1893, or to adopt other appropriate methods for presenting their claim for restitution, and to proceed thereon as that court may determine.”</p> <p>The contentions in this motion are: (1) That the decree of the lower court of June 23, 1893, should alone be recited and reversed by the mandate in accordance with the opinions of this honorable court, and that the decrees cited in the mandate, as drawn, should be stricken therefrom. (2) That the decree.of.May 13, 1893, should be disregarded in the mandate, it being (a) a consent decree, and not reviewable by this court, and (b) the parties defendant who consented thereto are not the appellants, and are not before this court on appeal.</p> <p>As to the first contention: This appeal was taken November 17, 1893, from said decree of June 23, 1893, and from none other. See prayer for appeal and assignment of errors. This honorable court decided that the appeal was from said decree of June 23, 1893, and from none other, and that' the same was final so far as it affected the appellants John W. F. Willson and Benjamin F. B. Willson. The court (Putnam, J.) stated as follows: “On the 23d day of June, 1893, the court heard, on its merits, the motion filed May 6, 1893, and denied it. This left the injunction in full force, and, so far as concerns it, a judgment which binds the manufacturers, unless reopened on appeal or otherwise. The manufacturers took this appeal in the names of the nominal defendants within six months from June 23, 1893.” Andrews v. Thum, 12 C. O. A. 77, 64 Fed. 149. The appellate jurisdiction of the court in this case is to review said final decree or decision, and determine it. Act March 3, 1891, c. 517, § 6. For the reasons as stated, it is submitted that the mandate should recite the said decree of June 23, 1893, and none other. .</p> <p>As to the second contention: The decree of May 13, 1893, ought not to be regarded in the mandate. It was a consent decree. The appellate court has jurisdiction of a consent decree, when appealed from, only to consider whether the court below had jurisdiction of the cause, so as to authorize it to. enter any decree. It cannot consider any errors assigned to such decree. It cannot reverse such decree. Railroad Co. v. Ketchum, 101 U. S.-2S9; TJ. S. v. Babbitt, 104 U. S. 767. The said decree of May 13, 1893, was the order of the court upon an agreement made between the complainants (now appellees) and the then defendant?, John A. Andrews et al., and said Andrews et al., by said decree, closed their connection with the case. They are not parties to the appeal, nor before this court except nominally. See their protest “that they do not desire, nor consent to, nor authorize, an appeal.” The Willsons alone are the appellants, because (1) they applied and were permitted to come in and take the appeal, November 17, 1893; (2) their appeal was allowed; (3) they gave bond as principals; (4) this court has recognized said Willsons as the appellants. “The manufacturers took this appeal.” Andrews v. Thum, 12 C. C. A. 77, 64 Fed. 149.</p> <p>For the reasons as stated, the court having no jurisdiction to review,' and the parties to the decree of May 13, 1893, not being before this court, it is submitted that said decree should not be recited or regarded in the mandate, at least, beyond the reference made to it in the order of this honorable court of January 23, 1896.</p> <p>The question of costs is within the control of the appellate court. The matter of the costs between the original parties was adjusted by the decree of May 13, 1893, and settled. Costs l'or the intervening parties, defendants, should not relate back of the time of their petition for intervention, November 17, 1893.</p> <p>submitted the following brief on the form of mandate, as the rights of their clients, the nominal appellants, to restitution, might be affected thereby:</p> <p>Appellees are plainly in error in saying that the appeal is from the denial on June 23, 1893,' of the motions to reopen the case and dissolve the injunction, and not from the final decree of May 13, 1893.</p> <p>(1) Motions for rehearing and to dissolve injunction are addressed to the discretion of the lower court; and it is elementary law that there is no appeal therefrom. Boesch v. Graff, 133 U. S. 697-<"JO 10 Sup. Ct. 378; Buffing-ton v. Harvey, 95 U. S. 99, 100; Steines v. F.üi.ür'lin Go., 14 Wall. 14-22; Bondholders & Purchasers of Iron R. Jt. v. Toledo, D. & B. R. Co., 10 C. C. A. 319, 62 Fed. 166-169. That the appeal was not from the decision on those motions is also made plain by tne decision of this court upon the merits (15 C. C. A. 07, 67 Fed. 911), which holds that the Peck patent cannot, be considered, because it “was first introduced as evidence in the court below in support of a motion for rehearing, and to reopen the case, which was denied.” If the appeal had been from the decision on that motion, the Peck patent would have been the principal issue before this court.</p> <p>(2) Appellees’ point that there can be no ajipeal from the final decree by '•onsent was fully presented to this court on appellees’ motion to dismiss the ni>peal; and this court decided in its opinion on the merits (15 C. C. A. 67, 67 Fed. 911) that, since the decision on that motion, “the objections to the validity of the appeal are not open.” It is perfectly plain that this court, in refusing to dismiss the appeal (12 C. C. A. 77, 64 Fed. 149), held that the appeal was from the final decree, but that the time of appeal from the final decree did not begin to run until the motion for rehearing had been decided. This is the precise point of the two opinions of the supreme court (Smelting- Co. v. Billings, 150 U. S. 31, 14 Sup. Ct. 4, and Vorhees v. Manufacturing Co., 151 U. S. 135, Í4 Sup. Ct. 295) cited by this court, in both of which it was held that the sis months within which to appeal from the final decree “does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal.”</p> <p>We therefore submit that the mandate should recite the final decree, and order it to be reversed, as has been ordered in both the opinions of this court on the merits. 15 O. C. A. 67, 07 Fed. 913; 70 Fed. 65. The untenability of appellees’ contention is shown by the fact that a reversal of the order of June 23, 1893, would simply lead to a reopening- of the cause, to take further evidence against a patent which this court has already held to be invalid upon the original record.</p> <p>We have no concern with the subject of costs.</p>

This action was brought in the circuit court of the United States for the Southern district of Iowa, by Hart, Scbaffner & Marx, against W. T. Minchen, to recover $3,447.75, the value of certain goods sold by the plaintiffs to Jonas Nichols upon the following written guaranty of the defendant. “Carroll.

<p>Surety for Costs — Extent of Liability.</p> <p>When a plaintiff, in a case which has been removed from a state court to a federal court, gives security, in the latter court, for costs, by a stipulation signed by sureties, who bind themselves as security “for costs and fees in” the case, such sureties, upon judgment being rendered against the plaintiff for costs, are liable for the costs accrued in the state court before removal, as well as for the costs in the federal court, and, under the rules of the circuit court for the district of Maryland, for all taxable fees due from the plaintiff to the clerk, marshal, and commissioners, and the docket fees of plaintiff’s attorney, as well as for the costs recoverable by the defendant from the plaintiff.</p>

<p>Motion to Dismiss Bill for Want of Jurisdiction.</p> <p>The complainant is a Pennsylvania corporation; defendant a citizen of New York, doing business in the Southern district, but a resident of the Eastern district, of that state. He was “found” in the Southern district, and there served with process. The suit is for infringement of a patent.</p>

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

This case was before this court at the October term, 1891, on appeal from a decree dismissing the bill of complaint. The decree appealed from was reversed, and the case was remanded to the circuit court, with instructions— First, “to permit William G-.

This is a bill to enforce tbe mechanic’s lien for the erection of boilers in tbe defendant’s power house, the stipulated price being |17,000. ' The defendant company sets up fraud in the execution of the written contract, and asks to have it set aside. It is willing to pay only the cost of the boilers, which it avers was the real agreement, and was much less than the stipulated sum.

This was a bill by the Hazleton Tripod Boiler Company against the Citizens’ Street-Railway Company to enforce a mechanic’s lien for the purchase price of certain boilers. A final bearing was heretofore had, which resulted in the direction of a decree in favor of Hie complainant. 72 Fed. 817.

<p>1. Equity Practice — Abatement and Revival.</p> <p>When a suit in equity, wbicb seeks, with other relief, the recovery of real estate, abates in consequence of the death of a complainant, whose Interest in the real («state devolves upon other persons, the proper method' of reinstating the suit is by a supplemental bill, or bill in the nature of a supplemental bill, and not by a bill of revivor.</p> <p>S. Wills — Effect as Conveyance — Foresight Probate — Tennessee Cod®.</p> <p>When a will is executed in a foreign country, and is psroven, as required by section 3012 of the Tennessee Code, before; a foreign court having the requisite probate jurisdiction, the record of the probate affirmatively showing the probate by such proof, and authenticated as provided in section 4550, it will pass title to real estate in Tennessee, as a common-law conveyance, without registration.</p> <p>3. Same — Contents oe Certificate oe Probate.</p> <p>A certificate of probate in a foreign court which states that the will was “proved by * * * the executors,” though showing, by the exemplification, that it was duly attested by two witnesses, does not show probate in accordance with section 3012 of the Tennessee Code, providing that written wills, with witnesses, when not contested, shall be proved by at least one of the subscribing witnesses, if living, and, if contested, by all the living witnesses, if to be found.</p>

The Barber Asphalt Paving Company (a corporation, and the plaintiff in error) brought an action in the court below against the defendant in error, the city of Denver, a municipal corporation, to recover a balance which it alleged that the city owed it for the performance of four contracts that It had made'with the city to grade and pave with sheet asphalt portions of four of its streets. The complaint set forth four separate causes of action, — one upon each of the contracts.

This was a bill by Charlotte H. Waite and others against J. N. O’Neil and others for a specific performance of the covenants of a lease, and for other relief.

<p>1. CoupoRations — Agent’s Agreement for Arbitration — Ratification.</p> <p>If an English corporation, controlled by a board of directors in England, objects to an agreement made by its general manager in this country to submit to arbitration a claim against the company for a trespass in cutting timber from the lands of another, it is its duty, within a reasonable time of receiving notice of the agreement, to notify the other party of its disapproval; and, in the absence thereof, a ratification may be presumed. The assertion of counterclaims by it is not a disaffirmance, but rather justifies a presumption of an affirmance.</p> <p>8. Taxation by Counties — Levy by Court — Sufficiency of Record.</p> <p>Under the Tennessee statute authorizing counties to lay the same or a less tax upon privileges as that levied by the state, it is sufficient if the record of the court levying- the county tax shows that the rate on privileges is made the same as that of the state, for the subjects of the tax and the rate on each are definitely specified in the revenue law of the state, and by reference thereto the county tax is definitely shown.</p> <p>3. Same.</p> <p>The Tennessee statute requires that three-fifths of the justices entitled to attend are necessary for the levying of a county tax. Mill. & V. Code, § 4974. By requirement of the state laws there is an official record of the division of the counties into districts, and of the election and commission of every justice of the peace entitled to sit at the sessions oí the county court. Held, therefore, that where the record of a session at which a tax was levied shows that a specified number of the justices were acting, who, by reference to the official records above referred to, of which the court takes judicial notice, are ascertained to constitute three-fifths of the number entitled to attend, this is sufficient evidence that the requisite proportion acted in levying the tax.</p>

<p>This was a suit by Eugenia Crimp, as executrix of the will of W. G. Crimp, against the McCormick Construction Company and others, to determine the rights of the parties in the assets of the corporation. The decree made by the circuit court was affirmed on appeal. 18 C. C. A. 70, 71 Fed. 356. Complainant petitioned for. a rehearing.</p>

<p>1. State and Federal Courts — Jurisdiction—Pendency op Former Suit.</p> <p>The A. Ry. Co., a corporation of the states of New York and Pennsylvania, most of whose property lay in the latter state, made a mortgage to the C. Trust Co. to secure an issue of bonds. Pursuant to a provision of the mortgage, a majority of the bondholders requested the trustee to foreclose the mortgage, and it accordingly commenced suit in a court of the state of New York. The railway company thereupon commenced a suit in the same court, in which it obtained an injunction restraining the trustee from proceeding with the foreclosure. The bondholders then requested the. trustee to bring suit for the foreclosure of the mortgage in Pennsylvania, and, upon its refusal to do so, themselves filed a bill in a federal court in Pennsylvania for the foreclosure of the mortgage. Held, that the mere pendency of the suit in the New York court in which the trustee had been enjoined from proceeding did not oust the jurisdiction of the federal court to proceed to decree foreclosure of the mortgage on the property in both states.</p> <p>2. Deeds — Alteration—Ratification by Grantor.</p> <p>The mortgage was made jointly by the railway company and one B., its president, who pledged certain lands owned by him as additional security for the bonds of the railway company. After the directors of the railway company had authorized the execution of the mortgage in such form as should be approved by counsel, to secure the bonds, the mortgage was drawn, executed, and acknowledged by the railway company and B., and submitted to complainants, brokers, who wore to purchase a part of the bonds. They objected to the provisions relating to the pledge of B.’s property, requiring that certain reserved interests should be included in the mortgage. After negotiation and correspondence between complainants, B. and his counsel, who was also counsel of the railway company, and W., the secretary of the railway company, a new,clause was drawn up by B. and his counsel, including the interests in question, approved by complainants, and then inserted by W., under B.’s direction, in the mortgage, to which W. then obtained the acceptance of the trastee. B. then had the completed mortgage recorded, and. as president of the railway company, executed the bonds reciting the mortgage. Part of the bonds were then delivered to the complainants, who paid cash for them, which was used in paying the indebtedness of the railway company. Held, that the bonds were not void or voidable, either by B. or the railway company, on the ground of unauthorized alteration, the change in the mortgage having been fully ratified both by B., whose interest was alone affected, and by the officers of the railway company, who had authority to execute the mortgage in any form approved by counsel.</p> <p>8. Railroad Bonds — Bona Fide Holder — Pennsylvania Constitution.</p> <p>The mortgage was given in pursuance of a series of contracts between B. and B., the principal stockholders of certain railway companies which were consolidated to form the A. Ry. Co., a firm of brokers, who were to assist in extending the railroad and negotiating the securities of the company, for which they were to receive a part of such securities as commission, and to turn over the proceeds of others to B. and B., and a construction company, which was to build the extensions of the road.- Under such contracts, the stock of one of the constituent companies, a New York corporation,, was largely increased, and the bonds were to be used in part in retiring the securities of the constituent companies. A large proportion of the bonds issued under the mortgage were sold to the complainants, who paid for them in cash, which was applied to the payment of the debts of the constituent companies, and who had no knowledge of the contracts leading up to the making of the mortgage and the issue of the bonds. Held that, without regard to such previous contracts, the bonds bought and paid for by the complainants were not within the prohibition of the constitution of Pennsylvania that no corporation shall issue stocks or bonds except for money, labor done, or money or property actually received; the validity of the bonds could not be questioned, and the complainants were entitled to a foreclosure of the mortgage.</p> <p>4. Mortgages — Pennsylvania Stay Laws.</p> <p>The stay clause in the Pennsylvania statute of 1705 (1 Smith’s Laws, p. 60) applies only to scire facias sur mortgage, and not to a bill in equity to foreclose.</p>

<p>1. Pleading — Heirship.</p> <p>An averment that the blood of both the ancestors on the paternal side, in the second generation from one from whom the pleader claims to inherit, as next of Kin on the mother’s side, is extinct, is a sufficient averment that there is no one of the blood of such ancestors to inherit.</p> <p>2. Equity Pleading — Fraud.</p> <p>An averment that one B. was from infancy and during all his life of unsound mind, and incapable of transacting business, and that B.’s mother and her legal adviser fraudulently procured from B. a deed of iiroperty, for a grossly inadequate consideration, which was never paid to him nor to any one for his use, is a sufficient averment of fraud in procuring such conveyance.</p> <p>3. Same.</p> <p>Complainant’s bill alleged that one. E. had obtained by fraud a conveyance from her son of certain land devised to him by his father, E.’s husband; that subsequently she had instituted proceedings in a probate court, as executrix of her husband, to procure the sale of the same land to pay the testator’s debts, and had obtained an order to that effect, directing the surplus to be paid to herself, under which she had received a large sum of money, such proceedings in the probate court being alleged to be fraudulent. Complainant, claiming to be B.’s heir, sought to set all these acts aside, and hold the representatives of E. as trustees for him. Held, on demurrer to the bill, that it was not necessary that the proceedings in the probate court should be set aside before B. would be entitled to such relief.</p> <p>4. Limitations — Action to Contest Validity of Will.</p> <p>A limitation of time for bringing a suit to contest the validity of a will does not apply to a suit to establish a trust in property which is alleged to have been diverted from its true owners by fraud, and to have passed into the hands of others under sundry conveyances, including a will.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>On June 2, 1892, the appellee, Amaziah L. Carson, made a contract with the appellant the Moline Plow Company of Kansas City, Mo., a corporation, by which he resigned his position as a director, manager, secretary, and treasurer of that corporation, and agreed to sell and transfer to it within 10 days 50 shares of the capital stock of the appellant the Moline Plow Company of Moline, Ill., another corporation; and the Moline Plow Company of Kansas City, Mo., agreed to sell and transfer to him $17,500 in interest-bearing bills payable of the Moline, Milburn & Stoddard Company, a corporation, and one-third of the capital stock of that company, the par value of which was $33,333.33, and to pay him $125 fn cash. Carson refused to carry out this contract, and on July 7, 1892, the appellants exhibited their bill in the court below for a specific performance of it. On September 3, 1892, Carson answered this bill, and, among other defenses, he pleaded that he was induced to make the contract by the fraudulent misrepresentations ofo the officers and directors of the Kansas City company relative to the value of the various assets of the Moline, Milburn & Stoddard Company, relative to the value of the one-third of its capital stock which he had agreed to buy, and relative to ■the refusal of the Illinois company to accept an offer of one Kingman to purchase the same at a premium of 15 per cent.'above its par value a short time before the contract was made. On October 12, 1892,. the appellee filed his cross bill in this case, and prayed for a rescission and cancellation of the contract on account of the fraudulent misrepresentations of the Moline Plow Company of Kansas City, referred to in his answer. The appellants answered this cross bill, and denied these charges of fraud, and the suit proceeded to final hearing and decree. On December 30,1893, by consent of the parties, the case was by order of the court referred to W. W. Morsman, Ifsq., to report the law and the facts therein. He reported, among other things, that the contract was obtained by the practice of gross frauds upon Carson, by which he was circumvented and lured into giving an assent to it, which would not have been given if the dealing had been fair and honest on the part of the officers of the appellants; that on account of this fraud the appellants were not entitled to a specific performance of the contract, and that the appellee was entitled to a decree for its rescission. The court below confirmed this report, and rendered a decree in accordance therewith. This is the decree which the appeal brings before this court for review.</p>

<p>Appeals from the Circuit Court of the United States for the District of North Dakota.</p> <p>This suit was brought by Edwin Morris, the appellee, against Charles A. Morton, the appellant, to foreclose two mortgages on lands situated in the state of North Dakota that were given to secure the payment of three principal notes, amounting in the aggregate to $32,000, and certain interest notes. The mortgages in question were executed by the appellant in favor of the ap-pellee on June 20, 1893. One of the mortgages was in the ordinary form; the other was in the form of an absolute conveyance. The latter instrument conveyed to the appellee an undivided one-half interest in certain lands which the appellant- and appellee owned as tenants in common; but the bill stated that it was in fact a mortgage, which had Deen given to secure a part of the aforesaid mortgage debt, and it prayed for a decree foreclosing the appellant’s equity of redemption therein.</p> <p>The defendant below filed an answer and a cross bill, whereby he resisted a decree of foreclosure, and sought to have the mortgage and the mortgage notes canceled on the ground that they had been executed under duress, or by means of undue influence. The material allegations in this respect which were contained in the answer and also in the cross bill as the ground for the affirmative relief therein prayed for were substantially as follows: The defendant below alleged that he had acted as agent for the plaintiff, Edwin Morris, from 1883 until June 20, 1893, in loaning and investing money for the plaintiff; that from January, 188S, until January 31, 1891, the plaintiff' and the defendant had also been copartners in the banking business at Fargo, N. D.; that the banking business was discontinued on January 31, 1891, but that the firm was not dissolved until June 20, 1893; that the assets of the firm then consisted of money, notes, credits, book accounts, and other property, both real and personal, which was of great value; that the defendant had the sole control of the assets of the firm, after the discontinuance of the banking business, until June 20, 1893; that during the existence of the copartnership the defendant had continued to act, as before, as agent of the plaintiff in the matter of loaning and investing the latter’s money; that from 1883 to June 20, 1893, the plaintiff: and defendant had never had a final settlement, and that such settlement at the latter date involved an intricate and careful accounting.</p> <p>Besides the foregoing averments, the answer and cross bill contained the following specific allegations, to wit: “That in said month of June, A. D. 1893, there was, and for some time prior thereto there had been, a financial crisis and money stringency existing throughout the United States, and that it was almost, if not quite, impossible for the defendant, or any other person, to realize immediately a large sum of money. That the defendant was then largely engaged in business of various kinds, and had a large amount of valuable property and assets, and had as well large liabilities; and that, in view of the matters and things aforesaid, the defendant, in said month of June, A. D. 1893, believed * * * that it was -vital to the defendant’s interests, financially and otherwise, to maintain the financial credit which he then enjoyed, and to prevent, if possible, the happening of any event calculated or liable to injure, damage, or impair his financial standing or credit. That the complainant, in said month of June, A. D. 1893, well knew the financial condition then existing, and of the great business depression incident thereto, and that the defendant was then engaged largely in business, having a large amount of valuable property and assets and large liabilities, and that it was then vitally important to the defendant to maintain his financial credit; and that in view of the facts so known to complainant, and in the said month of June, A. D. 1893, the said complainant unjustly, wrongfully, and in bad faith sought to take advantage of the existing facts and circumstances, and did wrongfully and in bad faith take advantage of the said existing facts and circumstances in the matter of coercing the defendant into the making of an inequitable and unjust settlement of the said matters, accounts, and things then in controversy between the defendant and the complainant, and into the making of a settlement by which the complainant should have and receive a larger share and proportion of property, or its equivalent in money, than be was justly entitled to upon a fair and equitable settlement. That during the negotiations betweenthe defendant and the complainant for and as to a final settlement of the matters and things aforesaid the complainant evidenced toward the defendant in many ways a hostile and malicious state of mind, to such an extent that the defendant had good cause and reasonable ground to believe, and did then believe, that the complainant was in such an unfriendly and malicious condition of mind towards the defendant that he would in some way or manner injure and damage the defendant by statements and declarations calculated to affect and injure the defendant’s financial standing and credit. That the defendant’s financial standing and credit at said time was sound and good, but that the defendant then believed that any false or scandalous statements made against the defendant’s financial standing and credit, or any attack whatever against the same, particularly by the complainant, who had for such a long time sustained business relations with the defendant, would at that particular time, and under the peculiar conditions and circumstances then existing, greatly damage the defendant, if not utterly ruin him, by rendering it impossible for him to raise money with which to meet his liabilities, except at a large and great sacrifice of property, both real and personal, and by rendering the defendant liable to be then called upon for payments of money that otherwise would not then be demanded. That in the said month of June, A. D. 1893, the complainant, with full knowledge of said financial condition and business depression of the country at large, did threaten to institute an action in equity against the defendant for the purpose of securing an accounting and settlement of the said matters, accounts, and things then unsettled, and to pray in said action the ax>pointment of a receiver over and of the property and assets of said copartnership, and over and of all of the property in the possession or control of the defendant in which the complainant then had an interest. That the said threat was made by the said complainant for the sole purpose of enforcing and obtaining an unfair and unjust settlement of the accounts, matters, and things aforesaid. That the defendant then believed that unless heshould at once make a settlement with thecomplain-ant of such accounts, matters, and things, that the complainant would carry out his said threats, and would institute such action in equity; and that the institution of the same at said time might, and probably would, irreparably injure and damage, and possibly financially ruin, the defendant. That in order to' prevent the institution of such an action by the complainant, and in order to prevent the complainant from saying or doing anything at said time or while said financial deiDression continued that might or could by any possibility impair or injure the defendant’s financial standing or credit, the defendant determined that he would make such final settlement of the accounts, matters, and things aforesaid as was then demanded and insisted upon by the complainant, although, in the opinion of the defendant, the same was unjust and unfair, provided the complainant would expressly promise and engage that he would not then and thereafter say or do anything that could by any possibility impair or injure the financial standing or credit of the defendant. That-on the said 20th day of June, A. D. 1893, the defendant, for and in consideration of the promise made by the complainant to him that he, the complainant, would not in any way or manner say or do anything affecting or which might or could affect the financial standing, integrity, or credit of the defendant, or which would have a natural tendency so to do, or say or do anything reflecting upon, or which could by any possibility be deemed by any person or persons as reflecting upon, the sound financial standing, integrity, or condition of the defendant then or thereafter, or in any way or manner then or thereafter impugn the fairness or good faith of the defendant in making a final settlement with said complainant of and concerning all matters and things Connected with said agency, copartnership, and ownership of lands, .and of all matters and things then in dispute between the defendant and the complainant, concluded and effected a full and complete settlement in writing with said complainant of all matters and things connected with and arising out of said agency, copartnership, and ownership of lands, the same being in fact a final settlement of all accounts, matters, and things then in dispute or otherwise between the defendant and the complainant, connected with or arising out of said agency, copartnership, and ownership of lands, and of all the interests, rights, claims, and demands of the defendant and complainant upon or with respect to each other, iheir several heirs, executors, administrators, and assigns.”</p> <p>The bill next averred, in substance, that the mortgages songht to be foreclosed in the present suit where executed as a part of said final settlement, and to carry out the terms and provisions thereof. The answer and cross bill also contained the following specific allegations, to wit: “That all of the property. both real and personal, which by the terms of said settlement was to become the property of the defendant, was so valued by the defendant, for the purpose of said final settlement, far above its actual value, and that a large part of said property, which by the terms of said settlement the defendant was to take and own for his own use and benefit, has since the execution and making of said final settlement, greatly depreciated in value, and that none of said property so taken by the defendant has appreciated over and above such estimated values. That the complainant. In violation of his said promise and agreement, after making said settlement with the defendant, and subsequent to the delivery to him of the said promissory notes, mortgages, and conveyance, frequently, openly, and willfully attacked the financial credit, integrity, and standing of the defendant by statements and declarations made by him, the said complainant, to divers persons residing’ and being in the state of North Dakota, with respect to the financial standing, integrity, and condition of 1lie defendant, in and by which said statements the said complainant alleged and declared that the defendant was financially irresponsible, that all of the property of the defendant was heavily incumbered, and that the defendant was financially bankrupt and insolvent; and that the complainant further, by declarations to third persons, frequently impugned the honesty and good faith of the defendant as to and in the making of said final settlement, and thereby violated and failed to keep and perform his said promise, to the great and irremediable damage of the defendant. That not only has the defendant suffered and sustained irremediable damages by reason of the violation of such promise and agreement by the complainant, but that the said violation by the complainant of his said agreement was in a large measure, if not solely, •the reason Cor the defendant’s Inability to raise money and funds with which to pay those certain interest coupon notes which matured and became due, according to their terms, on lite 20th day of June, A. D. 1804. That by reason of the defendant's failure and inability to pay said interest eoupon notes when due, to wit, on the 20th day of June, A. 1). 1894, the complainant did, on the 28th day of June, A. D. 1891, serve upon the defendant written notice of his election and intention to declare the whole sum secured by said mortgage and otherwise as aforesaid to be due and payable. That the violation of the complainant’s said agreement, coupled with (he financial depression existing at The lime, and which the defendant and the complainant liad in mind and in view at the time when the defendant stipulated for and exacted such promise from the complainant, to wit, at the time of the making of said settlement, rendered the defendant unable to pay the said coupon interest notes which matured on the said 20th day of June, A. D. 1894, and resulted in the demand made upon the defendant by the complainant for the payment forthwith of the whole sum of $.‘12,000, together with interest thereon during a continuance of said financial depression, and at a time when it was and is utterly impossible for the defendant to realize and pay such a sum of money, except, if at all, by the sale of real and personal property at great loss, sacrifice, and damage to the defendant. That by reason of said statements and declarations so made by the said complainant to divers persons, the sole consideration moving from the complainant to the defendant or received by the defendant for the execution and delivery of the said several instruments, and each of them, and for the making of said final settlement, has wholly and utterly failed! That the sole purpose and object of the defendant in making said final settlement has been and was defeated by reason of said statements and declara^-tions so made by complainant. That, but for the said, promise of the complainant, the defendant would never have agreed to pay to the complainant the sum of $32,000, or any other sum, until all the actual value of all the property involved in said settlement had been ascertained and determined either by agreement or judicial determination, and the true amount to which the said complainant was entitled, if any, had been thus, or in some other way, accurately and truly ascertained and determined.”</p> <p>The complainant below filed a replication to the aforesaid answer and a demurrer to the cross bill, which demurrer was sustained, and thereupon an order was entered dismissing the cross bill. Subsequently the case was referred to a master, with directions to report to the court separately his findings of fact and conclusions of law upon the issues raised by the bill, answer and replication. On the coming in of the master’s report, the same was confirmed, and a decree was entered in accordance with the recommendation of the master, foreclosing both mortgages, and directing a sale of the property therein described for the satisfaction of the mortgage debt. The case comes to this court on an appeal taken by the defendant from the decree of foreclosure, and also on an appeal’ from the order sustaining the demurrer to the cross bill and dismissing the same.</p>

<p>1. Taxation — Sales op Property Held by State.</p> <p>Under the Louisiana statute of 1888 (Act No. 80), where property acquired by the state for nonpayment of taxes is sold, not only the purchaser from the state, but also his vendee, is liable for the taxes due on such property.</p> <p>2. Same — Assessment of Lands Held by State.</p> <p>Under the said act, lands acquired and held by the state because of nonpayment of taxes are subject to taxation, state and municipal, not only for one year immediately after their acquisition by the state, but for all tlie years they are held by it.</p>

On December 23, 1892, tlie Capital National Bank of Lincoln, Neb., -was, and for eight years theretofore liad been, a national banking association incorporated and doing business as such under the acts of congress relative to national banks. It had a nominal capital of $300,000.

<p>In Error to the Circuit Court of the United States for the Middle District of Tennessee.</p> <p>This action was on a policy of insurance for $10,000 issued December 2, 1892, by the Penn Mutual Life Insurance Company to John Schardt, on his own life. Schardt died April 17, 1893, during tlie currency of tlie policy. Just before his death ho had assigned the policy to the Mechanics’ Sayings Bank of Nashville, to secure a large debt owed by him to the bank. Since his death the bank has made a general assignment for the benefit: of creditors to J. J. Pryor, for whose benefit, as assignee, this suit was brought. The trial resulted in a judgment for the full amount of the policy and interest, in favor of the plaintiff below, and the insurance company brings the judgment here for review on writ of error. The defendant filed 19 pleas to the declaration, averring that both by misrepresentation of facts warranted to be true in the application and policy, and by concealment of a fact material to the risk, the policy was avoided.</p> <p>The opening words of the policy were:</p> <p>“In consideration of the application for this policy, which is hereby made a part of this contract (a copy of which Is hereto attached), and of the payment by John Schardt of the premiums as hereinafter provided, the Penn Mutual Life Insurance Co. hereby promises to pay at its home office, in the city of Philadelphia, Pennsylvania,” etc.</p> <p>The questions and answers in the application which are material to the controversy here were as follows:</p> <p>“1, A. Clive your name in full and post-office address? A. John Schardt, Nashville, T'enn.</p> <p>“B. Present and previous occupations? (State kind of business.) B. Present teller in Mechanics’ Bank. Previous, same.”</p> <p>"(i, A. Have you your life insured in this or any other company? (If so, give the name of each company, and the kind and amount of each policy.) A. Yes; if 10,000 in Northwestern, 20 pay life; $5,000 in Aetna; $1,000 in N. Y. Mutual Life, renewable term.”</p> <p>After these answers this statement was signed by the applicant:</p> <p>“I hereby warrant and agree, that I am temperate in my habits, now in good health, and ordinarily enjoy good health, and that in the statements and answers in this application no circumstance or information has been withheld touching my past and present state of health and habits of life, with which the Penn Mutual Ufe Insurance Company ought to be made acquainted; * * * and that the statements and answers to the printed questions above, together with this declaration, as well as those to be made to the company’s medical examiner, shall constitute the application, and be the basis of this contract, and the place of contract shall be the city of Philadelphia, state of Pennsylvania.”</p> <p>Then followed the medical examination of the Insured, of which only the questions and answers given below have a bearing on the issues in this case:</p> <p>“*9, A. How long since were you attended by a physician or professionally consulted one? *A. A year.</p> <p>“B. For what disease? *B. A cold.</p> <p>“O. Give the name and residence of such physician? C. Dr. T. E. Enloe, Nashville, Tenn.”</p> <p>“11, A. Do you now use Intoxicating liquors? A. None whatever.”</p> <p>“C. Have you always been temperate in their use? (If not, explain the duration and extent of excess, and when last.) O. Yes.</p> <p>“32. A. Have you ever used opium, morphia, chloral, or any narcotic, unless regularly prescribed by a physician? (It so, explain fully.) A. No.</p> <p>“B. Have you had asthma, consumption, spitting of blood, habitual cough and expectoration, palpitation, or any disease of the throat, heart or lungs? B. None except — No.</p> <p>“O. Have you ever had cancer or any tumor, chronic diarrhoea, discharge from the ear, dropsy, listula, gall stones or gravel, open sores, inflammatory rheumatism, gout, syphilis or stricture, or any disease of the liver, kidneys, or bladder? 0. None except — No.”</p> <p>“14. Have you had any illness or disease other than as stated by you above? (If so, state full particulars.) No.</p> <p>“Give here particulars as to date, duration, severity, etc., of each disease you have had.</p> <p>“*Explain fully 9, A and B.</p> <p>“None.</p> <p>“It is hereby agreed: That all the foregoing statements and answers made to the company’s medical examiner are warranted to be true and are offered to the company as a consideration of the contract.”</p> <p>It was conceded that at the date of the application Schardt had a policy for $5,000 in the New York Life Insurance Company, which he failed to mention. In order to show an intent on his part to deceive by this omission, defendant offered to show that in applications for policies in other companies for $25,000 each, made by him, one in February, 1893, and the other early in March following, he had also untruly stated the amount of existing insurance on his life. This offer was rejected by the court. Schardt’s salary as teller was $1,500, and he had but a small amount of property. When he died in April, 1893, he had $80,000 of insurance on his life, nearly all of which had been written within six months. It was conceded that, for more than a year prior to his death, Schardt had been constantly embezzling the funds of his bank, and that his indebtedness to the bank thus criminally incurred amounted at the time of the application for this policy to little less than $100,000, and at his death exceeded that sum. He did not disclose the fact of his crime, to the defendant at the time of his application, or at any other time. His death in April, 1893, was caused by congestion of the brain and other vital organs, caused by the mental strain which a disclosure of his crime brought on. Defendant introduced evidence tending to show that, six years before the application, Schardt had had the syphilis, a venereal and constitutional disease; that thereafter he had sore throat, due to syphilis; and that in 1892 he had had the gonorrhea, a venereal disease. In rebuttal, plaintiff adduced evidence making it probable that Schardt din not have the syphilis, but only a local sore, difficult to distinguish from the first symptom of syphilis, called a “chancroid,” which was of no seriousness as a disease; that its resemblance to syphilis in the first stages induced a treatment for syphilis; that the result of such treatment was a cauterization of the throat, and a subsequent-local inflammation of the throat; that Schardt then changed his ifflysician, and employed Dr. Enloe, the one named in the application, who became the regular physician of himself and family during the next six years until his death, and during this period treated him for this throat trouble, and for indigestion, at times. Evidence was introduced by plaintiff tending to rebut testimony for defendant .that Schardt was afflicted with gonorrhea, in 1892. Defendant called insurance experts to testify in regard to the materiality of the facts in respect to which it was claimed that Schardt had been guilty of misrepresentation or concealment. The court permitted the experts to say whether, in their opinions, the facts misstated or concealed were material, but refused to allow them to say whether, by the usage of all insurance companies, such facts were regarded as material to the risk.</p> <p>The defendant requested the court to instruct the jury to bring in a verdict for the defendant because it appeared by the, undisputed evidencethat Schardt's warranties of the truth of his representations in regard to facts material as a matter of law had been broken, and the policy avoided, in the following particulars, to wit; First, in that the amount of existing insurance of his life was greater than stated; second, in that he had had the syphilis; third, in that he had had a sore throat; fourth, in that he had had a chancroid; fifth, in that he had had indigestion; sixth, in that his occupation was that of an embezzler, as well as bank teller. Defendant asked the same instruction on the ground that Schardt had concealed from it and its agents the fact that he was an embezzler in the sum of $100,000, — a fact claimed to be material to the risk, as a matter of law. These requests were refused by the trial court on one ground, among others, that by the terms of the policy this was a Pennsylvania contract, and was to be construed in the light of a statute of that, state which made the effect of a breach of these warranties in avoiding the policy to depend on the materiality of the fact misrepresented, or the good faith of the applicant, and that under such a construction the materiality of the fact misstated was a question for the jury, and so, also, was the good faith of the applicant. The court charged the jury that the plaintiff was entitled to recover the amount of the policy unless the defendant could show that Schardt had made untrue statements, and that .the facts thus misrepresented were material to the risk, or that they had been misrepresented with intent to deceive the company, and that the burden of es-(ablishing these defenses was on the defendant. The court accordingly submitted to the jury the question whether the fact that Schardt had a policy in the New York Life Insurance Company was material to the risk, and, if not material, whether the omission by Schardt to include it in his answer was in good faith. He took the same course with respect to the other representations, leaving the question of their untruth, materiality, and good faith to the jury. The defendant excepted to so much of the charge as imposed upon the defendant the burden of showing that Schardt’s failure to include in his existing insurance the New York Life policy was with intent to defraud, or that it was material to the risk, and requested upon this subject the following charge, which the court refused: “The undisputed evidence shows that Selinrdt omitted to disclose, in Ms answer to question C, A, that, in addition to the insurance therein stated, he had been insured, and was then insured, and had a policy, in the New York Life Insurance Company, for live thousand dollars, which it was his duty to have done. The presumption is that he knew of this additional insurance. In fact, it is not controverted that he did. The presumption, also, is that he intentionally suppressed the fact. The presumption, also, is that the question, answer, and information sought by the question, as well that disclosed as that suppressed, were ma-rerial. The defendant makes out a prima facie defense; by referring to the question and answer, and proving the omission to state in his answer the policy' in the New York Life Insurance Company; and the burden is on the plaintiff to show that the omission was not intentional, and that the matter suppressed was not material.’’ Upon the question of concealment of the fact, ihe court charged the jury as follows: “It is again insisted, as the cotirt understands die line of defense, that, in addition to the answers which it is alleged are false, that the insured concealed from the insmance company a fact about which no was not asked in the policy, and that by reason of that, concealment the policy is avoided. That fact is that he was at the time a defaulter to the bank of which he was an officer. Now, it is not insisted that this is a false answer to anything asked here, because in the policy and in ihe application there is no answer made upon that point at all; and, in the absence of any answer at all upon the point, it constitutes no part of the written application or policy, and is therefore not governed by the same rule as stated to you as governing the other propositions. If the answers to the written questions were false and material, as explained to you, that would avoid the policy, without more, but in respect to a fact, about which no question is asked, in order that the concealment from the company of such a fact as that should avoid the policy, it must have been intentionally concealed; and the omission to state it because the insured did not think it material, or the entire omission to speak of it because not asked about it, or because it was at the time not recollected or was forgotten, or its omission in any maimer in good faith, would not avoid the policy. Por the concealment of a fact such as that, outside of anything asked in the policy to have that effect, as stated, it must have been intentional.” To this action of the court the defendant took the following exceptions: “(4) Said counsel next then and there excepted to so much of said charge as instructs the jury that before the failure of .Tohn Schardt, the insured, to disclose to the defendant company the fact of his defalcation to the plaintiff bank, at the time of the application and policy in question, could be available as a defense to his action, the concealment must have been intentional on the part of the said insured, and lhat, if his failure to divulge the fact arose from any of the causes stated in said charge, that such defense could not be established; and said counsel, insisting that the purpose, design, or intention of the insured in withholding the fact from the knowledge of the company is not material in making out said defense, except to the opinion of the court in its decision to the contrary.”</p>

<p>In Error to the Circuit Court of the United "States for (he District of Indiana.</p> <p>Plaintiff in error is the proprietor of a daily newspaper published in Cincinnati. On August 27, 1892, Mrs. Annie M. Johnston, defendant in error, was, and for some months had been, a resident of the city of Logansport, in the state of Indiana. She was a widow, with three small children, and she resided at an hotel in Logansport, kept by one J. D. Johnston, a brother of her deceased husband, and called the “Johnston House.” On the day next after the date mentioned, the following matter appeared in said newspaper:</p> <p>“Miss Scull Told on Her Landlord. His Wife Hot Irate, and the Housekeeper was Bounced. A Peculiar Hotel Strike.</p> <p>•‘Special Dispatch to the Enquirer.</p> <p>“Logansport, Indiana, August 27. — A decided novelty in the way of a strike occurred here to-day, and the Johnston Hotel, one of the city’s leading hostelries, has been almost forced out of business for the time on its account. All of the female help have quit. The city being notoriously short in this line already, the proprietor is experiencing considerable trouble in filling the twenty-live vacancies existing. The trouble grew out of the discharge of tlio housekeeper, Miss Emma Scull, which occurred last evening. Miss Scull came here from Leavenworth, Kan., several years ago, and has made an enviable reputation by the neat and painstaking maimer in which she conducted affairs at tlie Johnston. In an interview this morning with the proprietor and landlord, J. D. Johnston, the Enquirer correspondent learns that the housekeeper was fired for making trouble between himself and wife. Mrs. Johnston is away on a visit with her brother, Thomas Dugan, of Springfield, Ohio. During her absence the housekeeper kept Mr. Johnston under surveillance, and this week wrote his wife a letter accusing him of undue intimacy with the wife of a deceased brother. Mrs. Johnston, according to the landlord’s own words, ‘being naturally of a jealous disposition, immediately became enraged upon receipt of this letter, and wrote back, raising h-1/ It didn’t take Mr. Johnston very long," after getting this letter, to see the housekeeper and give her her time. The other girls, upon learning or ner uis-charge, also packed their personal effects, and walked out in a body, with their Saratogas under their arms.”</p> <p>The issue of the paper containing this was sold on the streets of Logans-port by newsboys, and at news stands, and elsewhere throughout the country. Defendant in error brought suit for libel in the circuit court of Cass county, Ind. The cause was transferred to the circuit court of the United States for the district of Indiana, and there she recovered a judgment for S4,000.</p>

<p>Action to recover from the Chicago, Rock Island & Pacific Railway Company and the receivers of the Union Pacific Railway Company damages resulting to plaintiff from the death of her husband, who was killed on the Union Pacific Railway, a few miles west of Kansas City, in a collision between two trains, on the 2d day of January, 1894, which were being operated on said railway.</p> <p>The, Rock Island Company owned and operated a railway from Denver to the city of Topeka, and its trains were run and operated over the Union Pacific Railway from Topeka to Kansas City, and from Kansas City to Topeka, under a contract made between the Union Pacific Company and the Rock Island Company. The contract, among other tilings, provided that the Union Pacific Company should make rules and regulations for the operation 1 of its railway between the points above mentioned, which should have like application to all engines and trains which may be moved over said railway, and that the trains of both companies should move under and in accordance with the orders of the superintendent or train dispatcher of the Union Pacific Company. The Rock Island train was manned by employés hired and paid by that company. The deceased, at the time of the collision, was in charge as conductor of the Union Pacific train, and was an employe of and working for that company. Jibe plaintiff alleged in her petition that the death of her husband was caused by the negligence and carelessness of the employes of the Rock Island Company in charge of its train.</p>

In JError to the Circuit Court of the United States for the Eastern District of TsTew York. This casi1 comes here on a writ of error to review a judgment of 1ho circuit courl, Eastern district of Yew York, entered May 9, 1895, for §(>,192.49, in favor of the defendant in error, who was plaintiff below.

<p>Limitations — Accruing of Right — Money Had and Received.</p> <p>Thg town of M. issued certain bonds, which were placed in the hands of an' agent to negotiate. The agent sold the bonds, and absconded With the proceeds. A purchaser of part of the bonds afterwards brought suit on them against the town, which defended the suit on the ground that the bonds were issued without authority of law. and this defense was sustained. The bondholder then made a demand upon the town for the money paid its agent for the bonds, or for a sum • which the town had recovered from the defaulting agent, in case its liability were held to be limited to the amount it had actually received, and, such demand being refused, filed a bill against the town to obtain the same relief. Held, that the accruing of plaintiffs right of action was not postponed until the making of his demand, but the same arose at least as soon as the town, by interposing its answer in the action on the bonds, denied its liability, and more than six years having elapsed since that time, during which plaintiff was at liberty to assert his claim in his action at law, his right was barred. :</p>

<p>1. Evidence — Market Value.</p> <p>Upon a question of the market value of Arizona onyx, it is not error to refuse to permit a witness to testify as to the market value of Mexican onyx, there being no offer to show that the latter was equal, inferior, or superior to the former.</p> <p>2. Pleadtng — Replevin—Colorado Code.</p> <p>Under the Colorado Code of Procedure (sections 79, SO), which provides that “an action to recover possession of personal property” can be maintained in all cases where “the plaintiff is the owner of the property * * * or is lawfully entitled to tlie possession tliereof,” and the same is “wrong, fully detained by the defendant,” a complaint which alleges that the defendant “wrongfully took” and “unlawfully detains” the property is sufficient., whether the defendant acquired possession wrongfully or in good faith, if. he has detained the property after demand.</p>

<p>In Error fo tlie United States Court in the Indian Territory.</p> <p>On September 23, 189T, -Manny G. Butler and Robert R Butler, partners as Butler Bros., were the owners of a stock of general merchandise situated in the town of Chouteau, in the Indian Territory, which was burned on that day. On September 24, 1891, Manny G. Butler and Robert ill. Butler made a general assignment for the benefit of their creditors to Orange Fuller, the defendant in error. He brought this ad ion as such assignee to recover from the Missouri, Kansas & Texas Railway Company, the plaintiff in error, the value of this stock of goods, on the ground that the fire which destroyed it, was negligently set by the employes of that company. The company denied the negligence charged against, it, denied that Butler Bros, owned the stock of goods, and denied that they had assigned the claim for their destruction to the defendant in error. The case was tried to a jury, and a verdict was found and a judgment rendered against the railroad company. This writ of error was sued out to reverse this judgment.</p>

This was a writ of error to review a judgment for $1.7,435.39 rendered against the American Surety Company, defendant below, in tin; circuit court, Southern district of New York. The plaintiff below sued as receivin’ of the California National Dank, at San Diego, (o recover the amount of $15,000, to which extent the surety company had contracted to mala; good any loss resulting from the fraud or dishonesty of one George N. O’Brien, the cashier of said bank.

This is a writ of error to review a judgment of the circuit court, Southern district of New York, for $28,521.16, entered upon the verdict of a jury against the American Surety Company. The plaintiff below sued as receiver of the California National Bank of San Diego, Cal., to recover the amount of a bond for $25,000, issued by the company, insuring the bank against any act of fraud or dishonesty committed by its president, one John W. Collins.

<p>Damages — Amount—Personal Injuries.</p> <p>In an action by an infant of tlie age of seven years, brought by her next friend, against a railway company, to recover damages for personal injuries resulting in the loss of plaintiff’s right leg below the knee, the jury gave plaintiff a verdict for $1,100. There was no proof of any expense incurred, or pecuniary loss. Held, that the amount of the verdict, though less than the court would have approved, did not afford such evidence of bias, passion, prejudice, of mistake as to justify setting it aside as inadequate.</p> <p>See decision on motion to strike out part of answer in 70 Fed. 679.</p>

This was an appeal by L. E. Schalleuberger from a decision of the board of general appraisers affirming (he action of the collector of the port of San Francisco in assessing a duty on certain reimported American bags upon which a drawback had been allowed.

This was an appeal by Gardner & Thornley from a decision of the board of general appraisers affirming the action of the collector of the port of San Francisco in respect to the classification for duty of certain imported bones.

<p>L Assignment of Patents — Bona Fide Purchasers — Notice.</p> <p>Where an assignment of a patent contains recitals indicating a possible outstanding interest in another party, the assignee is chargeable with notice of every fact in reference to such interest which diligent and honest inquiry would have developed. A defect of title being brought to his knowledge, no inconvenience will excuse him from the utmost scrutiny.</p> <p>2. Same — Assignor Holding as Trustee.</p> <p>A purchaser, who has reason to believe that the party offering a patent for sale holds it either as trustee or agent for a third person, cannot become a bona fide purchaser for value by relying on the statements of the suspected trustee or agent either as to his authority or as to his beneficial ownership. Inquiry must be made of some other person, who will have a motive to tell the truth in the interest of the cestui que trust or principal.</p> <p>& Res Judicata — Decree for Assignment of Patent.</p> <p>A bill was brought to compel one S., an inventor of flour-milling apparatus, and others, to perform a contract requiring him to convey to complainant all the patents for flour milling which he .should thereafter “obtain” or “procure,” and also to annul certain alleged fraudulent assignments, made by him, of various patents, designated by name and number, and “all other letters patent relating to the manufacture” of certain described kinds of milling machinery which the complainant “then owned or controlled, or in which it then had any joint or other interest.” The bill prayed a discovery by defendants of all patents or patent interests controlled or owned by the complainant, which, they claimed, passed by said fraudulent assignments, and a conveyance thereof to complainant. Held, that the decree properly included a patent, not specifically designated ig the bill, which the said S. had obtained by assignment from another, and which was of the description of inventions in which the contract gave complainant a right, and that, consequently, the decree with reference to that patent was responsive to the issues made by the bill, and was conclusive against one who purchased from the defendant pending the suit. 65 Fed. 996, affirmed.</p>

<p>3. Patents — Infringement Suits — Demurrer to Biul — Judiciau Notice.</p> <p>It seems that, where the question of the validity of the patent sued on is raised by demurrer to the bill, other patents referred to in the patent for the purpose of showing the extent and nature of the invention are not brought before the court, so as to require it to taire j udieial notice of what the inventions covered by those patents are, but that the court is restricted to what appears upon the face of the patent sued on, and that common knowledge in respect to the subject-matter which the well-informed pul) 11c are presumed to possess.</p> <p>8. Same.</p> <p>On demurrer to the bill for want of patentability, the court Is not at liberty to apply any special or peculiar knowledge which it may possess, or the skill possessed by experts, but may apply only that knowledge which is possessed by ordinarily well informed people. American Fibre-Chamois Co. v. Buckskin-Fibre Co., 72 Fed. 508, followed.</p> <p>8. Same — Invention—Force and Drain Faucets.</p> <p>In a combination constituting an alleged improvement in force and drain faucets, there is no invention in merely bending the piston rod of the air pump inward towards the faucet, so that both may be carried through the same opening in the casing.</p> <p>4 Same.</p> <p>The Weatherhead patent, No. 353,723, for “improvements in force and drain faucets,” held void on its face for want of patentable invention.</p>

<p>1. Appeal — Waiver of Assignments of Error.</p> <p>Failure of counsel, either in his brief or oral argument, to allude to one or,more of his assignments of error, is a waiver thereof.</p> <p>S. Patents — Infringement Suits — Demurrer to Bill.</p> <p>It is now well settled that the question of novelty or invention may be raised by demurrer to the bill; that in considering this question the court may taire judicial notice of facts of common and general knowledge tending to show want of novelty or invention; and that it may refresh and strengthen its recollection of what facts were of common and general knowledge at the date of the application by reference to any printed source of general information known to the court to be reliable, and to have been published prior to the application. But the court must keep strictly within the field of common knowledge, taking care to distinguish and exclude matters within its own special knowledge; and, if it have any doubt whatever on the question of novelty or invention, it must overrule the demurrer.</p> <p>8. Same — Mechanical Process.</p> <p>A process of rendering wood-fibre paper soft and pliable, by moistening it with a thin water solution of gelatin, and then crumpling and pounding it, and finally drying and smoothing it, is not a mere mechanical process or aggregation of functions, within the doctrine of Locomotive Works v. Medart, 15 Sup. Ot. 745, 158 U. S. 68, but is a true process, within Cochrane v. Deener, 94 U. S. 780.</p> <p>4. Same — Anticipation.</p> <p>A patent which provides, as one step of a process, for moistening wood-fibre paper with a thin water solution of gelatin, is not so clearly anticipated by a patent which calls for the use of a “suitable size” for a similar purpose as to authorize a court to declare it invalid upon demurrer to the bill. 69 Fed. 247, reversed.</p> <p>6. Sash-; — Fikkh Cuamoih.</p> <p>The McLauchlin patent, No. 511,789, held not so clearly wanting in novelty and invention, or so clearly anticipated, as to warrant the court in declaring it invalid on demurrer. Held, further, that the patent is not for a more mechanical process, or aggregation of functions. 69 Fed. 247, reversed.</p>

<p>L Patents — Construction—Fibre-Chamois Paper.</p> <p>The McLauchlin patent No. 511,789, for an improved process for the manufacture of imitation dressed chamois buckskin from paper pulp in sheets, if valid at all, is limited by the prior state of the art. and by the language of the original specifications and of the patentee’s prior Canadian patent, to the crumpling and pounding of the paper when moistened with a thin solution of gelatin, or other adhesive solution, and is not infringed by treating in a similar manner paper moistened merely with water.</p> <p>8. Same — Misconduct of Patent Owner.</p> <p>The act,.41 of a patent owner in harassing purchasers with threats of litigation, when no possible ground of action exists against them, even if the patent is valid; in attempting to dismiss his bill, whereby defendant, in order to prevent it, is compelled to file a cross bill; and in delaying the taking of evidence until after defendant begins the taking of testimony, — is not such as commends the cause to a court of equity.</p>

<p>Patents — Validity—Button-Fastening Staples.</p> <p>The Vinton and the Prentice patents, Nos. 324,053 and 451,070, respectively, both for improvements in button-fastening staples,- held, void on demurrer for want of a patentable invention, apparent on the face of the specifications. 69 Fed. 592, affirmed. .</p>

<p>This was a suit in equity by Richardson and others against Campbell & Hmith for alleged infringement of a patent for a garment, hook.</p>

<p>Appeal from tbe Circuit Court of the United States for the Northern District of Illinois.</p> <p>This was a suit in equity by the Thomson-Houston Electric Company against the Western Electric Company and Enos M. Barton for alleged infringement of letters patent No. 238,315, issued March 1, 1881, to Elihu Thomson and Edwin J. Houston, for a current regulator for dynamo-electric machines. This court heretofore (16 C. C. A. 642, 70 Fed. 69) affirmed a decree of the circuit court (65 Fed. 615) declaring the patent void because of anticipation by letters patent No. 223,659, granted to the same parties January 20, 1880. A petition for a rehearing is now denied.</p>

This was a libel by James Orouckett and James Hanley against the barge Potomac (Niagara Falls Paper Company, claimant), to recover extra wages. The district court made a decree in favor of libelants (66 Fed. 348), and the claimant appealed.

<p>1. Towage— Unsafe Anchorage — Custom Usage.</p> <p>The Brown anchorage, in Delaware Bay, held, on the evidence, and especially in view of the fact that vessels of all kinds, including barges, habitually anchor there when weather-bound, to be a safe and proper anchorage for coal-laden, sea-going barges, while awaiting the subsidence of unfavorable easterly weather; and that a tug having such barges in tow was not liable for tlieir loss during an extraordinary and terrific gale, either for anchoring them at that place in the first instance, or for not removing them further up the bay before the storm broke. 55 Fed. 1008, reversed.</p> <p>2. Sauk — Duty of Tug — Discretion of Master.</p> <p>A mistake of judgment on the part of the master of a tug in selecting an anchorage for his barges does not render the tug liable for their loss, where such mistake Is ouly manifested by the result, and It appears that tile master exercised reasonable skill and judgment, in view of the circumstances existing af. ¡he time,</p> <p>8. Same — Tug Leaving Baughs at Anchor.</p> <p>The fact that a tug which anchored certain sea-going barges at the Brown anchorage, in Delaware Bay, pending threatening weather, and left them at their anchorage, and engaged in other towage in the meantime, held no ground of liability for their loss during an extraordinary storm, where it appeared that the barges were equipped with all the appliances for safe anchorage and were as capable of riding out a gale as full-rigged ships, that it was the common practice for tugs to leave barges so anchored, and that, even If the tug' had been present, she would have been unable to prevent the disaster. 55 Fed. 1008, reversed.</p>

<p>Towage — Loss of Babges — Liability op Tug.</p> <p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was a libel in rem by the Western Assurance Company of Toronto, Canada, against the tug Battler, to recover damages for loss of coal, insured by libelant, which was shipped on the barges Tonawanda and Wallace, and lost, with them, through the alleged negligence of the tug. Erank M. Neall, trustee, as claimant of the Battler, filed a petition for limitation of liability. See 58 Fed. 701. The district court hfeld that libelant was not entitled to share in the proceeds of the tug because it had refused to join with the owner of the barges in an attempt to hold the tug liable, and had stood by, pending the suit brought by him (see 55 Fed. 1006, and 72 Fed. 537), and did not present its claim until a* decree had been obtained therein. The court hold that, by such conduct, the assurance company had waived or forfeited its claim, in so far as the libelant in that suit was concerned. 67 Fed. 251. From this decree the assurance company appealed.</p>

<p>This was a libel by the International Navigation Company against the steamship Obdam to recover compensation for salvage services.</p>

<p>1. CIRCUIT Court op Appears — Jurisdiction—Interlocutory Decree — Dissolving Injunction.</p> <p>An order so modifying an interlocutory decree for a broad perpetual injunction against infringing a patent as to permit defendant to manufacture and sell for a limited time certain infringing machines is an order dissolving pro tanto the original injunction, and is, consequently, an appealable interlocutory order or decree, within the act of February 18, 1895, amending section 7 of the act of March 3,1801.</p> <p>2. Appeal prom Injunctional Decree — Effect of Supmrskdeas.</p> <p>An appeal with supersedeas from an interlocutory decree granting a perpetual injunction against infringement of a patent on a bond conditioned to prosecute the appeal, and, on failure to make the same good, to pay costs and damages, “as well as all damages and profits resulting from” defendant’s manufacture and sale of the infringing articles “after the date of the said decree,” only operates to suspend the injunction pending the appeal, and is not a license to defendant to continue the manufacture and sale of the infringing articles pending the appeal.</p> <p>3. Circuit Court of Appeals — Effect of Decisions.</p> <p>The decree and mandate of the circuit courts of appeal have precisely the same finality as the decrees and mandates of the supreme court. Whatever is before the court by virtue of the appeal, and is disposed of by it, is finally settled, and becomes the law of the case, so that the court below must carry it into execution according to the mandate, without power to modify, reverse, enlarge, or suspend it.</p> <p>4. Same — -Appeal From Interlocutory Orders and Deckees.</p> <p>It is the practice of the court that, on an appeal from an order or decree granting a preliminary injunction merely, the court will not ordinarily consider or determine the merits of the cause, hut will confine itself to a consideration of the question as to whether the court below has abused its discretion. Consequently, when such an order or decree is affirmed, the court below is still at liberty to enlarge, modify, or suspend the same, as the future circumstances of the case or the ends of justice may require.</p> <p>5. Same — Appeal from Interlocutory Decree for Perpetual Injunction.</p> <p>Where, on appeal from interlocutory decree granting a perpetual injunction, the court necessarily examines and determines the entire merits of the cause, its power to decree is not limited to the matter of the injunction alone, but extends to the whole merits, and its decision is final and conclusive on every point actually decided. Ooiisequenüy, the court below has no power to modify, in any respect, a decree which is thus affirmed, hut must give it. full effect in the very terms of the decree of the appellate court. Richmond v. Atwood, 2 G. G. A. 596, 52 Fed. 10, and Marden v. Manufacturing Co., 15 C. G. A. 26, 67 Fed. 809, followed. Watch Co. v. Robbins, 3 O. 0. A. 103, 52 Fed. 337, overruled.</p>

<p>1. Ciectjit Courts — Jurisdiction—Suits between Aliens.</p> <p>The circuit courts of tire United States Faye no jurisdiction of suits between aliens.</p> <p>2. Same — Consul as Party.</p> <p>The fact that a consul of a foreign nation is a party to a suit does not give the circuit court of the United States jurisdiction thereof.</p> <p>3. Same — Location oe Subject-Matter.</p> <p>The fact that a suit relates to land lying within the district does not give jurisdiction thereof to the circuit court of the United States, when it would not otherwise exist.</p>

<p>This was an action by William Sherry against the Oceanic Steam Navigation Company, Limited, to recover damages for a personal injury. The plaintiff had agreed in writing to pay his attorney one-half of any money realized by judgment, settlement, or otherwise, stipulating that the agreement should be a lien on any such money. After the commencement of the action it was settled between the parties, without the knowledge- of the attorneys on either side, by the payment of $100 by the defendant to the plaintiff. When the case appeared upon the calendar for trial, the defendant’s attorneys moved to strike it from the calendar as settled. Decision upon the motion was reserved, and the plaintiff’s attorney thereupon secured an order upon the defendant to show cause why he should not be allowed to prosecute the action for his own benefit. In his affidavit the plaintiff’s attorney alleged, upon information and belief, that the defendant knew of his contingent interest in the recovery, ’but this was positively denied by -the defendant’s agent and attorneys. The New York Code of Civil Procedure, as amended in 1879, provides as follows:</p> <p>Section 66. The compensation of an attorney or counsellor for his services, is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches to a verdict, report, decision, or judgment in his client’s favor and the proceeds thereof in whosoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment.</p>

<p>Service of Process — Managing Agent — California Statute.</p> <p>The statute of California relative to service of process (Code Civ. Proc„ § 411, subd. 2) provides that service upon a foreign corporation “doing business and baying a managing or business agent, cashier, or secretary within the state” shall be made by delivering a copy of the process to such agqnt, cashier, or secretary. The marshal made return upon a subpoena that he had served it upon “H., agent for” a foreign corporation, defendant. An uncontroverted affidavit, presented upon a motion to quash the service, stated that one L. was the managing agent of the defendant in the state. Held, that the service was bad.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was an action by A. Howard Ritter, executor of the last will of William M. Runk, deceased, against the Mutual Life Insurance Company of New York, to recover upon policies of life insurance. There were a verdict and judgment for defendant (69 Fed. 505); and on appeal to this court the judgment was affirmed (17 C. C. A. 537, 70 Fed. 954). After the going down of the mandate, the plaintiff in error filed the following petition in this court:</p> <p>The petition of A. Howard Ritter respectfully represents: That he is the plaintiff in the above cause, which is an appeal iron the judgment entered on the 2d day of December, 1895, in favor of the defendant, to wit, Mutual Life Insurance Company of New York, affirming the judgment of the coiirt below. That on the 8th day of January, 1896, a mandate was duly issued from this court certifying that the judgment of the said court below was affirmed, which said mandate has been filed in the court below. That the effect of said judgment in this court was to deny the right of your petitioner to recover certain moneys; and that, since said judgment was entered, no change in the relations, situation, or condition of either of the parties has been made or occurred, but they are now precisely as at the time said judgment was rendered. That your petitioner desires an appeal from the judgment of this court to the supreme court- of the United States. He therefore prays that the, said mandate be recalled, and that the said record be directed to be returned to this court, and that such other and further order be made herein as may be necessary to enable your petitioner to take and perfect his said appeal. And your petitioner will ever pray, etc. A. Howard Ritter, Exr.</p>

<p>1. Removal of Causes — Diverse Citizenship.</p> <p>A suit brought in a state court can be removed to a federal court on the ground of diverse citizenship only’’ when the defendant is a nonresident of the state in which it is brought. Thurber v. Miller, 14 C. C. A. 432, 67 Fed. 371, followed.</p> <p>2. Same — National Bank.</p> <p>A national bank cannot remove a.suit upon the ground that it is a federal corporation.</p> <p>3. Same — Federal-, Question — Complaint.</p> <p>A cause cannot be removed upon the ground that it involves a federal question unless, that fact appears from the plaintiff’s complaint.</p>

<p>Equity Practice — Abatement—Pendency of Other Suits.</p> <p>One E. died intestate. ' His widow was appointed administratrix, and instituted proceedings in a state court for distribution of his estate to herself and his mother, brothers, and sister, as his heirs. One H., a minor, intervened by guardian in these proceedings, claiming to be an illegitimate child of F., recognized as such by E., in writing, in his lifetime, and claimed one-half of the estate, as F.’s heir. The mother, brothers, and sister of'F. then began a suit in the United States circuit court, before any jurisdiction of them had been obtained in the state court, to have H.’s claims declared invalid; but, before they had obtained jurisdiction of H. in this suit, they appeared in the state court proceedings by an application to remove the same to the federal court on the ground of diverse citizenship, which application was granted. H. then filed a plea in abatement of the suit in the federal court,- on the ground that jurisdiction of all parties and of the issues raised was first obtained in the proceedings in the state court. Held, that as there was but one issue to be tried, which was the same in both proceedings, and as all parties were first served or appeared in the proceedings begun in the state court, an order should be made, in the suit begun in the federal court, suspending all proceedings therein until the questions raised in the other cause were disposed of, or until the further order of the court.</p>

<p>1. Comity between State and Federal Courts — Concurrent Jurisdiction.</p> <p>In cases of concurrent jurisdiction it is a fixed rale of the federal courts never to take jurisdiction of a cause which presents the same issues and seeks the same relief as are presented and sought in a cause pending in a state court. Oates v. Buoki, 4 O. C. A. 116, 53 Fed. 969, followed.</p> <p>2. Same — Creditors’ Bill — Mortgage Foreclosure.</p> <p>A hill was brought in a state court by simple contract creditors against a corporation, averring that it was wholly insolvent, that its funds and property were being improperly wasted and dissipated, and that a number of suits had been or were about to be brought against it. The hill prayed that a receiver be appointed, and that the officers and creditors of the corporation should be enjoined. To this hill no incumbrancers were made parties. Before service on defendant it made an assignment of. all its property for benefit of creditors. Afterwards a hill was filed in a federal court to foreclose a trust deed on the property of the corporation, and the corporation, its assignee for benefit of creditors, and other lien creditors, were made parties. Held that, as the complainant in this suit and the other lien creditors were not parties to the suit in the state court, its proceedings could not affect them; that the issues involved in the two suits were not the same, and that there was no conflict of jurisdiction which would prevent the federal court from entertaining the suit; but that, as the question of the validity of the assignment was reserved by the state court, and was within its jurisdiction, the federal court would not pass upon it.</p> <p>3. Same — Appointment oe Receivers.</p> <p>On an intervening petition by a receiver appointed by a state court, asking that certain property in the hands of a temporary receiver, subsequently appointed by a federal court, be delivered up, held that, although there was no conflict of jurisdiction between the two courts, yet as it appeared that the temporary receiver was ineligible for appointment as permanent receiver, and as embarrassing questions were likely to arise as to the rights of the parties suing in the two courts respectively in certain property in the possession of the receiver, the federal court would appoint as its permanent receiver the same receiver already appointed by the state court.</p> <p>4. Receivers— Appointment.</p> <p>A person who is connected with ’the firm of counsel for complainant is ineligible to appointment as permanent receiver of defendant’s property. Finance Co. v. Charleston, C. & 0. R. Co., 45 Fed. 436, followed.</p>

<p>Courts — Jurisdiction—Comity—Possbssion ov Property.</p> <p>Certain minority stockholders of the P. Co. commenced a suit, in a state court, on December 30th, against the P. Co., its president, the S. Co. and the D. Co., mortgage creditors of the P. Co., in which they alleged that the president, controlling a majority of the stock, was mismanaging the affairs of the P. Co., and had by his mismanagement caused its insolvency, but that with proper management the company could be relieved from its embarrassment, and prayed that the P. Co. and its president he restrained from exercising any control over its property, that its creditors be enjoined from bringing suits, and for the appointment of a receiver. Upon this bill, a rule to show cause why a receiver should not be appointed, with an injunction against the defendants and the creditors of the P. Co., was issued, returnable January loth. On January 6th the D. Co., one of the defendants in the suit in the state court, and holder of mortgages on the P. Co.’s real and personal property, but which, being a nonresident, had not been served, commenced a suit in the United States circuit court against the P. Co., for the foreclosure of its mortgages, making the necessary allegations to entitle it to a foreclosure of the mortgages and the appointment of a receiver, and thereupon applied for the appointment of a receiver. A receiver was appointed by the circuit court and took possession of the property. On the return of the rule in the state court, on January 13th, that court appointed a receiver in the stockholders’ suit, who then, on January 17th, intervened in the suit iu the federal court, and asked to have the possession of the P. Co.’s property turned over to him by the receiver of the federal court. Held that, as the controversies in the two suits were entirely distinct, and the relief sought antagonistic, the stockholders in the one seeking to keep the P. Co. a going concern and prevent the enforcement of the claims of creditors, and the mortgagee in the other suit seeking to enforce its lien, as the complainant in the federal court could not obtain the relief to which it was entitled, in the stockholders’ suit, without appearing therein and becoming an actor, and as the federal court’s receiver was in actual possession before the appointment of the state court’s receiver, the former would not be directed to surrender possession to the latter.</p>

<p>RlVEBS AND HARBORS — OBSTRUCTION TO NAVIGATION — ACT CoNG. SEPT. 19, 1890.</p> <p>Section 10 of the act of congress of” September 19, 1890, providing for the removal of unlawful obstructions to navigable waters, does not authorize the courts to decree the removal of a boom in a small navigable river, which, at the time of its construction, prior to the passage of the act, was fully authorized by the legislature of the state within which the river lies, and which is necessary to tlie use of the river as a highway for floating logs from forests on its hanks; the value of such logs being much greater than that of other products likely to be transported on the river, and the obstruction to navigation caused by the boom not being-complete.</p>

<p>CORPORATIONS — RECEIVERS—STOCKHOLDERS’ SUIT.</p> <p>Iu a suit brought by stockholders in a corporation against the corporation and its directors to stop alleged fraudulent and illegal transactions of the company, and to compel an accounting from the directors for profits unlawfully realized by them through breaches of their fiduciary obligations, and to procure the rescission of a fraudulent contract and the cancellation of spurious stock, where it is alleged that the directors are tools of and under the control of one of their number, who profits hy the frauds alleged, and who maintains his control by means of the spurious stock, the appointment of a receiver to collect and preserve the property of the corporation to meet the charges which the plaintiffs seek to establish is a proper remedy.</p>

<p>1. Contracts — Interpretation—Express Business.</p> <p>Prior to 1888 the express business of the E. R. R. was carried on by the E. Express Co. under a contract with the E. R. Co. On March 16, 1888, the W. Express Co. made a contract, with the E. Express Co. by which it assumed the latter company’s obligations under the contract with the railroad company, and immediately afterwards the- W. Co. made a contract directly with the railroad company for the conduct of the express business. By this contract it was agreed that, in consideration of a percentage of the gross receipts of the express business, the railroad company would furnish facilities for such business, and carry the express matter on its passenger trains, and that in case the amount of express matter should be too large to be conveniently carried on such trains, or if competition with other express companies should make it necessary, the railroad company would run special trains, so arranged as to enable the express company to compete with its rivals, and that, if the railroad company’s percentage of the receipts from the business of such trains should be less than the cost of running the same, the express company should pay the difference. In a subsequent clause of the contract the railroad company agreed that it would keep its equipment and train service in such a state of efficiency as would enable the express company to compete successfully with its rivals. At the time this contract was executed, special express trains were being run each way between the termini of the road. Shortly after the making of the contract the railroad company presented bills to the express company for the expense of these trains in excess of the railroad company’s receipts therefrom. The express company declined to pay the same, and, as part of a settlement of various differences, it was agreed that the bills should be withdrawn, and that the .railroad company would continue running the trains without extra charge. Subsequently it became necessary, in order to enable the express company to compete with its rivals, to expedite the running of these trains.' The length of the'railroad between its termini, and the character of its road, were such that under equal conditions it could' not make as good time as some of the competing lines, but it was conceded to be possible to make the service on the special express trains better than it was. 'Held, that the general provisions of that part of the contract which required the railroad company to maintain such, a train service as to enable the express company to compete with its' rivals •were' controlled by the specific provisions relating* to special- express Trains,' and payment of the extra cost thereof by'the express company; that the subsequent agreement oí settlement did not absolve the express company from obligation to pay for all further improvement in the train service which might become necessary; and that the railroad company was not hound to expedite the service of the special express trains, except upon payment of the increased cost by the exi>ress company.</p> <p>2. Same.</p> <p>The contract between the railroad company and the W. Express Co. provided that it should apply to certain named lines of road, and to all others which the E. R. Go. should lease, operate, or control, or over which it should have running arrangements. The K. R. Co. owned stock of, and had running arrangements with, another road, which had also a separate contract with the E. Express Go., which was assigned to the W. Express Go. at the time its contract with the E. R. Go. was made, and was recognized by the latter as existing. Held, that the fact that such road would, at the expiration of its special contract, come under the terms of the E. R. Co.’s contract, as a controlled road, did not make the E. R. Go. responsible for violations thereof occurring during its continuance.</p>

<p>l’lTBuo Lands — CaxcemiAtion of Patent — Inteukst in Land.</p> <p>Complainant filed a Lili against the patentee of a tract of public land, seeking to have the patent declared void on the ground of frauds alleged to have been practiced by defendant on the land department in obtaining it, and to be himself declared entitled to the land by virtue of an alleged preference right under ihe act of congress of May 14, 1880 (1 Supp. Rev. St. 282), giving such right to one who has contested, paid the fees, and procured the cancellation of a pre-emption, homestead, or timber-culture entry. -Complainant’s bill failed to show that he had ever contested defendant's entry. It showed affirmatively that defendant’s entry had not been canceled, and it did not aver that any evidence of the frauds which were claimed to vitiate defendant’s patent had ever been presented to the register or receiver of the land office. Held, that complainant had not shown any right to or interest in the land.</p>

<p>1. Equity Pleading — Form of Allegation — General Demurrer.</p> <p>An allegation of an essential fad in a bill in equity, by way of recital, but in such form that the existence of the fact appears by necessary implication, is good as against a general demurrer.</p> <p>2. Unfair Competition — Similar Corporate Names.</p> <p>Complainant, the Investor Publishing Company, alleged in its bill that it had for many years published a trade journal, called “The United States Investor,” which had acquired a high reputation and large circulation in the United States and other countries; that defendant the Investor Pub-lisliing Company of California liad begun the publication of a similar paper, called “The Investor,” at the head of the editorial column of which It placed the words “Published by the Investor Publishing Company”; and that such acts of the defendant had caused confusion in complainant’s business, diverted its trade, and caused damage to it. Held, that the bill stated a case for equitable relief.</p>

<p>These were petitions by J. W. G. Cofran and Rudolph Neumann, to procure payment of certain sums claimed by them, respectively, out of money decreed to Thomas Price as salvage, in the suit of said Price against the bark Elmbank. See 62 Fed. 306, and 16 C. C. A. 164, 69 Fed. 104.</p>

<p>1. Chattel Mortgage — Validity—Washington Statute.</p> <p>Under the statute of Washington relating to the lien of chattel mortgages, such a mortgage, unless accompanied by the affidavit required by the statute, and properly recorded, is void as to creditors, though they have actual notice of its existence.</p> <p>2. Same — Supplying Defects.</p> <p>The O. Co., a corporation organized and doing business in the state of Washington, made a mortgage of its real and personal property to secure a debt. The mortgage was recorded as a mortgage of real estate, but was not accompanied by the affidavit required in chattel mortgages by the statute of Washington, and was not recorded as a chattel mortgage. After its execution the O. Co. became indebted to one A.; but before A. secured judgment on his debt the necessary affidavit was attached to the mortgage, and it was recorded as a chattel mortgage. EM, that the mortgage thereupon became a valid lien upon the personal property of the O. Co., as against a judgment subsequently obtained by A.</p>

<p>1. Ratlkoad Aid Bonds — Compliance with Conditions.</p> <p>A provision, in an act authorizing an issue of county bonds in aid of a railroad, that they should not be valid obligations until the road is constructed through the county, so that a train of cars shall pass thereover, is not satisfied by the construction of the road from one boundary of the county to a point two miles short of the opposite boundary, where it connects with another road running outside the county.</p> <p>2. Same — Estoppel to Question Validity.</p> <p>Act May 15, 1880, authorizing Mercer county to subscribe to the capital stock of a railroad company, the subscription to be paid in county bonds, provided that the county judge should, after ascertaining whether the election authorized the issue of bonds, prepare and execute them, and order their deposit with a trustee; the latter to hold them in escrow, and to deliver them to the company when it became entitled to them hy the construction of its road through the county. Held, that the trustee holding these bonds in escrow had no power to deliver these bonds until the actual completion of the railroad through the county from one side to another or opposite sido, and that in the delivery of the bonds so held in escrow, before that condition had been complied with, he did so in violation of his duty and without authority of law. Held, that a purchaser of such bonds is chargeable with notice of the terms, conditions, and requirements of the act under which these bonds were issued, and took them with notice that the recitals of the bonds must-be referred to the acts which under that permissive statute were to precede the execution of the bonds and their deposit in escrow, and could not operate as a recital of facts which could not have existed when the recitals were made. The bonds contained, therefore, no recital implying the construction of the railroad. Held that, under the proper construction of this act, the county of Mercer had no power to issue bonds until the railroad had actually been constructed “through” the county, and neither the decision of the trustee in escrow that that condition had been complied with, nor the consent of county officers to their delivery, nor the subsequent payment of interest, operates as estoppel preventing the county from showing as a defense that the condition upon which its power rested to issue these bonds had never been complied with.</p> <p>3. Same — Bona Fide Pukciiasers.</p> <p>The fact that the bonds were in form negotiable securities, and were bought on the open market by purchasers innocent as to noncompletion of the railroad, does not give such purchasers the status of bona fide purchasers for value; the bonds containing on their face no recital implying the coriiplefion of the railroad in whose aid they were issued.</p>

This is a motion by the plaintiff in the above-entitled cause to remand the case to the state court, where it was begun.

<p>Limitations — New Action after Dismissal — New York Statute.</p> <p>The New York statute (Code Civ. Proc. § 405) providing that “if an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * * * may commence a new action for the same cause, after the expiration of the time so limited,” does not apply to a case where a judgment for the plaintiff has been reversed on appeal, and a new trial awarded, and, upon the coming on of the action for such new trial, the complaint is dismissed, without objection from the plaintiff’s counsel, whereupon a judgment is entered reciting the dismissal of the complaint by default, and adjudging costs against the plaintiff.</p>

<p>Brokers — Right to Commissions.</p> <p>One W., a distiller, employed B., as broker, to effect a sale of whisky made by him.- Nothing was said about B.’s negotiating an option for the sale of the next season’s product, but, when B. brought W. and an intending purchaser together, he told W. that the purchaser might de- ’ mand an option.. W. at first refused to give such option, but was finally induced- by .B. to do so, and a contract was drawn up for the sale of thé whisky -already made, with an option to the purchaser to buy a large part of the next season's product. W. paid B. his commission on the sale of the whisky already made, and when the purchaser’s option was afterwards exercised, and snore whisky, of the next season’s manufacture, sold to him, B. demanded commissions thereon. Held, that he was not entitled 1b sucli commissions.</p>

<p>Imprisonment — Sentence to Prison Out of Jurisdiction.</p> <p>One C. was sentenced by a court of tbe territory of Arizona to imprisonment in “the territorial prison at Y., Arizona territory.” He subsequently sought to be discharged from imprisonment by habeas corpus, upon the allegation that the prison at Y., being the only territorial prison, was not in fact in the territory, but about 500 feet beyond its boundary, and in the state of California. It Was not alleged that California claimed the land where the prison stood, and it appeared that Arizona was in possession thereof, and the town of Y. claimed that it was within its limits. Held, that the prisoner’s confinement was not illegal, and the writ should be denied.</p>

<p>1. INTERSTATE COMMERCE — INTOXICATING LIQUORS — POLICE POWER.</p> <p>Intoxicating liquors are a legitimate subject of commerce, and burdens upon interstate commerce therein cannot be justified under the police power of a state.</p> <p>2. Same.</p> <p>The negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce, and a state statute which attempts to prohibit the solicitation, within the state, of orders for such goods, though their sale within the state is prohibited by an exercise of the police power, is a burden upon interstate commerce, and is void.</p>

<p>Final Hearing in Equity.</p> <p>This action is founded on reissued letters patent, No. 11,478, granted March 12, 1895, to Luther Stieringer, assignor to complainant, for an improvement in electrical fixtures. The original, No. 259,230, was dated June 6, 1882, and was applied for March 15. 1882. Claims Í, 7, 8 and 9 o£ the original were before the court in the Eastern district of Pennsylvania in Maitland v. Gibson, 63 Fod. 126, and were held to be invalid. The decision of the circuit court was affirmed by the circuit court of appeals for the Third circuit upon the opinion of the circuit judge. U O. 0. A. 440, 63 Fed. 840.</p> <p>The first claim of the original patent was as follows: “A fixture for electric lights, supported from the piping of a house and electrically insulated therefrom, substantially as set forth.” The court held that this claim contained three elements. B’irst, a fixture for electric lights, second, the piping of a house, and, third, means for electrically insulating the fixture from the piping. That the third element included every kind of insulating device by which two conducting bodies may be mechanically united and yet electrically separated and that the claim was too broad and, therefore, void. Claims 7, 8 and 9 were held to be subsidiary and void as inere aggregations plainly obvious to the skilled workman.</p> <p>The opinion contains iho following allusions to the Stieringer joint: “The patentee, in his specification, fully and particularly described a particular insulating joint, and to it, 1 think, he must be restricted. * * * The utmost which it can plausibly bo contended Stieringer did, which had not been precisely done before. — and the assumption of this, except for the argument’s sake, the ferryboat exhibit repels, — was to inserí an instxlating joint between the piping of a house anti a fixture for electric lights. This is the essence of his asserted combination. Hut similar insulation in analogous situations had been extensively practiced before, and apart from his peculiar joint, which it may be conceded was new, I am unable to perceive that his alleged invention amounted to anything more than electrically parting, while physically connecting, two pieces of metal, by a use of the familiar expedient of insula tion. * * * As lias already been said, Ids title to'tlio specific joint may be admitted; but when lie seeks protection for a combination, irrespective of the kind of joint comprised in it, it is not enough for him to show that his peculiar joint was invented prior to the conflicting use. He should show an earlier ante for the combination alleged and this he had utterly failed to do.” The complainant const rued this decision as saving the insulating joint, if limited to Hie precise combination shown, and, upon this theory, applied for the reissue.</p> <p>So far as relates to tlie present controversy (he object of the patentee, as stated in the specification, was to utilize the support afforded by the gas pipe of a house for sustaining metallic fixtures for electric lighting containing insulated conducting wires so arranged that the proper connections can bo cheaply and conveniently made. He accomplishes this object by carrying the conducting wire from the ceiling, by proper connections, down through the main stem and arms of the chandelier’, which may be used also for gas lighting: and is provided with two or more arms and an ornamental shell which hides the wires and connections from view. At the upper end of the chandelier is an insulated joint which separates the chandelier, electrically, from the grounded piping of the house. The electrical insulation of the fixture from iho supporting pipe is as applicable to wall brackets as to chandeliers. The claims, read in connection with the foregoing, sufficiently describe the improvements.</p> <p>The claims involved are 1, 2, 4 and 5. They are as follows:</p> <p>“(l) A fixture for electric lights constructed wholly or largely of metal and provided with insulated conducting wires Cor conveying current to and from the lamps carried thereby, in combination with a joint or section having metallic coupling portions and an intermediate section of insulating material electrically insulating the metallic coupling portions from each other, such joint being located at the upper or inner end of the fixture and serving to electrically insulate the fixture from the grounded piping of a house by which it is supported, substantially as set forth.</p> <p>“(2) In a fixture for electric lights adapted to be supported from the grounded piping of a house, the combination with the hollow metal stem, of insulated conducting wires passing therethrough for conveying current to and from the lamps carried by the fixture, a joint or section located at the upper or inner end of sucli hollow metal stem, comprising metallic coupling portions and. an intermediate section of insulating material electrically insulating the metallic coupling portions from each other and provided with lateral openings for permitting the said conducting wires to pass out of the hollow stem for connection with the ceiling wires, substantially as set forth.”</p> <p>“(4) In an electric light fixture, the combination with the hollow main stem, a distributing body and open section supported thereby, and two or more lamp-carrying. arms supported by said distributing body, of insulated main conducting wires passing through such hollow main stem and through said open section, a pair of insulated arm wires passing through each of said lamp-carrying arms, said main and arm wires being directly connected together, and a central support from said-open section for sustaining ornamental parts of the fixture, substantially as set forth.</p> <p>“(5) In an electric light fixture adapted to be supported from the grounded piping of a house, the combination with the hollow main stem, a distributing-body and open section and lamp-carrying arms, constructed of metal, of insulated main conducting wires passing through said main stem and through said open section, a pair of insulated arm wires passing through each of said lamp-carrying- arms, said main and arm wires being directly connected together, an open and insulating joint or section at the upper or inner end of said main stem comprising metallic coupling portions and an intermediate section of insulating material, adapted to connect the fixture mechanically with, and to electrically insulate it from, the grounded piping of a house and permitting the said main conducting wires to pass out of said hollow main stem for connection with the ceiling wires, and a central support from said open section for sustaining ornamental parts of the fixtures, substantially as set forth.”</p> <p>The defenses are noninfringement, want of novelty and invention and invalidity of reissue as being for a different invention from the original.</p>

This was an action by Thomas A. Andrews against Landers, Frary & Clark, to recover royalties under the following contract: “This agreement, made this 23d day of April, 1881, between Thomas A. Andrews, party of the first part, and Landers, Frary & Clark, party of the second part, witnessed!: That whereas, letters patent of the United States for an improvement in faucets were granted to the party of the first part, dated Augt. 5th, 1877; and whereas, the party of the second…

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p> <p>This is a suit by bill in equity, instituted by the above-named appellant, to obtain an injunction "against the infringement of letters patent No. 396,372, issued to Charles C. Sehreiber, January 15, 1889, for a supposed new ami useful improvement in cask supports. The object of the invention covered by the patent was “to provide a support for heavy casks or barrels that is strong, durable, and readily adjustable to any sized cask.” The means proposed by the inventor were: (1) A beam running crosswise under the cask, and near1 the end of it, and resting upon chairs or benches which stand upon the floor, ways are constructed lengthwise of the beam upon the upper surface. (2) Two shoes mounted upon the beam, which are adapted, at the lower surface, to move along the ways above mentioned. Provision is made by projecting flanges for holding the shoes to the beam while moving along the ways or when at rest. The shoes respectively stand, when in use, under each side of the cask, opposite each other. The upper faces of the shoes are inclined so as to make a general conformity to the surface of the barrel opposite. A depression is made in the face of the shoe in the form of a shallow socket, adapted to receive the ball or convex projection on the saddle next to be mentioned. (S) Saddles resting upon each of the shoes, the upper inclined surfaces of which are made in a concave circular form, so as to conform to the circle of the cask which rests upon it. There is a projection upon the bottom of the saddle, which is round or nearly so, like the side of a ball; and this projection, being placed in the socket above mentioned, makes, with the latter, a joint which allows the saddle to rock, and to so adjust its surface to the cask that the latter shall rest centrally and evenly upon it. (4) A tie rod resting on the beam between the ways, having hooks at each end turned upwardly, which catch behind teeth on the under surface of the shoe provided for that purpose. Thus, the shoes are prevented from spreading under the burden of the cask. One set of the apparatus above described is set under each end of the cask. All the parts of the support are made of iron. Some change has been made by the complainants, who are the owners of</p> <p> </p> <p>the patent, in the supports for the shoes, but that is in regard to a part of the construction not now involved. Six claims are founded upon the specifications. The sixth is the one of which the complainant alleges the infringement. It is as follows: “(.(>) In a cask support, the shoe 3, provided with a concave seat in combination with the self-adjusting saddle 10, supported in said seat, substantially as specified.” The defendants set up several defenses, among them that Schreiber was not “the original and first inventor of the said alleged invention shown.” A great number of former patents and publications were set forth in the answer in support of that defense. They were not put in evidence, however. Another defense was that there was no invention shown or discovered in the patent. The court below was of the opinion that the latter defense was well taken, and dismissed the bill. 65 Fed. 220. The complainants bring the case here on appeal.</p>

<p>1. Shipping — Master and Servant — Negligence—Accident.</p> <p>Injury to a workman engaged in repairing a tank on shipboard, by ihe falling of a carpenter’s tool from a scaffold overhead, in consequence of .some unexplained inadvertence on the part of the carpenter, is a simple accident, which involves the ship and her owners in no legal responsibility.</p> <p>2. Same — Fellow Servants.</p> <p>Where one employed to do repair work on shipboard by day’s labor sends his servant to do the work in his place, the servant is to be regarded as the fellow servant of the ship’s carpenter, in respect to an injury to him resulting from alleged negligence of the carpenter.</p>

<p>1. Salvage — Towage on High Seas.</p> <p>Towing a disabled vessel on the high seas, owing to the latent danger from the multiform accidents to which ships are constantly liable, is always a salvage service.</p> <p>2. Same — Value of Salvage Services.</p> <p>The value of a salvage service consisting in a towage upon the high seas is to be estimated by the circumstances of the two vessels, and by the conditions of wind and sea prevailing at the time the service is entered upon, and by the casualties which experience teaches practical seamen are liable to happen in the ordinary course of events while the service continues; and the fact that the weather and sea afterwards prove favorable is not a reason for diminishing the award.</p> <p>8. Same — Amount of Compensation.</p> <p>$10,000 awarded to a whaleback steamship of about 2,300 gross tonnage, worth $100,000, bound from Tampico, Mex., to New York, with a cargo worth about $137,000, for towing to Newport News a steamship of over 3,000 gross tonnage, in ballast, -worth $100,000, which was found with a broken propeller shaft about 14 miles northeast of Cape Halteras; the service being commenced in a rough sea, and the hawsers of the towed vessel being got aboard of the whaleback with great difficulty and danger; the service lasting nearly 24 hours, and delaying the towing vessel two days on her regular trip.</p>

<p>This was a libel by John J. Devenny and others against the steam tug Mascotte to enforce certain claims for damages, and for repairs. A cross libel was filed by the owner of the tug, setting up claims for various items alleged to be due from the charterers.</p>

<p>Error to the Circuit Court of the United States for the Western District of Washington.</p> <p>This was an action by Twyman O. Abbott against the United States to recover damages for breach of a contract to lease certain rooms for a post office. There was a judgment for plaintiff. 66 Fed. 447. Defendant brings error.</p>

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p> <p>This was a bill by William C. Horn, president of Koch, Sons & Go., an unincorporated joint stock company, against Frederick Bergner and others, for infringement of a patent. There was a decree for an injunction and an accounting (68 Fed. 428), from which defendants appealed.</p>

<p>Appeal from 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 South Carolina.</p>

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

<p>In Error to the District Court of the United States for the Southern District of California.</p> <p>This was a proceeding by arrest to determine the right of Loo Way, a Chinaman, to remain in the United States. The circuit court commissioner found the facts as charged, and ordered his removal. This order was affirmed by the district court. 68 Fed. 475. Defendant brings error.</p>

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

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

<p>Oiecuit Courts op Appear — Jurisdiction.</p> <p>The circuit courts of appeal have no jurisdiction, under sections 5 and 6 of the act of March 3, 1891, of an appeal in which the only question involved is whether the proposed acts of the mayor and council of a city would deprive the appellant of his property without due process of law, in violation of the fourteenth amendment to the constitution of the Uidted States. McLish v. Rolf, 12 Sup. Ct. 118, 141 U. S. 661; Lau Ow Bew v. U. S., 12 Sup. Ot. 517, 144 TI. S. 47, followed.</p>

<p>In Equity. Bill by W. B. Davenport, Anderson De Haven, Wesley Valentine, Bessie Davenport, Ella De Haven, and Amelia Valentine (the latter three, being infants, under 20 years of age, sue by the former, as their next friends) against the board of trustees of the Cloverport High School, a corporation created by the laws of the commonwealth of Kentucky, and A. B. Skillman, the treasurer of said board. Heard on demurrer to the bill. Dismissed.</p>

This was a bill in equity by the Oxley Stave Company against the Coopers’ International Union of North America, Lodge No. 18, of Kansas City, Kan., the Trades Assembly of Kansas City, Kan., and various individuals named, who are officers and members of such organizations, and also “all other persons who may be members of either of said organizations, their agents, attorneys, etc., to enjoin them from inaugurating and maintaining a boycott against the use of packages, casks,…

<p>1. Corporations — Dissolution—Right of Receiver to Sue.</p> <p>A receiver of the assets of a corporation, appointed, upon its dissolution, as its successor, by the statutes and the courts of the state where it was organized, can sue in a federal court sitting- in another state upon rights of action belonging to such corporation.</p> <p>3. Courts — Comity—Possession of Subject-Matter.</p> <p>Two suits were brought in a Massachusetts court by citizens of Massachusetts against the C. Co., a New York corporation, in each of which the B. Co., a Massachusetts corporation indebted to the C. Co., was summoned as trustee, and the funds of the C. Co. in its hands attached. The B. Co. appeared and answered, disclosing property of the C. Co. The C. Co. was not served, and did not appear. After the commencement of the trustee suits, the C. Co. was dissolved by a decree of a New York court, and a receiver of its assets appointed, who was summoned into the trustee suits, but did not appear. After his appointment, the receiver demanded from the B. Co. the debt due to the C. Co., and, upon refusal of payment, began suit in,the United States circuit court in Massachusetts to recover it. The state court in which the 'trustee suits were pending had power to convert either of them into a proceeding in "equity in which the rights of all parties could be adjusted. Held, that the federal court, out of comity to the state court, which had possession of the fund in controversy, would suspend action, in the suit brought by the receiver, until the state court had disposed of the suits pending in it or at least had had full opportunity of indicating its purpose in reference thereto.</p>

<p>This was a suit by the Fidelity Insurance, Trust & Safe-Deposit Company and the Mercantile Trust Company against the Norfolk & Western Railroad Company for the foreclosure of a mortgage. A receiver was appointed, and the Virginia & Tennessee Coal & Iron Company intervened, asking the payment of certain moneys to it by the receiver.</p> <p>From the petition of the intervener it appeaiv that it was the owner of valuable coal and iron lands in Wise county, Ya., near the line of the defendant’s railroad; that in 1892 it entered into contracts with the railroad company to have a branch road and spurs of about fom miles in length constructed, extending from the main line to its corn ana iron mines; that ii stipulated that it would acquire, and would convey, in fee simple, free of all incumbrances, to the railroad company, for this purpose, a strip of land 60 feet wide for the branch road and its spurs, and additional widths of land for sidings; that it would construct upon this ground all the necessary grading, masonry, and other preparation for the roadbed, and would convey and deliver this work to the railroad company, free from constructors’ liens and all other liabilities; that it would furnish all the moneys necessary for the purchase by the railroad company of cross-ties, switches, rails, fastenings, and other material for these main and spur tracks, and for laying the same, a lid would deliver and convey the whole free of liens ro tin railroad company, which was to have the exclusive right to operate and control the same, and to extend them at its option; and the railroad company was to keep the track of the branch and spur tracks In good working order and repair. These stipulations were all fulfilled on the part of the interveners, the coal and iron company; and the branch road and spurs were constructed, equipped, delivered, and conveyed by the coal and iron company to the railroad company as stipulated. On the part of the railroad e -mpany it was agreed that, in consideration of the conveyance to it of the main and spur roads contemplaied by the contract, in fee simple, free from all liens and incumbrances, it would pay to the coal and iron company all the earnings of this branch road and spurs on coal transported on it from the mines upon them, which were fixed at the rate of 10 cents per gross ton transported, until these payments should amount in aggregate to the cost of the branch road and its spurs. The branch road and spurs under consideration were completed in 1893. Their cost to the coal and iron company was $38,973.52. The railroad company, from the time the branch road and its spurs began to be operated in 1893, complied with the terms of its contract by paying to the coal and iron company its earnings of 10 cents per gross ton. The property of the Norfolk & Western Railroad Company -wont into the hands of receivers of this, court on the 6th day ol’ February, 1895. under an order of this court in this cause entered on that day. At the time at which the receivers took charge of the Norfolk & Western Railroad, there had been paid on the freights due to the coal and iron company, the sum of $16,427.70, leaving $22,546.32 still dne; and there had accrued, besides, an aggregate of freights due to the coal and iron company, amounting to $5,728.60. Since the receivers took charge of the Norfolk '& Western Railroad and of the branch road and spurs in question, the earnings of the latter, on 108,012 tons of freight passing over them, have been $10,-801.20, up to the end of August, 1895, no part of which earnings has been paid to the coal and iron company. When the branch road and its spurs under consideration were conveyed to the Norfolk & Western Railroad Company in 1893, all the roads and property of that company were incumbered by 'mortgages amounting in the aggregate to $19,056,000. The company ;is in default in the payment of the later installments of interest accrued on- .the bonds to secure which these mortgages were given' and the current earnings of the division of the Norfolk. & Western Railroad, with which the branch road and its spurs under consideration immediately connect, are not sufficient to pay its operating expenses. In this condition of things the receivers submit to the court for its instruction the question whether the earnings of the branch road and its spurs, conveyed to the Norfolk & Western Railroad Company by contract as set forth, are to be paid as stipulated in the contract of conveyance, or whether its obligation to pay these earnings is junior and of inferior dignity to the debts which rested upon the property of the railroad company at the time when the branch road and its spurs built by the coal and iron company were conveyed by it to the railroad company.</p>

<p>1. Mortgage Foreclosure — Reversal aeter Sale — Restitution.</p> <p>There is no substantial difference in the basis on which restitution is required at law and in equity. It is ordered at law when conditions existing would require it in equity, and the' law courts can protect the equities of all the parties. It may be refused at law because its processes are not adequate to do full justice in the premises; and in equity the matter rests somewhat in the sound discretion of the chancellor, who may, when the equities require or justify it, impose conditions, as a prerequisite to the relief.</p> <p>A Same — Foreclosure Decree.</p> <p>It is not necessary, and is often impracticable, to exactly and minutely adjust all the disputed claims of original parties and interveners, growing out of foreclosure proceedings, before ordering a sale. The court has full power in the premises, and the matter rests in the sound discretion of the chancellor.</p> <p>8. Same! — Sale—Restitution on Conditions — Resale.</p> <p>A decree foreclosing a trust deed given to secure bonds was reversed after the property had been sold. It appearing that the purchasers were holders of nearly 90 per cent, of the mortgage bonds, the court below ordered restitution of the property, on condition, however, that the defendants should repay the amount of cash paid into court by the purchasers, and which had been distributed, partly in payment of costs and expenses. The condition was not complied with, and the purchasers remained in possession. In the meantime it was ascertained by further proceedings, in accordance with the decree of reversal, that part of the bondholders were entitled to have their lien enforced. The court then, on the theory that the purchasers must have taken the property subject to the lien of the bonds last found entitled to enforcement, ordered a resale, reserving the right to protect the interests of all parties in the distribution of the proceeds. Held, on appeal, that it was within the discretion of the court to require repayment of the cash deposit as a condition of ordering restitution; that it was not necessary, as a prerequisite to imposing such condition, that an account should have been taken of the receipts and expenditures of the property while in possession of the purchasers; and that there was no error in the decree ordering a resale of the property, although the costs and expenses growing out of the previous sale had not yet been fuEy ascertained.</p>

This was a creditors’ suit brought by B. Newgass & Co. and others against the Atlantic & Danville Railway Company. A. P. Thom, appointed receiver of the property of the defendant, filed a petition for instructions in respect to a contract with the Western Union Telegraph Company, to which petition the telegraph company filed an answer.

<p>1. Corporations — Powers ov Oveicers — Conveyance ov Property.</p> <p>The M. Co. owned a patent under which all its business was done, and which constituted practically all its capital. A suit was pending against the M. Co., brought by the K. Co., for infringement of a patent owned by the latter. Pending this litigation, 0„ the president of the M. Co., being' about to abscond, to avoid prosecution for certain criminal acts of which he had been guilty, was induced, in order to pay a debt to one K., and to pay the fees due to the lawyers of the M. Co., to make an arrangement with K. and the K. Co. by which, acting as president of the M. Co., lu> assigned the patent owned by that company to K., in consideration of the discharge of his debt to K. and the payment of the lawyers’ fees; it being also agreed that K. should assign the patent to the K. Co., which thereby put an end to its infringement litigation. No part oí the consideration passed to the M. Co., which was left with considerable debts outstanding', and substantially without assets. No meeting of the directors of the M. Co. was held to consider or authorize the transaction, and one of the three directors was not informed of it; the third, besides 0., the president, at first objecting to it, hut finally assenting, when urged by C. and the company’s lawyers. The statute under which the YI. Co. was organized provided that its property and business should be managed by directors, and that the decisions of the directors, duly assembled as a board, should be valid. The by-laws provided that the directors, and the president, under their control, should have the general management of the affairs of the corporation, and that the president should execute and acknowledge instruments requiring acknowledgment, provided that he should not execute any instrument by which real estate was conveyed or stock controlled until authorized by the board of directors. Held, that the execution of the assignment of the patent by C., as president of the M. Co., -was without authority, and such assignment was ineffectual to pass title to K., or through him to the K. Co., both having- knowledge of the circumstances, and, hence, that the K. Co. had no title to the patent which would enable it to maintain a suit for its infringement.</p> <p>2. Same.</p> <p>In such action, where the complainant declares alone on the existence of a legal title to the patent sued on, it cannot avail him at the trial, after failing to show such legal title, that he held a contract with one of the defendants whereby it was agreed, for a consideration, that such defendant, would transfer to complainant any invention he might thereafter have patented, such invention being interposed to defeat complainant’s claim.</p>

This was a bill in equity, filed March 4, 1895, by Elder, Dempster & Co., of Liverpool, England, owners of certain steamships, against William Whitesides et al., citizens of Louisiana, alleging an unlawful combination and conspiracy on the part of said defendants to prevent the loading or unloading of complainants’ steamships at Gretna, La., except by such labor as might be acceptable to said defendants; that such combination and conspiracy absolutely prevented complainants…

<p>Railroad Land Grants — Exception of Pre-emption Claims.</p> <p>'When á grant is made to a railroad company of parts of the public lands, with'in certain limits, “pot reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights,” at the time of the definite location of the road, the mere existence, at the time of the definite location of the road, of a pre-emption claim to land 'within the limits, of -.the grant,. .properly entered on the records of the land office, prevents the grant from attaching to such land, without regard to the validity of such claim; and no title passes to the railroad company by virtue pf a patent for the land, issued to it by the government upon a finding that the pre-emption claim-had been abandoned.</p>

<p>1. Abatement — -Action against Stockholder.</p> <p>It is not a good plea in abatement, in an action against a stockholder in a corporation, based on a statute providing that the stockholders shall be personally liable for the indebtedness of the corporation, beyond their stock, to an amount equal to the par value of their stock, to allege merely that there are many other stockholders besides the defendant, and many other creditors besides the plaintiff, without alleging any interest in any one else in the plaintiff’s cause, of action, or that others are jointly liable with the defendant.</p> <p>2. Same.</p> <p>Nor is it a good plea in abatement to such an action that the claims of the plaintiff are so involved with the claims of others that relief for.all must be had in equity.</p>

<p>1. Public Lands — Decisions of Land Department — Effect of Patent.</p> <p>The decisions of the land department in contested cases are conclusive only as to matters of fact within their jurisdiction, and a patent is not evidence of title to land which was not subject to disposition by the United States; but the question whether land included within a patent was, at the time of the issue thereof, a part of the public domain, or subject to such disposition, is always open for consideration.</p> <p>2. Same.</p> <p>The N. R. Co. brought an action of ejectment to recover a parcel of land within the limits of a grant to it in aid of the construction of its road. The incorporation of the company, the grant by congress, the filing of the maps of the route, in accordance with the terms of the grant, and the fact that the land in question was within the limits of the grant,, were alleged in the complaint, and admitted by the answer. The complaint also alleged that, on the day of the location of the road, the land was public land, not sold or otherwise appropriated. This was denied in the answer, which alleged that, from a time prior to the grant to the railroad company, the land had been occupied and improved by the defendant and those from whom he derived title. This was denied by plaintiff’s reply. The answer also alleged that, at a time subsequent to the location of the road, the defendant applied to the land office to file liis pre-emption on the land; that the railroad company .disputed his right to do so, and a contest followed, which' was carried up, by appeals, to the secretary of the interior, who held that the defendant was entitled to the land, and a patent was thereafter issued to him therefor. These allegations we're not denied by the plaintiff’s reply, and thereupon judgment was given for the defendant on the pleadings. Held error, since the adjudication of the land department and the issue of the patent were insufficient to overcome the presumption in favor of the title of the railroad company.</p>

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

<p>1. Practice — Leave to Interpose Dispense — Discretion.</p> <p>When application is made to the favor of a court, for leave to interpose a defense, and the application is one resting in discretion, all the circumstances of the case will be considered, and care taken not to sanction any such abuse of procedure as would shock the conscience.</p> <p>2. Same — Statute op Limitations.</p> <p>On November 17, 1892, defendant, the proprietor of a newspaper, published an article claimed by plaintiff to be a libel upon him. The limitation fixed by the local statute for actions for libel was two years. More than five months before the expiration of such period, plaintiff delivered a summons in an action for libel to the United States marshal, for service, but the marshal was unable to make service, because the defendant had previously left the United States, and continued to sojourn abroad, though maintaining his domicile and legal residence within the state. The local statutes provided no means by which an effectual service, other than personal service, could be made. The defendant continued to sojourn abroad until after the expiration of the period of limitation, but after the passage of an amendment to the local statute, permitting attachments in actions for libel, he voluntarily appeared in the action, and answered, but did not plead the statute of limitations, for the reason that under the prevailing interpretation of the statute, his counsel supposed that the period of his sojourn abroad would not be counted as part of the period of limitation, though his residence continued within the state. A decision of the state court of last resort having given a contrary interpretation to the statute, defendant applied for leave to amend his answer by setting up the statute. Held that, even if the state court’s interpretation of the statute should be adopted by the federal court, it would be so grossly inequitable to permit defendant so to defeat the plaintiff's action that his application for relief to amend should, in the exercise of discretion, be denied.</p>

<p>This case was heard on a motion to remand to the state court.</p> <p>On the 12th day of January, 1895, the plaintiff filed his petition in the Kenton circuit court, at Independence, Ky., againsc the Maysville & Big Sandy Railroad Company, Chesapeake & Ohio Railway Company, C. E. Acra, George Shumate, Henry Thien, John Shappart, and W. E. Gaynor, defendants, in the following words:</p> <p>■ “Defendant the Maysville & Big Sandy Railroad Company is, and at the time hereinafter stated was, a corporation owning a railroad extending into the county of Kenton, and railway tracks, workshops, roundhouse, railway yard, and other appurtenances in said county. Defendant the Chesapeake & Ohio Railway Company is, and at the times hereinafter stated was, a foreign corporation, and possessed, used, and operated said railroad, railway tracks, workshops, roundhouse, railway yard, and other appurtenances under a lease from said the Maysville & Big Sandy Railroad Company, which lease was made without legislative or other authority; and said the Chesapeake & Ohio Railway Company now so operates said railway. On the night of April 28, 1894, L. A. Hukill was the servant of said the Chesapeake & Ohio Railway Company, employed by it as one of the crew of a switching locomotive engine in the yard of said railroad in Kenton county; and while said Hukill was then and there, as such servant, at work upon and about a train of freight cars of said the Chesapeake & Ohio Railway Company, in said yard, and on said railway, he was, by reason of gross and wanton negligence of all the defendants, struck by a board projecting from the roof of one of another train of freight cars of said the Chesapeake & Ohio Railway Company, then and there in the possession, custody, and control of said corporation, and on another and adjoining track of said railroad, and thereby said Hukill was violently knocked under the train of ears upon and about which he was at work, and was run upon and over by said train, and thereby, and by being so knocked from said car, he was so injured in his person that he soon thereafter died thereof. Said projecting board was part of the roof of said car, from which the same projected. Said projecting board was, and long before said decedent Was injured as aforesaid had been, a defect in said car, from which it projected, that endangered the bodies and lives of said decedent and other servants of said the Chesapeake & Ohio Railway Company. Said car, with said board so projecting therefrom, was, in said defective, unsafe, and dangerous condition, by the defendants, with gross and wanton negligence, placed .where the same was when said decedent, Hukill, was struck by said board as aforesaid. With gross and wanton negligence, all the defendants permitted said defective car to remain where the samé was, in its said defective, unsafe, and dangerous condition, until said decedent was injured as aforesaid; and, with gross and wanton negligence, all the defendants failed to remedy said defect in said car before said Hukill was injured thereby. The defendants Aera, Simulate. Thien, and Shappart were, at all times aforesaid, in said railway yard, which was then and there an inspecting station of said railway, servants of said the Chesapeake & Ohio Railway Company, employed by it in said yard, and at said inspecting station, as cat-inspectors and repairers: and, as such servants, said Acra, Shumate, Thien, and Shappart had inspected said ear, from which said board projected as aforesaid, long before said decedent was thereby knocked from his place, and under said train, as aforesaid, and before said decedent was injured as aforesaid, and Cor a lime long' enough theretofore to have, by the exercise of ordinary care, repaired said defect, and prevented said injury to said Hukill. Said Aera, Shumate, Thien, Shappart, the Chesapeake & Ohio Railway Company, and also their codefendants, well knew of said defect in said car; and, before said Hukill was injured as aforesaid, the defendants Acra, Shumate, Thien, Shappart, Gaynor, and the Chesapeake & Ohio Railway Company, and each of (hem, could, by the exercise of ordinary care, have known of said defect in said car, and could, by the exercise of such care, have remedied and repaired said defect, and prevented said injury to said decedent. Defendant AY. \V. Gaynor was, at the times aforesaid, a brakeman upon tile train in which was said defective car, and he was then and there the servant of defendant the Chesapeake & Ohio Railway Company, and was by his said employer then and there charged with the work and duty of ascertaining and knowing the condition of said car and train, and to either repair said defect, in said car, if lie could do so. or, if he could not do so, then to report the same upon the arrival of said train and car in said railway yard. And all the defendants, by their joint gross and wanton negligence, failed to remedy or repair said defect; and, by their joint gross and wanton negligence, ail the defendants caused said injury to and death of said decedent. Said L. A. Hukill did not, before he was injured as aforesaid, know that said board by which he was struck projected from said car, nor did he know that there was any defect in said car; and he could not, before he was injured as aforesaid, by the use of ordinary care have known that said board did project from said car, or that said car was in any wise defective. By the death of said decedent his estate was damaged in the sum of fifty thousand dollars. On the ■- day of May, 1894, plaintiff was. in and by the county court of Kenton county, Kentucky, duly appointed administrator of the estate of said decedent. and on the same day he duly qualified as such in said court, and he still is such administrator. Plaintiff prays judgment for fifty thousand dollars and costs.”</p> <p>In its petition for removal the Chesapeake & Ohio Railway Company made the necessary averments as to the amount in controversy and the diverse citizenship of itself and The plaintiff, averring that there was, in said suit, a controversy which could be fully determined as between the plaintiff and the petitioner. “Your petitioner further says that suit upon the same cause of action herein-before stated was instituted in the Kenton circuit court at Independence, Kentucky, on May 16, 1894, and that, in said suit, the Maysville & Big Sandy Railroad Company, the Chesapeake & Ohio Railway Company, 0. 1C. Acra, George AT. Shumate, Homy Thien, and John Shappart were made joint defendants. Thereafter on the 16th day of October, 1894, at a term of Kenton circuit court, at Independence, the plaintiff discontinued said action as to George AY. Shumate., G. K. Acra, Henry Thien, John Shappart, and the Mays-ville & Big Sandy Railroad Company. Petitioner says that the discontinuance as to the said Maysville & Big Sandy Railroad Company, C. Ifi. Acra, George AY. Shumate, IJenry Thien, and John Shappart was absolute and final, and without the reservation of any right on part of said plaintiff to again institute a suit upon the same cause of action against the said Maysville & Big Sandy Railroad Company, C. E. Acra, George AY. Shumate, Henry Thien, and John Shappart, or either or any of them. And petitioner says that, by reason of the absolute discontinuance of said cause as to the said Maysville & Big Sandy Railroad Company, 0. E. Acra, George AV. Shumate, Henry Thien, and John Shappart, the plaintiff is barred from any further proceedings against them, or either of them, upon said cause of action; and that said plaintiff has no right or authority in law to now prosecute its cause of action against the said. Maysyille & Big Sandy Railroad Company, C. E. Acra, George W. Shumate, Henry Thien, and John Shappart, or either of them. Your petitioner says that, upon the discontinuance of said suit, on the 16th day of October, 1894, as to the said Maysville & Big Sandy Railroad Company, and the said Acra, .Shumate, Thien, and Shappart, it filed in the Kenton circuit court, at Independence, a petition and bond for removal of said case to the United States circuit court for the district of Kentucky, which said petition for removal alleged that the said Maysville & Big Sandy Railroad Company, and said Aera, Shumate, Thien, and Shappart were fraudulently and improperly joined as parties defendant for the sole purpose of defeating the right of petitioner to remove said case to the United States circuit court; that said case was transferred to the United States circuit court for the district of Kentucky; and that the said plaintiff appeared in said United States circuit court, and moved the court to remand said case; and that the said United States circuit court overruled said motion to remand, and found, as a fact, that said Maysville & Big Sandy Railroad Company, C. E. Acra, George W. Shumate, Henry Thien, and John Shappart were fraudulently and improperly joined for the purpose of evading the jurisdiction of the United States court. And thereafter the plaintiff discontinued said case in said United States circuit court, and thereafter, on January 12, 1895, filed the present suit in this court. Your petitioner says that , the said Maysville & Big Sandy Railroad Company was, at the time of the institution of said suit, on May 16, 1894, and still is, a corporation organized under the laws of the state of Kentucky, and of no other state; and that the defendants C. E. Acra, G. W. Shumate, Henry Thien, and John Shappart -were, at the time of the institution of this suit, and still are, residents and citizens of the state of Kentucky; and that the said Maysville & Big Sandy Railroad Company, and the said Acra, Shu-mate, Thien, and Shappart were fraudulently and improperly joined as parties defendant, because of the fact that they were residents and citizens of the state of Kentucky, for the sole purpose of defeating the jurisdiction of the United States circuit court. And your petitioner further says that the said W. E. Gaynor is a sham party defendant, and that he was fraudulently and improperly joined as a party defendant for the sole purpose of defeating the jurisdiction of the United States court; that said W. E. Gaynor was joined as a party defendant because of his residence and citizenship in Kentucky; and that the joining of said W. E. Gaynor as a party defendant is merely a device to defeat the jurisdiction of the United States court. And your petitioner offers herewith a bond, with good and sufficient surety, conditioned according to law, for its entering-in the circuit court of the United States for the district of Kentucky, being the proper district, on the first day of its next session, a copy of the record of this suit,- and for paying all costs that may be awarded by said court, if said court shall hold that this suit was wrongfully or improperly removed thereto. And your petitioner prays this honorable court to proceed no further herein, except to make the order of removal required by law, and to accept said surety and bond, and to cause the record herein to be removed into said circuit court of the United States for the district of Kentucky. And your petitioner will ever pray.”</p> <p>The plaintiff filed an answer to the petition for removal, in which he did not deny the averments of the petition for removal with reference to the previous suit which had been removed and then dismissed. He denied, however, that any of the defendants was joined in this action fraudulently and im-l>roperly for the sole purpose of defeating the jurisdiction of the United States. Upon a hearing of the motion to remand, and on the issue raised between the petition for removal and the answer of the plaintiff, there were introduced the special acts of Kentucky showing the corporation of the Mays-ville & Big Sandy Railroad Company; and reference was made, under the laws of Kentucky, also, to the charters of the Chesapeake & Ohio Railway Company in West Virginia and Virginia; and reference was made to the General Statutes of Kentucky, showing, as was claimed, authority vested in the Maysville & Big Sandy Railroad to lease its road to the Chesapeake & Ohio Railway Company. There was introduced in evidence, also, the record Of the proceedings in the previous suit of Hukill against the same defendants, rpforreñ to in the petition for removal, and sot forth in the opinion of this court in the ease of Hukill v. Chesapeake & O. Ky. Co., (55 Fed. 138.</p>

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

<p>1. Contracts — Benefit of Third Party — Agreement not to Sue.</p> <p>S. was the owner of a lumber mill, at which he carried on the business of manufacturing lumber. Under an agreement with the firm of H. & S., the latter advanced moneys to S., and furnished him with goods for use in operating the mills, the product of which was consigned to IT. & S.,_ who sold the same, and accounted for the proceeds, applying them on their account against S. At a time when S. was largely indebted toH. & S., the latter entered into a contract with one H., by which it was agreed that II. should thereafter make advances and furnish supplies to S., and the product of S.’s mill should be consigned to H., who agreed to pay H. & S, on account of their claims against S., §20,000 down, a.nd $2,500 per month thereafter, until the indebtedness of S. to H. & S. was satisfied; and, in consideration thereof, H. & S. agreed not to attempt, during the life of the contract, and while its terms were complied with, to enforce'their claims against S. by assignment thereof, or otherwise, S. was not a party to the contract, though his consent to its provisions was recited. The terms of the contract were duly performed by II., but, before its expiiation, H. & S. assigned their claims against S. to D. & Co., who brought suit thereon against S., and attached his property. S. pleaded in abatement the agreement not to enforce claims, contained in the contract between IT. and II. & S. Held, that such plea was bad, S. not being a party to the contract, and there being nothing to show that the stipulation not to sue was made for his benefit, and not merely for the protection of H. in making the payments agreed on for his account.</p> <p>2. Limitations — Account Stated — Separate Items.</p> <p>In an action upon an account stated, consisting of a series of monthly statements, showing items and balance due, rendered to and accepted by tlie defendant, the defense of the statute of limitations is not available as to separate items entering into such statements of account.</p> <p>8. Interest — Agreement as to Rate.</p> <p>Where no usury law prevails, but any ra to of interest specified in writing by the parties to a contract is valid and legal, if monthly statements of account are rendered by a merchant showing items of goods sold, interest thereon at a rate above that fixed by statute in the absence of contract, credits, and balance due, interest being calculated in each succeeding month oil the balance of the preceding one, including the items of interest therein, such rendition and the acceptance of such statements by the customer, during a series of months, constituting a regular course of business, amount to an adoption of the rate of interest charged, with the same effect as if there had been an express agreement in writing.</p>

<p>Criminal Law — Indictment—Mailing Obscene Document.</p> <p>An indictment lor depositing in the mail an obscene document, which alleges that the. document in question is so obscene and indecent that the same vcould be offensive to the court, and improper to be placed upon the records thereof, wherefore the grand jurors do not set forth the same, and which does not set forth the document mailed, nor describe the same so as to furnish means of identifying it, is Insufficient..</p>

This was a suit in equity by the Allington & Curtis Manufacturing Company against J. B. Booth for alleged infringement of a patent. Plaintiff has mowed for a preliminary injunction.

<p>In Error to the Circuit Court of the United States for the Southern District of California.</p> <p>This was an action by Daniel C. Wilgus against Eugene Ger-main, Isaac B. Newton, and William H. Mitchell for damages for the infringement of a patent. Judgment-was rendered in the circuit court for defendants. Plaintiff brings error.</p>

<p>This is a suit in equity by Addie Newton against James A. Buck and others for infringement of a patent..</p>

<p>Tliis was a suit in equity by the Stirling Company against the Pierpoint Boiler Company and others for alleged infringement of certain patents for improvements in steam boilers.</p>

This was a petition by Collis P. Huntington and Pratt & Co. to assert an equitable lien against the proceeds of the steamships Advance, Allianca, Vigilancia, and Segurancia. The district court dismissed the petition, and the petitioner's appeal.

<p>1. Maritime Contracts — Letters oe Creii nr — Guaranty.</p> <p>A letter of credit may be maritime or nonmaritime, according to the objects of the loan, the intent of the parties, and the circumstances attending it; and consequently a contract guarantying, on the express security of a vessel’s freights, a letter of credit issued to enable her to pay her debts in a foreign port, and enable her to return home, is a maritime contract, enforceable in the admiralty.</p> <p>2. Maritime Liens — Supplies—Contract in Home Port.</p> <p>The owner can, by express contract made in the home port, create a maritime lien for a loan of credit, whereby the vessel is enabled to procure necessary supplies in a foreign port; but in such case the prima facie presumption of necessity for the credit of the ship which arises when supplies are furnished in a foreign port on the sole order of the master docs not apply, and on that question the claimant of the lien has the affirmative.</p> <p>8. Same.</p> <p>A guaranty of letters of credit, in the home port, on the request of the known insolvent owner, for the purpose of enabling the vessel to pay her debts in a foreign port, and thereby escape detention, creates no maritime lien on the vessel herself, where there was an express contract for a lien on the freights alone. 63 Fed. 726, affirmed.</p> <p>L Same — Subrogation.</p> <p>One giving a guaranty under an express contract whereby he is to have a lien on the freight alone is not subrogated to the rights of lien-ors in a foreign port, whose claims are paid with money obtained on the strength of the guaranty.</p>

<p>Removal of Causes — -Civii. Action — Antitrust Law.</p> <p>An information in equity to restrain violation of a state statute forbidding trust combinations is not a civil action, within the meaning of the removal act.</p>

<p>Removal op Causes — Time pou Removal.</p> <p>An extension of the statutory time to answer by mere stipulation, and not by order of court, does not extend the time for removal. Rycroft v. Green, 49 Red. 177, distinguished.</p>

<p>Removal op Causes — Separable Controversy — Railroad Mortgage.</p> <p>A railroad company which had given a mortgage to two trustees, one of which was a corporation of another state, brought suit to have such trustee removed, and also to restrain it from foreclosing the mortgage against the wishes of the other trustee and of a majority of the bondholders, Held, that the controversy between the railroad company and the former trustee was a separable one, to which the other trustee and the bondholders were not necessary parties.</p>

This was an action at law by Blanton Duncan against the Atchi-son, Topeka & Santa Fé Railroad Company and the Southern California Railway Company to recover damages for an alleged libel. The case was tried by the court without a jury, and judgment was given for defendants. Plaintiff brings error.

This was a suit by Emanuel and Abraham Rothschild against J. J. Hasbrouck, M. 0. Barnes, and others, to set aside an assignment. The cause was heard on the pleadings and proofs.

Plaintiff is a corporation for pecuniary profit, organized and existing under the statutes of. the state of Iowa. The defendant is a municipal corporation organized and existing under said Iowa statutes.

<p>1 CORPORATIONS — Charter—Implied Powers.</p> <p>When a company is incorporated, either by a special act, or under the general laws of a state, with the power to manufacture and sell gas, the power to charge and collect reasonable rates for the gas manufactured is implied, and forms a part of its contract with the state.</p> <p>E. Constitutional Law- -Impairing Obligation op Contracts — Act op Municipal Corporation.</p> <p>An ordinance of a municipal corporation regulating the exercise of the franchise of a private corporation within its limits, adopted in pursuance of authority delegated by the legislature of the state, is the act of the state, and, if in excess of its power to regulate or modify such franchise, is void, as impairing the obligation of a contract. New Orleans Waterworks Co. v. Louisiana Sugar-Iteiining Co., 8 Sup. Ct. 741, 125 ü. S. 18, followed.</p> <p>8. Equity Practice-Preliminary Injunction — -Seasonable Kates.</p> <p>The C. Gas Co. brought suit against the city of D. to restrain the enforcement of an ordinance fixing the prices of gas. The right of the plaintiff to the relief sought was found by the court to depend upon the’ reasonableness of the rates fixed. Upon an application for a preliminary injunction, the proof left some doubt upon the question of the amount which the plaintiff wa« entitled to regard as its Investment, as well as upon the actual cost of producing the gas. It appeared, however, that the rates fixed by the ordinance would permit some profit over cost of production, and that the plaintiff would not be irreparably damaged by the enforcement of the ordinance. Held, that taking Into consideration these facts, and also that the ordinance was prima facie valid; that its actual effect in increasing consumption and not profits, or the reverse, could not be known, except by experience; and that a final hearing, upon full proof, could be had without great delay, — the preliminary injunction should be refused.</p>

This bill, duly sworn to by H. L. Strohm, Esq., one of the attorneys of complainant, was brought by Henry L. Preston, a citizen of the state of Missouri, against the comptroller of public accounts of this state, to restrain the collection of a,n occupation tax. The question now before the court arises upon a motion made by the complainant for a temporary injunction.

<p>Deeds — Lost Instruments — Oral Proof.</p> <p>. In a suit to establish: a lost unrecorded deed of certain real estate, alleged to have been given by one S. to one M. in exchange for other property conveyed by M. to S., both S. and M. being dead at the time of the trial, M.’s widow testified to the negotiations preliminary to the exchange; that she was present when M. executed his deed to S.; that M. left with S., who said he would now have his deed executed; that M. returned with a deed from S. to him, which she read and preserved, and which she described in all essential particulars, except the description of the land, as to which she remembered only that it was in the county where the land in question lay. Another witness testified that a few years later, M. having died in the meantime, his widow gave the deed to the witness to take to the place where the land lay, and make inquiries about taxes, etc., and he corroborated M.’s widow as to the contents of the deed, and testified that né' gave It to one J., to have it recorded. J. testified that he did not have the deed recorded, because he was not provided with the money for the purpose, and that he left the deed with one P., and he produced a memorandum of the land conveyed by the deed, made by him at the time, and which corresponded with the land in question. These witnesses and J. testified to diligent, but unsuccessful, search for the deed. Held, that the making and delivery of the deed from S. to M. of the land in question was proved, and that the complainants were entitled to a decree establishing it.</p>

The defendant in error, David Bradley & Company, a corporation of Iowa, brought this action against the plaintiff in error, the Bank of Arapahoe, setting up, as its cause of action: That, in February, 1891, James B. Murray was carrying on an agricultural implement business at Arapahoe, Neb.

<p>In Error to the Circuit: Court of the United States for the District of Minnesota.</p> <p>This action was commenced in the United States circuit court for the Sixth division of the district of Minnesota by the defendant in error, the Fergus Falls Water Company, a corporation chartered under the laws of the state of Minnesota, against the city of Fergus Falls, a municipal corporation of that state, to recover moneys alleged to be due upon a contract entered into between tlie city and tlie water company on the 19th day of April, 1888, whereby the water company agreed to supply the city with water for fire and other purposes for the term of 30 years, and the city, by an ordinance of its common council, agreed to pay therefor, for that term, the rates specified in the contract. The complaint sets out the contract which is the foundation of the action, and alleges, in the mode required by the rules of pleading, that the plaintiff has at all times furnished water to the city, and fully complied with the covenants of the contract on its part, and that the defendant refuses to pay the water rents due the plaintiff by the terms of the contract, and prays judgment for the amount claimed to be due. In addition to the statement of the plaintiff’s cause of action, the complaint contains averments by which it is sought to make it appear that the action is one arising under the constitution of the United States, and therefore cognizable in the circuit court. These allegations of the complaint are as follows: “That on or about the 30th day of August, 1893, said defendant, by its council, duly passed a resolution wherein and whereby said defendant resolved and determined that ‘the contract for water supply through fire hydrants, for fire protection, heretofore recognized as existing between’ said plaintiff and defendant ‘under the provisions of Ordinance No. 18 of said city, be and the same is hereby declared to be null and void and is hereby canceled.’ And said defendant further determined in said resolution that said city would no longer take water from-said plaintiff under the provisions of said ordinance; that since said time said defendant has refused to pay rent on said hydrants under said contract, or to recognize said contract as binding; that said resolution is a law impairing the obligation of said contract.” The resolution of the council of the 30th of August, 1893, referred to in the foregoing extracts from the complaint, reads as follows: “It is hereby resolved and determined that the contract for water supply through fire hydrants, for fire protection, heretofore recognized as existing between the city of Fergus Falls and the Fergus Falls Water Company, under the provisions of Ordinance No. IS of said city, be and the same is hereby declared to be null and void and is hereby canceled. And it is hereby determined that the city will no longer take water from the said water company under the provisions of said Ordinance No. 18. Adopted August 30, 1893.” The defendant demurred to the complaint upon the ground that it'did not appear from the allegations thereof that the circuit court had jurisdiction of the suit. The court overruled the demurrer, whereupon the defendant filed an answer, in which it “denies that said defendant, by its charter (chapter 1, Sp. Laws Minn. 1883), or otherwise, was ever authorized to contract for a water supply for said cits’-, and specially denies that said defendant,, under said charter or otherwise, ever had the right, power, or authority to make or enter into the contract set out in said complaint, and under which plaintiff claims in this action, and denies that defendant ever entered into any contract with the plaintiff Carroll E. Gray, or any other person, for a water supply for said city. Defendant, further answering, admits that Ordinance 18, attached to said complaint, is a true copy of a pretended ordinance passed by the council of said city April 19, 1883, but denies that said council had any authority, right, or power whatever to pass or enact said ordinance, or to enter into the contract, or to grant the rights, powers, privileges, or franchises, sot out in said pretended ordinance, and denies that said city council so passing said pretended ordinance had any authority to create against said city the debt or liability attempted to be created in and by said pretended ordinance.” There was a trial to a jury, and a verdict and judgment for the plaintiff, and the defendant sued out this writ of error.</p>

<p>1. Evidence — Explaining Ituremivant Pacts.</p> <p>When irrelevant evidence, of a character likely to be injurious to the plaintiff’s case, has been elicited by the defendant on cross-examination of the plaintiff, it is not error to permit the plaintiff afterwards to introduce evidence, otherwise irrelevant, for the purpose of explaining the facts.</p> <p>2. Same— Cokuksi'OXDknce.</p> <p>In an action against the proprietor of a newspaper for libel, the defendant pleaded in mitigation of damages that it had sent to the plaintiff a letter, set out in full in its answer, offering plaintiff an opportunity to publish a statement in regard to the libel, and upon the trial such letter was introduced in evidence. The plaintiff was then permitted to put in evidence two letters from his attorney to the defendant, to which defendant’s letter was a reply, for the purpose of showing that defendant's offer was not made voluntarily, but under threat of suit, and was not an offer of full reparation. Held no error, though the letters contained statements of facts of which they were not competent evidence, no objection having been made on this ground.</p>

Northern District of California. This was an action by Henry C. Morris against A. G. Johnston to recover jiossession of certain lands to which plaintiff claimed title under the state of California, which had selected them as indemnity school lauds. The ¡.rial below resulted in a judgment for plaintiff, and defendant thereupon sued out this writ of error.

The defendant in error filed his petition in the circuit court to recover from the plaintiffs in error upon two specific claims for clerical services rendered by him, as a cleric in the office of the United States attorney for the district of Montana, during the years 1891 and 1892.

<p>1. Trade-Mark — Use op Surname.</p> <p>A manufacturer cannot, by extensively advertising his name in connection with goods made by him, acquire the right to enjoin another person with the same surname from selling similar goods under that surname, when such oilier person has for many years been engaged in the manufacture of such goods, and puts his full name on his labels.</p> <p>2. Same — Trade-Mark not Based on Fact.</p> <p>The owner of several mills situated in different states, who has ceased to manufacture at one of Ms mills, and supplies the customers of that mill with the product of his other mills, cannot enjoin the violation of a trademark which assumes that said mill is still running.</p>

These were four patent infringement suits, brought by J. H. McBride against the following defendants, respectively: Kingman & Co., R. l\L Galbraith, and the Weir Plow Company; H. H. Sickles and Deere & Co.; James Ainsworth, John S. Bonbright, and the Moline Plow Company; and George W. Randall, Adam Dickey, and the Norwegian Plow Company.

This was a bill in equity by the Tripp Giant Leveller Company against Morris Y. Bresnahan and others for alleged infringement of a patent. The circuit court made an order granting a preliminary injunction (70 Fed. 982), and the defendants have appealed.

This was a bill in equity by the Atlantic Dynamite Company and the Repauno Chemical Company against the Climax Powder Manufacturing Company for alleged infringement of two patents relating to explosives.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>These were cross libels for damages on a charter party of the steamship Ceres, — the first by Gerhard Wessels and others, the charterers, against the vessel; the second, by the Sydvenska Angfartygs Aktie-bolaget, her owner, against the charterers. The district court entered a decree on the first libel in favor of libelants for $7,320.04, and dismissed the cross libel. 61 Fed. 701. From each of these decrees the owner of the ship appealed.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the District of Washington.</p> <p>This was an action of replevin brought by the St. Paul, Minneapolis & Manitoba Railway Company against James G. Drake and Samuel Vinson to recover possession of two locomotives, levied upon by defendants as United States marshal and deputy marshal, respectively. A demurrer to the answer on the ground that the facts stated constituted no defense was overruled by the circuit court, and, plaintiff having elected to stand on his demurrer, judgment was entered for defendants. Plaintiff thereupon sued out this writ of error.</p>

<p>1. Partnership — Liability of Partners — Notice.</p> <p>When negotiable securities, transferable by delivery, are intrusted by the owner to one partner of a firm, to be used in raising money for the owner’s benefit, and are by such firm afterwards used in raising money for its benefit, — the proceeds of the loans so secured and sales made being- credited to the partner to whom the securities were intrusted,— the other partners are affected with his knowledge of the real owner’s interest, and all are equally liable to the owner for the moneys raised by means of the securities and used by the firm.</p> <p>2. Pleading — New York Code — Disregarding Irregularities.</p> <p>Tinder the provision of the New York Code of Civil Procedure (section 1207). that when there is an answer the court may permit the plaintiff to take any judgment consistent with the case made by the complaint, and embraced within the issue, a judgment will not be reversed because the complaint is inartiiicially drawn, or sets out a cause of action as for conversion, which should properly be for money received to the plaintiff's use, if the vital issue of the case is preferred in the complaint and controverted in the answer, and the defendant has had full opportunity to adduce any evidence available in defense.</p>

<p>1. Police Power — Regulating Price of Gas — Reasonableness.</p> <p>Under an act of a state legislature authorizing a taxing district to regulate the price of gas furnished by gas companies within such taxing district, provided the price shall not be fixed below a certain minimum, such power to regulate cannot be exercised arbitrarily, without investigation of the facts bearing upon the reasonableness of the rate to be fixed, or in such a manner as to bring about a destruction or confiscation of the property of the gas companies; but due regard must be given to the right of such companies to receive such an income from their business as to pay operating expenses, legitimate fixed charges, and a reasonable profit.</p> <p>3. Equity Practice — Preliminary Injunction.</p> <p>Accordingly, upon a bill charging that a rate for gas, fixed under such a statute by a taxing district, was fixed arbitrarily, without investigation, and was so unreasonably low that the company affected would be unable to meet its expenses and fixed charges, and would he rendered insolvent, and praying for an injunction to restrain the enforcement of the ordinance fixing the rate, held, that a preliminary injunction restraining its enforcement should he granted, upon the gas company’s giving a hond to refund to the consumers of gas the excess of charges if its hill should fail.</p> <p>8. Same.</p> <p>On application for preliminary injunction it is not proper to decide the merits of the controversy, especially where the case turns on grave questions of law. All that the judge should, as a general rule, require, is a case of probable right and probable danger to that right without the interposition of the court, and the judge’s discretion should then he 3'egulated by rhe balance of inconvenience or injury to the one party or the other.</p> <p>4. Same.</p> <p>The judge should, in a case of probable right, grant the provisional injunction where the relief sought is essentially preventive and a denial of the injunction might in effect amount to denial of all relief.</p>

<p>1. Equity Practice — Creditors’ Bills.</p> <p>Bills for the foreclosure of a mortgage and as general creditors’ hills were filed against the S. Go. A receiver was appointed in the first suit, and the receivership extended to the others, and all the suits were then consolidated. An auxiliary suit having been brought by the receiver to enforce a subscription to the stock of the S. Co., the defendant set up in his answer objections to the jurisdiction of the court in the original suit, on the ground that, as the consolidated bills did not show exhaustion of the legal remedy by returns of nulla bona, the cause was not one of equitable cognizance. Held that, even if the defendant in the auxiliary suit could raise objections to the jurisdiction of the court in the original suit, the objection was without merit, since the hills were for foreclosure as well as general creditors’ hills, and simple contract creditors have the right to intervene in such suits, while it is the practice in the circuit court for the Eastern district of Tennessee to make all foreclosure suits against insolvent corporations general creditors’ hills as well, in order to secure complete winding up.</p> <p>2. Constitutional Law — Trial by Jury — Suits in Equity. '</p> <p>The enforcement of the liability of a subscriber to the stock of a corporation by an auxiliary suit in equity, brought by the receiver of the corporation appointed in a creditors’ suit instituted upon its insolvency, does not infringe the constitutional right of such subscriber to a trial by jury.</p> <p>8. Corporations — Subscriptions to Stock — Calls.</p> <p>When a corporation is insolvent, and proceedings are pending, instituted by creditors, to wind up and distribute its assets, no call or assessment is necessary before the institution of suits to collect unpaid balances on subscriptions to its stock.</p> <p>4, Same - Misrepresentations.</p> <p>When proceedings are instituted to collect a subscription to the stock of a corporation after its insolvency and the institution of proceedings to wdnd it up, the subscriber cannot defend against the claim on the ground of fraudulent misrepresentation in securing his subscription, without showing that he exercised the greatest diligence to discover the fraud and repudiate his contract of subscription.</p> <p>5. Same — Construction of Charters — General Acts.</p> <p>The rule that a grant by legislative charter is to be strictly construed, and that nothing passes by implication, applies with even greater force to articles of association organizing a corporation under general laws than to a charter granted by special act.</p> <p>6. Same — Increase of Stock — -Tennessee Statute.</p> <p>The general incorporation act of Tennessee, as adopted in 1875, provides that a corporation organized under it “may, by by-laws, make regulations concerning the subscription for or transfer of stock, fix upon the amount of capital stock, * * * the division of the same into shares, the time required for payment thereof,” etc. An amendment, adopted in 1883, provides that “any corporation which may desire to change its name, increase its capital stock,” etc., may do so by filing a certificate, with the same formalities as its original articles of association. Held that prior to the amendment of 1883 no power was given by such act to corporations organized under it to increase their capital stock, and that an attempt by such a corporation to increase its stock by a by-law was of no effect, and the subscriptions to the increased stock were void.</p> <p>7. Sh.ME — Illegal Acts — Estoppel.</p> <p>When corporate stock has been illegally increased, not by a mere irregular, exercise of an existing power, but by an act which the corporation was wholly without power to do, a subscriber to such increased stock is not estopped to defend an action on his subscription on.the ground of the illegality, by having acted as president and manager of the corporation, and representing the stock at meetings of stockholders, whether the action be brought by the corporation itself or by a receiver acting in the interest of creditors. '</p>

<p>Insolvent Estates — Collateral Securities.</p> <p>When a creditor of an insolvent estate holds collateral securities for his debt, he is not required to exhaust his remedy upon such securities, nor to surrender them to the assignee or receiver administering such assigned estate, before receiving a dividend therefrom.</p>

In I'liTOi' to the Circuit Court of the United States for the Eastern District of Texas. Held: is material and necessary for the plaintiffs in the prosecution of said cause, and that it is not probable that the presence of said witnesses can be had'at the trial; further, that the defendants lived in the Eastern district of Texas; and that ho is informed and believes that James b. Bradford is the attorney of said defendants,…

This suit was brought in the circuit court of Hinds county, state of Mississippi, by the United States, suing for the use of John L. Moo-re, against John S. McNeily, United States marshal for the Southern district of Mississippi, and the sureties on Ms official bond, to recover damages for a breach or said bond, in that the said marshal, under an indictment found in the circuit court of the United States for the Southern district of Mississippi against L. U. L. Moo-re for a…

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>This was a bill by Austin Walrath against the Champion Mining-Company to define and enforce his rights in a certain vein whose apex lay in the surface lines of his patented location. The circuit court rendered a decree granting him, in part only, the relief prayed. See 63 Fed. 552, where a full statement of the case will be found. Complainant appealed. The property in controversy is shown by the following map.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the District of Washington.</p> <p>This was an action by Christine Selby against the Mutual Life Insurance Company of New York to recover upon three policies of life insurance upon the life of William Selby. In the circuit court a verdict, was rendered for plaintiff, and judgment was entered accordingly. (57 Fed. 490. Defendant brought error.</p>

This was an action by Albert Wade against Travis county, Tex., to recover upon interest coupons of certain county bonds. Defendant demurs to the complaint.

<p>1. Contracts of Agency — Assignability.</p> <p>A contract by which a bookseller was constituted the sole and exclusive agent of a publisher, to sell, by subscription only, a certain book, and to collect payment therefor, required the agent to use his best efforts to procure as many subscriptions as possible, to exercise a minute personal supervision over all canvassers, to remit within 30 days after shipment a sum equal to the subscription price, and to remit for 10,000 copies within one year after the complete publication of the work. The contracts of subscription were to be directly with the publishers, the agent to have compensation by commissions only, and the publishers required the agent to give them a personal letter stating that he could fulfill all his engagements. Held, that this contract was purely one of agency, resting upon confidence in the personal skill, energy, and resources of the agent, and that it was therefore not assignable without the consent of the publishers.</p> <p>8. Same — Ratification of Assignment — Trial—Instructions.</p> <p>Where it was claimed that a principal, after refusing to recognize an assignment of a contract of agency, had ratified the assignment by failing to answer certain letters addressed to him by the assignee, and by receiving and retaining for a time certain moneys remitted by him, held, that it was sufficient for the court, after explaining these transactions, to charge the jury that, notwithstanding the express refusal to recognize the assignment, they might consider these acts and omissions as a ratification, if they believed them to be such, under all the circumstances.</p> <p>8. Same — Liquidated Damages.</p> <p>A contract of agency for the sale of a book by subscription provided that in ease of the agent’s failure “to take subscriptions, make requisitions, or remit for the total number of copies herein guarantied within one year,” the agent should pay, as liquidated damages, the contract price, less commissions and the cost of producing the books. In an action for breach of the contract the publishers, not relying solely on the agreed liquidation, gave evidence of their actual damages; proving that by the failure to carry out the contract the books were left on their hands, and became unsalable, because of the decline of public interest in the subject-matter. Held that, independently of the question whether the above provision was for liquidated damages, or a penalty, the court would have been justified in instructing the jury that the verdict, if for plaintiff, should be for the full extent of the damages proven.</p>

<p>1 APPEAL — TRIAL WITHOUT JlTRY — SPECIAL AND GENERAL FINDINGS.</p> <p>In an action involving the question whether plaintiffs were wholesale liquor dealers, within the meaning of the internal revenue laws, a trial was had to the court without a jury. The court made special findings of fact, detailing the manner in which plaintiffs, as commission merchants, had purchased liquors to fill the orders of certain foreign correspondents, and then added a general finding that, “in executing such orders in the manner already stated, the plaintiffs were not engaged in the business of wholesale liquor dealers, nor did they at any time sell or offer for sale foreign or domestic distilled spirits or wines in quantities of not less than five wine gallons at the same time.” Helé, that this was only the court’s interpretation of the facts specially found, and did not preclude the appellate court from considering those facts, and determining therefrom whether the judgment was erroneous. Morrow, District Judge, dissenting.</p> <p>2. Internal Revenue — Who Are Wholesale Liquor Dealers.</p> <p>Commission merchants who, at the request of foreign correspondents, occasionally purchase liquors in quantity, and take charge of shipping the same, and either charge the costs and their commissions upon their books to the account of such correspondents, or draw upon them for the full amount of the purchase price with costs and commissions, are “wholesale liquor dealers,” within the meaning of Rev. St. § 3244, and liable, as such, to Hie special tax. Morrow, District Judge, dissenting. ■</p>

<p>Rule against William L. Ritter to show canse why he should not be punished for contempt in violating an injunction. •</p>

<p>Habeas Corpus — Imprisoned Convict — Location op Penitentiary.</p> <p>The fact that a penitentiary over which the territory of Arizona claims and exercises jurisdiction is alleged to he beyond its boundary, and in the state of California, is no ground for issuing a writ of habeas corpus to release one imprisoned therein under sentence of an Arizona court. A boundary dispute cannot be created or determined in this manner, especially as territories are authorized by statute (Act June 16, 1880) to provide for maintaining their convicts in the prisons of other states or territories.</p>

<p>This is an appeal from a decision of the circuit court, Houthern district of New York (68 Fed. 908), reversing a decision of the board of general appraisers, which affirmed the action of the collector of the port of New York in the classification for customs duties of certain merchandise imported by the appellees, Alexander Murphy & Co.</p>

<p>In Equity. On motion.</p> <p>' Suit for injunction by Margar G-. Dadirrian against Meshack M. Yacubian and Elia Tekirian. Complainant moves for a preliminary injunction.</p>

These were two bills in equity brought by the Thomson-Houston Electric Company against the Kelsey Electric Railway Specialty Company and the Billings & Spencer Company, respectively, for alleged infringement of a patent. The case was heard upon complainant’s motion for a preliminary injunction.

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

<p>Collision — Steamer with Tow — Narrow Channel — Presumption.</p> <p>A steamer which, while going down the Delaware river in the narrow and frequented channel near Wilmington, decided to cross from the western to the eastern side for the purpose of anchoring, and in so doing- ran down the hindmost of two harges in tow of an ascending tug, held to have the burden of showing that she exercised great care in executing the maneuver. which was an extraordinary one; and. it appearing that she was wanting in such care, and that her lookout was negligent, held, that she was solely in fault, no specific fault being shown on the part of the mg or tow.</p>

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

<p>Error to the District Court of the United States for the Eastern District of New York.</p>