Volume 73 — Federal Reporter

<p>Removal of Causes — Sepabablk Controvebsy.</p> <p>One W„ a citizen of New Jersey, brought a suit in a court of that state against a railway company incorporated by that state, and against its officers and directors, to have the railway company declared insolvent, and a receiver appointed, under a state statute. About the same time one V., a citizen of New York, and trustee under a mortgage of the railroad, took possession of the road under the provisions of the mortgage. Thereupon he was made a party to the suit brought by W., and removed the cause to the federal court, on the ground that there was a separable controversy between complainant and himself. Complainant moved to remand. Eeldy that there was no such separable controversy, and that the suit should be remanded.</p>

Certificate of questions upon which the decision of the supreme court of the United States is desired by the circuit court of appeals.

This was a suit in equity, brought in a state court of Tennessee, by Sarah E. Carver and another, against the Jarvis-Oo-nklin Mortgage Trust Company and others, to enjoin, on the ground of fraud, the execution of a foreclosure decree rendered by the supreme court of Tennessee, on an appeal. The cause was removed by defendants to this court, and complainants have now moved to remand it.

This was a bill by Leo A. Brigel and Logan C. Murrey, trustees, against the Tug River Goal & Salt Company, the Kentucky & Cincinnati Natural Gas & Fuel Company, and several individuals, to foreclose a mortgage, and for other relief. - The defendant the Tug River Goal &Salt Company was the mortgagor, and the other parties were made defendants because they, as judgment creditors or other- ’ wise, claimed an interest in the property; the object being to sell a perfect title by…

<p>1. Limitations — -Suits by United States.</p> <p>Statutes of limitation of the several states do not apply to actions wherein the government of the United States is plaintiff.</p> <p>2. Circuit Courts — Jurisdiction—Suits on Official Bonds.</p> <p>The United States circuit courts have jurisdiction under section 1 of the act of August 13, 1888 (25 Slat. 433), concurrent with the district courts, of suits by the government on the official bonds of officers chargeable with public moneys.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Motion to dismiss the appeal. The following certificate of the clerk of the court below was produced before this court:</p> <p>Circuit Court of the United States, Eastern District of Pennsylvania.</p> <p>I, Samuel Bell, clerk of the circuit court of the United States in and for the Eastern district of Pennsylvania in the Third circuit, do hereby certify that in a cause lately pending in said court wherein the Diamond Match Company was complainant and Joseph H. Schenck and John M. Moore, co-partners doing business as Dr. J. IT. Schenck and Son, and Binghamton .Match Company, respondents, a decree for perpetual injunction was entered by said circuit court on the seventh day of January, A. D. 1896, in favor of complainant and against respondents, and that on the fourth day of February, A. D. 1896, the respondents prayed the allowance of an appeal to the United States circuit court of appeals for the third circuit, which was allowed by the court, and that on the third day of March, A. D. 1S96, a bond in the sum of $500 to secure costs on appeal was approved, and a citation duly issued. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said circuit court at Philadelphia, this sixth day of March, A. D. 1896, and of the independence of these United States the 120th.</p> <p>[Seal.] Samuel Bell,</p> <p>Clerk Circuit Court of U. S., East. Dist. of Penna.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Texas.</p> <p>This is an appeal from a decree, rendered July 8, 1893, by the circuit court for the Northern district of Texas, overruling exceptions to the report of a master, and dismissing the hill of complaint. The defendants named in the hill are Heard, Allen & Floore, bankers, of Cleburne, Johnson county, Tex.; S. B. Allen and John W. Floore, members of said firm, sued individually; S. E. Moss, sued as claiming to be the purchaser of Allen’s interest in the firm of Heard, Allen & Floore, and in the lands mentioned in the bill; Sam White; Sophia White; Andrew Green White; and William T. Hudson.</p> <p>The bill charged that William T. Hudson, Sam White, and Heard, Allen & Floore formed and carried out a combination and conspiracy against complainant, his rights and property, and had “absolutely refused to pay and convey to complainant certain moneys, and certain cattle and the proceeds thereof, and to convey certain described lands claimed to be held fraudulently against the right and title of complainant, and which, in equity and good conscience, should be transferred to complainant.” The averments of the bill are, in substance, that L. V. F. Randolph, of the city of Plainfield, state of New Jersey, in reliance upon certain alleged false representations, made by one W. T. Hudson, of Kopperl, Bosque county, Tex., at the time a depositor and customer of the banking firm of Heard, Allen & Floore, and in further reliance upon alleged false assurances of said firm, through S. B. Allen, to the effect that Hudson was financially able to perforin a proposed contract, hereinafter referred to, and was a man of good character l’or honesty and integrity, and that a bond offered as security for the performance of said contract was perfectly good and safe. did. on May 8, 3885, enter into a contract for the purchase from W. T. Hudson of a large number of cattle, and accepted the bond referred to guarantying the performance by Hudson of the stipulations of the contract; that, by the contract, Hudson agreed to deliver to Randolph, on or before July 1, 3885, at Red Fork ranch, in the Indian Territory, 5,500 head of steer cattle, for which complainant agreed to pay $(>(¡,000; that §11,000 of such agreed price was paid, at the time of the execution of the contract, by draft upon a New York bank, and, about May 22. 1883, a second draft for §16,000 was paid upon presen ration; that these drafts were collected through Heard, Allen & Floore, at their special solicitation; that the remainder of the purchase price was to be paid on the delivery of the cattle, and, moreover, the agreement provided, in the event of a total failure to perform, Iludson should pay and forfeit §24,-000 as liquidated damages, and for a partial failure ho should pay and forfeit 85 for each head undelivered. The sureties on the bond were B. F. Vinson, A. 3. Hudson, George D. Hudson, John R. Haley, Sam White, and R. B. Hudson. In addition, (he bill aveiTed that the representations and inducements of Hudson and Heard, Allen & Floore. upon which complainant relied in making the contract, “were false, and, your orator believes, and so charges, were made to induce the contract by and through which your orator parted with his money.” The bill further averred that, at the time of the making of the aforesaid representations by Heard, Allen & Floore, they were creditors of said Iludson in a large sum; that a part of this indebtedness was then overdue, and that the firm fraudulently concealed knowledge of such facts, which, if they had been made known, complainant would not have made the contract, and parted with Ms money in accordance with the terms thereof; that Hudson had been frequently indicted, prior to the said representations, for grave crimes and felonies, and, upon belief, complainant charged that Heard, Allen & Floore well knew of such indictments, and concealed their knowledge from complainant; that Allen, on May 25, 1885, In reply to a telegram which Randolph sent, a day or two following the second payment upon the contract, falsely stated that reports to Randolph of possible bad faith of Hudson were falso, and that the cattle which were to be delivered under the contract were ail bought, and would move about June 1st, and substantially reiterated the statements in a subsequent letter; that complainant, very soon after receipt of the telegram and letter from Allen, went to Texas, and personally investigated the progress being made by Hudson, and from Itopperl proceeded to Red Fork ranch, and there awaited the arrival of the cattle. It was averred that, about the 12th of .Tune, Hudson stai-ted with about 8,000 head of cattle, ostensibly to make delivery under his contract, but on the way began to cut out and sell por^ tions of the, herd, and that, learning of this, Randolph hurried back to Texas and employed counsel to protect his interests; and the bill charged that, subsequent to the execution of the contract, “the parties to the contract liad conveyed to one B. F. Hudson about sixty or seventy thousand dollars’ worth of property,” and L. B. Hudson has transferred his property to his wife, and caused her to make a conveyance to one Black, all with intent to hinder and delay and defraud complainant.</p> <p>Specific averments are contained in the bill as to conveyances executed by Sam White in (he latter part of July, 3885. to his wife and children, of about 2,000 acres of land, and, fol'owing said conveyances, on August 0th, White is alleged to have executed a mortgage on the same land to Hoard. Allen & Floore, and it is alleged that, on the next day, White and his wife and children executed another mortgage to said firm upon the same property, charged to be fraudulent, and that on said last-named date White also gave said firm a chattel mortgage upon 400 head of cattle. It was charged that Heard, Allen & Floore, in order to haye a pretense of a claim upon which to base an incumbrance upon the White land, and with intent to hinder, delay, and defraud Randolph, and to protect White from process in a suit then anticipated to be brought by Randolph, did, about August 6, 1885, pay at the First National Bank of Cleburne a note for the sum of $3,480.24, made by W. T. Hudson to or for the benefit of one Mrs. Blair and said to bear the name of Sam White. The bill averred that, on August 14, 1885, Randolph instituted an action in the circuit court of the United States for the Northern district of Texas, sitting at Dallas, upon the contract and bond of May 8, 1885, and sued out a writ of attachment, which was levied upon lands claimed to be the property of the defendants, including the White land, heretofore referred to as mortgaged to Heard, Allen & Floore. It was averred that, at a sale, in October, 1885, under the mortgage to them, Heard, Allen & Floore became the purchasers of the mortgaged cattle for $2,500, and of the real estate mortgaged to them by White for $2,-000; and the bill alleged that the firm thereafter realized many thousands of dollars from the sale of said cattle, and received notes and promises to pay for a portion thereof. It was averred that, subsequent to the bidding in of said property by Heard, Allen & Floore, Randolph obtained a judgment in his suit, instituted, as above stated, against Hudson and his bondsmen, and caused the lands formerly owned by White, and then claimed by Heard, Allen & Moore as their property under the said purchase, to be sold upon an order of sale entered in said suit, and became the purchaser at said sale for the sum of $2,250. Complainant further alleged that Heard, Allen & Floore appropriated $10,000 of the $30,000 advance payments upon the contract, by depositing the amount to the credit of Hudson, and then charging the account with a part of the debts due the firm by Hudson, which had arisen prior to the making of the contract with Randolph. It was averred that, when Randolph returned to Texas from Red Fork ranch, 1,959 of the herd of cattle with which Hudson had left Texas were then in the Indian Territory, and were subsequently driven back into Texas by the government authorities; that Randolph caused said cattle to be attached in his then pending action against Hudson and his sureties; that the same were replevied by Hudson, and were subsequently sold by Hudson to the sureties on the replevin bond, he (Hudson) taking the note of said sureties therefor in the sum of $20,660; that Heard, Allen & Floore employed attorneys to procure said attachment to be quashed; that the said 1,959 head of cattle had been bought with plaintiff’s money, but that Heard, Allen & Floore constantly sought, and “still seek,” to collect their claims against Hudson out of said cattle and the note in question, and had taken the note into tlieir possession, and claimed that a large proportion thereof had been transferred to them. Complainant averred that, in equity, he had the prior right to the said property, or the proceeds thereof. It was also averred that Heard, Allen & Floore claimed to exercise, and did exercise, control over said cattle, and had offered to deliver a portion thereof to complainant in settlement of his claim, and that said firm had delayed and hindered the trial of complainant's suit against Hudson and his bondsmen, and, as a result thereof, by the time the judgment was obtained, it was uncollectible, whereas, if the judgment had been recovered a year earlier, the greater part would have been collected.</p> <p>The foregoing averments were the basis of the claim, asserted by complainant,' that there had been a confederacy and conspiracy between Heard, Allen & Floore and the defendant Hudson to defraud complainant, whereby he had been damaged to the extent of $50,000. In addition, it was alleged that the White land was worth $18,000, the 1,959 head of cattle $20,660, and the 400 head of cattle $11,000; that Heard, Allen & Floore had absorbed other large quantities of land belonging to White, situated in Erath and Palo Pinto counties, Tex., the amount and value of which were to complainant unknown; that Hudson and White voluntarily permitted Heard, Allen & Floore to take large default judgments against them in the district court at Cleburne for $10,-979.82 and for $857.13; and that the same were wholly fraudulent and void; but for what reason said judgments were fraudulent and void the bill did not specifically, state. The relief prayed was, in substance, cancellation of the various deeds and mortgages upon the White land, referred to in the bill, and the annulment of the purchase by Heard, Allen & Floore of White’s land, as being clouds upon complainant’s title to said land; that Heard, Allen & Floore be required to account for the $30,000 advanced by Randolph upon the contract with Hudson, and that judgment be awarded against them for such sum as might be found to have been appropriated for other purposes than that for which the money was furnished; that Heard, Allen & Floore be required to account for and pay over to complainant the proceeds received by them from the sale of the cattle mortgaged by White, as also the proceeds from the sale of the 1,950 head of cattle heretofore referred to.</p> <p>S. B. Allen and J. W. Floore, for themselves individually, and as surviving members of the late firm of Heard, Allen & Floore, jointly demurred to the bill. S. E. Moss filed a separate demurrer. Both demurrers were overruled. Thereupon, by leave of court, complainant amended his bill by inserting proper allegations of the citizenship of the respective parties, and the insolvency of the defendants in the suit of Randolph v. Hudson et al.</p> <p>Allen and Floore subsequently filed a joint answer, and specifically denied each allegation of the bill charging Heard, Allen & Floore with fraudulent conduct, and with conspiring to defraud plaintiff, and set forth the state of accounts between the firm and Hudson and White at the time of the execution of the contract. The indebtedness owing from Hudson and White when the contract was entered into was alleged to be bona fide, that the same was not concealed from Randolph, that tie made no inquiry upon the subject, and they were under no legal duty to volunteer information regarding the same. They averred that it was not within the scope of the business of the firm for one member to make representations regarding the financial ability of any one, but that no representation was made to complainant by any member of the firm regarding Hudson’s integrity or financial ability to carry out the contract with Randolph, and that the only representations made to Randolph were made by Allen, in answer io questions by Randolph, were1 believed by Allen to he (rue when made, and were uttered in good j'aitli, and were simply expressions of opinion, — Allen merely stating he thought. Hudson could make Randolph secure; that he (Hudson) was a live, energoüe person; and that the bond to be given for the fulfilment of the contract was a good bond. Defendants also averred that they had no pecuniary interest in the contract between Randolph and Hudson, and did not try to induce its execution, and that, when the agreement was entered into, they had no reason to question the integrity in business or any other relations of Hudson, did not then know that Hudson liad been indicted in the courts of Texas for crimes or felonies, and had not heard of his being- convicted of any crime or felony. The answer admitted that Allen solicited Randolph to make Die payments through their bank, and averred tnat the same was done with no intention, on the part of tlio firm or its members, to appropriate the money to tie collected, or any part thereof; but that the request was made in the line of their business, and that the money was collected without any agreement on the part of the firm to see to the appropriation thereof by Hudson, and was deposited to Hudson’s credit, and became, his property, and subject to his control, and was withdrawn by his chocks thereon. Regarding the telegram of May 25th, and his subsequent letter, Allen averred .that they were written and sent in good faith, and in reliance upon information believed by him to lie true. Floore denied any knowledge at the time of the writing or sending of the dispatch or letter. Defendants averred that the first knowledge on their part of the probable intention of Hudson not to carry out his contract was on August 5, 1885, when one McIntyre presented to them a check, drawn by Hudson, and from him they learned that Hudson was making sales of tlie cattle. They averred that thereupon they took immediate steps to protect themselves, brought suit, and obtained judgments by default against Hudson, White, et al., and ti ied to obtain a. settlement from' Hudson, but failed, and then obtained from White, under threats of attaching his property, the mortgages upon his land and cattle referred to in the bill. They averred that, when their attorney was about to-place the first mortgage upon record, he discovered that White had already conveyed his land to his wife and children; ihat the execution of the second mortgage or deed of trust was then taken, and, in addition, as the land was ascertained not to be as valuable as at first supposed, a mortgage upon White’s cattle was obtained. As a. condition of giving said mortgages, White required that they should pay the Blair note¡. referred to in the bill, and, in order to obtain the security from White, they assumed the payment of said note, and paid the same, and the amount thereof formed a part of the indebtedness for which White executed the mortgage for their benefit. Defendants further averred that the low prices realized upon the sale of the land and cattle were caused by the interference of Randolph, through an attorney, who attended the sale, and warned those present against bidding. They denied -any attempt to control the 1,959 head of cattle, but averred that Allen, in the effort to get Hudson to apply the property controlled by Hudson in settlement of the balance still due the bank and his indebtedness to Randolph, was authorized by Hudson to propose to Randolph that lie'’and the firm take charge of the cattle, wagons, horses, and all his outfit, and sell them, complainant to receive two-thirds of the proceeds and a note for the balance with security, and Heard, Allen & Floore to receive the remaining one-third, but that the proposition was declined by Randolph. Defendants admitted that they employed attorneys to quash the attachment upon the 1,959 head of cattle, and accepted a transfer of a portion of the note given by the replevin sureties upon their purchase of the cattle from Hudson; but they averred that they did so in an honest endeavor to collect the indebtedness due them, and that they did not authorize a contest of plaintiff's right to recover against Hudson and 1ns sureties, or any attempt to delay the trial of the cause, but employed attorneys to secure for them the benefit of the attempted assignment of a portion of said note, the payment of the note being conditional upon the discharge of the attachment. They further averred that they never realized anything from the note, or from the cattle which formed the consideration thereof. Defendants also alleged that Hudson paid for the cattle collected by him, to be delivered under his contract, upwards of $35,000. It was averred that the White land, after deducting the homestead of White, aggregated 1,935% acres, and was not worth to exceed $10,000, and that the firm still held the land, except 170 acres, which has been sold for $1,000; that they had sold a lot in Glen Rose, Tex., for $325, and realized from the sale of the 400 head of cattle $4,100, from the sale of a smaller number $75, and had bought, under a sale on a trust deed, a small tract of land worth, probably, $3o0. The proceeds of the .auction sales of White’s land and cattle were applied on certain of the notes, and judgments were taken against Hudson and White for the remainder, the judgments embracing interest at the rate of 12 per cent, and 10 per cent, attorney’s fee.</p> <p>S. B. Moss answered the bill, and averred that, at the time of the making of the contract by complainant with W. T. Hudson, defendant was not a resident of Johnson county, Tex., and had no knowledge of the matters stated in complainant’s said bill; that, on December 23,1888, he had purchased Allen’s interest in the firm of Heard, Allen & Floore, embracing one-third of the lands in controversy, and paid him, for such interest, in cash, $20,000; and that he made said purchase without knowledge or notice that Randolph laid or would lay any claim thereto, or had any interest therein. Upon information and belief, he adopled the averments of the answer of Heard, Allen & Floore as a part of his answer.</p> <p>Thereafter evidence was taken, and, upon motion of the complainant, on February 2, 1893,"the cause was referred to the standing master in chancery of the court, “to consider and determine upon all matters of law and fact contained therein not heretofore decided by this court, and in connection with such other and further evidence as may be submitted to him by either party"; and said standing master was “required to report his findings and judgment upon the law and facts.” There is no recital of any opposition to the motion, and no exception was taken to the order or any part thereof. On May 3, 1893, the master filed his report, and, accompanying the same, referred to in the report, was a copy of the order of introduction of the testimony and the oral evidence introduced at the hearinig. The master found as follows:</p> <p>“(1) There was no conspiracy on the part of Heard, Allen & Floore with Hudson, or any one else, to influence the complainant to make the contract with Hudson in regard to the cattle. (2) That the bond of Hudson, given to Randolph, to secure the money advanced by him to Hudson, was, at the time so given, a good and sufficient bond for the amount of money expressed therein, and that the defendants Heard, Allen & Floore, nor any of them, made any false or- fraudulent statements in regard 1o same. (3) Tliat the charge, made by complainant, that Allen represented Hudson to be a man of good character, Is not proven, under the rules of evidence in such cases, it only being sworn to by complainant, and being' denied under oath by the defendants Allen and Moore. (4) That the claim of Heard, Allen & Floore, under which they sold the property of Sam White, was a valid and subsisting; claim. (5) That the complainant, L. V. If. Randolph, knew, as soon as Heard, Allen & Moore did, that W. T. Hudson was not going to carry out his contract with him. and that said Hudson was fraudulently disposing of his projjerty to prevent him from enforcing his contract. (f>) That Heard, Allen & Moore made no representations to complainant, nor did any act after the cattle bond was signed, that made it not equitable for them to take and enforce their lien on White’s land and cattle. (7) That, under the facts in this case, it. was not illegal or inequitable for Heard, Allen & Moore to employ lawyeis to defeat the attachment proceedings in this court, as alleged by complainant. (8) That complainant was very badly and fraudulently treated by W. T. Hudson, bin. I can find no facts, under the law, as I construe it, by which the said Heard, Allen & Moore rendered them either legally or eouiiably liable for the fraudulent acts of said Hudson. (í>) I therefore find, and so adjudge, that complainant’s 1)111 against the defendants Heard, Allen &'Moore be dismissed at Ms costs. (10; The complainant seeks no relief against the Whites, except to cancel the deeds made to White’s wife and children, on which it is unnecessary to make any ruling, because of my former findings in this case, and they seek no relief against W. T. Hudson. 1 adjudge that the entire bill be dismissed at complainant's costs.”</p> <p>On Id'ay 22, 1SS13, complainant filed exceptions to the findings of the master. On .iulv 8. !8!>3, the court overruled such exceptions, and approved ami confirmed in till things the report of the master, and his findings on the facts, anti the law as therein contained, and dismissed the bill of complaint, with costs. The case was then brought to this court by appeal.</p>

These were three hills, filed, respectively, by John F. Olmstead. Chester H. Graves, and Stephen D. Bayer, against the Distilling & Cattle-Feeding Company, which have been consolidated and heard as one cause. For a decision on a motion for removal of receivers, see 67 Fed. 24. The cause is now heard upon the petition of Richard B. Hartshbrn and others, constituting a reorganization committee, for a judicial sale of the property of defendant company.

On exceptions of the bondholders of the Kansas City & Omaha Railroad Company to the report of the master upon the petition of said bondholders for an order directing the receivers to pay taxes. Also on exceptions of the bondholders of the Kansas City & Omaha Railroad Company to the report of the master upon the petition of the receivers for an order suspending the provisions of the order of December 20, 1894.

This was a suit by Thornton L. Williams against Cadmus J. Groat, in which a receiver was appointed for the property of the firm of Williams & Groat. The present proceeding is upon an intervening petition filed by the Island City Mercantile & Milling Company, praying the court to direct the receiver to pay a judgment: recovered by it against the partners, for the costs of an action, in which it was a successful defendant

<p>Appeal from the Circuit Court of tlie United Bta+es for the District of Montana.</p> <p>Tliin was a Mil in equity by the Ilurlbuf. Land & Cattle Company to enjoin Joint B. Truseott, county treasurer of Custer county, Mon!., from levying and collecting taxes upon cattle of tlie corporation which were grazing upon ihe lands of the Crow Indian reservation. The circuit court, granted an injunction as prayed, and the defendant appealed.</p>

<p>Equity — Jurisdiction—Bill of Peace — Multiplicity of Suits.</p> <p>Several actions commenced or threatened by the same plaintiff against different insurance companies which had issued policies on the plaintiff’s property, and refused to pay losses thereunder, do not constitute a multiplicity of suits, within the meaning of the law, authorizing the interference of equity, although the same defense is set up by each of the defendants; and an injunction will not be granted to restrain the prosecution and commencement of such actions, upon a bill in the nature of a bill of peace, filed by all the insurance companies against the plaintiff in such actions.</p>

<p>1. Equity — Jurisdiction—Anviulaiiy Suits.</p> <p>A suit in equity, brought by the receiver of an insolvent corporation, appointed by a federal court, against the subscribers to the stock of the corporation, to collect the balances due on their subscriptions, is within the jurisdiction of’such federal court in equity, as ail ancillary suit, without regard to the citizenship of the parties, or the adequacy of the remedy at law.</p> <p>2. COKPOItATIONS — ¡áUBSCItIPTIONS to Ktook — Set-Off. ,</p> <p>Defendant, one of the stockholders in the It. Co., in order to enable it to obiain funds without making an assessment on the stock (which would have been burdensome to the stockholders, and to defendant in particular), gave to the company his promissory note, which was discounted by the. company, and afterwards replaced by other notes of defendant, for larger amounrfi, the last of which, exceeding the amount due on defendant's subscription‘to the stock, was paid by him. The K. Go. became insolvent, and a receiver was appointed, who brought suit against defendant to recover the balance of his stock subscription. Held, that defendant was entitled to be credited with an amount sufficient to extinguish his subscription to the stock.</p> <p>8. Equity Pi.hadimj —Payment and Set-Off.</p> <p>The rules of equity pleading do not require the defenses of payment or set-off to be set forth in an answer according to any particular form, but it is sufficient for the pleader to set forth the facts in a concise and intelligible manner.</p>

In Equity. Suit by the-United States, together with certain Indian plaintiffs, for an injunction to restrain the defendants from interfering with fishery rights guarantied to the Indians of the Yakama Nation, by the terms oí the treaty made and concluded between the United States and said Indians. Demurrer to the bill of complaint.

<p>In Error to the Circuit Court of the United States for the District of Vermont.</p> <p>This was an action toy Samuel O. Clark against the Canadian Pacific Railway Company for personal injuries, and for damage to plaintiff's horse and sleigh. There was a verdict for plaintiff, and, defendant’s motion for a new trial having been denied (69 Eed. 543), it brings error.</p>

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

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

<p>1. Evidence — Injury Causing Death — Tennessee Statute.</p> <p>In an action for damages for an injury causing death, brought, under the Tennessee statutes (Mill. & V. Code, §§ 3130, 3134), for the benefit of ihe widow or next of tin of the deceased, evidence of the number aud ages of the children of (lie deceased is competent.</p> <p>2. Practice — Setting Aside Verdict — Weight oe Evidence.</p> <p>The federal courts have no power to sot aside a verdict because against the weight of evidence, however decided that weight may lie, if any evidence has been given which would have rendered it improper for the court to direct a verdict.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Yew York.</p> <p>This case comes here on writ of error to review a judgment of the circuit court, Southern district oí New York, in favor of defendant in error, who was defendant below. The action was brought on a policy of insurance against business losses or “uncollectible debts,” issued by the defendant to the plaintiffs. The total amount of uncollectible debts for which it was claimed the defendant was liable under Ike policy, without deducting the “initial loss” to be borne by the plaintiffs, was $8,01(5.56, and they were adjusted by defendant at tliat sum. The total gross sales and deliveries made by the plaintiffs during the period covered by the policy amounted to $778,015.08. Plaintiffs contended that the initial loss to be borne by them was one-half of 1 per cent, of that sum, which amounts to $3,890.07, and they asked judgment for the balance of loss, viz. $4,12(>.29. The defendant insisted that the initial loss, under the terms of the policy, was $9,000, — -a sum greater than the total loss, as adjusted. The circuit court sustained defendant’s contention, and directed a verdict in its favor.</p>

<p>1. Res Judicata — Criminal and Civil Suits — Action on Official Bond of Postmaster.</p> <p>The acquittal of a defendant under an indictment for making false and fraudulent returns, as postmaster, of the business done at his office, for the purpose of increasing his compensation, is not a bar to an action by the United States upon the bond of such defendant, as postmaster, to recover the amount found due to the government from defendant, upon the adjustment of his accounts, as shown by the same returns.</p> <p>2. Evidence — Action oe Government IIefartmmnts.</p> <p>In an action by tlie government on tlie official bond of a postmaster, a transcript from the treasury department, attached to the petition, showing an order of the postmaster general withholding commissions from such postmaster, and allowing him a salary, and showing the adjustment of his accounts in accordance therewith, is not conclusive as to all action in the matter by the post office or treasury departments, but the defendants should be permitted to show that other action was taken, if deemed material to tlieir defense.</p>

This was an action by A. Lehman against the city of San Diego to recover upon certain bonds and coupons issued by the board of trustees of said city.

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

<p>t. Federal Receivers Sued in State Courts — Collusiveness of Judgment.</p> <p>The authority given by the act of March 3, 1887, to sue federal receivers without previous leave of the appointing court, makes a judgment obtained against such receivers in a state court, for personal injuries, conclusive as to the right of the plaintiff therein and the amount of his recovery; and it is immaterial that, according to the state procedure, the case was tried without a jury, because neither party demanded a jury. Dillingham v. Hawk, 9 C. C. A. 101, 60 Fed. 495, followed.</p> <p>8. Liens of Receivership — Damage by Negligence.</p> <p>When mortgage creditors ask a court to take possession of railroad property and operate it through receivers, they thereby consent to have all the liabilities resulting from such operation, including damages to persons by negligence, take precedence of their prior contract liens.</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>1. Limitation of Actions — Federal Courts — State Statutes.</p> <p>Under Rev. St. § 721, state statutes of limitation are to he regarded as rules of decision in actions at law in the federal courts, unless otherwise provided by act of congress or treaty, although such statutes are expressly limited to actions brought in the courts of the state.</p> <p>2. Same — Residents of Other States — New York Code.</p> <p>Under the New York statute (Code Civ. Proc. § 300), an action brought by a nonresident of the state against one who was a resident of Rhode Island at the time the cause of action accrued, and who has never since been a resident of New York, is governed by the statute of limitations of Rhode Island; as construed by the highest courts of that state.</p> <p>3. Same — Running of Statute — Commencement of Action.</p> <p>By the statute of Rhode Island, an action is commenced, so as to stop the running of limitation, when the writ is issued, though it is not served until after the expiration of the limitation period. • Hail v. Spencer, 1 R. X. 17, followed.</p> <p>4. Service of Process on Corporations — Who is “Cashier.”</p> <p>A mere employé in the office of a local agent of an express company is not a cashier of the company, within the meaning of a statute authorizing service to be made on the “cashier or treasurer” of a corporation.</p> <p>5. Corporations — Resignation of Directors.</p> <p>The Virginia statute giving stockholders authority in general meeting to remove any director and fill the vacancy, but providing that unless so removed the directors shall continue in office until the next annual meeting of the stockholders, “and until their successors shall be appointed,” docs not prevent a director from resigning at any time. Briggs v. Spaulding, 11 Sup. Ct. 924, 141 U. S. 132, followed.</p> <p>6. Same.</p> <p>A director of an ordinary business corporation can resign orally or in writing unless there is some provision to the contrary in the charter or bylaws.</p>

<p>In Error to tbe Circuit Court of the United. States for the Northern District of California.</p> <p>This was an action by Joseph Naphtaly against Julius Beley and others to recover possession of various parcels of land in Contra Costa county, Cal. Plaintiff recovered a judgment in the circuit court, and defendants sued out this writ of error.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>This was a bill in equity by Joseph Naphtaly and others against Josiah S. Smith to recover certain lands. A demurrer to the bill was sustained by the circuit court, and a decree entered accordingly. Defendant appealed.</p>

At Law. Action by Christopher B. Dudley against the Front Street Cable-Railway Company, a corporation, to recover damages for personal injury caused by negligence. Findings and judgment for plaintiff.

<p>Estoppel in Pais.</p> <p>In a suit brought by the S. Company against S. individually, one of the causes of action was that S. had used the time and labor of the clerks employed and paid by the corporation in the transaction of his private business. In support of the allegations of the complaint, one 11. made an affidavit that he knew the allegations on this subject were true, because he was one of the employes of the company, and was required by S. to act as his individual bookkeeper and general clerk, “although said company paid affiant’s entire salary.” After the filing of the bill a compromise was made settling all the matters in controversy,, each party releasing all claims against the other. AI, took part in these negotiations as a representative of the company, insisting on the truth of the allegations as to the use of the clerks, etc., without intimating to S. that he claimed compensation from him individually for the services rendered. Held, that AI. was estopped from thereafter maintaining a suit against S. for such compensation.</p>

<p>National Banks — Liability of Stockholders — Transfer of Shares.</p> <p>One S. subscribed for 50 shares of tlie stock of a national bank, borrowing tbe money to pay for tliem from C., tbe cashier of the bank. As collateral security for the money so borrowed, he indorsed over the certificate to C., and left it with him. A few months later he sold the' stock to C. for the amount of the loan and accrued interest, the certificate remaining in C.’s hands. The bank was solvent at the time, and so continued for five years, during which C. collected the dividends on the stock, as shown by the bank’s dividend book, but the stock was never actually transferred to C. on the books of the bank. The by-laws of the bank provided that dividends should be paid to the stockholders in whose names the stock should stand; that certificates should be issued by the president and cashier; and that, when stock was transferred, the certificate shonld be caueeled, and a new one issued. Long after the sale of S.’s stock to 0., the bank became insolvent, an assessment was made upon the stockholders, and the receiver of the bank, finding S.’s name as a stockholder on the books of the bank, brought suit against him. On the trial of the suit the foregoing facts were shown. O. was dead at the time of the trial. Meld, that it might be inferred as a fact, from the evidence, that the bank had notice of the transfer of the slock bs^ S. to 0., and the termination of S.’s relation to the bank as stockholder, from which fact the legal presumption would follow that the bank would cause such acts to be done in relation to the transfer . as its officers were called on to do, and that the jury should be permitted to draw such inference.</p>

<p>In Error to the Circuit Court of the United States for the Western Division of the District of Washington.</p> <p>This is an action by Cora E. Nixon, defendant in error, on two policies of insurance issued by plain (iff in error lo tlie husband of defendant in error, and of which she was the beneficiary. They were respectively for $3,000 and $15.009, and the premiums on the former were payable quarterly on the 12th clays of March, June, September, and December. That which fell due1 on the 12th of September, 1890, was not paid when due, nor has it ewer been paid. The premiums on the §15,000 policy were payable' annually on the 11th day of October, and that which fell due; October, 1890, was not paid. The husband of defendant in'error dic'd on flu» 16th of April, 1891. The defense is a forfeiture for nonpayment of premiums. This defense depends upon the provisions of the1 New York statute, and the acts of the plaintiff in error under it. The statute (Laws 1877, c. 321) is as follows:</p> <p>“Tlu> people1 of 1lie state of New York, represented in senate and assembly, do enact as follows:</p> <p>“Section 1. Section one of chapter three hundred and forty-one of the laws of eighteen hundred and seventy-six, entitled ‘An act regulating the forfeiture of life insurance policies, is hereby amended so as to read as follow's:</p> <p>"Sec. 1. No life insurance company doing business in the state of New York shall have power to declare forfeited or lapsed any policy hereafter issued or renewed by reason of non-paymenl of any annual premium or interest, or any portion thereof, except as hereinafter provided. Whenever any premium or interest clue upon any such policy shall'remain unpaid when due, a written or printed notice stating the amount of such premium or interest due on such policy, the placo where said premium or interest should be paid, and the person to whom the same is payable, shall be duly addressed and mailed to tbo pea-son whose life is assured, or the assignee of the policy, if notice of the assignment has been given to the company, at his or her last known posfc-oflice address, postage paid by the company, or by an agent of such company or person appointed by it to collect such premium. Such notice shall further state that unless the said premium or interest then due shall be paid to the company or to a duly appointed agent or other person authorized to collect such premium within thirty days after the mailing of such notice, the said policy and all payments thereon will become forfeited and void. In case the payment demanded by such notice shall be made within the thirty days limited therefor, the same shall he taken u> be in full compliance with the. requirements of the policy in respect to the payment of said premium or interest,, any thing therein contained to the contrary not withstanding: but no such policy shall in an? case be forfeited or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice. Provided, however. that a notice stating- when the premium will fall due, and that if non paid the policy and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least thirty and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for. ¡2 Rev. St. (8th JEd.) tiiSÓ, 1CS(>.]</p> <p>“Sec. 2. The affidavit of any one authorized by section one to mail such notice, that the same was duly addressed to the person whose life is assured in the policy, or to the assignee of the policy, if notice of the assignment has been given to the company, in pursuance of said section, shall be presumptive evidence of such notice having been given.” 3 Rev. St. (8th Ed.) 1687.</p> <p>To prove the sending- of notice under these statutes, the plaintiff in error tendered certain evidence which was excluded bv the court below, and this ruling is assigned as error. There are other assignments of error, but they are dependent upon this ruling.</p> <p>The bill of exceptions shows that one William E. Stevens, whose deposition was taken in New York, testified on behalf of defendant as follows:</p> <p>That his age was 51. That he was New York secretary of the Provident Savings I/ife Assurance Society of New York, and had been such since 1870. “Q. 3. What officer or employe had charge of the mailing of notices to the policy holders of said society in the months of August and September, 1890, of the amount of quarterly payments or other premiums falling due upon its policies? A. 3. In August, 1890, Harry H. Meeder, a clerk in the employ of the society. In September, 1890, E. Seward Prosser, another clerk of the society. • Q. 4. What officer of the Provident Savings I/ife Assurance Society has, since the 12th day of June, 1886, had charge of the records of the premiums falling due upon policies issued by said society, and the payment thereof? A. 4. I have, and since the date named have had such charge, but the actual work upon these records is done by clerks under my supervision.”</p> <p>After stating when premiums were duo, and what premiums had been paid, and that that of September, 1894, had not been, he was asked:</p> <p>“Q. 11. Were notices of premiums falling due upon said policy sent to Thomas L. Nixon by the secretary? If so, attach to your answer hereto true copies of the notices so sent of premiums falling due June 12, 1890, and September 12, 1890, and give the dates when the same were mailed, if sent by mail. A. 11. Yes, and true copies of the notices referred to are hereto attached, and marked Exhibits D and E. They were mailed, respectively, on May 9, 1890, and August 4,1890.</p> <p>“Whereupon counsel for-the said plaintiff then and there objected to the answer last above given, on the ground that it had already been shown by the deposition that the said William E. Stevens was not the party who mailed the 'said notices, and consequently was incompetent to testify. Whereupon his honor, the said judge, sustained the objection, upon the ground that the answer did not state facts within -the personal knowledge of the deponent. Whereupon counsel for the defendant excepted to the ruling of his honor, the said judge, and the said exception was by his honor, the said judge, allowed.”</p> <p>And again, after stating that only one premium was paid on policy No. 32.025 (that for $15,000), he was asked:</p> <p>“Q. 15. Were the notices of premiums falling due upon said policy No. 32.025 sent to Thomas L. Nixon by the society? If so, attach to your answer hereto a true copy of each notice so sent, and give the date when the same was mailed, if sent by mail. A. 15. Yes. The notice was mailed September 9, 1890. Copies of two forms of notices are attached hereto, and marked Exhibits F and F2. I cannot say positively which form was used.</p> <p>“Whereupon counsel for the plaintiff then and there objected to the answer last above given, on the ground that it had already been shown by the deposition that the said William E. Stevens was not the party who mailed the said notices, and consequently was incompetent to testify. Whereupon his honor, the said judge, sustained the objection upon the ground that the answer did not state facts within the personal knowledge of the deponent. Whereupon counsel for the defendant excepted to the ruling of the said judge, and said exception was by his honor, the said judge, allowed.”</p> <p>Henry H. Meeder testified he was a clerk of plaintiff in error, and that it was his duty to mail to policy holders notices of payment of premiums about to become due upon their policies from July 28, 1890, to August 8, 1890.</p> <p>“Q. 4. Did you at any time mail to Thomas D. Nixon, of Tacoma, Washington, notice of the premium falling due on September 12, 1S90, upon his policy No. 18,647? If so, attach to your answer hereto a true copy of such notice, including the address thereon, and state when and where you mailed the same. A. 4. Yes. I attach an exact copy of that notice hereto, marked Exhibit 1. I personally deposited in the general post office of New York City, on the 4th day of August, 1890, the original notice of which this is a copy, addressed to Thomas L. Nixon, Tacoma, Washington; that being his last known post-office address. The mailing of such notice was at that time a part of my duty as clerk.</p> <p>“And thereupon the said defendant further, to jrrove and maintain the said cause on its part, offered in evidence the copy of the notice of premium falling due September 12, 1S90Í to which reference was made in the answer of the said Henry H. Bleeder to Hie fourth interrogatory above set forth, which said copy of said notice is in the words and figures following, to wit:</p> <p>“ ‘Office of tlie</p> <p>“ ‘Provident Savings Life Assurance Society of N. Y.</p> <p>“ ‘Home Office, No. 120 Broadway.</p> <p>“ ‘New York, Aug. 4th, 1890.</p> <p>“ ‘Take notice that a premium of ÍS15.85 required to renew Policy No. 18,047 in this society will, if such policy be in force on that day, but not otherwise, become due and payable to the secretary of Hie society at its office, No. 120 Broadway, in the city of New York, on the 12th day of September, ÍS90, and if not paid on or before said dale the xiolicy and all payments made thereon will become forfeited and void; but this notice is not intended to vitiate any right to paid-up or extended insurance provided for in the policy contract. All premiums are duo at the office of the society in the city of New York, but for the convenience of policy holders, payments may be made on or before due dates to an authorized agent having in Ms possession the society’s receipt if erefor, signed by the president or secretary. Should you change your post-office address, please notify the secretary of the society in writing.</p> <p>“ ‘Wm. K. Stevens, Secretary.</p> <p>“ ‘N. B. — Agents are forbidden to receive overdue premiums, except within thirty days of the due dates, and then only upon receipt of a certificate of good health. (Norm 248.)'</p> <p>“Whereupon, counsel for said plaintiff then and there objected to the introduction of the said copy of the said notice, on the ground that it was incompetent, irrelevant, and immaterial; that there was nothing in the deposition to show that any postage was prepaid on the said notice; that it was not the evidence that the statute expressly states shall be the evidence of the mailing of the notice; and for the further reason that it did not affirmatively appear that the notice was mailed to the last known post-office address of the said Thomas L. Nixon as it appeared on the books of the company. Whereupon, his honor, the said judge, sustained the objection.”</p> <p>li. toward I’rosser, a witness whose deposition was taken on behalf of Ida intiff in error, testified that he was an insurance1 clerk in the employ of plaintiff in error; that it was a part of his duty to mail to policy holders notices of payments of premiums about to become due on policies from October 89, 18S1), to October 20, 1892, except when absent on vacation or sickness. In answer to a question identical to that put to Meeder, lie. answered:</p> <p>“A. 4. Yes. On the fitli dajl of September, 1890, I deposited in tin1 general post office in New York City a notice addressed to Thomas L. Nixon, Tacoma, Washington, fctaid notice stated that a premium of f258.(R>, required to renew policy No. 82,025, would become due and payable to the secretary of ¿ho society at its office. No. 120 Broadway, in the city of New York, on the 11th day of October, 1890, and that, if said premium was not paúl on or before said date, said policy would thereupon become forfeited and void. A slight change was made at about this time in the blank form used in these notices, and 1 cannot swear which was used, blit, according to my best knowledge and belief, the form used was one of the two forms hereto annexed, and marked Exhibits 1 and 2, respectively.”</p> <p>The part of the answer descriptive of the notice was struck out on motion of defendant in error, and to meet the ruling of the court two forms of notices used were introduced in evidence.</p>

<p>1. District Attorneys — Cowtusnsation—Mimaoe.</p> <p>Mileage is not fo be included, as part of the compensation allowed to a United States district attorney, in determining whether such compensation has reached the maximum allowed by statute for his services.</p> <p>2. Same- Services out op District.</p> <p>The provisions of the statutes relating to the duties and tlie compensation of district attorneys are confined to services rendered within their districts, and for services rendered outside such districts, at the request of the attorney general, (hey are entitled to additional compensation, not. limited to the rates fixed by the statutes. Ross, Circuit Judge, dissenting.</p> <p>8. Same — Casks to Which United Status not a Party.</p> <p>Fees c-annot bo allowed to a district attorney, under Rev. St. § 299, for services rendered within his district, in a case to which the United States is not a party, upon the basis of the compensation allowed to special counsel retained by the attorney general, but must be assimilated to some of the fees specifically allowed to district attorneys by Id. § 824.</p>

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

<p>In Error to the District Court of the United States for the Southern District of Alabama.</p> <p>This was a criminal information against James Autry, charging him with unlawfully cutting and removing timber from the public lands. He was convicted and sentenced in the district court, and has sued out a writ of error from this court.</p>

<p>This was an indictment, under Rev. St. § 5286, against J. H. S. Wiborg, Jens P. Peterson, and Hans Johansen, master and mates of the ship Horsa, for beginning and setting on foot, etc., within the United States, a military expedition against the dominions of a foreign prince with whom the United States were at peace. Trial was had February 25-28, 1896.</p>

<p>This was an indictment against Horace G-. Allis for violation of Eev. St. § 5209, in making false entries in the books of a national bank and in reports to.the comptroller of the currency of the condition of the bank.</p>

<p>1. Customs Duties — Appeal from Board op General Appraisers — Authority op Collector.</p> <p>Under the fifteenth section of the customs administrative act of June 10, 1800, a decision of the board of general appraisers as to the classification of imported goods is subject to review in the circuit court on an application in behalf of the United States, which application may be made by" the collector without first obtaining authority from the secretary of the treasury.</p> <p>3. Evidence — Use oe Dictionaries.</p> <p>Dictionaries are not of themselves evidence, but they may be referred to as aids to the memory and understanding of the court. Nix v. Iledden, 13 Sup. Ct. 881, W9 U. S. 30-1, followed.</p> <p>3. Customs Duties — Construction Of Tariff Laws.</p> <p>The rule is well settled that, in interpreting a name or expression applied to articles upon which duties are laid, congress uses such terms in their ordinary commercial sense, rather than iy their distinctive or technical sense.</p> <p>4 Same.</p> <p>Whether an imported article is or is not known in commerce hy the word or terms used in the act imposing the duty is a question of fact for the jury, and not a question of construction; and, in the case of an appeal from a decision of the board of general appraisers, it must be determined by the court as a question of fact.</p> <p>5. Same.</p> <p>Where congress has designated an article by a specific name, and imposed a duty upon it, general terms in the same act, though sufficiently broad to comprehend such article, are not applicable to it. The article will be classified by its specific designation, rather than under a general description.</p> <p>6. Same — Zante Currants.</p> <p>“Zante currants,” as used in paragraph 217 of the act of August 28, 1894, applies to the small, seedless raisins grown on the mainland of Greece, in the Archipelago, and other places in'the Levant, and is not confined to currants raised only in the Island of Zante. The use by congress of the capital letter “Z” in the word “Zante” is of no significance in the construction, since grammatical propriety alone requires it.</p> <p>7. Same — Review of Board of General Appraisers’ Decision.</p> <p>The rule stated in some of the cases, that the court will not reverse the decision of the board, even if against the weight of the evidence, where there is sufficient evidence to warrant its finding, has little if any application to cases in which additional testimony of an important character is taken in the circuit court, and where the ultimate and decisive question is as much one of law as of fact.</p>

<p>This was an application by the collector of the port of Buffalo for a review of the decision of the board of general appraisers sustaining lie protest of the importer and holding that the natural gas brought into this country by pipe line under the Niagara river is a crude mineral and, therefore, exempt from duty under paragraph 651 of the act of 1890. The question has twice been before the board and two opinions have been delivered by them which clearly state the facts and the questions in controversy.</p> <p>The first opinion was delivered July 10, 1891, and is as follows:</p> <p>“Sharpe, G. A. We find the facts in this case as follows: The Provincial Natural Gas and Fuel Company, of Ontario, Canada, obtain a product of natural gas from the ground by sinking wells therein, which gas is brought from Canada to the city of Buffalo in pipes under the Niagara river, a distance of about twelve miles. It is sold to the appellants in Buffalo, who, in turn, measure it out to and sell it to their customers. Under an opinion of the treasury department (Synopsis, 10,448), the product was assessed for duty by the collector ten per cent, ad valorem under section 4 of the existing tariff. The protest claims that natural gas is free under paragraph 49G as a crude bitumen, or that it is free under paragraph 651 as a crude mineral. At the time of the introduction of this' natural gas it was supposed that it could be measured by a meter placed on the American side of the Niagara river, but it is represented to us that practical operations developed the fact that the pressure was about 600 pounds to the square inch, and too great for the endurance of any meter. The collector reports that he was thereupon compelled to resort to the books of the appellants for evidence of the quantity imported, and the bills of the Ontario corporation furnished to the appellants, accompany the entry of the merchandise, showing the number of feet of gas to correspond with the entry, and being approved by the appraiser at Buffalo. The quantity imported was approximately ascertained by the amounts shown to have been burned for the month, as recorded by the several private meters taking the gas from the Buffalo company. By a supplementary report the collector shows that the embarrassment arising from the difficulty of measurement has lately been increased. This natural gas is now .furnished for fuel to the city waterworks, and to large manufactories, and no reckoning is kept of the amount consumed, as the contract is made between the parties for an amount of fuel gas sufficient to operate the respective works at a price to be computed by the cost of the coal used during the preceding year. These several consumptions are not measured by meter or otherwise, but a large pipe is run into the furnace of such consumers, and the fuel gas flows in sufficient quantities to fulfill the terms of the contract. The customs officials allege that they are left without data other than the estimates of the company. On this state of things the suggestion is made that the collection of duty upon an article that cannot now be measured, weighed or gauged without depending upon the importer’s estimate tends to bring the tariff laws and regulations into disrepute, and that natural gas should be held to be free, and the letter of the department is cited in reference to electricity, transmitted by cable from the Canadian to the American side of the Niagara river to the effect that the same would not be liable to duty. (Synopsis, 10,086.) We cannot sustain the two contentions of the protest that natural gas is free: (1) Because it is a crude bitumen, or (2) because it is a crude mineral. The appellants allege that the introduction of this gas does not affect American industries or interests. If this were legitimate argument for our consideration, we might say that such contention does not seem to be reasonable. Indeed, the papers in the case before us show that it already comes into competition with American gas and coal, and that another company is laying a large main across the Niagara river to connect with the Canadian wells. The papers also reveal the fact that some natural gas is brought to Buffalo from Pennsylvania for consumption, the supply being limited on account of the distance. We are well aware of the fact that this useful agent can only be drawn from the pockets where nature has placed it. This is also true of the precious metals and of the precious stones, and it is not given us to know how soon these repositories may be enlarged, perhaps to so great an extent as to affect existing conditions. Besides, if natural gas can be imported free from the reasons given in the appellant’s argument, why may not gas manufactured from coal subject to duty be claimed to be nondutiable when furnished to consumers by 'such methods as to make its measurement a matter of difficulty? Nor can we make this difficulty of measurement the ground for holding the article to be free. The method of computation, if not provided for by law, is a method of administration, which intelligent officers will reach under the direction of the department, and for these reasons we hold that natural gas is dutiable at 10 per cent, ad valorem, under section <1 of the existing tariff, as an unmanufactured article not enumerated. The decision of the collector is affirmed.”</p> <p>The matter came again before the board upon a second protest when additional testimony was adduced and new questions of law presented. The opinion was delivered May 20, 1893, and is as follows:</p> <p>“Wilkinson, G. A. The merchandise is natural gas imported at Buffalo from Canada by mains under the Niagara river, and is used as fuel and for illuminating purposes. It was assessed for duty as a nonenumeruted unmanufactured article at 10 per cent, under rhe act of October 1, 1890, and is claimed to be exempt from duty (1) on'the ground that it is not an article within the moaning of the tariff; (2) as crude bitumen under paragraph 490, and (3) as a crude mineral under paragraph 051. In G. A. 744 the board considered and overruled a protest similar to this. But no evidence was introduced in supper I of the claims, and attention was given chiefly to the first point. We reaffirm the ruling named as to the first and second points, but a lengthy and careful investiga don of the subject leads to the conclusion that the third claim in the protest is well founded. The natural gas in question is similar to that produced in Pennsylvania and Ohio, but it was not imported prior to October 1, 1890. Consequently, there are no precedents to serve as guides. Nor does it appear that at or prior to the passage of the present tariff act the dutiable diameter of natural gas was ever considered ia or ou,of congress. Nor has there ever been any trade or popular designation which would indicate its proper classification for dutiable purposes. It is proper, therefore, to resort to the evidence of scientific experts and to other authorities bearing upon the question. In considering publications it is not believed that the date is of any moment, provided the source is impartial. At the several hearings in New York and in Washington, D. 0., the board examined a number of well-known geologists and chemists. While there was conflict in the testimony, the preponderance of the evidence was to the effect tha L natural gas is a crude mineral. Lexicographers and mineralogists give the word ‘mineral,’ in its primary and broadest sense, a definition which would embrace natural gas, although their secondary and limited definitions would not. Nothing appears in the tariff, however, to show that congress intended the narrower, and not the broader, meaning. The question has recently been judicially determined in Canada. Section 595 of the municipal act of the dominion empowers a township to lease or sell Uie right to take minerals under any highway. The town of Gosfield leased this privilege to the Kingsville Gas Company. The Ontario Gas Company asked for an injunction to restrain the sinking of the well, on the ground that natural gas is not a mineral. In his opinion, Judge Street, of the court of common pleas, stated that according to British authorities ‘a reservation of minerals includes every substance which can be g-ot from underneath the surface of the earth for the purpose of profit, unless there is something in the context or in the nature of" the. transaction to induce the court to give a more limited meaning,’ and ‘it has been laid down that the word “minerals,” when used in a legal document or in an act of parliament, must be understood in its widest signification, unless there Is something in the context or in the nature of the case to control its meaning. I think myself bound by the authorities to give to the word, when used in this act, its widest signification.’ The motion was argued May 31, 1890. Gas Co. v. Smart, 19 Ont. 591. The case was carried to the court of appeals. Chief Justice Haggerty rendered the decision November 10, 3891. He said in part: ‘There was hardly any attempt to rebut or dispute tlie accuracy of scientific nomenclature in describing minerals as solid, liquid, and gas. The objection urged was that the legislature (especially at the date of the enactment) could not and did not include natural gas under the term “minerals.” I cannot see how we can qualify the words used by the legislature when there is nothing In the enactment to explain or limit their ordinary meaning. On full consideration, I have arrived at the opinion that our learned brother could not properly have come to any other conclusion than that natural gas falls within the meaning of minerals in the statute.’ 18 Ont. App. G2G-G32. In the reports of the census, the United States geological survey, and various state authorities, natural gas is enumerated in the list of mineral products and mineral resources. The ‘Statistical Abstract of the United States,’ prepared by the treasury department, gives on pages 53-55 a table of ‘quantities and values of minerals produced in the United States during the calendar years from 18S7 to 18!>1, inclusive.’ In this category, under the heading of ‘Nonmetallic’ on page 54, natural gas is named third in a list of forty, which includes solids and liquids as well as gas. We find that natural gas is a crude mineral, and sustain the claim that it is exempt from duty under paragraph G51, N. T.”</p> <p>The collector appeals from the conclusion reached by the board in its second decision exempting natural gas from duty.</p>

<p>Customs Duties — Appraisal—Ginger Ale in Bottj.es.</p> <p>In assessing- duty on ginger ale in bottles under paragraph 248 of the act of 1894, the provision therein that “no separate or additional duty shall be assessed on the bottles” prevenís the collector from adding the value of the bottles to the value of the ale, on the ground that they are coverings, under the administrative act oí June 10, 1890. (58 Fed. 534, affirmed.</p>

<p>1. Copyright — At Common Law — Effect of Statutes.</p> <p>The passage by congress of the copyright statutes has not abrogated the common-law right of an author to his unpublished manuscript.</p> <p>2. Same — Sale of Manuscript — Reservation of Rights.</p> <p>Plaintiff, in 1891, entered into an agreement with the managers of the World’s Columbian Exposition to write a poem, to be delivered at the dedicatory exercises of the Exposition. She wrote the poem, and, after submitting it to the proper officers of the Exposition corporation for their approval, which it obtained, she received, from the corporation 81,000, and gave a receipt therefor “in full payment for ode composed by me,” such receipt also providing that the corporation should have the right to furnish copies to the press for publication, and copies for free distribution, and to publish the poem in the official history of the dedication; subject to which concessions plaintiff reserved her copyright therein. After this transaction, but before the publication of the poem by plaintiff or the Exposition corporation in any way, defendant, the publisher of a newspaper, without the consent and against the will of the plaintiff and the corporation, obtained a copy of the poem, and published the same in its newspaper. Held that, by the terms of the receipt given to the Exposition corporation, plaintiff retained, until the poem should be published by the corporation in one of the specified ways, her common-law right to control the publication of her poem, and the unauthorized publieation by defendant was an infringement of suoh right, for which plaintiff was entitled to recover damages.</p> <p>3. Exemplary Damages — Infrixgioiext of Copyright — Wantoxnksk.</p> <p>It appeared from the evidence lhat defendant, whose newspaper was published in New York, after it had secured a copy of the poem through its agent in Chicago, was informed that the publication of the poem was forbidden on the ground that it was copyrighted; that defendant made inquiries of its agent, and, on learning that the copy in his possession bore no copyrighting words, telegraphed its agent that it would take the chances on the, publication. Defendant's managing editor testified that he knew the poem belonged to the Exposition; that he made no inquiry of that corporation as to his light to buy it; that he believed lie had the right, under some circumstances, to publish a literary work without the owner’s consent; that his conduct in publishing the poem had never been blamed, and, so far as he knew, liad been ratified, by the defendant corporation. Held, that it was not error to instruct the jury that, if they found the circumstances showed wanton disregard of the plaintiff’s rights, they might award exemplary damages, and that a verdict for such damages was justified.</p> <p>4. Same — Pecuniary Damage Unxeckssary.</p> <p>The right to award exemplary damages, in a proper case, is not dependent, in the federal courts, upon the proof of actual pecuniary damage.</p>

<p>Unfair Competition — Imitation of Shape of Bottles.</p> <p>Plaintiff, under a contract with the distiller of a popular brand of whiskey, bottled suc-h whiskey ai the distillery, and sold-it under labels stating that it was so bottled, and beaiing the distiller's guaranty of purity, which obtained favor in the market for plaintiff’s bottling. The bottles used by plaintiff were of a peculiar shape, originally devised by plaintiff; and, by moans of extensive advertising, such bottles came to be generally relied upon by purchasers as a means of identilying the whiskey bottled by plaintiff. which attained a large sale. Some time after the adoption by plaintiff of such peculiar bottles, defendants, who had been dealing for some years' in the same whiskey, bottled by themselves, began to use a bottle of precisely similar shape and appearance to that used by plaintiff, though bearing labels which were in no sense imitations of plaintiff's labels, ¡hi1, that the use of such bottles by defendants constituted unfair competition with plaintiff, and should be restrained.</p>

<p>This was a suit in equity by the Bonsack Machine Company against J. B. Underwood for alleged infringement of certain patents for cigarette machines.</p>

These were four suits in equity by the Matthews & Willard Manufacturing Company against the Trenton Lamp Company and others for alleged infringement of certain design patents for lamps.

<p>1. Patent Infrin&embnt Suits — Preliminary Injunctions.</p> <p>It is now settled that a patent alone does not create a sufficiently strong presumption of its own validity to justify the granting oí a preliminary injunction. There must be either a prior adjudication sustaining the patent, or a continuous public acquiescence, creating a strong presumption of its validity, or it must have withstood a contest by interference in the patent office.</p> <p>2. Same — Proof of Acquiescence.</p> <p>Where public acquiescence is not alleged in the bill, it is insufficient to aver universal acquiescence,, by mere general statements'in the affidavits filed by complainant; and when such evidence is met by a number of witnesses, giving names, dates, and places, who testify that, for nearly two years before the suit, several manufacturers, including complainant’s principal competitors, have been making and selling goods similar in all material respects to those of the patent, a preliminary injunction must be denied.</p>

<p>1. Admiralty Jurisdiction — Lakes and Rivers — Trial by Jury.</p> <p>In the act of 1845, purporting to extend the admiralty jurisdiction of the federal courts over the interior lakes and rivers, the provision, now embodied in Rev. St. § 506, saving to the parties a right to demand a jury trial of issues of fact in certain cases, is inoperative to do more than make The-verdict advisory, and does not change the powers of the admiralty judge, who is still responsible for the decree rendered.</p> <p>2. Same.</p> <p>The statute, by its terms, does not apply to controversies arising in respect to a vessel plying between ports in the same judicial district, and not engaged in commerce and navigation between places in different states.</p>

<p>1. Admiralty — Limitation of Liability — Appeal—Parties.</p> <p>When two or more parties, having distinct and several claims against the-owners of a vessel, are brought into one proceeding for the limitation of the shipowner’s liability, or his exemption from liability, pursuant to Rev. St. §§ 4282-4290 and admiralty rules 04-57, the decree in such proceeding, awarding different sums to the different claimants, is several as to them, and any of such claimants may appeal from such decree, without making the others parties to the appeal, or notifying them thereof. McKenna, Circuit Judge, dissenting. 15 C. C. A. 91, 67 Fed. 942, reversed.</p> <p>2. Same — Tug and Tow.</p> <p>When the owner of a barge which has no motive power undertakes to transport freight by means of the barge, such barge and a tug, belonging to the same owner, by which the motive power is supplied, become one vessel for the purposes of the voyage, and the owner is not entitled to limit his liability, under Rev. St. §§ 4282-4290, for damages caused by the negligence of the crew of either craft, without surrendering both.</p>

<p>1. Towage — Negligence of Tug — Crossing Bar. in Hough Weather.</p> <p>A tug attempting to tow a schooner from the. Pacific Ocean across Humboldt Bar into Humboldt Bay held liable for the loss of the tow by capsizing, on the ground that it was gross negligence to try to cross the bar (the sands of which are shifting and uncertain) at a time when the tide was ebbing at near its maximum velocily of alxrai four knots an hour, and a southeast wind blowing at nine miles an hour, so that heavy seas were breaking on the bar in about seven fathoms of wafer. 60 Fed. 428, affirmed. Hanford, District Judge, dissenting on the evidence.</p> <p>3. Constitutional Law — Btate Jurisdiction of Coast Waters.</p> <p>Tlie rights and jurisdiction of the several stab's over (ho sea adjacent to their coasts are those of an independent nation, except as qualified by any right of control granted to the United Stall's by the constitution. And where', by a state’s constitution and laws, her boundaries and those of her counties are three miles from the shore, her statutes giving an ac-lion for death by negligence are operative within such boundaries where death occurs by negligence in the navigation or towage of vessels. 60 Fed. 428, affirmed. 'Manchester v. Massachusetts, 11 Sup. Ct. 559, 13ft U. S. 26 Í. followed and applied.</p> <p>3. Shipping — Exemptions from Liability — Retroactive Legislation.</p> <p>The act of February 13, 1893 (27 Stat. 4-15), exempting shipowners from liability for loss resulting from errors of navigation, etc., in certain cases, has no retroactive effect, so as to apply to damages occa. sioned before its passage,</p> <p>t Damages — Excessive Awards.</p> <p>§7,000 and §5,000, respectively, held not excessive awards by a court of admiralty for the death by drowning of the master and cook of a, schooner, they being in good health at the time, and earning wages of 8100 and §50 per month, respectively; the master being- 35, and the cook 39, years old. 60 Fed. 428, affirmed.</p>

<p>1. Towage — Loss of Barge— Liadiuty ok Tug.</p> <p>A tug, with two eoal-lacleu, sea-going barges, left Delaware Bay for Providence, in the afternoon, after delaying several hours on account of a threatened easterly storm. Ar the time» of starting, ¡lit; wind had shifted to west-northwest, and was blowing about 10 miles an hour, which was a favorable wind for the voyage. The masters of both tugs assented to starting' at that time. After midnight, when the vessels liad proceeded about 21 miles, the wind increased, and there was thick snow, and during the following- day there was a gale from the north-northwest. Little progress was made, but no damage was done until late in the evening-, when a heavy sea struck one of the barges, and caused her to spring a leak, from which she sunk, and was Totally lost. Held, that the tug was not liable, either on the ground that her master was not warranted in leaving the breakwater in the condition of the weather, or because he did not turn back when lie found the storm increasing, there being apparently as much danger, from the shoals near the Capes, in attempting to regain the breakwater in the darkness, as in continuing to face the storm, and it also appearing that the barge was old, and ha.d a weak bottom, (it? Fed. 208, reversed.</p> <p>2. Same — Conduct of Master.</p> <p>A tug is not to be, held liable for the loss of a tow merely because her master, in an emergency, did not do precisely wha.t, after the event, others may thiuk would have been best. If lie acted with an honest intent to do Ills duty, and exercised the reasonable discretion of an experienced master, the tug should be exonerated.</p>

<p>1. Marine Insurance — Abandonment.</p> <p>When the insured is paid as for a total loss, the property insured passes to the insurer without any formal abandonment.</p> <p>2. Salvage — Removal op Wreck — Obstruction to Navigation.</p> <p>Under the Canadian statute giving to the minister of marine and fisheries authority to cause the removal of any wreck which, in his opinion, constitutes an obstruction to navigation, his decision that a particular wreck on the ('anadian 'side of the Detroit river is such an obstruction is not reviewable by the courts of this country, and is sufficient to protect any person, authorized by him to undertake the removal, from any claims of the owner of the wreck for an unlawful interference with his property.</p> <p>3. Salvage — Derelict Vessel.</p> <p>The fact th'at a sunken wreck is allowed by her owners to remain for nine months in a position where she is exposed to further injury, and where she is a serious obstruction to navigation, and" is likely to become a source of danger to vessels navigating in tbe vicinity, is sufficient to establish her character as a derelict, so as to make her a proper subject of salvage.</p> <p>4. Same — Compensation—Derelict.</p> <p>Where the work and expenditures actually employed in raising a wreck abandoned by the owners far exceeded the value of the property recovered, and it was clear that the property could not have been rescued withdut an outlay exceeding its value, helll, that the entire proceeds should be awarded to the salvors, and that, as against them, no compensation should be awarded to a vessel which had endeavored to put out the fire causing the wreck, where the benefit of her services was lost by the sinking of the vessel.</p>

<p>This was a Iihei by Richard F. Ferguson against the steamship Terrier to recover damages for personal injuries.</p>

<p>Appeal from the District Court of the United Stales for the Eastern District of Louisiana.</p> <p>This was a libel in rem by Albert Watson against the steamboat Natchez to recover damages for personal injuries. The steamboat was released on bond, and the district court, after hearing the evidence, rendered a decree for libelant in the sum of $250. The New Orleans Navigation Company, claimant, and J. H. Menge have appealed.</p>

<p>Collision — Tow with Vessel at Dock — Sudden Sheer. .</p> <p>A tug was mooring a tow at Ryan’s Elevator, in Black Rock harbor, Niagara river, by dropping her down stern foremost on a hawser, in the usual maimer, wlien the tow suddenly sheered to port, towards a vessel lying at the dock. To overcome the sheer the tug went promptly to starboard, pulling strong, when the chock ou the tow gave way, allowing her to drift to port and strike the other vessel. Held, that the proximate canse of the collision was the insufficiency of tlie chock, and the tow was solely liable.</p>

<p>1„ Telegraph: Companies — Failure to Deliver Message — Damages.</p> <p>Plaintiff, wlio was traveling with her sick mother, gave to a telegraph company, at a station on her route, a message, addressed to her brother, and reading as follows: “Mother sick. Meet us this evening at D.” The telegraph company failed to deliver the message. Held, that damages caused to the sender by being compelled to search at night, in a strange; place, for her brother’s residence, with exposure producing illness, or caused, either to the sender or the addressee, by the death of their mother in consequence of such exposure, were not the proximate results of the failure of the telegraph company to deliver the message, and could not be recovered from it.</p> <p>2. Same — California Statute.</p> <p>A complaint, alleging a valid contract with a telegraph company for the transmission and delivery of a message, and a breach of such contract by the telegraph company, though alleging no substantial damages resulting proximately from such breach, eniitles the plaintiff to nominal damages, and to the penalty imposed by section 2209 of the Civil Code of California, providing that “every person whose message is refused or postponed * * * is entitled to recover from the carrier his actual damages and $50 in addition thereto.”</p>

<p>Corporations — Unpaid Stock--Liability of Transferee.</p> <p>One who takes an assignment of stock, accompanied by a transfer to his name on the books, and receives a certifican! from the corporation, issued to him in his.own name, reciting that he is entitled to so many shares, on each of which a certain sum has been paid, leaving a specified amount “to he paid when called for,” is liable, as a subscriber, for the balance due ou the stock.</p>

<p>1. Jurisdiction — Foreign Insurance Companies — Service of Process.</p> <p>When, by the statute of a state, an insurance company, transacting business in such state, is required to file with a designated officer of that slate a written appointment of such officer as the person upon wnom process, directed against, such company, may be served, snch officer becomes, from the fact of its so transacting business therein, the representative of the company with regard to the service of such process, irrespective of whether such appointment has been so filed or not.</p> <p>2. Same.</p> <p>A statute of Missouri (Rev. St. 1889, § 5912) provides that any insurance company, not incorporated by that state, desiring to transact business by any agent or agents in Uie state, shall first file with the superintendent of the insurance department a power of attorney, authorizing- him to receive service of process for the company; that service of process upon such superintendent shall be valid and binding, so long as the company shall have any policies outstanding in the state; and that, if snch company shall fail to make such appointment, it shall forfeit the right to do business in the state. The general agent and a soliciting agent of the M. Association, an Iowa insurance company, during- the months of April and May, 1892, solicited insurance for that company in several towns in Missouri. They forwarded to the company 66 applications for policies, all dated in Missouri, stating the residences of applicants and beneficiaries as in Missouri, and all accompanied by fees, receipts for which, dated in Missouri, and containing an agreement to refund if no policies were issued, were given to the applicants. The policies were mailed by the company from Iowa to the applicants in Missouri, and, from the time of the issue of the policies until 1895, the clues thereon were collected by local collectors, in the various Missouri towns, who gave receipts for such dues, dated in Missouri, on forms furnished by the company. The M. association had never formally authorized the soliciting of insurance in Missouri, nor filed the power of attorney required by the Missouri statute; but the records of the company gave full knowledge to the board of directors, of whom the general agent who solicited the Insurance was one, of the solicitation of such insurance and the issue of the policies in Missouri. Plaintiff brought an action against the M. Association, on one of the policies so issued, in a Missouri court. Process was served on the superintendent of insurance, and judgment was obtained by default, on which plaintiff afterwards brought suit in a federal court in Iowa. The defendant pleaded that the Missouri court had no jurisdiction. Held, that the M. Association was doing business in Missouri, within the meaning of the statute, and having thereby asserted a compliance with the laws of the state permitting it to do so. was estopped to set up that it had not authorized the superintendent of insurance to receive service of process, in order to defeat the jurisdiction of the court by which the judgment was rendered, and, accordingly, that the service on the superintendent was sufficient.</p>

<p>Motion to Strike Out Plea, and for Judgment on the Pleadings.</p>

<p>This was an indictment against Edwv O. Reid for mailing obscene matter, founded upon Rev. St. § 3893, as amended by section 2, Act Sept. 26,1888. Heard on motion to quash,</p>

<p>Timber Lands — Cutting—Intent—Act of June 3, 1878.</p> <p>The clause specifying intent, in section 4 of the act of June 3, 1878 (1 Supp. Rev. St. 168), which declares it unlawful “to cut, or cause or procure to be cut, or wantonly destroy, any timber growing on any lands of the United States, * * * or remove or cause to be removed any timber from said public lands, with intent to export or dispose of the same,” qualifies the cutting as well as the removal of timber; and an indictment for cutting timber on the public lands specified in the act. which does not allege that the defendant intended to export or dispose of the timber so cut, is fatally defective.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an appeal by Wertheimer & Co. from the decision of the board of general appraisers affirming the action of the collector of customs at the port of New York in the classification for duty of certain ladies’ kid gloves, embroidered. The collector assessed an additional duty of 50 cents per dozen pair, under the provisions of par. 458 of the act of 1890, and the particular clause thereof which reads: “On all embroidered gloves with more than three single strands or cords, 50 cents per dozen pairs.” The importers protested, claiming that, while the gloves were embroidered, they were not embroidered with more than three single strands or cords. The evidence tended to show that gloves of this character were known in trade as “three-row embroidered gloves.” The gloves in question had more than three single strands or cords in the embroidery, although there were but three rows of embroidery on the back. The circuit court affirmed the decision of the board (68 Fed. 186), and the importers appealed.</p>

<p>Uhi'aiu Comiuitition — Contributing to Fraud.</p> <p>Complainant had sold for many years an article known as “Hostetter’s Bitters.” Defendant manufactured an article resembling it in color and in other particulars, and sold the same to retail dealers, under the name “Host-Style Bitters,” in large demijohns, without labels, and was shown in several instances to have given to the purchaser of his bitters an empty bol tie bearing all complainant’s labels. Held, that defendant, though the purchaser from him was not deceived, had furnished the means of deceiving the public, and should be enjoined from selling Host-Style Bitters, and, at the same time and in connection with the sale, giving to the purchaser empty Hostetter bottles.</p>

<p>This was a suit in equity for the infringement of certain patents relating to table legs for knockdown tables.</p>

<p>Appeal from Circuit Court of the United States for the Northern District of New York.</p> <p>This was a suit in equity by the Troy Laundry Machinery Company against the Adams Laundry Machinery Company and others for alleged infringement of a patent for a dampening machine. The circuit court dismissed the bill, and complainant appealed.</p>

<p>This was a bill in the name of the state of Missouri, in behalf of, and to the use of, the public. schools of Cape Girardeau county, against William John Alt and Cape Girardeau county, to procure the cancellation of a deed. The cause was removed by defendant from a state court, and is now heard on motion to remand.</p>

<p>Removal of Causes — Diverse Citizenship — Formal and Necessary Parties.</p> <p>The state of Missouri granted to the county of M. the swamp lands, donated to the state by congress and located in said county, to be drained and sold for the benefit of the school fund of the county. Many years after such grant, a bill in equity was filed, in a state court, by the state, on behalf of the school board of M. county, against that county and sundry persons, citizens of other states, alleging that the county had committed various breaches of trust in the disposition of the lands so granted to it. by disposing of them without consideration, or for purposes not within the trust, by misapplying moneys received from their sale and otherwise; that the conveyances so made were fraudulent and void; that the lands, so disposed of in breach of the county’s trust, had come to the hands of the other defendants, with knowledge of such breaches of trust, — and praying that such conveyances be set aside, and the land restored to the county and for general relief. The defendants, other than the county, sought to remove the cause to the federal court, on the ground of diverse citizenship. Held, that the county of M. was.a necessary, and not merely a formai, party to the suit, and an adversary party to the complainant, and, such county and the real complainant in interest being both citizens of Missouri, the suit could not be removed.</p>

<p>Removat, ob Causes — Looat, Prejudice — Notice.</p> <p>An application for the removal of a canse from a state to a federal court on tlie ground of local prejudice, under the act of congress of March 3, 1887 (amended August 13, 1888), should not he granted without giving to the plaintiff' notice and an opportunity to be heard, though the court has power to grant the application ex parte.</p>

<p>1. Master and Servant — IS boliokxce of Servant — Joint Liability.</p> <p>Mere negligence of a servant does not create a joint liability of such servant and Ms master for damage resulting from the negligence. Warm; v. Railway Go., 72 Fed. 037, followed.</p> <p>2. Removal of Causes — Joinder of Defendant to Prevent Removal — Bad Faith.</p> <p>When a complaint states a cause of action against two defendants, one of whom is a citizen of the same slate as the plaintiff, an averment, in a petition for removal of the cause to a federal conn, that the allegations involving such defendant are made in bad faith, to prevent removal, must be sustained by circumstantial and detailed proof, in order to justify removal; and the mere verification of the petition for removal, eon Mining such averment, is not sufficient.</p> <p>3. Same — Suit against Receiver of United States Court and Others Jointly.</p> <p>An action brought, without leave of court, against a receiver appointed by a federal court, and other parties, who are citizens of the same state as the plaintiff, to establish a joint liability of all the defendants, is a siri'arising under the laws and constitution of the United States, and, if originally brought in a state court, may be removed to a federal court.</p>

<p>1. Appeal — Time and Manner of Taking.</p> <p>On May 7th an intervener in foreclosure proceedings in the circuit court filed an assignment of errors, and prayed an appeal to the circuit court of appeals. It was thereupon ordered “that said appeal be allowed, upon the intervening petitioner * * * filing an appeal bond” for $500, “with security to be approved by the court.” An appeal bond was approved September 5tb, and filed September 9th, and on that day a citation was issued, returnable October Stb. Held, that the allowance of an appeal was perfected on September 9th.</p> <p>2. Same — Signing of Citation.</p> <p>When one of the judges of the circuit court has approved an appeal bond, it is competent, under Rev. St. § 999, for another judge of that court, who might have granted the appeal and approved the bond, to sign the citation. His signing thereof without requiring security is equivalent to an express approval of the existing bond.</p> <p>3. Same — Time of Filing Transcript.</p> <p>Where the transcript was filed within 30 days after the appeal was perfected, hut not until the next day after the return day of the citation, held, that the appeal would not be dismissed; it appearing that the transcript was carried at 5 o’clock on the previous day to the door of the clerk’s office, to be filed, but that the office had then been closed for the day.</p> <p>4. Same — Return Day of Citation.</p> <p>There is no rale in the Seventh circuit requiring the citation to be returnable to or before the next ensuing term of the circuit court of appeals.</p> <p>5. Same — Defective Bond — Amendment.</p> <p>If the appeal bond is defective, in that it runs to only one of the several parties whom the citation makes respondent to the appeal, this defect may be cured after the cause is in the appellate court.</p> <p>■8. Same — Printing Record.</p> <p>On a motion to dismiss, argued a little over a mouth after the appeal was perfected, held, that it was no ground of dismissal in the Seventh circuit that the record had uot yet been printed, or any briefs filed; there being no allegation that appellant had failed to give the required undertaking for costs, or to pay the clerk the estimated cost and fees for printing the record, or to file a printed brief within 20 days after delivery by the clerk of the printed record. Rules 14, 23, 24 (Seventh Circuit) 11 C. C. A. Ixxiv., lxxvi., Ixxvii.</p>

<p>Equity Practice — Adequate Remedy at Law — Biol for Perpetuation of Testimony.</p> <p>A suit in equity cannot be sustained to cancel an insurance policy, on the ground of fraudulent misrepresentations which would be a defense to a pending action at law on the policy; nor is such a case aided by a demand in the bill for the perpetuation of testimony, since a bill for the latter purpose is multifarious if it also asks for relief.</p>

<p>1. Equity — Rescission of Contracts — Adequate Remedy at Law.</p> <p>Complainant alleged in her bill that defendant had been guilty of certain frauds and misrepresentations in regard to the investment of a sum of $1,800, intrusted to him by complainant, and wliicb he had invested in a bond and mortgage which he transferred to her. She also alleged that, after such investment, she had been obliged to expend $374 in litigation over the Investment, and in insurance on the property, and prayed that the transaction might be rescinded, and defendant decreed to refund to her the $1,800 and the $374. Held, that the bill stated merely a right of action at law against defendant tor misapplication of complainant's funds, and was not. within the jurisdiction of equity.</p> <p>2. IhiDEKAU COLUTS — JlOiltíDIOTIOS'—AMOUNT IN I/ISCUTE.</p> <p>U seems that, even if a case were made for the rescission of the original transaction, the United States circuit court would have no jurisdiction, as the $374 subsequent expenses could not be added to the $1,800, to make the jurisdictional amount.</p>

<p>1. Railroad Mortgages — Foreclosure—Request of Bondholders.</p> <p>Complainant, a holder of the stock aud bonds of the H. R. Co., filed his bill against that company and'the R. & D. Ry. Co., alleging'that the H. Ry. Co. had been operated by the R. & D. Ry Co., which owned a majority of its stock and more than three-quarters of its bonds; that the earnings of the H. Co. had been misapplied by the officers of the R. & D. Co., and diverted to their own use, to the injury of the minority stockholders and creditors of the H. Co., causing the interest on its bonds to fall largely into arrear, and rendering the company insolvent; that the officers of the R. & D. Co. had refused the minority stockholders and creditors a statement of the earnings of the road and an inspection of its books, and thereupon complainant, afler averring the refusal of the trustees under the mortgage securing the bonds to sue, asked for an accounting from the R. & D. Co., and for foreclosure of the mortgage. Held, on demurrer by the R. & D. Co., that complainant would not, under the peculiar circumstances, be debarred from maintaining the suit for foreclosure by a provision of the mortgage requiring a request of one-fourth of the bondholders to authorize a foreclosure, since such a requirement would enable the K. & D. Co., holding more than three-fourths of the bonds, to delay the foreclosure indennitely.</p> <p>2. Same — Divbksion op Eajrnings — Accounting.</p> <p>Held, further, that though the mortgagor company could use the income of the mortgaged property until foreclosure, without being called to account, the complainant had a right to require an account from the R. & D. Co. of profits it was alleged to have made by the diversion of the earnings of the H. Co., while in control of that company by its officers,</p>

<p>Municipal Corporations — Indebtedness—Georoia Constitution.</p> <p>Under paragraph .1, § 7, art. 7, of the constitution of Georgia (which forbids any county or municipal corporation to incur debt in excess of 7 per cent, of the assessed value of the taxable property, and provides that no county or municipal corporation “shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum” of such assessed value, without the assent of two-thirds of the qualified voters at an election), a contract made by a county for the purchase of supplies, to be paid for, one-half in 13 months. and one-half a year later, no election to authorize any debt having been held, is invalid, and not binding on the county.</p>

This is a creditors’ bill, brought to set aside certain conveyances of real estate, executed by the defendant E. Crane, upon the ground that said conveyances were voluntarily made, without consideration, for the purpose of avoiding and defeating a claim and demand held by complainants against him. On the 18th day of February, 1876, E. Crane conveyed to his daughter, Mrs. A. G. Styles, certain land, for the expressed consideration of $5.

<p>Appeal from (he Circuit Court of the United Mtai.es for the Northern District of Illinois.</p> <p>This case is the remnant of a litigation in chancery begun in the Untied States district court for the Northern district of Illinois, before Judge Blodgett, 22 years ago; the jurisdiction attaching to that court on account of the pendency therein of proceedings in bankruptcy against Harvey W. Giddings, the grantor in the trust deed which the chancery suit was brought to foreclose. The first bill was filed at the December term, 1873, to foreclose a trust deed executed by Harvey W. Giddings to Warren M. Baker for 811,000, dated February 21, 1871. The notes secured by the trust deed were assigned to Abner G. Harding April 10, 1872. No questions, however, in respect to the proceedings upon that bill are involved in this appeal. The questions here in controversy pertain rather to the ownership) of three certain notes aggregating $18,300, one for $0,000. being dated January 0, 1808, and two for ¡50,150 each, dated January 1, 1808, and the mortgage securing the same being-dated January 9, 1808, and executed by Harvey W. Giddings to John W. Giddings, conditioned for the payment of said sum of $18,300; and also respecting the amount due upon a note for $4,000, due June 10, 1872, executed by John W. Giddings, Silas Giddings, A N. Wiswell, and Harvey W. Giddings; and also what amount, if anything, is secured to be paid on those notes under and in pursuance of two certain agreements alleged to be made between A. C. Harding and John W. Giddings, one dated December 13, 1873, and the other February 10, 1874. These notes secured by mortgage are alleged to have been made by Harvey W. Giddings to his father, John W. Giddings, to secure a part of the purchase money on the land described in the mortgage. Various answers and cross bills, supplemental and amended bills, were filed, which were referred to a master for hearing. Some time in 1873 it appears that Harvey W. Giddings became indebted to the First National Bank of Galesburg in the sum of $5,000, and John W. Giddings became his surety for the debt. The bank wanted its money, and Harvey W. Giddings could not pay; and John W. deposited with that bank the secured notes for $18,300, with the mortgage securing the same, as collateral security for the $5,000 due to the bank. In December, 1873, John W. Giddings applied to Abner C. Harding for a loan to take up the debt of Harvey at said bank, which amounted, with interest, to $5,131.94. The Monmouth National Bank at that time held the note above mentioned for $4,000, signed by Harvey W. Giddings as principal, and John W. Giddings, Silas Giddings, and A. N. Wis-well as sureties; and Gen. Harding told John W. Giddings that he would furnish the money to take up the Galesburg debt, if Giddings would pay or secure to the Monmouth Bank a portion of this $4,000 note, to wit, $808.00 on this note, which was then held by the latter bank, of which Gen. Harding was president. The question was raised how John W. Giddings could repay Gen. Harding, and this mortgage of $18,300, which was deposited with the First National Bank of Galesburg as collateral security, was the security which Mr. Giddings had to offer to Gen. Harding. It was agreed that Mr. Giddings should make a deed to Gen. Harding of the homestead farm, and that Gen. Harding should give back an agreement to reconvey the farm upon the payment of $0,000 in four equal installments, with interest at 10 per cent, per annum. Mr. Snyder, the son-in-law of Gen. Harding, paid the $5,131.94 to the bank, and took up the note of $5,000, and the collateral, which was $18,300 of notes, and first mortgage on the homestead, 1G6 acres. And thereupon John W. Giddings and his wife made a warranty deed conveying to Gen. Harding the 100 acres, which deed bears date the 13th day of December. 1873; and on the same day Gen. Harding entered into a bond to convey the same premises to John W. Giddings, or his assigns, upon the payment of $6,000 in four equal annual payments,' with interest at 10 per cent, payable annually on January 1st of each year. Upon the payment of this money, he bound himself to execute and deliver to John W. Giddings, his heirs or assigns, a deed of conveyance of all right, title, and interest of the said Harding of, in, and to the same premises. At the time of this transaction, Snyder drew a receipt, and executed the same in the name of A. O. Harding, by his direction and in his presence, for $868.00, — being the difference between the amount paid on the Galesburg note and the $6,000 named in the bond, which amount ($868.06) was, by the terms of the receipt, to be credited on the $4,000 note held by the Monmouth Bank, — and delivered the receipt to John W. Giddings. The bond for $6,000 was on April 5, 1875, assigned by John W. Giddings to the appellee Caroline Giddings. When George F. Harding, as executor of Abner G. Harding, on May 3, 1876, filed his supplemental bill to foreclose the mortgage of $18,300, John W. and Caroline Giddings answered, setting up the $6,000 bond for a deed, and objected to the foreclosure. After-wards Caroline Giddings filed a separate amended answer, in which she ■claimed to be the owner of the bond under the assignment from John W. Giddings, and denied the right to foreclose the mortgage. Afterwards, on January 18, 1878, she filed a cross bill against George F. Harding, setting up the history of the $18,300 notes and mortgage, and the deposit as collateral security, and the making of the bond, and alleging that she had paid all of the money due on the bond, excepting $1,650, and that she had tendered this amount, and asked the court to decree that the executor deliver up to her the $18,300 notes and mortgage, and also make a deed to her in accordance with the provisions of the bond. The payments on the $6,000 bond are shown by the testimony of Almon Kidder, who was the attorney and agent of George F. Harding, as follows: January 1, 1875, $2,100 from Caroline Giddings. December 31, 1875, $1,950 by Caroline Giddings. January 1, 1887, 81.800 by Caroline Giddings, being tlie amount due at the date of the last payment. George F. Harding received it all. On January 1, 1878, Caroline Giddings and A. M. Brown tendered to Kidder the sum of $1,050, being tlie balance due upon the bond, and demanded a deed in accordance with the terms of the bond, and on the next day deposited this sum in the First National Bank of Galesburg as an abiding tender, where it has remained until the present time. The case, of which these things are but part and parcel, became quite a complicated one, and came on for hearing in the district court, before J udgo Blodgett, on July 21, 1881. On the hearing there was ottered in evidence by Harding an agreement as follows:</p> <p>“This agreement, made this 10th day of February, A. D. 1874, between John W. Giddings and Hannah Giddings. his wife, of tlie one part, and Abner C. Harding, of the other part, witnesses, that said John W. Giddings does hereby agree to bid off and purchase at the assignee’s sale, on tlie 21st inst, all the interest of the estate of Harvey W. Giddings. bankrupt, in the S. B. 14 of Sec. 17, in Floyd township, in Warren county. Ills., and 6% acres off the N. side of the N. E. % Bee. 20, in same township, known as the ‘Giddings Homestead Farm,’ subject to all liens and incumbrances thereon; one of the incumbrances thereon being a mortgage from said H. W. Giddings to John W. Giddings, for $18,300, being the purchase money of said premises, which mortgage has been assigned by said J. W. Giddings to said A. C. Harding, heretofore, as security for money advanced, but which said mortgage, and all interest therein, and in all the money thereby secured, is hereby absolutely sold and assigned to said Harding; and upon the purchase of said title at said assignee’s sale, as hereinbefore agreed, the said John W. Giddings and Hannah Giddings, his wife, do hereby agree and bind themselves to convey all of said premises to said Harding upon the payment and for tlie consideration of fifty dollars per acre for said premises, which said consideration money shall be made up as follows: First, the six thousand dollars and interest tiiereon specified and mentioned in the contract of purchase between said Harding and said ,T. W. Biddings, dated the 13 day of December, 1873; second, the amount now unpaid upon the note of H. W. & J. W. Giddings to Henry Cable, less two hundred dollars; and the residue of said consideration shall be paid in cash as soon as this agreement is consummated and performed upon tlie part of John W. Giddings. If is hereby agreed that in case the said land shall be bid up beyond what is advisable, in the opinion of John W. Giddings, to bid, and tlie same shall be bid off by some one else at said assignee's sale, then tlie said mortgage noiv in said Harding’s hands shall be foreclosed, for the purpose of making a title to said land, to he by said Giddings deeded to said Harding. The title so to be conveyed by said Giddings to said Harding to be clear of incumbrances. Harding to have the pro rata from the Galesburg & Monmouth Bank debts against said Harvey W. Giddings’ estate, and the said $18,300 mortgage, and shall pay the taxes on said land. If said Giddings shall not be present at said assignee’s sale, then said Harding shall bid off the said land at said sale on behalf of said Giddings. Witness the hands of the parties hereto, February 10, 1874.</p> <p>“[Signed] J. W. Giddings.</p> <p>“Hannah Giddings.</p> <p>“A. O. Harding.”</p> <p>This agreement is dated about four months before Gen. A. G. Harding died, and while he was upon his deathbed. Its, exact history and purpose, and whether or not it ever wont into effect, do not clearly appear in the litigation. It was executed at Gen. Harding's residence, and remained among his papers until November of that year (1874). when it ivas sent to Almon Kidder, the ¡¡gent of George F. Harding, at Monmouth, but did not come to his notice until February, 1876, when he sent: it to George F. Harding.</p> <p>The decree of the district court, so far as it relates co the issues in this case, was iii favor of the appellee Caroline Giddings, upon tlie cross bill, and was as follows: “The court further decrees and declares that the notes and mortgage of January 1, 1868, made by Harvey W. Giddings to John W. Giddings, described in the cross bill of Caroline Giddings, were only held by the decedent of said complainant as collateral to tlie amount for which said notes and mortgage were originally pledged to the First National Bank of Galesburg, and that said bond of December 13, 1873, and the deed of said John W. Giddings to Abner G. Harding, of the same date, were merely evidences that the repayment of said sum of six thousand dollars ($0,000) described in said bond was secured upon the said interest of said John W. Giddings as mortgagee of said lands therein described. The court further finds that on April 5, 1875. said John W. Giddings assigned and transferred his interest in said contract with said Abner C. Harding to said Caroline Giddings; that the tender of the sum of sixteen hundred and fifty dollars ($1,650) made by Caroline Giddings. January 1, 1878, to Almon Kidder, as agent of George F. Harding, was a good and sufficient tender of tbe balance due according to the terms of said bond. And it is therefore ordered that said George F. Harding, executor as aforesaid, shall make the conveyance of the said lands described in said bond, according to its tenor, to said Caroline Giddings, assignee thereof, within thirty days, or that Henry W. Bishop, master in chancery of this court, shall make said conveyance.” “The court further orders that the said George F. Harding is also directed and decreed to transfer, assign, and deliver to said Caroline Giddings, assignee of said' notes and mortgage of January 1, 1868, made by Harvey W. Giddings to John W. Giddings, and the note for five thousand dollars given by J. W. Giddings to the Bank of Galesburg, and held by said Harding, as collateral to said land contract; and the said Caroline Giddings is the owner of the said mortgage, and entitled to hold the same in her own individual right, free and clear from all claims thereon by said complainant.” An appeal from this decree was afterwards, and-on July 22, 1881, taken to the circuit court by this appellant, and came on for hearing before Judge Woods, and the decree of the district court was affirmed at the May term, 1895.</p>

<p>1. Shipping — Damage to Cargo — Harter Act — Lake Commerce.</p> <p>The third section of the Harter law (Act Feb. 13, 1S93), which provides that, if the owner of any vessel transporting property “to or from any port of the United States” shall' exercise due diligence to make her seaworthy and properly manned, equipped, and supplied, he shall not be liable for damage resulting from faults of navigation or management, etc., applies to vessels engaged in commerce on the Great Lakes, notwithstanding that sections 1, 2, and 4 of said act, which relate to limitations of liability by provisions in contract of affreightment, are exiiressly confined to shipping “between ports of the United States and foreign ports.”</p> <p>2. Same — Seaworthiness—Deflection of Compass.</p> <p>Where a vessel deviated from her course in the night, and ran upon a well-known reef, held, that the existence of a deflection of her compass of about % of a point ivas not sufficient ground for finding her unseawortby, especially in the absence of any showing of its continuance for sufficient time to require notice.</p> <p>3. Same — Faults of Navigation.</p> <p>Faults consisting in failure to heed the warning of a goA'ernment light, which indicates the location of a reef, and in presuming upon the entire accuracy of the compass or course, or upon deceptive appearances of distances, etc., are “faults or errors of navigation,” within the meaning of section 3 of the Harter act.</p>

<p>In Admiralty. Petition by tlie German-American Bank of Buffalo against the remnants and surplus of the proceeds of the sale of the steamer Unadilla.</p>

<p>1. Shipping — Damage to Cargo.</p> <p>In a suit to recover tlae amount of damage found by appraisers to have been done to certain bags of iaux vomica and turmeric, by reason of stains upon tlae packages from oil cargo, it was shown at tbe trial that the goods wore sold by the consignees for the full market price of sound goods, and that the purchasers never made any objection to them or claimed any allowance for damage. Held that, as they sustained no loss, the ship was not liable.</p> <p>S. Same — Perils of the Seas — Carrying Away of Ventilators — Admission of Water.</p> <p>Damage by sea water entering the ventilator holes, after the ventilators had been carried away by a heavy sea which came aboard in a gale off the Cape of Good Hope, smashing one of the lifeboats, and breaking frames and stanchions, held to he the result of a peril of the seas, for which the ship was not liable, where it appeared that the firmness of the ventilators had been thoroughly tested by shaking, and by examination of the flanges and the screws and bolts securing them to the deck, although the screws and bolts were not taken out for inspection. Gt Fed. 704, affirmed. The Edwin I. Morrison, 14 Sup. Ct. 823, 153 U. S. 199, distinguished.</p> <p>3. Same — Character, oe Prooe.</p> <p>Where the ship has shown a sea peril which left water aboard that might reasonably be expected to cause the damage found to exist, it will be presumed to have produced it, if there is satisfactory proof that any or all ofhcr suggested causes did not produce it. 61 Fed. 764, affirmed.</p> <p>4. Same — Damage by Otl.</p> <p>Damage done by Ceylon cocoanut oil, which, though properly stowed, escaped by natural and usual leakage into the hold, and was afterwards carried up into contact with the cargo by water that entered the ship in consequence of a sea, peril, held, to be the result of a sea peril for wdiich the ship was not liable. 61 Fed. 7G4, affirmed.</p> <p>5. Same —Proper Stowage — Ckyt.on Oil.</p> <p>Although Ceylon cocoanut oil, partly by reason of its inherent qualities and partly because of bad cooperage, always leaks greatly from the casks, yet held, on the preponderance of evidence, that it is not improper stowage to place it in the between-decks, over dry cargo in the hold, provided the decks are permanently laid, in thorough order, well caulked and tight, and provided with sufficient scuppers for the escape of leaking oil. 61 Fed. 761, affirmed.</p> <p>6. Same.</p> <p>Where oil is stowed in the between-decks, near an open hatch, beneath which dry cargo is placed, and is found to be damaged at the end of the voyage, the burden is on the vessel to show, not merely that the damage could have been caused by a sea peril, but that it could not have been caused otherwise.</p> <p>7. Same — “Broken Stowage.”</p> <p>When packages susceptible to damage from oil are taken as “broken stowage,” the ship is not entitled to use them as dunnage for casks of oil which are known to be so liable to leak as those which come from Ceylon, or to stow them in immediate physical contact witli such casks, where it is almost inevitable that they will be soaked with oil before the end of the voyage.</p> <p>8. Same — Presumptions—“Oil Dholls.”</p> <p>There being a cheap variety of coir yarn coming from Colombo, Cochin, and Alleppy, in the shape of dholls, which are known as “oil dholls,” because not susceptible to damage by oil, held that, when dholls of coir are receipted for by the ship as “oil broken stowage,” it may be assumed, in the absence of evidence to the contrary, that they are of that cheap kind, and may, according to the custom of the trade, be stowed with oil-casks.</p>

<p>Appeal and Writs of Error — Actions against United States.</p> <p>An action brought by a supervisor of elections against the United States, under authority of the act of March 3, 1887, to recover items for services disallowed by the treasury department, is an action at law on a legal de,mand; and the judgment can be reviewed only on a writ of error, and not by appeal. U. S. v. Fletcher, 8 C. C. A. 453, 60 Fed. 53, and Chase v. TJ. S., 15 Sup. Ct. 174, applied.</p>

<p>Submitted on Motion to Remand to State Court.</p>

<p>1. Limitations — Accruing of Cause of Action — Partnership.</p> <p>In fixing tbe date at which the statute of limitations begins to run against a cause of action for an accounting of the affairs of a partnership, and especially of a so-called mining partnership, a court of equity will not always tahe the date of the actual dissolution of the partnership by the death of a partner or otherwise, but in a case where, of necessity or by consent, the surviving partner continues the management of tna partnership affairs for the winding up of the business, will sometimes postpone the running of the statute until such management or winding up has been completed, or until such surviving partner has openly asserted an adverse claim to the partnership assets.</p> <p>2. Same.</p> <p>Prior to 1875 defendant, C., and A. were partners in mining operations; defendant being the active managing partner, and C. and A. residing in a state distant from the mines, and A. being ignorant of mining. The mines produced no profit, but defendant reported encouragingly to A. from time to time, and-A. placed entire confidence in him. A. died in 1875, and defendant, shortly after, wrote to his widow that his interest in the mines was then of no value, but might become valuable, and defendant pledged his honor to account fully to the widow for anything that might be realized. Thereafter he never communicated with her, but continued to hold onto the firm property, to run and traffic in the same,, and, at various times, admitted to other persons that A.’s widow had an interest therein. Prior to and in 1883, defendant sold out mining properties of the firm for large sums of money, for which he did not account to A.’s widow, who was ignorant of the sales until she learned of them through a third party. Shortly after learning of such sales, and within the statutory period of limitation after the last one, A.’s widow brought suit against defendant for an accounting of the partnership affairs. Held, that the suit was not barred by laches, nor by the statute of limitations.</p>

This was a bill in equity by the United States against the National Bank of Asheville and others to require an accounting in respect to public moneys deposited with it by defendant George W. Cannon, as postmaster at Asheville. Defendants filed a general demurrer, which was duly set down for argument, and has been heard and considered on written arguments and briefs.

<p>Equity Practice — Suits against Corporations — Intervention by Stockholders.</p> <p>The charter of the ,W. Co., a North Carolina corporation, was repealed hy an act of the legislature, passed without the knowledge of the corporation or any of its members, and while it was solvent and a going concern. Pursuant to plans- concerted at a meeting of the president and directors, a suit was instituted hy a creditor for the winding up of the corporation, in which a receiver of the property of the corporation was appointed. Subsequently, several stockholders, including the president and secretary, petitioned for leave to intervene as parties, to protect their interests, alleging fraudulent dealing by the complainant, in derogation of the rights of the corporation and the petitioners, but not alleging that any request had been made to the directors of the corporation to raise the issues stated or protect the petitioners’ rights. The Code of 'North Carolina (section 667) provides that corporations whose charters shall expire or he annulled shall, nevertheless, continue bodies corporate for three years, for the purpose of prosecuting- and defending actions and winding up their affairs'. Held, that the hoard of directors should have been applied to, to protect the stockholders’ interests; and, in the absence of any allegation of the directors’ neglect or refusal to do so, the individual stockholders- should not be permitted to intervene. •</p>

<p>Sur* cross bill praying for an injunction.</p>

<p>Practice — Taking Depositions in Patent Cases — Extension of Time.</p> <p>On defendant’s motion for further extension of time for taking- testimony, it appeared that complainant’s counsel, resident in Hartford, Conn., was in attendance at Cincinnati from February 28th to March 14th, to he present at the taking of defendant’s evidence, but that defendant took no evidence except on the first two and last five of those days; four of the latter days being occupied by an expert in answering a single question, without assistance from counsel. Held, that defendant was not entitled to an extension of time for taking additional expert testimony.</p>

This was an action by Charles D. Rathbone against the board of county commissioners of the county of Kiowa, Kan., upon coupons of county railway-aid bonds. Plaintiff has demurred to the answer filed by the defendant.

<p>1. County Bonds — Validity—Powers of Commissioners.</p> <p>The fact that bonds issued by Kiowa county, Kan., under the refunding act of 1879, were issued by the county commissioners without a previous vote of the people, does not affect their validity, for by Gen. St. Kan. 1889, § 1613, it is provided that the “powers of a county as a body politic and corporate shall be exercised by the board of county commissioners”; and, as there is nothing in the funding act prescribing by whom its powers ' shall be exercised, that duty falls upon the commissioners.</p> <p>2. Same — Refunding Bonds — County Warrants.</p> <p>A statute authorizing the funding by a county of “matured and maturing Indebtedness of every kind and description” (Act Kan. March 8, 1879) includes indebtedness evidenced by county warrants.</p> <p>3. Same — Negotiable Bonds.</p> <p>Statutory power to issue bonds includes power to make them negotiable, unless restricted by positive enactment. West Plains Tp. v. Sage, 16 C. C. A. 553, 69 Fed. 943, followed.</p>

<p>1. Jurisdiction of the United States Circuit Court over, Orders Made by the Interstate-Commerce Commission.</p> <p>The jurisdiction of the United States circuit court is limited to an approval or disapproval, and to an enforcement or refusal to enforce an order of the commission. The court has no authority to modify the order of tho commission.</p> <p>2. Same.</p> <p>The court may go fully into the proof to determine whether It will approve an order made by the commission, and may hear any additional proof.</p> <p>3. Same.</p> <p>An.order made by the commission is essentially an administrative order, and is not final or conclusive in the sense of a court judgment or decree. And an order' of the United States circuit court, enforcing an order of the commission, does not change its character or make it a final judgment.</p> <p>4. Tiib Jurisdiction of the Commission.</p> <p>The function of the commission is both quasi judicial and administrative in its nature. The commission is required to make reports in writing in respect to complaints made to it. Such reports must include the findings of fact upon which the conclusions of the commission are based, and such findings so made are to be deemed prima facie evidence as to each and every fact so found in any judicial proceeding thereafter had.</p> <p>6. Same.</p> <p>It was the intention of congress that the procedure before the commission should substantially conform to that before a court charged with the duty of finding the facts and giving judgment thereon, or to the investigation and report of a referee or special master in chancery, passing on both facts and law.</p> <p>6. Same.</p> <p>The fact that the commission is composed of men of ability and experience, selected with reference to their particular qualifications therefor, and whose entire time is devoted to questions arising under the act, gives to its findings and opinion great weight. But, in order that the finding an¿l opinion of the commission shall have the value intended, it should conform to the purpose of congress-in requiring such proceedings. Its opinion or report should show what the issues in the case are, and what facts it finds in regard to such issues.</p> <p>7. Same.</p> <p>It is' not sufficient for the report of the commission' to be made up of mere conclusions with respect either to law or fact. It should make suitable reference to the evidence where thpre is a conflict in the proof, and show how the commission settles the9 disputed fact; or,'if the evidence in regard to any fact is undisputed, it should be so stated by the commission.</p> <p>8. Same.</p> <p>Where, in a. given case, it is the duty of the commission to receive and take into account evidence of certain facts, its failure to do so is error of law. And so, where an issue of fact is raised before the commission, its failure to dispose of it is an error of law.</p> <p>9. Same.</p> <p>The commission has no power to make rates, and especially has the commission no power to order that rates from a given point to one city shall bear a certain relation to the rates from the same point to another city.</p> <p>10. Seasonable Bates.</p> <p>Under the first section of the act to regulate commerce, the question may be made as to whether a given rate is, in and of itself, unreasonable and unjust. In the consideration of such a question rates to other places or points of shipment are unimportant, except as evidentiary circumstances; but where the conditions are similar, proof of rates charged by other roads is of great value.</p> <p>11. Unjust Discrimination — Undue Preference.</p> <p>Under the second section of the act the question of unjust discrimination may arise, and under the third section the question of undue preference may arise. And in determining a question under either or both of those sections it may often, if not always, become necessary to contrast the rates 'to other places and persons, because those sections involve the question of relative rates, with all their elements.</p> <p>12. Same.</p> <p>The burden of proving undue preference or undue prejudice rests upon the complaining party.</p> <p>13. Same.</p> <p>The carrier’s business of transporting goods involves the rights of, and the necessity of doing justice to, three parties.- The interest of the seller at the point of departure, the interest of the carrier, and the interest of the trader or consumer at the point of delivery are all concerned in a given transaction, and must he duly considered by a tribunal or court in the decision of any case involving the carrier’s freight tariff.</p> <p>14. Same.</p> <p>Questions of unjust discriminal ion or undue preference must be treated broadly and .practically. The carrier’s business is one which involves so many considerations, and the necessity of taking into account so many conditions, that questions of this kind do not admit of any rigidly theoretical rules in tlioir solution.</p> <p>15. Same.</p> <p>it is impossible to exercise a jurisdiction, such as is conferred by the act to regulate commerce, by any process of mere mathematical or arithmetical calculation. When you have a variety of circumstances differing in the two cases, you cannot say that such a difference of circumstances represents or is equivalent to such a fraction of a penny difference of charge in the one case as compared with the other. A much broader view must be taken, and it would be hopeless to seek to decide a case by any attempted calculation.</p> <p>16. Same — Competition.</p> <p>In passing upon the question of undue or unreasonable preference or disadvantage, it is not only legitimate, but proper, to lake into consideration, besides the mere difference in charges, various elements, such as the convenience of the public, the fair interests of the carrier, the relative quantifies or volume of the traffic involved, the relative cost of the services and profit to the company, and the situation and circumstances of the respective customers, with reference to each other, as competitive or otherwise.</p> <p>17. Same.</p> <p>The public at large is greatly interested in competition, and the more favorable prices which It brings, and for that purpose the public is interested in keeping open the larger markets of' the country to all points of production and supply. Where traffic from a distance can compete with traffic nearer the market, the jyublic is interested In having the greater distance traille carried at mix's which will enable it to compete with the traffic which is nearer the market.</p> <p>18. Same.</p> <p>The advantageous position of one trader in having his works so placed that he has two competing routes is as much a circumstance to be taken into consideration as the geographical position of another trader, who, though he has not the advantage of competition, is situated at a point, on the line geographically nearer the market.</p> <p>19. Same.</p> <p>The fact that a lower rate, is charged from a more distant point by reason of a competing; route, which exists thence, is one of the circumstances which may he taken into account, under the jirovisiou of the second and third sections of the act to regulate commerce.</p> <p>20. Sams — Mileage Rates.</p> <p>Mileage, while a circumstance to he considered with all the -other facts and conditions, is by no means controlling;, or the most important.</p> <p>21. Disciuminatiox between ¡Summum and Winter Rates on Coal.</p> <p>The act to regulate commerce is not to be construed so as to abridge or take away the common-law right of the carrier to make contracts, and adopt proper business methods, further than its terms and recognized purposes require. A railroad company may lawfully charge lower rates on coal in the summer months in order to keep its coal cars and coal crews employed (luring that season of the year, jirovided such rates be offered in good faith to all persons upon equal terms.1</p>

At Law. On motion. Action on the case by Julius Stroheim and others against Joseph and Eudolph Deimel. Plaintiffs obtained judgment, and obtained- an execution against defendants’ bodies, under which the latter were arrested and imprisoned. Defendant Eudolph Deimel now moves to he discharged from imprisonment.

This was an action by the Prescott & Arizona Central Railroad Company against the Atchison, Topeka & Santa Fé Railroad Company and other railroad corporations and individuals for alleged unlawful discrimination in refusing to accept freight from the plaintiff company, on through bills of lading, while such freight was accepted and carried on through bills, under a contract with other railroad companies.

<p>In Error to the Circuit Court of the United States for the Southern 1 District of Yew York.</p> <p>This writ of error-was brought by the defendant in the circuit court, to review the alleged errors of the circuit judge upon the second trial to the jury of an action pending in the United States circuit court for the Southern district of Yew York, for an alleged libel which was published in the Yew York World.</p>

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

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

<p>This was an application by David Breen, who is held for extradition to Great Britain, for a writ of habeas corpus.</p>

<p>This was an indictment against Zeplianhi (3. Lamkin, for violating the statute prohibiting the mailing of obscene letters (Itev. Ht. § 9893, as amended by Hupp. Ret. Hi. p. 021.). The indictment was found in the district: court, from which it was transferred to this court. The case was heard on a motion to quash.</p> <p>The following are the letters on which the indictment was founded:</p> <p>Lei ter No. 1.</p> <p>Monday, (>:20 p. in.</p> <p>Miss Lena: Why did you fail lo meet me as yon promised? Seo me Tuesday at one and a half at corner Tveiny-Third and Ornee, and exiilaiu to me.</p> <p>Your Eriona.</p> <p>Letter No. 2.</p> <p>Miss Lena: Don’t get angry with mo for writing to you, but I think you llave treated me badly after you promised to moot me, and failed to do so. If you had not wanted to meet me, you could of told me so, and all would of been well. 1 have been a friend to you, and will still be so, but 1 want you to see me and explain or write to me and tell me the reason you did not keep your promise to meet me. You will please answer this note.</p> <p>Twenty-Third Street Friend.</p> <p>To A. Gbodfellow, care of T. B. Williams, corner Twenty-First and Marshall streets.</p> <p>March 13, 1896.</p> <p>If you don’t get this in time to answer, coma</p> <p>I will be at place any way.</p> <p>Saturday night.</p> <p>Letter No. ‘3.</p> <p>Miss Lena: I went at 7:45 to Twentieth and Marshall, and waited till 8 and after.' Now, if you intend to be a friend, you. meet me at 4 o’clock Monday, at Fourteenth and Broad, for this is the last time I shall ask you. I don’t want to be fooled again. If you want boys instead of my friendship, that is all right. You come, if you have to stay home from work. You shall be paid for the week’s time. Come sure. This is the last time I will ask you.</p> <p>Your Friend.</p> <p>Monday, 16th, 4 p. m., Fourteenth and Broad.</p> <p>Letter No. 4.</p> <p>Tuesday.</p> <p>Miss Lena: I said to you in my last note that I would not trouble you again, but as you did not think well enough of me to answer it, I will break my word to write this one, asking you if you wish my friendship to cease. If so, answer. I will not get mad, for 1 don’t think from the way you act you care much for it. You can’t say that I have not tried to be a friend to you. You will please do me a favor to destroy notes. You have envelope addressed. Answer to A. Goodfellow.</p> <p>Corner Twenty-First and Marshall, Care of T. B. Williams.</p> <p>Hoping you may do well with boy friends. You will find your error soon; mark my words.</p> <p>Letter No. 5.</p> <p>Tuesday Eve.</p> <p>Miss Lena: Why don’t you keep your promise, and meet me at Twenty-Third and Franklin to-day, as you promised? You must meet me Wednesday at 4 o’clock. A. Goodfellow.</p> <p>Care of T. B. Williams, Twenty-First and Marshall.</p> <p>These letters were set out in full in separate counts of the indictment. The counts upon letters 1, 3, and 5, each concluded as follows: “Meaning by the said letter to convey a proposition from a married man to an unmarried woman for a clandestine meeting for a grossly immoral purpose, against the peace,” etc. The counts upon letters 2 and 4 each concluded as follows: “Meaning by the said letter to convey a proposition from a ’married man to an unmarried woman for a clandestine correspondence for a grossly immoral purpose, against the peace,” etc.</p> <p>The indictment in this case should be quashed upon the following grounds:</p> <p>(1) The indictment does not allege that the defendant deposited or caused to be deposited for mailing or delivery anything declared to be nonmailable matter by section 3893, Kev. St. U. S., as amended by the act of congress of February 26, 1888, or by any law of the United States.</p> <p>(2) The indictment does not charge the defendant with any offense. The letters are set forth in full in the indictment, and show on their face that there is not one word in them which is obscene, lewd, lascivious, or indecent. The policy of the statute under which the indictment is found, and the purpose of the said act of congress, were to purge the mails of obscene, lewd, lascivious, and indecent matter, but the statute does not apply to cases which are not embraced in the language employed in the statute, or implied from a fair interpretation of its context, even though they may involve the same mischief which the statute was designed to suppress. U. S. v. Chase, 135 U. S. 255, 10 Sup. Ct. 756; U. S. v. Sheldon, 2 Wheat. 119; U. S. v. Wiltberger, 5 Wheat. 76; U. S. v. Morris, 14 Pet. 464; U. S. v. Hartwell, 6 Wall. 385; U. S. v. Reese, 92 U. S. 214. It is respectfully submitted that this case is not within the terms of the statute, and that the indictment must be quashed.</p> <p>This indictment is drawn under the act of February26,1888, which is amendatory of section 3893, Rev. St. U. S. Of the many questions that have risen out of the subject-matter of this statute since its origin in the act of June <8, 1872, only one is raised in the present issue, namely, whether the letters on which the indictment was found are obscene, lewd, or lascivious, or of an indecent. character. The last act on the subject (under which this indietmeuc is drawn) seems to have set at rest most of the questions formerly raised, but the question now presented, being a mixed question of law and fact, might well arise in every appeal to the statute, and is to be determined by the jury, under the guidance of the court, which will define the meanings of the terms employed, and explain the intent of the enactment. U. S. v. Harmon, 45 Fed. 418. ,</p> <p>History of the Law.</p> <p>The history of the legislation on this subject is traced in Re Walill, 42 Fed. 825. It is interesting to follow the gradual stages of the law, because at each successive amendment the law has become more general and sweeping in its character. “I think no one can follow the legislation from 1872 up to September 26. 1888, without being convinced that congress intended finally to purge the United States mail, and, as far as possible, prevent it from becoming a vehicle for the transmission of obscene, indecent, and lascivious messages.’" “It is said that the history of the legislation clearly shows that the congress determined to exclude iron' the mails writings of an impure and immoral character, and not such as was merely coarse, rough, or vulgar.” XT. S. v. Males, 51 Fed. 42.</p> <p>Definitions.</p> <p>The words of the statute have been successively defined as follows; “The word ‘obscene’ ordinarily means something that is offensive to chastity, something that is foul or filthy, and for that reason is offensive to pure-minded persons.” U. S. v. Clarke, 38 Fed. 733. “A standard dictionary says that ‘obscene’ means ‘offensive to chastity and decency; expressing or presenting to the mind or view something which delicacy, puriiy, and decency forbid to be expressed.’ ” U. S. v. Ilamion, 45 Fed. 417. “Obscenity is such Indecency as is calculated to promote the violation of the law and a general corruption of morals, * •' * includes what is immodest and indecent, and is calculated to excite impure desires, or to corrupt the mind.” U. S. v. Males, 51 Fed. 42.</p> <p>Tests of Obscenity.</p> <p>It has been held that the proper test to bo applied to the foregoing definitions will be found in such considerations as the following: “There is another large, class to be found in every community — the young and immature, the ignorant, and those who are sensually inclined --who are liable to be influenced to their harm by reading indecent and obscene publications. The statute under which this indictment is framed was designed to protect the latter class from harm, and it is a wholesome statute. Hence, in judging of the tendency of the publication to deprave or corrupt the mind or to excite lustful or sensual desires (which are the tests of obscenity and lewdness), you should consider the effect that the publication would have on the minds of that class of persons whom the statute alms to protect.” U. S. v. Clarke, 38 Fed. 734. “The test of obscenity is this: Where the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a. publication of this sort may fall.” and “where it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of the most impure and libidinous character. * * * Rather is the test, what is its probable reasonable effect on the sense of decency, purity, and chastity of society extending to the family, made up of men and women, young boys and girls, — the family, which is the nursery of mankind, the foundation rock upon which the state reposes?” U. S. v. Harmon, 45 Fed. 417. “The test is whether the tendency of the matter is to deprave and cornipt the morals of those whose minds are open to such influences, and inro whose hands such matter may fall. The writing need not use words which are themselves obscene, in order to be obscene. Courts have regard to the idea conveyed by the words used, in the writing, and not simply to the words themselves.” U. S. v. Males, 51 Fed. 42.</p> <p>Object of the Haw.</p> <p>As to the intention of congress, compare the gradual growth of the legislation on this subject and Ex parte Jackson, 96 U. S. 727. Congress may exclude what it pleases from the mails. Id. 732. “In excluding various articles from the mail, the object of tbe congress has not been to interfere with the rights of the people, but to refuse facilities for the distribution of matter deemed injurious to the public morals. All that congress meant by this act was that the mail should not he used to transport corrupting publications or writings, and that any one who attempted to use it for that purpose should be punished.” U. S. v. Males, 51 Fed. 42. “The purpose of the statute was to prevent the mails from being used to circulate matter to corrupt the morals of the people.” Ex parte Doran, 32 Fed. 76. “And while it may he conceded to the contention of counsel that the federal government, under its constitutional limitations, ought not to take upon itself the office of censor morum, nor undertake to legislate in regulation of the private morals of the people, yet congress may, as the basis of legislation of this character, have regard to the common consensus of the people that a thing is malum in se, — is hurtful to the public morals, — endangering the public welfare, and therefore deny to it as a vehicle of dissemination the use of its post office and post roads devised and maintained by the government at the public expense for the purpose of promoting the public welfare and common good.” U. S. v. Harmon, 45 Fed. 418.</p> <p>Application and Comparison.</p> <p>The foregoing definitions and principles have been recently in this state applied to a state of facts which seem identical with the case at bar. Compare the opinion and letters set out in the case of U. S. v. Martin (decided by Paul, District Judge), in 50 Fed. 920.</p>

<p>Habeas Cokbus — Defective Indictment.</p> <p>Where a prisoner is held to answer an indictment, he will not be discharged on habeas corpus, for insufficiency of the indictment, unless it affirmatively appears that the facts of the case cannot, under any possible statement of them, constitute a crime, and, further, that there are special circumstances, reouiring earlier judicial action than can be had, by demurrer or otherwise, through the ordinary course of procedure in defending against the indictment.</p>

<p>This is an appeal from a final decree of the circuit court for the district of Connecticut on pleadings and proofs, sustaining the validity of letters patent No. 471,982, enjoining defendant from infringing., the same, and directing the payment by defendant of $175 -as profits and damages by reason of acts of infringement by it committed. 64 Fed. 859.</p>

This was a bill in equity by Thomas De Q. Richardson and others against the American Pin Company for alleged infringement of letters patent No. 411,857, issued October 1, 1889, to Frederick E. De Long, for a hook for garments.

<p>This was a bill in equity for the infringement of a patent.</p>

<p>1. Patents — Infringement—Mechanical Equivalent.</p> <p>It is an essential rule, governing the application of the doctrine of equivalents, that not only must there be an identity of function between tbe two things, but that function must be performed in substantially the same way.</p> <p>2. Same — Ovens for Burning Offensive Matter.</p> <p>In furnaces for burning wet and offensive matter, an open-work grate, upon which the matter is dumped, and through which the liquids percolate, leaving only the solid matter to he consumed by fire, is not the mechanical equivalent of an oven which receives and holds both liquid and solid matter, until the one is evaporated and the other consumed.</p> <p>8. Same.</p> <p>The Engle patent, No. 872,305, held not infringed as to claims 1, 2, and 3.</p>

<p>1. Patents — Infringement—Improvements—Colorable Variations.</p> <p>Infringement is not avoided merely because tlie alleged infringing device is better, more useful, and more acceptable to the public, nor because, by ¡some colorable variation or expedient, it merely impairs or narrows tiio function and usefulness of the patented device.</p> <p>2. Samis — EvKHcistsc Apparatus.</p> <p>iNiiom No. 418.1S7, for improvements in elastic cord exei-eissisip; apparatus, cons ¡rued, and inUl valid and infringed.</p>

<p>1. Design Patents — Infringement Suits — Demurrer for Want of Invf.ntion —College Badge.</p> <p>The conception of a design for a college badge, of gold or other metal and enamel, triangular in shape, like a guidon, having on its face a combination of red and blue colors, in two horizontal stripes, and hearing the letters “TJ. P.” embossed thereon, is not so manifestly wanting in invention as to warrant the court in holding a patent therefor void, upon demurrer to the bill. 71 Fed. 970, reversed.</p> <p>2. Same.</p> <p>The Van Roden patent, No. 20,748, fór a design for a college badge, held not void, on its face, for want of patentable invention. 71 Fed. 970, reversed.</p>

<p>1. Patents — Assignment by Patentee — Estoppel.</p> <p>The foundation of the estoppel against a vendor patentee is the fact that he has received and retained a valuable thing in consideration of the statements contained in the application for, or specification of, the patent. Therefore, when an assignment is made pending the application for a patent, it is immaterial whether or not the vendor may have made representiitions to tlie purchasers concerning the probability of obtaining a patent. Nor is it material that the purchasers knew that the thing; sought •to be patented was old, when they understood that the patent was sought for a new application and use of it.</p> <p>2. Same — Void Claim: — Concealment.</p> <p>The fact that the claim of a pending application is void when an assignment is made, and lias been so held by the patent office, does not affect the estoppel of the vendor, in respect to an amended claim subsequently allowed, where the purchasers were ignorant of the rejection of the claim, and the fact was concealed from them by false statements of the applicant.</p> <p>3. Same.</p> <p>Payment, by tlie assignees of a pending a pintea t ion, of ilicir note for one of tlie deferred installments of purchase money, after the knowledge of the rejection of the claim, and tlie vendor's concealment thereof from idem, does not affect the estoppel against him.. They have a right to elect between the remedy by repudiation of tlio fraud, or by ratification and estoppel.</p> <p>4. Same — Eight op Assignees to Amend Application.</p> <p>An applicant for a patent assigned "all rights under said letters patent that may hereafter be granted upon and by virtue of said application and any extension or reissue of the same.’ At tlie time of the assignment the claim hud been rejected. Held, that Hie assignees had a right to amend to the same extent as from a surrender and reissue of a patent, and that the assignor was estopped in respect to a patent afterwards issued, and embracing such amended claims.</p> <p>5. Same —Estoppel against Corporation.</p> <p>The estoppel against the assignor of a patent operates against a corporation subsequently formed by him, and which is entirely owned and controlled by him. The corporation will be estopped, even if another party has a substantial interest therein, where it appears that at the time of acquiring his interest lie had known of the patent and its assignment, and had been associated with the assignor in the lino of business' to which the patent relates.</p>

This was a libel in rem by Peter Marmann against the William Windom to enforce an alleged lien for labor performed upon her as a machinist. The cause was heard on exceptions to the amended libel for want of jurisdiction.

<p>Marine Insurance — Subrogation—Collision—Admiralty.</p> <p>It is no reason for dismissing a lihel for collision that some of the underwriters who underwrote the vessel in fault also underwrote the other vessel, and that the damages to the latter vessel have been paid by the underwriters, since that does not render the proceeding a suit of parties against themselves.</p>

<p>1. Shipping — Pledge of Freight — Authority of Master.</p> <p>The master has no more authority to pledge unearned freight for money borrowed in a foreign port than to pledge the vessel herself, and in either case he has such power only when the necessities of the vessel require it.</p> <p>2. Same — Burden of Proof.</p> <p>Where a libel, based on a draft, by which the master undertook to pledge unearned freight for money borrowed in a foreign port, alleges the necessity of the vessel as a basis for the loan, and such necessity is denied by the answer, the burden is on libelant to show the necessity.</p> <p>8. Same -Indorsement of Draft Charged against Freight,</p> <p>Where one making a contract of affreightment directly with the owner, who was his neighbor, thereafter took by indorsement a draft for money borrowed in a foreign port by the master on the credit of the unearned freight, field, that it was his duty to make inquiry of the owner before parting with his money, and in default thereof he could not recover on the draft, where it appeared that there was no necessity authorizing the master to make the loan.</p>

<p>Appeal from tlio District Court of tho linked Estates for the Southern District of New York.</p>

<p>1. Circuit' Court or Appeals — Jurisdiction—Tucker Act.</p> <p>The circuit court of appeals has jurisdiction to review, on writ of error, a judgment rendered by the circuit court in an action against the United States, brought under the Tucker act of March 3, 1887 (24 Stat. 505).</p> <p>2. Admiralty — Salk op Vessel — Liability eor Proceeds.</p> <p>Where a vessel and cargo are sold hy order of the district court, in admiralty, and the proceeds deposited, in lieu of such vessel and cargo, not in the treasury of the United States, but in a bank, subject to the order of the court, the government is not responsible for any loss or diminution of the fund; and a decree for the restitution of the vessel and cargo to the owner carries only what may remain of the fund, and imposes no liability upon the government for any part of it which may have been lost.</p>

This was a libel by S. G. Fiske, master of the steam barge O. R. Whitney, against the steamer Emily A. Foote, to recover damages resulting from a collision. On the night of the 3d of January last, between 6 and 7 o’clock, when it had become quite dark, the steam barge O. R. Whitney, 109 tons, on a trip from Smithfield, on James river, to Norfolk, touched at the pier on Pinner’s Point below Norfolk, threw out her lines, and made temporarily fast at the wharf.

<p>Sur Motion to Remand.</p> <p>At the beginning of this suit in the state court a statement of claim was filed on July 29, 1895, and a copy thereof was served on the defendant on the same day. Under the practice there, the defendant was obliged to file all pleas in abatement within 4 days from this time, and also an affidavit of defense within 15 days. The first petition for removal was filed on October 5, 1895, and, after the case had been removed to the' circuit court, it was remanded for the want of the averment in the petition of proper facts to give jurisdiction. An affidavit of defense was then filed in the state court on February 3, 1896. The petition for removal under consideration was filed on February 8, 1896, and alleged that the suit was between citizens of different states; the plaintiff residing in Pennsylvania, and the defendant corporation being a citizen of Connecticut.</p>

This action was originally brought by the plaintiff, Edwin S. Barbour, below, in the Wayne circuit court, against the Wabash Railroad Company, to recover damages for an injury sustained by the plaintiff while a passenger oni the defendant railroad company’s train running from Chicago to Detroit.

<p>Appealable Decrees — Finality.</p> <p>In a creditors’ suit against a corporation and certain of its stockholders, who were also its mortgagees, a decree was entered, which, among other things, fixed the amounts due to both secured and unsecured creditors, and adjudged that certain creditors had liens superior to the mortgages; that the corporate property and franchises be sold to satisfy the same; that the individual defendants were holders of specified amounts of unpaid stock, and should pay the specified demands of the unsecured creditors. Held, That this decree was final and appealable as to these provisions, and would not be dismissed.1</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Houtliern District: of Ohio.</p> <p>This action was begun in the circuit court of the United States for the Southern district of Ohio, Uastern division, by .John R. McLaugmin, against the Baltimore & Ohio Railroad Company, to recover damages for an injury sustained by him while riding .upon a freight car of the defendant, with two horses which he had shipped from Bloominglmrg, Ohio, on the defendant's railroad, to Columbus. Ohio In the original petition the plaintiff made no averment as to his own citizenship, and simply averred .that the defendant eonrpany was an association of persons duly incorporated under the laws of The state of Maryland, and that on or before the 14th day of April, 1891, the defendant was in the occupancy of, and operating the Columbus, Cincinnati & Midland Railroad, a line of railroad running from Columbus, Ohio, in Franklin county, to Cincinnati, Ohio, and was engaged in the business of carrying passengers and hauling freight over the same for hire and rewaid. A demurrer was filed to this petition, for want of jurisdiction, which, by consent of counsel for plaintiff, was sustained, and leave was given to file an amended petition within five days from the entry. In that amended petition the averments as to jurisdiction were as follows: “Now comes John It. McLaughlin, plaintiff heroin, by leave first obtained, and for his cause of action against the said Baltimore & Ohio Railroad Company, defendant herein, says that the plaintiff herein is a citizen of the state of Ohio, resident at Columbus, Franklin county, Ohio; that the defendant is an association of persons duly incorporated under the laws of the state of Maryland; that on or before the 14th of April, 1891, the defendant was in the occupancy of, and operating, the Columbus, Cincinnati & Midland Railroad, a line of railroad running from Columbus, Ohio, and was engaged in the business of carrying passengers and hauling freight over the same for.hire and reward.” The amended petition was in every respect like the original petition, except the averment as to the citizenship of the plaintiff. The answer of the defendant admitted that it was a corporation, and organized as stated in said amended petition, and that the plaintiff was a citizen of the state of Ohio, as therein stated. The accident occurred by the giving way of a bridge or trestle across a creek. The negligence charged was that the bridge had not been maintained in a safe and proper condition, and that the timbers had been allowed to rot. There was a conflict of evidence as to what was the cause of the accident, the defendant claiming that it was a broken axle. This issue was submitted to a special finding of the jury. The third question submitted to the jury was: .“What was the cause of the wreck of the train on which the plaintiff was riding when injured? Ans. Defective trestle. Fourth. Was the defendant, its agent or servants, guilty of negligence causing the injury to the plaintiff? If yes, in what did such negligence consist? Ans. Yes. For want of proper care of trestle.” “Sixth. Was not the accident which caused the plaintiff’s injuries caused by a broken axle, which produced the derailment of the train, and the breaking down of the trestle on defendant’s road? Ans. No.” There was a further conflict of evidence upon the question whether the contract of shipment by McLaughlin with the station master at Bloomingburg was written or verbal. A written contract was produced, and McLaughlin denied that he had ever signed the firm name as it appeared signed to the contract, but said that the contract was entirely verbal. This question was submitted to the jury as follows: “First. AYas the contract of shipment in writing, or verbal? Ans. Verbal.” The averment of the amended petition with reference to the contract between the plaintiff and the railroad company was as follows: “That on the 13th day of April, 1891, the said plaintiff herein, for a certain reward paid to said defendant herein, shipped certain live stock, to wit, two horses, from Bloomingburg, Ohio, a station on said Columbus, Cincinnati & Midland Railroad, to Columbus, Ohio; that at the instance and request of said company and its agents, and for reward paid said defendant, and with their knowledge and consent, he, the plaintiff, took passage on the same car with, and in charge of, said stock.” The character of the contract, as alleged by the plaintiff, was shown by the following evidence of one of the plaintiffs: “The agent told me to put the horses on the car, and to get on the car and come to Columbus with the horses, and told me that he would make all the arrangements, and leave the papers in a box some place about the depot, so that the engineer and conductor, or whoever was supposed to do that on the train, would get them; and I, according to his instructions, loaded the horses, and about 11 o’clock at night, or probably midnight, I went down, and got on the car, and fixed one horse in one end of the car, and the other horse in the other end of the car, tied their heads towards each other, and their heels towards the end of the car; tied with ropes, so that the ropes would hold the horses in the center of the car; one rope to one side, and the other to the other side, — each side of the ear. I fixed a cot in the middle of the car, and laid down and went to sleep. AYhen the train came along I woke up, and went to the car door, and called to the conductor.” He further said that the contract was oral, and that he was to pay 11 or 12 cents a hundred pounds for the transportation of his horses from Bloomingburg to Columbus. It was in evidence that the conductor spoke to him, and knew of his presence ujpon the train. It was contended by the defendant below that the station agent had no authority to ship stock, or to permit drovers or others to accompany them, except under a special contract for the transportation of live stock, which the defendant claimed McLaughlin had signed. This contract provided, among other things, in its third clause: “The owner, shipper, or consignee is to load, transfer, and unload said stock at his risk, and will examine for himself the cars furnished for transportation, and all the incans used in loading and unloading, to see that they aro of sufficient strength, or of the right kind, .and in proper order and repair, and properly adjusted for the purpose; and said company is not to he responsible for any damage because of any defects in said cars, or in said means of loading and unloading. The owner, shipper, or his agent or agents in charge of said stock shall ride on the train on which the same are transported at their own risk of personal injury from any cause, hereby releasing said company from any claim or damage on account of such injuries arising while upon or about the trains. And it is further agreed that the shipper or owner will indemnify and hold harmless said company from all damages on account of such claims or demands.” One of the defenses relied upon was a settlement. The settlement was evidenced as follows:</p> <p>G. E. S.</p> <p>Loss and Damage.</p> <p>The Baltimore & Ohio Railroad Co.</p> <p>General Freight Department.</p> <p>Depot No. 57,537. To McLaughlin Bros. Address: Columbus, O. For loss oí 8 horses in shipment from BJoomingburg, O., to Columbus, O.,</p> <p>April 14, 1891.................................................................§850 00</p> <p>Amt. claimed.........................................................8500 00</p> <p>Amt. compromised lor........................................8350 00</p> <p>Amt. not allowed..............................................8150 00 8500 00</p> <p>Approved: Approved: Approved for</p> <p>F. Harnett, " • payment:</p> <p>.................Gen’l Freight Traffic Manager, W. T. Winchir,</p> <p>A. L. McDcmmas. Gen’l Auditor.</p>

<p>Practice — Tan cor Taking Exceptions.</p> <p>Exceptions to the rulings of a court in the progress of a trial cannot be considered by an appellate court, upon writ of error, if the. same were noi taken at the trial, and before the verdict was rendered, though the omission to do so was in conformity to a practice prevailing in the trial court, hut not embodied in a rule, by which exceptions were permuted to be taken after the close of the trial, aud included in the (till of exceptions as if taken at the proper time.</p>

<p>1. Comity — Courts of Concurrent Jurisdiction — Seizure of Property.</p> <p>The rule of comity which forbids the seizure of property, subject to the jurisdiction of one court, by another court of concurrent jurisdiction, applies only where there is actual or constructive possession of the property by the former court.</p> <p>?3. Attachment of Real Property — Effect—Possession of Court.</p> <p>The levy of an attachment upon real estate gives to the court from which the process issues neither actual nor constructive possession of the property, but only creates a. lien thereon in favor of the attachment creditor.</p> <p>3. Receivership — Leave to Sell under Execution.</p> <p>Where real property, under attachment upon process from a state court, is taken Into the possession of a receiver oí a federal court, leave should not be granted by the latter court to sell such property under execution in the attachment suit, if the property Is not ampio to meet all claims upon it, or if the condition of 1he title is such that the property would be likely to be sacrificed if sold before the title is cleared up by a decree.</p>

<p>This was a bill by the New York Security & Trust Company, Maria H. Hotchkiss, and George Burnham, suing in behalf of creditors and stockholders, against the Lombard Investment Company of Kansas, the Lombard Investment Company of Missouri, the Valley Loan & Trust Company, the Alliance Trust Company, and the City Real Estate Company. The Concordia Loan & Trust Company has also been made a party defendant. The bill alleged, among other things, that the defendant companies were insolvent, and prayed for the appointment of receivers, the winding up of their affairs, and the distribution of their assets.</p> <p>The Lombard Investment Company of Kansas was organized about the 1st of January, 1882, under the laws of the state of Kansas, with a capital stock which was increased at various times until it amounted to $1,875,000, all fully paid up. The company was engaged in the business of loaning money on real estate and all other kinds of securities; buying, selling, improving, and leasing real estate and all other kinds of property; issuing its own obligations of different kinds; buying and selling bonds, mortgages, and securities; and, generally, conducting any business incidental to or connected with the above-mentioned purposes, including a general trust and investment business. One of its main lines of business was dealing in farm property and city real estate in the South and West, loaning money on similar property, negotiating bonds'and mortgages given for such loans, with its own guaranty in some form annexed thereto, and in buying and selling various kinds of securities, including the sale of debenture bonds made by the company itself. In the course of this business, it became the owner and holder of large quantities of real estate in Western and Southern states and in the territories. The debenture bonds executed by the company itself were secured by a deposit of bonds, securities, and other property, as collateral, with trustees, under various trust agreements. This Kansas company continued in active business, in its own name and on its own behalf, meeting' its obligations and fulfilling its guaranties, until about August 1, 1890, when it sold and conveyed its entire property and interests of all kinds to the defendant (he Lombard Investment Company of Missouri. The latter company was organized under the law's of Missouri, with its chief place of business at Kansas City, and has a paid up capital stock of $4,000,000. It acquired and now owns and holds all the stock of the said Kansas company, and assumed all of its obligations of whatever kind, with the same force and effect as if it had originally, on its own behalf, entered into ¡he said obligations. The Missouri corporation was formed for substantially the same purposes as the Kansas company, and continued the business of the latter. Under trust agreements of the same general character as those made by the Kansas company, the Missouri corporation issued its own debenture bonds in large sums, and deposited securities and properties with the trustees. It also loaned money upon notes secured by real-estate mortgages, and sold such notes with guaranties requiring it, under certain conditions, to pay principal and interest in case of default by the borrower. Its business of various kinds became of vast extent, and at the time of the filing of the bill herein, there were outstanding, in loans guarantied, either by the Missouri company or the Kansas company, about $34,000,000. The defendants the Valley Loan & Trust Company, the Alliance Tn.sr Company, and the City Real Estate Company, were organized for the purpose of aiding in the business of the Lombard Investment Company of Missouri, which subscribed and paid up their stock in full. The defendant the Investor’s Company was another auxiliary company, though not originally organized by the Missouri corporation. All of the defendant, companies, except the Investor’s Company, were insolvent at the time the bill was filed. In accordance witli the prayer of the bill receivers were appointed as receivers for each and ail of the defendant companies, and, under ancillary bills, were also appointed in the various judicial districts of the Eighth circuit. On May 18, 1895, a final decree was entered referring the cause to Edward H. Stiles, • standing master in chancery, who, among other things, was directed, by the eighth paragraph of the decree, to examine the claims of all creditors and stockholders, and, as soon as practicable, “make such a report as shall fully show the respective rights of the different claimants.”</p> <p>The master accordingly made the following report, dated January 23, 1896:</p> <p>Report of Edward H. ¡¿tiles, Master in Chancery, upon the Classifications of Claims.</p> <p>The undersigned master in chancery, in the performance of the •duties imposed upon him by the final decree herein, respectfully begs leave to submit to the court the following report upon the classification of the numerous claims, of various character, which have been presented to him for allowance:</p> <p>The claims against the Lombard Company arise on direct obligations of the Lombard Investment Company in the shape of debenture bonds, and upon the guaranty of said company indorsed on bonds secured by real-estate mortgages, executed by borrowers to said company, and by the company subsequently sold and transferred to investors with the guaranty referred to. A portion of the bonds thus indorsed by the Lombard Company were executed by some one of the auxiliary companies named among the insolvent defendants, and then indorsed with guaranty, and sold by the Lombard Company. This was brought about by the title to certain properties sold under foreclosure proceedings of the Lombard Company being taken in the name of such auxiliary company, after which the auxiliary company would execute its bond, and mortgage securing it, to the Lombard Company, who- would sell the same on the market to some investor. In these cases the holder of such obligation would have a claim against the assets of both companies, or, in case the claim for any reason was not a provable one against the Lombard Company, it would nevertheless constitute a good claim against the assets of the auxiliary company executing the bond, and provable as such. Of the entire obligations, aggregating some $40,000,000, there have been, up to the present time, presented to the master for allowance, claims aggregating about $20,000,000.-</p> <p>In accordance with the suggestions contained in the eighth paragraph of the master’s report accompanying the first draft of the final decree, he has permitted everybody claiming to be a creditor, in the first instance, to present his claim and proofs, reserving the right to and with the purpose of subsequently classifying the claims and passing upon their validity and the respective rights of the different claimants. For this purpose, and as preliminary to the order of distribution and the final report of the master, showing the individual claims allowed, and the respective amounts allowed to each person, he has, as contemplated by the eighth paragraph of the final decree, prepared and now presents the following report showing the different kinds of claims, the classification thereof, and what in his opinion are, and what are not, claims entitled to distribution. In this way it can be definitely determined in advance) as is necessary to be done, as to how distribution shall be made, and upon what character of claims, according to the classification made. If the determination of the master upon any particular class is not satisfactory to any of the claimants embraced therein, they, or any one of them, may file with him exceptions to this report in respect thereto ■ within 30 days from the date hereof, and afterwards renew the same in court according to the practice in that behalf. Should exceptions thus filed be sustained, the classification herein made will be amended accordingly, and, if overruled, that recommended herein would stand. So that, in either case, through this mode, a comparatively early determination of the validity of eac' class of claims can be had, without waiting until after all the claims are in, after which the respective claims allowed, and the amount thereof, and the persons entitled thereto, will be designated and reported, and distribution ordered accordingly.</p> <p>As before suggested, the great bulk of the claims arise upon the guaranties hereinbefore mentioned. And these guaranties are so various in form as to give rise to variant questions respecting the liability of the Lombard Investment Company thereon, and as to whether certain claims arising thereunder are or are not entitled to allowance and distribution. Some of them are guaranties of collection, some of payment, some at maturity, and some within two years thereafter, some under extension agreements, some merely guarantying title, — that the mortgage securing the bond sold and assigned is a first lien; that the company will cause the property, to be kept insured, and look after and see that the taxes are paid, — some in one form, some in another. These guaranties are 10 in number and in the following form:</p> <p>Guaranty No. 1, Beginning Nov, 24. 1882, Loan 01.</p> <p>For value received, the Lombard Investment Company hereby guaranties —First, the collection of the principal ol' the within note; second, the prompt payment of the coupons attached thereto. In witness whereof, the Lombard Investment: Company has signed and delivered these presents by its-president this —— day of -, 188-.</p> <p>--; President.</p> <p>Guaranty No. 2.</p> <p>For value received, the Lombard Investment Company hereby assigns this bond to -, or order, and guaranties — First, the prompt payment of the coupons attached hereto; second, the collection of the principal'of the within bond. In witness whereof, the Lombard Investment Company has signed and delivered these iiresents by its - president this —-— day of -, 188“.</p> <p>—-, President.</p> <p>Guaranty No. 3, from about Sept. 1, 1886, to March 7, 1889, Ending with Loans 032,336 and 025,886.</p> <p>For value received, the Lombard Invesrment Company hereby assigns this bond or note to --•, or order, and agrees — First, to guaranty the payment of the coupons attached hereto at the maturity thereof; second, to collect at its own expense and to pay over the principal hereof at maturity, provided the same is paid by the maker; third, in event of default being made by the maker, to collect at its own expense, and to pay over the principal hereof, within two years from the maturity of the same, and to pay interest at the rate of six per cent, per annum, payable semiannually, until the principal is paid. In witness whereof, the said Lombard Investment Company has caused its corporate seal to he hereunto affixed, duly attested. Dated this-day of-, in the year of our Lord one thousand eight hundred and eighty-.</p> <p>Lombard Investment Company, by • — ~.</p> <p>Guaranty No. 4, from March 8th, 1889. This Guaranty Used on Utah and Tennessee Loans up to Jan. 7th. 1892.</p> <p>For value received, the Lombard Investment Company hereby assigns this bond or note to -, or order, and guaranties the payment of the coupons attached hereto at maturity. It also guaranties the payment of the principal hereof within two years after the same becomes due, and to pay interest thereon semiannually, after maturity, at the rate of six per cent, per annum until paid. The Lombard Investment Company reserves the right, when necessary, to redeem this note at any iime before maturity, at par and accrued interest. In testimony whereof, the said Lombard Investment Com-party has caused its corporate seal to be hereunto affixed, duly attested under the hand of its —-president, this - day of -, in the year of our Lord one thousand eight hundred and -.</p> <p>Lombard Investment Company, by -, President.</p> <p>Guaranty No. 5, Used with No. 4, for States Other than Utah and Tennessee, to Jan. Gj' 1892.</p> <p>For value received, the Lombard Investment Company hereby assigns a certain bond, made by--, for $•-, dated the-day of-, IS — , and due-day of- — , 18 — , and numbered ■-, to-, or order and guaranties the payment of the coupons attached hereto at maturity. It also guaranties the payment of the principal hereof within two years after the same becomes due, and to pay interest tlioreon semiannually after maturity at the rate of six per cent, per annum until paid. The Lombard Investment Company reserves the right, when necessary, to redeem this note, at any time before maturity, at par and accrued interest. In testimony whereof, the said Lombard Investment Company lias caused its corporate seal to be hereunto affixed, duly attested under the hand of its-president this-day of-, in the year of our Lord one thousand eight hundred and-.</p> <p>Lombard Investment Company, by -.</p> <p>Title Guaranty No. 6, Used on Unguarantied Loans, Beginning Nov. 1. 1S91, Loan No. 11,520.</p> <p>For value received, the Lombard Investment Company assigns to -, or order, without recourse, a certain bond or note, made by-, for $-, No. -, and guaranties to the holder hereof: First, (a) That the title to the real estate described in the mortgage or deed of trust securing the loan is perfect, (b) That the mortgage or deed of trust securing the same is a first lien on the property described therein, (c) That the said property lias been personally examined by a salaried examiner in the employ of this company, and that the amount of this loan is not over 40 per cent, of said examiner’s valuation of the property. Second, (a) That this company will, until this loan is paid, cause said property to lie kept insured for the amount stipulated in the mortgage or deed of trust, as additional security for the holder hereof, (b) That it will look after the taxes levied upon the property therein, and, if necessary, will purchase said property at tax sale for the benefit of the holder hereof. Third. That it will promptly attend to the collection of interest and principal of this loan for the owner hereof free of charge. In testimony whereof, the Lombard Investment Company lias caused its corporate seal to he hereunto affixed, duly attested under the hands of its -president this - day of - — , in the year of our Lord one thousand eight hundred and ■-.</p> <p>Lombard Investment Company, by -, President.</p> <p>Guaranty No. 7, Beginning Jan. 7, 1892, Loans 045,58!) and 051,!)!)!).</p> <p>For value received, the Lombard Investment Company hereby assigns a certain bond, made by -, for 8--. - day of -, 18 — , and due on the - day of--, 18 — , and numbered -, to - or order, and guaranties the payment of the coupons attached hereto at maturity. It also guaranties the payment of the principal hereof two years after the same becomes due, and to pay interest thereon semiannually after maturity at the rate of six per cent, per annum until paid. The Lombard Investment Company reserves the right, when necessary, to redeem this note, at any time before maturity, at par and accrued interest. In testimony whereof, the Lombard Investment Company lias caused its corporate seal to be hereunto affixed, duly attested under the hand of its-president, this -day of -, in the year of our Lord, one thousand eight hundred and ninety--. Lombard Investment Company, by--, President.</p> <p>Guaranty No. 8, Fob. 1,1892, Extension of Loans.</p> <p>The Lombard Investment Company hereby consents to the extension of loan No. - for 8-, made by ——, negotiated by the Lombard Investment Company, for a period of- years, and in consideration of sueli extension hereby agrees that its guaranty, executed on the back of said bond, shall remain in full force and effect until said loan is paid. The Lombard investment Company reserves the right, when necessary, to redeem this note, at any time before maturity, at par and accrued interest. In witness whereof, ihe said Lombard investment Company lias caused its corporate seal to be hereunto affixed, and duly attested under the hand of iis-----president, this--day of--, in the year of our Lord one thousand eight hundred and--.</p> <p>Lombard investment Company, by-----, President.</p> <p>Guaranty No. 9, Used on Loans Extended, Commencing .July 19th, 1892.</p> <p>The Lombard Investment Company hereby consents to tlie extension of loan No.----for ¥--, made by-, negotiated by the Lombard Investment Company for a period of--years, and in consideration of such extension hereby guaranties the payment of the principal of said loan two years after same becomes due, and agrees to pay the interest thereon semiannually at the rate of six per cent, per annum from----until paid. The Lombard Investment Company reserves the right, when necessary, to redeem this note, at any time before maturity, at par and accrued interest. In witness whereof, the said Lombard Investment Company has caused its corporate seal to bo hereunto affixed, and duly attested under the hands of its-president this ---day of--, in ihe year of our Lord one thousand eight hundred and ninety--.</p> <p>Lombard investment Company, by -, President.</p> <p>Guaranty No. 10, for All Paper Bent E. L. 1. Co. under New Agreement.</p> <p>Bond No. -, dated--day of--. 18 — , made by---, for $---, with interest at--per cent, per annum, due -. Por value received. the Lombard Investment Company, a corporation of the state of Missouri, hereby guaranties to ihe holder of the within-described bond, and his assigns,' the payment of the principal and interest of said bond according to its tenor. In witness whereof, the Lombard investment Company has caused these presents'to he signed by its president or vice president, and its corporate seal to be hereunto affixed, this---- day of —-, 18 — .-</p> <p>—---, President.</p> <p>The questions arising under these different forms of guaranty, and the several questions arising out of the situation respecting the validity and provability of claims, I think, after pretty mature consideration. should be disposed of as shown by the following classification and principles:</p> <p>I. Claims Which should be Allowed.</p> <p>Class No. 1 embraces claims which, at the time of the appointment of the receivers, furnished a present cause of action against the guarantor.</p> <p>Class No. 2 embraces sill direct obligations of the company at the date of said appointment, whether due or to become due at some time in the future.</p> <p>Class No. 3 embraces all claims, though not matured, or which did not; at the time of the appointment of the receivers, constitute a direct obligation, but which have since matured, or will have matured, or constitute such obligation, before any order of distribution is made.</p> <p>Class No. 4 embraces claims against any of the- auxiliary companies, based on bonds executed by such companies, as stated on the first page of this report. These claims are good as against both the assets of the Lombard Company and the auxiliary company executing the bond. If for any reason invalid against the Loin-bard Company, they are still valid against such auxiliary company. • Class No. 5 embraces certificates issued by the Subcompany Land Trust. These stand as audited claims by virtue of the eighth paragraph of the final decree.</p> <p>II. Claims Which should be Rejected.</p> <p>All other claims should be rejected. Among those rejected should be included: (1) Those arising on guaranties of collection, as distinguished from guaranties of payment, where no foreclosure proceedings or action against the maker has been commenced, and where the holder has not shown proper diligence in efforts to collect his claim from the maker of the note or bond, or out of'the mortgaged premises, securing the same. (2) Those not matured, and in respect to which there has been no default, in payment of interest or of any kind. (3) Where extensions of the principal obligation have been made by agreement between the holder and the maker, without the assent 'Of the Lombard Company or the receivers.</p> <p>III. Other Rules Governing.</p> <p>(1) Claims should be held to have matured, not only on their due date, but on default in payment, of interest or other preliminary obligation, when; by the terms of the contract, such default is made to'precipitate the maturity of the debt. (2) The date to which the interest on claims be calculated should be that of appointment of the receiver, September 18, 1893. (3) Collateral security, by mortgage or otherwise, held by the claimant, does not affect the claimant’s right to prove up for the full amount of his claim, nor does the fact that he has realized a part of his claim from the subjection of such collateral since the date of the receivership; but he is entitled, in such case, to receive distribution or dividends from the general estate until such dividends, added to the amount realized from his collaterals, are equal to, or sufficient to satisfy, his debt.</p> <p>The reasons upon which these classifications and conclusions are based, briefly stated as practicable under the circumstances, are as follows:</p> <p>I. In Respect to Claims That should be Allowed.</p> <p>Class No. 1. Those claims which, at the date of the receivership, furnished a present cause of action against the guarantor. This proposition is self-evident, and needs no argument to enforce it.</p> <p>Class No. 2. Those constituting direct obligations of the company at the date of the receivership, whether then due or to become due in the future. This proposition is also too plain to require argument.</p> <p>Class No. 3. Those not fully matured, or which, at the time of the appointment of the receivers, did not then constitute a present right of action, or a direct obligation, but which have since matured, or will have so matured, or constitute such obligation, before any order of distribution. In respect to this proposition, there is more difficulty of determina! ion. Much may be said on either side?. Against- it, it has been urged, on the one hand, by counsel invited to present their views, that considerations of convenience, and legal principles to he derived from certain adjudications called to my attention, are alike opposed to it; that no claim should be allowed, or receive distributions, which did not, at the date of the receivership, constitute either a present right of action, or a direct and certain obligation, and that all claims since matured, or becoming such obligations, should be unconditionally rejected. On the other hand, it has been urged with equal vigor that all claims, whether matured or unnurtured, and whether constituting a direct obligation or a mere contingent liability of the future, should he admitted to proof and allowed, the court reserving, in the case of an obligation purely contingent, sufficient of the proceeds of the sale to apply on such obligation in case it should in the end become certain; or else that a valuation should be made of the contingent liability, and the same allowed as a claim. Between these two extremes, in my judgment, the middle course should be pursued in the present case, pointed out in classification Xo. 3 of claims that should be allowed, and classification Xo. 2 of claims that should be rejected, as hereinbefore specified.</p> <p>Upon the exact point involved, whether a claim maturing or an obligation arising after the date of the receivership, and before any order of distribution, should be allowed, (here is (independent of those arising under the bankrupt acts and which are claimed not to apply! a sparseness of decisions hardly to be expected. But very few cases an* to be found directly in point. As opposed to the allowance of such claims the case of Chemical Xat. Bank v. Armstrong, 8 C. C. A. 155, 59 Fed. 372, has been vigorously pressed upon my attention. But a careful examination of that case will, show that the only question involved, and the only one decided, was that a person holding collateral security, or who has made collections therefrom, was, notwithstanding, and regardless of that, entitled to prove up for the full amount of his claim, and to receive dividends thereon until the dividends so received, when added to the amount realized from the collaterals, were sufficient to satisfy Mie claim, and the incidental one that interest on the claim should he calculated aud allowed to the date of the receivership only. That decision in respect to both of those principles has been followed by me in the present case, as shown by rules 2 and 3 of the rules governing proof of claims hereinbefore set out.</p> <p>But while these were the only points involved or decided, it is nevertheless energetically claimed that the logic of that decision is to the effect that the provability and right of allowance of a claim arising on a guaranty must be determined by its exact status at the date of the receivership. In other words, if mature or actionable, or constituting a direct obligation the day before the receivers were appointed, it is provable; if it become so the next day or the next week afterwards, it is not. The theory on which this'claimed deduction is based is that, on the very moment of declared insolvency, the assets, in the eye of the law, all belong to the creditors pro rata, and that only those are to be deemed owners whose claims are at that time matured or actionable. Conceding the correctness of the theory that the creditors became the pro rata owners of the assets upon the declaration of insolvency, I am nevertheless of the opinion, after a- careful consideration of that case in respect to the questions involved and decided, that it does not justify the deduction above claimed in respect to the present question, nor, as I have already said, was this question either decided or involved. Considerable has been said by counsel about the inconvenience of any other rule, and in that connection reference has been made to the remarks of the court on that subject in the case referred to. But it will at once be seen that the remarks referred to have no bearing whatever on the question at "issue here. What the court did say in that respect, and in reference to what considerations, is shown by the following quotation from the opinion:</p> <p>■‘The next question is. shall creditors of an insolvent national bank, in proving their claims, be allowed any credit for collections from collateral made subsequent to the declared insolvency and before proof of claim? If so, shall the claims, as proven be also subsequently reduced by collections from collateral made after proof and before dividends are declared, thus varying the basis of distribution from dividend to dividend? * * * There is one authority, and only one, that upholds the view that a creditor who has once proved his claim shall reduce that claim by all collections made before the declaration of each dividend, on the theory that he is entitled to a ratable distribution on his debt as it is at the time of distribution, and the collections made after proof of claim and before each dividend must reduce the debt pro tanto. The argument ab inconvenienti would weigh strongly against following this case. The rule it lays down would require a readjustment of the basis of distribution at the time of declaring every dividend, and would involve endless labor and confusion.”</p> <p>It is hardly necessary to say that these remarks and this doctrine have no application to this question, for the reason that they were made for the purpose of upholding the decision of the court to the effect that collections upon collateral made subsequent to the declared insolvency should not be taken into consideration for the purpose of reducing the claim,- — the very doctrine of this report, as I have before pointed out. Nor are they applicable for the further reason that no inconvenience or delay will accrue from the operation of the rule embraced in class No. 3 of claims recommended to be allowed, and which we are considering, viz.: That claims, though not matured, or which did not, at the time of the appointment of the receiver, constitute a direct obligation, but which have since matured, or will have matured, or constitute such obligation, before any order of distribution is made, should be allowed. If a series of dividends were to be declared, and the proofs and allowance of claims were to be kept open until after the order of distribution, and until the close thereof, the case would be radically different, and such a rale could not be sustained, if for no other reason than that of ab inconvenienti,. as it would involve the endless confusion and labor pointed out in the Chemical Nat. Bank case supra. But no inconvenience, delay, or embarrassment to the estate can arise from the application of the rule embraced in the classification referred to. This being the case, and as it is clear that a more perfect equity will be readied by refusing to make any arbitrary distinction between the rights of creditors whose claims matured yesterday or to-day, provided they are sufficiently matured before any order of distribution is made, it is my judgment that the classification made in that behalf is the proper one to be made. Hoyle v. Scudder, 32 Mo. App. 372; Hussey v. Crawford. 152 Mass. 596, 26 ST. E. 424.</p> <p>It has been suggested, and I think correctly, that the question as to what are and are not: provable claims, must be governed by the law of Missouri on that subject. And in this connection section 2513 of the Revised Statutes of Missouri, with which L am familiar, has been called to my attention. It provides that:</p> <p>“Upon the dissolution of any corporation already created, or which may hereafter be created by the laws of this state, the president and directors or managers of the affairs of said corporation at the time of its dissolution, by whatever name they may be known in law, shall be trustees of such corporation, with full powers to settle the affairs, collect the outstanding debts and divide the moneys and other property among the stockholders, after paying the-debts due and owing by such cerposation at the time of its dissolution, as far as such money and property will enable them; 1o sue for and recover such debts and properly by the name of the trustees of such corporation, describing it by its corporate name, and may be sued by the same, and such trustees shall be jointly and severally responsible to the'creditors and stockholders of such corporation to the extent of its property and effects that shall have come into their hands.”</p> <p>It is claimed, under the doctrine of Association v. Kellogg, 52 Mo. 583, that bankruptcy is equivalent to dissolution, and that the appointment of,the receivers in this case operated as such. And upon this it is suggested that, under the section of the statute above quoted, the assets are to be distributed, in the language thereof, among “the debts due and owing by the corporation at the time of its dissolution.” The point is made that all claims, of whatever character, not then absolutely due and owing, are not entitled to recognition. I am of the opinion that, considered alone, this statute will not bear that construction. If this he not so, then the directors who are made trustees might properly pay over to the stockholders all moneys left in their hands after paying the claims already matured, notwithstanding there were other and perhaps the most important of all its obligations still outstanding, and which only the mere lapse of time was wanting to make an absolute obligation. It would serin that such a doctrine would constitute a standing inducement to dishonest stockholders and directors to work a dissolution by insolvency or ceasing to do business, when the bulk of the corporate indebtedness was not yet mature. Rut. when this statute is taken along with the one relating to assignments for the benefit of creditors, which, I take it, is the one that controls the present case, the matter is placed beyond question. This statute (section 424, Rev. St. Mo. 1889) provides that the assignment shall be “for all the creditors of.the assignor in proportion to their respective claims.” And under this section it is expressly held by the court of appeals, in the case of Hoyle v. Scudder, 32 Mo. App. 372, that:</p> <p>“A claim of unliquidated damages for breach by a lessee of his covenant to deliver up the premises at the end of the term ‘in as good condition and order as the same are now in’ may be proved and allowed before the lessee’s general assignee as the demand of a creditor, if the lease was made before the assignment, and the damages have matured in time for adjustment and allowance without prejudice to the winding up of the estate.”</p> <p>The opinion was delivered by Judge Seymour D. Thompson, not only a distinguished jurist, but one of the very ablest legal authors of the time. In the course of it he gives the following reasons for his conclusion:</p> <p>“The statute relating to assignments nowhere defines or limits the demands which shall be provable before the assignee. It merely recites (llev. St. § 442) that the assignee shall, at a stated time and place, ‘proceed publicly to adjust and allow demands against the estate and effects of the assignor.’ By the next section, he shall ‘commence the adjustment and allowance of demands against the trust fund’ at'a given hour, and continue the same a stated length of time, and in the same section there is a proviso saving the rights of ‘any creditor who shall fail to lay his claim before said assignee during said term, on account of sickness,’ etc. The next section empowers the assignee to examine witnesses on oath touching any claim exhibited to him for allowance. In other sections the words ‘demand’ and ‘claim’ are used, indifferently to describe the debts which the assignee shall allow. Section 424, defining the purposes of voluntary assignments for the benefit of creditors, provides that they shall be ‘for the benefit of all the creditors of the assignor in proportion to their respective claims.’ A strict and technical construction of the statute would probably result in the contention, which has been ably urged on behalf of the assignee in this case, that a demand which does not exist at the time when the assignment is made, in any acknowledged or liquidated form, and which depends upon a contiugency which may never happen, and which, when it does happen, presents itself in the form of an unliquidated demand, is not within the terms of the statute. We have been cited to two cases' in other jurisdictions which ujjhold this view. In re' Ohurch (R. I.) 14 Atl. 874; In re Adams, 67 How. Prac. 284. It is not denied by the learned counsel for the appellant that the statute embraces debts which were contracted by the assignor prior to the assignment, but which were by the terms of the contract payable at a date subsequent thereto; in other words, debts which fall within the descriptive words used by the civilians, — “debitum in prsesenti, solvendum in futuro.” But, although the demand preferred in this case arose out of the breach of a contract which the assignor had entered into before the date of the assignment, .which contract might possibly not-be broken at all, and because, when broken, it gave rise to a cause of action sounding in damages, and not to a liquidated demand, it is supposed that it is not within the statute. Moreover, it is forcibly argued that, when the assignment is made, the assigned property is, by the force of the statute, impressed with a trust for the benefit of those who are creditors at that time, and not for the benefit of those who, by some subsequent breach of contract, wholly contingent and conjectural at the time of the assignment, become, in a sense, creditors of the assignor thereafter. We do not seek to disparage the force of this reasoning, but we are nevertheless of the opinion that a claim of this nature comes within the equity of the statute. Why should it be excluded? It is, in point of justice and conscience, confessedly, a meritorious claim, provided the damages which the claimants contend for have been made good by their evidence. The reason given by the court of common pleas of the city of New Tork in Re Adams, supra, for disallowing a somewhat analogous claim, was that the allowance of Claims of such a nature, maturing upon future contingencies, would have the effect of keeping the administration of the assigned estate open for an indefinite length of time. This argument can have no force, when applied to a claim, such as the present, which matured and was presented to the assignee for allowance in time to be allowed and paid out of the assets without in any wise delaying the administration. We agree that the possibility of claims of the present kind maturing at some indefinite period subsequent to llie assignment ought not to operate to delay the administration of the assigned estate, but where, as in this case, they do mature in time to be presented to the assignee, to be proved up before him, and to receive their ratable share of the proceeds of the sale of the assigned property, without delaying ihe administration, we see no reason, growing out: of the language or policy of the statute, why they should not be allowed and paid.”</p> <p>It seems to me that this decision, with the reasonings upon which it is based, construing' the very statute which must govern the provability and allowance of claims against an insolvent estate, absolutely disposes of the question respecting the correctness of classification No. 3 of claims to be allowed. A difficulty arises, however, in relation to the application of this classification to some of the guaranties of payment, qualified by what we will call the “twovears provision” contained in guaranties Nos. 3, 4, 5, 7, 8, and 9, hereinbefore set out. (1) In respect to some of these guaranties, no default has occurred in the principal obligation. (2) In respect to, some, default in the principal obligation had occurred, and the two years had expired before the receivers were appointed. (3) In respect to others, default occurred before, but the two years did not expire until after, the appointment of the receivers. (4) In respect to some others, both default, and the expiration of the two years have occurred since such appointment. (5) And in respect to still others, the default has occurred since the appointment, but the two years have not fully expired. This condition of affairs calls for a construction of the guaranty referred to as applied to each of the particular facts stated.</p> <p>As preliminary to this consideration, it may properly be remarked that these contracts, in whatever form phrased, were made by the Lombard Company for its own benefit. It was organized to do that kind of business, and the vast amount of securities it was abb» to dispose of was to a very great extent, if not almost entirely, due to the influence of the company’s guaranty, the ordinary investor doubtless believing that the company was absolutely held to the extent of its assets to pay all of its obligations. The money paid by the investor went info the company’s treasury for its own benefit. In this respect it differs from (he ordinary obligation of a guarantor, which is generally executed as an accommodation to and for The benefit of the maker. It is rather one that comes within the principle laid down by Daniel on Negotiable Instruments (section 17(53), where it is said:</p> <p>“There are cases in which the guaranty is really to answer for one’s own debt, though having the appearance of a promise to answer for another.”</p> <p>In view of these facts and principles, we will now consider the guaranty in question as applied to the different state of facts above stated: First, as to those where no default of any kind has occurred in respect to the principal obligation, it is clear to my mind that claims of this kind should not be allowed. They are purely contingent. No default lias occurred, and, under the circumstances, it is not likely there will be. I have accordingly classed these claims as nonprovable ones in classification No. 2 of claims which should be rejected. Second, as to those in respect to which default either in the payment of the interest or principal had occurred, and the two years had expired, before the receivers were appointed. These, to my mind, are clearly provable claims, and they are designed to be embraced in class No. 1 of claims that should be allowed. Third, as to those where the default occurred before, but the two years did not expire until after, the appointment of the receivers. In accordance with the reasonings and conclusions hereinbefore contained, I am of the opinion that these claims are provable, and I have accordingly embraced them in class No. 3 of claims which should be allowed. Fourth, as to those where both the default and the expiration of the two years have occurred since th,e appointment of the receivers. Upon the same reasoning, it is my judgment that these should be regarded as provable claims, and they are accordingly embraced in said class No. 3 of claims which should be allowed. Fifth, as to those where the default has occurred since the appointment of the receivers, but the two years have not fully-expired. It is upon this class of claims, arising under said guaranty of payment, that the greatest difficulty, to my mind, arises. If these claims remain purely contingent, then, in my judgment, they are not entitled to allowance. On the other hand, if the obligation of the guarantor became direct and absolute on the failure of the maker to pay at maturity, and the legal effect of the two-years stipulation was merely to' defer the time of actual payment until the expiration of that period, then the obligation ceased to be contingent and became direct and absolute.</p> <p>A brief reference to authorities with regard to the character and office of the guaranty, when executed by the payee of an obligation, will throw some light on the inquiry: Daniel, Neg. Inst. S 1762, says:</p> <p>“There are cases in which the guaranty is really to answer for one’s own debt. * * * Where one who sells a note guaranties its payment, the guaranty is an original undertaking, and need not even be íd writing.”</p> <p>Again, and upon the same subject, the same author says (section 1761):</p> <p>“Where the payee or holder of a note transfers it and guaranties the payment of it, the consideration moves directly to him for his own beneiit. It is really his own debt that he promises to pay in ¿ particular way', and not the debt of another. And the clause of the statute respecting the promise or engagement to pay a debt of another has no application to it.”</p> <p>Again (section 1769):</p> <p>“If A. guaranties expressly' to pay the note of B. to G., he becomes absolutely liable for its payment upon B.’s default.”</p> <p>Dickerson v. Derrickson, 39 Ill. 575; Allen v. Rightmere, 20 Johns. 365.</p> <p>In Gage v. Bank, 79 Ill. 62, the makers of a promissory note transferred it by the following indorsement: “For value received we guaranty the payment of the within note at maturity.” Held that oadi was absolutely liable as a principal, and not entitled to any notice. The court says:</p> <p>“It ivas a joint and several undertaking to pay tlie note at maturity. They ivere both principals, and both and each bound to pay the note. As between them and the maker of the note, the holder was under no obligation ro demand payment of the maker, and, on his default, to notify the guarantors, for they undertook to pay at all hazards. It was their duty, and of each of them, on its maturity, to go to the holder and take it tip. The holder was under no legal or moral obligation to hunt them and make demand. * * This is not a case of principal and surety, but it is a, primary, positive undertaking that they will pay*the note at maturity.”</p> <p>In Allen v. Rightmere, 20 Johns. 365, the indorsement by the payee of the note was in the following form: “Ifor value received I sell, assign, and guaranty the payment of the within note,” etc. The chief justice, in delivering the opinion of the court, said:</p> <p>“Proof of demand and notice of nonpayment wore not necessary. The defendant’s engagement is, in effect, that Toan should pay the note or that he would pay it. It is the duty of the debtor to seek tlie creditor, and pay his debt on the very day it becomes due. As regards the maker- of the note, and to render him liable, no demand is necessary. A demand of payment is necessary only to fix an indorser or surety, whose undertaking is conditional. An indorser does not absolutely engage to pay. It is a. conditional undertaking to pay, if the maker of tlie note does not, upon being required to do so, when the note fails due, and upon tlie further condition • hat the indorser shall be notified of such default,. Tlie defendant, insists iliat ho stands in the situation of an indorsin’ merely, but such is not the fact. The undertaking here is not conditional. It is absolute! that the maker shall pay the note when due, or that the defendant will himself pay it.”</p> <p>“A guaranty of payment of a note is an absolute, unconditional undertaking on the part of the guarantor that the maker will pay the note when due, or that ilie guarantor will pay the debt at maturity if the maker does not; and tlie contract: of tlie guarantor is broken upon the failure of the maker to meet this obligation.” Baylies, Sur. p. 17, subtit. “Guaranties of Payment and of Collection.”</p> <p>Allen v. Rightmere, 20 Johns. 365; Day v. Elmore, 4 Wis. 190; Evans v. Bell, 45 Tex. 553; Gage v. Bank, 79 Ill. 62; Lent v. Padelford, 10 Mass. 230; Peck v. Frink, 10 Iowa, 193; Heaton v. Hulbert, 3 Scam. 489.</p> <p>In view of the doctrine thus laid down, and under the facts of rhis case, it is my opinion that, upon default of the maker, the obligation of the company, as guarantor, to pay, ceased to be collateral and contingent, and became 'direct and absolute, with the right reserved that it should not be compelled to pay until the iwo years had expired, but with the privilege that it might pay at any time within that period. In other words, the guaranty should toe construed, in legal effect, the same as if reading: The company guaranties the payment of the principal on the following conditions: (1) That the maker fail to pay at maturity; and (2) that the company, in case of default of the maker to pay at maturity, shall not lie compelled to pay until the expiration of two years thereafter, but have the privilege of paying at any time it desires to within that period. For these reasons I think those claims, viz.: Those where default has been made toy the maker, tout the two years has not fully expired,. should be treated as direct obligations, with deferred time of payment, and be embraced in class No. 3 of claims to be allowed. The case of Manufacturing Co. v. Gittings, 3 C. C. A. 422, 53 Fed. 45, is cited as opposed to this view. The point presented and decided in that case was that a claim arising on a guaranty was not provable against the estate of the insolvent guarantor where it appeared that the principal obligation would not fall due for many years, and that no default in payment of interest coupons or of any lrind had occurred. The court held that the claim was purely contingent, and so I have held in reference to just such claims, and embraced them in class 2 of claims that should be rejected. The arguendo statement in the opinion, that there must not only be a cause of action, but a right of action, and that claims not due have no standing, cannot, it seem,s to me, be taken in a literal sense, — certainly not as applied to the insolvent laws of this state, which I take it, control the rights of the parties in the present case. For, if so, then obligations of the highest and most meritorious character would' be excluded, if not fully matured. I do not understand that such a doctrine is contended for in this case. If it prevailed, it would exclude the larger part of the debenture bonds, and all of the unmatured direct obligations of the company. I think the true rule is that, if the cause is either actionable or capable of liquidation, it is sufficient.</p> <p>Class No. 4. Claims based on bonds executed by any of the auxiliary companies. For the reasons pointed out on the first page of this report, these claims are clearly allo-wable as hereinbefore specified.</p> <p>Class No. 5. Claims embraced in Subcompany Land Trust. The proving of these claims is provided for by the eighth paragraph of the final decree.</p> <p>II. Claims That should be Rejected.</p> <p>Class No. 1. Those arising on guaranties of collection, — as distinguished from guaranties of payment, — where no foreclosure proceedings or action against the maker has been commenced, and where the holder has not shown proper diligence in efforts to collect his claim from the maker of the note, or out of the mortgaged premises securing it. It is clear to my mind, under the authorities, that claims of this character are not entitled to allowance. Between guaranties of collection and guaranties of payment a broad distinction is taken. “A guaranty of payment of a note is an absolute, unconditional undertaking, on the part of the guarantor, that the maker will pay the note when due, or that the guarantor will pay the debt at maturity if the maker does not, and the contract of the guarantor is broken upon the failure of the maker to meet his obligation. A guaranty of collection is an entirely different contract. It is sometimes defined as an undertaking to pay a debt on condition that the person to whom the guaranty is given shall diligently prosecute the principal debtor without avail, or that the debt will be paid if the principal be prosecuted with reasonable diligence, or that the debt is collectible by due course of law.” Baylies, Sur. pp. 17, 18, tit. “Guaranties of Payment and Collection”; Voorhies v. Atlee, 29 Iowa, 49; Dewey v. Investment Co. (Minn.) 50 N. W. 1032; Durand v. Bowen (Iowa) 35 N. W. 644; Bouche v. Louitit, 104 Cal. 230, 37 Pac. 902; Crane v. Wheeler (Minn.) 50 N. W. 1033; Barman v. Carhartt, 10 Mich. 340; McMurray v. Noyes, 72 N. Y. 523; Insurance Co. v. Wright, 76 N. Y. 445; Allison v. Waldham, 24 Ill. 132. “A guaranty of collection only guaranties the collectibility or goodness of the note, and does not amount to an absolute guaranty of! payment, but only that the guarantor will pay it in the event that the holder shall test the collectibility or goodness by regular prosecution of a suit against the maker, and shall be unable by reasonable diligence to enforce its payment. He is only deemed a conditional guarantor of payment.” Daniel, Neg. Inst. § 1769. “In some states, the commencement of an action against the maker of a promissory note, and its prosecution to judgment and execution without avail, are conditions precedent to the right to maintain an action against one who has guarantied its collection, without regard to the question of the maker’s solvency. In all, or nearly all, of the other states, a suit against the maker of the note is not required before proceeding against the guarantor, if the maker of the note is, at its maturity, wholly and clearly insolvent, so that an action against him would be a mere idle ceremony. But nothing but such insolvency will, in any state, excuse a failure to proceed against the principal debtor before action against a guarantor of collection.” Baylies, Bur. p. 139, and the authorities above cited. A fortiori would the rule apply where the guarantied obligation is secured by mortgage. The collateral would have to be exhausted. Xothing can be better settled than these principles. They are embraced in said class Xo. 1 of claims that should be rejected. The guaranties of collection are embraced in guaranties Xos. 1 and 2. Guaranty Xo. 3, which seems to he a hybrid of a guaranty of collection and of payment, I hold to be, in legal effect, a guaranty of payment.</p> <p>Glass No. 2. Those not matured, and in respect to which there has been no default in payment: of interest or of any kind. Claims of this character are too purely contingent for allowance. This, as we have already seen, was the very point decided in Manufacturing Co. v. Gittings, 3 C. C. A. 422, 53 Fed. 45.</p> <p>Class Xo. 3. Those in respect to which extension of time of payment of the principal obligation has been made by a new and valid agreement between the holder and the debtor. Xo argument is needed to enforce this proposition. The contract has been changed, and the guarantor is discharged.</p> <p>III. Other Rules Governing.</p> <p>Rule 1. Claims should be held to have matured, not only on their due date, but on default of the maker in payment of interest or other preliminary obligation, when, by the terms of the contract, such default is made to precipitate the maturity of the debt. I submit that this proposition is correct, and should be applied in the present case. Bee copy of bonds containing the provision referred to at close of report.</p> <p>Rule 2. The date up to which the interest on claims' should be calculated should be that of the appointment of the receivers on September 18, 1893. This rule is based both upon reason and authority. -If the rule were otherwise, the claimant who delayed .until the last to file his claim would have his negligence rewarded by the increased interest which he would receive. Interest does not run, as against the estate, after the assignment or declared insolvency, unless there are funds sufficient on hand to pay all of the demands and accrued interest; otherwise, interest is to be allowed up to the time of the declared insolvency only. Chemical Nat. Bank v. Armstrong, 8 C. C. A. 155, 59 Fed. 372; White v. Knox, 111 U. S. 784, 4 Sup. Ct. 686; Richmond v. Irons, 121 U. S. 27, 64, 7 Sup. Ct. 788; National Bank of Com. v. Mechanics’, etc., Bank, 94 U. S. 437; Bank v. Peirce, 156 Mass. 307, 31 N. E. 483.</p> <p>Rule 3. Collateral security, by. mortgage or otherwise, held by the claimant, does not affect the claimant’s right to prove up for the full amount of his claim; nor does the fact that he has realized a part of his claim from the subjection of such collateral, since the date of the receivership; but he is entitled in such case to receive distributions or dividends from the general estate, until such dividends, added to the amount realized from the collateral, are equal to or sufficient to satisfy his debt. Upon this proposition there is some conflict of authorities, but the great volume of them is in its support. This was the exact point decided in the elaborately considered case of Chemical Nat. Bank v. Armstrong, 8 C. C. A. 155, 59 Fed. 372, in which all of the authorities on the subject are collated and shown by the overwhelming weight to sustain the doctrine therein announced. To the same effect see Tod v. Land Co., 57 Fed. 47; Lewis v. U. S., 92 U. S. 618; People v. E. Remington & Sons, 121 N. Y. 328, 24 N. E. 793; Fifth Nat. Bank v. Clinton Circuit Judge, (Mich.) 58 N. W. 648; Bank v. Haug, 82 Mich. 607, 47 N. W. 33; In re Bates, 118 Ill. 524, 9 N. E. 257; Kellogg v. Miller, 22 Or. 406, 30 Pac. 229; Bank v. Byles, 67 Mich. 296, 34 N. W. 702; Walker v. Baxter, 26 Vt. 710; Allen v. Danielson, 15 R. I. 480, 8 Atl. 705; Miller’s Appeal, 35 Pa. St. 481; In re Miller's Estate, 82 Pa. St. 113; Bank v. Kendrick (Tenn.) 21 S. W. 1070. It seems to me that the doctrine is so overwhelmingly settled by the authorities as not to be open to serious question.</p> <p>All of which is respectfully submitted.</p> <p>Addenda.</p> <p>The following copy of one of the bonds will show the provision relating to the precipitation of the maturity of the obligation arising from nonpayment of interest, hereinbefore referred to:</p> <p>Real-Estate First Mortgage.</p> <p>( Negotiated by the Lombard- Investment )</p> <p>No............] Company, 13 Sears Building, Boston, Mass. [• S..............</p> <p>( Western Office, Kansas City, Mo. )</p> <p>Security Fidelity</p> <p>Coupon Bond.</p> <p>On the first day of- eighteen hundred and - for value received, -promise to pay to the order of the Lombard Investment Company, the principal sum of-dollars, with interest thereon at the rate of --per cent, per annum from date until paid, said interest being- payable - annually according to the tenor of -• interest coupon notes, one being for ----dollars and--each for - dollars, bearing even date herewith; .both principal and interest coupons payable at the western office of the Lombard Investment Company, Kansas City, Missouri. And if default be made in the payment of any interest coupons or any part thereof at the time and place aforesaid, then said principal stun shall at once become due and payable. This bond and the interest coupons thereto attached are secured on real estate by a deed .of trust of eren date herewith, duly recorded in the county of- and state of Missouri.</p> <p>This bond shall bear interest at the rate of ten per cent, per annum, payable semiannually from maturity, or after default of any of the conditions mentioned herein, and in the deed of trust securing the same until paid Dated at Kansas City, Missouri, on the--clay of--, 18 — .</p> <p>The following is a specimen of one of the debenture bonds referred to on page 1: No. —--- Series —■—</p> <p>United State's of America.</p> <p>Six per Cent. Ten-Year Debenture.</p> <p>Capital ,K000,000.</p> <p>The Lombard Investment Company, for value received, hereby promises to pay to bearer, or. in cast' of registration, to the registered holder hereof, the sum of two hundred dollars, on the first day of Seprcmber, 1990, with interest thereon at the rate of six per com. per annum, payable semiannually, on the first days of March and September, in each year, on the present ¡ilion and surrender of the interest coupons hereto attached, both interest and principal playable at the office of The Lombard Investment Company, in Boston, Massachusetts. New York. N. Y„ or Philadelphia, Pennsylvania.</p> <p>The said Lombard Investment Company reserve's the right to redeem this debenture at the maturity of any coupon on or after September 1st, 1895.</p> <p>This debenture is No.----of series -of similar debentures numbered from fifty-live hundred and sixty-one to fifty-seven hundred and fifty, inclusive', of various denominations, amounting in the aggregate to one hundred thousand dollars.</p> <p>To secure the payment of these debentures, the Lombard Investment Company has deposited with B. Lombard, James L. Lombard and II. W. L. Bussell, Trustees, certain collaterals, amounting- in the aggregate to one hundred and five thousand dollars; said collaterals being held by said trustees as a guaranty fund for Cue payment of these bonds, and are subject to the inspection of the holders of the same at all reasonable times.</p> <p>This debenture is the direct obligation of the Lombard investment Company, and is not negotiable until ¡he certificate on the reverse hereof has been signed by the said trustee's.</p> <p>In testimony whereof, the Lombard Investment Company has caused these presents to be executed by its president this first day of September, 1890, with the seal of the companj affixed.</p> <p>--, President.</p> <p>-----------, Assistant Treasurer.</p>

<p>Equity — Spoliation op Documents — Estoppel.</p> <p>In a suit for tlie specific performance of a contract for tlie sale of lands, which the defendant had given the plaintiff an option to purchase, it appeared from all the evidence, except as affected by two letters offered by the plaintiff, that the plaintiff had abandoned the option early in 1894. The two letters, purporting to be dated in October and November, 1894, tended to show that negotiations about the option were then pending between plaintiff and defendant, but such letters bore upon their face, plain indication that their dates had been changed from 1893 to 1894, and the circumstances tended to show that they were written in 1893, which defendant contended was the fact. Meld that, if it were found as a fact that the dates of the letters had been changed by the plaintiff to make a case for himself, he would be thereby barred from all relief, but that, in any event, upon the facts, the letters not having actually been written in 1894, the defendant was entitled to judgment.</p>

<p>1.. Taxation ob" Railroads — Lease of Road — Liability of Lessee.</p> <p>The acquisition by one railroad company of the control and operation of the road and property of another under a lease, after the expiration of seven months of the current fiscal year, and after an assessment and levy, which subjects such property to a lien for taxes from the beginning of such fiscal year, does not of itself render the former company primarily liable, as a debtor of the state, for the amount of such tax.</p> <p>2. Same — Construction of Lease.</p> <p>A covenant by the lessee in a railroad lease that it “will pay, as operating expenses, all taxes and assessments * * *• which may be lawfully levied or assessed” upon the demised property, is not an assumption of liability for taxes already assessed and levied, and constituting a lien from the beginning of the fiscal year in which the lease is made,</p> <p>á. Same — Implied Contract.</p> <p>if there is any contract implied by law whereby one railroad company, acquiring the control of the property, income, etc., of another, becomes directly liable for taxi's already due. and constituting a lien thereon, for the fiscal year then current, such liability is only in proportion to the pan. of the fiscal year remaining after assumption of such control.</p> <p>4 Judgment — Estoppel.</p> <p>Tlie estoppel arising from the results of litiga lion does not apply in a subsequent suit in which some of the parties are different.</p>

<p>Appeal from the Circuit Court of the United Btates for the tíouíhem Division of the Eastern District of Tennessee.</p>

<p>1. Railroad Mortgages — Payments to Preserve Property — Priorities.</p> <p>When third parties, at the request and for the benefit of the trustee in a railroad mortgage, have entered into obligations for the purpose of preserving the mortgaged property for the benefit of the bondholders, and keeping it a going concern, and are subjected to a liability arising out of such obligations, such liability may properly be discharged out of the income or corpus of the mortgaged property for the benefit of which it was incurred.</p> <p>2. Same.</p> <p>Certain property of a railroad company, which was covered by mortgages, was attached by a creditor wbo had secured a judgment against the company. Thereupon, in order to preserve the unity of the property, a.nd keep the railroad a going concern, the trustee in the mortgages caused such property to be replevied, and bonds to be given, with sureties, for the return of the property, or for the payment ot its value, if adjudged to be subject to the attachment. The property was ultimately adjudged to be so subject, but, in consequence of its having been taken into possession by a receiver appointed in a foreclosure suit instituted by the trustee, it was impossible for th£ sureties on the replevin bonds to return the property, and executions were directed to issue; against them for its value. Held that, under those circumstances, the receiver in the foreclosure suit was properly directed to pay, out of the property in his hands, the claim of the creditor who had issued the attachment, and for whose benefit the decree against the sureties on the replevin bonds was made, although such creditor’s claim was not, in itself, superior to the mortgage.</p> <p>3. Courts — Jurisdiction—Original and Ancillary.</p> <p>Where a railroad foreclosure suit is pending in a United States circuit court in one district, as ancillary to a similar suit in another, the former court should not remit to the court of primary jurisdiction an incidental motion relating- to transactions which took place within its own district, and to other related litigations arising there, and of which it had already taken jurisdiction.</p>

<p>Appeal from the Circuit Court of the United Btat.es for the Eastern District of Pennsylvania.</p> <p>This was a suit in equity by William Baldwin against the National Hedge & Wire-Fence Company for the reformation of a deed purporting to assign all of complainant’s rights in a patent for an invention. The circuit court dismissed the bill after final hearing on the merits (67 Fed. 853), and complainant has appealed.</p>

<p>1. Railroad Mortgages — Interpretation—Exchange op Bonds.</p> <p>A provision in a mortgage executed by a railroad company after an extension ol' its line, authorizing the trustee to exchange bonds secured thereby for an equal amount of outstanding bonds issued before the extension, and requiring it to hold the old bonds as collateral for the new ones, until all the old bonds were surrendered, when the entire issue was to be canceled, held to mean that an exchange made by holders of some of the old bonds was binding on them, although the entire issue was never surrendered so as to authorize their cancellation, and that a holder of the old bonds, who had made such an exchange, was not entitled to have them back.</p> <p>2. Same.</p> <p>A. holder of railroad bonds exchanged them for bonds of a subsequent issue, covering an extension of the road, under a provision for that purpose contained in the mortgage securing the new bonds. Afterwards he. sought to have his old bonds returned, alleging as one ground therefor that the new mortgage was invalid. When the question of his right to have his bonds returned came before the court, the new mortgage had in fact been foreclosed by the court as a valid instrument. Held, that the court would not thereafter declare the mortgage invalid.</p>

<p>1. Fraudulent Conveyances — Innocent Pasties.</p> <p>A mortgage made to a trustee to secure several distinct debts owing to different creditors is not rendered void, as to such of the creditors holding valid claims as are without notice or knowledge of any fraudulent purpose in the making of the mortgage, by the fact that there was such fraudulent purpose on the part of the mortgagors, participated in by the remaining' creditors.</p> <p>S. Same — Pao Rata ¡shakes.</p> <p>Where a mortgage is made for the security of several creditors, the claims of some of whom are invalid, the remaining creditors are not entitled only to the pro rata share which would have gone to them, respectively, if all the claims had been valid, but are entitled to their shares of the whole of the mortgaged property, up to full amount of their respective claims.</p> <p>8. Practice — Garnishee’s Costs — Michigan Statute.</p> <p>The statute of Michigan, permitting the allowance of costs and expenses to a garnishee (How. Ann. St. § 8098), does not include cases where an issue is made between a creditor and a garnishee, and a trial is had thereon.</p>

<p>1. Mines and Mining — Sukvey and Patent — Size oe Survey.</p> <p>While the law prescribes a limitation as to the size of a single location, there is no limitation to the number of claims one person may hold by purchase, or that may be included in a single patent, or, it seems, in a single survey, showing only the exterior boundaries, and omitting all interior lines of the several smaller claims. Polk’s Lessee v. Wendell, 9 Graneh, 87, and Smelting Co. v. Kemp, 101 IT. S. 096, applied.</p> <p>S. Same — Effect of Patent Including Several Claims.</p> <p>The question of the right to a patent covering several vein or lode claims, before parallelism of the end lines was required, is within the jurisdiction of the land department; and after the same is determined by it. and a patent issued, the boundary lines as defined by the patent are the lines by which the rights of the parties are to be determined, and the patentee cannot be compelled to rely upon the lines of the several claims of which the patented survey is composed.</p> <p>3. Same — Right to Follow Dip — Vein Terminating within a Claim.</p> <p>When the apex of a vein crosses one end line of the claim and runs in the direction of its length, but is cut off, before reaching the other end, by a “crossing,” so that it terminates at that point, the right to follow the dip will be confined between the vertical planes of the one end line and a new end line parallel therewith, drawn at the point where the vein disappears.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Michigan.</p> <p>The defendants in error, co-partners under the firm name of C. G-. Alley & Co., were engaged in the manufacture of lumber at Whitehall, Mich. The plaintiff in error, the Edward Hines Lumber Company, is a corporation engaged in buying and selling lumber, whose principal office is at Chicago, Ill. On the 13th of April, 1893, the defendants in error made a proposal for a contract to sell to the plaintiff in error all their cut hemlock lumber for the season of 1893, which proposal was accepted by plaintiff in error. The material part of this contract was in these words:</p> <p>We propose to sell you all of our cut of hemlock for the season of 1S93, estimated to be about 1300 M. feet, more or less, to be cut in such sizes as you may direct as far as the logs will make to advantage, and grade the same as No. 1 hemlock; sort each length and width separate, and cross pile the same; said lumber to remain in cross-pile at least sixty days; then load on cars such sizes as you may direct, for the sum of $8.50 per At. feet for ten foot and over in length, and we will agree to cut ill the ten foot into 2x4. Terms of payment to be as follows: When lumber is in cross-pile sixty days you are either to settle for above lumber by sixty-day paper, or two per cent, off for cash, you to have the privilege of leaving the lumber there until April, 1894</p> <p>On August 25, 1893, the defendants in error wrote the following-letter, which was received by the Edward Hines Lumber Company:</p> <p>Whitehall, Mich., Aug. 23. 1S93.</p> <p>Edward Hines Lumber Co., Chicago, 111. — Gentlemen: Inclosed find statement of lumber sold to you. This lumber has now been cut and cross-piled on dock for ninety days. Cur contract with you was that after lumber was on dock sixty days it was either to be paid for cash, less two per cent., or notes given for sixty days. If you cannot send us the cash, will you make three notes of $2,000 each, running 30, GO, and 90 days? We have expected your Mr. Baker to be here before this, to look over the lumber. Should yon want any changes in the cutting, please inform us. Let us hear from you by return mail.</p> <p>Respectfully yours, C. G. Alley & Co.</p> <p>The statement referred to in the letter showed that 716,297 feet of lumber had been cut and cross-piled. The statement in the letter that this lumber “has now been cut and cross-piled on dock for musty days” was in large part erroneous, only a little over one-third of the same having been in cross-pile for as much as 60 days. Some of it had been cut and piled in May, some in June, some in July, and some of it in August. In reply to this notification, the plaintiff in error answered, by letter dated September 1, 1893, in the following-words:</p> <p>Chicago, 111., Sept. 1. 1S93.</p> <p>C. G. Alley & Co., Whitehall, Mich. — Dear Sirs: Referring to yours of 23th ult., we have long since given up the idea that you were to cut the lumber for us, and we understand that you had some doubts as icgards our responsibility, and for this reason concluded that you would hold (lie lumber; hence have not made calculations for taking same, and we cannot now do so. This order was placed in April, and wo would naturally look to taking some of it at the end of 60 days. Five months have now elapsed. We cannot at all comply with the terms of the contract at the present time, so we trust you will have no inconvenience in disposing of it in small quantities elsewhere, -where you can realize as you wish to realize on it.</p> <p>Yours, Edward Hines Lumber Co.</p> <p>To this Alley & Go., under date of September 5, 1893, replied as follows:</p> <p>Whitehall. Mich., Sept, ó, 1893.</p> <p>Edward HineS Lumber Co., Chicago, 111. — Dear Sirs: We are in receipt of yours of 1st inst. Whatever doubts we may have had at any time as io your financial responsibility, we have never had any doubts as to our obligations under the contract, and have regarded it as in lull force at all times since it was made. We still expect you, as an honor&bl* concern, to perform on your part, and we again ask you to aecepi the lumber already cross-piled, as per statement made, and remit us your paper Therefor. Jf you prefer, we will sell for your account for the best price we can get upon your assurance that you will make good any deficit between the prices obtained and the contract price. Please advise ns promptly of your decision.</p> <p>Very truly yours, ■ C. G. Alley & Co.,</p> <p>Per ,T. H. Williams.</p> <p>Upon receipt of the last-mentioned letter the plaintiff in error, under date of September 11, 1893, replied as follows:</p> <p>Chicago, Ills., Sept. 11, 1893.</p> <p>G. G. Alley & Co., Whitehall, Mich. — Dear Sirs: Replying to yours of the 5th inst., we must beg to differ with you as regards terms of contract. During the past terrible times we do not think any concern here has aimed to act any more honorable than we have, but we do not propose to be imposed upon as in your case your circumstances of the matter point strongly to. We do not think that it entirely lays with you as regards to allow tlio matter run along in the way you have, and when you feel it suits your convenience to enact certain parts of the contract for us to have nothing to say but to comply with your request. We do not wish to presume to advise you as regards wiiat you wish to do in the matter, as we have all we can do to take care of our own affairs.</p> <p>Yours, etc., Edward Hines Lumber Co.</p> <p>No further communication took place between the parties prior to the beginning of this suit. Defendants in error continued the manufacture of the lumber, and completed ihe manufacture of the cut of the season of 1893 on October 12, 1893. The last of it was cross-piled on the 14th day of October, 1893. On the 28th of October, 1893, the defendants in error sold all the lumber so manufactured under their contract to O. E. & M. B. Oovell, of Whitehall, Mich., at §(5.50 per 1,000 feet, on board cars. Between the date of the contract for the sale of this lumber to the plaintiff in error and the sale io the Messrs. Co veil there was a great, depreciation in Ihe value of lumber of that class. This action was begun in March, 1894. and was a suit by the defendants in error against the plaintiff in error for the damages sustained by defendants in error for a breach of the contract to take and pay Cor the lumber thus sold under the contract heretofore set out. There was a jury, and verdict against the plaintiff in error, and judgment rendered thereon, from which this writ of error has been sued out.</p>

<p>Negligence — Proximate Cause — Question fob Jury.</p> <p>One Z. occupied a house fronting on a turnpike. Between Z.’s front gate and the macadamized part of the road was a strip of unpaved, spong.vground, about 10 feet wide, lower than the macadamized road or than Z.’s land, which served as a drain for water falling on the road. Directly in front of Z.’s gate was a small wooden platform, and between this and the road were stepping-stones, used to pass from the road to the gate. The platform and stones were only a few inches above the low ground on whicii they were laid. The defendant i olograph company, in preparation for erecting a line along the turnpike, caused poles to be dropped, at intervals, in the low ground beside the road. One of such poles was dropped in front of Z.’s gate, with its butt end, measuring 11 inches in diameter, resting on the stepping-stone nearest the platform, in such a position that in order to reach the gate, it was necessary to mate a step from the second stone to the platform of about 30 to 36 inches, and high enough to step over the pole. The pole remained in this place for some months. On a rainy day, when the low ground was soft and muddy, and the stones and platform wet and slippery, Z.’s daughter, a girl of about 13, m returning from school, slipped while attempting to step from the stone, over the pole, to the platform, and fell, and was injured. In an action by Z.’s daughter, by her next friend, against the telegraph company, held, that it was a question for the jury whether the presence of the pole proximately contributed to cause the accident, and that the defendant was not entitled to a peremptory instruction in its favor.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was an action at law, by the Crompton Loom Works against the Chestnut Street National Bank and others, to recover the value of certain quilt looms and fixtures, purchased for defendant at a sale of property distrained for rent. The circuit court gave judgment, on a verdict, for plaintiff, in the sum of $3,700, and defendants brought error.</p>

<p>This was an action brought by the United States upon the official bond of Oliver O. Bosbyshell, as superintendent of the mint at Philadelphia, from December 19, 1889, to March 31, 1894. At the trial there was a >verdict for the United States, and the defendant has mow moved for a new trial.</p> <p>The condition of the bond sued on was in the following language;</p> <p>“Now, the condition of the foregoing obligation is such, that whereas the president of the United States hath, pursuant to law, appointed the said Oliver C. Bosbyshell superintendent of the mint of the United States at Philadelphia. Penna., and in due form of law caused to be issued to him as such a commission bearing date the 19th day of December, Anno Domini one thousand eight hundred and eighty-nine: Now, therefore, if the said Oliver O. Bosbyshell shall faithfully and diligently perform, execute and discharge, all and singular, the duties of said office according to the laws of the United States, then this obligation to be void and of no effect; otherwise to be and remain in full force and virtue.”</p> <p>Among the duties of superintendents of mints are the following:</p> <p>“The superintendent of such mint shall receive and safely keep, until legally withdrawn, all moneys or bullion which shall be for the use or expenses of the mint. He shall receive all bullion brought to the mint for assay or coinage; shall be the keeper of all bullion or coin in the mint, except while the same is legally in the hands of other officers,” etc. Rev. St. § 3506.</p> <p>Upon assuming the position of superintendent of the mint the defendant relieved the Hon. Daniel 31. Pos, and in receipting to Mr. Fox for the coin and bullion in Ms possession defendant gave him a receipt for gold bullion to the amount of §16,200,000, and for silver to the amount of 33,000,000 of dollars in bags. The gold bullion in bars was at the time locked and sealed in a compartment within the working vault used by the deposit weight clerk. The silver was stored in a locked and sealed vault in the post-office building. The receipt was given without counting or weighing, being based upon the certificates attached to the compartment and vault. It appeared that the gold bullion had been placed in the vault in 1887, and had not been counted or weighed since that time, the yearly examination Ijoirig confined to an inspection of the seals of the compartment, which were found intact. The same course was pursued at the annual settlements in June, 1890, 1891, 1892, and 3893. In September, 1893, there being a demand for gold bars, the vault was opened and a count was had, which disclosed a shortage of §100,000. The defendant was relieved from the possession and control of the mint, and thereafter the amount of silver was ascertained by weighing, defendant not being present, though represented by another. The weighing disclosed a shortage of §768.</p> <p>At the trial Hiere was admitted in evidence, over defendant’s objection, a certified transcript from the treasury department, containing copies of statements and certificates of settlement of defendant’s accounts.</p> <p>In respect to the gold bullion, one of the defenses at the trial was that the amount receipted for was not in fact in the vault at the time defendant assumed control of the mint. In regard to the alleged shortage of silver it was claimed ihat the apparent difference was merely the result of inaccuracy in the weighing, and of deterioration in the bags. The general nature and effect of the evidence bearing on these points will appear from the following extract from tiie court’s instructions to the jury:</p> <p>“This suit is brought upon the bond of Air. Bosbyshell and his sureties, given to the United States when he entered upon Ms duties as superintendent of the mint at Philadelphia. The breach alleged is a failure to account to the government for the full amount of gold bullion received by Mr. Bosbyshell as such superintendent. The amount so received is stated in Ms receipt to be $16,200,000. The amount turned over to the government upon his retiring from office was $16,100,000, showing a deficiency of $100,000, all of which has been made up to the government but $12,810.82, which the government claims to recover, with interest. This deficiency is shown as well by the testimony of Air. Bosbyshell himself as by the certificate of settlement of his account by the treasury department of the government, and by other evidence in the case. It is not necessary to consider whether lie might be relieved from the charge by- proving that he did not receive the amount acknowledged by Ms. written receipt, inasmuch as there is no evidence to show that he did not receive this amount The bullion was kept in an inclosure, as described, but it does not appear that a part of it could not have been abstracted while thus inclosed, and in his charge; and there is nothing to prove that it was not so abstracted. On the contrary, it is clear that it could have in part been removed, and there is evidence before you to justify a belief that it was removed. The testimony respecting the melosure of the bullion, and its condition when the cage or inelor-ure was opened, is therefore! entirely insufficient to justify a conclusion of Air. Bosbyshell received less than his receipt specifies and his repeated reports to the government state. It was his right and his ditty to himself, if not to the government, to ascertain the amount before receipting for it, and to know that his subsequent reports of the amount were correct. If he chose to accept the statements of others and assume responsibility for the quantity stated, he must hear the consequences. If the amount which was turned over to him was less than the amount he should have received from his predecessor, the government could have held his predecessor and his sureties responsible for the difference. If it was less than the amount that should have been turned over, the written statements in his receipt and subsequent reports tended to mislead’ the government, if the statements were incorrect, and to deprive it of its remedy against others. But it is sufficient for the purposes of this case that there is no evidence to justify a conclusion that tile amount turned over to him was less than the amount stated in his receipt. To the extent of the deficiency claimed on account of the gold bullion the government is therefore entitled to recover. As respects the deficiency claimed by the plaintiff on account of the silver dollars received, the evidence presents a different case. It is not suggested that Mr. Bosbyshell did not receive the amount he acknowledged by his receipt, but it is alleged that the evidence does not show that there was such a deficiency in the amount turned over when he went out of office, as’ the government claims. The amount so turned over was taken out o'f his possession before being counted, or an ascertainment of quantity by weighing was made. How the ascertainment was rnadé has been described. It was hurried, and somewhat careless, in the judgment of the court; and, although Mr. Bosbyshell had a representative present, neither he nor his representative had any control over the method pursued. A subsequent ascertainment discovered a difference in the amount to the extent of $35. JTou must judge from the evidence whether.it is reasonable to believe that a greater credit than the $35 should he allowed. In view of the circumstances that this property — the silver dollars — for which Mr. Bosbyshell and his sureties were responsible to the government was taken out of his charge before the amount was ascertained, the burden is upon the government to make it plain to you that there was a deficiency. They chose to take it away from him, and make the count in his absence, and the duty is upon the government to make it plain to you that there was a deficiency; that he did not turn over the whole amount which he was obliged to turn over. According to the count or ascertainment made in the manner' described, there appears to have been a deficiency of beiween $000 and $700. Now, it is for you to judge how much or how little of an error in each weighing or •counting of those bags would have been necessary to result in such a discrepancy.”</p> <p>On the present motion, the following points were urged in argument:</p> <p>(1) Under the terms of the bond, defendant was not liable for the shortage. He was liable only for ordinary care as bailee, and not as an insurer.</p> <p>(2) The certified transcript of settlement from the treasury department was not evidence. A settlement of a money account makes section 886 of the Revised Statutes applicable.</p>

<p>Contracts- — Assent—Negotiations.</p> <p>- The S. Co. was a creditor of tlie firm of B. & I)., and had commenced an action against the members of the existing firm, together with one li., who had recently retired from it. and who alone had been Served in the action. Pending this action, negotiations were begun between the S. Co. and B. & D. for a settlement of tin; ¡S. Co.’s claims, in the course of which an arrangement was made by which it was thought that, if B. & I>. could get certain notes of their own, held by R., they could raise money to effect a settlement. Thereupon S., the president of the S. Co., telegraphed from New York to R., in Michigan: “Will you turn over to us the notes amounting to $4,000 you hold of B. & D? If so, will release the parties to the suit against B. & D., and they will get you released from all other indebtedness of the firm;” to which R. replied: .“Certainly. * * * Will get them, and turn them over to you on condition of your telegram.” The settlement was never in fact made. Held, that such telegrams were merely intended by the parties as negotiations for an agreement, and did not constitute a completed contract by S. or the S. Co. and R., by which the latter was released from his obligations, as a member of the firm of B. & D., to the S. Co.</p>

<p>On Petition for Rehearing.</p> <p>This was an action of replevin brought by H. Brace, S. H. Davis, and others against W. R. Sutherland, to recover possession of certain lumber. There was a verdict and judgment for plaintiffs, and defendant brought error. The judgment was affirmed by this court on January 6, 1896. 71 Fed. 469. Plaintiff in error has now filed a petition for a rehearing.</p>

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

<p>1. Master and Servant — Duty to Employ Competent Servants — Notice— Evidence.</p> <p>In an action against a railroad company for damages for personal injuries sustained by an employ® of the company in an accident which some of the evidence tends to show was caused by the drunken condition of the engineer of the train, it is entirely competent to prove the engineer'» general reputation for drunkenness and consequent incompetency, for the purpose of showing that the railroad company was negligent in retaining him in its employ.</p> <p>2. Same — Personal Obligation of Master.</p> <p>The duty of a master to exercise due care in selecting and retaining his employés, proportioned to the consequences that may result from negligence of such employés, is one of the personal obligations of the master to the servant of which he cannot rid himself by delegating it to an agent, and such obligation is not fully discharged by inquiring into an applicant’s fitness at the time of employing him, but it requires the master to exercise a proper supervision over the employés’ work, and thereby to keep himself advised of their continued fitness.</p> <p>8. Same — Notice of Incompetency.</p> <p>It is sufficient, to charge a railway company with knowledge of the incompetency of an employ®, that notice of such incompetency should be given to those officers of the company who supervise such employe’s work, and are given authority to suspend him temporarily from his position, for incompetency of the kind in question, and it cannot be required that notice of such incompetency should be brought home to those superior officers of the company who alone are entitled finally to discharge the employ®.</p> <p>4. Damages — Measure—Loss of Earning Capacity.</p> <p>The proper measure of damages for loss of earning capacity of one who has been injured by another’s wrongful act is the sum required to purchase for such person an annuity equal to the difference between his probable yearly earnings during his entire life in his actual condition and as he would have been had he not suffered the injury.</p>

<p>In error to the Circuit Court of the United States for the Western Division of the Northern District of Ohio.</p> <p>This is a writ of error brought to review the. judgment of the circuit court for the Northern district of Ohio in a suit brought by Frank B. Craig, defendant in error, to recover damages for personal injuries from the Lake Erie & Western Railway Company, plaintiff in error. The judgment was in favor of Craig, for $12,000. Craig was conductor or foreman of a night switching crew in the yards of the railway company at Lima, Ohio. He had been in the employ of the company for nearly three years prior to the accident, in various capacities, — chiefly as hrakeman upon a freight train. His service as conductor or foreman of the switching crew in the-yards of the company at Lima began on the 10th of December, 1892, and the accident upon which this action is founded occurred on the 20th of the same month. The switching . crew, which consisted of Craig himself, two switchmen, the engineer and the fireman of the locomotive, had completed their work about 4 o’clock in the morning, had washed themselves, and were waiting until 6 o'clock should arrive, when their duties would end. They received an order to switch two cars, — one to one train, and one to another, — which, coming at this late hour, put them in bad humor. The two cars to he switched were attached to the front end of the engine, and the engine was hacked north on the main track in the Lima yard to what was called the switch into the B track. There was a slight grade from the • center of the yard down to the switch. The grade from the switch north on the main track was also downward, though upon this point there was a conflict of evidence. As ilie train backed down on the main track, beyond the switch, Craig stepped off on the east side of the main track, about opposite the switch point, and waited until the train had passed beyond the switch. One of his switchmen turned, the switch, and then Craig gave the swift signal to kick the car hard up the B switch. The engineer obeyed the signal, and pushed the cars up the B. switch. Craig stepped in between the first and second cars as they went by him, to pull out the coupling pin.. He succeeded in doing this, but fell and was run over. His legs were so mangled that both had to be amputated. He was found lying under the lire box of the engine. The contention for the plaintiff was that Craig' had caught liis foot in a frog which was unblocked, in violation of the statute of Ohio, pdc! that this was the cause of the accident. The evidence was very conflicting as to whether the frog was blocked or not. There was some conflict of evidence, also, as to the speed of the ¡rain at the time that Craig entered between the cars. Craig himself said that the sjiced was from three to four to five miles an hour. Other witnesses said that the speed was from four to live miles an hour. The engineer Testified that Craig had given him a swift signal, — -1 hat is, a signal for a hard kick,--and that the speed was about ten miles an hour. His fireman, however, thought that it was about five miles an hour. The night was cold. The ground was frozen. The roadbed about the switch was usually moist, when not frozen. There was some snow on the ground. It was quite dark. The rule of the company forbade brakemen and switchmen to enter between cars in motion, to uncouple them. This rule was upon a time card furnished by the company to Craig. It was in evidence that the rule was generally not observed in the Tima yard, and that: the violations of the rule were known to the division superintendent Snd the yard master. The division superintendent admitted upon the stand that the rule was not always observed, but stated that he had cautioned the men against entering between the cars when they were moving too rapidly, and advised them against their taking such risks. It was also in evidence that it was the general custom on railroads to uncouple cars in this way. The learned judge who presided at the circuit told the jury that the single question before them was whether Craig had been Injured by getting his foot in the unblocked frog; that if he went in between the cars, knowing that the frog was unblocked, he was guilty of contributory negligence, and could not recover. The court further told the jury that if Craig did not know, or might not, by reasonable care, have known, that the frog was unblocked, there was no other question of contributory negligence in 1 lie case, and that even if Craig had been negligent in going in between the cars, because oí a possible danger of falling, such negligence would not prevent his recovery for an accident happening by reason of the unblocked frog, because it would not be the proximate cause of the injury.</p>

<p>Contributory Negligence — Uncoupling Cars.</p> <p>Plaintiff was a brakeman on a freight train of the defendant railway company. In order to cut out five cars from the train, and leave them on a siding, such five cars, with the two between them and the engine, wen* uncoupled from the remainder of the train, drawn forward, and backed down upon the siding, Plaintiff then uncoupled the second car from the first of the five cars which were to be left behind, the coupling on the second car being an automatic one. but attached to the other car by a link and pin; gave the signal to the engineer to go ahead; and rode on the drawbar of the second car to the switch leading to the siding. He there dismounted, closed the switch, gave the signal to the engineer to back down to the remainder of the train, and, as the engine and cars approached the switch, stepped out on the track, and a1 tempted to remove the link and pin from the rear of the second car, while walking in front of the moving train, in order that the automatic coupling might connect with a similar one on the next car. While so walking in front of the moving cars, he tripped on a grade stake between the ties, and was run over and injured. The rules of the company forbade employes to step in front of moving cars. Plaintiff might have removed the link and pin either before the engine and cars began to back, by walking a short distance up the track, or before coupling them to the remainder of the train, by giving the engineer the signal to stop before reaching the standing cars. The track was covered with snow, and, at the point where he stepped upon it, was obstructed by the rails loading into the switch. There was evidence that the rule forbidding employes to step before moving cars was often disregarded, but no evidence that the officers of the company had any notice of such disregard, and it ivas shown that the course adopted by plaintiff was considered by the employes generally as .dangerous. Held, that plaintiff was guilty of such contributory negligence as to bar any recovery from the railway company for his injuries, even if the presence of the grade stake constituted negligence.</p>

<p>Life Insurance — Misrepresentations in Application — Construction of Statute — “Good Faith. ”</p> <p>A statutory provision that no immaterial misrepresentation in the application shall avoid the policy unless it is made “in bad faith” (Act Pa. June 23, 1885), means, with an actual intent to mislead or deceive, and does not include a misstatement, honestly made, through inadvertence, or even gross forgetfulness or carelessness. 72 Fed. 413, reaffirmed.</p>

<p>1. Flkadtxg — Legal and Eocttable Causes — Jurisdiotíos ox Courts.</p> <p>Plaintiff, as administrator of one W. B. brought an action against a life insurance company, in a state court possessing only common-law jurisdiction, and in bis petition alleged that the insurance company had issued a policy on the life of one C. B.. fos the benefit of \V. B„ for $5.000; that while both O. B. and W. B. lay sick, and near death, agents of the insurance company visited them, and by falsely and fraudulently representing that the insurance company was m possession of evidence which would avoid the policy, that it would resisl payment thereof, and make great trouble foi the representatives of C. 55. and W. B., and by urgent and persistent solicitations, which C. B. and W. B. were unable, in their feeble condition, to resist, persuaded them to agree to a cancellation of the policy, in consideration of a payment of 82,500, and that the company had refused to pay the bal anco of the policy, or to accept proofs of O. B.’s death. Thereupon plaintiff prayed judgment for the 82,500, with interest and penalties, and that the policy be brought into court, and delivered up, and the agreement of cancellation set aside, and offered to credit upon the policy the 82,500 paid to O. B. and W. B The insurance company demurred to the petition, and the case was removed to the United States circuit court. Held, that the case made by the plaintiff’s pleading was substantially an equitable one, of which neither the stale court nor the federal court on its law side, to which the case was removed, could take jurisdiction; nor could the allegations, framed for the purpose of equitable relief, be taken as making out a cause of action for damages for deceit.</p> <p>2. Same — Amendment.</p> <p>'Held, further, that the plaintiff could not be permitted so to amend his pleading as to change such equitable cause of action for cancellation of the' agreement into a cause of action at law for deceit in procuring it.</p>

<p>1. Railroads — Negligence—Station-Limit Board.</p> <p>Upon an application of one C., intervening in a railroad foreclosure suit, and claiming damages from the receivers of the road for personal injuries, it was found from the evidence that G., a fireman on a locomotive, while in the discharge of a duty assigned him by the engineer, and in a position which he could naturally and properly assume for ihe purpose of such duty, was knocked from the engine by a station-limit board placed near the track. Held, that it followed from these circumstances that the board was too near the track, and was a dangerous structure, the maintenance of which was negligence in the receivers.</p> <p>2. Samis — Duties op Fireman.</p> <p>Held, further, that a fireman on a locomotive, whose duties are to look after the coal and steaming of the engine, is not bound to observe the distance from the track of all objects along the line of the road, so as to make him chargeable with contributory negligence in failing- to remember and avoid such an object when called upon to lean out of the cab in the discharge of a duly outside his usual routine.</p>

<p>Interstate Extradition — Improvident Issue of Requisition.</p> <p>One S., who had been engaged with G. in the insurance business, in Tennessee, was found, on a settlement of their accounts, to be indebted to G., in about the sum of $1,300, for various sums advanced to him and his family by G., and expenses paid by G. for his account. After bringing the business to an end, and making some efforts to raise money for its further prosecution, S. returned, with his family, to his home in Virginia. G. assigned his claim against S. to one C., who caused a civil suit to be brought upon it in Virginia against 8. He also endeavored, by persuasions and threats, to induce S. to return to Tennessee, for what purpose did not appear. S. having refused to return, O. procured from the governor of Tennessee, upon affidavits, a requisition for S., as a fugitive from justice, alleging that he was guilty of “fraudulent nppropilaUon of money," and caused i>. to bo arrcsled thereunder in Virginia, for removal to Tennessee. Held, that no crime had been committed or was chai-ged, that the requisition was improvideutly issued, and S. should be discharged on habeas corpus.</p>

<p>1. Criminal Procedure — Examination op Accused Persons — Rev. St. § 1014.</p> <p>Under Rev. St. § 1014, which assimilates ail the proceedings for holding persons accused of crime to answer before a court of the United States to proceedings had for similar purposes under the laws of the state where the proceedings take place, all the regulations and steps incident to the proceeding before a United States commissioner, from its commencement to its close, are guided by the state laws, so far as they may be applicable to the federal courts, if no rule upon, the same subject has been prescribed by the federal statutes.</p> <p>2. Same — Holding to Bail — Power op United States Commissioner.</p> <p>The authority, therefore, of a United States commissioner to take bail for the appearance of an accused person to answer further before such commissioner to the charge against him is dependent upon the existence of such authority in examining magistrates under the laws of the state in which the proceedings before the commissioner are pending.</p> <p>3. Sakm— Texas Statute.</p> <p>Such magistrates have the power under the statute of Texas, and accordingly United States commissioners sitting in that state have the same.</p> <p>4. Same — Form op Bail Bond.</p> <p>The form of a bail bond taken by a United States commissioner should conform, in all substantial particulars, to the requirements of the laws of the slate in which the commissioner is sitting, so far as such laws are applicable.</p> <p>5. Bamb- — Texas Statute — Receiving Smuggled Goods.</p> <p>The statute of Texas makes it a requisite of a bail bond that the offense of which the defendant is accused be distinctly named, and that it appear therefrom that ha is accused of an offense against the laws of the state. Accordingly, held, that a bail bond, taken by a United States commissioner sitting in Texas, which states that the defendant is charged with receiving and concealing smuggled goods, but does not state that he did so knowing the same to be smuggled, is invalid, since the receipt or concealment of smuggled goods is not an offense against the United States unless they arc known to be smuggled.</p>

<p>Customs Duties — Liquidation by Colbeotoe — Limitation oe Actions.</p> <p>Iron ore was imported in 1881, a. certain sum being then paid as duties, after the appraiser had raised the valuation. In 1890 the collector decided that an additional amount was due, and an action was brought to recover the same. The importers claimed that their original payment was a liquidation, and that the action was barred within one year thereafter. Held, Iliac the liquidation was not complete until the collector had acted in the matter, and that there was no provision of law requiring him to liquidate within any particular time, or to give notice to the importer thereof.</p>

<p>1. Customs Duties — Classification—Burlap Bags Reimported.</p> <p>The provision in the act of February 8, 1875 (section 7), amending the tariff laws so as to admit free, on their return to the United States, foreign-made bags in which American grain has been exported (thus placing them on the same footing with similar American bags), was superseded by the provisions of the tariff acts of 1883 and 1890, from which this provision was omitted; and under the latter act (paragraph 365) such foreign bags were dutiable at 2 cents per pound. 68 Fed. 536, affirmed.</p> <p>2. Repeal of Statutes.</p> <p>When- a later act is a complete revision of the subject to which an earlier statute relates, and is manifestly intended as a substitute for the former legislation, the prior act must be considered as repealed.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a suit in equity by Henry J. Miller against James Donovan and James J. Fitzgerald for alleged infringement of certain patents for improvements in road carts. The circuit court dismissed the bill for want of infringement (62 Fed. 923), and complainant appeals.</p>

<p>1. Patents — Validity—Paper Holder.</p> <p>The Sm>th & Shannon patent, No. 217,909, for a paper holder, held valid and infringed (following prior adjudication).</p> <p>2. Same — Limitation op Foreign Patent — Compressor por Paper Files.</p> <p>The Cleague patent, No. 312,086, for a compressor for paper files, held to have expired with a previous German patent, obtained, not in the name of the inventor or the owners, hut in connection with the interests of the owners.</p> <p>S. Same — Invention—Alphabetical Index.</p> <p>There is no patentable invention in extending every other letter of an alphabetical index, outward, from, instead of in front of, the one above, making two rows instead of one, and thus shortening by one-half the length of the exposed parts of the sheets.</p> <p>4, Savie — Index for Paper. Files.</p> <p>The Shannon patent, No. 331,259, for an index for paper flies, hdd void for want of invention.</p>

<p>This was a libel in rem for collision. Libelants have excepted toff “cross bill” filed by the claimants.</p>

<p>This was a libel by the master of the schooner Robert A. Snyder against the city of Philadelphia to recover damages caused to the schooner by a collision of the city ice boat with her.</p>

<p>Cancellation of Deeds — Sufficiency of Evidence.</p>

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

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

Bill to restrain the defendant from operating so much, of its line of railway as lies adjacent to the property of complainant, in the city of Dubuque, until complainant’s damages have been ascertained, and compensation has been made therefor. Submitted on pleadings and proofs.

<p>In Error to the Circuit Court of the United States for the District of West Virginia.</p> <p>This was a bill by George T. Laslier and others against L. B. Cook and others to annul certain deeds made by the commissioner of school lands for Wyoming county, W. Va. The circuit court made a decree in accordance with the prayer of the bill, and the defendants hare appealed.</p>

<p>Receivers — Time of Appointment — Approval of Bonds.</p> <p>Where receivers of the property of a party to an. action are appointed, the order of appointment requiring such receivers to give bonds, to be approved by the court, before they are authorized to act, and enjoining the commencement or prosecution of suits against the party, the appointment of such receivers and their title to the property in question date from the entry of the order of appointment, and not from the time of the approval of their bonds; and a judgment obtained against the party, between the entry of such order and the approval of the receivers’ bonds, is invalid, and creates no lien on the property.</p>

<p>Railroad Mortgages — Receivership—Priority of Claims.</p> <p>The M. Co. made a contract with the C. Ry. Co. to pay for the construction of a branch from the railway company’s line to the M. Co.’s quarries, the amount advanced by the M. Co. to be repaid to it by crediting it with one-half the freight collected on merchandise shipped by it over the branch. The contract was performed substantially as agreed, until the railroad was placed in the hands of a receiver in a suit for the foreclosure of mortgages which were placed on the railroad before the contract was made, and which covered after-acquired property. At this time there was a balance due the M. Co. of over ?1,000. Held, that neither the corpus of the property in the hands of the receiver, nor the funds in his hands, derived from the operation either of the branch constructed under the contract, or of the other lines of the railroad, were responsible for the payment of this balance to the M. Co. before the payment of the mortgage debt.</p>

The complainant, a Kentucky corpora l ion, sues as trustee under a mortgage executed January 1, 1889, by the Cincinnati Inclined Plane… Held: and was maintaining and operating, — under and by virtue of certain ordinances of the city of Cincinnati, and under a perpetual louse from Smith, Tí ill, and Doherty, the original proprietors and the constructors of said railway, and under and by virtue of an act of the general assembly of the state of Ohio, passed March 30, 1877 (74…

This was a bill by Charles K Collins to enjoin John W. Bubb, as agent in charge of the Colville Indian reservation, from interfering with complainant’s mining operations.

<p>Service op Process — Exemption op Suitors.</p> <p>One W., a citizen and resident of Pennsylvania, was plaintiff in a suit pending in a federal court in Missouri against a Missouri corporation. Pursuant to the advice of his counsel that his presence was necessary, W. went to Missouri to attend the trial of the case. On the day for which the case was set down for hearing, it was adjourned one day, on account of the illness of defendant’s counsel, and as W. was leaving the courthouse a summons was served upon him in a suit instituted against him, in a state court, by a citizen of Illinois, through the same attorneys who appeared for the defendant in W.’s suit. Another summons in the same case was served upon him later in the day, at his hotel. W. removed the case into the federal court, appearing specially for that purpose, and moved to set aside the service of the summons on the groupd that he was exempt from such service. Held, that the service should be set aside, notwithstanding the courts of Missouri hold service made under similar circumstances to be good.</p>

<p>In Error to the Circuit Court of the United States for the Southern Division of the Northern District of Illinois.</p> <p>The Iowa Traveling Men's Association, plaintiff in error, is an association incorporated under the laws of Iowa, “for the purpose of rendering pecuniary assistance to its members as may be provided by its by-laws and certificates of membership,” and for the purpose of raising funds, by assessments on its members, to be paid to the appointees named in the applications for membership. Said association was empowered, by its articles of incorporation, “to establish by-laws and malee all rules and regulations deemed expedient for the management of its affairs.” Pursuant to this authority, it had for its government, and for the expression of rights and obligations as between itself and any member or person named as beneficiary by any member*, a constitution and by-laws, Sections 2, 3, and á of article 2 of its constitution are as follows;</p> <p>“Bee. 2. All applications for membership shall be referred to the board of directors; who shall require such proofs as to them may seem proper, as to the applicant’s qualifications and eligibility.</p> <p>“Sec. 3. All applications for membership must be accompanied by two dollars ($2.00) as a membership ice, and two dollars <$2.00) for first assessment, which fees will be returned in case the, applicant is rejected.</p> <p>“Sec. 4. Bach member of this association shall receive a certificate of membership, and also a traveling card, bearing the autograph of the president and secretary of the association.”</p> <p>Section 3 of article 5 is as follows:</p> <p>“Sec. 3. Upon receiving notice of an assessment, it is the duty of each member >to remit the amount promptly to the treasurer of the association. A, notice sent to the last address given shall be considered a legal notification. Any member who shall not remit the amount of his assessment within thirty-days from the date of notice forfeits his membership, and his name shall be stricken from the roll by the secretary, unless the board of directors extend the time fifteen days, at their option, after which fifteen days all his rights of every kind are forfeited; but any such person may again become a member, upon payment of all dues and assessments, subject, however, to the approval of the board of directors.”</p> <p>Sections 1 and 5 of article 6 are as follows;</p> <p>“Sec. 1. Whenever the death of a member of this association, in good standing, shall occur from an accidental cause (except while said member shall be under the inlluence of intoxicating liquors or narcotics), and suitable proofs of the same shall be furnished the board of directors, they shall order an assessment to be made from all members of this association of $2 apiece, and the amount of said assessment, not exceeding the sum of $5,000, shall be paid to the beneficiary named in the certificate of such deceased member, or to his heirs or legal representatives, in full satisfaction of said claim: provided, that if, when a death occurs as aforesaid, the sum of money in the treasury of the association, not otherwise appropriated shall exceed the sum of $5,500, then such loss shall be paid out of the treasury, not to exceed $5,000. But no claim for death loss shall be made against the association after six months from the time the deceased member is known to lmve died. Neither shall any claim for a death loss be made against this association after the expiration of eighteen months from the date of accident, it being the intention that the liability of this association shall cease after eighteen months from the date of accident, and shall not, in case of any loss, exceed the sum of $5,000; and, in case of a death claim arising under any certificate of membership, any sum or sums previously paid as indemnity within twelve months after the accident shall be deducted front the principal sum granted in case of death."</p> <p>“Sec. 5. The board of directors may order an assessment of not over two dollars (S2.00) upon each member of the association, for funds, when needed.”</p> <p>Section 1 of article 1 of the by-laws is as follows:</p> <p>“Every application for membership shall be in such form and manner as the board of directors shall prescribe, and shall set forth, over the signature (in his own handwriting) of the applicant, as fallows: His full name, place of residence, and post-office address; address and, business of the firm lie represents or of which he is a member, and in what capacity he is employed; also the full name and address of the person or persons to whom lie desires, in case of decease, by accident or accidental causes, to have his death loss paid; the relation such person or persons sustain to himself, together with answers to such other questions bearing upon the identification of such persons as may be propounded, — and his application must be signed by two members of the association.”</p> <p>In conformity with the by-laws as last recited, John H. Moore on September 30, 1891, presented to said association the following application for membership:</p> <p>“Application.</p> <p>“Iowa State Traveling Men’s Association.</p> <p>“$25 Weekly Indemnity for Twenty-Six Weeks in Case of Total Disability.</p> <p>“Please fill this blank, inclose $2, and forward to O. W. Hazard, treasurer, Des Moines, Iowa, or F. E. Haley, secretary, Des Moines, Iowa.</p> <p>“Give full answer to each of the following questions:</p> <p>“1. Name in full...................John H. Moore...................</p> <p>“2. Residence, street and number..................................... Town ............Macomb ............State ............Illinois.</p> <p>“3. P. O. Address, where notices are to be sent...................,P. O. Box 508, Macomb, Illinois......................................</p> <p>“4. Name and business of the firm of which you are a member, or by which you are employed......Valentine Varnish Company........</p> <p>“5. Place of business, street and number..................390 IVabash</p> <p>Avenue ........................................................</p> <p>Town ...........Chicago ..........:.State ............Illinois.*.</p> <p>“6. To whom payable in case Name..........Magg M.</p> <p>of death by accident. Give Moore ...... Residence,</p> <p>full Christian name, resi- Macomb, Illinois .......</p> <p>dence and relationship. Relationship ......Wife.</p> <p>“Declaration.</p> <p>“I, being desirous of becoming a member of the Iowa State Traveling Men’s Association, inclose herewith the membership fee of $2, and do warrant the above statement to be true; and I hereby agree that I will comply with the requirements of the constitution and by-laws, and that this declaration sbhll be the basis of membership between me and the said association.</p> <p>“Signature of applicant............J. H. Moore......</p> <p>“Dated at Grinnell, Iowa, this 30th day of September, 1891.</p> <p>“Recommended by...,..........J. H. Neal and M. Black................</p> <p>“(The following is to be filed only at the office of the association in Des Moines.)</p> <p>“Application and membership fee of $2 received this 3rd......day of...... October......1891.</p> <p>“Signed by........O. W. Hazard,........</p> <p>“No. 5,016. Treasurer.”</p> <p>On October 3, 1891, pursuant to this application John H. Moore was elected a member of the association, and to him at that time was issued a membership card “showing,” as per stipulation in the record, that “he was a member of the association.” Shortly thereafter he received from the association the following document:</p> <p>“No. 5,016. , Not Exceeding $5,000.</p> <p>“The Iowa State Traveling Men’s Association, Des Moines, Iowa,</p> <p>“By this certificate of membership, certifies that John H. Moore is a member of the Iowa State Traveling Men’s Association, and is entitled to all the benefits accruing from such membership under the provisions of the constitution and by-laws of the association. In witness whereof, the Iowa State Traveling Men’s Association, at its home office, in Des Moines, Iowa, has caused this certificate to be signed by its president and secretary, and its corporate seal to be hereunto affixed, this 3d day of May, A. D. 1892.</p> <p>“[Seal.] W. F. Mitchell, President.</p> <p>“F. E. Haley, Secretary.”</p> <p>On October 13,1892, John H. Moore died intestate at his residence, at Macomb, in Illinois. On November 5,1892, letters of administration on the estate of said Moore were issued to his wife, under the name of Margaret Moore, by the county court of McDonough county, 111. On May 8, 1893, said administratrix, named in the praecipe “Maggie M. Moore, administratrix of the estate of John H. Moore, deceased,” commenced this action of assumpsit against this plaintiff in error in the circuit court of McDonough county. The cause was removed, on petition of the defendant corporation, to the circuit court of the United States for the Northern district of Illinois. On October 23, 1894, after a jury trial, judgment was rendered in favor of plaintiff (defendant in error) for §5,000 and costs.</p>

<p>Carriers — Shipments oe Cattle — Terminal Charges.</p> <p>A railroad company accustomed to deliver ears of cattle at stock yards-off its line, by transporting them over a line belonging to the stock yards company, for which it pays a fixed sum per car, is under no obligation. to consignees whose business is located at the stock yards to supply unloading facilities at its own station in a different part of the city, and hence is not bound, in default thereof, to deliver at the stock yards, without a separate charge. On the contrary, it may, on posting schedules to that effect, as required by the interstate commerce law, make a charge for freight to the city, and a separate terminal charge, of a fixed sum per car, for delivery at the stock yards. 64 Fed. 992, reversed. ■ Stock-Yards Co. v. Keith, 11 Sup. Ot. 461, 139 U. S. 128, distinguished.</p>

<p>1. Assignment for Benefit of Creditors — Refusal of Assignee to Qualify —Appointment of Successor.</p> <p>The Iowa statute (McClain’s Ann. Code, § 3307) requires the county disT trict court, under certain circumstances, and “on the application of any person interested,” to appoint some other person to execute the trust. Held, an assignee who has accepted and filed the deed, and taken possession of the property, though he has not filed an inventory or given. bond, is a “person interested,” on whose application a successor may be appointed.</p> <p>2. Same — When Appointment mat be Made.</p> <p>Statutory authority to appoint a successor if the assignee fail to file a. bond and inventory within 20 days after the assignment (McClain’s Ann. Code Iowa, § 3307) includes power to make such appointment before expiration of the 20 days, on the request of the assignee and his refusal to qualify.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This case comes here on a writ of error to review a judgment of the circuit court, Southern district of New York, in favor of defendant in error, who was defendant below. The action was to recover damages for personal injuries caused, as plaintiff claimed, by defendant’s negligence. At the close of plaintiff’s case, the court directed a verdict for the defendant.</p>

<p>Petition filed December 81, 1895, by Henry Siegel, a citizen of Germany, praying for a writ of mandamus to the board of liquidation of the city debt to order the board to fund, or pay to relator, certain judgments at law heretofore obtained in this court against the city of New Orleans, aggregating the sum of $21,008.86. Upon a motion made by the defendant, at the close of the evidence, to direct a verdict against the relator, the court granted the same, for the following reasons.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>The National Masonic Accident Association of Des Moines, Iowa, a corporation, brings this writ of error to reverse a judgment rendered against it, and in favor of Celia V. Shryock, the defendant in error, on a certificate of membership of her husband, William B. Shryock, in that association. In her complaint the defendant in error alleged that on the 14th day of November, 1890, this accident association issued to William B. Sliryoek its certificate of membership, by which it agreed to pay to her such a sum, not exceeding §55,000, as should he realized by it from one quarterly payment of §52, made and collected from all its members at the date of the accident, if the death of William B. Shryock should result through external, violent, and accidental means alone, which should, independently of all other causes, cause his deatli witliiu 90 days of the date of the accident, but expressly stipulated in the certificate that “this insurance do es noi cover disappearances, nor injuries oí which there is no visible mark upon the body, nor accident, nor death or disainllty resulting wholly «r in pan, directly or iudiiocily. from any of the following pauses, ot while so engagi <1 or affected: Suicide, intoxication, oí' narcotics, dueling or fighting, war or rior, voit-nutry o\ erexenion or exposure to unnecessary danger, intentional injuries (indicted by the assured, or by any other person with the consent or procurement of the assured), medical or surgical aeatuuinl (necessitated solely by injuries, and made within ninety days of The occurrence of accident excepted), sunstroke, \ iohuing law or the mies of a corporation, taking poison or innalmg gas, disease or bodily inliimiiy, hernia, fits, vertigo, or sleep-walking.” She then averred that on July 2, 1802, Shryock received a personal injury by a violent and accidental fail, and by sn iking; a hard substance, on the sireet, m the city of Omaha, from which he died in a few hours, and that she had complied with the provisions of the certificate on her part. The plaintiff in erroiJilod an answer, in which it admitted irs issue of die certificate, denied that Shryock met with any accident which caused his death, within the meaning of the certificate, sot forth the stipulation of t tie < ertificate which we have quoted, and alleged, as a separate defense, that if Hliryock received any bodily injury through external, violent, or accidental means, he was at the time suffering from disease or bodily infirmity, the same being some form of heart disease or other kindred disease, and his death resulted wholly or in part from that disenso. The answer contained other allegations, but none that are Inconsistent, with those that we have recited, and none which attributed the death to any other cause than this disease.</p>

<p>1. Officers of United States — Jailers of State Jails.</p> <p>The jailer of a state jail; in which xirisoners, under sentence or awaiting-trial by the federal - courts, are confined, is not an officer of the United States; and a United States commissioner has no power to call upon him to perform any service.</p> <p>2. United States Marshals — Pees—Service of Mandate on Poor Convict.</p> <p>A United States marshal is.entitled to a fee of two dollars for the service of a mandate to bring in a poor convict for examination, upoi>, his application for release, pursuant to Rev. St. §§ 1042, 5296.</p> <p>3. Same — Removal of Prisoners. .</p> <p>A warrant for the removal of a prisoner, confined in a jail remote from the place of trial, hut within the district, to the place of trial, is unauthorized; and such a warrant must he regarded simply as an order of court, under Rev. St. § 1030, for the service of which the marshal is not , entitled to any fee.</p> <p>4. Same — Warrant of Pardon.</p> <p>A marshal is entitled to a fee of two dollars for the service of a warrant of pardon, pursuant to directions of the department of justice.</p> <p>5. Same — Mittimus.</p> <p>A mittimus for the commitment of a iirisoner is a warrant, for the service of which ou such prisoner the marshal is entitled, under Rev. St. § 829, to a fee of two dollars.</p> <p>6. Same — Distributing Venires.</p> <p>A marshal is entitled to fees, limited, however, by the statute, to $50 for any one term, for distributing venires and- paying constables. Harmon v. U. S., 43 Fed. 560, followed.</p> <p>7. Same — Discharge of Poor Convicts.</p> <p>A marshal is not entitled to any fee for the discharge of a poor convict, after, examination pursuant to Rev. St. § 1042.</p> <p>8. Same — Expenses.</p> <p>It is not a sufficient objection to the allowance to a marshal of expenses, Incurred while endeavoring to make an arrest, that the warrant was issued aud served at the place where the court is located.</p> <p>9. Same — Transportation—Nearest Officer.</p> <p>Under the act of March 3, 1893 (27 Stat. 609), as well as under that of August 18, 1894 (28 Stat. 416), it” was the duty of the marshal or other officer arresting a prisoner to take him before the nearest commissioner or other judicial officer, for examination; and the marshal was not entitled to charge for the transportation of a prisoner, for examination by the commissioner who issued the warrant for his arrest, when another commissioner was nearer to the place of arrest.</p> <p>10. Same.</p> <p>The statutory allowance to a. marshal for transporting prisoners is intended to cover the cost of actual transportation, and cannot be charged where the marshal and the prisoner walked from the jail to the place of hearing.</p> <p>It. Same — Attendance of Officers.</p> <p>The determination of the number of officers whose attendance is necessary, at a hearing of parties accused before a commissioner, is a matter for such commissioner; and the marshal is entitled to charge for the attendance of as many officers as are so found necessary. Hannon v. U. S., 43 Fed. 560, followed.</p> <p>12. Same.</p> <p>The marshal is entitled to charge for attendance at an examination of a poor convict before a commissioner. Harmon v. U. S., 43 Fed. 560, followed.</p> <p>13. Same — Travel—Return Home During Term.</p> <p>A marshal is entitled to charge for travel from his home to attend court, as often, during the term, as the court is adjourned over one or more intervening days, except where such adjournment is from Saturday to Monday. Harmon v. F. S., 43 Fed. 500, and U. S. v. Shields, 14 Sup. Cf. 785/153 IT. S. 88, followed, lá. Same — Several Writs.</p> <p>A marshal may charge for travel upon two or more writs against different persons, served at the same place ami time. Harmon v. U. S., 43 Fed. 500, followed.</p> <p>15. ' Same— Expenses — Election.</p> <p>A marshal cannot, where he holds, at the same, timo, warrants against different persons, which are served at the same place, charge for his actual expenses upon one of such warrants, and for travel upon the oilier or others, but must elect between his actual expenses and his statutory charges for travel.</p> <p>16. Same — Several Parties.</p> <p>Nor can a marshal, where he holds one warrant against two or more persons, served at different places, charge for travel in going to serve it upon one, and his actual expenses for the additional distance to serve it on the other or others.</p> <p>17. Same — No Service.</p> <p>A marshal caunot be allowed charges for travel to arrest when no service is made.</p> <p>18. Same — Poor Convicts.</p> <p>A marshal is entitled to charge for travel to serve mandates to bring in poor convicts.</p> <p>19. Same — Pardon.</p> <p>Or to serve a warrant of pardon.</p> <p>HO. Same — Accounts—Wrong—Fiscal Year.</p> <p>The fact that a marshal, in making up his accounts, has entered charges for services in the wrong fiscal year, is not a sufficient reason for disallowing such charges.</p>

<p>1. United States Marshals — Fees — Attendance before Court and Commissioner.</p> <p>A United States marshal is entitled to charge for the attendance of himself and his deputies before United States commissioners on the same days on which the circuit or district courts are in session, and fees for attendance on those courts are charged and paid.</p> <p>2. Same — Mittimus.</p> <p>A marshal is entitled to charge fees for the service of warrants of commitment. Saunders v. U. S., 73 Fed. 782, followed.</p>

<p>Action to recover for certain items of service rendered by the plaintiff as clerk for the United States courts in and for the Northern district of Iowa.</p>

<p>1. Indian Agencies — Employment of Physician — Authority of Secretary of Interior.</p> <p>’ The provision in the appropriation act of March 3, 1875, that the number and kind of employes at each Indian agency shall be prescribed by the secretary of the interior, gives him authority to employ physicians to attend Indians; and the fact that during 11 years the secretary had approved vouchers and directed payment of bills rendered by a particular physician employed at various times by an Indian agent is a sufficient determination by the secretary that one of the employés of such agency shall be a physician, to be called by the agent from time to time, to render medical services as the Indians require.</p> <p>2. Same — Principal and Agent.</p> <p>Whore the secretary of the interior had authority to employ physicians at an Indian agency, and his subordinate, the Indian agent, did employ them, and the secretary approved their bills, and directed the agent to pay them out of the public funds in his hands, held, that the United States and the secretary were bound by the agent’s acts, both because of the ratification thereof, and because, by their action, they induced him to expend money which he would not otherwise have disbursed.</p> <p>3. Same — Claims against United States — Rejection by Accounting Officers.</p> <p>Where, in an action by the United States to recover an alleged shortage due from an Indian agent, the government introduced a transcript from the books and proceedings of the treasury department, which, among other things, contained an opinion by one of the accounting officers disallowing a claim by the agent for one of the items sued for, and discussing the vouchers on which the claim was based, held, that this was conclusive proof that the claim had been presented to, and disallowed by, the accounting officers, as required by Rev. St. § 951.</p> <p>4. Same — Pleadings and Proof.</p> <p>In an action by the United States on the bond of an Indian agent, defendants pleaded that all the moneys with which the agent had been charged had been properly expended by him, and, at the trial, offered to prove a credit of a specified sum paid to physicians for services to Indians. Meld, that the fact that defendants had not pleaded this claim for a credit did not render proof thereof inadmissible, it appearing that the United States were already correctly informed of the amount and character of the claim, by reason of its officers having examined and disallowed the same, and that these facts were proved by a transcript from the books of the treasury department, in the hands of the United States attorney, who had not moved to make the answer more specific.</p> <p>5. Actions by United States — Allowance of Credits — Disallowance by Accounting Officer.</p> <p>The provision of liev. St. § 951, that, in actions by the United States against individuals, no credits shall be allowed except such as have been presented to and disallowed by the accounting officers of the treasury, requires that the claim only shall have been presented, and not the evidence to support it, and hence such evidence will not be excluded merely because it was never so presented.</p> <p>6. Same — Province of Court and Jury.</p> <p>It is the duty of the court, and not of the jury, to determine whether or not such a claim has been presented and disallowed, so as to authorize it to be admitted on the trial.</p> <p>7. Same — Technical Failure to Account — Property not Dost.</p> <p>The failure of an Indian agent, through clerical errors, to include in his accounts property which, in fact, remains at the agency, and which is not lost to the government, does not entitle the United States to recover the value thereof in a suit on his bond; and he may show these facts in defense. The technical failure to account would authorize a recovery of no more than nominal damages.</p> <p>8. Appeal — Harmless Error.</p> <p>Technical error in failing to award nominal damages in respect to one of a number of items sued for is no ground for reversal, whore there has been a substantial recovery.</p> <p>9. Same — Error in Instructions — Applicability to Pacts.</p> <p>The burden of showing that there was no evidence to warrant a charge is on him who asserts an error of that kind; and, to support his claim, lie must either present all the evidence, so that the reviewing court can see for itself what the evidence was, or he must present a bill of exceptions, with a certificate of the trial court that no evidence of the character in question ivas introduced.</p> <p>10. Responsibility of Government Agents — Accounting for Property — Errors of Clerk.</p> <p>A government agent is not to be held liable for property still in the possession of the agency, and which has never been lost, merely because a careless clerk, appointed by the government itself to keep the accounts of the agent, has omitted it from a return, which he is required to make.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>The appellants Marshall Field and others imported and entered at the port •of Chicago in December, 1893, certain merchandise, composed entirely of •cotton, upon which the collector of the port iinposed and collected a duty of 00 per cent, ad valorem, as “cotton embroideries,” under paragraph 373 of Schedule J of the tariff act of October 1, 1890 (26 Stat. 594, c. 1244), which Is a’s follows: “Laces, edgings, embroideries, insertings, neck rufflings, ruchings, trimmings, tuckings, lace window-curtains and other similar tarn-' boured articles, and articles embroidered by hand or machinery, embroidered and hem-stitched handkerchiefs, and articles made wholly or in part of lace, rufflings, tuckings or ruehings, all of the above named articles, composed of flax, jute, cotton, or other vegetable fibre, or of which these substances or either of them, or a mixture of any of them is the component material of chief value, not specially provided for in this act, sixty per cent, ad valorem. Provided, that articles of wearing apparel, and textile fabrics, when embroidered by hand or machinery, and whether specially or otherwise xirovifled for in this act, shall not pay a less rate of duty than that fixed by the respective paragraphs and schedules of this act upon embroideries of the materials of which they are respectively composed.” The importers claim that the merchandise was subject to duty under paragraph 35."> of Schedule I of that act, which is as follows: “Cotton damask, in the piece or otherwise, and all manufactures of cotton not specially provided for in this act, forty per centum ad valorem.” The duty imposed was paid under protest, and the question was reviewed by the board of general appraisers sitting at New Xork, and the decision of the collector approved and affirmed. The importers thereupon, pursuant to statute in that behalf, filed in the court below their aiiplieation for review of the decision of the board of general appraisers. Under that application further evidence was taken, and at the hearing the court below found: (1) That the goods are as invoiced, — white frilled muslins made of cotton; that they are not textile fabrics, but an article of imported merchandise, embroidered. (2) That they are known in trade in this country as “white frilled muslins,” and not as “ruffled Bouncings,” nor are they recognized or known in trade as “embroideries.” And thereupon the court affirmed the decision of the board of general appraisers, which de- ' cree of the court is here for review upon this appeal.</p>

Appeal by the importers, A. J. Hague & Co., from a decision of the board of general appraisers which sustained the action of the collector in assessing duty upon the merchandise in question under paragraph 263 of “Schedule I, Cotton Manufactures,” of the act of August, 27,1894 (28 Stat. 529).

<p>1. Tradf.-Marks — Descriptive Name — “Syrup of Figs.”</p> <p>Tlie words “Syrup of Figs” or “Fig Syrup,” being descriptive, are not sustainable as a trade-mark for a laxative syrup in which the active medicinal property is the juice of the fig. 67 lied. 1008, affirmed.</p> <p>2. - Same — Deceptive Name.</p> <p>The use of the words “Syrup of Figs” in connection with a preparation described as a “Fruit Remedy,” “Nature’,s Pleasant Laxative,” and with other statements leading the public to understand that the juice of the fig is the important medicinal agent, is deceptive, so as to prevent equitable relief, where the preparation contains but a slight quantity of fig juice, which has no laxative properties, and in which the active medicinal ingredient is senna. 67 Fed. 1008, affirmed. Syrup co. v. Putnam, 16 C. C. A. 376, 69 Fed. 740, followed.</p>

<p>Trade-Marks — Unfair Competition — Geographical Names.</p> <p>A manufacturer of salt in the Genesee valley will not be enjoined from using the word “Genesee” in connection therewith; but he will be restrained from using it in any color, style, or form of letters, or in combination with other words, so as to imitate a combination previously used by another maker of salt in the same locality. 67 Fed. 534, affirmed.</p>

<p>Applicatiou for restraining order to continue until final hearing of the cause.</p>

<p>Patents — Limitation and Infringement--Pump Regulating Valves.</p> <p>_ The Blessing patent, No. 207,485, for an improvement in pump regulating valves, construed in connection with the disclaimer filed April 18, 1891, and held to he limited to the precise means described, for automatically regulating a pump for returning to a steam boiler the water of condensation, by means of a closed system, — that is, one not open to the atmosphere.</p>

<p>1. Federal Courts — Territorial Jurisdiction in Patent Cases.</p> <p>A New York corporation, whose certificate provides that its principal business office is to be in the city of New York, but with a further provision that the location of its business is to be in “the city of New York, and county of New York and state of New York, and such other places as the company may hereafter select,” may be sued' in the circuit court for the Northern district of New York, for an infringement there committed, where it has publicly advertised that its place of business was at a certain town in that district, which announcement was in accordance with the fact.</p> <p>2. Same — New York Districts.</p> <p>Under Rev. St. U. S. § 657, providing that the original jurisdiction of the circuit courts of the Southern district of New York shall not be construed to extend 'to causes of action arising in the Northern district of that state, it is doubtful whether a corporation can be sued in the Southern district for an infringement of a patent committed in the Northern district, although its charter provides that its principal office is to be in New York City.</p> <p>8. Patent-Infringement Suits — Preliminary Injunction.</p> <p>Where there have been no adjudications sustaining the patent, if the court can see that there is a fair controversy on the two vital questions of patentability and infringement, the wiser course is to postpone their consideration until the final hearing, even though the preponderance of proof may be in favor of complainant.</p> <p>4. Same — Improvement in Buttons.</p> <p>A preliminary injunction upon patent No. 465,179, for an improvement in buttons, denied, but a bond required of defendant in place thereof.</p>

<p>This was a suit in equity by the Fenton Metallic Manufacturing «Company against Bamuei W. Olíase and others for alleged infringement of a patent relating to book cases. Defendant moves to vacate a default order for a preliminary injunction.</p>

<p>1. Patents — Anticipation—Catches for Satchels.</p> <p>The Lieb patent, No. 242,944, for catches for traveling bags and satchels, held void because of anticipation by the Lagowitz spring catch. 67 Fed. 547, affirmed.</p> <p>2. Same — Limitation op Claim — Prior Art.</p> <p>The Flecke patent, No. 303,716, for catches Cor traveling bags and satchels, if sustainable at all, must, in view of the prior state of the art;, as shown by 'the Lagowitz spring catch, be limited to a catch having three cam projections placed equidistant on the shaft, and is not infringed by a catch having but two such projections.</p>

<p>Patents — Limitation of Claims — Cigarette Machines.</p> <p>The Emery “belt patent,” No. 216,164, for a cigarette machine, is limited, as to claims 10 and 12, to an endless belt, curved, transversely into tubular form, to constitute a mold for compressing the tobacco in to a filler, and they do not cover a flat belt, which serves merely to support and carry the filler after it has been formed by a separate device. 16 C. C. A. 250, 69 Fed. 335, affirmed on rehearing.</p>

Suit in equity for infringement in importing, using, and selling horse hayforks in the state of California, and to restrain the further sale of the same.

<p>Appeals from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was a libel in admiralty, filed December 7, 1894, by Funch, Edye & Co., trustees, for the owners of the steamship Sophie Rickmers, against the Franklin Sugar-Refining Company, upon a general average bond given by respondents as owners of cargo. On December 26, 1894, the respondents filed a cross libel. On March 12, .1895, after libelants had completed the taking of their proofs, the Franklin Sugar-Refining Company applied for . an order under admiralty rule 53, requiring Funch, Edye & Co. to give security for such damages as might be.recovered on the cross libel, and for a stay of proceedings on the original libel till such security was entered. The district court denied the application, on the ground that it was made too late. 66 Fed. 342. On the merits a final decree was rendered in favor of the original libelants, and the respondents have appealed.</p>

<p>1. Admiralty Jurisdiction — Libel for Wrongful Death — Oregon Statutes.</p> <p>The Oregon 'statutes (section 371') give a right of action for wrongful death, when the deceased, if he had merely heen injured, could have maintained an action. Section 3690 creates a lien on all vessels navigating the waters of the state for damages done by them to persons or property. meld, that the personal representatives of one wrongfully killed by a vessel have a lien on her for the damages, and may enforce the same in the federal courts. The Corsair, 12 Sup. Ct. 949, 145 U. S. 344,. distinguished.</p> <p>2. Limitation of Actions — Co-Hmrncemkn't of Suit — Libel for Collision—</p> <p>Intervening Petition for Wrongful Death.</p> <p>After a vessel libeled for collision had been released on stipulation, the personal representative oí' a person killed in the collision filed an intervening- petition to recover damages, under the Oregon statute. A recovery was had in the district court, but, on appeal, the supreme court held that the, liability of the claimant on the stipulation could not be increased by the subsequent intervention of new claims, and uiar, wnon other libels are filed after the vessel’s discharge, a new warrant of arrest, . must be issued, and the vessel again taken in custody. The court therefore reversed the decree, and remanded the cause for further proceedings, but without prejudice to the right; of the court below to treat the intervening petition as an independent libel, and issue process thereon. By the Oregon statutes ail action is deemed commenced as to each defendant when the complaint is filed and the summons is served on him, and an attempt to commence an action is deemed equivalent to the commencement thereof. Held, that the filing of the intervening petition without any attempt to arrest the vessel thereon was not the commencement of a suit against the vessel, so as to stop the running of the statute, and, the two-years limitation having expired before any attempt to issue process thereon, the claim was barred.</p> <p>3. Laches — Excusable Delay — Interventions in Admiralty.</p> <p>Delay of interveners in a suit in rem in issuing process against the vessel, resulting from their erroneous belief that a stipulation under the original libel, on which the vessel had been released before the filing of their claims, was security for Iho payment thereof, will not be held as laches where the error was only disclosed by a decision of the supreme court, reversing a decision below in favor of the interveners.</p>

<p>1. Construction of Charter Party — Fittings for Asphalt Cargoes.</p> <p>A charter party negotiated for the owners by shipbrokers provided for voyages to South America, not south of the river Platte, “including Guanaco, Venezuela,” and contained a stipulation, written into the printed form, that the ship was to be fitted “with shifting boards and bulkheads suitable for carrying asphalt cargoes safely, to be done by owners’ agents, but at charterers’ expense.” Held, that the description “owners’ agents” did not bind the brokers, individually, to make the fittings, in place of the owners, but, on the contrary, imposed on the owners the duty to deliver the vessel suitably fitted, as specified, for asphalt cargoes, they having been notified that such cargoes were to be loaded. 68 Fed. 920, affirmed.</p> <p>2. Same — Acquiescence of Charterers — Inspection and Acceptance.</p> <p>Shifting boards not being permanent structures, a ship may be properly fitted with “suitable shifting boards,” if they are on board, though stowed away until the necessity for their use arises; and therefore the fact that charterers, -having a right to have the vessel thus fitted, have an opportunity to go aboard and inspect her before delivery and acceptance, does not estop them from afterwards asserting that the vessel was not so fitted.</p>

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>This libel was brought by the mate and a seaman, being two of the crew of the schooner O. P. Minch, to recover salvage compensation for services rendered during a voyage from Portage Entry, a port on Lake Superior, to Buffalo, N. Y. The voyage was completed, neither the vessel nor her cargo of stone sustaining loss or damage, and libelants, with the rest of the crew, paid off in Buffalo. The facts upon which the claim for salvage is based are stated in the opinion. The district court, Northern district of New' York, dismissed the libel (61 Fed. 511), and libelants have appealed.</p>

<p>Libel in personam to recover pro rata of a general average adjustment.</p>

<p>Collision ox Anchorage Grounds — Steamer with Tijg and Tow.</p> <p>A vessel which undertakes to navigate over anchorage grounds takes the risk of determining whether other vessels which she finds there are navigating or at anchor. Held, accordingly, that a steamship which, on leaving Hoboken, attempted to pass to the westward of a hark and tug on the anchorage grounds southeast of the Statue of Liberty, supposing them to he under way. and hound for the East river, was solely in fault for a collision with the 'nark, it appearing that the tug was merely holding the latter up against the tide, while she was getting in her anchor, and. that neither of them did anything to mislead the steamship. 59 Fed. 491, affirmed.</p>

<p>Collision — Steamer and Sail — Sails Obscuring Lights — Evidence.</p> <p>Two lookouts, two navigators, and the wheelsman of a steamer all testified that they were vigilant, but failed to see the green light of a schooner until too late to avoid collision, and even then only saw it dimly at first. It was conceded that the light was in xilace, and properly burning. The relative positions of the vessels, the length of the schooner’s forestay sail boom, and the spread of the staysail were such that, with a list to starboard, and the bellying of the sail, the light might have been obscured. Held, that it was more probable that such was the case than that all the witnesses aforesaid should have been negligent or mistaken or untruthful in their testimony, and that the schooner should therefore be held solely in fault. 55 Ped. 113, affirmed.</p>

<p>Appeals from tlie District Court of the United States for the Eastern District of Michigan.</p> <p>These are appeals from decrees of the district court of the United States for the Eastern district of Michigan in admiralty, dismissing one libel in rem against the steamer City of Mackinaw and two libels in personam against the Detroit & Cleveland Steam Navigation Company, the owner of the steamer City of Mackinaw, for damages, arising out of a collision which occurred on the Detroit river between 10 minutes after 10 and 15 minutes after 10, central standard time, on the night of May 2S, 1892, between the steamer City of Mackinaw and the steam tug Washburn, whereby the tug was considerably damaged, and John Hurley and William Robinson, who were on board the tug, were thrown into the water, and drowned. The Detroit & Cleveland Steam Navigation Company, under general admiralty rule No. 59 (which permits the claimant of any vessel proceeded against, or any respondent proceeded against in personam, in a suit for damages by collision, to bring into the cause any other vessel or person alleged to have been guilty of fault or negligence in the same collision, so that such other vessel or person shall be proceeded against in the same suit for such damages as if the vessel or person had originally been made a respondent), brought in the steam tug Washburn to answer to the claims of the representatives of the persons who were drowned. The tug Washburn, appearing, claimed the benefit of limitation of the liability provided for in sections 4283-4286 of the Revised Statutes of the United States. Due appraisement was had thereunder. The court below dismissed all the libels. The libelants in each case appeal to this court, and the three causes have been heard together upon one record.</p> <p>The City of Mackinaw is a side-wheel passenger steamer, 203 feet long, hailing from Detroit, and owned, as already stated, by the Detroit & Cleveland Navigation Company, a corporation of Michigan. Her regular route was from Detroit to Mackinac Island, between which points she made semiweekly trips. The tug Washburn was a small harbor tug, owned by John Hurley and Timothy Hurley, of Detroit. It was 53 feet 6 inches in length, and 16 feet beam, used exclusively in river and harbor towing. The propeller Majestic, the movements of which have a material bearing on the issues in the case, was a steam propeller, also owned by the Hurley brothers, 291 feet in length-, with a beam of 40 feet, employed in the freighting business upon the Great Lakes. Upon the night of the collision, the propeller Majestic was on her way up the Detroit river, bound from a Lake Erie port to Chicago, coal laden. John Hurley, one of her owners, called the tug Washburn to take him out to the Majestic, to enable him to transact some business with Capt. Lawless, her master, and to transfer some tow lines. The tug transferred the lines, put Mr. Hurley on board the propeller, and then wont ashore again to get the engineer of the Majestic, Thompson W. Robinson, who was waiting at Shipman’s coal dock, to be taken out to the propeller. Thompson W. Robinson was the regular engineer of the Majestic, but, during an absence of a few days, had procured his brother William Robinson to take his place. The tug returned to the Majestic with Thompson Robinson, went alongside the starboard side of the Majestic, and was made fast on her starboard quarter, where she received another tow line from off the fantail of the Majestic, and waited for John Hurley and William Robinson, to take them ashore. The Washburn had a stern light burning on a pole at a proper distance from lier deck. It was referred to by some of the witnesses as a common lantern. She also had her signal lights burning brightly. Tire Majestic had all her lights properly placed, and among them was a stern light at a considerable distance above her upper deck, and some 20 feet above the stem light of the tug. 8he also had a light upon her fantail. The night was cloudy, rainy, and dark, but good for seeing lights, and between 10 minutes after 10 and ID minutes after 10, which was the time of the collision, a breeze of about .12 miles an hour was blowing from the south. The tug came alongside the Majestic the second time when the latter was abreast of the Detroit & Milwaukee Elevator, and well over on the American side, and remained fast to her starboard until just before the time of tho collision. The Washburn and Majestic proceeded under a slow check, estimated at from 2 to 4 miles an hour by the land, or from 4 to 6 miles a.n hour through the water, on a course about E. by S., heading for the elevator in Walkerville, on tho Canadian side.</p> <p>The Mackinaw left her dock at the Coot of Wayne street, in Detroit, below Woodward avenue, on her way up the Detroit river, passing Woodward avenue at 6 minutes after 10, standard time, hauled out into the stream, and passed about 200 feet on the port side of the revenue cutter Fessenden, which lay 800 feet out in the stream two blocks above Woodward avenue. From this point the Mackinaw took a course of 13. % N., and here she exchanged a two-blast signal with a steam barge coming down, passing it starboard to starboard. About the same time the master of the Mackinaw saw one-fourth of a mile ahead, and from 2 to 4 points on Ms port bow, some bright lights, which he supposed to be the anchor lights of vessels moored there, lie soon discovered that the lights, or some of them, which afterwards proved to be those on the Majestic, were working over towards the Canadian -shore. The Mackinaw was a fast vessel, and on lier way up the river was going 30 miles an hour, or a little better, over the land, which is equivalent to about 12 or 13 miles an hour through the water. The courses of the two vessels converged and crossed a few hundred feet from the Canadian shore near Walke-rviHe. The Mackinaw proceeded with unabated speed, overhauling-¡he Majestic quite fast, and Cíame, within two lengths of her stern. The course of the Mackinaw Lay directly up the river close to the Canadian shore. The course of the Majestic would have carried that vessel into the shore if unchanged. When within two lengths of the Majestic, the master of tho Mackinaw became doubtful as to what the Majestic intended to do, and, judging that she was about to round to, ported his helm, and checked. The officers and the men of the Mackinaw state that they did not know of the presence of the tug on the starboard quarter of the propeller, and were unable to distinguish her lights from those of the propeller. Tho master of the Mackinaw intended to pass the Majestic on the starboard hand of the Majestic, between her and the Canadian shore. His doubt as to her future move-moms, however, and his fear lest she might round to, led him to port and check. Just, about this time, tlio tug Washburn, with William Robinson and John Hurley aboard, cast off from the Majestic; and, for fear of suction by the big screw of the Majestic, the master of tho tug rang up his engine, and moved the tug forward along the starboard side of the Majestic, from the rear gangway, until about ’midships, gradually sheering off. At that point the master checked down, and looked out from the starboard door of his pilot house up and down the river, and, seeing no vessel in either direction, put his wheel aporf. swung the tug to starboard, rang up his engine, and took a course directly towards the Canadian shore. Tory shortly after he had rung up his engine, he saw some colored lights. Whether they were the lights of the Mackinaw or railroad switch lights upon the shore is in dispute. Whatever the fact, they caused him to blow two whistles. Immediately after this blast, he Saw the dark form of the Mackinaw bearing down on his starboard side, and then followed the collision. While the tug was engaged in freeing itself, and swinging off from the Majestic, the master of the Mackinaw, growing more anxious and doubtful concerning the situation, ordered his wheel still more a port, and stopped his engines. Just then the lookoutsman of the Mackinaw heard the exhaust of the tug. Tie and the captain and the mate of the Mackinaw caught the glimmer of her green light about 75 to 100 feet off the port bow, and heard her blast of two whistles. As soon as the green light was seen, the master of the Mackinaw signaled to reverse her engines. Both vessels were swinging to starboard, and the head-reaching of the Mackinaw was sufficient to carry her bow into the starboard side of the hull of the tug through a full bunker of coal against her boiler, so as to break a plate therefrom. Her speed at the time of the collision was estimated by her officers to have been about five miles an hour. She struck the tug a point or two abaft the beam, and not at right angles. The collision threw Hurley and Robinson into the water, and, before they, could be picked up, they were drowned. The tug, after it was released by the backing of the Mackinaw, its engine and machinery still being in operation, ran aground near the Canadian shore, and sank. The master of the tug caught the stem of the Mackinaw at the time of the collision, and climbed up over her bow. The rest of the crew of the vessel were saved, and taken off the tug after she went aground on the Canadian shore. The Majestic, after the tug had swung off from her, changed her course two points to port, and proceeded up the river, her officers supposing from the fact that the tug had gone towards the Canadian shore that the collision which they witnessed had not resulted in serious damage. The tug had but four men in her crew, though her papers called for five. She had no lookout. Her master acted as master, as wheelsman, and as lookout. The Mackinaw . was properly manned. Her captain and mate were on the hurricane deck, near the pilot house, and she had a lookout forward on the promenade deck, “in the eyes of the ship.” The captain, mate, and lookoutsman on the Mackinaw stated that they did not see the stem light on the tug at all, although they were watching the Majestic with great care. The captain of the tug states that he did not see the lights of the Mackinaw at all, but that, after he .climbed over her bow, he went and found that her signal lights were burning brightly. These lights were about 28 feet above the water, in a screen 4 feet in length and 90 feet from the stem of the vessel. The officers of the Majestic state that there was smoke upon the water that night, through which the Mackinaw appeared to them off their starboard quarter. This is the testimony also of the men upon the tug. The officers and men of the Mackinaw deny that there was any smoke which could obscure their lights, because the wind was from the southeast, as they say, and was carried over their port quarter to the Canadian side. The evidence of the men on the Majestic and on the tug tended to show that the wind was from the southwest. The evidence from the Signal Service office records was conflicting, but probably the correct record showed the wind from the south at the time of the collision. The district court held that the collision arose through the gross fault of the tug in not having a proper lookout, and in running across the Mackinaw’s bows without giving any notice of her presence, and acquitted the Mackinaw of fault.</p>

<p>Cotjbts — Jurisdiction—Comity.</p> <p>The S. It. Co., the owner of a right of way for a railroad, made a lease thereof to the C. It. Co., which, besides providing for the common use of the proposed line, stipulated that, when the road was completed, tlie S. Co. would convoy to the C. Co. the road constructed on the right of way, but if. prior to tlie tender of the deed, the C. Co. should fall to perform any of the covenants of the lease, the S. Co. might declare the lease and contract void. The S. Co. agreed to pay the O. Go. a specified rate of interest on the cost of construction of the road, for the use thereof, for a failure to pay which the right of user might be suspended until tlie amounts due were paid. Shortly after the road was completed and pnt in use, the S. Co. served notice on the O. Co. that it declared tlie lease void, for certain alleged violations by the C. Co., and demanded a surrender of the premises. Thereupon, the O. Co. filed a bill, in a state court, asserting performance and its rigid to a deed, and secured a temporary injunction, restraining the S. Go. from declaring a forfeiture of the lease. Thereafter, a receiver of the C. Co., appointed by a federal court in a. foreclosure suit, served notice on the S. Co. that certain sums wore due to him, on account of maintenance, interest, etc., and that, if such sums were not paid, he would suspend the S. Go. from the use of the road. The S. Co. thereupon, in a petition in the foreclosure suit, applied for an injunction to restrain the receiver from enforcing this notice. Held, that the proposed action of tlie receiver involved no interference with -tlujurisdietion of the state court or violation of its injunction, the scope thereof having been simply to restrain tlie S. Co., at the request of tlie O. Co., which was represented by tlie receiver, from ousting tlie latter company from tlie possession and management of the road; and as the obligation of the S. Co. to pay for the use of the road continued, and tlie receiver was clearly entitled to collect tlie sums accruing on the lease, before as well as after ills appointment, tlie injunction should be denied.</p>

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

<p>Appeal — Tome op Taking.</p> <p>An appeal to the circuit court of appeals, not taken within six months, as required by the act establishing that court (26 that. 829, c. 517, § 11), must he dismissed.</p>

<p>Petition by the G-amewell Fire-Alarm Telegraph Company and others for leave to file in the circuit court a supplemental bill in tbe nature of a bill of review..</p> <p>This was a suit in equity by the Municipal Signal Company against the G-amewell Fire-Alarm Telegraph Company and others for alleged infringement of letters patent Nos: 359,687 and 359,688, granted March 22, 1SS7, to B. J. Noyes, for improvements in municipal signal apparatus. The suit was commenced in June, 1888. and in August, 1892. after a hearing on the pleadings and proofs, an interlocutory decree for an injunction and account was entered by the' circuit court. 52 Fed. 464. From this decree defendants appealed to this court, which, on April 11, 1894, affirmed tlie same. 10 C. C. A. 184, 61 Fed. 949. After the going down of the mandate, the complainant took no steps to have an accounting, and nothing has been done in that regard to the present time. On June 12, 1895, defendants filed in the circuit court a petition for a rehearing, and for leave to file a supplemental hill in the nature of a bill of review, based on alleged newly-discovered evidence. On February 5. 1896, this petition was denied, Colt, Circuit Judge, delivering the following opinion:</p> <p>“No right having been reserved in this case in the mandate of the circuit court of appeals, and no permission having been given upon application to that court for leave to file a supplemental bill in the nature of a bill of review, the defendants’ petition must be dismissed. Southard v. Russell, 16 How. 547, 570; Kingsbury v. Buckner, 134 U. S. 650. 671, 10 Sup. Ct. 638; Bank v. Taylor, 4 C. C. A. 55, 53 Fed. 854, 866; Durant v. Essex Co., 101 U. S. 555; Watson v. Stevens, 3 C. C. A. 411, 53 Fed. 31, 34. The rule laid down in the above cases applies to interlocutory as well as to strictly final decrees, but does not apply to interlocutory orders for preliminary injunctions, which are now made appealable under section 7 of the act of March 3, 1801. Davis Electrical Works v. Edison Electric Light Co., 8 C. C. A. 615, 60 Fed. 276, 282. Petition denied.” Thereafter, and on April 7, J80(>, the defendants, by leave, filed in this court, the complainant not objecting, an original petition, praying for an order granting leave to file in the circuit court: a supplemental bill in the nature of a hill of review, setting forth the alleged newly-discovered evidence. The new evidence set forth in the petition consisted of three matters of alleged anticipation: (1) The prior use in Kansas City, Mo., of a device known as the “Wood Signal Box”; (2) the Henry patent, No. 295,249, for a combined fire and police alarm; and (3) the Siemens-Halske publication.</p> <p>The petition showed that the Wood device was set up at the hearing in the circuit court, and was considered, both by that court and by this court on appeal; and that the defense based upon it was overruled, not. because it would not have been an anticipation, but because the proof of its existence and use was not sufficient. The petition then alleged that after the decision of this court defendants discovered that the Wood device had, in fact, been in actual use for business purposes in Kansas City, Mo., long prior to the application for the patent in suit; that this fact was known to complainant prior to the hearing in the circuit court; that it thereupon sent an agent to Kansas City, who discovered a person having knowledge of the use there, and one of the boxes which had been so used; that, believing this to be the only box in existence, complainant, for the purpose of concealing it, and preventing The knowledge of such use from coming to defendants, paid 1o such person a retainer; and that the said box was taken into the possession of the complainant, or of some person connected with it. It was further alleged that, prior to the hearing in the circuit court, defendants had obtained an intimation of the Kansas City use, and thereupon had addressed a communication to an officer of the company which had there used the. system, hut received evasive replies, and that it again communicated with such officer, hut was unable to obtain any response. The petitioners averred that all ihese facts were discovered after the decision of che case on appeal, and that they were prevented from obtaining an earlier knowledge by the said machinations and concealment on the part of the complainant. In respect to the, Henry patent, the petition alleged that defendants had causad a thorough and exhaustive starch to be made through the letters patent granted by this and other countries and through literatim' generally, for the purpose of discovering patented or published anticipating structures, and that, although this search was made at great length, and at much expense, by Intelligent men, the Henry patent was overlooked, and was only discovered in the course of a subsequent search. The allegations in relation to the Siemens-1lalske publication, and the reasons why it was not previously discovered, were much the same as those in relation to die Henry patent.</p> <p>The petition contained various allegations showing Ihe materiality of diese three matters, and also in relation to Its exercise of diligence in their discovery. To this petition the complainant in the infringement suit filed an answer, which was, in effect, a general denial of die allegations. Upon the questions raised by the petition and answer briefs were filed. The points made in opposition to the petition were summarized as follows in the brief of counsel: "(1) The petition is defective in the form of its prayer. (2) The petition is filed too long after the transmission of the mandate to the circuit court to entitle it to consideration. (3) On the face of the papers the ‘newly-disco'sered evidence’ is of such a nature that the defendants are presumed to liave known it. Publications cannot, in die nature of tilings, bo newly discovered. (!) The defendants are guilty of actual laches; their ‘newly-discovered evidence' has been known to them for years. (5) The substance of the alleged new matter is insufficient on its face to affect the case.”</p>

<p>1. Jurisdiction of Federal Courts — State as a Party.</p> <p>A federal court has no jurisdiction, on the ground of citizenship, of a suit brought by a state against either its own citizens or citizens of other states.</p> <p>2. Overissues of Railroad Stock — Minnesota Statute — Action by State.</p> <p>The Minnesota statute prohibiting railroad companies from selling or disposing of anjr shares of stock until the same are fuliy paid, or issuing any stocks or bonds except for money, labor, or properly actually received, and declaring all fictitious stock or indebtedness void (Gen. St. 1894, § 2748), was enacted for the purpose of protecting stockholders and creditors against fictitious indebtedness, or watered stock, and gives the stale no authority to protect such private rights by a suit in its own name.</p>

<p>In Error to the Circuit Court of the United States'for the Southern District of Illinois.</p> <p>Those were actions brought, respectively, by D. M. Wesson and by the Society for Savings against the county of Saline, 111., to recover on certain county railroad aid bonds. In each case there was a judgment below for ilie defendant, and the plaintiff brought error.</p>

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

<p>On Petition for Rehearing.</p> <p>This was an action of assumpsit by John It. Sneed against the Sabinal Mining & Milling Company to recover upon a promissory note in the sum of $7,000, which he held as indorsee. The case was tried to the court without a jury, and a special finding of facts was made, and judgment given for defendant. The plaintiff sued out a writ of eyror to this court, which, on January 6, j.896, rendered an opinion affirming the judgment below. See 18 C. C. A. 213, 71 Fed. 493, where the special findings an; set out in the statement of the case. The case is now heard ou a petition for rehearing, filed by the plaintiff.</p>

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

<p>Award — Setting Aside.</p> <p>Plaintiff and an insurance company, being unable to agree as to tbe amount of a loss under a policy of fire insurance, resorted to tbe arbitration clause of sucb policy. Plaintiff and tbe insurance company each proposed an arbitrator. Tbe arbitrator proposed by tbe insurance company was objected to by plaintiff, and another was proposed and accepted in bis stead. Tbe arbitrators then proceeded bo select an umpire, and, two names being proposed, plaintiff, after inquiry, accepted one of them. Tbe arbitrators having disagreed, tbe umpire made an award, which differed from tbe estimate of plaintiff’s arbitrator. Plaintiff then brought suit to set aside tbe award, alleging that the umpire and the insurance company’s arbitrator bad acted fraudulently and unfairly. No evidence, however, was presented which showed any undue partiality, though tbe award differed from tbe estimate of some persons familiar with goods similar to those injured in tbe fire. Held, that tbe award should not be set aside,</p>

<p>Trusts — Creation—Legal Title.</p> <p>One M. entered into an agreement with the T. G. & Trust Company, whereby he sold and conveyed to the trust company two parcels of land, on one of which was a theater. The parcel on which Lite theater stood was subject, with other land, to a mortgage to a third party, which had been negotiated by the trust company. By an agreement of trust, simultaneously made, a trust was created in the trust, company in the theater, and the land on which it stood, in favor of the trust company, to manage the. theater, collect the rents and profits, pay The expenses of management, and for the services of the trustee, and to repay advances to M. and certain claims against him. After such payn cuts and the payment, of the mortgage, the property was to be reeonveyed to M. M. retained his box and an office in the theater, and also the management of the other parcel of land, the latter for the purposes of the crust. Held, that these agreements did not create a mere mortgage, but vested the legal title to both parcels of land in the trust company, and that M.’s equitable interest was not subject to levy and sale on execution, though the box and office reserved by him might be so sold.</p>

This case came before the court upon a motion for a preliminary injunction, upon a bill and answer that disclose the following facts: In 1856 the legislature of the territory of Minnesota passed “An act to incorporate the Minneapolis & St. Cloud Railroad Company” (Laws Minn. 1856, c. 160).

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

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>The suit out of which these appeals arise was brought by the Farmers’ Loan & Trust Company, the appellee, to foreclose an original and a supplemental mortgage on a certain waterworks plant situated in the city of Omaha, Neb., which were given to secure the payment of an issue of negotiable bonds t.o the amount of |4,000,000, that were executed by the American Waterworks Company, a corporation of the state of Illinois.</p> <p>The action was brought originally against the appellant llie American Waterworks Company of Illinois, and, against a corporation of the same name, to wit, the American Waterworks Company, a corporation organized under the laws of the state of New Jersey. E. Hyde Rust, as suspended receiver of the American Waterworks Company of Now .Jersey, and Alonzo B. Hunt, as temporary receiver of the same company, wen also named as parties defendant to the original bill. The defendant companies filed a joint answer to the bill of complaint, and subsequently an amended answer, wherein they set up various defenses to the suit. After the taking of eousiderable testimony by both parties, a trial was had which resulted in a decree of foreclosure directing a sale of the mortgaged property for tlie satisfaction and payment of the mortgage debt. From that decree the iwo defendant, companies, to wit, the American Waterworks Company of Illinois, and the American Waterworks Company of New Jersey, have appealed.</p> <p>During the pendency of the suit at, bar, an action was commenced in the circuit couit of Cook county, Ill., against the appellant the American Waterworks Company of Illinois, to wind up the affairs of that company on the ground, of its insolvency. In that proceeding Francis B. Peabody was appointed receiver of the property and effects of the insolvent corporation, and thereafter, by an order made, on May 2, 1895,' by the circuit court of the United States for the district of Nebraska, Thaddeus S. Clarkson, the appellant, was appointed ancillary receiver of said company for the dislrict of Nebraska. After the final hearing of the suit at bar to foreclose the aforesaid mortgages, and on the day that the final decree therein appears to have been entered, said Thaddeus S. Clarkson, in his capacity as ancillary receiver of the American Waterworks Company of Illinois, asked leave to file an answer to tlie bill of complaint, which application was by the circuit court refused. From the order thus made denying his application to file an answer to the bill of complaint, Hie receiver has also prosecuted an appeal. Both of said appeals are before this court for consideration upon the same record.</p>

<p>1. Municipal Bonds — Effect of Recitals.</p> <p>Held, pursuant to the decision of the supreme court, that a recital, in a series of municipal bonds, that they were issued in pursuance of an act of the legislature and ordinances of the city council, passed in pursuance thereof, does not put a purchaser upon inquiry as to the terms of the ordinance under which the bonds were issued.</p> <p>2. Same.</p> <p>Held, further, pursuant to the decision of the supreme court, that a recital, in such bonds, that they were issued by virtue of a resolution of the city council, passed on a given date, does not put a purchaser upon inquiry as to the terms of the resolution.</p> <p>3. Same.</p> <p>Held, further, pursuant to the decision of the supreme court, that recitals In municipal bonds, of acts of the legislature, authorizing their issue upon certain conditions, and of the taking of steps to comply with such conditions, the acts so recited being invalid, and the conditions actually required being different, estop the municipality issuing the bonds, as against a bona fide purchaser for value, from asserting that the bonds were not issued under the proper conditions.</p> <p>4. Same.</p> <p>Held, further, pursuant to the decision of the supreme court, that, under such recitals as to the conditions of the issue of the bonds, a bona fide purchaser is not put upon inquiry as to the performance of the conditions actually requisite for the issue of the bonds.</p> <p>5. Samf,.</p> <p>Held, further, pursuant to the decision of the supreme court, that such recitals, as to the legislative authority for the issue of the bonds and the conditions under which they were issued, do not charge a bona fide purchaser for value with notice that the bonds were issued in pursuance of an invalid act, and of the conditions required thereby, but such purchaser has a right to assume from the recital that the conditions both of the invalid and valid acts had been complied with before the issue of the bonds.</p>

<p>1. Master and Servant — Fellow Servants — Personal Injuries.</p> <p>A foreman of a railroad bridge gang, who is a subordinate of the superintendent of bridges, but has authority to hire and discharge the men. under him, and sole power to direct and control them in their work, is their fellow servant, with respect to injuries caused to one of them by his negligence in adopting and pursuing a dangerous method of doing a given piece of work, such as throwing down a railway transfer shed, and the company is.not liable therefor. 6 C. C. A. 142, 56 Fed. 804, reversed. Railroad Co. v. Keegan, 16 Sup. Ct. 269, 160 U. S. 259; Railroad Co. v. Peterson, 16 Sup. Ct. 843; Railroad Co. v. Charless, Id. 848, — applied.</p> <p>8. Same — Unsafe Tools — Manner of Use.</p> <p>If necessary amj safe tools and appliances are furnished by a railroad company for the use of a foreman and a gang of laborers under his control, in doing a given piece of work, but they are not employed, or are unskillfully employed, through the negligence or want of skill of the foreman, the company is not liable for a resulting injury to on® of the laborers; but if the tools and appliances used are insufficient, and are employed because better were not furnished, the company is liable. Railroad Co. v. Keegan, 16 Sup. Ct. 269, 160 U. S. 259; Railroad Co. v. Peterson, 16 Sup. Ct. 843; Railroad Co. v. Charless, Id. 848, — applied.</p>

<p>1. Appeal — Decision on Former Appeal — Binding Effect.</p> <p>On a second writ of error an appellate court is hound by its prior decision only upon points distinctly made and determined, and not upon points which might have been, but were not, raised.</p> <p>2. Same — Different State of Evidence.</p> <p>The rule that an appellate court is bound by its decision on a former appeal in the same case is not applicable where the point decided was dependent on the evidence, and on the second trial the evidence is different in a material respect.</p> <p>3. Masted, and Servant — Fellow Servants — Foreman oe Street Laborers.</p> <p>Where a firm oí general contractors had taken a contract to grade a street, and had two gangs of laborers at work thereon, each under the charge of a foreman having no control over the other, but having power to hire and discharge his own men and control their operations, he'd, that the foreman of one gang was a fellow servant of the laborers under him, so that the master was not liable for an injury caused to one of them by his negligence.</p> <p>4. Same.</p> <p>The rule announced ill Railroad Co. v. Baugli, 13 Sup. Ct. 914, 149 U. S. 368, and in City of Minneapolis v. Lundin, 7 C. C. A. 344, 58 Fed. 325, restated, that, prima facie, all who enter into the employ of a single master are engaged in a common service, and are fellow servants; and that the master is only liable for the negligent performance Of his personal duties, by whomsoever performed, and for the negligent acts of an employe whom lie has intrusted with the entire management and supervision of ali of his business, or with the entire management and supervision of a distinct and separate department of a large and diversified business.</p>

<p>1. Set-Off — Following State Laws.</p> <p>The right of set-off, except as it is enforced in equity, is a matter of local legislation; and the federal courts, sitting in any state, when dealing with the subject, will follow the rules established by the tribunals of the state.</p> <p>2. Same — Insolvent or Nonresident Plaintiff.</p> <p>Where the state statute of set-off, as in Illinois, does not authorise a set-off, in action on contract, of unliquidated uumages arising out of contracts or torts, not connected with the subject-matter of the suit, there can he no set-off, in an action at law, of such damages, even as against an insolvent or nonresident plaintiff,</p> <p>i!. Same — Inconsistent Demands.</p> <p>It is no objection to a set-off, claimed by a defendant, that it is inconsistent with another set-off, previously claimed by him, and rejected as improper.</p> <p>1. I)am a oes — U ni. i q t:ro ated.</p> <p>Where it is alleged that one party has agreed to ship to another, as his broker, all the goods made by him, and to pay the broker a certain rate of commission on the sale thereof, a claim by the broker of a breach of the contract, in failing to ship to him a part of such goods, is a claim for unliquidated damages.</p> <p>5. Same — Account ¡stated.</p> <p>The rule whereby a merchant’s account, which has been presented, and not objected to, is treated as an account stated, does not apply to a distinct and independent claim for damages for breach of contract.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois, Northern Division.</p> <p>This was an action by the Columbus Construe Lion Company, against the Crane Company to recover for alleged breach, of a con-t tract of sale. The circuit court sustained demurrers to the declaration, and, plaintiff declining to amend, judgment was rendered for defendant. On appeal to this court, that judgment was reversed, and 1 he cause remanded for further proceedings. 3 C. C. A. 216, 52 Fed. 635. Afterwards a trial was had before a jury, resulting in a verdict and judgment for plaintiff in the sum of $48,000, and defendant brings the case here on writ of error.</p>

<p>In Error to tlie Circuit Court; of the United States for the District of Colorado.</p> <p>At some time in the early part of .1884 the New United States Cattle-Ranch Company, Limited, a corporation, and tlie defendant in error herein, agreed to purchase of William J. Wilson, the plaintiff in error, the Circle ranch, which was located on the Republican river and some of its tributaries in the states of Nebraska, Colorado, and Kansas, and 6,000 head of cattle grazing thereon, and to pay therefor about $300,000 in money and some stock of the corporation. By this contract, and its various modifications, the plaintiff in error covenanted to convey to the vendee a good title to 3,000 acres of land, and to deliver to it 6,000 head of cattle. The vendee paid $63,850 of the purchase price, took possession of the ranch and of some of the cattle, and gave a bond and mortgages upon the cattle and the land to secure the payment of the balance of the price. The vendor made a bill of sale of the cattle, and a deed of 453.80 acres of the land to the vendee, and also gave to it a bond to convey a good title to the remainder of the 3,000 acres of land. All these papers were deposited with a bank in the city of Denver, to be delivered to the vendee if it paid the balance of the purchase price according to their* terms, and to be delivered to the vendor if the vendee failed so to do. It was also agreed that the moneys realized from the sales of the cattle meanwhile should be applied in piart payment of the xjurchase price. On the 22d day of July, 1885, the vendor entered ux:>on this ranch, took possession of the cattle and personal property thereon, and in the month of Sex>tember sold them under the chattel mortgage given by the vendee for a default in the payment of an overdue installment of the purchase price. Thereupon the cattle company brought an action against the plaintiff in error in the court below for $250,000. It alleged in its complaint that the x>laintiff in error had by false and fraudulent representations as to the number and character of the cattle, and as to his title to the 3,000 acres of land, and as to the quantity of other land to which he had the right of possession, and as to the previous sales of cattle from this ranch, and as to various other matters connected with the transaction, induced it to make the contract of purchase and the various modifications thereof, and to pay that portion of the X>urchase price which it had paid. It also alleged that the plaintiff in error had made covenants which he had not kept, and warranties which he had broken. After setting forth these various false representations, which the defendant in error averred had induced it to make the contract of purchase, and the various covenants and warranties which it alleged the iffaintiff in error had made and broken, it closed the statement of its cause of action with these two allegations: First, it alleged that it did not ascertain until after the 19th day of September, 1885, on which day the personal property was sold under the chattel mortgage, the frauds and tricks practiced upon it by the vendor in counting and delivering the cattle, and that immediately thereafter, on account of shortages and violations of t.hc agreement, on account of the substantial failure of the vendor to carry out his contract, on account of the entire failure of said transaction, and on account of the deceit and fraud of the defendant, and the failure of the consideration which induced it to enter into the contract, it renounced the said contract of purchase, and demanded repayment of the moneys it had laid out and expended, which, it alleged, amounted to $250,000; second, it alleged that, at all times after the making of the contract and of the modifications thereof, it had been willing and had offered to carry out and perform its part thereof, upon the performance by the plaintiff in error of his promises and undertakings contained therein, but that he had utterly failed and neglected to perform the contract on his part, so that the considerations which induced the plaintiff to enter into it had utterly failed, and the objects and purposes to be attained thereby were eomxfietely destroyed, and great loss and damage was inflicted upon it by the fraud and deceit of the defendant, and by his failure to perform his contracts and undertakings, and to make good his representations and statements. These allegations are followed in the complaint by a prayer for $250,000, and interest from September 19, 18S5. Issues were joined upon the averments of this complaint, and upon their trial the jury returned a verdict against the plaintiff in error for $50,000. It is the judgment upon this verdict that is attacked by this writ of error.</p>

<p>Appeal' from (.he Circuit Court of the United States for the Western District of Missouri.</p> <p>The First National Bank of Sedalia, on the 20th day of July, 1893, being in need of funds to use in its banking business, requested of H. W. Wood and E. G-. Cassidy, the appellees (and one E. A. Phillips, who, having passed out of the case, will not be further mentioned), the loan of their names and credit to borrow $10,000, which request was acceded to, and the appellees made a promissory note payable to the order of the bank for the sum of $10,000, with the understanding that the note should be indorsed and discounted by the bank, and the proceeds thereof used by the bank for its own purposes. The note was discounted with the Commercial Bank of St. Louis, and the proceeds us'ed by the Sedalia National Bank. At the time of the making of the accommodation note by the appellees it was agreed between them and the bank that the bank would place to the credit of the appellees on the books of the bank a credit equal in amount to the proceeds realized from the discount of the note, and this was done, the credit amounting to $9,802.22. It was stipulated that the appellees were not to check against this credit except to pay the note, or reimburse themselves for paying it. The note was twice renewed under the same agreements, and for the same purposes, and, the bank failing to pay the last renewal thereof at maturity, it was paid by the appellees on (lie 25th day of May, 1894. The bank failed on the 4th day of May, 1894, and W. A. Latimer, the appellant, was duly appointed receiver thereof by the comptroller of the currency on the 10th day of May, 1894. The appellees recovered a judgment at law against the receiver for the amount paid by them to take up the note, and interest thereon, amounting to the sum of $10,675.24. In this suit the appellees seek a decree against the receiver for the amount of the credit in their favor standing on the books of the bank, placed there under the agreement. The lower court rendered a decree that: “The complainants have and recover the sum of $9,802.22 against the respondents as a special claim against tlie estate in tlie hands of the respondent W. A. Latimer, as receiver of the First National Bank of Sedalia, which said sum is to be paid by said receiver out of the assets in his hands to the extent and until the sum realized thereon, in connection with any dividends paid by said receiver on the judgment between the above-named parties in the action at law, this day entered of record in this court, shall be equal to and be in satisfaction of the sum of 310,675.24 and the interest accrued thereon from the date of said judgment at law; the object, intent, and purport of this decree being that the complainants, the said H. W. Wood and JE. G. Cassidy, shall receive in the distribution of said estate by said receiver a pro rata dividend with other creditors of said estate in both the said judgment at law and under this decree to the extent of the sum sufficient to satisfy the amount of said judgment at law, to wit, the said sum of 310,675.24, and said interest thereon.” From this decree the receiver appealed to this court.</p>

This was an intervening petition filed by P. F. Collier, in the suit -of the Farmers’ Bo an & Trust Company against the Oregon Kailway & Navigation Company, to recover damages for the loss of certain goods of the intervener.

<p>Lease of Coal Mines — Dependent and Independent Covenants.</p> <p>A lease of coal lands required payments quarterly of royalties on tlietonnage mined, the lessee being bound to pay on a certain minimum tonnage, whether actually mined or not. At the time of the lease two mines already had railroad connections, and the lessor covenanted within six months after demand to extend the road to a new mine which was to be opened, also to make certain other extensions within periods ranging from a year to 18 months; and for any default as to such extensions the lessee was authorized to terminate the lease. Held that, as the minimum royalties were to become due, in part, before performance by the lessor of its covenants to make the extensions, such covenants were to be regarded-as independent of the covenants to pay royalties, and the lessor's failure therein was no defense to an action for minimum royalties which became due prior to a termination of the lease by the lessee.</p>

<p>CONSTITUTIONAI, LAW — STATING PURPOSE OB’ STATUTE IN TlTI.E — NEBRASKA Constitution.</p> <p>By an act, passed in 1879, the legislature of Nebraska enacted a general system of assessment and taxation of property, which provided, among other things, that the roadbed, right of way, tracks, depot grounds, and buildings and rolling stock of any railroad company should be returned by its officers to the auditor of public accounts, assessed by the state board of equalization, and eertffied to the clerks of the several counties through which (he road ran in proportion to (he number of miles in such counties, respectively. By section 79 of an act passed in 1887, incorporating metropolitan cities, and defining their powers, the legislature gave power to such cities to assess certain buildings within the right of way or along the track of any railroad company, used for purposes of rent by such company, or for purposes other than the ordinary operations of such company, and not appearing on the county rolls because not returned to the state officers with the railroad property as such. In 1891 an act was passed, entitled “An act to amend sections 11 * 79 * * *” of the act of 1887, “and to repeal said sections so amended.” This act introduced into that of 1887 a provision (hat the right of way of any railroad in a city should include only 59 fee! of land on each side of the main tracks, and that all lands and buildings outside of such 50 feet should be assessed by the city authorities, in <S93 another act was passed, entitled “An act to amend sections 1 * * * 79 * * • of” the act of 1887, “as subsequently amended, and to repeal said sections as heretofore existing.” By this amendment the city authorities were authorized to list and assess the roadbed, right of way, tracks, depot buildings, and grounds and all the property of any railroad company within the city, and not appearing on the county rolls by reason of having- been returned or listed to the state auditor. Held, that the acts of 3891 and 1893 violated the provision of section 11, art. 3, of the constitution of Nebraska that “no bill shall contain more! than one subject and the same shall be clearly expressed in its title,” since the acts contained provisions relative to a subject-matter not: dealt with by the a.ct amended, conferred new powers on the city authorities, and that of 3891 undertook to define the limits of a railroad right of way, none of such purposes being sufficiently indicated by the titles of the acts; and, accordingly, that the acts were void.</p>

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

<p>On petition for rehearing.</p>

<p>On application for rehearing.</p>

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