Volume 74 — Federal Reporter

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

<p>1. Review on Error — General Findings of Fact.</p> <p>The question whether a general finding on the facts was supported by the evidence cannot he considered where the hill of exception^ fails to state that it contains all the evidence.</p> <p>S. Same — Trial to Court without Jury.</p> <p>' In an action at law tried to the court without a jury, where the finding on the issues of fact is general, and no exceptions are taken to the rulings of the court in the progress of the trial, and the complaint states a cause of action, there is nothing for the appellate court to consider.</p>

<p>Appeal from tbe Circuit Court of tbe United States for tbe District of Colorado.</p>

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

<p>United States Coujrts — Jurisdiction—Federal Question — Acttobt asainst Dibectobs op National Bank.</p> <p>An action against directors oí a national bank for damages for inducing tlie plaintiff, by false representations contained in the reports made by them in accordance with the statutes and the regulations of the comptroller of the currency, to loan money to the bank, which he lost through its insolvency, does not present a controversy arising under the constitution or laws of the United States, of which the federal courts have jurisdiction, either originally or by removal.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Eastern District of Tennessee.</p> <p>This is an appeal from a decree of tlie circuit court of the United States for tlie Northern division of tlie Eastern district, of Tennessee dismissing a bill filed by William N. Coler, Jr., against the county of Grainger and T. J. Smith, receiver of tlie Morristown & Cumberland Gap Railroad Company, appointed in another proceeding in the same court entitled “John Coleman vs. The Morristown & Cumberland Gap It. It. Go. et al.” Color’s bill was based upon a written contract of subscription for $75,000 of the par value of the capital stock of the Morristown & Cumberland Gap Railroad Company, entered into, as alleged, by the county of Grainger, by its proper officers, and with due legislative authority. Tlie bill averred that tlie railway company was organized under the laws of Tennessee for tlie construction and maintenance of a railroad from Morristown, in Hamlin county, Twin., through Grainger county, to a connection with the Knoxville, Cumberland Gap & Louisville Railroad, which was already constructed and in operation in the western part of said Grainger county; that this subscription was a consideration for the construction of the road; that the road was constructed, and that the contract of subscription, having been fulfilled on tlie part of the railroad company, was binding -upon rlie county; that tlie railroad company had assigned the contract of subscription, together with $75,000 of the I>ar value of tlie stock, to Allison, Shafer <fc Co., tlie principal contractors in tlie construction of tlie road, to enable them to borrow money for the completion of tlie road; that this was done with the knowledge and consent of Grainger county; that Allison, Sliai'er & Co. borrowed a large sum of money from the Western National Bank of New York, and deposited tlie contract of subscription as collateral to secure payment of tlie same; that after-wards, when the debt was due and not paid, tlie bank sold the subscription, with the stock attached, to Jordan U. Mott, a citizen of New York; that tlie sale was public, and under the laws of New York providing for, authorizing, and regulating tlie same, and judicial in character, and by virtue thereof tlie said contract of subscription, and said stock, with all rights thereunder against said county of Grainger, and charged witli the same trusts in favor of said county of Grainger, passed to said Jordan L. Mott, Jr., who was and is a citizen of New York; that on February -R 1891, said Mott transferred the stock and contract of subscription to the complainant, a citizen of New Jersey at the date of the transfer to him, and who still remains such; that the county refused to take the stock and pay for same. Tlie complainant, asked a decree adjudging the obligation of the county upon the subscription, and compelling it, by decree of specific performance, to take the stock, and to levy tiie tax and pay the same as provided by tlie law of tlie slate of Tennessee, or to issue bonds at the election of tlie county. By way of amendment to tlie bill tlie complainant further alleged that on May 20; 1892, John Coleman, a nonresident of Tennessee, and a citizen of another'state, filed his original creditor’s bill against the Morristown & Cumberland Crap Railroad Company in the circuit court of the United Stales for tlie same district and division, alleging that the railway company was indebted to him, and that it was insolvent, and asking that its affairs he wopnd up as an insolvent corporation, and that the court take jurisdiction of the same, and direct that its affairs should be wound up in said cause; that the court appointed T. J. Smith, of the state of Ohio, to be the permanent receiver of the Morristown & Cumberland Gap Railroad Company, and of the property and assets of the railway company, and directed him to take charge and possession of all the property, real and personal, of the said railway company; that Smith at once qualified and took charge of the railroad and its assets, and still retained the same, and was then acting as such receiver, under an order of the court, and that the suit was still pending in the court, and undis-posed of; that the court having further ordered that all parties having claims against said insolvent railway company should file the same therein, and that they should be, and they were, and still were, enjoined from proceeding against said insolvent railway company or its property, or other assets, otherwise and elsewhere; that on the Slst of January, 1894, -a decree was pronounced in the court adjudging a large portion of claims to be liens upon said roa'd, and the remainder were adjudged to be general claims against the said railroad company, and said railroad w&s ordered to be sold to satisfy said lien claims first, and it was directed that any surplus should be applied to the general debts, but that the sale had not yet been made; that the subscription to the capital stock of the railroad by the county had been made with the Morristown & Cumberland Gap Railroad, and the legal right to the same, and to bring action thereon, was vested in the said railroad company, but was now vested in the said T. J. Smith, as receiver as aforesaid, by virtue of his appointment by this court; that in equity the subscription was due to complainant, and that it was the duty of the receiver to collect the subscription from Grainger county for the benefit of the complainant; that the railroad company had contracted with Shafer, Allison & Co. to collect this subscription, when due, for the benefit of their assignees, and that the complainant was advised and insisted that the said T. J. Smith, representing the railroad company under the orders of the court, was bound to bring said suit, and that he had wholly failed and neglected, and still refused, to institute any legal proceedings, or to take any legal steps, to collect the subscription, though specially requested thereto; that the remedy of complainant at law to recover was embarrassed; that the receiver was a necessary party to collect tlie subscription, but, on account of his said refusal, complainant was without remedy,' except in a court of equity. A demurrer was filed to the original bill before amendment. Thereupon the amendment already described was filed by leave of court granted as follows: “In the Circuit Court of the United States for the Northern Division of the Eastern District of Tennessee.</p> <p>“John Coleman vs. Morristown & Cumberland Gap R. R. Co. (No. 942 and 954), and Wm. N. Coler, Jr., vs. Grainger County (No. 1,001).</p> <p>“The complainant, Wm. N. Coler, in the second cause above named, No. 1,001, upon application for that purpose, and for sufficient reasons appearing to the court, is allowed to amend his original bill by adding a sixth paragraph thereto, which shall follow the fifth paragraph of the bill, and precede .the prayer thereof. Said amendments relate to the receiver of the Morristown & Cumberland Gap Railroad Company, and make him a defendant to said bill, and are accordingly made by inserting said amendments on the face of said original bill. And said original bill is further allowed to be amended by inserting the name of the said T. J. Smith, as one of the defendants, in the caption of said bill, and also by striking out of the fourth paragraph of said bill the following words: ‘And agreed to take said'stock and to pay said subscription to the holders thereof, when said road was completed.’ ■It is further ordered that this order be entered in the said first above-named cause of John Coleman against the Morristown & Cumberland Gap Railroad Company, et al.; and the injunction granted in said first above-named cause against bringing suits against said receiver is so far modified as to allow the said bill of the said Wm. Coler to be filed against said receiver and said county of Granger as said original bill is now amended, in the nature of a petition of intervention in the said insolvent proceedings of John Coleman against Morristown & Cumberland Gap Railroad Company et al.”</p> <p>Smith. tlie receiver, filed an answer to tlie bill, in wliieli lie admitted tlie subscription, and did not deny tlie assignment, but asked for proof thereon. He inn her admitted the demand upon him to bring tlie suit, and his refusal to do so. Tlie county of Grainger submitted a demurrer on the following' grounds: first. “There are up facts stated and set forth in the original and amended bills which authorize this Court to take jurisdiction of tlie demands therein sued upon, either on account of tlie character and nature of the demands, or the -citizenship of the parties. Second. The complainant seeks in his said original and amended bills to recover tlie contents of a contract which it is alleged the defendant Grainger county made with tlie Mor-ristown & Cumberland Gap Kailroad Company, a corporation created under the laws of Tennessee, and a, citizen of that state, by subscription to its capital stock in the sum of 870,000, payable in cash, or bonds of the defendant, claiming to hold and own said contract as assignee of the said railroad company, when this court is expressly prohibited from taking cognizance oil such a chose in action by act of congress of March 3, 1887, because no suit could have been prosecuted in this court to recover the said contents if no assignment or transfer had been made. Third. Because it appears that the complainant has a clear, adequate, and complete remedy at law to recover upon, and enforce the performance of, the contract sued upon, and no sufficient reason is shown for the interposition of a court of equity in liis behalf, fourth. Defendant demurs to so much and such part of tlie said original and amended bills as seek to compel it to issue bonds in payment of its alleged subscription to tlie capital stock of the Morristown & Cumberland Gap Railroad Company, because the statutes contained in the Code of Tennessee (sections 1278-1296), under which the proceeding for said subscription was had, do not authorize comities to issue bonds for said purpose, and without. such authority the defendant cannot do so.”</p> <p>In tlie Coleman ease the amended bill, as an intervening petition, was dismissed on the ground that the matters therein sought to be litigated were, foreign to the purpose of the Coleman suit, and also that the court liad no jurisdiction to enforce the judgment sued upon by petition. The dismissal ivas without prejudice to bring another suit. In the Coier suit the following entry was mode: “Came the complainant, by solicitor, and moved the court to proceed with this cause under original bill, as amended, as an original or dependent bill, which motion is overruled and disallowed. Thereupon this cause came on to be hoard before the Honorable Charles 1). Clark, judge,” etc., “sitting in equity, upon the original bill of tlie complainant, the amendment made thereto, and the demurrers tiled by tlie defendant to the original bill, and to it as amended; and it appearing to tlie court from the amendment made to his bill, and tlie proceedings had thereon in the case of John Coleman vs. Morristown & Cumberland Gap Kailroad Company, that the complainant had filed the same as a petition of intervention in the cause now pending in this court, of Jolm Coleman vs. the Morristown & Cumberland Gap Kailroad Company, and has thereby elected to abandon it as an original bill and proceeding In this court, and conceded the demurrer filed by the defendant on account of want of jurisdiction in this court oyer the subject-matter in controversy to be good in law, which is also tlie judgment of this court, and that for these reasons tlie suit should be dismissed, tlie court is pleased to order, adjudge, and decree that the said demurrer be sustained. and that the complainant's bill be, and the same is hereby, dismissed, and that the defendant Grainger county recover of Wm. N. Coier, and Tem-pleton <íí Cates, his security on Ills prosecution bond, all the costs of Ibis cause, for which execution shall issue.”</p> <p>From this decree tlie defendant till'd his assignments of error, as follows: “(I) On July 26, 1895, said United States circuit court entered a decree in said cause, nunc pro tunc as of March 20, 1895, dismissing- complainant’s bill, and adjudging costs against, complainant, and holding that the amendment to his bill made by complainant by leave of court oil January 2, 1895, was an abandonment of the same, and that complainant ‘thereby elected to abandon it as an original bill and proceeding in this court, and conceded the demurrer filed by defendant on account of want of jurisdiction in this court over tlie subject-matter in controversy to be good in law, which is also the judgment of .this court.’ This holding and decree was manifest error because said amendment only made T. J. Smith, receiver of the Morristown & Cumberland Gap Railroad, a defendant, and showed that said receiver had been appointed in the insolvent case of John Coleman against the Mor-ristown & Cumberland Gap Railroad Company in this court, and prayed to be allowed to file said bill, as amended, in the nature of a petition of intervention in said insolvent proceeding's, and' then prayed full relief on the bill, as amended, against Grainger county and against said receiver. This amendment was allowed to be made, and new process was awarded by the court, on said January 2, 1895, and was not an abandonment of said original bill, but simply brought said receiver properly before the court in said cause. (2) Said judgment of the court in sustaining said demurrer was further erro-meous because said original bill, as amended, showed that the property sued tfor, viz. the subscription of Grainger county set out in the bill as amended, was legally, and by judgment of this court in said insolvent proceedings, in the custody of said receiver, the right of action for said subscription was in said receiver,, who was an officer of this court, and was therefore a proper-party to said suit, and could only properly be sued in this court, and by leave of this court, in reference to said asset. (3) Said bill further showed that the legal title in said subscription, and right of action, therefor, had to pass to and was vested in said .receiver by judgment of this court, — that is, by operation of law, under the judgment appointing him to said receivership, —and as said receiver was at that time an officer of the court, and could sue in this court, so could complainant, who owned the equitable interest in said subscription. (4) Said biU further showed that the complainant owned the equitable right and interest in said subscription by public sale under.the laws of Mew York, which was therefore judicial in character, and passed to complainant the right to receive said subscription by operation of law, and not by voluntary assignment. (5) The subscription of Grainger county to the Morristown & Cumberland Gap Railroad, which is set out in the bill, was and is valid, authorized by the statute law of the state of Tennessee, -and binding on said county, and said demurrer should also have been overruled, and defendants should have been required to answer said bill and amendment. (6) The court erred by the decree of March 18, 1895, in the said insolvent case, in dismissing said bill and amendment, and treating the same as an ordinary intervention in said insolvent case, and as an abandonment of all rights thereunder.” '</p> <p>After Smith, receiver, had filed his answer, it appeared that, in the suit in which he had been appointed, the railroad company made application to give bond for the payment of Coleman’s claim, and to have the receiver discharged. This was done. After the receiver of the federal court had been discharged, Shields was appointed receiver by the chancery court of the First chancery district in Tennessee on a proceeding by another creditor of the railroad company, and Shields, <, as receiver, went into possession. Subsequently the federal court, upon application made in the Coleman suit, appointed one Whitney as temporary receiver. Whitney ousted Shields from possession. Shields, by intervening petition, appeared in the federal court, hnd raised the question of the jurisdiction of the federal court to put Whitney in possession after he (Shields) had taken possession of the assets and property of the road under the state court order. The federal circuit court denied the prayer of the state court receiver’s petition, and held that the federal receiver was properly in possession. Shields appealed from this order to the supreme court of the United States (15 Sup. Ct. 570), and that court upheld his claim, reversing the order, putting Whitney in possession, and directed that the assets 'and property of the road be turned over to Shields, as receiver of the state court.</p>

<p>1. Equity Jurisdiction — TSxjorNimi Collection of Default Judgment -— Averments as to Notice.</p> <p>In a suit by a foreign insurance corporation to enjoin the enforcement of a default judgment against it, mere allegations that service was made on agents not authorized to receive the same, instead of upon the duly-authorized state officer, and that defendants “remained silent,” and “concealed” the fact of such service, until after the end of the term at which the judgment was rendered, are not sufficient grounds for granting an injunction, in the absence of any averment that complainant did not in fact have any knowledge of the suit in time to make a defense.</p> <p>3. Same — -Showing Defense on Merits.</p> <p>The enforcement of a default judgment will not be enjoined by a federal court when there is color of claim that due service was made, that the complainant had notice, and that the cause of action was founded on a liquidated and prima facie demand, unless complainant also shows a good defense on the merits. White v. Grow, 4 Sup. Gt. 71, 110 17. S. 183, and Ablentan v. Roth, 12 Wis. 81. followed.</p> <p>8. Federal Couets — Kquity Jurisdiction--State Statutes.</p> <p>Although a state statute cannot restrict or limit the equity powers of the federal courts, yet its provisions may be justly observed, to the extent to which the court is authorized to exercise a discretion,' within the general rules of equity jurisprudence. Cowley v. Railroad Go., 1(5 Sup. Ot. 127, 159 U. S. 509, followed.</p>

<p>Appeal from the Circuit Court of the Uniied States for the District of Massachusetts.</p>

Submit ied on petition for writ of babeas corpus, and the return of Ai-chur M. Bartlett, sheriff of Dawes county, Neb., to the writ, showing the process under which the applicant wras arrested, and the grounds for (.he issuance thereof.

<p>This was a suit by the Interstate Commerce Commission against the- Southern Pacific Company and other railroad companies to enforce an order made by the commission in respect to certain rates for transportation of freight.</p>

This was an indictment against Peter M. Baum for adultery, alleged to have been committed in Utah Territory. The case was heard on motion to dismiss- the prosecution.

The appellees, Catherine M. Blows and Hurlburt B. Gheever, brought this action in the United States circuit court for the district of Nebraska, as executors of the last will of Amasa R. Gheever, against the appellants, Bva Fitchett and George H. Fitchett, and against G. H. Pray, J. C. Cornwall, and H. P. Dufur, to reform three promissory notes made by Eva Fitchett and G. H. Fitchett to Amasa R. Olieever, to enforce the collection of these three notes, and of another note for…

<p>1. Equity — Forfeitures—Inequitable Conduct — Interest.</p> <p>Equity abhors forfeitures, and will not concern itself to make good the loss of interest to one who refused the principal in the hope that he could enforce, upon purely technical grounds, a forfeiture of lands sold and all payments made thereon, under the terms of a harsh and unconscionable contract.</p> <p>2. Tender of Payment — Place of Tender-Subsequent Interest.</p> <p>Failure of the. holder of notes payable at a particular place to have them at such place on the day they become due, so that the agent to make the collection refuses to receive the amount when tendered, deprives the holder of any right to subsequent interest, ivhere it does not appear that the debtor has realized any interest on the money tendered.</p> <p>3. Same — Keeping Tender Good.</p> <p>In order to stop interest, it is not necessary that one making a tender should set the money aside, and hold it continuously subject to the order of the creditor, but he may use it as his own, and is only under obligation to be ready at all times to pay the debt in current money when requested. Curtiss v. Greenbanks, 24 Yt. 536, followed.</p> <p>A Vendor and Vendee — Contract of Sale — Stipulation against Assignment.</p> <p>Wherq all the vendee’s engagements have been promptly fulfilled, and the final payments made or tendered, the vendor cannot' ref use to make a deed, as required by the contract, on the ground that the vendee assigned the contract without his consent, contrary to express stipulation. Such a stipulation ceases to operate when all the vendee’s engagements are performed; and, even if an assignment has been made previous to final performance, the vendor cannot object thereto, after failing to do so at the tim'e of the assignment, or on receiving notice of it. Wagner v. Cheney,’ 20 N. W. 222, 16 Neb. 202, followed.</p> <p>5. Specific Performance — Parties—Assignment of Contract.</p> <p>Where the suit is brought by an assignee of the contract, defendant cannot-object that the assignment is not evidenced by a formal written instrument or deed, and that the assignor should therefore be a party, where the fact of the assignment is asserted by the parties thereto, upon the record, in a mode which will estop them from asserting the contrary, as against the defendant.</p> <p>6. Tender — Bringing Money into Court.</p> <p>It is sufficient that a tender is made in the bill, with an offer to bring the money into court whenever the court directs; and it is not necessary that the money shall be brought into court on the filing of the bill.</p>

This was a suit in equity by tlie New York Security & Trust Company against the Lincoln Street-Railway Company and others for the foreclosure of a mortgage securing an issue of bonds. The cause was submitted on demurrers filed by the defendants.

<p>Carriers — Powers of Interstate Commerce Commission — Fixing Rates.</p> <p>The interstate commerce commission has no power, express or implied, to fix maximum rates. Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 16 Sup. Ct. 700, followed.</p>

<p>Appeal from the Circuit Court of the United States for the District of South Carolina.</p> <p>This was a suit in equity by the American Freehold Land-Mortgage Company of London, Limited, and others against J. J. Whaley and P. W. Farrell, to foreclose a mortgage. There was a decree for complainants in the circuit court (63 Fed. 743), and the defendants appealed.</p> <p>On the 25th October, 1883, W. H. Duncan, residing in Barnwell county, S. C., put iñ his county newspaper an advertisement of “money to lend in sums from $300 to $500,000, on five years’ time.” W. H. Duncan, now dead, who made this advertisement, vras a man of small means. W. H. Duncan was a lawyer, but his son, W. J. Duncan, whom he associated in the business with him under this advertisement, was not. The business, as described by W. J. Duncan, the son, was that of negotiating loans for those who applied, and upon the securities they could give. The father attended to the law part of the business, and the son assisted him in negotiating the loans. Tlioy did a large business; negotiated loans to the amount of $250,000 or more in Barn-well county alone. All these loans were negotiated possibly with eight or ten companies, all having their places of business in New York City, but W. J. Duncan can remember only six. The business of the Duncans was conducted through the Corbin Banking Company, of New York, according to a routine described as follows by W. J. Duncan, the Corbin Company furnishing the printed forms: “The party made the application to us for the amount of money desired, giving a description of the property he proposed to mortgage, and also made a contract agreeing to pay us 20% commission; to pay for the abstract of title, and recording the mortgage, etc. We prepared the abstract of title, and with the application, contract, and inspector’s report, and questions for applicant’s agent to answer, we forwarded these to New York, to our correspondents, the Corbin Banking Company, who endeavored to negotiate with investors wherever they could find them. If they succeeded in negotiating the loan, the abstract, with the mortgage and notes, were returned to us for closing the loan, with a check from the Corbin Banking Company for the money. We did not know if we could get any money upon the application, nor did we know who the lender wonld he. We only knew who the lender was when the money was sent to us for closing the loan.” While W. H. Duncan was conducting this business, in December, 1886, or January, 1887, the defendant below, J. J. Whaley and himself met at a public meeting in which money matters were discussed, when Duncan informed Whaley that he was the agent of the Corbin Banking Company. Whether the subject of the loan to Whaley was first broached by Duncan or by Wha-ley, it was agreed that Duncan would get for Whaley the money he wanted. They entered into a contract as follows, which docs not violate the usury laws of South Carolina:</p> <p>“Whereas, I have this day employed W. H. Duncan to negotiate for me a loan of $5,000 for a term of five years, with interest at the rate of eight per cent, per annum, upon a note and mortgage securing the same, which shall be a first lien upon my farm in Barnwell county, S. C.: Now, then, If he shall succeed in negotiating said loan within thirty days, upon the usual conditions exacted by Eastern money lenders as to security, perfecting of title, insurance, &e., 1 agree to pay the said W. H. Duncan the sum of $1,000, which shall be in full of his commissions and the commissions of those whom he employs to assist him in making said negotiation. X also agree to furnish an abstract of title to the farm, and to pay the fee for recording my mortgage.</p> <p>“J. J. Whaley.</p> <p>“Dated January 12, 1887.”</p> <p>In this certificate upon the application of Whaley, Duncan described the borrower as a man whose general reputation and standing in the community was “No. 1,” who always paid his hills promptly for cash; never allowed himself to he sued: had a “splendid” supply of farming implements and machinery; was “strictly” temperate, industrious, economical, and honorable; who did not touch a drop of liquor; who only wanted the money to take up a prior mortgage and further improve his property proposed as security for the loan; who had other means of living, — a handsome income, from a mill; and, finally, that the land offered to secure a $5,000 loan was worth $15,000 in cash. Altogether, Duncan’s certificate described a first-class risk, In commercial language. Some time after the public meeting, Duncan mentioned to Whaley that he could get the money, and, three or four weeks later, informed him that he had the “papers fixed, all ready,” and came out to Whaley's residence, where the papers wore all signed. Among the papers signed by Whaley was the following note and contract:</p> <p>‘■$5,000. Blackville, S. O., Febry. 19th, 1887.</p> <p>“On the 19th day of February, 1892, 1 promise to pay the American Freehold Band-Mortgage Co. of London, Limited, or order, at the office of the Corbin Banking Company, New York City, five thousand dollars in the gold coin of the United States, of the present standard of weight and fineness, with Interest from this date at the rate of eight per cent, per annum, pay-Rbly annually, as per 5 interest notes hereto attached, value received. Should any of said interest not he paid when due, it shall hear interest at the rate of ten per cent, per annum from maturity, and, upon failure to pay any of said interest within thirty days after due, said principal sum may, ¡it the option of the holder of this note, he declared clue, without notice, and may thereupon be collected at once, time being of the essence of this contract; and, in case this note Is collected by suit, agree to pay all costs of collection, including ten per cent, of the ’principal and interest as attorneys fees, rt is expressly agreed and declared that this note is made and executed under, and in all respects to he construed by, the laws of the state of South Parolina, and is secured by mortgage of even date herewith, duly recorded. j. j. Whaley.</p> <p>“No. 42,5oS.”</p> <p>Five coupon notes were attached, for the installments of Interest which would accrue annually, all made payable at the Corbin Banking Company, in New York City. On the same day, Whaley executed the mortgage deed to secure the note, which was duly recorded on the 28th February, 1887, in the proper office of Barnwell county, S. C. In accordance with the premises the American Freehold Land-Mortgage Company oí London placed in the hands of the Corbin Banking Company the snm of $5,000, and took the note of Whaley above mentioned. On the same day, the 19th February, 1887, the defendant gave a receipt to the latter company, as follows:</p> <p>“19 Feb., 1887.</p> <p>“Received from the Corbin Banking Co. five thousand dollars, proceeds of loan negotiated by them for me with the American Freehold Land-Mortgage Company of London, Limited, less commissions, as agreed.</p> <p>“J. J. Whaley.”</p> <p>The money received by the Corbin Banking Company from the Freehold Mortgage Company was not all paid over to Whaley, the borrower. Fifteen per cent, of it was retained as its own commission for negotiating the loan. Nor was the remaining $4,250 paid directly to the defendant Whaley. It was paid to W. H. Duncan, who applied it first in payment of his own commission of $250, due under the contract of January 12, 1S87; leaving $4,000, which amount was applied for the benefit of Whaley, chiefly in discharge of one or more mortgage debts previously secured on Whaley’s land, and to other debts of Whaley. A very inconsiderable sum, left after these larger liquidations, was paid to Whaley. W. G. Wheeler, a partner in the Corbin Banking Company, and the person who, on its behalf, negotiated for Whaley, through Duncan, for the loan sought by Whaley, testified, on material points, in substance, as follows: “When a loan is applied for, if it appears of a character that investors would regard it favorably, we call it to the attention of such person, firm, or corporation as would probably make the loan, and solicit the acceptance of it. We have no assurance beforehand that any particular person or firm will make the loan. We never know, until we attempt it, which of several parties to whom we go will accept it. There are half a dozen loan institutions to which we apply in such cases. The Corbin Banking Company received an application from Whaley, through 'Duncan, for a loan of $5,000. The application was signed by Whaley, and was accompanied by an agreement to pay a commission for services in negotiating the desired loan. We applied for this loan to J. K. O. Sherwood, the agent in New York of the American Freehold Land Company of London, whose business was the loaning of its funds upon improved real-estate security in this country. Sherwood was its agent for accepting or rejecting applications for such loans. The loan was made to Whaley by the American Freehold Land-Mortgage Company, and the Corb4in Banking Company received from it, for Whaley, five thousand dollars, — no less, no more. lie received from the defendant Whaley a receipt signed by him, to the Corbin Banking Company, for $5,000, negotiated by them for him with the American Freehold Land-Mortgage Company, less commissions as agreed. Neither the American Freehold Land-Mortgage Company nor the said Sherwood liad any interest whatever in the commission paid by Whaley for negotiating the loan, and neither of them ever received any part of such commission. The American Freehold Land-Mortgage Company never paid the Corbin Banking Company anything for its services in this or any other loan; and the Corbin Banking Company never paid, or agreed to pay, to the American Freehold Land-Mortgage Company, all or any portion of the commissions received by the Corbin Company for services in respect to this or any other loan.” James K. O. Sherwood, a dealer in real-estate securities, testified on material points in this case substantially as follows: “In January, 1887, the Corbin Banking Company, of New York City, came to me, as agent of the American Freehold Land-Mortgage Company of London, for acceirting or rejecting loans on its account, and applied to me for a loan of $5,000 for five years, at 8 per cent, interest, in behalf of J. J. Whaley, of South Carolina. I examined the application and the abstract of title, which were the only papers submitted to me, and told the Corbin Banking Company that I would accept it for the American Freehold Land-Mortgage Company. The result of the negotiation was that the Corbin Banking Company afterwards notified me that they had the papers executed by J. J. Whaley for $5,000, upon his farm in Barnwell county, S. C. I approved the loan, for the mortgage Cdmpany, and the Corbin Banking Company was paid $5,000 therefor; and my company took the note and mortgage and abstract., dated as of the 19th February, 1887. It paid the full amount of the loan, ¥5,000, — no more and no less. Neither my company nor myself received anything, in the way of bonus, remuneration, or commission, for accepting this loan, or paying over the money loaned. I never sustained any relation to the Corbin Banking Company, nor did I over have any interest in their business. The American Freehold Band-Mortgage Company did not have, and I never heard they had, any other agent than myself in making loans on real estate in America. I was informed and believe that the Corbin Banking Company was employed by J. .T. Whaley in negotiating this loan. I know nothing whatever as to any relations between the Corbin Banking Company and J. ,T. Whaley, or any other person acting for them or him. The American Freehold Land-Mortgage Company did not employ, appoint, or select W. H. Duncan to negotiate loans in South Carolina. I do not know whether the Corbin Banking Company appointed said Duncan to negotiate loans in South Carolina for them, or whether he did negotiate loans for them. I do not know what commissions or charges, if any, the Corbin Banking Company charged or exacted from J. J. Whaley, in negotiating- this loan from the American Freehold Land-Mortgage Company; nor has the Corbin Banking Company, or any of its members or agents, ever or at any time advised me, or the American Freehold Land-Mortgage Company, what commissions or charges were being made by the Corbin Banking Company to borrowers, in negotiating loans for them.”</p>

<p>1. Wateb Rights and Water Companies-»-Foreign Corporations —Constitutional Law — Estoppel.</p> <p>A foreign corporation, coming into California, and acquiring water and water rights under the provisions oí the state constitution (Const. 1879. art. 14, § 1), which declares that the use of water appropriated for sale, rent, or distribution is a public use. subject to regulation and control by the state, and that the rates of compensation for such use shall be fixed annually by cities, counties, and towns, will not be heard to assert that tile constitution and law's under which it has acquired such rights are in contravention of the constitution of the United Stales. Such corporation may, however, question the reasonableness of the rates established by any municipality.</p> <p>2. Same — Judicial Power —Reasonableness of Ouaroes — Municipal Con PORATIONS.</p> <p>It is within the scope of judicial power, and a part of judicial duty, to inquire whether rates of compensation fixed by municipalities and corpora tious for the use of appropriated water in California operate to deprive the owner of his property without just compensation; and, if the court finds from the evidence that they are manifestly unreasonable, it is its duty to annul them.</p> <p>3. Same — Rate—Basis for Determination.</p> <p>Where a municipality undertakes to reduce the rates for the use of appropriated water, and the plant supplying the same, the basis upon which reasonable and just rates are to bn determined is the present value of the1 plant, and not its original cpsl; liavipg due regard to the cost of maintenance, depreciation by wear and tear, and the rights of the public. If, on that basis, a fair interest is allowed, there can be no just cause of complaint.</p> <p>4. Same — Separate Charge for Water Right.</p> <p>A company which has approjiriatcd the waters of a stream for purposes of sale and distribution, under the constitution and laws of California, has no right, before furnishing new applicants with water, to make, in addition to the regular charges established pursuant 1o law, a separate charge, of a gross sum, for the so-called “water right.” On the contrary, each member of the community has the right, on paying the rate fixed, to use a reasonable quantity of water in a reasonable manner.</p> <p>o. Same — Reasonableness of Rates.</p> <p>In determining what are reasonable rates for supplying water to the inhabitants of a town which includes but a part of the territory supplied by a water company through one general system, the charges should be fixed with a view to yielding a fair rate of interest on the value of that part of the plant referable to the territory embraced in the town, without attempting to make compensation for losses sustained in the distribution of water to consumers outside the town. Nor is it material that, for the purpose of completing its plant, the company borrowed money, and issued bonds on which it is paying interest.</p>

<p>Appeal from the Circuit Court of the United States for the Southern Division of the Eastern District of Tennessee.</p> <p>This case presents a controversy as to the liability of the receiver of the Chattanooga Union Railway Company for the use and occupation by him, as receiver of the railway company, of the property of the Chattanooga Union Depot Company. The facts necessary to be stated are these: The Chattanooga Union Railway Company (hereafter called the “Railway Company”) is a corporation of the state of Tennessee, owning and operating a belt line of railway. The Chattanooga Union Depot Company is also a corporation of the state of Tennessee, owning a railway depot and certain railway. terminal facilities in the city of Chattanooga, Tenn. On the 30th day of December, 1891, a contract was executed between the railway company and tiie depot company, which provided that the railway company should have a perpetual right to occupy the property of the depot company “rent free,” except and subject to the following charges: (1) The railway company agreed to keep the property of the depot company in perpetual repair at its own expense. (2) The railway company agreed to pay all taxes which had or might hereafter accrue against the property of the depot company. (3) The railway company agreed to assume and pay all interest which had accrued or might accrue upon a series of 150 bonds of $1,000 each, bearing date January 1, 1S91, and maturing January 1, 1910, with interest payable semiannually at 6 per cent. (4) The railway company, at the maturity of these bonds, was to assume and pay them off. (5) If the railway company did assume and pay off the said bonds, it should have the option of remaining in possession and use of the depot property, subject only to the continued payment of taxes for so long a period as it saw fit to use and occupy the property. A clause in the aforesaid contract provided that if the railway company should make default in respect of any of the charges or payments assumed by it, and such default should continue for a period of six months, then the depot company might, at its option, declare a forfeiture of the contract, and resume possession of its said property, and hold and occupy the same until the revenues derived therefrom should discharge the payments in default.</p> <p>Within a few weeks after the railway company had entered into this contract and taken possession of the property of the depot company, a bill was filed in the United States circuit court at Chattanooga, against it and other defendants, by one W. S. Davis, who alleged that the railway company had mortgaged its property under two or more mortgages to secure two or more distinct series of bonds, and that the Farmers’ Loan & Trust Company of New York was the trustee under each of said mortgages. Davis claimed to be the owner of a large number of coupons representing interest past due and in default upon the bonds so secured by the mortgages aforesaid. The principal object of his bill was to enforce the mortgages as a security for the payment of the interest so in default. He further alleged that the railway company had entered Into a contract with the Chattanooga Union Depot Company, by which it guarantied the payment of the principal and interest of 150 bonds of $1,000 each, made and executed by the said depot company, and secured by mortgage under which the Farmers’ Loan & Trust Company was the trustee. Upon grounds not necessary here to mention, the complainant Davis sought to have the said guaranty of the bonds. of the said depot company declared fraudulent and void. The court was asked to appoint a receiver to take possession of the property of the railway company, aud hold and operate the same i'or the benefit of the parties entitled, until a final decree of sale should be pronounced. The defendants to this bill, among others, were the Chattanooga Union Railway Company, the Chattanooga Union Depot Company, and the Farmers’ Loan & Trust Company. Such proceedings were had under this bill as that on the 4th day of February, 1892, H. S. Chamberlain was appointed receiver, and placed in possession of all of the properties of the railway company, Including its rights and interests under the lease aforesaid in the property of the depot company. Subsequently, the Farmers’ Loan & Trust Company filed an original Independent bill in the same court, seeking, as trustee, under the mortgages of the railway company, to foreclose the said mortgages for the benefit of all the beneficiaries thereby secured. Tills bill was, by order of the court, consolidated with the Davis bill, and the receivership under the Davis bill extended to the latter bill. Afterwards the Fanners’ Loan & Trust Company filed another and original bill against the Chattanooga Union Depot Company, for the purpose of foreclosing the mortgage executed by the depot company to secure the issue of bonds heretofore mentioned. Under this latter bill, W. W. Milam was appointed receiver of the property of the depot company, and subsequently, upon ids resignation, the appellant, Carswell, was appointed his successor. Thereafter, Carswell, as receiver for the depot company, filed his intervening petition in the consolidated cause against the railway company, for the purpose of enforcing against the receiver of the railway company the coyenants in the lease under which the railway company had been let into possession of the property of the depot conrpany, and praying that the claim of the depot company for rentals should he adjudged a liability against the imoperty of the railway company superior to the obligation of the bonds of- the latter company. This claim was referred to a special master, to take proof and report thereon. After taking proof, the master reported that the receiver was liable for rents according to the covenants of the lease between the railway and depot companies. He reported a liability aggregating $8,220, with a recommendation that the same be paid as a part of the costs and expenses of the administration of the railway company’s property. This-report was excepted to by the complainants in the suits against the railway company, upon the ground that the receiver was liable only for a reasonable rental, and not for the rental stipulated in the lease. This exception was sustained, and the matter re-referred to the master, to report what would be a reasonable rent. Upon this reference, the master reported that the receiver went into possession of the leased premises February 4, 1892, and remained in possession until December 15, 1S92, when he surrendered the depot property to Receiver Carswell. He also reported that, under the evidence, a rental of $150 per month, amounting to the sum of $1,555, would be reasonable and just. He further reported ■that the receiver had collected from sublessees under the railway company the sum of $899.60, all of which had been applied in the payment of taxes and repairs, except $72.14. Exceptions of appellant were overruled, and a decree rendered directing the receiver to pay, as an expense of the trust, the said sums, aggregating $1,627.14. Prom this decree Carswell, as receiver for the depot company, was allowed an appeal, and has assigned error.</p>

<p>Actions — Change of Circumstances Pending Suit.</p> <p>A suit was brought, under the act of February 25, 1S85 (23 Stat. 321), to prevent unlawful occupancy of public lands, by the United States against one ®., in a court of the territory of Utah, and Avas defended on the ground that the land in question, being a part of one of the sections reserved to be applied to schools when Utah should become a stale, ivas not iiublic land. After two appeals it was decided by the supreme court of the territory that the land, in spite of the reservation, not having been yet applied to the purpose thereof, Avas public land, and the case was remanded to the trial court for further proceedings. Before such proceedings were taken, Utah.became a state, under the enabling act, providing that the land Id question was granted to the state for public schools, and the ease was" transferred to tlie circuit court for the district of Utah. Held, that as the inclosure complained of was no longer unlawful, under the act of February 25, 1885, the bill must be dismissed.</p>

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.</p> <p>This was a bill in equity by John M. Williams against John McKinley and George A. Elder, setting up a contract constituting the said McKinley the agent of complainant, and alleging that he had wrongfully, and in violation of Ms trust, made profits for himself by dealing in the subject-matter of his agency. The decree below avoided the contract of agency, deprived'the agent of 1ns stipulated compensation, and awarded a large recovery for profits wrongfully made. 65 Fed. 4. From this decree, defendant McKinley appealed.</p>

<p>1. Neotjgence — Starting Street Car.</p> <p>It is not, in itself, negligence to start an electric street car in tlie ordinary manner, and in the ordinary course of the operation of such car, while a team of horses, which manifest no symptoms of fright, is being driven past it.</p> <p>2. Same — Obstructing Street.</p> <p>A street-railway company which, in removing the snow from its tracks, piles it up in the part of the street outside such tracks, and suffers it to remain there in masses which constitute an obstruction to travel, in violation both of its general duty and of a local ordinance requiring it, in removing snow, to distribute it evenly over the street, so as not to interfere with the free «se of the same by the public, is responsible for the Injuries suffered by a traveler on the street whose horses take fright, though not in consequence of any fault of the railway company, and whose carriage is upset by coming in contact with such mass of snow before lie is able to regain control of the horses.</p>

This was an action at law by the Hackettstown National Bank of Hackettstown, N. J., against the D. G. Yuengling Brewing Company, upon certain bonds issued by that corporation. The circuit court directed a verdict for defendant, and to review the judgment entered thereon plaintiff sued out this writ of error.

This was an action at law by the West End Hotel & Land Company against the American Fire Insurance Company of New York to recover upon a policy of fire insurance. The cause was heard upon a motion, made at the conclusion of the evidence, for peremptory instructions to return a verdict for defendant.

This is a suit at law brought bv the plaintiff in error, as receiver of the American Iron Company, against John If.

<p>1. NatioNAU Banks — Action against Dirbctotis — Rev. St. £ 5299.</p> <p>An action against the directors of a national bank under the provisions of Rev. St. § 5239, can be maintained only by a receiver of (he bank; and an action by a private individual against such directors for damages arising from the making- of false reports or other violations of the national banking act can only be maintained as an action at the common law in the nature of an action of deceit.</p> <p>2. Same — Necessity oi’ Foufkituke.</p> <p>It seems that to maintain a suit by tho receiver of a national bank to enforce the liability of its directors, arising tuider the provisions of Rev. St. § 5239, it must appear that a forfeiture of the charter of the bank has been adjudged by a court of the United States al the suit of the comptroller of the currency, as provided in that section. Welles v. Graves, 41 Fed. 459, reaffirmed. Hayden v. Thompson, 17 C. C. A. 592, 71 Fed. 60, distinguished. Stephens v. Overstolz, 43 Fed. 771, disapproved.</p>

This is an action of ejectment. The plaintiff, who is a resident of New Jersey, seeks to oust the defendant from the possession of certain real property situated in the city of Troy, commonly known as “122 Congress street.” Prior to the 14th of December, 1876, the property was owned by one Elizabeth Shappo, who on that day, departed this life, leaving a last will and testament by which said property was devised to the plaintiff, who was then an infant.

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

This suit was brought by the United States against Grovener C. Charles and against his surety, Frank G. Charles, to recover damages for the nonperformance by the defendant Grovener C. Charles of a contract to carry the mail from Galveston, Tex., to Yelasco, Tex.

This was an action by the United States to recover from the North American Commercial Company certain rentals alleged to be due under its lease of the Alaskan seal fisheries. The case was submitted to the court without a jury.

<p>1. Official Bonds — Indian Agbnt — Payment under Mistake.</p> <p>The bondsmen of a.n Indian agent cannot be beld liable for a mistake -of fact or law, or error of judgment, or misconstruction of authority, by such agent, in disbursing- money in good faith for the benefit of the government, though the payment has been disallowed in his accounts.</p> <p>2. Same — Failure to File Receipt.</p> <p>The mero failure of an Indian agent to file a receipt, with his accounts, for money actually disbursed for the benefit of the government, is not' enough to charge liis bondsmen for sucli money.</p> <p>3. Same — Disposition of Property.</p> <p>Nor is the mere failure of suc-h agent’s property return to show the disposition of a large quantity of clothing and provisions sufficient, without other evidence to authorize an inference, in an action against his bondsmen, that such property has been misapplied.</p> <p>4. Same — Allegations and Proop.</p> <p>There can be no recovery, in an action against tho bondsmen, of an Indian agent, for specific articles or goods not accounted for, upon allegations that such agent has failed to account for moneys received by him.</p>

<p>1. Trial — Instructions—Directing Veiidict.</p> <p>It is the duty of the court at. the close of the evidence to direct a verdict for the party who is clearly entitled to recover when it would be its duty to set aside a verdict in favor of his opponent If one were rendered.</p> <p>2. Negligence — Personal Injuries — Proximate Cause.</p> <p>An Injury that is the natural and probable consequence of acts of negligence is actionable, but an injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence is not actionable.</p> <p>3. Master and Servant — Assumption op Risks.</p> <p>A servant assumes the ordinary risks and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to one of his age, experience, and capacity by the use of ordinary care.</p> <p>4. Same — Negligence op Both Parties.</p> <p>If the negligence oí a servant is one of the proximate causes of his injury, he cannot recover of his master, even though the negligence of the master also contributed to it.</p> <p>5. Same — Contributory Negligence.</p> <p>A servant is bound to exercise a degree of care commensurate wiiii the character of his occupation and the occasion, and which a reasonably prudent person would employ under like circumstances to protect himself from injury; and if he fail to exercise that care he cannot recover for an injury to which his own negligence contributed.</p> <p>6. Same.</p> <p>Plaintiff was employed by the superintendent of a marble company to assist him in hauling slabs of marble on a spring wagon. They loaded li slabs, each about 3!4 feet wide, 9 feet long, and % of an inch thick, placing 7 on each side of tlie wagon on their edges, and leaning slightly outward against the stakes on either side o£ the wagon. This left a vacant space in the middle, in which plaintiff and tlie superintendent stood, each holding a stick crosswise between the almost vertical slabs to prevent them from tipping down while the wagon was in motion. After proceeding some distance it was found that the slabs on one side of the wagon were nibbing and chipping, and the wagon was slopped, and the' superintendent took his brace from between the slabs. lie then directed plaintiff to remove his brace, and to pull one of the slabs apart from tlie others, so that he could place paper between them. Plaintiff removed his brace, and took hold of the slab to pull it towards him, when the slabs on the other side fell upon both men, and broke plaintiff’s leg. Held, that plaintiff could not recover from the marble company, for the danger and risk were plain and open, so that if tlie superintendent was negligent, plaintiff was also negligent, and the action of both contributed to the injury.</p> <p>7. Same — Expert Evidence.</p> <p>It was proper in such case to exclude the testimony of a person having much experience in hauling marble slabs, on the question whether lie would consider it safe to draw slabs in this manner with a mail standing between them and no frame to keep them from falling in upon him, or whether an ordinarily prudent man would draw slabs with only two sticks to keep them from falling; for defendants were not drawing slabs at the time of the accident, but were reloading them with the wagon at a standstill, and, in any event, tlie facts were so plain and open to tlie common understanding that there was no necessity for resorting to the opinions of witnesses.</p> <p>8. Same — Evidence of Change after Accident.</p> <p>Evidence that, after the accident, the master repaired his machinery, or adopted a different method of conducting his business, is inadmissible to prove his negligence at the time of the accident.</p>

<p>1. Contracts — Acceptance of Work.</p> <p>Plaintiff made a contract with defendants, in the form of a proposal and acceptance, referring- to certain plans and specifications, for the erection of a slaughtering and packing house, with machinery. The contract provided, in reference to manner of performance, that plaintiff covenanted “to furnish and perform in a complete manner, and in accordance with the specifications, * * * and to the entire satisfaction of H. & S., superintendents, * * * the entire,” etc. The specifications provided that plaintiff should he held strictly to execute the work, use the materials described, submit, as to the character of material aiid work, to the judgment of the superintendents, and rei>lace any material not, in their judgment, in accordance with the specifications; and that, after notice in writing to plaintiff of defects, the defendants might remedy them at his expense, if he neglected to do so. The contract also provided that the final payment should not be made to plaintiff, except on condition of his giving a bond to protect defendants from loss by defects in the machinery. Held, that it was not necessary for plaintiff, in an action on the contract, to show a written acceptance of the work by the superintendents.</p> <p>2. Same — Condition Precedent.</p> <p>Held, further, that it was not necessary to prove acceptance by the superintendents of the work done and materials furnished, as a condition precedent to a recovery on the contract.</p> <p>3. Same — Performance.</p> <p>It appeared as a fact that the specifications to which reference was made in the contract called for the furnishing, as the refrigerating machine of the plant, 'of a particular, secondhand machine, which defendants had themselves selected. Held, that an objection to the performance of plaintiff’s contract, resting upon the failure of the machine, so selected by defendants, to do work required of it, was not sufficient to defeat plaintiff’s recovery.</p> <p>4. Same — Notice of Defects.</p> <p>Held, further, that notices, given by the superintendents to plaintiff, that-certain parts of the machinery were ‘ -worthless and dangerous, not fit for use, liable to cause damage, their construction in direct violation of the contract,” without other specification of the nature of the alleged defects, were insufficient as notices to require plaintiff to replace such parts of the machinery, or to defeat his right to recover therefor.</p> <p>5. Same — Completion.</p> <p>Held, further, that plaintiff could not recover for labor or materials expended in trying to bring the - plant to a satisfactory condition, even though so expended after a time when plaintiff would have been justified in treating his contract as performed, and leaving the work.</p> <p>6. Same — Time.</p> <p>Held, further, that, in the absence of anything to show that time had been made of the essence of the contract, defendants could not recover upon a counterclaim, in the action on the contract, for expenses and losses arising from plaintiff not completing the contract at a date at which he had said ho would try to complete it.</p> <p>7. Same — Waiver of Defenses.</p> <p>Held, further, that defendants, by failing- to set up in their answer that plaintiff had failed to show that there were no claims for labor or materials which might be liens on the plant, and to furnish a bond to protect defendants from loss, had waived the requirements that such proof and security should be given, as a condition of making the final payment, and were not entitled to insist qn this defense upon the argument of the cause.</p>

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

This cause was tried before the court, which made a special finding of facts.

This suit was commenced by Ludwig" Stockmeyer, the defendant In error, to recover damages for personal injuries incurred while in the service of David Reed, the plaintiff in error. The suit was brought in the circuit court of the county of Lawrence, state of Indiana, and duly removed into the court below upon the ground of diverse citizenshii) of the parties.

This suit was to recover damages sustained by Bawrence Schneider, the defendant in error, .on the 27th day of September, 1892, while in the service of tlie Mississippi River, Logging Company, tlie plaintiff in error, alleged to have occurred through negligence and failure of duty on the part of the master.

<p>Fire Insurance — Prorating Loss.</p> <p>Property situated on iwo separate blocks was insured to a certain amount under policies covering the entire property on both lots. The property on one block was imdher insured by a policy covering that alone, which contained a provision that the company should not be liable for a greater proportion of any loss than the amount insured should bear to the whole Insurance. The property covered by this policy was partially destroyed, that on the other block remaining uninjured. HeM, that the compound policies covered the property destroyed, to their full amount, so that the proportion of the loss to he borne by the specific policy was the proportion which that policy bore to the total amount of both the compound and specific policies. 04 Fed. 194, affirmed.</p>

<p>1. Rkvibw — Gkmkrai, Findino — Waiver of Jury.</p> <p>Where a jury is waived in writing, and the court makes merely a general finding of: facts, no question is presented on writ of error of the sufficiency of the facts found to support the judgment. Rev. St. §3 Git), TOO.</p> <p>2. Assignyt.nts of Error — Aiu.hgationb of Fact.</p> <p>An assignment of error cannot be accepted as proof of facts alleged therein, and cannot, therefore, be considered, in the absence of anything else in the record to show that the court did or did not rule as asserted in such assignment.</p> <p>3. Sauk — Waivhr of Jury — Examination of Evi»knoio.</p> <p>In an action at law, tried by the court without a jury, assignments of error which would involve an examination of the evidence cannot be considered by the appellate court.</p> <p>4. Revusw — Humaos ox Motion for New Triap.</p> <p>Whether a motion for a new trial shall be granted or refused is a matter of discretion in the federal courts, and their action thereon is not assignable as error.</p>

<p>Error to the Circuit Court of the (Tutted States for die Southern District of rilinois.</p>

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

<p>CONSTITUTIONAL IjAW — DELEGATION OR LEGISLATIVE POWERS— REGULATIONS by Secretary of War for Use of Canals.</p> <p>The grant by congress by the act of August 17, 1894, to the secretary of war, of authority to prescribe such rules and regulations for the use, administration, and navigation of canals, etc., owned or operated by the United States, as in his judgment public necessity may require, was not invalid as a delegation of legislative power; and the rules made pursuant thereto have the force of law, so that persons violating the same by drawing off water from a canal are subject to criminal punishment under the provisions of the same act. e</p>

This was an indictment against William E. Riley for violating the provisions of the act of January 16, 1883 (section 11), forbidding any officer, etc., of the United States to “directly or indirectly solicit or receive or be in any manner concerned in soliciting- or receiving any assessment, subscription or contribution for any political purpose, whatever, from any officer, clerk, or employé, of the United States,” etc. One Albert Scott. was at the same time separately…

<p>1. Indictments — Single Transaction Constituting Several Offenses.</p> <p>By the great weight oil authority the prosecutor is at liberty to charge, in a single count, as a single offense, a single act or transaction in violation of law, although that act or transaction involves several similar violations of law with respect to several different persons. The application of this rule to indictments in the federal courts is not affected by the provisions of Itev. St. § 1024, in relation to the joinder of several offenses in differ ent counts of the same indictment.</p> <p>S. Same — Violations of Oivtl Service Law —Soliciting Political Contri butions.</p> <p>In (lie statute making it an offense for any officer of the United States to •‘directly or indirectly solicit or receive or be in any manner concerned in soliciting or receiving” any assessment, etc., for any political purpose (Act Jan. 16, 1882, § 11), the expression, “being concerned in,” is not a legal term or conclusion which needs a specification of facts for completeness of description. It is a colloquial expression, equivalent to “being engaged in,” or “taking part in,” and sufficiently informs the accused of what the government intends to prove; and hence it is sufficient to charge the offense in the words of the statute.</p> <p>Si. Same.</p> <p>Failure of the indictment in such case to name the particular persons from whom the contributions were solicited or received does not render it bad on demurrer for indellniteness, where it is further averred that the names of such persons were unknown to the grand jury.</p> <p>4. Same,</p> <p>Averments that the accused solicited and received from another his contribution for a political purpose charge, by implication, that the solicitation and reception were, for the same purpose as the contribution, and no specific averment that the accused knew the purpose of the contribution is necessary; nor is the implication changed or weakened where the accused, instead of being charged with directly receiving the contribution, is charged with being unlawfully concerned in receiving it “indirectly.”</p> <p>5. Same.</p> <p>A charge that the accused was “knowingly” concerned in unlawfully receiving an assessment from officers or employes of the United States for a. political purpose sufficiently charges him with knowledge that the persons from whom the contributions were received were officers or employes of the United States.</p>

<p>Criminad Law-Passing Counterfeit Birrs — Evidence—Res Gesta!.</p> <p>Upon a trial of an indictment charging the defendant, and others with passing counterfeit hills, after evidence tending to show that he had supplied the bills to the persons who actually distributed them, the circumstances of the defendant, showing his situation and relations with other persons in whose possession bills from the same plate had been found in large quantities, are admissible in evidence as parts of the res gestee, and as showing his facilities for supplying the hills and the commission of the offense.</p> <p>(Syllabus by the Court.)</p>

<p>Criminal Law — Pensions — False Affidavits — Special and General Acts, —Bey, St. §§ 4746, 5421. •</p> <p>A special statute supersedes an incompatible general one. Section 4746, Key. St., imposing a different and lighter punishment than section 5421, is alone applicable to the specific cases for which it provides, viz. procuring and presenting false affidavits or vouchers made by other persons. It does not include the making of a false pension affidavit, which is governed by the general provisions of section 5421. Upon an indictment under section ■5421, therefore, charging the defendant with making and causing to be made “a certain false affidavit,” a copy of which, signed by the defendant, was set forth in the indictment, lield. on demurrer, that the offense charged was in fact the making of a false affidavit by the defendant, and fell within section 5421.</p>

<p>Criminal Law — Removal—Larceny of Postage Stamfs — Postmaster’s Room — Rbv. St. 5475, 5476, 5478 — Joinder of Different Offences.</p> <p>An entry into a postmaster's room in the P. O. Building, and a theft of postage stamps by opening the locked vault in which they were kept, constitute a forcible breaking and entry into a post office in a pait of the P. O. Building, punishable under section 5478, Rev. St. Breaking into such a room with the intent to commit larceny, and the actual stealing of stamps, constitute separate offences under sections 5475, 5178; but when both are parts of the same transaction, a single count stating these facts is not fatally bad; and any objection thereto is a question of practice not sufficient to prevent removal of the prisoner to the proper place for trial.</p>

This was a suit by Kaiserbrauerei, Deck & Co. against The J. & P. Baltz Brewing Company to enjoin the alleged infringement of a trade-mark. The circuit court rendered a decree for complainant (71 Fed. 695), and the defendant appealed.

” The following are fac-similes of complainant’s and defendants’ labels (printed in red and yellow): Complainant’s Label. Defendants’ Label.

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>The appellant, Beadleston & Woerz, a corporation existing under the laws of the state of New Tort, died its bill in the court below for an injunction to restrain the appellee, the Cooke Brewing Company, a corporation of the state of Illinois, from the use of the word “imperial,” claimed by the appellant as its trade-mark when applied to beer. Prior to the year 1889, the brewing business now conducted by the appellant in the state of New York had for many years been conducted by the firm of Beadleston & Woerz. The brewery was known as the “Empire Brewery.” The appellant, the corporation, in that year succeeded to and has since conducted the business. Prior to June, 1885, Beadleston & Woerz brewed several grades of beer, the best quality of which was designated as “Kulmbacher.” On the 30th of June, 1885, the firm purchased of the receiver of a defunct corporation, which had been engaged in the manufacture and sale of beer, the supposed title to the word “imperial” as a trade-mark when applied to beer, its use having been abandoned by such corporation. Thereafter Beadleston & Woerz and the appellant,- as their successor, brewed and sold several qualities or grades of beer, the “Kulmbacher,” the “Imperial,” and a grade of beer of poorer quality. The firm and the corporation used as a trade-mark the coat of arms of the state of New York in connection with the name Beadleston & Woerz, the words “Empire Brewery” surmounting the coat of arms. There was also added the particular name of the beer to which the trade-mark was attached. In the ease of beer sold in bulk, the name and general trade-mark were burned into the keg or barrel containing the beer, and a label pasted upon the keg or barrel, with the word “Imperial” printed thereon m red lettering, in case the keg or barrel contained beer of that grade. After-wards they bottled their Imperial beer for the export trade, and placed upon the bottle a label bearing the name “Beadleston & Woerz, Imperial Beer, Brewed Especially for Export.” In the lower left-hand corner of the label appeared the coat of arms of the state of New York, surmounted by the words “Empire Brewery,” and underneath it the words “Bottling Department, New York.” At the left-hand side of the coat of arms was the word “Trade,” and on the right-hand side “Mark.” Other devices came in use with substantially the same marks affixed, differing mainly in the color of the label. The ap-pellee, the Cooke Brewing Company, is the proprietor of a brewery in the city of Chicago, established in the year 3887, and since the year 1S92 has brewed and sold in bottles beer of three grades or qualities, the most expensive being called “Munich Hofbrau,” next the “Imperial,” differing in color and its manufacture from the other, less expensive to make, but said to be of equal quality, and a lower grade of beer called “Pilsenez’,” and also an annual brew of “Bock” beer. The label used upon the bottles had printed thereon the words “Cooke’s Imperial Beer,” in red lettering, and “Chicago, ü. S. A., Bottled at the Brewery’s own Bottling Works” in black lettering, and its trade-mark consisting of a shield of stars and stripes, with the monogram “C” and a crowing cock printed thereon in red. The sales of the appellant, Beadleston & Woerz, are largely in the eastern and southern states and to the foreign trade, although to some slight extent they sell in the central and western states. The sales of the appellee are mainly confined to the central and western states.</p>

This was a hill in equity by the Hostetter Company against Simon Bower, for alleged infringement of trade-marks and unfair competition in trade. Final hearing on pleadings and proofs..

<p>1. Patents — What Constitutes Anticipation.</p> <p>To constitute anticipation, it is enough that a like structure had been in well-established use, whether it originated in design or by accident.</p> <p>2. Same — Invention—Spring-Tooth Harrows.</p> <p>The Reed patent, No. 201,946, for improvements in harrows, construed, and held void for want of invention.</p>

This was a suit in equity by the Dodge Manufacturing Company against E. C. Atkins & Co. for alleged infringement of two patents relating to wooden pulleys. The circuit court dismissed the bill on the merits, and the complainant lias appealed.

<p>This was a suit: in equity by R. Gr. Thomasson against O. W. Bumpass and others for alleged infringement of letters patent jNto. 444,501, for improvements in chicken coops.</p> <p>On the 13th of January, R. Gr. Thomasson obtained from the patent office at Washington a patent for “certain new and useful improvements on chicken or poultry coops, more especially designed for shipping purposes, combining strength and durability, and easily and cheaply constructed.” The specifications and claim are set out in Ms application substantially as follows:</p> <p>“I form the bottom, with its upturned side and end portions, respectively, of longitudinal and transverse thin, narrow strips or laths, preferably of ash or other pliable, readily-bent wood. These strips are interlaced after the fashion of wicker or basket work, the transverse strips thereof being preferably arranged two together side by side. This renders the bottom more solid, lessening interstices wherein the feet, or legs of the fowl are liable to be caught, and whereby the number of longitudinal strips used is greatly reduced or lessened. Along the center and side edges of tin; thus interwoven or interlaced bottom paid, both upon the upper and lower surfaces 1 hereof, are nailed or fastened re-enforcing pieces or slats. These do not, however, extend along or up the end portions. The transverse strips are extended or continued beyond the side edge slats or pieces, and interwoven or interlaced with short longitudinal strips to constitute 'or form the side portions. The short transverse strips, forming, with the long longitudinal strips of the bottom. the end portions, are not interwoven with or extensions of the longitudinal strips of the side portions. Therefore, its the said side and end portions are bent up and caused to meet at their corner edges, their connection can be and is effected in part by means of short (otherwise waste) pieces or strips, suitably bent around said corner edges and'fastened, preferably by nails, to the upturned portions of the transverse; end strips of the bottom, The ends of the short pieces are tucked under other upturned longitudinal strips of the side portions and under upturned longitudinal strips of the end portions, thus being firmly held in place. By this arrangement the employment of long or usual-sized end strips, heretofore interwoven or interlaced with the 'side strips, are dispensed with. The top edges of the end and side portions are each sandwiched between, and have fastened or nailed to them, opposite strips respectively. The top edge pieces are just the length of the side portions; but the top edge pieces extend a short distance beyond the end portions, and lap and are secured by nails, preferably, to both sides of the aforesaid top edge pieces. Pieces or strips of metal, preferably Jioop iron, are applied to the side portions near the corners, the upper ends of such metal pieces or strips overlapping' the top edges of the strips where tney lap the strips, and secured thereto, while the lower ends of said metal strips un-dcrlap and are secured to the underneath side bottom pieces. Bows are secured to the side portions at the ends thereof, and at suitable intervals along the same, between the opposite top edge pieces or strips by nails or otherwise. These bows have secured to them upon their top surfaces longitudinal connecting and staying pieces or braces, while the end bows are themselves secured about at the center to the upper ends of upright pieces or stays. Metal strips, preferably hoop iron, are also used for strengthening or reenforcing, and secured to the end uprights or stays and to the end portions ¡and to the top and bottom central pieces or braces, along which pieces 'they may be extended, if desired, their entire length. The bows, with their connecting pieces or braces, are covered with a firm wire netting, secured to the top edge pieces of the side and end portions of the coop in any suitable way. In this netting or cover is an opening, through which convenient access is had to the coop, closed by a door formed of a strong wire frame, itself covered by a wire netting, and hinged to the central brace or piece of the bows; said door having a bent, looped, wire fastening, engaging a side brace or piece of said bows, and securing the door in a elo'sed position.</p> <p>“What I claim is: (1) The chicken coop or crate comprising the bottom having- the side and end projecting portions, forming the upturned portions or sides and ends of the coop connected together by the short tucked-in pieces or strips, and the inner and outer opposite strips or pieces lapping and secured to the top edge strips of the sides, and suitably re-enforced thereat, substantially as for the purpose set forth. (2) The chicken coop, consisting of the bottom wickerwork portion, having side and end portions held together as described, and having upper and lower bottom re-enforcing pieces or strips; also re-enforcing metallic pieces or strips near their corner edges; the wire netting covered bows with their braces or stays, and bows bejng secured to said bottom portion; the upright stays or braces secured to said bottom portion, and the end bows and the re-enforcing metal pieces secured to said upright stays and to said bottom portion, and to the central top brace of said bows and the central underneath strip or brace of said bottom portion, substantially as set forth.”</p>

<p>Forfeiture of Vessel to United States — Liens for Supplies.</p> <p>A forfeiture of a vessel to-the United States cuts off liens for supplies furnished prior to the illegal act for which the forfeiture is declared, so that the lienor will have no claim on the proceeds of the forfeiture sale. The Haytian Republic, 65 Fed. 120, followed.</p>

■ This was a libel in admiralty by William M. Randall against Charles H. Sprague and others to recover demurrage. The district court dismissed the libel (67 Fed. 604), and the libelant has appealed.

<p>Shipping — General Average Act — Particular Interests not-Separable.</p> <p>After a negligent stranding on a reef, the ship was flooded, in order to steady her upon the rocks, to prevent pounding and consequent breaking-up of the ship, the ship was thereby saved and the voyage completed; the libellant’s casks of wine having been assessed in general average for the salvage operations in getting ship and cargo oil. Held that the wine was bound to contribute, inasmuch as the act of flooding was a general average act, designed by the master for the safety of the whole adventure, and was successful in preventing the breaking up of the voyage.</p>

<p>In Admiralty — Damage to sugar cargo.</p>

<p>Shipping — Banker’s Advances — Maritime and Equitable Lien.</p> <p>Upon a further reference to a Commissioner and hearing upon the Commissioner’s report as regards any equitable or maritime lien against the above vessels for banker’s advances as against the mortgagee of the vessels on the claims heretofore considered, (See Freights of The Kate, 63 Fed. 707; The Allianca, Id. 726, 65 Fed. 245). Held, that no independent equity against the mortgagee was shown, and the rulings of the previous cases were re-affirmed.</p>

<p>Bn.ii oe Lading — -Salvage Privilege — Damage to Salvor's Cakgo by Delay —UNNECESSARY DEVIATION — IÍES AdJUMCATA.</p> <p>The clause in bills o£ lading reserving leave to “tow and assist vessels in all situations,” does not justify an unnecessary deviation in rendering a salvage service by going to a distant port, instead of to the one most reasonably accessible in the particular circumstances of the case: Held, therefore, that the defendants’ steamer America, after undertaking-the towage of the disabled steamer Hekla to Halifax, a near, safe, and reasonably sufficient port, was not justified in taking her to New York, involving about three times the delay incident to towage to Halifax; and that the defendants were therefore liable for the depreciation in the America’s cargo of live entile, and tlie fall in market price during the additional delay caused by towage to New York instead of to Halifax. Held. also, that a previous dismissal of the. libellants’ petition to participate in the libel for salvage, brought against the Hekla by the owners of the America, was not res adjudica ¡a as respects The present claim for damages.</p>

This was a libel in rein by the New Orleans, Belize Royal Mail & Central American Steamship Company, Limited, against the steamship G-ambetta, Hjalmar Weltzin and others, claimants, to recover for salvage services rendered by libelant’s steamer Breakwater. The district court rendered a decree awarding salvage in the sum of $2,216.60f, and the libelant appealed, claiming that the amount was insufficient.

Appeals from the District Court of the United States for the Northern District of California. The history and facts of these cases are given in the opinion of the district judge (61 Fed. 338) as follows: “On the morning of August 22, 18SS, between 9 and 10 o’clock, a collision took place in the entrance of the Bay of San Francisco between the steamships Oceanic and City of Chester.

<p>In Admiralty — Collision.</p>

<p>Removal of Causes — Diverse Citizenship.</p> <p>There is no right of removal under the act of March 3, 1887, unless the record and papers show that the citizenship was diverse, both when the suit was begun and when the petition for removal was iiled. Gibson v. Bruce, 2 Sup. Ot. 873, 108 U. S. 561, Railway Oo. v. Shirley, 4 Sup. Ct. 472, 111 U. S. 358, and Akers v. Akers, 6 Sup. Ct. 669, 117 U. S. 197, followed.</p>

<p>Contracts — Premium for Architect's Designs.</p> <p>Pursuant to authority given by an act of the legislature, a board of commissioners advertised for plans for a building to be erected in behalf of the city of New York. The advertisement stated that the plans offered would be submitted to a committee of architects, who would select the best six plans; that the designer of the one adjudged by the board of commissioners to be first best would be appointed architect of the_ building, and the designers of the other five would each receive a premium of $2,000. Plaintiff, among many others, submitted plans. The committee of architects made its report, but, before the board of commissioners had made a decision, the act authorizing the erection of the building ivas repealed. Plaintiff then sued the' city for his services in preparing the plans. No evidence was offered to show that plaintiff’s plans were among the best six selected by the committee. Held', that plaintiff had no cause of action.</p>

Error is assigned of the ruling of the trial judge in directing the jury to find a verdict for the defendant. The facts shown upon the trial were these: The defendant was the owner, through a purchase for value, and in duo course of business, of a promissory note dated May 2, 1887, made by Dieb-ler & Oo. to the order of and indorsed by Yuengling, and payable four months after date at the banking house of the plaintiff.

i This suit was brought in the court below by Michael T. Hayes, the plaintiff in error, against the several corporations named, to recover damages for injuries sustained through alleged negligence in the operation of a train of the Northern Pacific Railroad Company.

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

<p>1. Njsgltgenoií: — Comparative.</p> <p>One W., with two companions, purchased tickets at a station of defendant’s railroad, about 6 o’clock in the afternoon. The train which they were to take passed the station about midnight, and did not stop unless flagged, but defendant’s station agent did not mention the latter fact. About midnight, the night then being very dark and misty, W. and his companions returned to the station. The agent had then gone to bed, and there were no lights at the station. A bystander volunteered to flag the train, and did so, with a match, but the train ran about 200 feet beyond the platform before stopping, at which point it could not be seen in ihe darkness. Another bystander then said to W. and his companions that they could go ahead and get on the train, and W. accordingly started up the track. The train had begun to back down, and ran over and killed W. on the track. The evidence was conflicting as to whether there were any lights on the rear of the train, and whether any signal was given before the train began to back down to the station. Upon the trial of an action brought by W.’s representatives against the railway-company, the court instructed the jury that if they believed from the evidence that the defendant’s employes operating the train could, by the exercise of reasonable care, have avoided killing W., notwithstanding some negligence on liis part, then W.’s negligence would not of itself, prevent the plaintiffs’ recovery. There was no evidence tending to show that any of the men on the train had reason to believe that W. was on the track when the train began to back up. Held that, in the absence of such evidence, the instruction given was erroneous.</p> <p>S. CoXTRrBUTOliV Negligence.</p> <p>Held, further, that the fact that W. went upon the track, and walked or ran towards the train, without waiting to ascertain whether it would back down to the station, on a dark night, when he could not see the train, and had at least as much reason to suppose it would move back as forward, showed that he was guilty of contributors’ negligence, a conclusion not affected by the presumption arising from the instinct of self-preservation, and that the jury should have been instructed to find for the defendant. Caldwell, Circuit Judge, dissenting.</p>

<p>COLLISION — Ferryboats—Lights Hid by Intervening-Vessel.</p> <p>Libellants’ ferryboat S. left Chambers Street and navigated up the North river a little to the eastward of the higher ferryboat Hamburg, which hid the red light of the S. from the view of vessels to the westward. The ferryboat A. coming down from Weeliauken was also obscured from the view of the S. by the intervening ferryboat Hamburg. The S. and the A. both turned at about the same time to pass under the stern of the Hamburg, and they first came in sight of each other when they were too near to avoid collision: Beld, that each was to blame for swinging so near under the stem of a high intervening boat, and the damages were therefore divided.</p>

This was a libel and cross libel in admiralty for collision. The libel was dismissed in the district court, and a decree rendered upon the cross libel, from which the original libelant appeals.

<p>This ease comes up by an appeal from the circuit court of the United States for the district of West Virginia.</p> <p>The original bill was brought by three stockholders of the Excelsior Pebble Phosphate Company, a corporation of the state of West Yirginla, making the corporation the party defendant. The bill states that this corporation was formed for the purpose of purchasing phosphate lands in the state of Florida., and the digging, mining, and quarrying pebble phosphate and phosphate rock, and the treatment and preparation of the same Cor market, In accordance with the customs and usages of the trade, and the vending and shipment of the same in the raw and treated state, and for the erection of the necessary buildings and houses for the conducting of said business and the shelter of its employes and servants, and the construction of canals and waterways within and upon the lands of the corporation, aud also such other works and improvements as may be necessary and proper in carrying on the business contemplated under Its organization; that they are stockholders, and that two of them are also creditors of the company; that the corporation had executed to the Central Trust Company of New York a mortgage of certain real estate in the state of Florida, and all of its personal property, consisting of plant and machines, as well as all other personalty upon said lands, together with such as may thereafter be purchased by the company in addition thereto, or to replace any of the same, which mortgage was duly recorded In Florida; that this mortgage was intended to secure 100 bonds, of 81,000 each, with coupons, bonds to be due March 1, 1919; that proceedings to foreclose this mortgage are pending4 in the circuit court of the United States for the Southern district of Florida, and that a receiver had been appointed therein; but that, though the subpoena had been properly served, no appearance had been entered for the Excelsior Pebble Phosphate Company, although the plaintiff, trustee under the mortgage, inteuds to proceed to a sale therein; that judgments had been obtained against the defendant company in Florida, and executions issued, under which the lands and personal property have been advertised for sale, the lands being those covered by the mortgage, and with the personalty, include nearly all the property of the defendant company, the executions amounting4 to about $8,000; that the corporation is insolvent, and that numerous suits are pending against it in the state courts of Florida; that these suits are brought by connections and friends of Kaufman Simon, president of the company, and in his interest, to secure him and them preferences over the property of the company, and that said Simon and a majority of the directors aré in collusion in this matter, seeking, by unlawful methods, to control the property in their interest; that Simon lias misused the mortgage bonds of the company, placed in his hands for special purposes; and that his aim and that of his confederates is to wreck the company, and deprive complainants of their debts. The' bill "prays the appointment of a receiver; that he be instructed to take such action as will protect the company in the premises; that an injunction issue against the corporation, its servants and agents, preventing them from interfering in any manner with the receiver, and for general relief.</p> <p>Upon presenting the hill to the court, on 23d November, 1895, leave was given to file it. The motion for the appointment of a receiver Avas set for a hearing on 26th November next thereafter, and an injunction was issued restraining the defendant corporation, by its president or any other officer or attorney, from confessing judgment in any suit in any federal or state tribunal of any state of the Union. Leave also was granted to the complainants to file any amendments to the bill on or before the hearing fixed. The Excelsior Pebble Phosphate Company excepted to this decree, and it is referred to in the first three assignments of error. On 26th November, the day fixed by the court, the complainants filed amendments of their hill, fortified by affidavits, and again moved for the appointment of a receiver and the issuance of an injunction, as prayed for in the bill and amended bill. These amendments change the character of the bill, by making it in behalf of all creditors and stockholders of the company who may come in, etc. They ayer that the suit is not collusive, seeking to confer jurisdiction on the court of a case in which other Avise it would have no cognizance; state that the hill is brought against the Central Trust Company of New York, a corporation duly organized under the law of that state, trustee of the mortgage of the Phosphate Company; charge had faith in the execution of the mortgage in the attorney of the defendant company, and more had faith on the part of Simon and the majority of the directors; ayer that none of the stockholders of the defendant company are citizens of West Virginia. They contain no prayer for process, nor any prayer of any kind. The proceedings following the presentation of these amendments, and the motion thereon, are in these words: “And thereupon the defendant the Excelsior Pebble Phosphate Company, by W. E. Chilton, its solicitor, tendered its plea to the jurisdiction of the court, to the filing of which the plaintiff objects, which objection, being considered by the court, is sustained, and said plea is rejected, to which ruling of the court in refusing to allow said plea to he filed, and in rejecting the same, the defendant aforesaid excepts. And thereupon the defendant the Central Trust Company of New York, by Joseph E. Chilton, its attorney, appeared for the sole purpose of objecting to the jurisdiction of this court in this case, and for the purpose of filing its plea to the jurisdiction of the court, and did tender its plea to the jurisdiction of the court, to the filing of which the plaintiff objects. And, the court having considered said objection, the same is sustained, and said i>lea is rejo- ’'d, to which ruling of the court in sustaining said objection, and in rejecting said plea, the said defendants object and except. And thereupon the defendants, by their solicitors aforesaid, moved the court to dismiss this suit; but the court overruled said motion, to which ruling of the court in refusing to dismiss this suit the said defendants object and except. And thereupon the defendant the Excelsior Pebble Phosphate Company filed its demurrer to the said bill and amended bill; and said demurrer is set down for argument, and, being argued and considered, the same is overruled. And thereupon the plaintiffs, by their sa-id solicitors, moved the court to appoint a receiver as prayed for in said hill and amended bill, and to grant the injunction prayed for in said bill, AVhich motions were resisted by the defendants, upon the grounds hereinbefore stated in their pleas and motions; but the court granted said motions, and each of them, as set forth in the order and decree hereinafter to he mentioned.” The decree appointed a receiver, gave him special instructions, and clothed him Avith special powers, and added the folloAving order of injunction: “And it is further decreed that an injunction do issue restraining' and inhibiting the defendants the Excelsior Pebble Phosphate Company and the Central Trust' Company of NeAv York, and their and each of their officers,.directors, agents, and servants, and all other persons, from</p> <p>interforins in any wisp with tlio receiver hereby appointed, 3u the discharge of his duties ami the exorcise of his powers and authorities raider this appointment, and from doing1 any act, matter, or tiling which the said receiver, by virtue of his appointment and of the instructions of this court, may he authorized to do.”</p>

<p>1. Equity Practice — INTERVENTION—Notice.</p> <p>It is not necessary, though it is the better practice, to give notice to the parties to the cause oí a petition for leave to intervene in a suit for the foreclosure of a mortgage.</p> <p>% Same — Attachth» Creditor.</p> <p>A simple contract creditor of the defendant in a suit for the foreclosure of a mortgage, who has commenced an action at law against such defendant, and attached the equity of redemption in the mortgaged property, cannot be allowed to intervene, and defend the foreclosure suit.</p>

<p>1. ASSIGNMENTS FOB CREDITORS — POWERS OF ASSIGNEE.</p> <p>An assignee for tlie benefit of creditors, except as his rights and powers are regulated hy statute, is trustee of the property assigned only to the extent of the assignor’s interest therein, and can assert only such rights in regard thereto as the assignor himself could maintain. He does not represent the creditors, and cannot, assert their equities.</p> <p>2. Equity Pleading — Cross Bill.</p> <p>A cross bill should present matters which have a bearing upon the allegations of the original hill, and questions entirely different from those presented by the original bill, though connected with the same subject matter, cannot be introduced by cross hill.</p> <p>8. Equity* Practice — Creditors' Bill.</p> <p>In order that a party may maintain either an original creditors’ bill, or a cross hill in the nature of such a bill, his demand must have been reduced to judgment.</p> <p>4. Same — Cross Bills.</p> <p>One T. G. made an assignment for the benefit of his creditors, certain of whom were preferred in the assignment. One E. G. brought a stiit for the purpose of establishing a partnershii) with T. G. in part of the assigned property. This question was litigated between 13. C. and the assignees and the preferred creditors, and decided in favor of E. G. After the entry of a decree in the suit, two of the preferred creditors, neither of whose claims had been reduced to judgment, filed separate bills of intervention, in the nature of cross bills, claiming that E. G. was estopped, as against them, to claim an interest in the assigned property, because she had permitted T. G. to represent it as his own, and also claiming that a mortgage held by one of the preferred creditors, who was also one of the assignees, was void as against creditors. Held, that such hills were not objectionable on the ground that the matters alleged were concluded by the decree on the original hill, since they asserted equities which the assignees could not have asserted, and which neither were nor could have been litigated in the original suit, hut that such, hills must he dismissed, both because they sought to introduce matters foreign to the original bill, and not proper subjects for cross bills, and because the claims of the interveners had not been reduced to judgment.</p>

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

These were receivership and mortgage foreclosure proceedings against the Union Pacific Railway Company and the various subordinate or allied companies forming the Union Pacific System.

<p>1. Equity Practice — Amendment.</p> <p>When objections to the jurisdiction of the court to entertain a bill in equity, in the form in which it is framed, have been sustained, and there has been no general appearance, demurrer, plea, or answer, the complainant has an undoubted right to amend his bill.</p> <p>2. Same — Transposition of Parties.</p> <p>When the complainant in a- bill in equity has joined with him, as co-complainants, other parties who have a similarity, but no community, of interest with him, and whose joinder with him is not necessary, and as between whom and some of the defendants the court cannot take jurisdiction, because of tlieir citizenship, the complainant should be permitted to amend his bill by striking out the names of such parties as complainants, and making them defendants to the bill, so as to remove the impediment to the jurisdiction.</p> <p>8. Circuit Courts — Jurisdiction—Amount in Controversy.</p> <p>When the complainant’s bill asserts an interest in property worth §33,000, hy reason of having become responsible' therefor under policies of insurance, and alleges that such property will he wholly lost to him through action of the defendants which it is sought to restrain, the amount in controversy is that claimed by the complainant, and the jurisdiction of the circuit court is not defeated by a contention on the part of the defendant that, under the allegations of the bill, the complainant’s claim is less than §2,000.</p>

The plaintiff below, Thomas Aubrey, is a boy nine years old. His suit was by his father, as next friend, and was for personal injuries sustained through the alleged negligence of the plaintiff in error in the operation of the railroad committed to his charge as receiver by an order of the circuit court of the United States for the district of Kentucky. Títere was a verdict for defendant in error and judgment thereon.

This was an action by Samuel O. Clark against the Canadian Pacific Railway Company for injuries to his person, and to his horse and sleigh. There was a verdict for plaintiff, and a motion for a new trial was denied. 69 Fed. 543. Defendant brought the case on error to this court, which affirmed the judgment; Wallace, Circuit Judge, delivering the principal opinion. See 73 Fed. 76.

. This was an action by the Safety Insulated Wire & Cable Company against the mayor and city council of Baltimore to recover damages for the failure of the city to perform a contract with the plaintiff: A decision of the circuit court overruling a demurrer to a special plea to the declaration was reversed by this court (13 C. 0. A. 375, 66 Fed. 140), and the cause was then tried on the merits; a verdict being rendered for the defendant, by direction of the court.

This was an action at law by the First National Bank of Buchanan county against the county of Duel upon a judgment rendered by a Nebraska court. The case was heard on demurrer to the amended petition.

<p>In Error to the Circuit Court of the United States for the District of West Virginia.</p> <p>This action was brought in the circuit court of Greenbrier county, W. Va., in November, 1891, and proceeded there until February 1, 1894, when it was removed by writ of certiorari into the circuit court of the United States for the district of West Virginia, at Charleston, in that state. It was there proceeded in to judgment, rendered on the 12th day of December, 1894, and has been brought here by writ of error issued on the 4th of June, 1895. The suit was in ejectment and was brought by the plaintiffs, husband and wife, for 1,000 acres of land claimed by them in right of thp wife, Miriam Wallace. The declaration alleged that this tract of 1,000 acres had been granted to her by the wife’s father, James H. Bowen, out of, and as a part or, an entry of 2,650 acres, which the said Bowen had made under a patent for the same issued to him by the commonwealth of Virginia, before the formation of what is now West'Virginia.</p> <p>The testimony shows that this commonwealth had granted to Andrew Moore, in June, 1795, a tract of 11,300 acres of land in Greenbrier county, on the waters of Hominy and Big Clear creeks, headwaters of Gauley and Meadow rivers, which lands adjoined a tract of- 5,000 acres previously granted to Andrew Moore. Moore made deeds of parts of the 11,300 acres, respectively, to William McOlung and to a family named Welch. Each of these two deeds conveyed a third of the large tract, or about 3,766 acres, to the respective grantees, leaving a third of the original tract to Moore himself. The northernmost of these three tracts was the one retained-by Moore; the middle one, adjoining it on the south, going to the Welches, and the southernmost tract, of 3,766 acres, going to McOlung. The deeds to the Welches and McOlung were made in March, 1810. The tract granted to Mc-Clung was, in the course of time, forfeited to the commonwealth for the nonpayment of taxes, and was never redeemed by or for McOlung. It became liable to re-entry, in consequence, under later patents from this commonwealth. On the 30th November, 1846, James H. Bowen did apply for and obtain from Virginia a grant of 2,050 acres, marked by a survey which he had previously had made, of land lying in Greenbrier county, on the waters of the before-mentioned Hominy and Big Olear creeks. It is to be inferred that ihe intention and object of. James H. Bowen was to lay this grant on the third or southernmost portion of the old 11,300-acre grant to Moore, which had been conveyed to William McOlung, and by him forfeited to the commonwealth. In the belief that this McOlung tract had been forfeited, and that his survey of 2,650 acres had been located on the forfeited land, James H. Bowen devised, by his last will, dated the 26th August, 1851, 1,000 acres of this survey to his daughter Miriam, in whose right this suit is brought; the Bowen survey necessarily covering the forfeited McOlung tract.</p> <p> </p> <p>The shaded portion is the “blue coloring” referred to.</p> <p>The Welch tract passed, in the course of time, to the ownership of one Gideon Brown, thence to his son William Brown, and from this William, by sundry conveyances, to the defendants in this suit. The blue map or plat, opposite page 167 of the record, and called the “Verdict Map,” will be used for reference in the following remarks. An inspection of this map will show that the northernmost line claimed as dividing the parts of the original 11.300-acre tract between Welch and Moore was Y to P. The verdict map also shows a line, claimed as dividing Welch from Moore, considerably south of this, marked 0 to O. There is a third line, mentioned in the record, but not marked on the nisip, alleged by some to be the true division between Welch and Moore, running from 37 to an undefined point between O and N. As to the division between Bowen and the present claimants of ihe Welch tract, there' is a line on the verdict map running from Z to N; and, as Bowen located upon the forfeited McOlung tract, this may be called the “McOlung and Welch Line.” The claim of Bowen’s daughter, Mrs. Wallace, is that this line. Z to N, is the true demarkation between the defendants. claiming the Welch tract, and herself, claiming, under the will of James IT. Bowen, 1,000 acres out of the grant of 2,650 acres to Bowen located on the forfeited .McOlung tract. The defendants claim that the line between the McClung and the Welch tracts runs from S to M on the map. The fact that there arc three different lines, each claimed as the true division between the Welches and Moore, shows a great confusion of lines in respect to the lands conveyed by Moore. There is a like confusion in regard to the true line of division between the forfeited tract of McOlung, taken up, in chief part, subsequently, by Bowen, and the Welch tract. The plaintiffs in this suit claim that the line, Z to N, is the true division between the Welch tract and McClung or Bowen. It is evident, from this confusion of lines, that the case was emphatically one for a jury.</p> <p>By deed of May 17, 1881, Mrs. Wallace and. her husband conveyed the 1,000 acres which has been mentioned to William and Joseph Brown for the sum of $1,400. The tract was described by metes and bounds, and is designated by the blue coloring on an extract of the verdict map, which we mate, on said extract, to mark and define the Wallace claim. It is evident, from the record, that the issue between the plaintiffs and defendants below was between the line, Z to N,- insisted upon on behalf of Mrs. Wallace, and the line, S to M, maintained by the Browns to be the true line between the Welch tract, and the McClung or Bowen tract. It was a question of fact and of boundary lines.</p> <p>In the year 1883, William and Joseph Brown filed their bill in chancery in the circuit court of Greenbrier county, praying that the deed from Wallace and wife to them be canceled, on the ground, among others, of defect of title, and that the defendants, Wallace and wife, be decreed to refund the purchase money which had been paid. The cause was regularly proceeded in, and on the 13th day of November, 1885, a final decree was entered granting the prayer of the bill; that is, adjudging that the title of the defendants to the land was defective, except as to 162 acres thereof, lying below the before-mentioned line, S to M, and directing them to refund the purchase money, and the plaintiffs to reeonvey the land to the defendant Miriam Wallace by deed with special warranty of title, and indemnifying the defendants against all loss and damage which they may have sustained from the use of the land while in their (the Browns’) possession, which deed was after-wards made on the 7th day of November, 1887, and duly recorded. And on the same day Wallace and wife conveyed the said 162 acres to Gideon Brown, who was the father of William and Joseph Brown. But William and Joseph Brown have never surrendered to Wallace and wife possession of the land, or any part thereof, reeonveyed by them as aforesaid. Accordingly, this action of ejectment to recover the land was commenced in November, 1891, by Wallace and wife, in which H. H. Pay, R. H. Crozier, and M. Erskine Miller, who then occupied the land, were substituted as defendants, upon whose petition the case was afterwards removed to the federal court, as already stated. The plaintiffs moved to remand the case to the state court, which motion was overruled.</p> <p>The defendants claim that Gideon Brown acquired title to the land, except the said 162 acres, about the time that Wallace and wife undertook to convey it to William and Joseph Brown, and that he (Gideon) devised it in 1889 to his son, the said William, two years after the deed of William and Joseph Brown reconveying it to Wallace and wife. The defendants claim under sundry deeds and conveyances from William Brown as the devisee of Gideon. On the trial of the action, the circuit court, over the objection of the plaintiffs, admitted in evidence the record of the said chancery suit, which ruling, the plaintiffs insist, was erroneous. It also, after the evidence was closed, directed a verdict for the defendants, “on the ground that the record and deed, taken together, constituted an estoppel.” Judgment was entered for defendants, which is here on writ of error.</p>

<p>Action to recover assessment upon shares of national bank stock. Submitted on demurrer to answer.</p>

<p>National Banks — Liability of Stockholders — Transfer of Stock.</p> <p>One C. was the holder of stock in the D. National Bank, and was also an officer of the L. Bank, which held stock in the D. Bank. In the latter capacity, he was informed of an urgent demand upon the L. Bank to send $5,000 by telegraph in aid of the D. Bank. Within a week after this demand, L. transferred his stock in the D. Bank, without consideration, to his five children, one of whom was a married woman and two minors. Within five months thereafter, the D. Bank failed, and an assessment was made on the stockholders. Held, that the transfer must have been made by L., in contemplation of the liability, and that both he and his transferees were liable for the assessment, the latter because the liability was cast upon them by law when they became stockholders.</p>

<p>Practice — Bolt,owing State Procedure — Rev. St. §§ 914, 918.</p> <p>The provision of Rev. St. § 914, that the practice, etc., in the courts o£ the United States shall conform as near as may he to the practice, etc., of the state courts, applies to systems of judicial procedure, not to the details of doing the business of courts, which are left to he provided for hy rules of court, made pursuant to Rev. St. § 918. Accordingly, held, that rules of a United States circuit court, providing that writs shall he returnable to the regular terms of the court, and that suits are to he docketed on the first day of the term, is not abrogated hy the passage of a state statute providing that writs in the state courts shall he returnable to the clerk’s office and ho docketed therein within 21 days.</p>

<p>1. Sheriffs — Release of Attached Property — Appointment of Receiver.</p> <p>When a sheriff holds, under attachment, property seized as that of the attachment debtor, and the conrt in which the attachment suits are pending appoints a receiver, in a suit commenced to determine conflicting rights in the property, and directs such property to be turned over to Mm, such taking of the property from the sheriff’s possession is a proper defense, in an action against him, by the plaintiff in one of the attachment suits, for an unauthorized release of the aii ached property.</p> <p>2. Same — Action for Unauthorized Release — Mitigation of Damages.</p> <p>An action against a sheriff for an unauthorized release of attached property Is in tort, and the defendant has a right to set up, in mitigation of damages, the facts that the plaintiff’s attachment was subsequent to many others, and that judgments have been.rendered, in the other actions, more than sufficient to exhaust the attached property.</p>

This was an action at law by Hector McLean against the county of Valley, Neb., to recover on certain county funding bonds and coupons issued January 6, 1886. Held: at which the following resolutions were adopted and spread upon the records of the board: “Whereas, the board of county commissioners of Valley county.

The appellant filed its bill in the court below in substance charging that on the 24th day of July, 1898, the Indianapolis National Bank was utterly and hopelessly insolvent, and unable to continue its business longer for a single day, which was well known to the president, who had the absolute control and management of the bank, and who was present at the bank on that day, watching its operation.

<p>1. District Judges — Appointment for Another District — Dk Pacto Judge.</p> <p>A district judge, acting in another district, in which the office of judge is vacant, by virtue of an appointment, regular on its face, made by the circuit jud, c. is an officer do facto; and his orders continuing the term from day to day canDot be questioned, on the ground that a circuit judge has no power to make such an appointment when the office is vacant. Decided by supreme court in answer to question certified. 10 Sup. Ct. 111.</p> <p>2. Same — Recitals in Bum of Exceptions.</p> <p>The fact that, in the recital of the proceedings in ilie bill of exceptions, the term was wrongly spoken of as a special term, was immaterial, in the face of a statement that the regular term was open and continued from day to day until after the proceedings complained of had taken place. Decided by supreme court in answer to question certified. 10 Sup. Ct. 111.</p> <p>8. Materiality of Evidence — Declarations of Wife — Impeaching Testimony.</p> <p>A witness who testified that he had done a particular act was asked, on cross-examination, whether at a particular time and place he had not said that he had not done it. After answering tills question, he was asked if, on the same occasion, his wife liad not stated that he had not done it. Held, that this question was properly excluded, since his failure to do the act could not be proved, as an independent fact, by the wife’s declarations; and that, if the intention was to contradict the witness, or lay the foundation for impeaching his testimony, the court should have been distinctly so informed.</p>

On the 1st day of Hay, 1894, the defendant in error, Peter Parsons, brought suit against the plaintiff in error, the Texarkana & Ft.

This was a libel by John M. Ceballos and others against the schooner Warren Adams and others to recover for injury to cargo. The district court dismissed the libel, and the libelants appealed.

This was a suit by H. W. Benjamin against the city of New Orleans. A demurrer to the amended bill was sustained by the circuit court. 71 Fed. 758. Complainant appealed. Affirmed.

This was a suit by the Gorham Manufacturing Company against Clarence L. Watson, the Watson & Newell Company, and others, for infringement of a patent. The cause was heard on demurrer to the bill for want of jurisdiction.

This suit was brought by the Crown Point Mining Company against the Ontario Silver-Mining Company in a court of Utah before its admission to statehood, and, on the admission of the state, was transferred, on defendant’s petition, to the circuit court. It is now heard on motión by plaintiff to remand to the state court.

This suit was instituted by Fraser and Chalmers against L. C. Trent in a court of the territory of Utah, and was pending therein at the time of its admission as a state. The citizenship of the parties being diverse, the defendant petitioned for a transfer of the case to the federal circuit court, and the transfer was made accordingly. Defendant now moves to remand it to the state court.

This case was instituted by J. E. Lee against the Continental Insurance Company in a court of Utah territory, and, on the admission thereof as a state, was transferred, on proper petition, to this court, on the ground of diverse citizenship. The case is now heard upon a motion to remand it to the proper state court.

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

<p>1. Appeal prom Order Oontiwuino Preliminary Injukotion — Decision.</p> <p>On an appeal from an order denying a motion to dissolve an injunction pendente lite, restraining an execution sale of personal property, held, that the court of appeals could not determine questions of law which might depend upon undisclosed facts, or questions of fact upon ex parte affidavits of the character of those presented in the record; and that, as the questions arising were proper subjects for deliberate examination, the order would be affirmed, under the rule that, where a stay of proceedings will not cause too great injury to defendants, it is proper to preserve the existing state of things until the rights of the parties can be fully investigated.</p> <p>2, Same — Appiumancw— Reservation op Kkhit to jVIoihpy.</p> <p>Where an order refusing to dissolve an injunction pendente lite restraining a sheriff from soiling certain silks on execution was affirmed, but it appeared to the court that a sale of the goods would be to the pecuniary advantage of both parties, held, that leave would be reserved to the court below to modify its order so that by consent of the parties the silk might; be sold under the execution, after ample notice, and the proceeds placed in the registry to await a final decision.</p>

<p>Railroad Receivkhshii’s — Pkbferkntial Claims — Damages for Negligence.</p> <p>When a receiver of a railroad has been appointed in a suit for the foreclosure of a mortgage upon the road, and no order has been made, as a condition of such appointment, for the payment of claims for damages, a judgment against the railroad company for damages, caused by its negligeb.ee in the operation of its road, subsequent to the mortgage and before the receivership, is not entitled to payment by the receiver in preference to the mortgage debt.</p>

<p>1. FRAUDULENT CONVEYANCES — RIGHTS OE CREDITORS.</p> <p>A failing debtor made a voluntary transfer of certain valuable real estate to one F., for the purpose of defeating Iris creditors. F. held the property until his death, accounting for a time to the debtor for the rents, but afterwards refusing to surrender the property to him; and, after F.’s death, his heirs held the property and collected the rents. Certain creditors of the original owner took judgment against him, levied execution on the land after F.’s death, and caused it to he sold as the property of the judgment debtor, plaintiff buying it in at the sale. Plaintiff then brought suit to establish his title to the land, and, in such suit, proved the facts as to the character of the original transfer, both by circumstantial evidence and by the admission of the parties. Held that, although no court would interfere as between the original owner of the land and F., plaintiff, as a creditor of the fraudulent grantor, was entitled to the assistance of a court of equity, and his title should be established.</p> <p>2. Limitations — Adverse Possession — Color oe Title.</p> <p>Held, further, ihat the fraudulent conveyance to F. afforded no beginning point for the running of the statute of limitations in favor of him or his heirs, in the absence of proof of the creditor’s knowledge of the facts.</p> <p>8. Practice — Findings of Master — Exceptions.</p> <p>The finding of a master, to whom all the questions of law and fact in a case have been referred, by agreement of the parties,'’ for determination, is not to be set aside or disregarded, uuless upon exceptions supported by special statements of the master, or evidence referred to in ihe exceptions, by which it is shown that the report of the master is unsupported or essentially defective.</p>

This was a suit brought by the defendants in error against the Farmers’ & Traders’ National Bank of Covington, the plaintiff in error, to recover damages for the alleged negligence of the bank in forwarding and presenting for payment three drafts made by the plaintiff below upon the New Jersey Sheep & Wool Company, a corporation organized under the laws of New Jersey, and doing business at Jersey City, in that state.

<p>This was a petition by William Nelson Cromwell to vacate service of subpoena upon him as a witness.</p>

<p>1. Practice — Bills of Exceptions — Time of Signing.</p> <p>On the day when a verdict was rendered for a plaintiff, motions made by the defendant to set aside the verdict and grant a new trial were continued until an adjourned term of the court, and at such term further continued until another adjourned term, at which the motions were overruled, and judgment entered for the plaintiff. At the same time, by formal order, the defendant’s time for preparing hills of exceptions was extended to the first day of the next regular term. On that day, and again on the next day, the defendant’s time was further extended, in each case by formal order, against the plaintiff’s objection. On the last day fixed, the bills of exceptions were presented by the defendant, and, on motion of the plaintiff, on that day, and again on two subsequent days, consideration of them was postponed by formal order. On the day last fixed, objections to the bills of exceptions were argued, the matter again continued, by formal order, to the next day, on which the bills were signed and sealed by the court. Held, that the court never lost control of the matter ol' the preparation and signing of the bills of exceptions, and the same were regularly allowed, and properly in the record of the cause on writ of error.</p> <p>£. Contracts — Interpretation.</p> <p>Plaintiff made a written contract with defendant, on February 9, 1893, to deliver to it, at certain designated points on two rivers, 50,000,000 feet of timber, to be cut from certain trees owned by him; the first yearly settlement to be made at the end of the June season of 1894, and 10,000,-000 feet, or more, to be delivered each year. In an action by plaintiff for damages for being prevented by defendant from carrying out the contract, held, that plaintiff’s obligation to deliver at least 10,000,000 feet of timber annually was absolute; the year, however, being considered as terminating with each June season in and after 1894, and, accordingly, that an instruction that, if plaintiff could not have delivered 10,000,000 feet by February 9th, in each year, the defendant must recover, was properly refused; but it was error to instruct the jury that, if the plaintiff could not, “with such agencies as he could command, considering tides,” hare delivered 10,000,000 feet annually, the defendant must recover.</p> <p>8. Pleading — Assumpsit—Special Plea.</p> <p>Held, further, that in the action, which was assumpsit, a special plea should, have been allowed, winch set up that the defendant, under the terms of the contract, was still in the performance of the same, according to a stipulation that, upon plaintiff’s neglect, defendant might do the work, and that the plaintiff was barred from maintaining any action until the completion of such performance.</p> <p>4. Sales — Measure op Damages.</p> <p>In an action for failing to receive timber, under a contract for its sale and delivery at certain points, the proper measure of damages is the difference between the contract price of such timber and its market value, at the place where it was to have been delivered, or, if the defendant had entire control of the market there, at the nearest available market, less the additional cost of delivery at such market; and the rule applying to cases of contracts to furnish materials and do work, allowing the difference between the contract price and the cost of preparing the timber for delivery, with an allowance for the lost time, and release from care and risk, does not apply.</p>

This case comes here upon writ of error to the circuit court, Southern district of New York, to review a judgment entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below, against plaintiff in error, who was defendant below.

<p>In Error to the Circuit Court of tiie United States for the Northern District of New York.</p> <p>This caso comes hero on writ oí error by the Northern Central Ilaiiway Company, which was defendant below, to review a judgment of the circuit court, Northern district of New York. The judgment was entered in favor of defendant in error, who was plaintiff below, upon a verdict for $3,500. The action was brought by an administratrix, under the state statute, to recover damages for causing the death o£ her intestate through negligence of tiie defendant. The deceased, at the time of his death, was an cinployé of the New York, Lake Erie & Western Railroad, and, about 10 a. m. ou the day of the accident, was at work as a trackman at a point 2,472 feet north of tiie Erie Depot, and within the limits of the city of Elmira., and of that company’s yards. At this point there were two main tracks of the Erie Railroad, known as the east and the west bound, the distance between them being 8.7 l'eet. By an agreement with the Erie, the defendant railway ran its trains through the city of Elmira over these tracks. The place where the accident happened is 172 feet north of Washington avenue overhead crossing', and the first grade crossing nortli of Washington avenue is distant 3,900 feet therefrom. The track was straight, and one could see from the place of the accident clear down to the depot. Tiie deceased was working with a fellow employe at a hole which had been dug between the two Erie main tracks for the purpose of repairing a water pipe. This hole was about 8 feet long, 4 feet wide, and 5 feet deep. The two men were engaged in bailing water from the hole; deceased standing on the edge, and taking the pails of water as they were handed up to him by his companion. A switch engine of the defendant company had backed down, from a siding leading to a blast furnace on the west side' of the track, onto the east-bound track, and was proceeding slowly westward on this east-bound track. As this engine approached him, deceased lifted his pail which was on that track out of the way of said engine, and stepped towards the west-bound track, and was soon standing between tiie hole and tiie west-bound track, stooping down for another pail of water, will his back towards the east. While the switch engine was proceeding westwardly on tiie east-bound track, a passenger train of the defendant railway followed on the west-bound track, overtaking and passing the switch engine at very near the place (>f tiie accident. As this passenger train passed the hole, tiie deceased wa.s struck by its bumper, tin-own some distance, and received injuries from which he died. It is practically undisputed that the fra in which struck deceased was running at a speed of 20 to 25 miles an hour. There- is a conflict of evidence as to whether or not it gave any warning of its approach, by bell or otherwise, and as to whether or not it was usual to give such warning; the engineer testifying, “When wo come along where men are working, we always ring.” The finding of the jury has settled those questions. It must be assumed upon this appeal that no signal or warning was given to the men at work alongside of the track ahead, although they must have been in plain view of the engineer, and that deceased was entitled to expect that an approaching engine would ring a bell. He was not hard of hearing; “could hear distinctly,” as one witness expresses it.</p>

This is an action for injuries to a passenger on a cable street car in the city of Cincinnati. The defendant in error, Joseph A. Lowery, was injured by riding on the front seat of an open grip ear, by reason of a collision between a car going north on Gilbert avenue and a large ice wagon going south.

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

<p>Mandamus — Compelling Pfjiformakcje of Act Forbidden by Law — Louisiana Constitution.</p> <p>Article 254 of the constitution of Louisiana of 1879 made it the duty of the general assembly to enact legislation to liquidate the indebtedness of the city of New Orleans, and apply its assets to the satisfaction thereof. Thereupon the general assembly, by Act 133 of 1880, amended by Act 67 of 1884, created the board of liquidation of New Orleans, with authority to refund the floating debt of the city by the issue and sale of bonds; but both acts expressly excluded from the refunding, so provided for, the floating debt of the year 1879. One S., holding claims against the city, which were a part of the floating debt of that year, applied for a .mandamus to compel the board of liquidation to fund or pay his claims, averring that the exclusion of his claims from the benefit of the refunding scheme was in violation of said article 254 .of the constitution. Held, that: even if such exclusion was unconstitutional, the general assembly having made no provision for the board of liquidation to refund or pay S.’s claims, but having expressly forbidden it to do so, the court could not, by mandamus, compel the board to issue bonds to S., under the refunding scheme.</p>

<p>1. Judgments — Mraseaii of Cause of Action — Effect on Special Remedy.</p> <p>The county of K., Mo., was authorized to issue bonds to pay for a subscription to the stock of a railroad company, and to levy a special tax annually in order to raise a fund to pay such bonds. The bonds were issued, and one M. subsequently recovered a judgment upon a part of them against the county. A warrant drawn on the special fund was issued to M; by the county court for the amount of such judgment, and, payment being refused for want of sufficient funds, the warrant was certified, pursuant to the statutes of Missouri, and M. thereupon became entitled to the first moneys accruing from the special tax. Funds having accumulated, M. again made a demand for payment of his warrant, which was refused, and he thereupon brought an action upon the warrant in a federal court, and recovered a general judgment against the county. An order was then made by the county court requiring the county treasurer to pay to M. the moneys then in the special fund, and all moneys accruing to it until he was fully paid. The treasurer paid to M. a part of the amount of his judgment, but afterwards, though having money in hand, refused to pay more, whereupon M. applied to the federal court for a writ of man-damns to compel such payment The treasurer’s return, in addition to these facts, showed that he had been enjoined from mating the payment by a state court, at the suit of holders of certain warrants drawn against, the special fund after the certification of M.’s warrant it eld that although the warrant issued to M. was merged in the judgment recovered thereon in the federal court, the special remedy incidental to the debt was not thereby lost, and M. was still entitled to be paid out of the first moneys accruing to the special fund.</p> <p>8. Municipal Ookpokaitons — Paymkxt of Debts — Requirement of Wakkant.</p> <p>Held, further, that the treasurer was not entitled to refuse payment of the judgment, because required by statute to make payments only on warrants of the county court, since either the order of the federal court predicated upon a judgment rendered by it, or the order of the county court requiring him to pay, was a sufficient warrant.</p> <p>8. Mandamus — Existence of Other Remedy.</p> <p>Held, further, that the fact that M. might resort to a mandamus, requiring the levy of a general tax to pay his general judgment against the county, assuming such right to exist, was no reason for refusing the mandamus to which he was entitled, and for which he had chosen to apply.</p> <p>4 State and Federal Courts — Jurisdiction.</p> <p>Held, further, that, the mandamus sought being the appropriate process for the enforcement of the judgment rendered by the federal court in an action in which its jurisdiction attached before the commencement of the action in the state court, the injunction issued by the latter could not interfere with the execution of such process.</p>

<p>1. Sleeping-Cae Oompaxies — Liability to Passengers.</p> <p>The owners oí sleeping- cars, though not common carriers, are responsible ior the discharge of certain general duties, arising from their contracts with their passengers, and involving the exercise of ordinary and reasonable care and attention towards them, and a violation of such duties may be made the subject of an action either ex contractu or ex delicto.</p> <p>2. Same — DxVmages.</p> <p>In an action against a sleeping-car company for failure to discharge its duty to provide a properly warmed and comfortable car for its passengers, it cannot be held, on demurrer, that damages alleged to have been caused by such failure, and consisting in suffering from the low temperature, contraction of a violent cold, and resulting in permanent injury to the passenger’s eyes', are so remote as not to be recoverable.</p>

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

This was an action at law by the People’s Bank of Greenville, S. C., against the Aetna Insurance Company on a policy of fire insurance. The action was brought in a state court of South Carolina, and was removed to the United States circuit court, which thereafter denied a motion to remand. 58 Fed. 161. The trial of the cause in that court resulted in a verdict for plaintiff, and, a motion for a new trial having been denied, judgment was entered on the verdict.

This was an action by John 0. L’Engle against James L. Grates upon a judgment. The case was hoard on a demurrer to portions of the answer.

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

The Augusta Southern Railroad Company has instituted a proceeding against (he Wrightsville & Tennille Railroad Company to obtain relief for an alleged violation of the law relating to intersi ate commerce. The wrong alleged is committed, it is charged, by means of discrimination against the complainant in the matter of freight charges on interstate shipments. These are both corporations created by the state of Georgia.

<p>1. Municipal Corporations — Issue of Bonds — Qualified Voters — Mississippi Constitution of 1869.</p> <p>The constitution of Mississippi of 1869 provided that the votes of two-thirds of the qualified voters of a city or town should be required to authorize a subscription by the city or town to the stock of a railroad company. An act of the legislature regulating such subscriptions provided that on the day of an election to authorize a subscription a new registration of voters should be had. which should be conclusive evidence’of the true number of, legal voters, and that no person not registered should vote, or be counted in determining the result. Held, that such provisions in regard to registration did not violate the constitutional provision requiring the assent of two-thirds of the qualified voters.</p> <p>2. Same — Reincorporation—Obligations.</p> <p>After a town had adopted an ordinance providing for an issue of bonds to pay for a subscription to the stock of a railroad company, and the same had been approved by the qualified voters according to the statutes of Mississippi, but before the bonds were issued, the charter of the town was repealed, and shortly afterwards the same constituency was incorporated as a city. Held, that the law thereupon imposed upon the city the obligation to discharge the outstanding debt or obligation of the tow.n to pay for the subscription to the stock, which might be discharged by the issue of bonds, if accepted by the creditor, though the city had no power to make such bonds negotiable, and that the constitution of Mississippi of 1890, in view of the saving clause contained in its prohibition of such subscriptions, did not invalidate a subscription made before its adoption, though no bonds had been issued at the time of such adoption.</p> <p>8. Same — Negotiable Bonds — Evidence of Debt.</p> <p>If a municipal corporation not authorized to issue negotiable bonds does issue bonds, negotiable in form, in payment of a debt, recovery may nevertheless be had upon such bonds, as evidences of debt, though they are subject. even in the hands of third parties, to equitable'defenses.</p>

This was an action in assumpsit on 70 coupons attached to 70 bonds issued by the mayor, city clerk, and city comptroller of the city of Ironwood, Mich. Held: as recited in the bonds, on the 3d day of April, 1893, was an election at which it was not within the corporate power of the electors of the city of lronw'ood to confer, by their votes, authority for this purpose. This writ of error is brought to review the judgment entered upon the Verdict thus directed.

This was an indictment against J. F. Janes for depositing nonmailable matter in the mails, in violation of Rev. St. § 3898. Heard on demurrer to the indictment.

This was an indictment in two counts against J. F. Janes, for violation of Rev. St. § 389J, by mailing a newspaper containing obscene matter. The case was heard on demurrer to the indictment.

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

This was an application by Frank Dudley for a review of the decision of the board of general appraisers sustaining the action of the collector in respect to the classification in duty of certain boards and planks imported by him.

<p>Customs Duuks — I-iouidatiov Act Juxk 23, 1874.</p> <p>The act of congress of June 22,1874, providing, in section 21, that “whenever duties upon ¡mj imported goods 's * * shall have been liquidated and paid, and suc-h goods - * * delivered to the owner. * * * such settlement of duties sliall, after the expiration, of one year from the time of entry, in the absence of fraud, and in the absence of protest by the owner, * * * be final and conclusive upon all parties,” does not give rise to any presumption that the collector made a liquidation within one year after entry, nor require a liquidation to be made within one year, but only prevents a reliquidation after a year has elapsed from the entry.</p>

<p>Tbadk-Mahks — Infiung-embht.</p> <p>A label upon which appears, on a. white background, in red and black letters, an advertisement of “Elastic Starch,” made by tlie II. Co., with a large and prominent cut of a flatiron, used as a trade-mark for starch, is not infringed by another label, used as a trade-mark for starch, bearing, on a red background, in white, yellow, and black letters, an advertisement of “E.’s New Process Starch,” with a picture of a colored woman holding up prominently a freshly-ironed shirt, underneath which, on a table, appears a small flatiron.</p>

This was a suit in equity by William Keuffel against the Lufkin Rale Company for alleged infringement of a patent for an improvement in tape-measure cases.

This was a suit in equity by the Loewer Sole-Rounder Company against Charles S. Gibbon, for alleged infringinent of a patent relating to sole-cutting machines. Final hearing on pleadings and proofs.

<p>Patents — Contbact o» License — Royai/ties.</p> <p>Defendant sewing machine company contracted to pay complainant company a royalty of 40 per cent, on the amount of Its receipts from sales or leases of machines covered by complainant’s patents. The contract, however, contained a proviso that if defendant “shall sell or lease, or cause to be sold or leased,” In any foreign country, the machines at less rates than those in this country, “then the royalty rate to be paid * * * shall be 40 per cent, in lieu of 45 per cent., as hereinbefore provided.” After operating several years in the home market, defendant began soiling and leasing in foreign countries at a less rate, and offered to pay 40 per cent, on all machines thereafter sold or leased. Plaintiff claimed that the proviso was retroactive, giving it a right, on the happening of the event, to 45 per cent, of all previous sales and leases, from the commencement of the contract. lleU, that the contract was merely prospective, so as to require payment of 45 per cent, on all sales and leases both at home and abroad, after the commencement of sales, etc., at a less rate abroad.</p>

This was a bill by the Kilmer Manufacturing Company against J. W. Gris-wold and F. B. Griswold for alleged infringement of patents Nos. 282,991 and 372,313, issued to Irving A. Kilmer for improvements in bale ties.

<p>Shipping — Delivery or Cargo — ItK-CoNomoxiiiG Damaged Bags — Lien.</p> <p>Where linseed in bags had been partly spilled during the voyage through insufficiencv or defects of the bags upon shipment, and the bill of lading provided, “ship not responsible for the condition of the bags,” and no fault of the ship appearing: Held, that the agreement of the ship “to deliver” so many “bags of linseed,” did not require her to provide new bags for the spilled linseed, or to re-condition the old and defective bags at her own expense; and that: her legal obligations were discharged by a delivery of the bags that were lit for delivery, and the tender of the residue of the spilled linseed in bulk; that there is no custom of this port requiring the ship to re-condition «uch bass, nor could such a custom prevail against the bill of lading; and the ship having re-conditioned the bags at the consignee’s request on account of whichever party might be liable: Held, that the ship had a lien on the cargo for this expense.</p>

<p>1. General Average — Danger Incurred through Vessel’s Fault.</p> <p>The fact that the vessel is in fault in creating the danger to avert which the sacrifice is made is no ground for denying the right of contribution, as between the cargo owners, though it prevents the vessel owner from sharing therein. 69 Fed. 414, affirmed.</p> <p>S. Same.</p> <p>Where a general average loss was incurred through a danger caused by the negligence of the master, and the proceeds of the vessel, in proceedings for limitation of liability, were distributed among the cargo owners, held, that, on a subsequent adjustment in general average, cargo owners who had filed claims in the limited liability proceedings were entitled, with the others, to the benefit of the adjustment. 69 Fed. 414, affirmed.</p> <p>8. Fame — General Average Acts.</p> <p>Where a vessel was stranded upon a reef, and tiie master jettisoned part of the cargo, then flooded the ship to prevent a total loss from pounding, and afterwards the ship and the cargo remaining in her were salved, held, that these measures were not for the benefit of the ship alone, but for the cargo as well, and, hence, that It was a case for general average. 69 Fed. 414, affirmed.</p> <p>4. Same — Payment under Limited Liability Proceedings.</p> <p>Proceeds of the ship, paid to various cargo owners in limited liability proceedings prior to the general average adjustment, are to be taken into account in the adjustment, in the same manner as if such proceeds still remained in the registry; and cargo owners who did not appear in the limited liability proceedings are entitled to receive the same benefit from the proceeds of the ship as those who had proved their claims. 69 Fed. 414, affirmed.</p> <p>6. Same.</p> <p>Where, after a. stranding, and before salvage operations were begun, specie was sent back to the port of shipment, and thence sent forward by another vessel of the same line, and delivered to the consignees, held, that such a separation was thereby effected from the rest of the adventure that the specie was not bound to contribute to the salvage expenses. 69 Fed. 414., reversed.</p>

<p>Collision — Too and Tows with Steamer in Channel.</p> <p>A steamer meeting in a channel a tug with several tows on hawsers must keep out of the way, and if a collision ensues the burden is on her to show that she took every precaution, and chose the right side of the channel, to avoid risk. 18 O. C. A. 442, 72 Fed. 85, affirmed.</p>

<p>Collision — Crossing Courses — Steamer—Tug and • Tow — Starboard Hand Rule — Whistles not Heard — Negligent Lookout.</p> <p>The tug Schulz, crossing the North River to the eastward, towing a schooner upon a hawser of about 25 fathoms, having the swift steamer Little Silver on her starboard hand coming up river, gave the latter a signal of two whistles and attempted to pass ahead of her, when there was nothing to prevent her going to the right and astern of the steamer, as the rule requires. The signal was not answered or heard; both kept on, alarm whistles were sounded when near, and the steamer came in collision with the schooner, a tow of barges having crossed the river towards the westward just before the collision between the Little Silver and the S., obscuring the hawser for a short time: Held, both steamers liable; the S. for not keeping out of the way of the Little S., the privileged vessel, by going to the starboard, as she might have done, or by stopping in time; the Little S. for previous inattention to the Schulz and her tow and not avoiding her, as she might easily have done, after the inability of the Schulz to keep away was evident.</p>

<p>Salvage — Fire at the Dock — Fire Department — Closing Ports.</p> <p>Fire broke out in the hold of the ship G. K., which could only be put out by pumping her full of water. The libellant’s boats arrived between 3:30 and 5:30 o’clock, a. m. and played streams until about 2 o’clock; but the chief work in tilling up the ship was done by the Fire Department boats, Havemeyer and New Yorker, which arrived at about 4 o’clock a. iu. At about 9 or 10 a. m. it was found the water was running out through some open ports below the water line, as fast as it was pumped in. Three hours were consumed by the diver of one of the libellants’ boats, and assistants, in closing these ports: Heidi, that though the main work of filling the ship was done by the Fire Department, prompt assistance by tugs in cases of ships on fire should receive encouragement by suitable compensation for whatever aid they in fact render; and in the above eases $100., $200. and $300. respectively were allowed to the libel-lant’s tugs.</p>

<p>.Removat. or Causes — Amount in Oontbovebsy — Objection by Removing Party.</p> <p>When a party has procured the removal of a cause from a state court to the United States circuit court, upon an averment that the amount in controversy is over ¥2,000, lie ought not to he heard, upon appeal or error, to suggest that the circuit court had no jurisdiction, because the amount in controversy was less than the minimum jurisdiction of that court, solely because the judgment finally rendered is less than the jurisdictional amount.</p>

<p>Removal of Causes — Complaint and Petition.</p> <p>A case cannot be removed as one arising under the constitution and laws of the United States, unless that fact appears by the plaintiff’s statement of his claim, unaided by any allegations in the petition for removal. Tennessee v. Union & Planters’ Bank, 14 Sup. Ct. 664, 152 U. S. 454; Chap-pell v. Waterworth, 15 Sup. Ct. 34, 155 U. S. 102; Land Oo. v. Brown, 15 Sup. Ct. 357,155 U. S. 488; Railway Co. v. Skottowe, 16 Sup. Ct. 869, — followed.</p>

<p>Appeal from tlie Circuit Court of tlie United States for tlie Northern District of Texas.</p> <p>On July 28, 1893, Herman Kruegel, appellee, instituted this suit in the district court of Dallas county, Tex., against C. S. Bell & Co., Murphy & Bolanz, and E. T. Loughborough, alleging that C. S. Bell & Co., who resided in Ohio, acting through Murphy & Bolanz as their agents, had prior to June 13, 1893, agreed to lend him $5,000 upon the security of certain real estate; that he had executed his note for said sum payable to C. S. Bell & Co., three years after date, with interest at 8 per cent, per annum, payable semiannually, and had also executed a mortgage or trust deed in which J. I*. ■ Murphy was named as trustee to secure said note; that these instruments had by him been delivered to Murphy & Bolanz on June 13, 1893, the day of their date; that the purpose of the loan was to improve the property on which the deed of trust rested; that he (Kruegel) received $1,900 of the money, and $3,100 thereof was retained by Murphy & Bolanz, to be paid out as the improvements were made; that on July 22, 1893, before the improvements were completed, Murphy & Bolanz, having appropriated to their own use the $3,100, had become insolvent, and made a general assignment to E. T. Loughborough; that said Loughborough or Murphy & Bolanz had possession of said instruments, and were about to send them to C. S. Bell & Co., in Ohio. He prayed for an injunction restraining the sending of the note to C. S. Bell & Co.; that the note, coupons, and trust deed be canceled; and that a receiver be appointed to hold them pending the suit. Kruegel alleged that he was “ready, willing, and anxious to repay to C. S. Bell & Co. the said sum of $1,900 received by him.” C. S. Bell tiled formal answer in the case on August 15, 1893, and, on same day, filed petition and bond for removal, which was granted on August 18, 1898. Transcript was filed in the circuit court, put on the equity docket, and an order to replead made. The appellee Kruegel then filed a bill of complaint at great length, but alleging substantially as in his original petition, and, in addition, claiming damages for breach of contract on the part of C. S. Bell & Co., in failing to furnish him the money contracted for, as follows: $400, paid Murphy & Bolanz, commission for securing the loan for him; $700, expended for labor and materials in making improvements on the lot; loss of rents, at rate of $130 per month, for each month since September 15, 1893, which he alleged the lot, if improved, would have yielded; and a balance of $918.60 out of the $1,900 received by him from C. S. Bell & Co., which he had on deposit with Murphy & Bolanz when they failed. The prayer was for the cancellation of the note, coupons, and deed of trust, for damages as above set out, and that the amount received by Kruegel be ascertained, and that they have a reasonable time to repay it, that the injunction be perpetuated, and for general relief. C. S. Bell & Co. answered under oath, setting up that they had the sum of $5,000 on deposit with Murphy & Bolanz, who were bankers, prior to June 13, 1893; that Kruegel employed Murphy & Bolanz to negotiate his note secured by deed of trust; that they had authorized Murphy & Bolanz to loan the $5,000 on improved real-estate security; that Murphy & Bolanz, acting as agent for both Kruegel and C. S. Bell and C. E. Bell (composing the firm of C. S. Bell & Co.), and Kruegel, arranged the loan; that Kruegel made the note and deed of trust, and delivered same to Murphy & Bolanz for C. S. Bell & Co., and the $5,000 was then placed to Kruegel’s account with Murphy & Bolanz, and was charged against C. S. Bell & Co. on their account with Murphy & Bolanz; that C. S. Bell & Co. had no knowledge of any agreement between Kruegel and Murphy & Bolanz by which Murphy & Bolanz were to retain in their bank any of the money, and had not authorized Murphy & Bolanz to make such agreement; that the agreement between Kruegel and Murphy & Bolanz regarding the retention by them of $3,100 was secretly and fraudulently made by Kruegel and themselves for the benefit of Kruegel, as C. S. Bell & Co. would not have made the loan on such terms. They deny that they knew Murphy & Bolanz were charging Kruegel the commissions of $400, or- that they knew before July 25, If’4)3, that Murphy & Bolanz were insolvent, but, on the contrary, aver they believed them to be solvent and safe brokers, which was also the opinion prevailing at the dme in Dallas, Tex. The bill was taken as confessed against J. P. Murphy and Chas. I¡\ Bolanz, comprising the firm of Murphy & Bolanz, on October 1, 1S94. Replication veas filed October J, 1804. A hearing- was had on July 18, 1895, and a final decree was rendered in favor of appellee; directing the cancellation of the note and deed, of trust In case Kruegel should pay $581.40, with 6 per cent. Interest from June 13, 1893, at any time before June 13, 189(5; directing, in event of such payment, that J. P. Murphy, trustee, reconvey the property to Kruegel; that, in case the sum adjudged should not be paid within the time limited, O. S. Bell & Co. should be at liberty to foreclose for the amount adjudged, with six per cent. Interest; that until Juno 17, 1S95, all parties be enjoined from indorsing, assigning, or negotiating tlie note and deed of trust; that after June 17, 189(5, In the event payment of $581.40, with interest, had rot been made, the appellants should be enjoined “from indorsing, assigning, or negotiating said note and deed of trust only to the extent of $4,418.(50”; and that defendants and, plaintiffs each pay one-half the costs. Prom this decree, O. S. and C. 13. Bell appeal.</p>

<p>Railroad Land Grants — Selection of Lands — Laches.</p> <p>A grant of land was made to a railroad company, by act of congress, in July, 186(5. in January, 1867, tlie company located tlie general route of its road, and filed tlie map thereof, but did nothing towards definitely locating its road until 1888, when it constructed,, tlie road, and did not file the map of the definite location until April, 1889. In tlie meantime, in September, 1885, one G. settled on certain lands within tlie indemnity limits of the grant, and was allowed by the officials of the land office to file his declaratory statement therefor, at that time, and to enter and pay for the land in June, 1886, receiving a patent therefor in April, 1890. The railroad company made no attempt to select such land until December, 1891, and waited until February, 1892, before bringing suit against G. to cancel his patent and recover the land. Held' that, in the absence of excuse for such delay, the railroad company was guilty of such laches as to bar it from relief in equity against G.’s adverse claim, notwithstanding the land, at the time G. settled on it, was withdrawn from settlement.</p>

<p>Railroad Land Grants — Indemnity—Limits of Selection.</p> <p>A railroad company, to which a grant has been made by congress of alternate sections of public land, on each side of its road, with the right to select other lands, within a limited distance beyond such alternate sections, in lieu of lands sold or otherwise disposed of by the government, cannot select indemnity lands on one side of its road, to make good losses sustained on the other side. U. S. v. Burlington & M. R. R. Co., 98 U. S. 334, followed.</p>

<p>Principal and Agent — Agent’s Knowledge — Participation in Illegal Acts.</p> <p>One J. H. filed bis bill against B., alleging that his four notes for K&ñ.OOO each, together with certain negotiable bonds as security, bad been delivered by bis agent S. H., to B., without consideration, but, though B. had acknowledged the discharge of all obligations of J. H., he refused to surrender the notes and bonds, or to disclose their whereabouts, and thereupon prayed for a decree awarding him possession thereof. B., in his answer, averred that the bonds were in fact the property of one M. H.; that he, as the broker of said M. H., had become the purchaser of a franchise from the city pf N. O.; that, at the request of M. H., he had falsely sworn, in legal proceedings instituted in connection with the sale of the franchise, that he was himself the bona fide owner of the franchise; that he had repeated such false testimony before the grand jury, in order to protect M. H. from threatened proceedings for corrupt dealings with the authorities of the city of N. O.; that the notes and bonds had been furnished to him by S. H., the agent of complainant, in order to corroborate such false testimony, by showing apparent proceeds of a sale of the franchise; and that complainant had knowledge, through his agent, of all these corrupt and immoral transactions. M. H., having been made a party, disclaimed all ownership of or interest in the bonds. The cause being set down on bill and answers, held, that the question of ownership of the bonds was settled in complainant’s favor by the disclaimer of M. H., and that, as it could not be presumed and was not alleged that the purpose and scope of S. H.’s agency for complainant were unlawful or authorized immoral acts, complainant was not to be charged with the knowledge acquired by his agent while participating in illegal and criminal transactions, and accordingly, not being in pari delicto with defendant, was entitled to the decree sought for the surrender of the bonds.</p>

This suit was on a surety bond given by the defendant, the Citizens’ Trust & Surety Company, of Philadelphia, to the plaintiff, tlie McCanna & Fraser Company, a, corporation of the state of Wisconsin.

These two writs of error are taken in the same case by parties who intervened therein.

<p>1. JUDGMENTS-— COLLATERAL ATTACK — JURISDICTION OF PRORATE COURT.</p> <p>The heirs at law of one L. having brought an action at law against Jl. and W., to recover certain lands in Texas, for which a patent was Issued to L. In 1856, R. and W. brought suit In equity against such heirs, to restrain the prosecution of their action at law, and assert an equitable title to the land. The bill alleged that the original certificate, entitling L. to locate lands, was issued to him in 1838; that he died, intestate, prior to 1841, before locating any lands; that in 1844 administration of Ms estate was granted, and in 1815 an administrator de bonis non, under an order of the probate court, sold tlie land to one B„ who, in 1834, obtained a duplicate certificate, and located the land; that in 185(5 a patent therefor was issued in the name of L., though B. was the owner; and that B.’s title had passed by regular conveyances to R. and W., the complainants. On the trial, complainants offered in evidence a judgment of the probate court, appointing the administrator de bonis non of the estate of L. Held that, as the probate court was one of general jurisdiction in the settlement of the estates of decedents, its judgment could not be collaterally attacked for any irregularities in the exercise of the jurisdiction, and the judgment was properly admitted, though, it did not appear how the original administration had terminated, nor that any order had been made extending the term thereof beyond 12 months from the time when it was granted, and the appointment of the administrator de bonis non was made more than 12 months thereafter.</p> <p>2. Same — Lapse of Time.</p> <p>Held, further, that after the lapse of many years, during which the land had been conveyed and improved in good faith, it was sufficient to show the order of the probate court dealing with the subject-matter, and that the absence of an order extending the administration after 12 months did not invalidate the title of the purchaser at the administrator’s sale.</p> <p>8. Same — Cokfirmation of Sale.</p> <p>Held, further, that the confirmation by the court of the sale made by the administrator de bonis non was sufficiently shown by an order, entered, after the receipt of his report of the sale, directing that the settlement, made by him (apparently referring to the disposition of the proceeds of the sale) be accepted and received by the court.</p>

This case comes here upon writ of error to review a judgment of the circuit coart, Southern district of New York, entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below, for §10,000. The action was to recover damages for personal injuries, caused by the negligence of plaintiff in error, who was defendant below.

<p>Pledge of Sugar Bounties.</p> <p>There is nothing in the sugar bounty provision of the act of October 1, 1890, or in Rev. St. §§ 3477, 3737, to prevent the sugar planter from pledging the bounty to become payable on his crop, before his claims therefor have been presented and allowed, and a treasury warrant issued. Hobbs v. McLean, 6 Sup. Ot. 870, 117 U. S. 567, applied.</p>

This was a petitory action brought by P. EL. Chadwick against the Gulf States Land & Improvement Company to recover lands and the rents thereon. The circuit court rendered judgment for defendant, and the plaintiff brings error.

<p>1. Indictment — Rev. St. § 3894 — Mailing Document Concerning Lottery.</p> <p>in an indictment under Rev. St. § 3894, for depositing in a post office a document concerning a lottery, an allegation that an envelope deposited by the defendant “contained a certain pamphlet concerning a certain lottery, which said lottery was then and there being conducted by a certain corporation, called,” etc., sufficiently affirms the existence of a lottery.</p> <p>3. Same.</p> <p>In such an Indictment, an allegation that the defendant “did knowingly deposit” in the post office a certain phamphlet concerning a. lottery, sufficiently alleges that the defendant knew that the matter deposited concerned'a lottery, since the word “knowingly” qualifies, not only the verb "deposited,” but the whole matter described.</p> <p>3. Lottery — Rev. St. S 3894.</p> <p>The U. Co. conducted a business, the essential features of which were as follows: In consideration of a membership fee of So and monthly dues of $2, it entered into contracts with persons who desired to become members, purporting to be contracts of indemnity in case of sickness, accident, or death, and issued to Them certificates, containing the usual provisions of similar insurance policies. To each such certificate were attached SO coupons of 810 each, which were numbered consecutively, those on the first certificate issued running from 1 to 50, those on the second certificate issued from 51 to 100, and so on, indefinitely. The certificates were issued in the order in which applications were received, by mail or otherwise, and there was no means of knowing, prior to the issue of a certificate, how many had been issued previously, nor what would be the numbers of the coupons to be attached to it. It was provided that one-half of the amounts received from monthly dues should be placed in a so-called “Maturity Fund,’’ and that, whenever there should be sufficient money in said fund to pay one or more coupons, such number of coupons should be paid, and that the coupons to be paid should be determined by taking, first, the coupon numbered 1, then that numbered 5, and so on, in a geometrical progression, with the ratio 5, until the series reached the highest numbered coupon sold; then taking that numbered 2. then 10, etc., in a second series, with the ratio 5, and so on, until the numbers of all the coupons sold should be included in some series. It was also provided that, at the end of 3 years, each certificate holder should receive the full amount paid in monthly dues; at the end of 5 years, $150; at the end of 7 years $300; and at the end of 10 years $500, — but the only resources to provide for such payments were the membership fees, and certain inconsiderable portions of the monthly dues; the remainder of such dues, after providing for the maturity fund, being devoted to an expense fund, and a sick, accident, and death fund. Held, that this scheme was a lottery, within the meaning of Eev. St. § 3894.</p>

<p>1. Indictment — -Mailens Letter coucernix® Lottery — Rey. St. § 3894.</p> <p>An allegation in an indictment under Rev. St. § 3894, for depositing in the post office a letter concerning a lottery, that, the defendant knowingly deposited “a certain letter concerning a certain lottery conducted by a corporation called,” etc., sufficiently shows, assuming such showing to be required by the statute, that the letter concerned a lottery existing' at the time the letter was mailed.</p> <p>2. Same.</p> <p>Such an indictment need not allege specifically facts showing the enterprise to be a lottery. A general averment to that effect is sufficient.</p> <p>3. Same.</p> <p>Nor need such an indictment allege that the letter deposited in the post office was in aid of a lottery, since the statute does not require this as an element of the crime, but only that the letter should have been concerning' a lottery.</p> <p>4. Same.</p> <p>It Is not necessary that documents set out in such an indictment, and alleged to have been deposited in the post office, should show, upon their face, that they concern a lottery; nor are documents so set out repugnant to the allegation that they concern a lottery because they do not show that fact on their face.</p> <p>5. Same.</p> <p>When such an indictment declares the scheme in question to be a lottery, without giving the details thereof, or describing- its plan, such allegation must, for the purposes of a demurrer, be taken as true; and the objection that such scheme is not a lottery, because the only element of chance therein relates to time of payment, cannot arise.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a bill by Benjamin S. Codman and others against Joseph Amia for alleged infringement of a patent for an improvement in atomizers. The circuit court dismissed the bill on the ground that the patent was void, as to the claims sued on, for want of patentable invention. 70 Fed. 710. Complainants appeal.</p>

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

<p>Appeal from the District Court of the United States for the District of Massachusetts.</p> <p>This was a lihel in rein by William V. Abbott and others, owners of the schooner pilot boat D. J. Lawler, against the fishing schooner Horace B. Parker, to recover damages arising from a collision by which the Lawler was sunk and lost. The district court held the Parker solely in fault, and the claimants appealed. On January 9, 1896, this court reversed the decree, and remanded the cause, with directions to enter a decree dividing equally the damages and the costs of both courts. See 18 O. O. A. 406, 71 Fed. 989. In the answer of the Horace B. Parker, there was an allegation “that there was a heavy vapor or mist at the time, and the night was very thick”; and one of the charges made therein against the Lawler was that she “did not sound a fog horn, or use any other signal required by law under the circumstances.” One of i,he grounds upon which the decree of reversal was based was that these allegations constituted a conclusive admission on the part of the Parker that the conditions were such that she herself was bound 1o sound a foghorn, and, having failed to do so, she was necessarily in fault. In view of this admission, the court stated that it found it unnecessary to weigh the proofs on the question whether there was a mist which rose high enough to obscure the lights of tho vessels respectively.</p> <p>After this court had rendered the foregoing decision, the appellants pro-seated a motion for leave to amend, or to apply to the court below for permission to amend, their answer, by striking out the allegations in respect to the existence of the mist and the omission of the Lawler to sound a fog horn. At the same time they also filed the following petition to certify questions of law to the supreme court: “John Chisholm and William H. Idiomas, the claimants, appellants in the ease above named, respectfully request the circuit court of appeals to certify to the supreme court of the United Slates for Its decision the following questions. They request the court to certify the question: (1) Whether, when the answer of the claimants, in a cause of collision, in admiralty, contains an allegation that there existed vapor or mist at the time of said collision (said allegation not being responsive to any of tho allegations of the libel, and not being admitted by the libelants), and charges that tho libelants were negligent (among other acts of negligence) in that they did not sound a fog horn, said answer being sworn to upon information and belief only, and it appearing from the testimony that the claimant who so verified the answer had no personal knowledge of the facts so alleged, said allegation, or charge of the negligence of tho libelants, constitutes a conclusive admission of negligence on the part of tho claimants, if they failed to sound a fog horn, although the testimony in the case negatives the existence of said vapor or mist. They also request the court to certify the question: (2) Whether, in said cause, the court of appeals having held the vessel of the libelants in fault for failure to exhibit proper side lights, the vessel of the claimants should he condemned for one-half of the damages in said cause, because of the allegation and charge in the answer, above stated, although the testimony In the case failed to prove said allegation. They also request the court to certify the question: (3) Whether, under the circumstances stated In question 1, above, the court of appeals is justified in refusing to examine tho evidence of the existence or nonexistence of said vapor or mist”</p>

Tbis was a libel in rem by S. B. Marts and others, owners of tbe schooner Anna T. Ebener, against tbe steam tug Oceanic, I. H. Hatheway and others, claimants, to recover damages for the loss ,of the schooner, freight, and cargo, which resulted from stranding while in tow of the tug. The district court found that both the schooner and the tug were chargeable with fault, and entered a decree equally dividing the damages between them. From this decree both parties havé appealed.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This was a petition by Charles McWilliams and others, owners of the steam tugs Vandercook and Thomas Purcell, for limitation of liability in respect to such tugs, for the loss of certain coal-laden barges while in tow thereof.' The district court found that the tugs were in fault, and granted the petition for limitation of liability. 65 Fed. 251. From this decree the petitioners appeal.</p>

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

This was a libel by Milford T. Cunningham, managing part owner of the tug Bessie B., against the steamship Williamsport, to recover damages resulting from a collision. The district court dismissed the libel, and the libelant appealed.

<p>Appeal from the Circuit Court of the United States for the Northern District of Georgia.</p> <p>This was a suit hy William T. Walters and others against the Western & Atlantic I-tailroad Company and others. J. S. McLendon filed an intervening petition, aslring the allowance of a claim against the assets of the corporation, which petition was referred to a special master. On the coming in of the master’s report, an order was taken directing the payment of $80 to McLendon. 69 Fed. 679. From this order he appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This was a libel by James McCaldin and Joseph McCaldin against the steam tug Ice King to recover damages suffered by the steam tug McCaldin Brothers in a collision between the two boats. The Knickerbocker Steam Towage Company, as owner of the Ice King, filed a petition for limitation of liability. Limitation allowed, and decree for libelant for one-half the damages. 52 Fed. 894. The claimant of the Ice King appealed from so much of the decree as adjudged the Ice King at fault in the collision. The owners of the McCaldin Brothers also appealed.</p>

This was an action by Howes & Strevell against T. C. Hunt and others. There were verdict and judgment for plaintiffs. Defendants’ motion for new trial was overruled, whereupon they bring their writ of error.

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

<p>Equitable Lien — Contract.</p> <p>Thé city of A., being authorized to issue $500,000 of bonds, to provide a sewerage system, of which $100,000 had been sold, and the cash received, made a contract with W. for the construction of the gathering-part of the system, which, upon the estimates made by the city engineers of the quantities of different kinds of work to be done, at the prices fixed, amounted to $881,209.45. The contractor subsequently filed a bill, alleging that the quantities of work to be done so varied from the estimates that the cost, instead of amounting to only $331,209.45, would consume all that was available of the sewer fund on hand, claiming an equitable lien on the whole fund for Ills payment, and praying that the city be enjoined from making a contract for an outfall system, and setting aside a portion of the fund to pay for it. The contract with W., which was made when only $100,000 of the bonds had been sold, provided that only so much work as that sum would pay for should be done, until more bonds liad been sold, and, as additional sums of $50,000 were received, the contract should be carried on, until such sums were absorbed, or the contract completed. Held, that this provision, in view of the known circumstances at the time and the amount of the estimate, must have been intended to limit the sums to be absorbed to $33L,209.45, and did not give W. a lien on the whole fund.</p>

<p>Tiffs was a suit in equity, brought in the United States circuit court for the Southern district of Florida by the Florida, Mortgage & Investment Company, Limited, a corporation organized and existing under the laws of the kingdom of Great Britain, against Daniel A. Finlayson, as administrator of the estate of A. Florida Finlayson, deceased, and against Daniel A. Finlayson in his own right, for the removal of a cloud from title. The bill of complaint alleges that complainant was seised in fee of 800 acres of land, therein described, situated in the county of Hernando, and state of Florida, all of said lands being wild and unoccupied, and no one in actual possession thereof; that complainant derived title thereto from one .T. Hamilton Gillespie, whose title was based on a deed executed to him by a master in chancery, dated April 2.'i, 1889, under a final decree and sale in a foreclosure suit instituted by complainant against Virginia H. Tucker and James F. Tucker, her husband; said Gillespie taking said master’s deed in his own name, but as agent for complainant. Said bill further recites that at the time said mortgage was executed to it by said Tucker, to wit, on July 25, 1885, the public recoras of said Hernando county showed that the said Virginia H. Tucker was seised in fee of said lands, the title thereto having been in the name of her father, IV. J. Bailey, who departed this life in Jefferson county, Fla., in 1872, seised of said lands; that on or about the 30th day of December, 1882, all the heirs at law of the said Bailey executed good and sufficient deeds to each other to the different tracts of land owned by the said Bailey at the time of his death, by one of which said deeds the title to the lands in question was vested in the said Virginia H. Tucker; that at the time of the execution of said mortgage, and at "the date of said final decree, and up to the date of the institution of this suit the public records of said Hernando county showed no incum-brance or cloud on the title to said lands; that in June, 1805, the defendant, as administrator as aforesaid, obtained from the circuit court of Jefferson county, Fla., a writ of execution issued upon the order of said court upon scire facias proceedings to revive a certain judgment reeovercdby the said A. Florida Finlayson in her lifetime on the 0th day of September, 1875, in said court, against James F. Tucker, as administrator of the estate of W. J. Bailey, deceased, and after certain proceedings had thereon in said county of Jefferson the said execution was sent to the sheriff of said Hernando county, and under the instructions of defendant was levied upon about 7,500 acres of land in said county as the property of said Bailey at the time of his death, in which ivas embraced complainant’s land, and said land was advertised and sold under said execution, and sheriff’s deed executed thereto to defendant in his own right; thát no transcript of said judgment was ever filed in Hernando county, and that complainant had no knowledge or notice of the existence of said judgment until said .levy was made; that the laws of the state of Florida have at all times since the recovery of said judgment provided a method by which lands belonging to the estate of a deceased person situated in counties other than that where said estate was being administered could be proceeded against and sold to satisfy the indebtedness of said estate; that the method so prescribed is the only one by which l§nds so situated could be sold for the payment of such debts; that said method was not followed by defendant; that for a period of nearly 20 years after the recovery of said judgment no effort was made by the judgment creditor or her representatives, as complainant is informed and believes, to obtain the satisfaction of same out of the personal and real property belonging to the estate of said Bailey in said county of Jefferson, where said judgment was so recovered, although the amount'of said judgment could have been realized within any reasonable time after its recovery, said estate having been at all times solvent, and having plenty of property, both real and personal, in said Jefferson county, out of which it could have been satisfied; that no execution ever issued thereon ■until June, 1895; that by reason of said delay and inaction on the part of both decedent and her representative they .have been guilty of gross laches and neglect, which deprives the said defendant of all recourse against the lands of complainant for payment of said judgment, if such recourse could have ever been had. The bill prays that said levy of said execution on complainant’s land and all proceedings had thereon, including the sheriff’s deed, may be declared illegal and void, and the cloud on title occasioned thereby removed. The defendants answered the bill, and complainant filed three exceptions to certain paragraphs thereof, the language of which was as follows, on the ground of impertinence: “But defendant avers that no such record was requisite or necessary to give validity to the proceedings had under said judgment and execution. And the defendant denies the allegation in complainant’s bill that it had no knowledge or notice of the existence of any claim or judgment of A. Florida Finlayson against the estate of William ,T. Ba.iley, deceased, until the levy of the said execution upon the lands described in said bill and the publication of the notice of the sale thereof, but, on the contrary, the defendant is informed and believes, and therefore alleges, that the complainant or its agent or attorney who passed upon the title to said lands, before the mortgage from Virginia F. Tucker and .Tames F. Tucker, her husband, to complainant was executed, was advised of the existence of said claim and judgment; that the records of Hernando county showed that the title to the lands described in complainant’s bill was vested in William J. Bailey, and by dealing with his heirs as the owners of said lands, and accepting a mortgage thereon from Virginia F. Tucker, one of said heirs, and James If. Tucker, her husband, who was then administrator of the estate of William J. Bailey, the complainant was put upon notice of the death of said William J. Bailey, and upon notice that the property owned by William J. Bailey at the time of his death was subject and liable for the payment of his debts, and that the heirs held said lands from their ancestor subject and liable to. the payment of any of his debts then outstanding and unsatisfied; and with this knowledge and notice, to put the complainant upon inquiry, it was incumbent upon the complainant to ascertain if any debts of said William J. Bailey remained outstanding and unpaid, and by the exercise of that reasonable and proper diligence required of the complainant under the circumstances it could have been easily informed from the public records of the county in which said William J. Bailey died, and where his estate was under the law being administered, of the claim and judgment aforesaid, and of the condition of the estate of said William ,T. Bailey, deceased. And the complainant cannot now claim any benefit from its own negligence, and from its failure to exercise reasonable and proper diligence, but should be left by a court of equity in the position it has voluntarily put Itself hy taking the chances that these lands would not be subjected to the payment of any debts of William .1. Bailey, deceased.” “Second. Defendant avers that the method alleged and set forth in complainant’s bill of subjecting lands of decedents lying in different counties to the payment of debts is available only for administrators and executors of such decedents, and he denies that said method so prescribed is the only method ‘by which lands so situated could be sold for the payment of such debts’; but, on the contrary, defendant avers that under the laws of the state of Florida real estate and personal property of a decedent are equally liable to levy and sale under 'an execution upon any judgment against the administrator or executor of such decedent. And that the method pursued in subjecting the lands of said William J. Bailey, deceased, to the payment of the judgment of A. Florida Finlayson. deceased, was m pursuance of, and expressly authorized by, ike statutes of the state ot' Florida in such cases provided, and in obedience to and by virtue of the judgments and orders of a court of competent jurisdiction.” “Third. And, further answering, defendant says that he denies that he, as administrator of the estate of A. Florida Irinlayson, deceased, or that said A. Florida Finlayson in her lifetime, was guilty of such laches and neglect in the enforcement of the said judgment against the estate of William J. Bailey, deceased, a.s deprived this defendant, as administrator as aforesaid, of all recourse against the lands described in complainant’s bill for the payment of said judgment; but, on the contrary, this defendant avers that the claim of said A. Florida Finlayson against the estate of said William J. Bailey, deceased, was duly and legally presented to the administrator thereof immediately upon his appointment, and was sued to judgment against said administrator within two months after the date of his appointment; that said suit lias been a pending proceeding in the circuit court in and for Jefferson county since the institution of the same, and said judgment has remained unsatisfied, and the administration of the estate of said William J. Bailey has never been finished, nor the administrator discharged, and said estate is still opened and unsettled; that during the life of said judgment, and before action on tlie same was barred at law, this defendant, as administrator of the estate of A. Florida Finlayson, deceased, by scire facias proceedings continued the prosecution of the action commenced by said A. Florida Finlayson in her lifetime against James F. Tucker, as administrator of the estate of William J. Bailey, deceased, in the said circuit court of the Second judicial circuit of Florida in and for Jefferson county, and by the consideration and judgment of said court execution was awarded upon said judgment before rendered by said court in said action, to be levied on the goods and chattels, lands and tenements of which said William J. Bailey died seised or possessed; that the execution so awarded and issued upon the said judgment was levied first upon all the lands in Jefferson county, Florida, of which said William 3 Bailey died seised, and said lands were sold by the sheriff of Jefferson county, and the proceeds of the sale thereof duly credited upon said execution; that after the proper application of all the proceeds of such sale there still remained a large amount due upon said execution; that said execution was afterwards sent to the sheriff of Hernando county, and by him levied upon certain lands there situate of which said William J. Bailey died seised, including the lands described in complainant’s bill, and the same was sold and conveyed to this defendant in his own right as herein aforesaid.” The ease came on for a hearing on said exceptions.</p>

This was a bill in equity, in the nature of a bill of interpleader, filed by the Union Pacific Railway Company, in behalf of S. II. H. Clark and others, its receivers, against Jacob H. Schiff and others, composing the firm of Kuhn, Loeb & Co., C. W. Gould, as assignee of the firm of Field, Lindley, Wiechers & Co. for the benefit of creditors, and Norman S. Dike, as receiver of the assets of said last-named firm.

<p>Promissory Notes — Seals—Arkansas Statutes.</p> <p>Under the statutes of Arkansas and the constitutions of the state of 1868 and 1874, as interpreted by its courts, two kinds of promissory notes are recognized, those under seal and those not under seal, which differ only in the periods of limitation applicable to them, respectively, the former being barred in ten and latter in five years. Accordingly, held that, where a deed of trust in the nature of a mortgage recites that it is made to secure promissory notes, though not specifying that such notes are under seal, one who accepts a subsequent mortgage on the same property, more than five but less than ten years from the making of the first mortgage, cannot claim the benefit of the Arkansas statute (Acts 1889, c. 58) limiting suits to foreclose mortgages to .the period within which actions may be brought on the debts secured, and providing that payments to continue the life of the debt, as against third parties, must be indorsed on the record before the statute has run. Held, further, that in such case the subsequent incumbrancer was bound to inquire whether the notes secured by the first incumbrance were executed under seal, and having failed to do so the first incumbrancer was not estopped from showing that the notes by him held were sealed instruments.</p>

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

<p>In Error to tlie Circuit Court oft be United Htates for Uie Southern District of New York.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>This was a libel by the Electro-Dynamic Company against the yacht Electron, James Bigler, claimant, to recover a balance alleged to be due of the price of certain supplies and repairs. The claimant filed a cross libel in personam to recover damage for an alleged' breach of the contract under which the repairs were furnished, and the court granted a stay of proceedings on the original libel until security was given for the damages claimed under 1he cross libel. 48 Fed. 689. Afterwards the case was heard upon the merits, and the court below entered a decree for libelant, and dismissed the cross libel, 56 Fed. 304. The owner of the yacht appealed.</p>

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

<p>1. Scire Facias — Missouri Statute.</p> <p>Under tlie practice in Missouri, a writ of scire facias to revive a judgment, which lias been assigned, is not demurrable because issued in tbe name of tbe assignor, but it is sufficient if tbg writ itself shows that it was issued on behalf of and to the use of the assignee, and permission may be given to amend the writ by striking out the name of the assignor where it is mere surplusage.</p> <p>2. Same.</p> <p>The right to a writ of scire facias to revive a judgment is not limited by the Missouri statute (Rev. St. Mo. § 6013), providing that a plaintiff may have the writ, at any time within 10 years, “to revive a judgment and lien,” to cases in which the judgment which it is sought to revive is a lien on property.</p> <p>3. Samf..</p> <p>The right to a writ of mandamus for the enforcement of a judgment is equivalent to the right to issue an execution thereon for the purposes of an application to revive the judgment on scire facias.</p> <p>4. Same. ■</p> <p>The revival of a judgment by scire facias, under the Missouri statutes, continues the right to enforce the same by execution or mandamus, or to bring an action thereon, and such rights do not cease upon the expiration of 10 years from the entry of the original judgment.</p>

<p>1. Contracts — Construction.</p> <p>A provision in a contract that the report of an engineer, inspector, or arbiter as to the amount and quality of the work done or material furnished under a contract shall be conclusive upon the parties to the agreement is a legal stipulation, and can only be set aside for fraud or for such gross mistakes as imply bad faith or a failure to exercise an honest judgment.</p> <p>2. Same — Performance ■— Certificate of Inspector — Questions op Measurement, ETC.</p> <p>When the parties to a contract for the performance of work or the furnishing of material agree that the report of an inspector or arbiter as to the amount and quality of work done or material furnished shall be conclusive. the report of such inspector or arbiter is as conclusive upon questions of count, measurement, or distance as upon other matters, although these questions may be capable of accurate measurement.</p> <p>3. Same — Mistake op Inspector.</p> <p>One E. made a contract with the M. Iiy. Co. to furnisli it a quantity of railroad ties, for which he was to be paid certain prices for first-class and second-class ties, respectively; first-class ties being specified to be 8 feet long, no more and no less, hi ches thick, and fully 8 inches wide, lull hewn, free from score marks, not winding, and with all bark removed. The contract provided that the railroad company should appoint an inspector to inspect and classify the ties, whose inspection and judgment should be binding on 10. The railroad company afterwards refused to pay for a quantity of ties accepted by its inspector, on the ground that his classification was incorrect, and, E. having sued for the price of the ties, the railroad company filed a bill to enjoin the prosecution of the action, and, failing to show any fraud on the part either of E. or the inspector in respect to Ms report, sought to sustain such bill on the ground of the inspector’s mistakes. It appeared that many of the ties accepted by the inspector did not precisely conform to the dimensions given in the contract. It also appeared, however, that it was the universal custom in such eases to accept ties not varying from the specifications more than one inch in length, one-half inch in breadth, or one-quarter inch in thickness, and the railroad company’s own inspector of ties testified that it would be almost utterly impossible to comply literally with such specifications. It also appeared that the reinspection of the ties, on which the railroad company based its claim of mistake, was made by a clerk from the office of the railroad company and two other employes, who measured the ties and rejected all which measured one-sixteenth of an inch under 8 feet on the shortest side, and all not so rejected which were deficient in width or thickness. Held, that the evidence wholly failed to establish a mistake on the part of the inspector so gross as to imply bad faith or failure to exercise an honest judgment on his part, which were the tests of the right to set aside his decision, and, accordingly, that the bill should be dismissed.</p>

This was a proceeding by the interstate commerce commission against the Alabama Midland Kailway Company and the Georgia Central Railway Company to require defendants to comply with its order of January 20,1894, in response to the complaint of the board of trade of Troy, Ala. The suit was dismissed by the circuit court (69 Fed. 227), and the interstate commerce commission appeals.

On March 10, 189G, John D. Hart, Calixto Garcia, Samuel Hughes, Benjamin Guerra, Bernardo J. Bueno, Lawrence Brabazon and Joseph Miccheleno were indicted upon five counts, charging in substance a violation of the neutrality laws in beginning, setting on foot, or preparing for a military expedition or enterprise from this port against Spain, in aid of the Cuban insurgents, in violation of section 5286 of the Revised Statutes. They pleaded not guilty.

<p>1. Federal Courts — Following State Decisions — Criminal Law.</p> <p>When an indictment found in a court of a state in which the offense is defined by statute is removed to a federal court for trial, the latter court must be controlled by the interpretation given to such statute by the highest court of the state.</p> <p>2. Criminal Law — Murder in the First Degree — North Carolina Statute.</p> <p>Under the statute of North Carolina, murder in the first degree is confined to homicide committed by poison, lying in wait, or while perpetrating a felony, and eases where it is conclusively shown that the act was prompted by deliberate purpose and premeditated malice arid design. The use of a deadly weapon only raises a presumption of malice, not of premeditation and design, which must be shown beyond a reasonable doubt.</p> <p>8.Same — Murder' in the Second Degree.</p> <p>Under the statute of North Carolina, a homicide committed with malice, express or implied, without premeditation, is murder in the second degree, unless shown by the defendant to have been done under legal provocation reducing the homicide to the degree of manslaughter.</p> <p>4. Same — Provocation—Reducing Degree op Crime.</p> <p>Words or conduct which are not legal provocation, but which are well calculated to arouse, and do arouse, sudden passion, will modify a homicide to murder in the second degree.</p> <p>5. Same-Previous Threats.</p> <p>Where the evidence shows previous threats or malevolent conduct of a defendant charged with murder, towards the deceased, the jury must consider carefully all the attendant facts and circumstances, to see whether such threats were called forth- by-sudden and temjporary passion, aroused by some immediate provocation, or by an antecedent, fixed purpose to kill at a future time.</p> <p>6. Same — Justifiable Homicide — Officer of the Law.</p> <p>Where an officer has legal authority to arrest, and, while using proper means, is resisted, he may repel force with force, and need not give back an inch, though he must not use excessive violence, beyond the emergencies-of the occasion; and, if the person resisting is necessarily killed in the struggle, the homicide is justifiable.</p> <p>7. Same — Malice.</p> <p>When an officer invested with the authority and duty to arrest an offender is rightfully proceeding in the line of his duty, and is resisted, and the death of his assailant is the result of the encounter, the fact that the officer entertained ill feeling or malice towards his assailant is not 'sufficient evidence of premeditated malice, in determining the degree of the homicide.</p> <p>8. Same — Showing Warrant.</p> <p>A known officer, having legal authority to arrest, who is resisted in making an arrest, need not show or read the warrant before the arrest is secured.</p> <p>9. Same — Assistant of Officer.</p> <p>Duly-summoned assistants of an officer are under the same protection of- the law which is afforded to the officer who has process in his hands.</p> <p>10. Same — Deadly Weapon.</p> <p>If a person for whom an officer holds a warrant of arrest uses a rock in close conflict with the officer, in resisting arrest, and wounds him, such rock is a deadly weapon; and if such person has another rock in "his hands, and manifests a purpose to throw it, he is in a condition of deadly resistance, and the officer is justified in shooting him to prevent imminent danger and serious injury.</p> <p>H. Same — Evidence—Declaration of Prisoner.</p> <p>Wlien declarations oí a prisoner are relied on by the prosecution to show a homicide, they are available to the prisoner to prove the manner of the killing and the motive prompting it, and are as protective to him as if he liad shown by independent testimony such explanatory and mitigating facts and clrcumsianees.</p> <p>12. Same — Jury—Beaching Verdict.</p> <p>Though not a rule of law, it is a reasonable and moral duty of a small minority of a jury, who are in favor of conviction in a capital case, to yield their views, and concur with a decided majority in favor of acquittal on the ground of it reasonable doubt of guilt; but the converse does not apply to a small minority in favor of acquittal.</p> <p>18. Same — Reasonable Doubt.</p> <p>Distinction between “a presumption of innocence” and “a reasonable doubt” stated by court.</p>

This was a bill by Charles H. Gabriel against R. R. McCabe and George D. Elderkin to restrain the infringement of his copyright.

<p>This was a bill in equity by James Campbell against the H. T. Conde Implement Company for alleged infringement, of a patent.</p>

This was a libel in rem by Patrick Harty against the steamship Louisiana, of which the Cromwell Steamship Company and E. V. G-ager, master, were claimants, to recover damages for personal injuries. The district court dismissed the libel, and the libelant appealed.

<p>Appeal from an Order of the Judge of the District Court of the United States for the District of Colorado.</p>

<p>1. Petition for Writ of Error — Assignments of Error.</p> <p>The petition for a writ of error, under rule 11 of the circuit court of appeals for the Seventh circuit, is intended merely to ask for a writ of error in general terms, and need not specifically mention each order or judgment complained of; hut it is enough if such orders and judgments are excepted to, and assigned for error in the assignments of error.</p> <p>'¿. Same — Waiver of Objections.</p> <p>After defendant in error has argued, both orally and in his brief, errors assigned in respect to an order amending the judgment originally entered, it is then too late to set up an alleged defect in the petition for a writ of error, in that it did not specifically mention such amending order or judgment.</p> <p>8. Federal, Appellatf, Courts — Following State Decisions.</p> <p>A judgment in a federal court, in favor of a garnishee, was amended, on his application and in supposed compliance with the state statute, so as to award him his personal expenses and attorney's fees. Afterwards the state supreme court, in a case pending- before it, decided that the statute did not apply in such cases. Ualii, that this decision was binding-on The federal appellate court, and required a reversal of the amending order, notwithstanding that the amendment was applied for in good faith by the garnishee. 73 Fed. 591, reaffirmed.</p> <p>4. Same — Costs on Appeal — Apportionment.</p> <p>Tlie appellate courts cannot undertake 1o apportion the costs therein, between the parties, in all cases in which the judgment is affirmed in part and reversed in part.</p>

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

<p>1. Equity Practice — Preliminary Injunction'.</p> <p>It is not enough to justify the circuit court of appeals in reversing an order of the circuit court refusing a preliminary injunction to stay a foreclosure sale, in a suit to vacate tlie decree of foreclosure, that the complaint probably contains sufficient averments to warrant the relief prayed for; but it must be made to appear that there are reasonable grounds for believing that the material allegations of the bill, tending to show fraud and collusion, are true, and that they will probably be established on tlie linal hearing.</p> <p>2. Same.</p> <p>Complainants filed, a hill to vacate a decree in a railroad foreclosure suit, alleging fraud and collusion in procuring tlie decree, and applied for a preliminary injunction to restrain the sale. It appeared that certain parties liad intervened in the foreclosure suit, and after full opportunity to present the same objections to the entry of the decree, in the presentation of which complainants had co-operated with them, they had withdrawn their objections. Complainants averred that this was done without tlieir knowledge, but made no attempt to show any improper motive. It also appeared that complainants had made no effort to attack the decree for three months after its entry, and that on the eve of the sale they had made a demand on one of the defendants in tlieir bill to buy their interests in order to avoid the suit. Held, that these circumstances''were sufficient to justify the denial of tlie preliminary injunction.</p>

<p>1. Equity Pleading — Fraudulent Conveyance — Limitations—Kansas Statute.</p> <p>A Kansas statute (Gen. St. par. 4095) provides tliat an action for relief on the ground of fraud must be commenced within two years, unless it is made to appear that the fraud had not been discovered until within that period. Complainant filed a bill in equity in the United States circuit court for the district of Kansas to set aside a transfer of property as made to defraud creditors. The allegations of the bill showed that the fraud was committed more than four years before the filing of the bill and that complainant’s judgments were recovered more than three years before, while there was no allegation that the fraud was not discovered until within two years. Held, that the bill was demurrable.</p> <p>2. Same — Return of Execution.</p> <p>In order to sustain a suit in equity to reach assets of a debtor, the creditor must show that judgment has been obtained at law against such debtor, and execution thereon returned unsatisfied.</p> <p>3. Same — Real Estate.</p> <p>A bill in equity which seeks to set aside transfers of real estate, and apply the same to the debts of the transferror, must definitely describe and identify the real estate sought to be reached.</p>

<p>CONSTITUTIONAL Law — CONTRACTS BY STATE-POLICE POWKB.</p> <p>It is beyond the power of a state, through its legislature and administrative officers, to enter into a contract hampering the future action of the state, in the exercise of its police power to regulate, restrict, or prohibit the trafile in intoxicating liquors. Accordingly, held, that a license to sell such liquors, granted February 10, 1896, for one year, pursuant to the New York statute regulating the sale of liquors (Laws 1892, c. 401), did not constitute a contract between the state and the licensee, such that the subsequent act of March 28, 1896 (Laws 1896, c. 112) declaring the license void after June 30, 1896, and requiring the licensee, in common with all other dealers in liquors, to take out a liquor tax certificate and pay a tax, would be void, as to such licensee, as impairing the obligation of a contract, and depriving him of his property without due process of law.</p>

This was an intervening petition which was filed by tbe appellant, Leslie 0. Ferree, in a case entitled New York Security & Trust Oo. v. Lombard Inv. Co., which was pending, at the time the intervening complaint was filed,' in the circuit court of the United States for the Western district of Missouri. The intervener, Leslie C. Ferree, was the holder of a note in the sum of $0,000, which was secured by a deed of trust on certain real estate situated in Kansas City, Mo.

<p>In Error to the Circuit Court of the United States for the Western District of Missouri.</p> <p>Arcadia L. Marlow, the defendant in error, brought a suit against the National Union, the plaintiff in error, which is a corporation of the state of Ohio, to recover the amount alleged to be due to her on the following benefit certificate:</p> <p>“S5.000.00. No. 41,246.</p> <p>“National Union Benefit Certificate.</p> <p>"This is to certify that Geo. W. Marlow is a beneficiary member of Economy Council, No. 215, National Union, located at St. Joseph, Missouri, according 1o evidence furnished by said council, and makes fifth-rate payments to the benefit fund of the order. This certificate is granted upon the express condition that all statements and representations made by said member in his application for membership in said council, and all statements made to the medical examiner by him, are true, and upon the further condition that this friend complies in the future with the laws, rules, and regulations controlling said benefit fund, or that shall hereafter he enacted by the senate to govern said council and fund. The application of the member, a copy of which is hereto attached, is hereby made a part, of this certificate. If these conditions are faithfully complied with, the National Union hereby promises and agrees to pay out of its benefit fund to Arcadia L. Marlow, ‘wife,’ five thousand dollars, pursuant to the provisions of the laws of the order governing said fund, upon sufficient proof of the death of the said friend, and upon the surrender of this certificate: provided, always, that the said friend shall be in good standing in this order at the time of his death. In testimony whereof the senate of the National Union has hereunto affixed its seal, and caused this certificate to be signed by the president of the senate, and attested and recorded by the secretary of the senate, this eighth day of February, A. D. 1892.”</p> <p>George W. Marlow, the person named in said certificate, was the plaintiff’s husband. At the time of his death, as -well as when said certificate was executed and delivered, he was a resident of the city of St. Joseph, Mo. The case was tried in the circuit court upon an agreed statement of facts. It was admitted in the agreed statement thar the foregoing benefit certificate was duly executed and delivered to the deceased, George W. Marlow, at St. Joseph, Mo., some time during the month of February, 1892, while he was a member of Economy Council, No. 215; that he subsequently paid all dues and assessments that were exacted of him as a member; and that he complied with all the rules and regulations of the National Union that were obligatory upon him until November 10, 1893, when he committed suicide by shooting himself with a pistol. Attached to the agreed statement, and forming a liart thereof, was a pamphlet containing the constitution and laws of the National Union, as well as a copy of the constitution of subordinate councils of the National Union. Such provisions found therein as are deemed most material will be referred to hereafter. The defendant company contended that the suicide of the. deceased constituted a full and complete defense to the suit. On the other hand, the plaintiff below insisted that the defendant company was engaged in the business of life insurance when the benefit certificate was issued, that the suit was founded upon a contract of life insurance, and that suicide could not be pleaded asa defense to the action, by virtue of the provisions contained in section-5855, Rev. St. Mo. 1889, which reads as follows: •‘In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.” The circuit court sustained the latter view, and rendered a judgment in favor of the plaintiff below. The case comes to this court on a writ of error which was sued out by the defendant company.</p>

<p>1. INTERSTATE COMMERCE — COST OP CARRIAGE.</p> <p>Tlie fact that the cost of carriage of all coal upon an entire railroad system, from all points of shipim nt to all destinations, is a certain per cent, of the gross receipts from all coal, is no reason for concluding that upon a particular line or part of the system the cost of carriage hears the same ratio to the coal receipts of that particular line or part.</p> <p>2. Same — Orders Made by the Commission.</p> <p>An order made by the commission, which rests upon an erroneous principle and is unreliable, cannot be sustained, and is not to be judicially enforced.</p> <p>3. Same — Power op the Commission to Eix Rates.</p> <p>The commission is not clothed with the power to fix rates.</p>

This was a bill in equity by French, Shriner & Urner against the Alter & Julian Company and others for alleged infringement of a trade-mark. Complainants moved for a preliminary injunction.

<p>In Equity.</p> <p>Suit for injunction by the American Graphophone Company against Edward H. A met.</p>

<p>Patents — Intention—Adaptation of Existing Devices — Hoistway Covers.</p> <p>Tlie Fraser patent, No. 278,528, ior means for closing and controlling hoistway covers, consisting of a combination of a number of doors, a cord or chain,- a number of catches, and a connection between the catch of one door and an adjacent door, so that the closing of the latter will release the former, and admit of its closing, held void, as disclosing only mechanical skill in modifying and adapting pre-existing devices; and, even If patentable, held not infringed.</p>

This is'an appeal from an order for injunction pendente lite made by the circuit court, Northern district of New York, in a suit brought for alleged infringement of United States patent No. 254,106, granted February 28, 1S82, to Clinton Browning, and now owned by complainant.

<p>S. Courts — Comity m Patent Cases.</p> <p>Tlie fact that a decree sustaining a patent, after an exhaustive examination, has been set aside as collusive, because at the time of the hearing there was no controversy existing between the parties, does not destroy or much weaken the force of the reasoning by which the decision was reached, but may make further examination proper, in a suit on the patent in another circuit. .</p> <p>£. Patents — Investios—New Use.</p> <p>The waxing of a particular kind of porous paper, to prepare it to be formed into blanks for stencils, by expressing the wax on the lines of the types, is a new use, so remote from tliat of waxing the same kind of paper for waterproof or airtight purposes, that its discovery might constitute patentable invention.</p> <p>3. Sasie — Stencil Sheets.</p> <p>The Broderick patent, No. 377,706, for a “prepared sheet for stencils,” which covers a paper having uniform direct pores through it, of a proper density for the passage of ink (preferably Yoshino paper), waxed to such density that, when pressed upon types, the latter will clear the spaces impressed for the passage of ink to the surface to be printed upon, held valid,'as showing patentable invention. A. B. Dick Co. v. Fuerth, 57 Fed. 834, followed.</p>

<p>Monopolies — Act July 2, 1890 — Towage Services.</p> <p>One wlio requests and accepts the services of a tug for towage purposes cannot escape paying the reasonable value of the services rendered, on the ground that the tug owners are members of an association which is illegal under the act of July 2,1890, relating to trusts and monopolies.</p>

This is a petition by the interstate commerce commission to compel the defendant railway company to obey its order in the matter of the application of ¡átone & Parten, asking that the company be required to desist from certain alleged violations of the interstate commerce act found by the commission to have been practiced by it. Being formally notified that the order would not be obeyed, the commissioners filed this petition.

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

This was a libel in rem by Will Price against the steamboat T. P. Leathers, the Natchez & New Orleans Packet & Navigation Company, and others, claimants, to recover a balance of wages, and also damages for injuries. The district court rendered a decree for li-belant for $109, and the claimants appealed.

This was a libel in rem by oue Lambie, master of (he ship Windsor Park, against the tugs Rescue and John C. Bradley, to recover damages for injuries to the ship from alleged negligent towage.

This was a suit in equity by the irvine Company, a corporation created under the laws oi West Virginia, against John S. Bond and others, citizens of California, to establish and quiet title to certain lands and water rights. The cause was heard upon a plea to the jurisdiction.

<p>1. Gift for Charitable Use — Reverter—Nonuser.</p> <p>A grant of land by the proprietaries of Pennsylvania, “in consideration of the yearly guitrent (one red rose) hereinafter reserved, and of the sum of five shillings,” to persons named, and “their heirs and assigns, forever, in trust, nevertheless,” for a certain charitable use, “and for no other use, intent, or purpose whatsoever,” is not defeated by nonuser, in the absence of any express in'dvision for a forfeiture Or reverter.</p> <p>2. Same — What is Charitable Use.</p> <p>A grant of lands by the proprietaries of Pennsylvania, in trust “for the erecting thereon a courthouse for the public use and service” of a county, was a gift for a charitable use.</p>

<p>These were three separate petitions, filed, respectively, by William J. Schneider, William Eberhard, and H. Joseph Wolters, in the main cause of James Donald against J. M. Scott and others, charging certain state constables with contempt for violating the injunction heretofore issued by this court in the main cause, by seizing and confiscating certain spirituous liquors, imported by; the petitioners; respectively, from outside the state.</p>

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

This was a suit in equity by Joseph H. Reale and others against Frederick tópate and others for alleged infringement of letters patent No. 863,(535, granted to Timothy B. Sperry, May 24, 1887, for improvements in stair pads. Final hearing. This action is based upon letters patent No. 388,695, granted to Timothy 8. Sperry, May 24, 1887, for improvements in stair pads. The pad is composed of three parts.

<p>1. Shipping — Limitation op Liability- -Supplies Ordered by Managing Part Owner.</p> <p>Act Juno 26, 1884, relieving owners of responsibility beyond the proportion which their respective interests bear to the debt or liability involved, applies in favor of part owners who have committed the management of the vessel to another part owner, in respect to debts for coal furnished at the instance of the latter and without their previous knowledge.</p> <p>2. Same — Interpretation oe Statute.</p> <p>Act June 26, 1884, is not to bo controlled in its interpretation by the act of 1851 relating to kindred subjects. The language of the two statutes and the state of facts to which they apply are different, and each is to be construed according to its terms.</p> <p>3. Baste — Sale by- Part Owner — Following Proceeds.</p> <p>Where a managing part owner sells to a third party his interest in the vessel shortly before a libel is filed against the owners for a supply debt, the creditor cannot follow the proceeds of the sale into the hand's of such part owner’s other creditors.</p>

This was a libel in personam by Johann Hinrich Hustede and others against the Atlantic Refining Company to recover damages for the loss of their bark Felix by fire while lying at defendant’s wharf. The district court dismissed the libel on the merits (68 Fed. 669), and libelants appealed.

<p>1. Admiralty — Limitation or Liability — Jurisdiction.</p> <p>It is suflicient to give jurisdiction to the district court, in a proceeding for limitation of liability under Rev. St. g§ 4280-4285, that some of several joint owners of the vessel, whose shares were uninsured and so could not be sold at an underwriter’s sale, have transferred their title in what remains of the vessel to the trustee; and, having such jurisdiction, the court lias the equitable power to compel the petitioners to'bring in the money obtained for the insured interests and that for freight and passenger fares, in order to enable it to carry out the provisions of the statute.</p> <p>2. 8ame — Delay.</p> <p>The owners of a vessel do not waive their right to institute proceedings for a limitation of their liability for the loss of properly shipped on board her, by waiting to do so until after proceedings have been commenced in a state court to recover damages.</p> <p>8. Same — Seaworthiness.</p> <p>Upon an examination of the evidence as to the condition of a vessel, in respect to strength of timbers, repair of old injuries, existence of latent defects, etc., and as to the cause of her being totally lost in attempting to cross the bar at the entrance to Coos Bay, Gal., held, that the vessel was in a condition, when she sailed, to encounter the ordinary perils of her voyage, which was suflicient to make her seaworthy, and her loss was due to the mistake or carelessness of the captain, without the fault, knowledge, or privity of the owners, in attempting to cross the bar on an ebb tide.</p> <p>4. Same — Pilot's License — Presumption.</p> <p>When, in a proceeding for the limitation of the liability of 1he owner of a seagoing, coastwise vessel, involving the question of the competency of the captain, it is shown that such captain is a licensed shipmaster, and no evidence whatever is given as to whether or not he is also licensed as a pilot, under Rev. St. § 4401, or whether or not a licensed pilot was on board the vessel, the court will be justified in presuming that the captain was a licensed pilot, and that the law in that respect was complied with.</p> <p>5. Same — Sufficient Chew.</p> <p>A statement, in the certificate of inspection of a steam vessel, that her complement shall be a master, two mates, two engineers, and twelve crew, does not necessarily mean that the “twelve crew” shall be sailors only, excluding fireman; and if there is no evidence that the vessel had not sufficient officers and crew at all times to manage the vessel, she is not to be deemed u’nsoaworthy in her crew, because she had fewer than twelve sailors.</p> <p>6. Same — Deviation- -IIa rter Act.</p> <p>The steamer- E., on- a voyage from San Francisco, found the steamer B. stranded and in a dangerous position. She pulled the B. off the rocks, and towed her to the nearest harbor, where she pumped out. This harbor, though safe at the time, was exposed to the winds, and liable to become dangerous to a vessel of the size of the B. and in her condition; but two tugs were present in the harbor, which were fully able to assist the B. and tow her to San Francisco. The B., however, after helping the B. to pump out, towed her back to San Francisco. Held, that.the E.’s deviation,' in towing the B. to the harbor where she pumped out, was for the purpose of saving life and property at sea, and justifiable under section 3 of the Harter act (27 Stat. 445), but that the further deviation, in towing her back to San Francisco, after she had been made safe by the presence of the tugs, was unjustifiable.</p> <p>7.’ Same — Owner’s Knowledge.</p> <p>Under Rev. St. §§ 4283-4285, and the acts amendatory thereof and supplemental thereto, including the Harter act of February 13, 1893 (27 Stat. 445), one of several joint owners of a vessel, who has knowledge of or is privy to an unjustifiable deviation of such vessel from her voyage, is liable for any loss or damage to property shipped on board, which occurs subsequently, during the same voyage, in the proportion which his share of the vessel, at the time of the affreightment, bears to the whole loss or damage; but such of the joint owners as had no knowledge of or privity to such deviation are entitled to avail themselves of the provisions of the statutes for limitation of their liability to the value of the vessel at the end of the voyage-.</p> <p>®. Same — Salvage.</p> <p>The words “freight pending,” in the statutes relating to the limitation of the liability of shipowners, do not include salvage earned during the voyage.</p>

This was a libel in rem by the Union Transit Company against the steamer Bulgaria, to recover damages sustained by the steamer W. H. Stevens in collision with the Bulgaria.

This was a libel in rem bj Abram W. Hendry and others, owners, master, and crew of the schooner G-olden Rule, against the steamer Chattahoochee (the Ocean Steamship Company, claimant), to recover damages for loss of the schooner, which was sunk in collision with the steamer.

<p>1. Collision in Channel — Steamer with Tow — Excessive Speed.</p> <p>A steamer of over 2,000 registered tonnage, descending the narrow channel of the Providence river at between 10 and 11 knots an hour, and colliding with a barge in tow of a tug, held in fault (1) for moving t«o fast in the narrow channel, with vessels about, and a tow of about 650 feet approaching; and (2) for violating Rev. St. § 4233, rule 21, which required her, under such circumstances, to at least “slacken her speed,” which she did not do until about a minute before collision. The Josephine B., 7 C. C. A. 495, 58 Fed. S13, approved.</p> <p>2. COLLISION — EviBENOE.</p> <p>Evidence of witnesses on board a tug and tow that they actually shortened the tow line from COO to 300 feet before entering a river must prevail over the mere estimates of lookers-on as to the length of the line.</p> <p>3. Same — Towing in Channel — Length of Hawser — Usages of Navigation.</p> <p>It is beyond the province of the courts to condemn a usage of navigation, such as towing on hawsers of about 50 fathoms in narrow channels, so notorious and long-continued that it must be presumed to be known to congress and to the supervising inspectors, and yet has not been condemned by either. The Josephine B., 7 C. C. A. 495, 58 Fed. 813, approved.</p> <p>4. Same.</p> <p>When vessels approach each other in channels, especially narrow ones, each pilot is bound, with peculiar exceptions, to keep well over to the side on his starboard hand: and this rule is not affected by the fact that the bends in the channel may at times bring one of them on the starboard hand of the oilier.</p>

<p>FedeRau Courts — Jurisdiction — Suit against Receiver op a National Bank.</p> <p>A suit, brought against the receiver of an insolvent national bank, as such, to establish a claim of the plaintiff as a depositor in the bank, is a case arising under the laws of the United States, of which the United States circuit court has jurisdiction, irrespective of the citizenship of the parties.</p>

<p>Practice ox Aiteau — Parties—-Supersedeas.</p> <p>It. and S., alleging themselves to compose the firm of W. & Co., applied to the circuit court of appeals for an order staying the execution of six several decrees rendered in a cause in the circuit, court, on the ground that they had taken an appeal and given bond. The record did not disclose that they were parties or privies to the suit, although it showed that certain parties had been allowed an appeal from a part of the decrees. and that later, and after the term, an appeal bond naming W. & Co. as a principal had been approved, reciting that W. & Co., among others, “have prosecuted an appeal to reverse the decree.” livid, that as the bond did not show the names of the individuals composing the firm, nor that W. & Co. was a party or privy, nor that it was approved during the term, nor any particular decree appealed from, nor any citation, the applicants had not taken any appeal, nor given any such bond as to operate as a supersedeas, and that the order applied for should be denied.</p>

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

<p>Services of Process — Corporations—Agents—Indtana Statute.</p> <p>A New York corporation, engaged in the collection and distribution oí news, and which has no officers or place of business in Indiana, cannot be subjected to the jurisdiction of a court within the latter state by service of process either upon a person who occasionally forwards news to it, at so much a word, having no other connection with the corporation, or upon the general manager in Indiana of a telegraph company, from which the corporation rents wires for the transmission of news; neither of such persons being a general or special agent of the corporation, within the Indiana statute (1 Burns’ Rev. St. 1894, § 318; Rev. St. 1881, § 316).</p>

<p>Equity — Jurisdiction—Srecific Performance.</p> <p>Tbe H. R. R. Oo. entered into a contract with the E. Oo. by which the street railroad of the former was leased to the latter for 18 months at a nominal rent, and it was agreed that the E. Co. should have the right and option at any time during the lease to purchase the railroad for $350,000, for which option the E. Co. was to pay $35,000, — $20,000 at once, and $15,-000 in six weeks; that the E. Oo. should have immediate possession, and should spend certain sums in betterments; that the railroad company should execute good and sufficient deeds of the property, and deposit them in escrow, to be delivered on payment of the purchase money; that if the option were exercised the $35,000, and any sums advanced for the railroad company, should be credited on the price, but if it were not exercised during- the term of the lease it should be wholly terminated, the $35,000 should be forfeited, and the deeds should be returned to the railroad company. The E. Co. afterwards filed a bill against the railroad company, alleging- that it had taken possession of the road, and spent $27,000 in betterments; that various misrepresentations had been made by the railroad company as to its title, etc.; that it had not deposited any deed of the property until near the expiration of the lease; and that it was insolvent, — and thereupon prayed that the contract might be rescinded, and the E. Co. declared entitled to a lien on the property for the better-ments; that a receiver might be appointed, and the property sold, and the.assets of the railroad company marshaled among its creditors. There was no allegation that the B. Oo. liad been deceived by the alleged misrepresentations, and an amended bill subsequently admitted that the E. Co. had been acquainted with all the facts, and eliminated the charge of fraud. Neither was .there any allegation that the E. Co. had availed itself of the option, or attempted to do so. Held, that the E. Co. could not put itself in the position of a vendee seeking specific performance of the contract, as one of sale; that it had no lien on the property, cither as a vendee, or as a lessee in possession, and no claim to equitable relief; and that the bill must be dismissed.</p>

<p>This was a suit by Gordon R. Badgerow and others against the Manhattan Trust Company, Amos T. French, individually and as executor of Francis O. French, deceased, and the Wyoming Improvement Company, to establish a. lien upon certain bonds. For a full statement of the facts involved, see the report of the decision overruling a demurrer to the bill in 64 Fed. 931.</p>

<p>Evidence — Production of Documents — Internal Revenue Collector.</p> <p>An internal revenue collector is not justified in refusing to produce, in obedience to a subpoena duces tecum issued by a state court, the application or return made by a person who desires to pay the tax imposed by the statutes of the United States upon persons engaging in the retail liquor business either by the nature of such documents or by alleged instructions from the commissioner of internal revenue not to produce such papers for use in evidence in the state courts.</p>

<p>This was a suit in equity by Louis Sacks against George Brooks and others for alleged infringement of a patent for a boot and shoe last.</p>

<p>1. Trade-'Mark — Infringement—Equitable Relief — Complainant's Misrepresentations.</p> <p>The firm of J. J. Clark & Co. began manufacturing thread m Scotland early in this century, and continued to do so under that name, and after-wards as Clark & Co., until 1880, when it became a Scotch corporation under the latter name. The firm established a selling- agency in this country about 1826, and continued the same until 1866. George A. Clark, a member of the Scotch firm, was their selling agent here from 1854 to 1862, when two of his brothers became his partners, under the firm name of George A. Clark & Bros. This firm continued to be selling agents until 1866, when its members, together with the members of the Scotch firm, incorporated the Clark Thread Company, under the laws of New Jersey. To this company the Scotch firm sold all their stock, good will, and trademarks pertaining to their business in this country, the firm of George A. Clark & Bros, becoming its selling agent. The corporation built large factories in this country, and has since done a large business here. It uses on its labels and boxes, among other things, the following: “Manufactory established 1812. George A. Clark, Sole Agent.” “It has been awarded prize medals at all the great international exhibitions from 1855 to 1878.” Held, that by these expressions the corporation was legitimately representing its commercial origin and the beginning of its mercantile history; that in the words “George A. Clark, Sole Agent” (who died in 1873, and never was its sole agent), it was properly using the trade-mark assigned to it by the Scotch firm to indicate that it was the successor of that firm, whose representative in this country was George A. Clark; and that consequently there was no such fraud or misrepresentation as would prevent it from obtaining equitable relief against a fraudulent infringement. 67 Eed. 896, affirmed.</p> <p>2. Same.</p> <p>During the four years preceding the commencement of the suit, the Clark Thread Company sent to its agents 31 dozen boxes, of a dozen spools each, bearing on the box covers the words, “J. & J. Clark & Co., Paisley,” being part of one of the trade-marks purchased from the Scotch firm. Defendant contended that this indicated that the thread was made in Paisley, and was a fraudulent misrepresentation. Held, that the amount of these sales was so insignificant as to be of no importance in determining the corporation’s right to maintain the suit. 67 Eed. 896, affirmed.</p> <p>8. Same — Infringement—Imitation of Labels.</p> <p>The Scotch firm and their American agents, and the New Jersey corporation which succeeded them, had always characterized their thread as “Clark’s” thread, or “Clark’s” cotton, in different forms of expression. Their spool cotton bore, on the ends of the spools, circular labels, haying on the upper half circle, in heavy gothic type, the word “Clark’s,” a.nd on the lower half the words “Spool Cotton.” Horizontally across the middle were the letters "O. X. T.,” standing for “Our New Thread.” The letters were in white oil a dark background. Defendant’s labels had the words “Clark’s” and “Spool Cotton” In the same kinds of type and the same positions, and across the middle, also in white on a dark background, were the letters “N-E-W.” separated by hyphens. The evidence and exhibits, including the advertising literature sent out by defendants, showed that the purpose of the similarity was to deceive the public into the belief that the article was manufactured by the old and well-known manufacturer, and that “N-E-W” Indicated a new kind of the old Clark’s spool cotton. The maker of defendant’s thread was incorporated as the “William Clark Company.” Held that, even if .this corporate name were properly adopted, defendant should be enjoined from using the words “Clark’s,” or “Clark’s Spool Cotton,” or “Clark’s Thread,” and also the letters “N-E-W.” 67 Fed. 808, modified and affirmed.</p> <p>4. Same — Right of Third Party to Trade-Mask.</p> <p>Held, further, that the fact that another corporation, which had become the successors in tills country of another Scotch firm of Clarks, who were competitors of J. & ,T. Clark & Co., also had the right to use “Clark” in connection with thread which had always been distinguished from complainant’s thread by difference in color of labels and the form of words, ^dld not prevent complainant firm from enjoining defendant’s fraudulent use of the words. 67 Fed. 806, affirmed.'</p> <p>5. Same — Imitative Cobporate Name — Estoppel.</p> <p>Two persons named William Clark, and known, respectively, as William Clark, No. 1, and William Clark, No. 2, were long engaged in the thread business, in connection with the Scotch firm of J. & J. Clark. William Clark, No. 1, was one of the original promoters of the Clark Thread Company. which in 1866 succeeded to the business of the Scotch firm in this country, with the right to use the trade-marks “Clark’s Thread,” “Clark’s Spool Cotton,” etc., and was its treasurer and managing director. William Clark, No. 2, was the superintendent of its factory until 1891, when he resigned, and, with his sons, who had also boon in "the employ of the Clark Thread Company, organized the William Clark Thread Company. William Clark, No. 1, was consulted as to the choice of a name for the-new corporation, and either assented to or did not object to the name chosen. Held, that his action had enough of an official and binding character to estop his company from objecting to the use by the new company of its corporate name in connection with the thread made hy it. 67 Fed. 896, affirmed. 1</p>

On Exceptions to Answers. In 1892, defendants Moore and Crooks began, in the District court of Boone county, Iowa, an action at law against plaintiffs herein, for indebtedness alleged to exist for commissions on sale of real estate belonging to above-named plaintiffs.

These are petitions for habeas corpus. The petitioners, R. W. Irvine and J. C. Wagner, were committed to the county jail of Warren county by order of the circuit court of tlie United States for the Southern district of Ohio, Western division, for contempt in refusing to answer certain questions propounded to them when called and sworn as witnesses for the United States in the trial of an indictment against 12 defendants for conspiracy to commit an offense against the United…

This was an action by Hattie Frost, as administratrix of James Frost, deceased, against the Oregon Short Line & Utah Northern Railway Company, to recover damages for the death of the intestate. The plaintiff recovered judgment in the circuit court. A motion for a new trial was denied. 69 Fed. 936. Defendant brought error.

These were cross libels in rem to recover damages resulting from a collision between the steamers Grenadier and August Korff.

<p>1. Removal op Causes — Effect op Application.</p> <p>When a petition and bond for the removal of a. cause from a state to a federal court are presented, before the expiration of the time to answer, to a judge of the state court, who is then holding a term of such court, the cause is thereby immediately removed, though no formal order of removal is made then, nor until after the time to answer has expired.</p> <p>2. Sams — Berrion of Court.</p> <p>A positive averment, on oath, by the counsel for the removing party, that the judge to whom the papers were presented was then holding a special term oí the court, under a rule providing that the special term is always open when the judge is present, is sufl'ieient to show that the court was in session, though the judge, on presentation of the papers, makes an order to show cause which is not in form a court order.</p>

This was an action of ejectment for 1,000 acres of land lying in the counties of Delaware and Philadelphia, in the state of Pennsylvania, and more particularly described in the writ by metes and bounds.

Action brought under provisions of the interstate commerce act, to recover damages for alleged overcharges. Submitted on question of jurisdiction.

<p>Specific. Pekfokmaxcic — ComfijEtekesp of Coxtkact.</p> <p>. Tlie C. and the U. railway companies entered into a written contract, whereby, in order to avoid unnecessary expense o± construction, and to facilitate connections, each agreed to lease to the other certain portions of Its line or to make a trackage arrangement for the use of such portions of the lines. It was provided that neither party should be obliged to take a lease or trackage contract, but either should be entitled to do so on demand; that such leases or contracts should be for 999 years, terminable after 10 years on notice; that the rent should be a proportion of the interest, at 6 per cent., on the value of the road used, based on wheel-age, and that the leases should provide for giving the lessees equal rights of use in the road. The C. Co. afterwards filed a bill against the U. Co. and receivers of its property, who had been appointed in another suit, and asked specific performance of this contract in respect to one of the portions oí road mentioned therein. Held, that upon demurrer to the bill it could not be said that the contract was so incomplete as to be incapable of enforcement by a decree for specific performance.</p>

<p>1. MARRIED WOMEN — MORTGAGES—SOUTH CAROLINA STATUTE.</p> <p>One H., a married woman, residing in South Carolina, owned a small farm, which was conducted by her husband, the supplies being- furnished by one B., and charged to the husband. The balance of account due to B. was secured by a mortgage on the farm, which was renewed each year, H. executing such mortgages. B. also held another mortgage on the farm, which had been given by H. for a debt of her own. In order to take up these mortgages, H.’s husband applied to one D. for a loan of larger amount, on the security of tlie farm, stating that it belonged to bis wife. When informed of this, H. objected to it, but when D. agreed to make the loan, and the iiapers were ready, she finally consented to sign them, though reluctantly, and after objecting to the transaction, but with a full ■understanding of its nature. She also made affidavit that the proceeds of the loan were to be used for her own debts, and those of no other person. Part of the money was retained by D. as commission, part was paid to B. in satisfaction of his mortgages, and the rest was paid to H.'s husband. Held that, as one of the prior mortgages was certainly the wife's, and she had power to recognize and pay the other, the mortgage thus given was not invalid, under the law of South Carolina, permitting a married woman to mortgage her property for the benefit of her separate estate, but not for the benefit of her husband.</p> <p>2. Usury — Commission for Placing- Loan.</p> <p>D. was the agent of the C. Banking Co. I-Ie. received the application for a loan to be placed, and, through the .C. Banking Co., did place it with the S. Co., which made the loan at the legal rate of interest, and had nothing to do with D.’s commissions. Held, that the fact that D. and the C. Banking Co. charged and received a commission in addition to the legal interest on the loan did not make the loan usurious.</p>

This was a suit in equity by Ellen B. Baker against the village of Norwood and others to enjoin the making and collection of a special assessment upon real estate.

This was a suit in equity by William C. Niblack, receiver of the Columbia National Bank of Chicago, against S. S. Cosier, assignee of Dwiggins, Btarbuck & Co., a partnership doing business under the firm name of the Valley Bank, to compel the allowance of a certain claim.

<p>In Error to the Circuit Court of the United States for the'Eastern Division of the Northern District of Mississippi.</p>