Volume 75 — Federal Reporter

<p>This • 'as an application by Langerman & Petty, importers, for a review of a decision of the board of general appraisers, sustaining the collector’s classification for duty of certain merchandise imported under the act of October 1, 1890.</p>

An application and petition were filed by W. R. Grace & Co. for a review, under section 15 of the customs administrative act of June 10, 1890, of the decision of the board of United States general appraisers in relation to the classification and duty on certain bottle glassware imported by the petitioner.

In Equity. Two suits in equity for alleged infringement of certain copyrights obtained by complainant upon several books written and published by him on the subject of Physiognomy. Injunction against further infringement and damages for past infringment were asked for.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.</p> <p>This was a suit in equity by Royal E. Robbins and Thomas M. Avery against the Dueber Watch-Case Manufacturing Company, John C. Dueber, its president, and William C. Moore, its secretary and treasurer, for alleged infringement of a patent relating to stem-winding watches. The circuit court entered an interlocutory decree sustaining the patent, finding infringement, and referring the case to a master for an accounting. 71 Fed. 189. Defendants have appealed.</p> <p>This is an appeal from a decree enjoining- the- infringement of a patent, ft. E. Robbins and Thomas M. Avery, as trustees, held the title by assignment to a patent (No. 287,001) issued on October 23, 1883, upon an application made February 1, 1883, to Caleb Oolby, for a new and useful improvement in stem-winding watches. It was averred in the bill, and appeared in the evidence, that the Dueber Watch-Gase Manufacturing Company had taken a license from Robbins and Avery of tbe following patents for improvements in watch cases: “No. 192,425, issued .Tune 26, 1877, to Fisher & Lucas; No. 220,916, issued October 28, 1879, to E. O. Fitch; No. 287,001. issued October 23, 1883, to O. K. Oolby; and No.' 312,856, issued February 24, 1885, to George Hunter.” On the 13th of February, 1891, the license was terminated because of the failure of the defendant company to make returns and payments in accordance with its provisions. The defenses set up in the answer were want of novelty, anticipation, and noninfringement. The Oolby invention relates to the class of watches known as “stem-winding watches,” in which a key or stem arbor passes through the hollow stem of the case into engagement with the winding arbor of the watch movement, so that by the rotation of the key the watch may be wound., By its longitudinal movement within the stem, the key may be retracted from tbe winding arbor of the movement sufficiently to allow the movement to he easily lifted out of the case, or inserted therein. The gist of the device is in providing a spring latch within the hollow stem, by which the key and stem may be latched to each other in such a manner that the key will be held in its inner position, hut will yield upon effort, and allow the key to be retracted a certain distance, when the spring will again operate as a -latch to secure the key in the second or outer position, from which it can, by another effort, be pushed back to its' first position. The patent describes the essential feature of the device “as an elastic or spring-latch attachment of the stem with the key, whereby the latter is free to rotate, but is prevented from being moved longitudinally except by a special effort.” The specifications and drawings describe the various forms of the device. In some of them the spring latch is attached to the stem, and engages in a circumferential groove upon the key, and in others the spring is attached to the key, and engages in a circumferential groove on the stem. In others a shoulder is substituted for the groove. Figs. 1 and 2, 6 and 7, 10 and. 11 and 12, in the Oolby patent, give a sufficient understanding of the operation of the device, and its variations. The figures are as follows: ; <</p> <p> </p> <p> </p> <p> </p> <p>The inventor describes the purpose of his invention as follows: “My invention relates to a stem-winding pendant for watches, being especially adapted to that class of watches wherein the back of the case is permanently closed, and the movement, or the ring in which it is mounted, is hinged to the cup-like ease. My pendant may, however, be used in any watch ease. In watches having stem-winding pendants, the key in the pendant passes into the movement, and engages a socket or square in or on the winding arbor; and before the movement can be lifted out, or turned on its hinge, this key must be disengaged from the movement by withdrawing it far enough to clear the latter. My invention provides a ready means for doing this. * * * Fig. 1 is a vertical midsection of a watch pendant provided with my improvements; the plane of the section being taken edgewise of the watch case, and the key shown as protruding into the hollow of the winding arbor. Fig. 2 is a similar section taken at right angles to Fig. 1, showing the key withdrawn so as to permit tfie movement to be lifted out. A is the watch case. B is the tubular stem, attached to the case in the usual way. O is the key, and D is the crown attached thereto to form a head or thumb piece, by which the key is turned in winding. These.parts, per se, are common in stem winding and setting watches, a and a'are two internal circular grooves at different depths in the hollow of the stem. They form latch bearings for the rotating key. To the crown, D, or the key, O, indifferently are secured latch spring or springs, b, b, preferably four in number, provided with projecting angles or parts, b'. These angles spring into and engage one or the other of the grooves, a, a', and the springs are inserted in the hollow of the stem, as shown in Figs. 1 and 2. When the key is pressed clear down into the hollow of the stem, the elasticity of the springs causes the projections, b', to engage in the lower grooves, a. The key will now be in engagement with the winding arbor, O, in the movement, F, if there be a movement in the case, and by rotating the key in the usual way the watch will be wound up. The bearing which the key finds in the neck of the stem, and that which the crown finds on the exterior surface of the stem, prevent any lateral play of the key; and the engagement of the latch spring, b, in groove, a, prevents any longitudinal movement of the key, unless some force is applied to move it. In other words, the key rotates readily, but only yields to extra pressure purposely exerted when an attempt is made to withdraw it longitudinally. If, however, it he desired to disengage the key from the movement for any purpose whatever, the operator may grasp the crown, and pull on it with force sufficient to disengage the springs from groove, a, when the koy may he withdrawn far enough for the projection, b', to engage groove, a'. The parts will now assume the position shown in Fig. 2. The key will be withdrawn far enough to be free from the movement, and it may be rotated freely in this position in the bearing found in the groove, a'. * * * In lieu of employing the two grooves, a, a', in the stem, and one series of pro jections, b', on the springs, I may employ but one groove, a, as in Fig. 6, and provide the springs with two series of projections, b'. In Fig. 7 I have shown a further modification, in which the springs are mounted in the hoilow of the stem, and the two series of projections, b', thereon, protrude through slots in the wall of the stem. A groove in the margin of the opening in the hollow crown, D, takes over and engages the lower one of these projections, as clearly shovm in said figure. * * * In Fig. 10 I have shown the grooves, a and a', formed in tho shank of the key itself, and the latch springs mounted in the stem; and in Fig. 11 I have shown the same arrangement, except that the key is provided with projecting ribs, b', and the springs have recesses, a, to engage said ribs. In Fig. 12 I have shown the grooves, a, a', arranged exteriorly of the stem, and the springs arranged to engage them in that position. - - * 1 have shown all these forms and modifications in order to illustrate the many ways in which my invention may be carried out. The essential features of all is the clastic or spring-latch attachment of the stem, B, with the key, C, whereby the latter is free to rotate, but is prevented from being moved longitudinally except by special effort. The annular groove or rih engaged by the spring latch I denominate an ‘annular latch device,’ and it is immaterial whether the projecting part is on the spring, or the other part, and it is also immaterial whether the spring be connected with the key or the tubular stem. The operation is the same in either case. The upper groove, a', in the stem, is not absolutely necessary, as it is not necessary that the key shall be rotative when drawn back, as in Fig. 2; but some form of stop should be provided, to prevent the key from being entirely withdrawn. This withdrawal of the key is not desirable, although it will do no particular harm. * * * I have not shown how my Jcey, 0, may be employed as a push pin for releasing the lid of the ease from its spring catch, as I make no claim to this. I will say, however, tha,t the tip of the key passes through the case spring, and a shoulder on its shank rests on the latter. The retaining groove, a, is made wide enough to allow of the necessary slight movement longitudinally of the key. This is a common mode of constructing- such push-pin devices. It must be borne in mind that my invention is designed to be applied only to the pendants of stem- '• lading watches, wherein the key is mounted rotatively in the stem, and projects normally into the movement to engage the winding arbor. I am aware that it has been proposed to provide ‘key-winding watches,’ so-called, with a chambered stem, and to insert the key into this stem simply as a retaining pocket, wherein it is held by a spring to prevent it from dropping out. In this construction, however, the key does not project into the hollow of the ease, nor is it desirable or necessary that the chamber in the stem shall connect with the hollow cavity of the case, except incidentally to provide room. Keys mounted in pockets in the steins in this manner do not, or need not, rotate. In the stem-winding pendant herein shown the key must project into the case, and must rotate; and it is not intended that it shall ever bo withdrawn from the hollow of the stem, or be detached from the ease.” The only claim of the patent upon which the charge of infringement is based is the first claim, as follows: “The combination, in a stem-winding watch, of the tubular stem; a key mounted to rotate in said stem, and to project into the movement and engage the winding arbor; a spring attached to one of these parts, and arranged to engage the other part to form a latch device, as shown; and the said winding arbor,- — all arranged substantially as and for the purposes set forth.” The alleged infringement is made under the patent issued to W. W. Bradley, and assigned to John O. Dueber (No. 411,420), and dated September 24, 1889. The patentee declares that his invention consists in providing a watch-case pendant with a peculiar combination of devices that enables the push pin or stem to perform the threefold purpose of winding the watch, setting the hands of the same, and operating the ease spring, the details of said devices being hereinafter more fully described, and then pointed out in the claims.. The drawings of the patent are as follows:</p> <p> </p> <p>We quote from the explanation of them given by the patentee: “Mg. 1 is an enlarged sectional elevation, showing the various members of my watch-ease pendant separated from each other. Fig. 2 is an axial section, showing said parts lilted within the pendant, and the push pin held in its normal position by the action of the ease spring. Fig. 3 is an enlarged axial section of the spring clutch, and a modified form of the keeper. A represents a portion of the ‘center’ of a hunting-case watch, and B is a pendant attached thereto; said pendant having at its inner end a smooth bore, G, opening into a screw-threaded chamber, I), of somewhat larger diameter than said bore, thus forming an annular bearing, D, in said pendant. The opposite or outer end of said chamber is open, and this end of the pendant is reduced in diameter so as to form a neck, E, and an annular shoulder, e; said neck having the hollow crown or knob, F, tilted around it, which knob is screw-tlireaded internally, as at f, to admit the screw, g, at the outer end of the shank, (3. of the push pin or stem, h is a rounded or inclined shoulder formed at the junction of said shank with the spindle, 11, of push pin, I; the latter having a shoulder, i, at its upper end, and a similar shoulder, i', at its lower end, which latter shoulder, i', is formed where said pin or stem, 1, joins the square arbor. K. This arbor traverses a circular eye, 1, in the free end of the case spring, L, and is arranged to operate either the winding or setting mechanism in the usual manner. Engaged with the screw-threaded chamber, I), is a hollow nut lo keeper, M, whose bore, m, is somewhat larger in diameter at top than at bottom, as more clearly seen in Fig. 3, and the upper end of this nut is nickel or slotted at m', in', to admit a suitable turning implement. This nut may either bear against the spring latch, or it may be coupled thereto; but, as seen in Fig. 2, said nut is screwed down until it comes in contact with an annular collar, X, at the inner end of said clutch, O; the latter having a series of longitudinal slots, o, extending from its upper end almost to said collar. Furthermore, the inner portion of tiiis clutch is chambered out at P, thereby affording an annular shoulder, B, between said chamber and the spring prongs, p.” Fig. 2 shows the parts properly fitted together, and „ in their normal position. “When the various parts of this pendant are properly fitted together, and occupy their normal positions, as seen in Fig. 2, the stress of spring, B, advances the push pin, I, and forces its shoulder, h, against the shoulder, It, of the dutch, thereby causing tlio crown, F, to recede a slight distance from the shoulder, e, in which position of the push pin the arbor, K, is in gear with the winding mechanism; but by pushing against the crown until it strikes the shoulder, e, the spring, E. will be bent sufficiently to liberate the ‘front back’ of the watch, and allow it to fly open, and by properly turning said crown the watch will be wound in the usual manner. This free opening of the case spring and winding of the witch is due to the fact that the spindle, H, now occupies the chamber, P, of the clutch, while its prongs, p, surround the shank, (}, but do not. grasp the same. Therefore the opening of the case and winding of the watch can be performed without producing any frictional action of the spring clutch, but when the hands require setting sufficient force is exerted against the crown, F, to pull it forward until the shoulder, i, comes in contact with the inner end of collar, N, which limits the advance of the push pin, and brings its arbor, K, into communication with the setting mechanism. This advance or outward pull of the push pin or stem canses its rounded shoulder, h, to act as a wedge that gradually opens the clutch prongs, p, and allows the spindle, H, to be grasped by them, as seen in Fig. 4. Consequently the clutch has now a frictional hold around said spindle, and when the push pin is turned either to the right or left said clutch turns in unison therewith, because it is not engaged with the chamber, D; neither is it secured tightly within said chamber by ihc nut or other keeper, M. After the hands have been set, sufficient pressure is exerted against the crown, F, to overcome the grasp of the clutch, and force the push pin or stem back to its original position, where it again assumes its normal function of opening the case and winding the watch.”</p> <p>The court below held that the Golby patent ivas for a new and useful device, and was valid, and that the defendants’ device was an infringement thereof, and, after the hearing upon the merits, entered a deeree for a perpetual injunction, and referred the question of damages to a master. Pending the reference this appeal was taken, under section 7 of the court of appeals act, from the decree below, as an interlocutory order granting an injunction.</p>

<p>1. Patents — Validity oe Infringement.</p> <p>The Osgood patents, No. 357,851, for a store-service apparatus, and No. 293,192, for a cash-ear system, held valid and infringed, the former as to claim 1, and the latter as to claim 2.</p> <p>2. Same.</p> <p>The Osgood patent, No. 290,190, for a cash car, held no-t infringed as to claim 4.</p>

This was a libel in rem, by E. J. Ensign and J. R. MeGuffick, against the steamer Rosalie, for materials furnished for the use of the steamer. ¡

<p>Removal of Causes — Receiver of Federal Court.</p> <p>A receiver appointed by a federal court lias not a right, by virtue of. his personal standing as such, to remove from a state to a federal court a suit in which he is joined as defendant with a citizen of the state. Landers v. Felton, 78 Fed. 811, disapproved.</p>

<p>1. Removal of Causes — Condemnation Proceedings — Diverse Citizenship.</p> <p>A proceeding the object and purpose of which is to enforce, between parties, á right to condemn lands, under the constitution and laws of a state, is a suit which may be removed to a federal court, when the parties are citizens of different states.</p> <p>2. Same — Separable Controversy.</p> <p>Where an application is made, under state laws, to condemn a portion of a large tract of land, the whole of which is owned in fee by a defendant, who is a citizeD of another state than the applicant’s, and a small part of which, including some of the land sought to be condemned, has been leased by him to another defendant, who is a citizen of the same state as the applicant, there is a separable controversy between the applicant and such first-named defendant as to the land not leased, which can be removed to a federal court, on the ground of diverse citizenship.</p>

This was a suit by Koval J. Rutter and F. W. Bradley against the Shoshone Mining Company to determine an adverse claim to mining land. The cause; was heard upon demurrer to the complaint.

<p>Circuit Courts — Jurisdiction—Amount in Controversy — Foreclosure Suit.</p> <p>Wlien a deed is given for the purpose of securing a debt, under the Georgia statutes, the mortgagee, independently of any express stipulation in the accompanying bond for reconveyance, has a right to pay the premium for proper insurance of the property conveyed, and to collect the same, as a part of the amount secured by the deed; and accordingly, in a suit for the foreclosure of such a security, the amount of insurance premiums paid by the mortgagee is properly included with the principal, in estimating the amount involved, for t.he purposes of the jurisdiction of the United States circuit court.</p>

<p>Eqctty Practice — Reference to Master — Reopening Case.</p> <p>One S. intervened in a railroad foreclosure suit, and presented a claim for damages for the death of her husband, alleged to have been caused by the negligence of the receiver of the railroad in a certain particular stated in the petition. The intervention was referred i.o a master, who heard the evidence, and prepared and submitted to counsel a report, finding against the intervener. S. then applied to have the case reopened, in order to set up and prove a new and different negligent act, which had been suggested in the evidence on the hearings, but was not alluded to in the pleadings as they stood, and liad not been relied on by the intervener. Held, that the application came too late, and the master properly refused to reopen the case, or allow the amendment.</p>

<p>1. Jurisdiction — Law and Equity.</p> <p>The test of jurisdiction, in an action at law, is whether, on the facts shown, the plaintiff is entitled to any relief which a, court of law is competent to give; and a party cannot be turned out of a court of law because he has a complete and adequate, or even a better, remedy in equity.</p> <p>2. Same — Pleading.</p> <p>Plain tiff brought an action In a state court possessing only common-law jurisdiction, setting forth in liis petition facts constituting fraud and deceit in obtaining- the surrender and cancellation of a life insurance policy l'or an inadequate consideration, and thereupon demanded both legal and equitable relief. The defendant demurred to the petition, and removed the cause to the United States circuit court, docketing it on the law side of that court. Held, that it was error to dismiss the petition, because it slated facts warranting, and prayed for, equitable relief, but that such allegations and prayer should have been treated as surjilusage, and the court should have proceeded with the case as a pure action at law. Blalock v. Assurance Soc., 73 Fed. 655, reversed.</p>

This was a suit by David ELearfield against Frederick W. Bridges and others to quiet title to certain lands in the city and county of San Francisco, Cal. The circuit court dismissed the bill. 67 Fed. 883. Complainant appealed.

<p>1. Railroad Companies — Appointment of Repeivejrs — Powers and Duties</p> <p>The appointment of railroad receivers under a bill by a stockholder and bondholder, which makes no mortgagee a party, and which alleges insolvency, and prays merely that the system may be protected from its creditors, and held intact, may, in the absence of formal objection, be presumed to be for the common interest; hut, until the mortgage bondholders intervene, such receivers stand practically for the corporation itself, with all its rights and powers, subject to such limitations and directions as the court may give.</p> <p>2. Same — Power of Courts — Payment of Prior Expenses.</p> <p>It is competent for the court, on appointing such receivers under such circumstances, to authorize them, in their discretion, from time to time, out of the earnings coming into their hands, to pay the current pay rolls, vouchers, and supply accounts incurred in the operation of the road prior to their appointment, and to apply funds coming into their hands as the corporation might have applied them. Fosdick v. Schall, 99 U. S. 235, and United States Trust Co. v. Wabash W. R. Co., 14 Sup. Ct. 86, 150 U. S. 287, followed.</p> <p>3. Same — Delay in Presenting Claims.</p> <p>Delay of one who furnished supplies shortly before tbe receivership, to interpose his claim, until after the mortgage creditors have interposed by foreclosure proceedings, will not bar a recovery, if there are still assets from which the claim may be. paid. Delay of the receivers to make payment is the delay of the court, against which the petitioner will be protected when practicable.</p> <p>4. Same.</p> <p>The equity of one who furnished supplies shortly before the appointment of receivers, to be paid out of funds or income in their hands, cannot be cut off, before he becomes a party to the proceedings, by orders entered at the instance of the mortgage creditors.</p> <p>5. Same — Charge on Corpus of Property.</p> <p>Where the mortgage trustees subsequently intervene in the litigation, and ask the appointment of receivers, and procure the modification of the original order by which receivers were appointed, the appointing court then has power to make a claim for supplies furnished, shortly before the original appointment a prior charge upon the corpus of the property. Miltenberger v. Railway Co., 1 Sup. Ct. 140, 106 U. S. 286; Kneeland v. Trust Co., 10 Sup. Ct. 950, 136 U. S. 89; Thomas v. Car Co., 13 Sup. Ct. 824, 149 U. S. 95; Bound v. Railway Co., 7 C. C. A. 322, 58 Fed. 473; Finance Co. of Pennsylvania v. Charleston, C. & C. R. Co., 10 C. C. A. 323, 62 Fed. 205, — followed.</p> <p>8. Same — Foreclosure Sale — Discharge of Receivers — Interest on Claims.</p> <p>Where the road passes to the purchasers at the foreclosure sale, subject to existing claims, pending a claim for supplies furnished prior to the receivership, the claimant will not be entitled to interest, unless he shows that there were funds in the hands of the receivers, or their privies, espccially applicable to the payment of the claim, and which would not have been exhausted by the allowance of interest. Thomas v. Car Co., 13 Sup. Ct. 824, 149 U. S. 93, and Meddaugh v. Wilson, 14 Sup. Ct. 356, 151 U. S. 333, followed.</p> <p>7. Costs on Appeal — Modification of Decree.</p> <p>Where the appellant appeals from the whole decree, but only succeeds in modifying it in a minor particular, neither party will be given the costs of the appellate court. Packard v. Lacing-Stud Co., 16 C. C. A. 639, 70 Fed. 66, followed.</p>

<p>Municipal Corporations — Control by Legislature — California Constitution.</p> <p>The legislature of California is not restrained by section 6 of article 11 of the constitution of that state, adopted in 1879, from exercising control, by general laws, over municipal corporations, created prior to its adoption, but only from passing special laws affecting such corporations.</p>

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

<p>Error to Hie United States Circuit Court for tlie Northern District of California.</p> <p>This is an action brought by George W. Beatty, the plaintiff in error, to recover from the defendant the sum of f>á,000 on a certificate or contract of insurance upon the life of Edwin L. Smith, a debtor of the plaintiff. The certificate of insurance declares that;</p> <p>“In consideration of the application for this certificate of membership, * * * and in further considera,tion of the admission fee paid and of the dues for expenses to be paid on or before the sixth day of May in every year during the continuance of this certificate, and of the further payment of all mortuary assessments, payable at the home office of the association in the city o. New York within thirty days from the day of the date that each assessment is ordered, the Mutual Reserve Fund Life Association * * * does hereby receive Edwin L. Smith, of San Francisco, * * * as a member of said association. Within ninety days after receipt of satisfactory evidence to the association0 of the death of the above-named member during the continuance of this certificate of membership, upon the following conditions, there shall be payable to George W. Beatty (creditor) as his interest may appear * * * the sum of four thousand dollars from the death fund of the association. * * * If, at such date as the board of directors of the association may, from time to time, fix or determine for making an assessment, the death fund is insufficient to meet existing claims by death, an assessment shall then be made upon every member whose certificate is in force at the date of the last death assessed for, and said assessment shall be made at such rates, according to the age of each member, as may be established by the said board of directors, and the net amount received from such assessment (less twenty-five per cent., to be set apart for the reserve fund) shall go into the death fund. * * * The entire contract contained in this certificate and said application, taken together, shall be governed by, subject to, and construed only according to the constitution, by-laws, and regulations of said association and the laws of the state of New York. * * * This certificate is also issued and accepted subject to the express condition that if any of the payments above stipulated shall not be paid when due, at the home office of the association in the city of New York, or to an agent of the association furnished with a receipt signed by its president, secretary, ox-treasurer, * * * the consideration of this contract shall be deemed to have failed, and this certificate shall be null and void, and all payments made thereon shall be fox-feited to the association.”</p> <p>The constitution and by-laws, among other things, provide that:</p> <p>“The corporate powex-s of the association shall be vested in the board of directors, who shall have power to adopt such rules and regulations as they deem necessary, not inconsistent with this constitution or by-laws, and to amend the same; and to fix the amoxxnt and rate of assessments, fees, and dues; and to enact miles and regulations for the government of officers and employés, and for the management of the affairs of the association. The directors shall elect three of their number, who shall constitute an executive committee, who shall * * * have the power to make contracts * * * for the furtherance of the business of the association and for the benefit of its members. And, under the regulations of the board, they shall also exercise a general supervision over the-business of the association.” Article 11, § 5. “On the first week days of the months of February, April, June, August, October, and December, of each year (or at such other dates as the board of directors may, from time to time, determine), an assessment shall be made upon the entire membership- in force at the date of the last death of the audited death claims prior thereto, for such a sum- as the executive committee may deem sufficient to meet the existing claims by death, the same to be apportioned among the members according to the age of each member. * • * * A failure to pay the assessment within thirty days from the first week day of February, April, June, August, October, and December (or-within thirty days from the day of the date of such periods as may be named by the directors), shall forfeit his membership in this association, with all rights thereunder, and the certificate of membership shall be null and void.”</p> <p>The certificate in question was issued May 15, 1884. Plaintiff paid all the assessments made by the association, to-wit, assessments 15 to 42, all of which were made, as provided for in the constitution, by the executive committee. On March 27, 1889, the executive committee made an assessment, or call, known as “Mortuary Call No. 43,” which became due and payable May 1, 1889. Due .notice of this call was sent to and received by plaintiff. It contained, among other things, the following statement:</p> <p>“The sending of this notice shall not be held to waive any forfeiture or expiration of membership caused by the nonpayment of any previous annual dues or mortuary calls. The above mortuary call is now due, and should be paid at once. If not paid on or before .May 1, 1889, the policy will expire, and becoi. < and be null and void.”</p> <p>(3. T. Park was the local treasurer of the association. He was also the cashier of a bank at San José, Cal.</p> <p>Plaintiff testified as follows:</p> <p>“Upon receiving notice of call 43, I paid it to Mr. Park, agent of the company. He refused to accept the money as payment of call 43 * * * until he heard from the company. I paid call 43 on May 3, 1889. The annual dues for that year I paid May 6, 1889, the day it was due, * • * to Mr. Park. He accepted it subject to the decision of the company. I put the money in his hands as the local treasurer of the company, and it was kept there until some time in November, 1890. That money was to pay the annual dues of that year (1889) and said mortuary call 43. It was enough for both, — $39.12 for call, and $8 annual dues. I wrote the company two or three letters in the meantime. They refused to receive it, except on condition that I furnish health certificate. He (Mr. Park) said it had not been paid on time. * * The financial reason why I did not pay on the 1st of May was, I went to the bank at Los Gatos, and the bank was closed on that day, because it was a holiday there; and I had frequently paid a few days after, and thought it would not matter; and I waited until the next day. During the course of my dealing with the company I paid la.te, I think, six or seven times.” Calls Nos. 10, 17, 20, 25, 20, and 42 were paid after the 30 days had expired. Health certificates were required in all but one of these calls. Plaintiff further testified: “I received another notice of call 44 * * * about the regular time for sending them. * * * I offered to pay it. 1 went to Mr. Park, and he refused to take it, because there was money on deposit for payment of call 43; and it was useless, he said, to take any more money. I had the money in my pocket at the time I tendered it in words. * * * I corresponded with them afterwards in relation to the subsequent <-all. I received one subsequent call from the company before Mr. Smith died, on December 10, 1890. Q. This 43d call was in May, 1889, — a difference oí 19 months. What did you do during those 39 months in regard to, the payment of calls? A. As I said several times before, Mr. Park refused' the money because he had $47 on deposit. He said it was useless to pay any more'until we adjusted that other matter, No. 43. He gave me a blank certificate of health to have filled out and executed by Mr. Smith. The reasons I did not llave it signed were the man was getting too old to examine him every few months, his health was poor, and I felt they had no right to have a health certificate at all; and the other reason was, I could not find Mr. Smith. I could not find his address when I came to San Francisco to look for him. I came back again, and some months afterwards I found he was in Tacoma. But I could not communicate with him there, and I knew the company had waived that all along. The reason why I did not pay these calls in time may have been because I was not in condition financially to do so. That may be one reason. When I was in New York I had a talk with the assistant secretary, in which he said that Oalifornia was so distant, they were not particular about time. * * I arrived in San José on May 2, 1889. I went down to the bank, where I usually found Mr. Park, and the bank was closed. I went to gentlemen near there, and asked them if they knew his residence, or where I might find him, and none of them knew, anú 1 supposed from their past action that if I went in the morning it would be the same; that is, on Ma.y 3d. 1 am sure I received mortuary call No. 44. I am not positive whether I received 45 or not..”</p> <p>The cause was tried before a jury. At the close of all the testimony, the court, at the request of defendant’s counsel, instructed the jury to find a verdict in favor of the defendant. This instruction was granted upon the grounds: (1) Because the plaintiff drew down the amounts paid to Bark in May, 1889, prior to the death of Smith; (2) because there was no compliance with the policy on the part of the plaintiff; and (3) because there was no conduct on the part of the defendant waiving the forfeiture that had occurred.</p>

This was a libel in rem by the Bancroft-Whitney Company and others against the steamship Queen of the Pacific (the Pacific Coast Steamship Company, claimaht) to recover for damage to goods shipped on the steamship by libelants. The case was heard on motion by the claimant for judgment in its favor, after the libelants had rested their case.

<p>1. Circuit Courts — Jurisdiction—Foreclosure Suit.</p> <p>When a. United States circuit court has jurisdiction, generally, of a controversy, by reason of the parties being citizens of different states, it can entertain a suit for the foreclosure of a mortgage on laud within the district for which it sits, and, in such suit, can entertain and determine such pertinent questions as are necessary to give the complainant perfect and full relief, including the question of the superiority of an alleged prior mortgage held by a defendant, although neither complainant nor all the defendants are residents of the district.</p> <p>5. Equity Practice — Parties—Foreclosure.</p> <p>When the money, the payment of which is secured by a mortgage, has been advanced iu the form of a draft, drawn by one corporation on another, the drawer of such draft is not a necessary party to a. suit by the trustee of the mortgage and the drawee of the draft for the foreclosure of the mortgage.</p> <p>8. Usury- — Conflict op Laws — Tennessee Statutes.</p> <p>The statutes of Tennessee, under which the lien of a mortgage is lost when the debt it secures is affected with usury, do not affect a mortgage executed in Tennessee, but: covering land in Georgia, and securing a note made in Georgia, and payable there, and bearing a rate of interest which, though usurious in Tennessee, is legal in Georgia.</p> <p>4. Same.</p> <p>A note was signed and dated in Georgia. A mortgage, given to secure it, was executed in Tennessee, and both note and mortgage were delivered and the money was paid in the latter state. Held that the mortgage was a Tennessee contract, and subject to the laws of that state in respect to usury in the debt secured.</p> <p>6, Same.</p> <p>Under the law of Tennessee, a contract which on its face is usurious will not be enforced, but a contract which requires evidence aliunde io show it ro be usurious is void only to the extent of the usury. Accordingly, held, in the case of a mortgage securing a note which appeared upon its face to be a Georgia contract, and, as such, not usurious, though the mortgage was executed in Tennessee, but which was shown by the evidence to be a Tennessee contract, ¡hat such mortgage and note could be enforced in Tennessee, but to The extent only of the rate of interest allowed by the Tennessee law, which was less than the rate specified in the note.</p>

These were suits brought by the Southern Pacific Railroad Company against David R. Brown and Nathaniel Bray, respectively, to establish a claim to certain lands. The circuit court dismissed the bills. 68 Fed. 333. Complainant appealed.

<p>1. Mortgage — Duplicate Instruments.</p> <p>A mortgage was executed by one II., as agent for a corporation, but not under its corporate seal. A question as to the validity of the mortgage and of the authority of the agent having arisen, another mortgage was executed, two months later, by the officers of the. corporation, which was substantially the same as the one first executed. There were no intervening equities. Held, that the two mortgages were properly foreclosed as one, under a bill seeking foreclosure of the second.</p> <p>'■i. Same — Computation of Amount Due.</p> <p>Where, In calculating the amount due to a mortgagee, for which he is • entitled to foreclose his mortgage, given to secure advances, against which the mortgagor is entitled to offset the amount due to him under a contract for furnishing material to the mortgagee, a deduction is made from the contract price of such material of sums lawfully paid by the mortgagee under the terms of the contract, to complete its performance after the mortgagor’s default, such deduction does not extend the mortgage to Include items not covered by it, but only reduces the offsets against the sums secured to the proper amount.</p>

<p>1. Practice — Federal and State Courts — Discovery—Production of Books, Etc.</p> <p>Although the practice which prevails in the highest courts of the state obtains in the federal courts, yet, where congress has legislated upon a matter of practice, such legislation becomes the sole and supreme guide, to the exclusion of the state code. Where, therefore, a party moved for examination of books and papers before trial, both under section 157 of the New Jersey practice act and section 724, Rev. St. U. S., held, that section 724, Rev. St. U. S., alone controlled the practice as to discovery of books and papers in the federal courts.</p> <p>2. Same.</p> <p>By section 724, Rev. St. U. S., the power vested in the federal courts to require the production of books and papers is limited to causing such production at the trial, and such power is to be exercised only under circumstances where the parties might be compelled to produce the books and writings “by the ordinary rules of proceedings in chancery.”</p> <p>8. Same — Self-Incriminating Evidence.</p> <p>Where, therefore, it appears that the production of books and papers would lay a party open to criminal prosecution, or might subject such party to a penalty or forfeiture, equity will deny such application, and the federal courts will do the same.</p>

<p>1. Interf.st — Judgments and Decrees — Rule 80 of Circuit Court of Appeals.</p> <p>The purpose of rule 30 of the circuit court of appeals (II C. C. A. cxii., 47 Fed. xiii.) is to give to suitors, whose decrees for the payment of money are affirmed, interest thereon from the date of their entry until paid, if by the state law interest might have been allowed iu the state courts in a similar case, and at the rate provided by the state law, but it was not tbe intention to adopt state rules of practice in reference to the necessity of an express provision in the judgment or decree appealed from for the allowance of such interest. Accordingly, held, that interest might be allowed on a decree rendered by a federal court sitting in Nevada from its rendition until payment, although no express provision was contained in tbe decree for the payment of such interest, and the practice of the Nevada courts required such an express provision to permit its collection.</p> <p>2. Same.</p> <p>The allowance, however, of such interest is within the power of the circuit court of appeals alone, and when a decree making no provision for interest is affirmed by a mandate which is also silent on the point, the lower court has no power to allow interest,</p>

This was an action by Louis Engler against the Western Union Telegraph Company for personal injuries. The plaintiff recovered judgment in the circuit court for f15,000. A motion for a new trial was denied. 69 Fed. 185. Defendant brought error.

<p>Negijoencis — Question vor Jury.</p> <p>In an action to recover damages for personal injuries, it appeared that the plaintiff, the foreman of a squad of track hands on a railroad, was taking two hand cars, one of which was out of repair, from one station to another. The disabled car was in the rear, and ran up very close to the other, when one of the men. who was sitting on the forward car, raised his foot and kicked the rear car hack. Immediately afterwards the forward ear ran off the track, injuring the plaintiff, who was riding on it. There was evidence tending to show both that the kick did, and that it did not, cause the derailment. Held, that this question, as well as the questions whether the kick was such an act of negligence as to render the railroad company liable, and whether plaintiff was guilty of contributory negligence in running the disabled car too near the other, was properly left to the jury.</p>

<p>1. Costs — Witnesses—Voluntary Attendance.</p> <p>A party is entitled to the per diem allowance and mileage for the attendance of witnesses who have attended without subpoena, and have either been sworn and examined, or not sworn, because their evidence was made unnecessary by a ruling of the court.</p> <p>2. Same — Mileage.</p> <p>A party is entitled to tax mileage for the attendance of witnesses only to the extent of 100 miles, when the witnesses reside more than that distance from the place of trial of the cause, and out of the jurisdiction.</p> <p>3. Same — Depositions.</p> <p>A party is entitled to tax costs for any deposition taken in the cause, and to which no exception is made, though it is not read or offered in evidence on the trial.</p>

<p>Patents — Anticipation—Water Wheels.</p> <p>The McCormick patent, No. 265,689, for an improvement in turbine water wheels, consisting in providing the acting face of the buckets with corrugations to better retain the water therein, and in so constructing these corrugations that substantially equal amounts of water will pass through them, is void, because of anticipation and want of invention.</p>

There was a libel in. admiralty by Frederick A. Koons and others against La Fonciere Compagnie D’Assurances to recover a balance claimed to be due on a policy of insurance. The district court gave judgment for the libelants. 71 Fed. 978. Defendant appealed.

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

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

<p>1. Partnership — Mortgage of Partner’s Interest.</p> <p>In pursuance of an agreement between M. and S., partners, and T., that S. should sell out his interest to T., who should thereupon form with M. a new firm, the sale was made, the interest of S. in partnership real estate conveyed to T. by deed describing it as an undivided hail of certain land, a mortgage given thereon by T. to S. to secure the purchase money, and thereafter, on the same day, a partnership formed between M. & T., the latter contributing thereto the property thus acquired. Held, that there being no fraud in the transaction, it being known by M. that the property contributed by T. was burdened with such mortgage, and it being recorded, it could not be treated as a mortgage of the interest of T. In the new firm, so as to be deferable to an adjustment of the accounts between M. and T., as partners, or to the debts of the firm of M. and T., though the latter were to a large extent for money used in paying the debts of the old firm.</p> <p>8. Same.</p> <p>Where a mortgage given on an undivided half interest in land by T. to S. , before T. formed a partnership with M., and contributed to the firm such half interest (the other half interest being contributed by M.), was released to enable the firm to give a first mortgage on all the land, with an understanding that thereafter S. should take a second mortgage from T. on the undivided half interest, the mortgage so given to S. will, so far as the rights of M. and subsequent mortgagees of land are concerned, be considered a continuation of his original mortgage, and not a mortgage by a partner of his interest in firm property.</p>

<p>1. Mortgage — Right to Rents and Profits — Lease.</p> <p>The R. Equipment Company leased to one O. a number of freight ears,, the lease providing that, in case of default by O. in the payment of the monthly rent, all mileage or other earnings of the ears should be payable to the lessor, and be applied on the unpaid rent due to it, and thereafter falling due, and that the lessee should give notice to the proper parties to pay such earnings to the lessor, though such notice should not be necessary to enable the lessor to collect the same. It was also provided that, upon default, the lessor might take possession of the cars. O. subleased the cars to, defendant, and, at the same time, made known to it the terms of the lease, and, upon the subsequent occurrence of a default in his payments to the equipment company, authorized defendant to pay its rental to the equipment company. Held, that the lease from the equipment company to O. amounted to a mortgage back of the cars to it, with the rentals accruing to O.'under his sublease, as security for the rentals to the equipment company; that the provisions of tire lease to O. took it out of the general rule that a mortgagee not in possession is not entitled to rents and profits; and that, after O.’s default, there was a privity of contract between defendant and the equipment company, binding the defendant to pay its rental to the equipment company, and constituting a defense to an action by O. against defendant for such rentals.</p> <p>2. Res Judicata — Title.</p> <p>At the expiration of the lease of the ears to O., a dispute arose between him and the equipment company as to the ownership and right of possession thereof, in consequence of which defendant refused to deliver possession thereof to either until their rights were settled. Thereupon a suit was brought by the equipment company, to which O. and defendant were parties, and in which a decree was rendered, adjudging that the title to the cars was in the equipment company, that O. should be barred and foreclosed of any interest therein, and awarding compensation to defendant for storage of the cars, after the termination of the lease to it from O. Held, that this decree was res judicata as to O.’s right to recover damages from defendant for the detention of the ears, after the termination of the lease to it.</p>

<p>1. Fraudulent Conveyances — Suit against Grantee’s Heirs.</p> <p>The heirs of one who received a conveyance of real estate, without pay- ■ ing any consideration, and merely for the purpose of enabling the grantor to defraud his creditors, have no right to hold the property, as against such creditors.</p> <p>2. Same — Limitation of Actions.</p> <p>The statute of limitations does not run in favor of one who receives a mere voluntary conveyance for the purpose of enabling the grantor to defraud his creditor, unless it be shown that the creditor had knowledge of the fraud, and then slept on his rights.</p> <p>8. Equity Practice — Reference to Master — Written Consent.</p> <p>Upon a written consent, entered as an order of court, to refer all questions of law and fact to a particular standing master, the findings of that officer are usually conclusive. They cannot be set aside at the mere discretion of the court, but can only be avoided upon exceptions showing that the report is unsupported or essentially defective.</p> <p>4. Same — Exceptions to Master’s Report.</p> <p>A master’s report is received as true, and exceptions thereto will be regarded only so far as they are supported by the special statements of the master, or by evidence which must be brought to the attention of the court by reference in the exceptions to the particular testimony relied on to set the report aside.</p>

This was a suit in equity by H. M. Beall, receiver of Linn County National Bank, against J. L. Cowan and others, to set aside certain mortgages made by said Cowan to his co-defendants in trust as securi- ty for payment of certain creditors.

This was a suit in equity by the Bank of California against J. L. Cowan and S. E. Cowan, his wife, to set aside, as in fraud of credit- ors, a deed by him to her.

This was a bill filed by the National Bank of Jacksonville against T. B. Merrill, as receiver of the First National Bank of Palatka, and shows, among other things, that the appellee was a creditor of the First National Bank for one class of indebtedness, consisting of sundry drafts, amounting to $6,010.47, and for another class of indebtedness, consisting of certificates of deposit, loans, and interest, amounting to $10,093.34, — making a total of $16,103.81 due the appellee…

<p>1. Equity Pleading — Multifamousness.</p> <p>Complainant’s bill sought to subject defendant to liability for an indebtedness of a railroad company to complainant on four grounds, viz.: That defendant was the owner of stock in the railroad company upon which a part of the subscription exceeding the railroad company’s indebtedness was unpaid; that, through various transactions in the issue, cancellation, and reissue of stock, and the purchase of shares owned by other parties with funds of the railroad company, there had been a misappropriation of the railroad company’s property applicable to the payment of its debts, for which defendant was responsible; that defendant, and others confederating with him, had caused real estate of the railroad company to be conveyed to defendant without consideration; that defendant, ■ ■ combining with others, had misrepresented the financial condition of the railroad company, thereby inducing complainant to loan it money which he had lost. Eeld that, though the first and second grounds of liability, growing out of the defendant’s connection with the railroad company as an officer and stockholder therein, might be united, the third and fourth grounds had no legal connection with the former, and the bill was multifarious.</p> <p>3. Equity Practice — Suit to Enforce Stock Subscription — Parties.</p> <p>Where suit is brought in equity to enforce subscriptions to the capital stock of a corporation as part of a trust fund for the benefit of the creditors of such corporation, the bill must be so framed as to be for the benefit of all the creditors who are entitled to the trust fund sought to be reached.</p>

This was a suit by William .Pennington, as trustee for Louise Condit Smith and Sallie Barnes Smith, against Emma Condit Smith and the Fifth Avenue Bank of New York, to impress a trust upon certain funds held in deposit by the bank. This controversy has already been before the court. 69 Fed. 188. The facts as they appeared at that time — June, 1895 — are fully set out in the reported decision.

. This bill was filed by the New England Engineering Company, a corporation nnder the laws of the state of Illinois, against the Oak-wood Street-Railway Company, a corporation operating a street railway under the laws of the state of Ohio, in the city of Dayton.

<p>1. Mortgage Foreclosure — Receiver of Rents and Profits — Public Policy.</p> <p>A stipulation in a mortgage that, upon the institution of foreclosure proceedings, a receiver of the rents and profits may be appointed on the application of the mortgagee, is contrary to the public policy of Oregon, as shown by the statute which provides that a mortgage of real property shall not be deemed a conveyance, so as to enable the mortgagee to recover possession without a foreclosure and sale according to law. Hill’s Ann. Daws (2d Ed.) p. 383. Therefore the appointment of a receiver under such a stipulation is void.</p> <p>2. Same — Compensation and Expenses of Receiver.</p> <p>Where the appointment of a receiver of the rents and profits of mortgaged lands pending foreclosure is void, as contrary to the public policy of the state, such receiver, though he renders services and realizes profits, is not entitled to compensation or expenses therefrom, but the same should be paid, if at all, by the party who procured his appointment.</p>

<p>1. Trusts — Guaranty Fund — Purchaser of Assets of Trustee.</p> <p>The L. Investment Co. and the B. Bank entered into a written contract by whieh it was agreed that the bank should furnish and recommend borrowers to whom the investment company should make loans on mortgage; the interest and commissions to be divided in agreed proportions, and the bank to guaranty the principal and interest of the loans to the extent of 2 per cent. To secure tlie bank’s performance of the agreement, it was also provided that it should pay over to the investment company, each month, a sum equal to 2 per cent, of the moneys loaned during the month, which sums were to be held by the investment company as trustee, and were to remain and be kept intact, as security against any losses on each and every loan made on behalf of the company, and to be paid back to the bank when all such loans should have been paid. The investment company became insolvent. Its assets passed into the hands ■of a receiver, and were sold under an order of court. Held, that the contract affixed to the fund so created in the hands of the company the character of an express trust, of which the court, on the insolvency of the company and the sale of its assets, should appoint a new trustee, and that the purchaser of the company’s assets took no title to the fund; a provision in the order of sale that persons claiming an interest in the estate must present such claims, or be barred, not applying to the beneficiary of such trust fund, but only to claimants against the general assets of the company.</p> <p>2; Same — Charging Trust Fund.</p> <p>The contract also provided that, in case of any default on the loans made through the bank, the investment company might advance, out of the trust fund, the whole amount in default, reimbursing the trust when collections should be made from the borrower, but on the final settlement only 2 per cent, of any losses by such defaults was to be deducted from .the trust fund, as against the bank. Held, that this provision did not authorize the purchasers of the investment company’s assets to charge against the trust the amount of claims proved against the company’s estate, on its guaranties given to purchasers of the mortgages, the bank not having been a party to such guaranties.</p>

<p>1. Domicile — Change—Evidence.</p> <p>The question of a change of domicile is mostly one of intention with the party, as to which his declarations must control, unless overthrown by acts inconsistent with them.</p> <p>2. Same.</p> <p>To effect a change of domicile there must be (1) residence in the new locality, and (2) intention to remain- there.</p> <p>3. Same. .</p> <p>Upon the evidence in this case, upon the question of plaintiff’s domicile, held, that the effect of the repeated declarations of the plaintiff that it -was at no time his intention to make the state of West Virginia his home, but that it was his intention to return to Missouri, where he had resided for many years, as soon as he had finished his business in West Virginia, was not overcome by evidence that he had resided in West Virginia fox' more-than a-year, reasons for his stay being shown, that he had returned certain property for taxation in West Virginia, that he had registered at hotels as from West Virginia, or that his wife had declared she would not live in Missouri. ,</p>

<p>These were suits in equity, brought, respectively, by the Westerly Waterworks and the Seamen’s Friend Society and others, to enjoin the town of Westerly, R. I., and others, from constructing a system of waterworks. The cases were heard together, on motions for preliminar injunctions.</p>

<p>Equity Practice — Parties Bound by Order — Receiver's Certii’icates.</p> <p>The M. Railroad Oo., owning a line oi' railroad in Georgia, ma.de two mortgages of the same to the B. Trust Co. to secure issues of bonds. Subsequently it was consolidated with another railroad company, owning a line in North Carolina, to form the M. Railway Co., which made a mortgage on the whole line to the Q. Trust Co. to secure another issue of bonds, ■which were used in part to extend the road into Tennessee. The railroad company defaulted on all the bonds, and the G. Trust Oo. commenced a suit to foreclose Its mortgage, in which a receiver of the road was appointed. Upon petition of such receiver an order was made, authorizing him to issue receiver’s certificates to pay for building a bridge over the Tennessee river, such certificates to be a first lien on the whole railroad in the three states. At the time of the commencement of this suit, and the making of this order, the O. Trust Oo. held a large proportion of tlie first and second mortgage bonds on the Georgia road. After the making of the order, lmt before the actual issue of the certificates, the B. Trust Oo. commenced a suit to foreclose the mortgages on the Georgia road, made to it, and prayed for and obtained the extension of the receivership to its suit; the order entered on its motion directing that the receiver should conform to all the requirements and orders previously imposed on him in the G. Trust Co.'s suit. The certificates were afterwards issued, in payment for building the bridge. The two foreclosure; suits were consolidated. On May 13, 1893, a decree was made foreclosing all the mortgages, directing a sale, appointing a special master to report as to the priority of the receiver's certificates over the mortgages to the B. Trust Co., and expressly reserving the question of such priority for future adjudication. The master reported that the certificates were not entitled to such priority, but, no sale having been made under the decree of May 13, 1893, another decree was made, on June 8, 1895, adjudging that the certificates were entitled to such priority, from which decree the B. Trust Co. appealed. Another decree was made on October 10, 1895, modifying the terms of sale, but confirming the adjudication as to priority of the certificates and mortgages, and from this decree no appeal was taken. líelá, upon the appeal from the decree of June 8, 1895, that while the fact that the decree of October. 10th had become conclusive by the expiration of the time to appeal, rendered this appeal useless, upon the merits, the decree of May 13th could not be deemed final, in relation to the question of priority, since it expressly reserved that question; and, as the B. Trust Co. had been charged with notice of the terms of the order directing the issue of the certificates, and had failed, at the time or at the commencement of its suit and the extension of the receivership, to object to the provision making them a first lien on the whole line, but had permitted the receiver to go on and issue them, it, as well as the court, was bound by the terms of the order, and good faith required a decree such as was made. Speer, District Judge, dissenting.</p>

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

<p>1. Evidence — Declarations—Pedigree.</p> <p>Tlio rule permitting a resort to hearsay evidence in cases of pedigree extends only to the admission of declarations by deceased persons who were related by blood or marriage to the person in question, and not to declarations by servants, friends, or neighbors.</p> <p>2. Same — Illegitimate Relations ini’.</p> <p>The rule Is also limited to cases of legitimate relationship, and such evidence cannot be introduced to establish an unlawful relationship, per se, where a lawful relationship is not claimed,</p> <p>ü. Same — Illegitimate Issue.</p> <p>I'pon consideration of the evidence offered upon the question whether complainant was the illegitimate son of one 10., held, that it was fully shown that lie was not.</p> <p>4. Wills — Issue—Ohio Statute ok Descents.</p> <p>The provision in the Ohio statute of descents of 1833, permitting bastards to inherit or transmit inheritance on the part of their mothers, does not enable an illegitimate child of a woman to take under a devise of a remainder to the issue of the body of such woman. Flora v. Anderson, 67 Fed. 182, reaffirmed.</p>

<p>This was an action at law by Catherine Zimmerman against tbe Masonic Aid Association of Dakota upon two certificates of membership therein, issued to Gottlob Zimmerman.</p>

<p>In Error to the District Court of the United States for the Western Division of the District of Washington.</p> <p>This was an action at law by Hubert Wingate, as receiver of an insolvent national hank, against George F. Orchard, a stockholder therein, to recover the amount of an assessment ordered by the comptroller of the currency upon the defendant’s stock. By the judgment below, defendant was allowed to set off against this assessment the amount of his deposits in the bank at the time it became insolvent, and the plaintiff brought error.</p>

<p>Accident Insurance — Cause of Death.</p> <p>A policy was issued to one W., insuring him against death from bodily injury caused solely by external, violent, and accidental means, but stipulaiing 1lmi ihoro should he no liability for injury resulting from anything "accidentally or otherwise taken. * * * absorbed, or inhaled, s- * s ()r resulting, either directly or indirectly, wholly or in part, from í- s- * medical or surgical treatment.” In an action on the policy after W.’s death, it was alleged in the declaration that in order to relieve hint from the xtain of a surgical operation a physician administered chloroform to W. in a proper way. and that before he came under its influence, from it and some unknown cause combined, he suffocated and died; that death would not have resulted from the chloroform alone, but did result from the operation of the chloroform, acting in an unusual way, and the unknown cause. Bold, that the declaration stated no cause of action.</p>

<p>Accident at Railroad Crossing — Contributory Negligence--Province of Jury.</p> <p>Plaintiff, approaching a crossing near a station, hoard a wlnstle beyond the station, and, when about 200 feet from the crossing, stopped, as he testified, and looked for the train, until he concluded that It had stopped at the station, which at the time was obscured by snow. Believing that he could easily pass before the train could start up, and reach the crossing or the whistling post, where he might expect a. signal, he drove on without looking further, and was struck by a. fast train which had not stopped at the station or whistled at the whistling post. Held, that the question of contributory negligence was for the jury, and the court could not set aside a verdict for plaintiff.</p>

<p>1. Evidence — Books Introduced by Opposite Party.</p> <p>When the books of a hank are offered in evidence by one party to a suit, the other party is entitled to avail himself of any part of the evidence contained therein, such as the state of a particular account.</p> <p>2. Same — Bank Books — Expert Evidence.</p> <p>In an action to recover a sum alleged to have been loaned to a bank, the receiver thereof claimed that the loan was to the president of the bank personally. He also contended that the bank’s books should not ho considered as evidence that the loan was to the bank, because they were not properly kept, and lie offered to show by expert testimony what would have been the proper method of entering the transaction if the loan had been made to the bank. Held, that this evidence was properly excluded, as it did not appear that there was any such ambiguity in the account as to require expert evidence in relation thereto.</p> <p>3. Review ox Error — Special Findings.</p> <p>Where a jury is waived, and the court makes special and general findings, an appellate court is not required to weigli the evidence and determine the preponderance thereof, but will only consider whether the pleadings and special findings are adequate to support t&e judgment. Walker v. Miller, 8 C. C. A. 331, 59 Fed. 870, followed.</p> <p>4. Banks and Banking — Money Borrowed por Bank by President — Liability OB' Receiver.</p> <p>The receiver of an insolvent national bank is liable for money borrowed by the president of the bank without special authority, when it appears that the hank actually received the money and appropriated it to its own use. Bank v. Armstrong, 152 U. S. 346, 14 Sup. Ct. 572, distinguished.</p>

<p>1. Evidence — Ancient Instruments — Proper Custody.</p> <p>In an action involving the title to land in Texas located under a land certificate issued to the heirs of a soldier in the war of independence, flit- defendant offered in evidence fl deed executed more than 30 years before the trial, and purporting to convey the certificate, the same forming a part of defendant’s chain of title. The deed was produced from the Texas general land office, and the commissioner of that office testified that it was deposited there, together with other proofs of title, by an agent of B„ one of defendant’s predecessors in title, who claimed the certifica te at the time, and by whom it was located on the land in controversy. The said agent also testified that the deed was so deposited by him for B., by whom the certificate was located, and to whom a patent for the land was issued. The deed was regular in form, and acknowledged before a proper officer, whose signature was identified. Held, that the deed was sufficiently shown to have come from the proper custody to bo entitled to admission as an ancient instrument.</p> <p>2. Same — Identity—Opinion of Witness.</p> <p>Upon a question of identify, a witness who was familiar with the person whose identity it is sought to establish cannot be permitted to testify that he is satisfied that a certain individual Is that person, though he may state his reasons for Ills belief.</p> <p>McCormick, Circuit Judge, dissenting.</p>

<p>Mandamus, on the relation of Alfred Huidekoper, against the Macon county court justices and treasurer.</p>

<p>This was an action by the United States against William H. Wade to recover a sum of money alleged to be due.</p>

<p>Prosecution of Samuel Hughes for violation of Rev. St. U. S. § 5286.</p>

<p>Patents — Aggregation—Boxes.</p> <p>The Andrews patent, No. 829,875, for a box of thin, flexible material, reinforced at Its upper edge by a band of wood, protected at the corners by metal corner pieces, U-shaped in cross section, is void, as being a mere aggregation of old devices which here perform no new function.</p>

This was a bill in equity by tbe Boston Lasting Machine Company against Erastus Woodward and others for alleged infringement of a patent for a lasting and fastening machine for boots and shoes.

<p>Negligent Towage — Injury to Third Vessel — Liability of Tugs.</p> <p>Tugs towing a steamship to a wharf at which another ship was lying, and forcing her in between the latter and the dock, while the latter was attempting to comply with the dock owner’s order to move out of the way, held liable for damages to her from grounding, in consequence of being forced past the end of the pier before she could be made fast.</p>

This was a suit in equity by the Electric Boot & Shoe Finishing Company against Alexander E. Little and others for alleged infringement of a patent for blackening and burnishing boots and shoes.

<p>Patents — Limitation by Prior Art — Valve Indicators.</p> <p>The Kennedy pateDt, No. 404,844, for a valve Indicator, must be limited, in view of the prior state of the art, to the specific structure shown and described; and the real invention consists simply in the use of a movable sleeve, in combination with the other parts, with the resultant advantage that the valve can endure rough handling, and is little liable to derangement and destruction.</p>

This was a suit in equity by the Strom Manufacturing Company against the Weir Frog Company for alleged infringement of letters patent No. 352,286, issued November 9, 1886, to Charles Alkins for improvements in rail braces. The cause was heard on demurrer to the bill.

This was an action at law by A. S. Pare against Marie E. Chauche, executrix, and others, for alleged infringement of a patent. In the circuit court a verdict was given for plaintiff. To review the judgment entered thereon, defendants sued out this writ of error.

<p>This was a suit in equity by the Tannage Patent Company against John E. Donallan for infringement of letters patent Nos. 291,784 and 291,785, for a process for tanning leather. Complainant has moved for a preliminary injunction.</p>

This was a suit in equity by the Pierpoint Boiler Company against the Penn Iron & Coal Company and the Stirling Company for infringement of a patent relating to water-tube boilers.

This was suit in equity by Oscar Lublin against the íátewart, Howe & May Company and others for alleged infringement of letters patent No. 440,246, issued November'll, 1890, for an improvement in dress stays.

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

<p>Wharfage — Contract—Lease of Wharves by New Orleans.</p> <p>By the terms of the contract between the city of New Orleans and the Northeastern Railroad Company, under which wharves were built by the company between Port and Montegnt streets, there was reserved to the city the right to collect usual wharfage dues from vessels occupying such wharves, with the consent of the company, but not on its business: and this right passed to the Louisiana Construction & Improvement Company, under the ordinance by which the city farmed out to it all the revenues arising from the wharves existing in the First, Second, Third, and Fourth districts of the city, “from Toledano street to Piety street.”</p>

This was a petition by the Oregon Railway & Navigation Company, as owner, and the Oregon Short Line & Utah Northern Railway Company, as lessee, for limitation of liability in respect to the damages caused by the explosion of the boiler of the steamboat Annie Faxon. The district court made a decree for limitation. 66 Fed. 575. Lewis T. Lawton and others, claimants, appealed.

<p>1. Federal Courts — Jurisdiction—Citizenship.</p> <p>Rulings of the supreme court of the United States upon the subject of • citizenship as a ground of jurisdiction in the courts of the United States restated.</p> <p>2. Same — Change, from One State to Another.</p> <p>When a citizen of one state leaves that state, and goes to another, with the deliberate and final intention of making the latter state his home,_ it is not necessary, in order to acquire a domicile and citizenship therein, that he should adopt a fixed local residence within such state; but immediately upon arriving therein, especially if his domicile of origin was in such state, he becomes a citizen of such state, and a resident of any district or part of it in which he may for the time being abide.</p> <p>S. Same.</p> <p>N. H., a daughter of a citizen of Texas, was horn in that state, and resided there until her father’s death, in her fifteenth year. She afterwards married one A. M., a citizen of Tennessee, and resided with him in that state, where a son, one A. S. M., was born. A. M. died during tills son’s minority, and the mother, after remaining for some time in Tennessee, left that state, with the child, for Texas, with the fixed and declared intention of making Texas her home, though without any definite place for a local residence. She was at the time engaged to marry one G., but no time had been set for the marriage. A few days after reaching Texas, at G.’s request, and upon his agreeing, as a condition of her consent, to make Texas his home, she decided to marry G. at once, and did so. Held, that the arrival of the mother of the infant, A. S. M., in Texas, her domicile of origin, with the intention of making her home in that state, though at no particular point therein, was immediately effectual to change her domicile and that of her minor child, and to make both citizens of Texas, and, the domicile and citizenship so acquired by the child being unchanged by his mother’s subsequent marriage, that such child was accordingly competent to bring suit in a federal court against a citizen of Tennessee, or to remove to the federal court a suit brought against him by a citizen of Tennessee in a state court.</p> <p>4. Same — Residence—Waiver of Privilege.</p> <p>The judiciary act of 1887, as corrected by the act of 1888, provides: “And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” Held, that within the meaning of this provision of the act it requires no more to constitute residence than is required in the residence element of citizenship, and that the provision of the act as to the district in which the action shall bo brought does not toucli the general jurisdiction of the court over the case, but affects only the mode of bringing the defendant within the jurisdiction, and is a personal privilege, which is waived unless the objection is seasonably taken.</p> <p>& Same — Action Pending in State, Court — Comity.</p> <p>It seems that the pendency of a suit between the same parties and for the same object in a state court does not constitute a good plea to a suit between the same parties and for the same purpose in a court of the United States, but conflict of jurisdiction and embarrassment are avoided by the rule of comity uuder which the court first obtaining jurisdiction is allowed to proceed in an orderly way to a final disposition of the case.</p> <p>6. Same — Removal of Cause.</p> <p>Two suits in equity, between the same parties, and seeking substantially the same objects, were commenced on the same day, the one in a state, and the other in a federal, court. The former was removed to the federal court. Held that, as it appeared that jurisdiction first attached in the state court suit, the complainant in the other suit should be given leave to dismiss the same, with liberty to file a cross bill in the first suit, if sc advised, and that otherwise the complainant in the first suit might file a plea in the second, setting up the pendency of the former suit, which would be a good defense.</p>

<p>Federal Courts — Jurisdiction—Anciui.ary Suits.</p> <p>When a federal court, by. the appointment of a receiver, has assumed exclusive control of the operation mul management of a railroad, any suit or action against such receiver, in his official capacity, and mreitaed to affect the operation or business of the railroad, must be regarded as subordinate and ancillary to (ho suit in which such receiver was appointed, and, as such, within the jurisdiction of the federal court, and removable thereto, if commenced in a state court So held of a proceeding to require the receiver, by mandamus, to comply with a state statute requiring the weighing of cars loaded with lumber.</p>

This was a suit by John J. Noonan against the Chester Park Athletic Club Company and the Devere Electric Company, both being Ohio corporations, and La Marcus A. Thompson, O. M. Lawson, Luke Lilley, and John Devere, individually, they being corporate officers, for alleged infringement of letters patent Aos. 332,762 and 367,252, issued to La Marcus A. Thompson, December 22, 1885, and July 26, 1887, respectively.

This was a petition hy F. O. Benner and IL Somerhoff, composing ¡he firm of Woerishoffer & Co., for a writ of mandamus to be directed to the judge of the circuit court for the Eastern district of Texas, requiring him to allow an appeal from a certain order therein specified.

<p>Appeal from the Circuit Court of the United States for the Northern District of Florida.</p> <p>Thomas L. Ward & Co., citizens of the state of Florida, presented to the . circuit court of the United States for the Northern district of Florida, sitting in chancery, a bill against the Western Assurance Company of Toronto, Canada, and made the following averments: The defendant is a corporation created under the laws of Canada, and carrying on the business of insurance, by resident agents, in the Northern district of Florida. On the 23d of July, '1892, W. W. Wilson, an agent of defendant company at Quincy, Fla., delivered to complainants its policy insuring them against loss from fire, to the amount of $2,500, on certain leaf tobacco, in carrots, boxes, and loose, the property of the insured, or held by them as agents, on commission, or on trust as warehousemen. The tobacco was situated in the tobacco warehouse owned by the Gadsden County Sale & Packing Warehouse Company. At the time the policy was issued there was a mortgage upon a portion of the property thus insured, but before October 18, 1892, Wilson had been notified of the existence of the mortgage, and his knowledge of its existence continued up to and after that date. About October 18, 1892, the warehouse mentioned became a general or public warehouse for the reception and storage of tobacco belonging to divers persons. The complainants became managers, and the policy already issued was altered to meet this change; and the tobacco protected was insured as the property of the plaintiffs, or by them “held in trust or on commission, or sold but not delivered.” At the time this change in the business of the complainants was made, Wilson notified them that by reason of the fact that the tobacco.to be insured would belong to various persons, and be constantly shifting in amount, and besides, under the custom ot that locality, would be largely mortgaged to various persons, it would be unnecessary io mention such mortgages in talcing out insurance in insurance companies represented by him, and that the description of complainants’ title as above set forth would prevent such policies from being avoided by the existence of incumbrances on the tobacco insured, in contravention of the clause in the policies prohibiting incumbrances upon personal property without the consent of the insurance companies. Wilson stated that he had been advised to make this agreement by special agents of the companies which he represented, and whom lie liad consulted on that point. This statement was also made to Mark W. Mpnroe, president of the State Bank of Quincy, who held some of the mortgages above mentioned, and who made inquiry of Wilson because lie liad frequently to rely upon policies of insurance taken out on tobacco in the hands of plaintiffs, as security for the contracts made in his business. Another policy, for $5,009, was issued by Wilson, pursuant to this agreement, and contained ilie same description of the title of complainants as above set forth. This was done on the 18th of October. 1892. This policy was renewed from time to time, it being reduced to the sum of $2,500; and always, in renewing the policy, the complainants relied on the special stipulations of Wilson as above described. Pursuant to the same agreement, Wilson made no inquiries as to mortgages cm the tobacco so insured; but lie knew that much, if not all, of the tobacco in said warehouse was mortgaged, and had this in mind when the policies of insurance, including the policy in suit, were issued. Defendants specially aver that the insurance was granted upon the property incumbered by the mortgage or mortgages, and not for insurance upon unincumbered property. This course of business continued until the 16th day of September, 1893, when tile tobacco hold by them as warehousemen, and also that owned by complainants, was destroyed by lire. The bill alleges that the total value of the property was §12,133.80. The defendant, immediately after the destruction of the property, sent its adjuster to Quincy, Fla., to ascertain and adjust the loss; and therea/ver defendant, through its agent, asserted to complainants that it was not liable upon the policy, because of the existence of the mortgage aforesaid, and, on demaud, refuse.d to pay the amount of the loss, because, as it insisted, the existence of the mortgage had avoided tlie policy. Tile amount due, the bill alleges, is the face value of the policy, to wit, $2,500. The prayers of the hill are that the court will reform the policy so that it will truly set forth the contract of insurance made between the complainants and defendant, by inserting therein a recognition of the mortgage upon the property as hereinbefore stated, and the right of complainant to have and permit mortgages thereon without violating the policy, and that ilie defendants he decreed to pay complainants the sum lost by them as aforesaid, together with 30 per cent, attorney’s fees, as allowed by the statute law of Florida. A copy of the policy is annexed, and it contains a provision to the effect that the same should be avoided if there was a mortgage on the property, or auy portion of same, covered by the existing policy, unless a memorandum of such mortgage was indorsed in writing upon tiie said policy. The defendant demurred to the hill upon the ground that the complainants have a complete and adequate remedy at law, and, further, that it appears in and by the allegations of the bill of complaint, and the exhibits attached thereto and made a part thereof, t.lia.1 one of the terms and conditions of said policy was that the same should be void if there was any mortgage upon ihe property covered by the said policy, unless a memorandum of said mortgage was indorsed upon such policy, and it is not shown that any such notice or memorandum was indorsed thereon. Subject io the demurrer, an answer was tiled, in which the defendant admitted that Wilson was its agent, and also admitted that there was a mortgage 'upon the property insured, at the time ii. was insured, and that tills mortgage continued up to the time of the alleged destruction of Hie property by fire. It admits the allegation in complainants’ bill that Wilson was advised of the existence of this mortgage at the time he issued the policy of insurance, and that in all the policies issued by Wilson after the 18th day of October, 1892. the title of the property insured was described as alleged in complainants' bill. There are other matters set out in the answer, but the above statement Is sufficient for tbe decision of the questions submitted to this court</p> <p>The court overruled the demurrer, and, on the hearing, rendered a decree in favor of the complainants, granting the relief prayed for in the bill, and particularly decreeing “that the policy set forth in the bill be, and is hereby, reformed so as to recognize therein the rights of the owners of the property insured thereby to incumber, during the existence of said insurance, the said property by mortgages, without notice to the defendant or its agents, and without indorsement upon said policy. And, considering the said policy as so reformed, it is further ordered, adjudged, and decreed that the defendant is indebted to the complainants, for the loss sustained by them and insured by said policy, in the sum of $2,865.49, principal and interest, and that they do have and recover of and from the said defendant the said sum, together with the sum of $137.80 costs, and do have execution therefor.” Thereupon the defendant prayed for and was allowed an appeal. Several assignments of error were made, but the appellant, for the purposes of this-appeal, relies upon two grounds only: First. That the court erred in refusing to sustain the demurrer for the reason that the complainants had an adequate remedy at law. Second. Because the policy contains this clause: “It is a part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that the assured shall at all times maintain a total of insurance on the property insured by this policy of not less than eighty per cent, of the total cash value thereof (as covered under the several items of this policy), and that, failing so to do, the assured shall become co-insurers to the extent of the deficiency, and in that event shall bear their proportion of any loss occurring under this policy.” This clause required the assured to take out policies to an amount equal to 80 per cent, of the value of all tobacco embraced within the description; that is, 80 per cent, of all tobacco in the warehouse, “their own, or held by them in trust or on commission,” and provided that if they did not do so they should become co-insurers to the extent of the deficiency, and in that event should bear their proportion of any loss. Under this clause, in estimating the extent of appellant’s liability under the policy, the defendant insists that we must start upon the basis of insurance, to the extent of such 80 per cent. The defendant insists that the total value of the tobacco in the warehouse of the insured, owned or held by them in trust or on commission, or sold but not delivered, at the time of the fire, was $20,000. The insurance, taking into account the amount carried by the insured, was $16,000. It is alleged in the bill that the total loss and damage was $11,933.80. ’ The defendant insists that in any event it is only liable for =/32 tbe amount, with interest from 60 days after the proof of loss was filed with it, or $1,861.65, with such interest; the decree having been rendered against it for the full amount of the policy, or $2,500, with interest</p>

The case as stated in tlie appellants’ brief is in the main adopted, and is as follows: The appellee, on January 20, 1892, filed an original bill, alleging that on the 15th day of August, 1887, tlie Mobile Street-Railway Company, a corporation owning and operating a street railway in tlie city of Mobile, in the state of Alabama, executed, issued, and put into circulation 600 coupon bonds, aggregating 8500,000, and executed and delivered to complainant, as trustee, a deed of…

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

<p>J. Practice — Instructions to Jury.</p> <p>A party cannot, in requesting a direction of a verdict in his favor, require the court to pass upon specific questions of fact raised upon the trial, and thereby, in effect, to make special findings of fact.</p> <p>2. Assignments for Creditors — Rights of Trustee — Law of Texas.</p> <p>In an action brought by the trustee in a deed of trust for the benefit of creditors, executed in Texas, against an attaching creditor, for the conversion of the property conveyed by such deed of trust, an instruction that if, before the attachment, any creditor, without notice of any fraud by the assignors, had accepted the deed of trust, the trustee was entitled to recover the whole value of the property converted, is not open to any objection or complaint by the trustee.</p>

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

<p>On October 14, 1889, the defendant R. H. Ellison executed a deed of assignment of all his real and personal property for the benefit of his creditors under the insolvency law's of Ohio to his co-defendants, W. A. Blair, W. H. Pownell, and T. J. Shelton, who immediately filed the same in the probate court of Adams county, a court of competent jurisdiction, and qualified and assumed the trust. Prior to this date, Ellison had been for many years engaged in the hanking business in Manchester. Ohio, on his individual account. In the spring of 1889, Ellison and his co-defendant Shelton formed a partnership, under the name of Ellison & Shelton, to trade in tobacco, and at the date of the assignment this firm w'as indebted to the complainant upon tw'o promissory notes, aggregating $7,000, and not then due.</p> <p>Within a few days after the filing of the deed of assignment, which was caused by difficulties in Ellison’s banking business, a composition was agreed upon between him and his individual creditors, and thereafter an order was made by tbe Adams county probate court finding that Ellison had settled with all his creditors, and directing his assignees to reconvey his property to him. Afterwards, in pursuance of this composition agreement, on October 28, 1889, Ellison executed to his co-defendants, Blair, Pownell, and Shelton, a mortgage upon all his property in trust .for'the benefit of his creditors, and providing for payments of claims of his individual creditors in installments at given dates. This mortgage gave specific power of sale to meet these payments. A copy of the order of the probate court setting aside the assignment was sent by Ellison’s agent to the complainant,' and was received November 4, 1889. The letter accompanying the copy of the order stated that Ellison was again in the banking business, and solicited a continuance of former relations between the two hanks, for the complainant had been a correspondent of Ellison’s bank prior to his failure. This relation was continued after his failure and resumption of business.</p> <p>About this same time the defendant Shelton made from his individual means a partial payment upon the indebtedness of Ellison & Shelton to the complainant, and turned over to it, as security for the residue of the claim, tobacco belonging to Ellison & Shelton, which was then supposed to be much more than sufficient in value to protect the claim. The market price, however, of tobacco declined, and the quality of this tobacco deteriorated; so that, when it was all sold a considerable balance was left due the complainant. Renewal notes were given from time to time by the firm of Ellison & Shelton for the sum due the complainant, the last of these notes having been given in January, 1891, and being signed not only in the firm name, but with the na.mes of the persons who composed the firm.</p> <p>On September 1(5, 1891, the original bill was filed in this cause, setting forth the making of the assignment and the subsequent execution of the trust mortgage, and seeking to set aside the same as in fraud of complainant’s rights, and for general relief. On October 19, 1891, the complainant in this suit filed an action at law in this court upon the notes of Ellison & Shelton held by it. On November 19, 1891, David Sinton bought from the defendant R. H. Ellison and his trustees a large part of the real estate of Ellison covered by the trust mortgage, and paid the consideration to the trustees. On December 3, 1891, conplainant recovered judgment in its action at lav upon the notes given by Ellison & Shelton, and issued execution, which was levied in part upon the lands conveyed to Sinton. On January 14, 1892, complainant filed a supplemental hill in this action, making David Sinton a party thereto, and alleging its judgment at law and execution, and that the sale i.o Sinton was in fraud of its rights, and seeking to enforce the priority of its .execution. Sinton has filed a cross bill, seeking to quiet his title against complainant and all other parties.</p>

<p>Í. District Attorneys — Allowance op Expenses — Telegrams.</p> <p>When the emoluments of the district attorney’s office are less than 86,000 per annum, and he has never received from the government the necessary expenses hereinafter mentioned, he is entitled to be reimbursed for the expenses, actually paid hy him from his own funds, of the ordinary and necessary telegraphic communications relating to criminal business, which are a part of the necessary expenses of his office.</p> <p>2. Same — Clerk Hire. j</p> <p>He is entitled to he allowed the amount of clerk hire actually paid by him for necessary clerical assistance at a time when an unusual amount of clerical labor was cast upon him by reason of a special effort on the part of the collector oC internal revenue to increase the government revenues for the district.</p> <p>8. Same — Printing and Stationery.</p> <p>He is entitled to be reimbursed for sums actually paid by him for printing and stationery, constituting part of the necessary expenses of his office.</p>

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

<p>This was a bill in equity by Ernest J. Hatcber against tbe United Leasing Company and the United Mines Company to enforce a mechanic’s lien.</p>

<p>The plaintiff, a citizen of the state of Pennsylvania, claimed to recover of the defendant, a corporation of the state of Kew Jersey, the sum of $2,500, upon the following cause of action, as set forth, in her statement:</p> <p>The defendant was alleged to be a common carrier of goods and passengers over a railroad, and in the course of its business in operating said railroad it at the same time and in connection therewith carried on the business of a warehouseman as to goods carried over it. It was alleged to have received for hire and otherwise, as a warehouseman, at Plainfield, N. J., such goods of all persons which came into its hands, either for the purpose of transportation or of delivery after having been transported over the railroad to the said town of Plainfield. Tlie plaintiff testified that the defendant, through its agent, a connecting railroad at Philadelphia, sold her a ticket to Plainfield, which ticket was in the following terms:</p> <p>“Station stamped on hack to Plainfield, N. J., via P. & It. and G. It. R. of N. J. Pown 992. Philadelphia and Reading Railroad Company. Tills ticket, with coupons attached, entitles the holder to one first-class passage from station stamped on back to Plainfield, N. J. This ticket is void unless officially stamped and dated. In selling this ticket for passage over other lines, this company acts only as agent, and assumes no responsibility beyond its own road. Only 150 lbs. of baggage allowed each passenger. Company’s responsibility for baggage limited to ,81.00 per lb., unless special agreement be made. The coupons belonging to tills ticket will be void if detached.</p> <p>“G. G. Hancock, General Passenger Agent.</p> <p>“Issued by Philadelphia & Reading R. R. (Jo. on account of Central Railroad of New Jersey. One first-class passage Round Brook to Plainfield, subject to conditions of contract. This coupon is not good if detached. Plain-field, X. J.</p> <p>“Philadelphia A- Reading R. R. Go. One first-class passage station stamped on hack to Round Brook via ----. Subject to conditions of contract. This coupon is not good if detached. Plainfield, X. J.”</p> <p>Plaintiff further alleged that her trank, containing a lot of valuable articles. was accepted as baggage, and a check given therefor. Upon arrival at Plainfield on July 12, 1895, the plaintiff informed the baggage agent that she would send for the trunk the next morning. The trunk and its contents were thereupon placed hi defendant's warehouse, but upon a presentation of the check the following day the trunk could not be found, and defendant refused to deliver it to ber upon demand. It was averred that through gross negligence and carelessness on the part: of defendant’s employes the trunk had been delivered to a stranger, on which account plaintiff claimed to recover the value of its contents, with damages for mental worry and inconvenience.</p>

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

<p>In Error to the Circuit Court of the United States for the Northern District of California.</p> <p>This was an action of ejectment, brought by the Altoona Quicksilver Mining Company against the Integral Quicksilver Mining Company, to recover a certain ditch and the water rights appurtenant thereto. In the court below, there was a verdict for plaintiff, and, to review the judgment entered thereon, the defendant sued out this writ of error.</p>

<p>In Error to the Circuit Court of the United States for the District of Montana.</p> <p>This action was originally brought in one of the courts of the state of Montana, to recover a judgment for damages, and also an injunction restraining the defendant to the suit from continuing the acts complained of. The defendant, being a foreign corporation, procured the transfer of the suit from the state court to the United States circuit court for the district of Montana, and in that court the plaintiff recast his pleadings so as to conform to the rules of practice prevailing in the federal courts. In his complaint there filed, and upon which the case was tried in the court below, the plaintiff alleged ills ownership of certain described agricultural land occupied by himself and family as a homestead, and which he cultivated and farmed; that through his tract of land flows a stream of water called “Silver Greek,” and that the plaintiff acquired, and ever since the year 1885 has held, the rigid to use 100 inches, statutory measurement, of the waters of that creek, for the purpose of irrigating his land, which, without such irrigation, would be, to a largo extent, worthless; that the right so acquired and held by the plaintiff in and to the waters of Silver creek were to such waters in their natural and pure condition; that the defendant company is engaged in the business of quartz mining; that its mill is situated on Silver creek, about 10 miles above the land of the plaintiff, and that its ores are crushed in the mill by stamps through the use of water; and that the waters used by the company in its crushing process are the waters of Silver creek; and that, in and about the crushing of its ores, tlie defendant company has, for three or four years last past, and yet is, using the waters of Silver creek, tailing them from the stream in their pure and natural condition, and returning them again to the stream at points immediately below the mill; and that when so returned to the channel of the creek, after passing through the mill, the waters are charged and laden with sediment and tailings; and (hat the sediment and tailings so discharged into the creek, by reason of the carelessness and negligence of the company in failing to properly crib and settle the same, and of tile defectivo appliances used by the company therefor, are carried down the stream, and thereby to and upon the land of the plaintiff; and that the water of the creek, when it reaches the land of the plaintiff, by reason of being charged with débris, is wholly unfit for irrigating purposes," and, when, spread upon the land of the plaintiff, the sediment is deposited, and has been so deposited during the time specified, in many places to a depth of two feet, covering the plaintiff's meadow land, destroying the natural grasses, rendering the same worthless and unproductive, and filling the plaintiff’s, irrigating ditches, and destroying their usefulness; and that the rights of the plaintiff to the waters of Silver creek were acquired many years prior to any uso of the waters or right to the use of the waters of that creek by the defendant company; and that, by reason of the ads alleged, the plaintiff has suffered damages during the years 1889, 1890, and in 1892, up to the commencement of the suit, to his crops and his land, to the extent of $500 a year. And, by way of supplemental complaint, the plaintiff alleged that he has been further damaged by the continuation of the alleged illegal acts of the defendant company down to and including the month of September, 1892, in the further sum of S2,500. The answer of the defendant company put in issue all of the facts so alleged by the plaintiff, except the fact that the defendant company used the waters of Silver creek in its quartz mill, and, in that connection, avers that at various points on its own premises along Silver creek, and above the land described in the complaint of the plaintiff, the defendant company has erected a series of dams and reservoirs, whereby the tailings, sand, etc., from its quartz mill are held back and impounded so that the waters of Silver creek, when they finally leave the premises of the defendant company, though somewhat discolored by use by the defendant in its quartz mill, are reasonably fit for the irrigation of agricultural crops, and that the waters are not sufficiently charged with sand or tailings from the mill to materially injure the meadow or land of the plaintiff when used thereon for irrigation. The answer further avers that at all times since the plaintiff has had any right to the use of the waters of Silver creek, if such right he has, the waters of that stream have been used for mining purposes at points above his land, and have at all times since plaintiff had any right thereto carried down to his land more or less sand and sediment resulting from their use for mining purposes. The answer further avers that during the month of June, 1892, a cloud-burst occurred near the head of Silver creek, causing an extraordinary and unprecedented flood therein, and that by reason thereof, and by reason of an unusual and extraordinary rainfall which prevailed at or about that time, the dams and reservoirs of the defendant company were, without the fault or neglect of the defendant, partially washed out, whereby a quantity of the sand and tailings from the defendant’s mill, together with large quantities of tailings from placer mining operations carried on in the gulch through which Silver creek flows, were washed down the stream; that the gulch of Silver creek, for several miles above the land described in the plaintiff’s complaint, was placer mining ground, and had been mined by divers placer miners, none of whom were connected with the defendant company, and that the tailings from such placer mining operations were deposited in and along the channel of the stream at points above the premises claimed by the plaintiff; that large quantities of such tailings, together with some of the sand, gravel, and tailings from the defendant’s mill, were deposited and lodged on the premises described in the complaint by the flood mentioned; and, on its information and belief, defendant alleges that this, and none other, constitutes the trespass and the wrongs and grievances complained of by the plaintiff. The defendant company, by its answer, set up the further defense that any cause of action which the plaintiff has or claims accruing prior to the 16th day of May, 1890, is barred by the provisions of section 42 of chapter 3 of the Code of Civil Procedure of the State of Montana.</p> <p>The court below instructed the jury, among other things, that, in order for the plaintiff to recover, it was incumbent upon him to establish, by a clear preponderance of proof, that between the 16th day of May, 1890, and the 30th day of September, 1892, his premises were damaged by sand, débris, or tailings from defendant’s quartz mill, exclusive of the amount of such tailings, sand, and débris as was deposited thereon by the flood of June, 1892. Such damage as occurred to the plaintiff prior to May 16, 1890, the jury was told, was barred by the statute of limitations of Montana; and for such damage as was caused by the extraordinary flood of June, 1892, the court instructed the jury the defendant company was not responsible. Of this the plaintiff in error does not complain; but it does complain of the refusal of the court to give these instructions to the jury, which it requested: “(1) The plaintiff claims that, at the date of his appropriation of the waters of Silver creek, they were in their natural and pure condition. If you should find from the evidence in this case that such was the fact, this would not confer upon the plaintiff the right to have such waters always remain in such natural and pure condition. His right to the use of such waters was limited by the use for which he appropriated it. According to the allegations of his complaint, this appropriation was for the purpose of irrigating the premises mentioned and described in the complaint, and it therefore follows that persons having occasion to use the waters of Silver creek above him for mining, milling, irrigating, or any other legitimate purpose may do so even though, as to plaintiff, they may be subsequent appropriators, providing they do not materially deteriorate the waters of said stream, so as to render them unfit for the purposes for which the plaintiff or his predecessors in interest appropriated them, to wit, for the purpose of irrigating said premises. If, therefore, you should find from the evidence in this case that the defendant, after using the waters of said Silver creek in its quartz mill, by means of. its dams and reservoirs built for that purpose, impounded its tailings so that the waters of said stream, when they finally left defendant’s promises, wore reasonably fit for irrigating plaintiff’s premises, and were not materially unfit for such purposes, then the plaintiff has no cause of action, and your verdict will be for the defendant. (2) The court further instructs the jury that while the law thus permits the use of water by a subsequent appropriator, and will not interfere with his use thereof at the instance of a prior appropriator so long as, by such use, the waters of the stream aro not materially impaired for the usos for which the prior appropriator took them up, it fixes no standard by which to determine the degree or quantity or impairment which will entitle him to recover damages therefor. It wisely leaves the question as to what deterioration in quality will he an invasion of the right s of the first appropriator to depend on the special circumstances of each case. In other words, it is a question of fact for the jury whether the use of the waters of Silver creek by the defendant in its quartz mill, and after the same has been settled in the dams and reservoirs of the defendant as shown by the testimony, are so impaired in quality as to be unsuitable for the irrigation of plaintiff’s promises, or materially impaired for such purposes, if you should find from the evidence that the waters of said Silver creek, after so being used by the defendant, wore not materially impaired for such purposes, your verdict should be for the defendant.” The plaintiff in error excepted to the action of the court below in refusing to give these instructions. It also excepted to l he action of the court in giving, without'qualification, the following instruction: “The questions you are called upon to determine are: First. Was the irrigating ditch and land of plaintiff, and the grass grown thereon, damaged on account of any tailings from defendant’s mill deposited in the waters flowing down Silver creek, conveyed to the said irrigating ditch and to the said land? Was this done on account of any negligence of defendant? If the defendant dumped its tailings into said Silver creek, and allowed them to be carried down said creek, and to be deposited on the land of plaintiff, without any attempt to restrain them, it does not appear that it had any right to do so. If it attempted and undertook to crib and impound ¡horn, then it was required by law to exercise that care and prudence which a man of ordinary prudence would exercise in cribbing and impounding' tailings so as to prevent them from flowing upon his own land. * *” The court below also gave to the jury this instruction, among others: “The jury are instructed that a party suing for damages to his premises must establish, by a clear preponderance of the evidence, that his premises were damaged by the wrongful acts of the defendant, and must furnish, by his testimony, evidence showing, or tending to show, that the premises owned or occupied by him were impaired in value, and the extent thereof, before lie is entitled to recover more than nominal damages. » * *” The jure found in favor of the right of the plaintiff, and assessed his damages at ¡S5902.</p>

<p>1. Patents — Invention—Carrying Forward Previous Invention — New Results.</p> <p>The rule that a mere carrying forward or more extended application of the original invention, so as to obtain higher finish, greater beauty, and increased commercial value, is not patentable invention, has no application where the improvement, by reason of its adaptation to new uses and hitherto undeveloped possibilities, virtually performs new functions, and accomplishes new results. If such results are produced by novel means, there is a presumption of patentable invention.</p> <p>2. Same — Stencil Sheets.</p> <p>The Brodrick patent, No. 877,706, for prepared sheets for stencils, consisting of yoshino or other similar porous paper coated with a wax so soft that the impression made thereon by the stylus or typewriting machine does not materially disintegrate the fibers, but expresses the wax out of the-sheet in the form of the impressing letter, shows patentable invention, and was not anticipated.</p> <p>3. Same — Proof of Title — Waiver of Objection.</p> <p>The technical objection that complainant has failed to prove title will not be allowed to prevent a disposition of the case on the merits, when the question is not raised until near the close of the final hearing.</p>

<p>1. Patents — Construction of Claims.</p> <p>Tbe words “detachable clip,” as used in the claims of a patent for a railway torpedo, held to mean a removable clip, or one which is connected with, but not positively attached to, the torpedo shell, as by riveting or soldering.</p> <p>2. Same— Infringement — Railway Torpedoes.</p> <p>The Beckwith patent, No. 409,902, for a railway torpedo, construed, and held valid, and infringed as to claims 1, 2, and 5. .</p>

This was a suit by the New York Paper-Bag Machine & Manufacturing Company against the Western Paper-Bag Company for alleged infringement of letters patent No. 242,661, issued June 7,1881, to Leinbach, Wolle & Brunner. The case was heard on motion for a preliminary injunction.

This was a suit in equity by the Western Mineral Wool & Insulating Fibre Company against the Globe Mineral Wool Company for alleged infringement of letters patent Nos. 447,360 and 452,733, issued to Charles EL Bockwell on March 3, 1891, and May 19, 1891, respectively, for process of manufacturing mineral wool.

<p>1. Patents — Infringement—Oar Axi,e Box.</p> <p>The Bemis patent, No. 239,702, for a car axle box, was not anticipated, and is infringed by a device made in substantial accordance with the Brill patent, No. 418,439, for a dust shield for car axle boxes, which simply adds to the device of the patent an “abutment,” thus changing its form, but leaving it still adapted to perform the office of the straight incline shown in the Bemis patent.</p> <p>2. Same.</p> <p>The Bemis patent, No. 330,372, for a car wheel and axle box, in which the invention consists substantially in having the annular flange of the wheel detachably secured to the wheel, instead of cast integral with it, held not infringed by a wheel in which, though it was possible to remove the flange and substitute another, the change would amount substantially to a reconstruction.</p>

<p>This was a suit in equity by Charles Heap against Henry S. Greene and others for alleged infringement of a patent for a machine for napping cloth. Final hearing.</p>

<p>Patents — Preliminary Injunction.</p> <p>A defendant, who is using articles which infringe plaintiff’s patent, and which have been purchased from a manufacturer, against whom the validity of the patent and the. infringing character of the articles have been adjudged by the court of last resort, cannot avoid a preliminary injunction against the use thereof by showing that it will take time and trouble to find and remove from use the articles in question.</p>

<p>This was a suit in equity by Charles Heap against the Tremont & Suffolk Mills for alleged infringement of a patent for a machine for napping cloth. On final hearing.</p>

This was a suit in equity by Winfield W. Mullen and others against the King Drill Company and others for alleged infringement of a patent.

This was a libel by William H. O’Connell, master of the steamship Ravensdale, against 1,002 bales of Sisal hemp, claimed by Thebaud Bros., to enforce payment of freight. The cause was heard on exceptions to the amended libel, and on motion to strike out. For report of the decision on the merits, see 75 Fed. 410.

This was a libel in rem by William H. O’Connell, master of tbe steamship Ravensdale, against 1,002 bales of sisal bemp, claimed by Tbebaud Bros., to enforce payment of freight. An opinion was heretofore filed on exceptions to the libel and motion to strike out. 75 Fed. 408. The cause has now been heard on the merits.

This was a libel in rein by Thebaud Bros, against the steamship Eavensdale to recover damages for alleged conversion of cargo by the master. For cases in which the master libeled the cargo to enforce a lien for charter hire, see 75 Fed. 408, 410.

<p>Appeal from the Circuit Court of (he United States for the Eastern District of Louisiana.</p> <p>Woodward, Wight & Company, Limited, brought this suit against the steamboat Stella Wilds to recover the sum of S56Ü.00, rent of 1,360 life preservers. They allege: That the Stella Wilds belonged to the Comeaux - Aiken Packet Company, which was carrying on the business of common carrier, and needed, at the least, 1,500 life preservers to complete its necessary equipment, under the laws of the United States, to carry a certain number of passengers. That on the 27tli of May, 1893, libelants agreed with the Oomeaux-Aiken Packet Company to provide and furnish 3,000 life preservers, to be delivered to and used upon the steamboats belonging to (lie Comea,nx-Aiken Packet Company, the same to be rented at the rate of 37% cents for each life preserver, which were to be returned to libel-ants: provided that, if the life preservers should be used for any time less than three months, the full sum of 37% cents for each should be due and payable to libelants; reserving, however, to the Oomeaux-Aiken Packet Company the right to purchase them by paying libelants for the same at the rate of 75 cents for each life preserver. That, in pursuance of said agreement, libelants delivered to the steamboat Stella Wilds a large number of life preservers, to wit, on June 10, 1893, 500 life preservers; June 17, J803, 860 life preservers; making in all 1,360 life preservers, to he used on the Stella Wilds as part of her equipment. That the same wore received by ihe master and officers of the steamboat for said purposes, and the said Oomeaux-Aiken Packet Company became bound to pay libelants the sum of $510 as rent for the same; and. by the force and effect of the statutes of the state of Louisiana, the said sum of money, together with the sum of $50.60 expended and paid out by libelants for carrying said life preservers to and from said steamboat, became and was, and still is, a lien upon the Stella Wilds. The defense is that the libelants have no cause of action or claim against the Stella Wilds; that said steamboat was formerly the property of the Comeaux-Aikon Packet Company, a corporation created under the laws of Louisiana; that said Oomeaux-Aiken Packet Company had been dissolved, and proceedings for the liquidation thereof lmd been taken, as provided by the laws of Louisiana, in the civil district court for the parish of Orleans, under (he number 40,081 of the docket of said civil district court, in the suit entitled M. D. Lagan et al. v. The Oomeaux-Aiken Packet Company; that under the proceedings had in said suit, and by the order of the civil district court, the Stella Wilds was sold at public auction, and respondent purchased the said Stella Wilds at the said sale, and became the owner, under and by virtue of the adjudication so made by the orders of the civil district court; that if libelants have any lien of any kind, — which is not admitted, — this being the home port of the Stella Wilds, such lien can only be claimed by virtue of some laws of the state of Louisiana, and that all liens given by or under the laws of Louisiana have been canceled and extinguished by the sale made as aforesaid by the honorable civil district court for the parish of Orleans, liens in such cases being referred to the proceeds of sale, the purchaser at said sale taking the.title free from liens of any kind; that only 860 life preservers, altogether, were ever furnished to the Stella Wilds. The libelants offered evidence showing that they had delivered to the steamboat Stella Wilds 1,360 life preservers for use aboard said steamboat, for which they were entitled to charge, as per contract with the owners, the sum of 37% cents for each and every of the same, and that for drayage of life preservers to and from the vessel the steamboat was Indebted in the sum of $50.60, and otherwise tending to establish the allegations of the libel. The claimant offered evidence showing that after the supplies were furnished by the libelants, and before the filing of the libel-in this case, at a meeting of the stockholders of the Comeaux-Aiken Packet Company, owner of the steamboat Stella Wilds, held on the 17th day of August, 1893, in pursuance of a resolution of the board of directors, the following resolutions were passed:</p> <p>“Whereas, the condition of the affairs of the Comeaux-Aiken Packet Company makes it necessary, in the interest of its creditors and stockholders, that it should cease business and go into liquidation: Be it resolved, that it is .to the interest of the shareholders and creditors that this company shall’be dissolved, liquidated, and wound up, and that J. Vincent Le Blanc and W. J. Comeaux be chosen as such liquidators, with full power to sell and dispose of all the property and assets of this company, and take such other steps as may be necessary, proper, or convenient to effect such purpose, and fully settle and wind up this company, and distribute the proceeds of its assets. Resolved, further, that in order to secure a speedy and economical liquidation, and avoid all legal complications, it is the opinion of the stockholders that the commissioner this day elected shall be confirmed by the court, and that such steps be taken by the present officers of the company, or the aforesaid commissioner, as may be necessary, proper, or useful to effect said purposes.”</p> <p>Thereafter, on the 13th of September, 1893, the following petition was filed in the civil district court for the parish of Orleans:</p> <p>“The petition of M. D. Lagan, L. Ruch & Son, and R. L. Robertson, of this city, respectfully shows that they are creditors, for more than $100, of the Comeaux-Aiken Packet Company, a corporation under the laws of this state, domiciled in this city; that said corporation has suspended payment, with a view of going into liquidation; .that the stockholders have met, and passed a resolution to liquidate and wind up the affairs of the company, and have appointed J. V. Le Blanc and W. J. Comeaux as liquidating commissioners, with full power to liquidate and wind up said company; that it is the wish of the stockholders that the liquidation should be made through said parties as commissioners. Petitioners further show that it is to the interest of all of the creditors and stockholders that a fair and economical liquidation be had, and, to that end, that the court confirm the appointment of the aforesaid commissioners, and appoint the same persons commissioners of liquidation and receivers of said company; such appointment and confirmation being within the equity powers of the court Wherefore petitioners pray that the Comeaux-Aiken Packet Company be cited to appear and answer this petition; that this honorable court confirm the appointment of J. V. Le Blanc and W. J. Comeaux as liquidating commissioners of said company, and appoint said J. V. Le Blanc and W. J. Comeaux as liquidating commissioners and receivers of said company, with authority as such to liquidate and wind up the said company, sell and dispose of its assets, and do and perform all other acts and take such other steps as may be necessary, proper, or convenient to effect such purpose. and fully settle and wind up said company, and distribute the proceeds of its assets; and petitioners further pray that an inventory he taken by A. J. Yillere, notary public, and for all such other and further orders and relief as may be necessary or proper.”</p> <p>That upon the same day the following order was made:</p> <p>“Considering the foregoing petition, and the answer of the ComeauxAiken Packet Company, it is ordered that the affairs of said company be proceeded with by liquidation; that J. V. Be Blanc and W. J. Comeaux be confirmed as liquidating commissioners, and be, and they are hereby," appointed as liquidating commissioners, and confirmed as such, on taking oath as required by law. It is further ordered that an inventory be taken by A. X Yillere. notary public, and the bond be given by said commissioners to be fixed when the inventory is taken and filed. It is further ordered that a commission issue to the clerk of the district court of the parish of Jefferson to take an inventory of property in said parish.</p> <p>“New Orleans, September 13th, 1893.</p> <p>“[Signed] T. C. W. Ellis, Judge,</p> <p>“Sitting for lion. N. II. Itightor, Judge of Div. D, now absent on leave.”</p> <p>That on the 35th day of September, 1893, the following order was made:</p> <p>“Bet W. J. Comeaux and J. V. Be Blanc, liquidating commissioners and receivers of the Comeaux-Aiken Packet Company, be, and they are, authorized to run the steamer Stella Wilds in the trade in which she is at present engaged, and for that purpose incur such expense and make such disbursements as are necessary, rendering a full account thereof, in due course, to this court; and let the said steamer Stella Wilds be sold at public auction, to the highest bidder, after the usual advertisements, by Victor Manberet. civil sheriff of that parish.</p> <p>“New Orleans, Sept. 15, 1893.</p> <p>“[Signed] T. C. W. Ellis,</p> <p>“Judge of .this Court, Div. A, acting for the Hon. N. H. Itightor, Judge Div.</p> <p>I), now absent on leave.”</p> <p>The evidence offered by claimant further showed that thereafter, under tlie last above mentioned order, the sheriff of (he parish of Orleans, after advertisement for 30 days, offered for sale, sold and adjudicated tlie steamboat Stella Wilds to the claimant for the sum of $3,700. Tliero was no evidence showing that the sheriff ever seized or possessed the sa.id steamboat, and the fact appears to be that during all the time the proceedings and advertisement were pending the said steamboat was regularly and continuously run in her regular trade, for account of owner. The judge in the district court first decided in favor of the libelants for the full amount of their claim, $500.60, and thereafter, as the record shows, of his own motion, reconsidered his decree, and ordered a decree in favor of the claimant, dismissing the libel, with costs. The libelants appeal, assigning as error that the judgment and decree of the district court are against tlie law and the evidence, and that the court erred in refusing to decree libelants a lien upon said steamboat Stella. Wilds for the use and rent of the life preservers mentioned in the libel.</p>

<p>Libel by Relyea against the New Haven Rolling-Mill Company.</p>

This was a libel by John W. Whitman, master oí the selioonér Hattie A.' .Marsh, against Edward W. Vanderbilt, to recover demurrage at the rate of S50 per day for delay in discharging a cargo of lumber carried by the schooner for respondent, as her charterer. The district court dismissed the libel, and the libelant has appealed.

Appeals from tbe District Court of the United States for the District of Maine. These were libels growing out of a collision. The first was filed by Walter L.;: Davis and others, constituting the Portland Packing Company, against the steamship Louisburg (Horace W. Could, claimant), to recover for loss of cargo shipped by libelants on the schooner Valorous, and lost by reason of a collision between the two vessels.

<p>1. Shipping — General Average Bond — Salvage.</p> <p>When the owners of the cargo of a vessel, which has been stranded and rescued by the services of other vessels, give a bond to the owner of such vessel, covering “losses and expenses incurred or to be incurred, which ruay be a charge by way of general average or otherwise, and providing that claims for tug services or otherwise are subject to approval of an insurance company, or settled by arbitration to which they are a party for us,”,such owners are liable for their proportion of a sum which the owner of the vessel, upon a settlement approved by the insurance company, has paid to the owners of the rescuing vessels for their services.</p> <p>2. Same — Salvage.</p> <p>The fact that certain part owners of a vessel, which has been stranded, are also stockholders in a corporation which, by means of tugs and lighters owned and hired by it, renders salvage services to the stranded vessel, does not preclude such corporation from receiving compensation for its salvage service.</p> <p>3. Same.</p> <p>A four-masted schooner, laden with 1,309 tons of coal, was stranded, during a gale, in a dangerous and exposed position. The IC Towing Co., which , was called to her assistance, employed two ordinary tugs and several barges, lightered about 350 tons of coal, and pulled on the schooner, at every high tide, for 4y% days. It then sent a more powerful tug, which, on the seventh day, pulled the schooner off. The weather was fair during all this time. The K. Oo. paid $1,100 for assistance, and the services of the large tug, for the time enrployed, were worth $1,000 if employed simply in towing. Htld, that a compensation of $6,000, paid by the owners of the schooner to the K. Co., would not be disturbed at the request of the owners of the cargo, when called on to contribute.</p>

This was a libel in rem by Morgan’s Louisiana & Texas Bailroad & Steamship Company against the steamship Alaska, her cargo, etc., to recover compensation for salvage services.

Appeals from (lie Circuit Court of the United Slates for the District of Kentucky. These are 19 appeals from the same decree.

<p>1. Jurisdiction op Federal Courts — Citizenship op Trustees.</p> <p>The federal court in Rhode Island has jurisdiction of a suit brought by a trustee, a citizen of New York, whose cestui que trust is a citizen of Rhode Island, against a citizen of Rhode Island, where the controversy relates to the possession or title to lands in that state, and does not affeet the relation of the trustee with his cestui que trust.</p> <p>2. 'Equity Jurisdiction.</p> <p>A bill alleged that complainant ha d granted to defendant a xiarol license to remove part of a fence separating complainant’s premises from defendant’s blacksmith’s shoi>, and to exercise certain privileges upon complainant’s premises, and that defendant, in return, gave a penal bond conditioned for the discontinuance of the exercise of such privileges and the restoration of said fence, on 60 days’ notice of the revocation of said license; that thereafter complainant accordingly gave notice of revocation, whereupon defendant duly restored the fence, and ceased for a time to exercise the privileges mentioned; but that thereafter the fence was again removed by persons unknown, who were instigated thereto by defendant, and defendant then resumed the exercise of the privileges in defiance of complainant's commands. The bill then charged that the restoration of the fence was a mere sham, without any intention on the part of defendant to really carry into effect the agreement to discontinue the exercise of the said privileges when notified, and alleged damages, and prayed an injunction. Held, that the conditions of the bond had been fully performed and ended by the restoration of the fence and abandonment of the said privileges; that the contract was not a perpetually existing one; and hence that there was no ground of equitable jurisdiction.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Iowa.</p> <p>This was an action at law by the Sioux National Bank of Sioux City against the Cudahy Packing Company to recover a sum of money. A jury was waived, and a trial had before a referee appointed by the court, which resulted in a judgment for plaintiff. 63 Fed. 805. • In this court the judgment was heretofore affirmed (16 C. C. A. 410, 69 Fed. 782), but a rehearing was granted.</p>

This was a suit in equity by the president and trustees of Bowdoiii College and others, against James P. Merritt and others to quiet title to certain real estate. For previous proceedings, see Hi Fed. 55; 59 Fed. 6; 68 Fed. 213.

<p>1. California Tide Lands — Title of State — Mexican Grants.'</p> <p>In California, tlie title to tide lands between high and low water mark Is in the state, except in cases where grants may have been made by the Mexican government before the territory was acquired by the United " States, expressly covering tide lands; in which event the United States, under the treaty of Guadalupe Hidalgo, would be bound to protect all private rights to such lands as against the state.</p> <p>8. Boundaries — Lands Bordering on Sea — Tide Lands.</p> <p>A grant by the Mexican government in California of land bordering “to the west on the sea” included only the lands above high-water mark, and did not cover the tide lands. A boundary on the “sea” means the same thing as on the “seashore.” More v. Massini, 37 Cal. 432; U. S. v. Pacheco, 2 Wall. 587, followed.</p> <p>8'.' Same — Government Surveys — Meander Lines.</p> <p>The meander lines run by the United States surveyors along the margin of the sea in surveying a Mexican grant, like meander lines upon navigable waters generally, are for the purpose of defining the sinuosities of the bank and determining the quantity of land in the grant, and not for the purpose of limiting the boundary, the latter being defined in all cases by the waters themselves. Railroad Co. v. Schurmeir, 7 Wall. 272, and Hardin v. Jordan, 11 Sup. Ct. 808, 838, 140 U. S. 371, followed.</p> <p>4. Tide Lands — Grant by State to County — Constitutional Law.</p> <p>The California act of February 27, 1893, declaring all the tide lands between high and low water mark, at the place known as “Pebble Beach,” in San Mateo county, to be public grounds, and granting the same to said county, in trust for the use of the public, is constitutional and valid. The words “Pebble Beach,” in this grant, were used merely as words of description, in subordination to the preceding words, “all the tide lands between the line of high and low tide."</p> <p>5. Easements by Prescription — Highways.</p> <p>To acquire a public right by prescription, the use by the public must be adverse, continuous, and exclusive. A mere tacit permission or license by the landowner will not suffice. Held, therefore, that the fact that a landowner for a long period of years permitted the residents of a neighboring village, and visitors thereto, to pass through his gate, and over his land, to an attractive beach on the seashore, created no prescriptive right to a public road through his land.</p> <p>6. Dedication, How Made.</p> <p>Two things are necessary to a dedication as distinguished from a pre- . scriptive right by long user: First, a dedication by the owner; and, second, an acceptance by the public. A dedication may be inferred from a long and uninterrupted user by the public with the knowledge and consent of the owner; but mere knowledge and nonaction or failure to assert one’s rights are not conclusive evidence of a dedication, for they may be rebutted, and the landowner is always allowed to show facts and circumstances to overcome the presumption. McKoy v. Hyde Park Village. 10 Sup. Ct. 512, 134 U. S. 84, followed.</p> <p>7. MUNICIl’AB OORI’ORATIONS — LlAIitTATY FOB ACTS OV OUTUCBBS.</p> <p>A county- is liable for trespasses or damage done to private property by its officers, in ilie exercise of iiowers conferred for the benefit of the locality and its inhabitants, such as those relating to the opening and keeping open of roads, as distinguished from powers relating to the administration of the general laws and the enforcement of the general policy of the state.</p> <p>8. Same — Tubsuass r.v Road SurmivisioN^RA'i’meATioN by County Board.</p> <p>The adoption or ratification by a board of county supervisors of acts of trespass committed by one of its members, who is also ex officio a road commissioner, claiming to act in his official capacity, renders the county liable, although such acts were not authorized, or ordered in advance.</p> <p>9. Same.</p> <p>Where a member of a county board of supervisors in California, who was also ex officio a, road commissioner, claiming to act in his official capacity, with the assistance of other citizens, repeatedly tore down a gate opening into private grounds, claiming that the road through such grounds was a public road by prescription or dedication, and thereafter the board of supervisors adopted a resolution declaring such road a public road, and caused it to be surveyed and recorded as such, held, that this was an adoption or ratification of said supervisor’s acts, and rendered the county liable for the trespasses committed by him.</p>

<p>1. Constitutional Law — Title of Act — Louisiana Constitution.</p> <p>It seems that the act of the legislature of Louisiana, No. 136 of 1894, entitled “An act to provide for the payment of the salaries and expenses of the public schools of the city of New Orleans,” the real purpose of which is to dispose of the surplus of the 1 per cent, tax authorized by the constitutional amendment of 1890, hy providing for tile payment to the New Orleans school board of certain sums accruing from such tax, and distributing the remainder among the holders of judgments against such hoard, is repugnant to article 29 of the constitution of Louisiana, providing that every law shall embrace but one object, and that object shall be expressed in its title.</p> <p>£. Same — Act of Louisiana No. 136 of 1894</p> <p>The act of the legislature of Louisiana, No. 36 of 1890, is made, by the joint resolution proposing the constitutional amendment of that year, a part of such amendment, and the amendment having been adopted, and Act No. 36 of 1890 having provided for the disposition of the surplus of the 1 per cent, tax authorized by the amendment, the legislative power to dispose of such surplus was thereby exhausted; and Act No. 136 of 1894, attempting to make a new disposition thereof, is unconstitutional and void. Fisher v. Board, 48 La. Ann. 1077, 20 South. 163, followed.</p>

The plaintiffs issued a will, of replevin against E. J. Lavino and Henry J. Lavino, trading as E. J. Lavino & Co., and L. Rubelli, citizens of the state of Pennsylvania, and J. C. Brown, master of the ship Inchulva, for 15 bales of wool, 1,350 bales of licorice root, 10 cases of opium, and 2 boxes of soap.

This was a suit in equity by John McMullen against Lee Hoffman to compel an accounting for profits made by the parties on a joint contract, under which they constructed a pipe line for the city of Portland.

<p>. Appeal from the Circuit Court of the United States for the Southern District of Georgia, Western Division.</p>

<p>Appeal from the Circuit Court of the 'United ¡States for the Western District of Michigan, Boutliern Division.</p> <p>The original bill was Hied by the Panoli Foundry & Machine Company, as a judgment: creditor of the Iiiekerson Roller-Mill Company, a corporation of the state of Michigan. The bill sought relief upon two distinct grounds: First, that there was an unpaid stock subscription made by the individual defendants, JB. O. and Charles Fox, which was subject to call by a court of equity at the Instance of a judgment creditor whose execution had been returned nulla, bona: second, that the individual defendants, the Messrs. Fox as directors and officers of the Iiiekerson Holler-Mill Company, had converted to their individual use equitable assets of the corporation, for the purpose of paying debts due from It to them, or debts due by it to others, upon which they were bound as sureties, and which conversion, it was alleged, was invalid as against complainant. There was a decree against the Messrs. Fox upon both grounds. In November, 1882, one S. B. Iiiekerson made application for a patent for certain improvements in roller mills. Pending this application he interested certain others therein; among them, O. E. Brown. The persons thus associated with Mr. Iiiekerson in the ownership of the proposed patent organized themselves into a coip'oi’ation, under the general law of the state of Michigan, known as the O. E. Brown Manufacturing Company. The articles of incorporation were recorded December 15, 1882, and, among other things, recited that the paid-up capital stock of the corporation was $100,000, divided into shares of $25 each; that the number of shares taken, owned, and fully paid up was as follows: S. B. Riekerson, 2,000; O. E. Brown, 1,600; S. W. Ousterliout, 200; and James L. Wheeler, 200. The corporation, it was recited, was established for the purpose of “manufacturing the S. B. Riekerson patent improved roller mill and other mill machinery, and furnishing and dealing in mill machinery, and such other property of every kind as shall be necessary for the purpose of said corporation.” On the 1st day of March, 1883, at a meeting of the stockholders of the said O. E. Brown Manufacturing Company, it was resolved that “the capital stock of this corporation be, and is hereby, increased from $100,000 to $150,000.” On the same day, at a stockholders’ meeting, the following .resolution was carried unanimously:</p> <p>“Moved by Mr. Riekerson, and supported by Mr. Ousterliout, that the treasurer be authorized to sell to Messrs. E. Crofton and Charles Pox the additional $50,000 stock, $25,000 each, — payment to be made as agreed, — for the sum of $25,000. Carried. Moved by Mr. Ousterliout that a ballot be cast for two directors. Carried. Messrs. E. Crofton and Charles Fox were elected.</p> <p>“[Signed] ° Charles Fox, Secretary.”</p> <p>On the same day the following agreement purports to have been entered into and signed:</p> <p>“Agreement made and entered into this 1st day of March, 1883, between S. B. Riekerson, of Grand Rapids, Mich., party of the first part, and O. E. Brown Manufacturing Company, of the same place, of the second part, witnesseth, in consideration of the stock now owned by the party of the first part in the O. E. Brown Manufacturing Company, the first party agrees that all inventions, improvements, or patents in any wise pertaining to the manufacturing of flour, or any machinery for the manufacturing of flour, shall be the property of, and belong to, the said O. E. Brown Manufacturing Company.</p> <p>• “S. B. Riekerson.</p> <p>“O. E. Brown Mfg. Co.,</p> <p>“O. E. Brown, President.”</p> <p>Following this increase in stock, and the authority given the treasurer to sell the same for $25,000 in money, Messrs. E. C. Fox and Charles Fox became the purchasers and holders of the entire increased stock, of the par value of $50,000, paying therefor to the treasurer of the company the sum of $25,000, which sum was accepted by the corporation as full payment for the said stock; and certificates were issued, representing that the stock was fully paid up, and liable to no other or further assessments. The original stock, of $100,000, was issued to Riekerson and his associates, in the proportion heretofore stated, as fully paid and nonassessable stock; the only consideration received therefor being the assignment by Riekerson of his rights in any patents, then or thereafter applied for, applicable to roller mills. Thus the corporation began its operations with no capital, save that invested in the Riekerson patents. The necessity for an increase of capital was, from the beginning, recognized; and negotiations were immediately commenced with the Messrs. Fox, looking to their taking a one-third interest in the venture. In the meantime some machines were made under contracts with other manufacturing establishments, and orders taken for those thus made, though no effort was made to commence manufacturing operations, for the want of a cash capital. When the Fox brothers finally concluded to enter upon the adventure and take a third interest, the purpose was consummated by increasing the stock to $150,000, and assigning to them the hew shares for $25,000 in money. This increase was authorized March 1, 1883; and on the same day the stock was assigned tó E. O. Fox and Charles Fox, — $25,000 to each, — upon a money payment to the corporation of $12,500 by each of them, and on the samé day each was made a member of the board of directors. In May, 1883, an account was opened with the Farrell Foundry & Machine Company, from whom were purchased large amounts of rolls used in the manufacture of the improved Riekerson roller mill. This account began May 5, 1883, and continued until the 16th of July, 3887, during which time rolls to the amount of $61,148.31 were purchased. From time to time payments were made thereon, or settlements by note or draft, so that in the summer of 1887 the total credits upon this account were $60,148.31, leaving a balance due on open account of $1,000. The judgment in favor of the Farrell Company was upon three items of indebtedness: A note dated March 31, 1887, for SI,Of>5; a note dated August 18, 1887, for $670, and $1,000, the balance due on open account as above shown. The bill alleges that tills judgment is a debt of the corporation, for which the Messrs. Fox are Hable; by reason of the fact that they have paid but 50 per cent, of the par value of the stock taken In the manner heretofore set out. With respect to the second ground of liability, the facts, as they appear to us upon the whole record, and necessary to be here stated, are these: The business of the Itickerson Holler-Mill Company proved unproiitable. The patents turned out to be practically worthless, and the cash capital utterly insufficient for the projected business. It was therefore resolved early in July, 1887, that the business of the corporation was unproiitable, and that it was to the interest of all parties concerned that the assets of the company should he disposed of. Shortly thereafter all of the tangible assets of the corporation, and all unfinished machines, and all material, were sold fo the John Hutchison Manufacturing Company for 4,000 shares of the stock of that company, the shares being of the nominal value of $25 each. Having thus disposed of its assets, excepting a few uncollected accounts, this stock was assigned and transferred to three of the directors, — S.W. Ousterhout, E. C. Fox, and Charles Fox, — on the 10th of October, 1887, to secure them in the indorsement of corporation paper upon which to raise money to discharge corporate obligations which had shortly before gone to protest. This stock was subsequently sold by these directors at public outcry, and bought in by themselves, for $1,000, and tlie proceeds applied to their reimbursement; they having theretofore paid off the $10,000 note, as indorsers for the Corporation. The remaining assets of the corporation, consisting of certain uncollected claims, partly in litigation, were transferred by the corporation in May, 1888. to Ousterhout, E. C. Fox, and Charles Fox, to be applied on the liability of the corporation to them by reason of their payment of Hu; note above, mentioned. At the date of the transfer of the John Hutchison Manufacturing Company stock to Ousterhout and the Fox brothers, they were already hound as indorsers upon corporation paper theretofore made, which had gone to protest. The new note of October, 1887, was made for the purpose of paying off this old liability, which, by protest, had become a fixed liability of these directors.</p>

This was a suit in equity by George H. Dunbar and others against the Eastern Elevating Company and others for alleged infringement of a patent for improvements in portable grain elevators. This action is founded upon reissued letters patent, No. 10,521, granted September 16, 1884, to Robert Dunbar, for improvements in portable elevators. Tbe application for the reissue was filed October 20, 1883. The original, No. 264,938, was dated September 26, 1SS2.

This was a suit in equity by Henry Q-. Thompson and others against-Charles E. Jennings and others for alleged infringement of letters patent Ho. 328,019, issued October 13, 1885, to them, as assignees of the inventor, Thaddeus Fowler. The circuit court held that the patent was valid, but that defendants had not infringed. See 66 Fed. 57, where the opinion of that court, by LA COMBE, Circuit Judge, is reported in full. The complainants have appealed.

<p>1. Patents — Reissues—Enlargement of Claims — Inadvertence.</p> <p>Wliere both the recitals and claims of a patent for an improvement in soda-water fountains clearly and unmistakably referred to the style oí apparatus having vertical sirup cans, and the claims mentioned only vertical cans, held that a subsequent reissue which included both vertical and horizontal cans was void for improper enlargement of the claims, where the same were thereby made to cover a new device invented and placed upon the market in the meantime by another, and that the testimony of the solicitor that in using the word “vertical,” in the original, he had in mind merely the form of apparatus in which the cans were inserted from above, as distinguished from that in which they were inserted from in front, by sliding in like a drawer, was not a sufficient showing of inadvertence, accideni, or mistake.</p> <p>2. Same — Application for Reissue — Laches. •</p> <p>Lapse of time is only one of the elements to be considered on an application for reissue, and the fact that such an application is made less than 10 months from the issuance of the original will not warrant the insertion of claims deliberately omitted, without inadvertence, from the original, and where adverse rights have intervened. Coon v. Wilson, 5 Sup. Ct. 537, 113 U. S. 268, applied.</p> <p>3. Same — Soda-Water Apparatus.</p> <p>Reissue No.. 11,313, to Park, as assignee of Herron (original No. 152,-754), for an improvement in soda-water apparatus, is void for unwarranted enlargement of the claims.</p>

Tins was ft suit in equity for alleged infringement of letters patent Dio. 217,243, issued July 8, 1879, to William W. Scarborough and William 8. Bates, for improvements in waste-pipe traps.

This was a suit in equity by the Missouri Lamp & Manufacturing Company and Joseph F. Wangler against Omar A. Stempel for alleged infringement of a patent for an improvement in fire extinguishers.

<p>Patents — Construction and Infringement — Exhaust Steam Muffuers.</p> <p>The Swift patent, No. 209,939, for an improvement in mufflers for the escape of exhaust steam, construed, and held infringed by an apparatus made under the Eaines patent, No. 228,744.</p>

This was a suit in equity by the International Pavement Company against Benjamin F. Richardson to restrain him from using or disposing of two patented machines, in violation of the covenants and conditions of a certain contract of license.

<p>1. Patents — Inpkingk.ment Suits — Parties.</p> <p>A patentee and his exclusive oral licensee, who have, between them, the entire right to the patent, may together maintain an infringement suit against a third party.</p> <p>2. Sauk — Reissue-Centrifugal Machines.</p> <p>The Sharpies reissue», No. 11,311 (original 442,4(51), for a centrifugal separator, construed, and held valid; and also held infringed, as to claims 4 and 5, by a machine made under patent No. 48-1,685.</p> <p>3. Same — Centrifugal Milk-Tbsting Apparatus.</p> <p>The Sharpies patent, No. 458,191, for a centrifugal milk-testing apparatus, held valid as to claim 3, and said claim held, infringed by a machine made under patent No. 484.(585.</p>

<p>Appeal from tbe District Court of the United States for theHorthern District of Illinois.</p>

This was a libel in rem by Cornwall Bros, and Walter Fox for materials furnished to the steam barge Arctic and for money advanced by libelants upon the order of her master to pay the wages of the crew of the Arctic while lying at her home port, Alexandria Bay, New York, within the Northern district of New York. The answers dispute so much of the claim of Cornwall Bros, as relates to the payment of the wages of the crew — in all $61.88 — and the entire claim of Fox, $78.50.

This was a libel in rem by Alfred Atchison against the steamship Alamo and cargo (James F. Lewis, claimant) to recover compensation for salvage services. The district court awarded the sum of $15,000 to the salvors, and the claimant has appealed.

<p>This is a bill in equity brought by Edwin T. Earl against the Southern Pacific Company and Robert Graham and others for alleged infringement of letters patent numbered 465,615, issued December 22, 1891, and reissued let lets-patent numbered 11,324, dated April 1.9, 1893, for a ventilator and combined ventilator and refrigerator car. The cause was heard upon a motion for a preliminary injunction, and upon motions to dismiss, as against the Southern Pacific Company and Robert Graham for want of jurisdiction, on the ground that they are not inhabitants of the Northern district of California.</p>

This suit was brought, under tbe provisions of Bev. St. § 4915, by Sydney Smith against Marie Muller and Thomas H: Savery, to revise the decision of the commissioner of patents in an interference case.

This was a suit in equity by John Grubbins against Adam O. Laughtenschlager and William Huttenlocher. The cause was heard on motion by defendants for leave to file amendments to their answers, changing the allegations therein as to the citizenship of defendant Laughtenschlager.

This is an appeal from a decree of the circuit court of the United States fpr the Eastern district of Michigan dismissing a hill in equity on… Held: hut they refused to answer as directed by the probate court, and the probate court refused to compel them to answer; that one of the executors was judge of the circuit court of Michigan, in the district in which Ann Arbor is situated, and wielded much influence to prevent disclosure; that, in the desire to obtain information,…

<p>1. Consolidation op Causes.</p> <p>Under Rev. St. U. S. § 921, it is proper to consolidate an equity suit brought in aid of an attachment, and one to restrain the enforcement of such attachment by execution, and to make the bill in the latter a cross bill in the former.</p> <p>2. Executors and Administrators.</p> <p>Under the Michigan statutes, where property is in the possession of executors as a part of their testator’s estate, adversary proceedings against the property as belonging to another, by an attaching creditor of the latter to satisfy the judgment, may be had in a court of equity with recourse to the probate court under whose direction the executors discharge their functions.</p>

<p>1, Life Insurance — Warranty in Application.</p> <p>"Where the application is, by the face of the policy, made a pari, of the contract, and the application declares that the policy 1» to be made “In accordance with the following statements,” one of which is a certain warranty, and that these statements are “offered as a consideration of the contract,” which is to be accepted as issued “in conformity with this application,” such warranty is a part of the policy.</p> <p>8. Same.</p> <p>When the application is, by the express terms of the policy, made a part of this contract,” a breach of a warranty in the application invalidates the contract, unless some peculiarity in the warranty takes it out of the general rule.</p> <p>8. Same — Suicide.</p> <p>A warranty that insured will not die by his own act, “whether sane or insane,” is valid.</p>

These were two suits, brought, respectively, by George M. Pyle and A. E. Wright, against S. H. H. Clark and others, receivers of the Union Pacific Railway Company, to recover damages for personal injuries incurred by an accident at a railroad crossing. In the case of Pyle, the cqnrt directed a verdict for defendants, but refused to so direct in the case of Wright, and the jury found for plaintiff. Both cases were heard on motions for new trial.

This was a petition by William Utz, Thomas M. Garrett, and William Kirby, against the United States, to recover a sum of money alleged to be due under a contract.

<p>This was a suit by Robert S. Wheeler to recover $180.83, under section 25 of the revenue act of October 1,1800, commonly known as the “McKinley Act,” claimed to be due plaintiff as a drawback on imported materials, to wit, corks and bottles, on which duties had been paid, which materials, it .was alleged, liad been used in the manufacture or production of articles manufactured or produced in the United States, to wit, in the riianufacture of bottled beer, after-wards exported to foreign countries. The corks and bottles on which drawback was claimed did not, however, enter into the manufacture, strictly speaking, of the beer, but were simply the coverings or packages for it. Demurrer to the complaint. Demurrer sustained, and judgment for the United States.</p>

<p>Tradb-Mark-1- Infringement.</p> <p>“Cuticura,” as a trade-mark for a toilet soap, is infringed by tbe word “Curative,” applied to a different soap, with such lettering and arrangement as to produce a deceptive resemblance to said trade-mark. . Held, therefore, that such a use should be enjoined, especially where defendant’s soap was put' up 'lip wrappers and boxes, and-with imitative devices, calculated to mislead, and which did in fact mislead, purchasers; It further appearing that one of the defendants was shown to have intended to mislead them.</p>

<p>1. Patents — Validity and Infringement — Peabi-Button Machine.</p> <p>The invention of the Cléret patent, No. 450,057, for an apparatus for cutting pearl buttons, consists essentially in the application to the old button lathe (whether in the form of a movable chuck and stationary tool holder, or movable tool holder and stationary chuck) of an automatic sharpening device, arranged as described in relation to the oblique cutting tool. The invention is of a primary character, and the patentee is entitled to a liberal application of the doctrine of equivalents.</p> <p>2. Same — Infringement—Reversing Arrangement of Parts.</p> <p>Merely reversing the order of the mechanism described and claimed in the patent, without any change in the principle of operation, or in the result, will not avoid infringement, where the patent is of a primary character, and entitled to a liberal application of the doctrine of equivalents.</p> <p>3. Same — Interpretation of Claims — Estoppel.</p> <p>The use of an unsound and unsuccessful argument by the inventor’s solicitor with respect to a rejected claim will not have the eifect of imposing a destructive limitation upon the claims allowed.</p>

<p>Patents — Invention—Carpet Linings.</p> <p>The Wingfield patent, No. 27(5,118, for improvements in carpet linings of the kind composed of cotton filling covered on both sides with paper, which improvement consists mainly of the use of a supplemental strip placed, over tlie paper along the line of stitches, to prevent the stitches from cutting through the paper, is void, for want of invention, and a's coming within the principle of a mere double use. ■ ■'</p>

<p>This was a suit in equity by the Chambers-Bering-Quinlan Company against Robert Earies for alleged infringement of a patent.</p>

This was a suit in equity by Wilfred O. Lyman against Edward F. Lyman and James P. Warren for alleged infringement of letters patent reissue No. 10,497 (original No. 179,581), and No. 803,441, relating to condenser beads for si earn-exhaust pipes.

<p>1. Patents — Invention—Simplicity of Structure.</p> <p>Tlie conception of a life guard for street cars, consisting of a simple siieleton platform, of yielding macerial, projecting in front of tbe car, aa near as practicable to tlie ground, and upon wbicb a person may fall and be carried along without injury until the car stops, held, notwithstanding its simplicity and apparent obviousness, to involve patentable invention, in view of the complicated devices which preceded it, and the length of time such a device was needed before it was forthcoming. Loom Co. v. Higgins, 105 U. S. 580, followed.</p> <p>2. Same — Limitation of Claims — Infringement.</p> <p>The express mention, in a patent for a street-car life guard, of a “wire” screen stretched upon the frame of the guard, held not to limit the patent io a screen made literally of wire, and that a screen of iron slats was an infringement.</p> <p>8. Same — Stkemt-Oaii Life Guards.</p> <p>The Johnson patent, No. 454,214, for a. life guard for electric and cable cars, construed, and held valid and infringed.</p>

This was a suit in equity by the Osgood Dredge Company against the Metropolitan Dredging Company for alleged infringement of letters patent No. 257,888, issued May 16, 1882, to Ralph R. Osgood, for a dredge and excavator. The circuit court dismissed the bill on the ground that the patent was void for want of invention as to the claims sued on. 69 Fed. 620. The complainant has appealed.

<p>Appeal from the Circuit Court of the United States for tbe Eastern District of New York.</p> <p>This is an appeal from an interlocutory decree of the circuit court, Eastern district of New York, entered on May 9,1895. Two patents, each containing several claims, were before the circuit court. A decree for an injunction and accounting was entered only as to the second claim of one patent, and the second alid third claims of the other patent. See 66 Fed. 761. The correctness of the decision of the circuit court as to these claims only is to be inquired into upon this appeal.</p>

This was a suit in equity by the American Soda-Fountain Company against Green and others for alleged infringement of a patent for improvements in soda-water apparatus. The case was heretofore heard on exceptions to defendant’s answer. 69 Fed. 333.

<p>Wharves — Master’s Negligence — Rocks at Dock.</p> <p>Where a canal boat was injured by getting upon rocks at a dock while discharging coal, held, that the dock owners were not liable, it, appearing that the master had been warned oí the presence oí the rocks, and had also made a personal examination; that he knew his boat could only lie there at high tide, but the accident occurred from his assumption that the tide would rise to the same height as on the previous day, which it was prevented from doing by a change of wind.</p>

<p>Maritime Liens — Supplies—Presumptions.</p> <p>Supplies of coal and water furnished at the wharf to foreign steamers at their port of touch on regular round trips, in quantities needed for daily use, in the presence of the master, and while he is in control, and in the absence of both owner and charterers, will be presumed, prima facie, to have been furnished with the acquiescence of the master, so as to bind the vessel, even though the order was in fact sometimes given by the engineer, or by a subordinate agent, exercising his duties at the wharf, under the eye of the master.</p>

<p>Salvage Services — Compensation.</p> <p>The services of a steamboat engaged in the menhaden fishery, in going to the assistance of a similar steamboat stranded on the Brigantine shoal, lying by her all night, and pulling her off next morning, with the assistance of another vessel, at considerable risk and peril, held to have been a salvage service, for which $1,750 should be allowed on a valuation of $9,000, the salving vessel also being worth about $9,000.</p>

<p>This action was commenced in the circuit court: for Milwaukee county, and, on petition and bond filed by the defendant Ketchum Steamship Company, an order for removal was entered by that court, and the cause was thereupon docketed here. Motion is made to remand, on the ground ihat the defendants are sued as joint tort feasors, and that the application for removal is by one alone.</p> <p>The complaint alleges, in substance, that Coxe Bros. & Co. is a Pennsylvania corporation, owning and operating in Milwaukee the coal docks and the defective appliances from which injury came to the plaintiff'; that the Ketchum Steamship Company was an Illinois corporation, owning and operating the steamer W. P. Ketchum, on which plaintiff was employed as watchman, and which was engaged in delivering a cargo of coal at the docks of, and with the appliances and operatives furnished by, Coxe Bros. & Go., consignees. The plaintiff alleges that he susiained serious injury from the falling of a. coal bucket operated in behalf of Coxe Bros. & Co. while he was in the performance of his duty upon the deck of the steamer, and charges that Coxe Bros. & Co. is liable by reason of defective machinery and of negligence in its operation; that the Ketchum Steamship Company had knowledge of such defects and mismanagement, and is liable in not providing the plaintiff with a safe place for his work, and not warning him of the impending danger, to him unknown. Judgment is demanded against both defendants.</p>

<p>State and Federal Courts — Election of Jurisdiction.</p> <p>A nonresident, having elected under Act 1887, § 2 (25 Stat. 434), to brln? suit in a state court, cannot thereafter sue on the same cau'so of action in a federal court.</p>

<p>State and Eedebau Courts — Election.</p> <p>___ A. nonresident, who has elected, under Act 1887, § 2 (25 Stat. 434), to bring suit in a state court, cannot thereafter dismiss such suit without the consent of the defendants therein, and then bring suit in a federal court.</p>

This is a writ of error to review a judgment of the circuit court for the Eastern district of Michigan for $7,053.0] in favor of Henry M. Avlesworth against the obligors on the following supersedeas bond:' ‘■Know all men by these presents that we, M. McVeigh, W. Kuhlinan, B. Sharp, S. Hile, Chas. Shafer, L. J. Fuller, T. Lewis, W. O. Stone, N. B. Johnson, J. ií\ lunes, W. A. Furman, J. S. Parker, II.

This was a suit in equity by David M. Ladd and Albert M. Hunt, co-partners doing business under the name of United Mercantile Agency, against Edward P. Oxnard, for alleged infringement of a copyright.

This was a suit in equity by Patrick McAléer, Susan McIntyre, Ellen McSorley, H. J. McSorley, Mary E. G-olay, and Cathrine J. Harn against William H. Lewis, administrator with the will annexed of the estate of W. O. Hill, deceased, and Alice S. Hill, widow of said W. O. Hill.

<p>1. Rate Cutting by Railroads — Injunction—Parties.</p> <p>In order that a court may take jurisdiction of a suit to restrain demoralizing and ruinous rate-cutting by rival railroad systems, corporations which have leased the railroads of one of such systems, and control the rates thereon, are necessary parties.</p> <p>2. Federal Courts — Jurisdiction of IToreign Corporations.</p> <p>25 Stat. 433, provides that no civil suit shall be brought in a federal court against any person by any original process or proceedings in any other district than that whereof he is an inhabitant. Held-, that a corporation of one state cannot be affected by an order or writ or iniunction issued by a federal court in another state.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.</p> <p>The action below was by bill in equity, filed by John B. Wright and Charles Baird, the surviving executors of the last will and testament of Thomas W. Cornell, deceased, to restrain John (Jrether, auditor of Summit county, Ohio, and iiobert L. Andrew, treasurer of the same county, from proceeding to collect taxes amounting to $30,105, claimed by the county officers to be due from said estate as taxes, which were assessed by the defendant auditor, or his predecessor in office, against Thomas \V. Cornell, for the years 1887, 1888, 1889, 1.890, 189], and 1892. The assessment was made under section 2781 of the Itevised Statutes of Ohio on the ground that said Cornell, a citizen of Ohio, resident in Summit county, had been, during the years mentioned, the owner of $150,000 par value of the bonds oí the District of Columbia, and liad made a false return in respect thereto, or had evaded making a return concerning- the same. Section 2781 is as follows:</p> <p>•‘Sec. 2781. If any person whose duty it is to list property or make (a) return thereof for taxation, either to the assessor or county auditor, shall, in any year or years, make a. false return or statement, or shall evade making a return or statement, the county auditor shall, for each year, ascertain, as near as practicable, the true amount of personal property, moneys, credits and Investments that such persons ought to have returned or listed for not exceeding (the) five years next prior to the year in which the inquiries and corrections provided for in this and the next: section are made; and to the amount so ascertained for each year, he shall add fifty per centum, multiply the sum or sums thus increased by said penalty by the rate of taxation belonging to said year or years, and accordingly enter the same on the tax lists in his office, giving a certificate therefor to the county treasurer, who shall collect the same as other taxes.”</p> <p>The assessment was made upon the duplicate after the death of Thomas W. Cornell, in September, 1892, but it was in form made under section 2781, as against him personally for the years during which lie was alive, and it so appears upon the duplicate. The bill averred that the bonds thus assessed for taxation were bonds of the United states, and expressly exempted by act of congress from all taxation, federal, state, or municipal, and that the assessment was therefore illegal. The bill further averred that the assessment had been made by the auditor without granting a hearing, that the treasurer was about to collect the same by distraint, and that the complainants, the executors of Cornell, under his will, were without adequate remedy at law. The MIL was demurred to for want of equity. Tne demurrer was overruled, and the defendants then filed separate answers, in which answers the exemption from taxation of the bonds assessed was denied, the want of notice was denied, and the intention of (he treasurer to distrain or to assert his right to collect the taxes assessed in any other way than by ordinary suit at law was denied. The complainants then filed what is called in the record a “demurrer to the answers,” seeking- thereby to raise the question of the sufficiency of the facts stated in the answers to defeat the relief prayed in the bill. The form of pleading was not objected to. The court passed upon the sufficiency of the answers, and held that they were insufficient, and entered a decree perpetually enjoining the collection of the tax, on the ground of its Illegality.</p>

<p>Abatement — Another Suit Pending.</p> <p>A suit to foreclose a mortgage was brought against tire mortgagor, A., who was the owner of the equity of redemption, and others. Thereafter A.'s right was sold on execution against him, and became the property of G.; and after A.’s death the suit was not revived against his personal representative, nor were his heirs or G. made parties. Held, that such suit was not one for the same relief as a subsequent suit for foreclosure against G., and hence its pendency did not affect the right to bring the latter suit.</p>

Suit by Louise M. Irvine against the hoard of county commissioners of the county of Kearney, in the state of Kansas, to' recover county warrants, or their value, alleged to have been exchanged for county bonds.

<p>Bank — Notice to Offices.</p> <p>The president of a hank, having embezzled funds of the hank on deposit with its reserve agent, replaced such funds with money borrowed by him on the hank’s note, without the directors’ knowledge, and such borrowed money was thereafter drawn out to pay the bank’s lawful debts. Held that, the bank having received the benefit of the loan through its president, it was affected with his knowledge of the loan, and hence was liable to the lender as for money had and received to its use.</p>

<p>Insolvent Bank — Following Trust Funds.</p> <p>Plaintiff hank sent a New York draft to the O. Bank, to be deposited to plaintiff’s credit; and the G. Bank, which was insolvent, sent the draft to the N. Bank, in New York, to be deposited to its credit. The N. Bank applied the draft to reduce a debt duo it by the C. Bank, the draft being paid by the drawees, after some delay, under express directions from plaintiff. Held, that plaintiff was not entitled to payment of the amount of the draft by the receiver of the C. Bank as a preferred claim, the amount of the assets for distribution among creditors not having been increased in that amount b,y the deposit of the draft.</p>

Bill by the First National Bank of Covington, Ky., and others, against Charles W. De Pauw and others. On May BO, 1887, Elijah Newland made the following will: “In the name of Cod, Amen. L, Elijah Newland, being of sound mind and disposing memory, do make this, my last will and testament. (1) I commend my soul to God, who gave it, and my hody to the earth, from whence it came.

This was a hill in equity by Godfrey Wheeler, as a stockholder In the Aiken County Loan & Savings Bank, against the hank and certain of its directors, alleging mismanagement, insolvency, wasting of assets, illegal loans, etc., and praying for an injunction, the appointment of a receiver, etc.

<p>1, Indian Lands — Alienation.</p> <p>The treaty with the Pottawatomie Indians of 1862, by article 2, restrained an allottee of lands from alienating the same without the president’s consent, under regulations established by the secretary of the interior. By article 3 members of the tribe, being adult males and heads of families, with the consent of the president and on becoming naturalized before the United States court, could receive patents for tlieir lands, with full power to sell the same. Under the treaty of 1867, when an allottee died, a patent was issued to deceased and his heirs, and the land was administered under the Kansas laws. 'Held, that an Indian boy, 11 years old, whose patent was obtained by false representations that he was dead, could not alienate his land, nor could a guardian appointed by the probate court do so.</p> <p>& Same — Appointment op Administrator.</p> <p>The provision in the treaty of 1867, giving the probate court authority to appoint administrators and settle the estates of deceased allottees, gave such court no authority to appoint administrators of an Indian unless he had been an allottee under the treaty, and was dead.</p> <p>3. Same — Bona Fide Purchasers.</p> <p>Parties dealing with Indians must take notice of public treaties and acts of congress, and do not take land as bona fide purchasers, relieved of restrictions on alienation, merely because no such restriction appears on the patent.</p> <p>4. Void Proceedings — Ratification.</p> <p>Proceedings void for want of jurisdiction cannot be cured by ratification or waiver. ' •</p> <p>5. Laches.</p> <p>No laches can be imputed to one under disability as a tribal Indian.</p>

This was a suit in equity by complainant, Barrows, against the People’s Gaslight & Coke Company and several other corporations-engaged in the same business. Tbe cause was heard upon a motion for an injunction pendente lite.

This was a suit by Edwin L. Foster against Homer C. Wilson and others to recover an assessment upon the shares of an insolvent national bank.

This was a suit in equity by Edwin L. Foster against Henry Chase and others to recover an assessment upon the stock of a national bank.

This was an action at law by John I. Blair and others, constituting the firm of Blair & Co., against the city of Waco, Tex., to recover damages for the failure of the city to comply with a contract for the sale and delivery to plaintiffs of certain bonds of the city. The contract of sale was made in behalf of the city by the mayor, acting under alleged authority of a resolutfon of the city council which fixed no limitation as to the price to be received.

This was an action by Andy Archibald against the Texas & Pacific líailway Company to recover damages for personal-injuries received by him while attempting to uncouple cars in the company’s yard at Shreveport, La. In the court below plaintiff obtained a judgment for §5,000, and the defendant sued out this writ of error. The fads are stated in the opinion.

This was a case brought by the plaintiffs against the defendant to recover the sum of $14,000, by reason of the alleged conversion by the defendant of some cattle belonging to the firm of Montgomery, Swan & Go., a co-partnership, upon which the plaintiffs, at the time of the alleged conversion, held a chattel mortgage.

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

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

<p>Error from the Circuit Court of the United States for tlie Southern District of Yew York.</p> <p>Action by the Creñeld Mills against Warren A. Goddard and another. There was a judgment for plaint iff (69 Fed. 141), and defendants bring error.</p> <p>This case comes here on a writ of error lo review a judgment oí the cirriiit court, Southern district of New York, entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below. The action was brought to recover for damages by plaintiff, a Connecticut corporation, by reason of the failure of the defendants to take certain goods under a contract pursuant to which plaintiff was to -manufacture and sell to the defendants 5,000 pieces of cotton goods. By the hums of this contract, defendants were to select the pattern cut of samples submil ted to them, and thereafter were to give weaving orders, and subsequently dyeing orders, whereupon plaintiff was to manufacture and deliver the goods. The defendant's contended that it was also agreed upon, as a part of the contract, that plaintiff should not make for or sell to any one else, during the pendency of the i ontract any goods like the goods to be manufactured for defendants, and "hat plaintiff broke the contract in that particular. ’Diere was a. conflict of proof as to whether the contract contained any such agreement, and whether. If it did, plaintiff broke it. The verdict of the jury being in favor of plaintiff, little is presented upon this writ of error, except alleged errors in the admission or exclusion of testimony.</p>

<p>1. Federal and State Courts — Habeas Corpus — Illegal Interi.tate Ren-</p> <p>dition.</p> <p>The imprisonment of one committed for trial on a criminal charge, under state process which is regular and valid in iiself, is not rendered illegal, so as to justify his release on habeas corpus by a federal court, by the fact that the prisoner was brought back from another state as a. fugitive from justice, by means of extradition warrants procured by false affidavits. Kerr v. Illinois, 7 Sup. Ct. 22Ó, 119 U. S. 467, Mahon v. Justice, 8 Sup. Ct. 1204, 127 U. S. 712, and Cook v. Hart, 16 Sup. Ct. 40, 146 ü. S. 186, applied.</p> <p>2. Same.</p> <p>Even if the federal courts have authority to release a person who ha.s been brought within a state and committed for trial on a. criminal charge, on extradition process procured by false affidavits, yet a federal court will not exercise such power in advance of a determination of the question involved by the state courts. Cook v. Hart, 13 Sup. Ct. 40, 146 U. S. 186, followed.</p>

<p>1. Use of Mails — Defamatory Matter.</p> <p>A paper issued by a collection agency contained on its first page a motto showing that its purpose was to collect debts, and a large part of the paper contained notices warning the public against persons alleged to have failed to pay their debts, or ashing for information as to such persons. It appeared that, when an account was sent to the agency for collection, the alleged debtor was notified that, if not paid, the account would he advertised in such paper as being for sale, and the paper contained many such advertisements. Held that, the object appearing to coerce payment of money, the notices published were “calculated by the terms * * * and obviously intended to reflect injuriously upon the character or conduct of another,” within the meaning of Act Sept. 26, 1888.</p> <p>2. Same — Outside Cover op Paper.</p> <p>When the outside pages of a publication, though of the same color as the rest of the publication, overspread or overlay the publication, such pages may he considered the “outside cover,” of the publication, within Act Sept. 26, 1888.</p>

This was an appeal by the United States from a decision of the board of general appraisers reversing the action of the collector of customs in respect to the classification for duty of certain merchandise imported by Htearns & Spingarn.

<p>This was an appeal by S. Lofositz from a decision of the board of appraisers as to the classification for duty of certain merchandise imported by him.</p>

This was a suit in equity by George A. Long and others against the Pope Manufacturing Company for alleged infringement of letters patent No. 281,091, issued July 10, 1883, to George A. Long, for an improved steering head for road vehicles. The circuit court held that there was no infringement, and dismissed the hill. 70 Fed. 855. The complainants appeal.

This was a suit in equity by Fred H. Beach against Horace Inman and others for alleged infringement of reissued letters patent No. 11,167, for a machine for attaching stays to the corners of paper or strawboard boxes. The case was heard on a motion for a preliminary injunction. The patent was sustained in prior litigation by both the circuit court and the circuit court of appeals. See 63 Fed. 597,18 C. O. A. 165, and 71 Fed. 420.

<p>1. Shipping — Title to Vessel — Estoppel.</p> <p>A limited partnership purchasing a steamboat covenanted to reconvey her to the vendors in case of any default, existing for a specified time, in the payment of purchase-money installments. Defaults were made for longer than the time fixed, and thereafter the boat was reconveyed by a bill of sale executed in behalf of the company by persons signing themselves as chairman, secretary, and general manager, and attested by the company’s seal. The vendees then conveyed to a third person, as trustee. Subsequently members of the limited partnership libeled the vessel for claims for services, alleging her to be the property of the said trustee. Meld,, that in view of this averment, and of the fact that the persons executing the reconveyance only did what the company had covenanted to do, the libelants could not assert that the reconveyance was made without authority, and did not pass the title.</p> <p>"2. Maritime Liens — Services.</p> <p>Members of a limited, partnership, which has conveyed a vessel to third parties by bill of sale with covenant of general warranty, cannot thereafter assert a lien against her for services performed while she was owned hy the partnership.</p>

These were two libels for collision, brought, respectively, by the American Manufacturing Company and by John W. Hall and others,, against the steamship Maverick.

<p>Removal or Causes — National Bank — Suit against Receiver.</p> <p>A receiver of a national bank, appointed by the comptroller of the currency, when sued in a state court on a claim of less than $2,000, has no power to remove the case to a federal court.</p>

Action by M. Carpenter against tbe Northern Pacific Railroad Company and Andrew F. Burleigh, as receiver of said company, to recover damages amounting to less than $2,000, for a personal injury, originally commenced in the superior court of the state of Washington for Spokane county, and removed into the United States circuit court by the defendants.

of Ohio. This was an action at law by the Third National Bank of Cincinnati, Ohio, to recover the amount due on 14 promissory notes, aggregating about $24,000, from A. E. Humphreys, a member of the firm of Ira A. Humphreys & Son, who were indorsers on said notes. The notes were math' by the Boyd Manufacturing Company, a corporation, lo C. VV. and S. G. Boyd as payees, and indorsed by them to Ira A. Humphreys & Son, and by the latter firm indorsed to the Third National Bank.

<p>Bills by the Coosaw Mining Company against the Carolina Mining Company and others, and against the Farmers’ Mining Company and others.</p>

<p>1. Appointment of Receivers — Rents and Profits of Land.</p> <p>Where the party moving for a receiver has a probable cause of action, a motion for a receiver will be granted, to husband the rents, issues, and profits of the land in litigation, where there is danger of their loss pendente lite.</p> <p>2. Same — Ejectment—Ancillary Bill.</p> <p>Pending an action in ejectment for the recovery of land, a bill filed for the appointment of a receiver to take charge of the royalties, rents, and profits arising from the land in controversy will be treated as an ancillary proceeding to the action at law.</p> <p>8. Same — Laches.</p> <p>Laches should not be imputed to a party who delays to bring an action to recover land, where the adverse party had full notice of the claim of title of the party suing, unless the delay is, under all the circumstances of the case, unreasonable.</p>

This was an action by Rudolph Ihlenberg against the Illinois Central Railroad Company for personal injuries. There was a judgment for plaintiff, and defendant brings error. Rudolph Ihlenberg, the plaintiff below and the defendant in error, was a locomotive fireman employed by the Illinois Central Railroad Company, the defendant below and the plaintiff in error here, in July, 1891.

<p>Receivers — Sale for Taxes — Injunction.</p> <p>A sale for taxes of lands in the hands of a receiver appointed by a federal court will be enjoined.</p>

<p>1. Street Railway Franchise — Consent of Abutting Owners.</p> <p>After the consent of owners of property abutting on a street to the construction of an electric railway on the street bad been obtained, it appeared that a part of such supposed street, distant from both ends of the railway, had never been dedicated or laid out as a street. Held, that there was no consent to the construction of the line on those parts of the supposed street which had been properly laid out and dedicated.</p> <p>2. Same.</p> <p>In Illinois a city has no power to give to a street railway the use of a street, unless a majority of the frontage of abutting owners consent thereto.</p> <p>8. Same.</p> <p>The fact that the city council has passed an ordinance permitting such use does not preclude inquiry as lo whether the signatures to the consent were genuine.</p> <p>4. Same — Injunction.</p> <p>An abutting owner may restrain by injunction the use of a street by an electric railway company under an ordinance which was invalid because passed without the consent of the abutting owners.</p>

This was a bill by Howard O. Levis, trustee, against the city of Newton, A. K. Kufton, mayor, and the Newton Electric Company. On application for preliminary writ of injunction.

<p>1. Foreign Corporations.</p> <p>Since Gen. Laws R. I. c. 253, § 36, prohibits a foreign corporation from carrying on business in the state until it has appointed a resident attorney to accept service of process, a foreign corporation which has not appointed such attorney cannot invoke the aid of a court to prevent interference with its business in the state.</p> <p>2. Injunction — Interference with State Authorities.</p> <p>Where the police authorities oí: a city, acting under the direction of its proper legal adviser, have good reason to believe, upon evidence which they produce, that a person or company is doing a business prohibited by the local law, and act accordingly, a federal court will not interfere by injunction, unless satisfied beyond a reasonable doubt that the business carried on is not in violation of law.</p>

This was an indictment against O’Brien and others for violating the neutrality laws of the United States, by taking part in the preparation and transportation of an alleged hostile military expedition directed against the power of the King of Spain in the Island of Cuba.

This is a writ of error to review a judgment, rendered by the circuit court for the Eastern district of Michigan in favor of Elizabeth Norton, administratrix of John D. Norton, against Frank H.… Held: as part payment; then you wrote to me that your business was improving, and that you would soon commence paying. Now, I understand you to say that you will observe the same course with it as of the $500 note. I suppose you mean by that to let the bank collect them if they can.

This was a petition by D. W. McLeod & Co. for a review of the decision of the board of general appraisers in respect to the classification for duty of certain merchandise imported by them.

Bill by the Southern Bank & Trust Company against the ¡East Tennessee Mining & Improvement Company. Complainant filed an intervening petition, to which H. M. Folsom, surviving partner of Folsom & St. John, was made defendant. From a decree in favor of Folsom the complainant and the obligors in a certain indemnity bond appeal.

Bill by the. Northern Trust Company and another against the Columbia Straw-Paper Company and others. On exceptions by one Dicberman and others to the master’s report. Bonds were issued by the Columbia Straw-Paper Company under a deed of trust made to the Northern Trust Company and another, and were delivered by the company, together with a large quantity of its stock, to one Stein, in exchange for certain mill plants and cash.

In Equity. On objections to petitions in intervention. Suit by Marcus M. Towle against the American Building & Loan Association to wind up live association. A receiver having been appointed, petitions in intervention were filed by parties holding' certificates of full-paid stock.

<p>1. Entry of Purmc Land — Fraudulent Cancellation.</p> <p>The action of the land department in canceling an entry is not binding, if based on testimony extorted by threats of criminal prosecution, and promises of immunity in consideration of testimony satisfactory to the agent of the department.</p> <p>3. Suspended Entries — Trial in Land Office.</p> <p>Rey. St. §§ 2450, 2451, require that eases of suspended entries shall be tried according to the principles of equity, and under regulations to be prescribed by the secretary of tbe interior, tbe attorney general, and tbe commissioner of tbe land office, and also that every such adjudication shall be approved by tbe secretary of tbe interior and tbe attorney general, acting as a board.</p>

<p>Public Lands — Bona Fide Purchaser.</p> <p>Where land has been regularly entered under Act June 3, 1878, providing for the sale of lands chiefly valuable for timber and stone, it is not subject to forfeiture in the hands of a bona fide purchaser.</p>

<p>Railroad Receivers — Salaries, of Employes — Changes of Train Service.</p> <p>An order made by the court, adopting a schedule oi' wages to be paid by the receivers, is not violated by the receivers, in respect to employes receiving monthly wages, by varying the train service to meet changing conditions of traffic, though such change requires somewhat longer hours of service and more miles of service; it appearing that the total service required is not unreasonable in itself, or by comparison with the service on other lines.</p>

<p>Ratero ad Receivers — Payment of Judgment.</p> <p>A petition for payment, by the receivers of a railroad system, of a judgment against one of the subsidiary companies in preference to an antecedent mortgage, will not be allowed by a court other than that which appointed the receivers, it not appearing that any funds have come into the hands of the receivers from the operation of the subsidiary line.</p>

This was a suit by scire facias upon a mortgage, and was brought, by the Mutual Life insurance Company of New York against George S. Doherty. The ease was heard upon exceptions to the marshal’s return distributing the proceeds of the sale.

<p>1. Review on Appeal — False Issue — Acquiescence.</p> <p>In an action for the burning of grain in defendant’s elevator there was presented to the jury, without objection, the issue of “reasonable care in selecting and keeping competent and reasonably careful agents to take charge of the building and machinery,” and the jury were told that “the defendant would not be liable, provided it furnished reasonably careful watchmen and other reasonable protection”; and the defendant excepted to “the submission of the question whether the defendant employed a number of suitable watchmen,” not because that question failed to i>resent the true legal issue, but because "there was no evidence” justifying its submission. Held, that the issue of the general competency of defendant’s watchmen, though a false issue, was presented with defendant’s acquiescence, so that the reception of evidence thereunder was not cause for reversal, although the evidence would not have been admissible, if the case had been tried on its proper legal issues.</p> <p>2. Negligence of Warehouseman — Fire—Evidence.</p> <p>In an action for the burning of grain in defendant’s elevator there was evidence of lack of such attention on the part of defendant’s watchman as' might have enabled him to check the lire if he had been vigilant, and one witness testified that the bearings at the foot of the lofting-Ieg, where the fire was claimed to have originated, were hot all the preceding day; that he smelled burning oil that day; and that the dust had accumulated around the foot of the lofting leg, and had not been cleaned away for several days. Defendant failed to explain the origin of the fire, suggesting that it was incendiary, but offering no evidence to that effect. Held, that the question of defendant’s negligence was for the jury.</p> <p>8. Evidence — Origin of Fire.</p> <p>On an issue charging the origin of a fire in an elevator to negligence, evidence that three years before, through the inattention of the persons having charge of oiling the machinery, the pipes through which the oil passed became choked with dust, is inadmissible; but its admission in the case at bar affords no ground for a new trial because the objections to it were not definitely stated in the court below.</p>

<p>1. Conversion of Judgment — Damages.</p> <p>TTie fact that at the time of a conversion of a judgment the judgment debtors were insolvent does not necessarily limit the recovery to nominal damages, if thereafter such debtors became solvent.</p> <p>2. Same — Evidence.</p> <p>In an action by one against his partner for wrongfully satisfying a judgment standing in the name of the firm, but in reality belonging to the plaintiff, who had refused to satisfy it, evidence that one or more of the judgment defendants, though insolvent at the date of the satisfaction, became solvent a short time thereafter, is admissible to show what was the value of the judgment to plaintiff at the time of its satisfaction.</p>

TMs was an action at law by the Aetna Life Insurance Company against the city of Burrton, in the county of Harvey, Kan., to recover upon interest coupons attached to railroad aid bonds.

This was an action at law by Albeit H. Waite against the city of Santa Oraz to recover upon certain municipal funding bonds. The case was heard on demurrer to She complaint.

This was an action at law hv O. A. Balph and E.. P. S. Wright, trading as the Columbian Fire-Proofing Company, against the Rathburn Company, to recover a balance alleged to be due on the price of certain cement sold and delivered. The circuit court held the affidavit of defense filed by the defendant to he insufficient, and rendered judgment against it. The defendant: appeals.

<p>1. Contempt of Court — Contempts Classified.</p> <p>Contempts, broadly considered, are of two kinds, — direct and constructive. Contempts committed in the presence of the court, sitting judicially. or so near as to interfere with the orderly course of procedure, are direct contempts. Contempts committed, not in presence of the court, but which tend by their operation to interrupt, obstruct, embarrass, or prevent the due and orderly administration of justice, are constructive contempts.</p> <p>2. Same — Constructive Contempts.</p> <p>Constructive contempts are of two general classes: First, those wherein the contemptuous acts primarily affect public rights or the due administration of public justice; second, those which primarily affect private rights, and only remotely and incidentally affect public rights or public justice. When contempt proceedings are prosecuted to vindicate a public rigid, they are criminal offenses, in which the intent is a material and necessary ingredient. When they are prosecuted, either solely or primarily, to enforce and vindicate private rights, which have been secured from violation by an interlocutory or final decree of the court, they are not criminal, but civil, and remedial in their nature, and are punishable without regard to the motive of defendant.</p> <p>3. Same — Violation op Injunction.</p> <p>Whore defendant was enjoined, at the suit of a water company, from allowing any deleterious substances to escape from Its factory into the river, and thereupon built a reservoir on the bank of the river, which it negligently and carelessly permitted to break and discharge its contents, held, chat this was a contempt punishable by fine, or by fine and imprisonment. although there was no willful purpose to violate the injunction.</p>

<p>Application by E. L. Barber for Habeas Corpus.</p>

<p>Constitutional Law -Equal Pjrotkction of Daws — License Tax.</p> <p>The Montana statute imposing a license tax of $25 per quarter on every laundry business (other than that of a steam laundry) wherein more than one person is employed or engaged, and but $15 per quarter upon steam laundries (Pol. Code, §§ 4079, 4080), is void because it imposes a greater burden upon the one kind of laundry business than upon the other, and thereby denies the equal protection of the laws, contrary to the fourteenth amendment to the federal constitution.</p>

Petition by G-. F. B. Howard for a writ of habeas corpus. From á judgment denying the writ, petitioner appeals. in support of the power in the court to pronounce cumulative sentences, referred to the following authorities: Rex v. Wilkes, 4 Burrows, 2578, 19 Howell, St. Tr. 1133, 1134; Rex v. Robinson, 1 Moody, Cro. Cas. 413; Rex v. Cutbush, L. R. 2 Q. B. 379; Castro v. Queen, 6 App. Cas. 229; William’s Case, 1 Leach, 536; 1 Chit. Cr.

<p>Customs Duties — Toilet Articles — Eau de Quinine.</p> <p>Pinaud’s Eau de Quinine Tonique, a toilet preparation used as an application to the hair, consisting, (¡7 per cent, of alcohol, 18/ioo of 1 per cent, of odoriferous resin, sulphate of quinine, and essential oils, and the balance of water, is dutiable under Act 1894, par. 61, which includes “preparations used as applications to the háir, mouth, teeth, or skin, such as cosmetics, dentifrices, pastes, pomades, powders, and all toilet preparations,”' and not under paragraph 7, which includes “alcoholic perfumery, including cologne water, and other toilet waters, and alcoholic compounds not specially provided for,” nor under paragraph 239, which includes “all compounds or preparations * * * of which distilled spirits are a component part, not specially provided for.”</p>

This was a suit in equity by the J. G. Brill Company against Edward H. Wilson and others, trading as E. EL Wilson & Co. and as the Lamokin Car Works, for alleged, infringement of a patent.

These were suits in equity by the Union Switch & Signal Gompany and others against the Atlantic City Railroad Company and others for alleged infringement of certain patents relating to autoxiiatic electric railway signaling. The causes were heard oh motion for a preliminary injunction.

This was a suit in equity by the Thomson-Houston Electric Company against the Kelsey Electric Railway Specialty Company and others for alleged infringement of the Yan Depoele patent for an improvement in traveling contacts for electric railways. A preliminary injunction was granted by the court below (72 Fed. 1016), and the defendants have appealed.

This was an action at law by John W. Cassidy against W. J. Hunt for infringement of letters patent No. 172,608, issued January 27, 1876, to plaintiff, for improvements in fruit-drying apparatus. The case was submitted to the court without a jury.

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

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

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