Volume 78 — Federal Reporter

Suit on policy of insurance issued by defendant company upon properly of the Ryan Packing Company, tried to the court without a jury.

<p>1. FEDERAL COURTS — ENFORCEMENT OF EIGHTS CHEATED BY STATE STATUTES. ,</p> <p>Eights created or provided by the statutes of the states to be pursued in the state courts may be enforced and administered in the national courts either at law, in equity, or in admiralty, as the nature of the rights or remedies may require.</p> <p>2. Same — Equitable Rights.</p> <p>An enlargement of equitable rights by the statutes of the states may be administered by the federal courts as well as by the courts of the states.</p> <p>3. Sam e.</p> <p>“A party by going into a national court does not lose any right or appropriate remedy of which he might have availed himself in the state courts of the same locality. The wise poliey of the constitution gives him a choice of tribunals.” Davis v. Gray, 16 Wall. 208, 221.</p> <p>4. Same — Creditors’ Bilí, — State Statutes.</p> <p>A contract creditor, who has not reduced his claim to judgment, may maintain a hill in equity in the federal court, under the statutes of the state of Arkansas (sections 1425-1428, Sand. & H. Dig.), for the appointment of a receiver and the sale of the property of an insolvent corporation of that state, and for the distribution of its assets among its creditors.</p> <p>5. Insolvent Corporations — Receivers—Rights of Stockholders.</p> <p>A stockholder of an insolvent corporation, whoso stock is worthless, and cannot be made of any value by the granting of the relief prayed in his bill, cannot maintain a suit to set aside an order appointing the receiver and a decree directing a sale of the properly of the corporation, on the ground that its officers and directors fraudulently colluded with the complainant in the proceeding, to enable it to obtain the order and decree.</p> <p>6. Equitable Relief — Parties Entitled.</p> <p>Courts of equity do not attempt to right wrongs at the suit of those who have not suffered from them, or to grant decrees that can give their suitors no relief.</p> <p>(Syllabus by the Court.)</p>

This was a suit by William S. Kuhn, trustee, against Robert Morrison, Carrie P. Morrison, S. E. Green, Edward Scott, Moses H. Clift, J. T. Williams, John X. Dickert, and W. T. Page, for the foreclosure of a mortgage. A demurrer to the bill was sustained in part, and, on final hearing, a decree was made for the foreclosure of the mortgage, subject to a lien held by defendant Green. 75 Fed. 81.

<p>1, Construction or Instruments — Fraudulent Conveyances — Assionmbnts tor Creditors and Deeds op Trust.</p> <p>Whether two instruments, in any case, shall be considered as one, and construed together, depends on the nature of the transaction; the relation of the writings to each other; the time of, and the circumstances attending, their execution; and, as applied to deeds of trust and assignments, executed pursuant to the Mississippi statutes, whether the one was made in support of the other, and had the taint of actual or constructive fraud.</p> <p>& Fraudulent Conveyances — Assignment por Creditors.</p> <p>Where a deed of trust was accepted by the grantee as security for an actual indebtedness, in good faith, and in ignorance, until some hours later, of an assignment for benefit of creditors made by the grantor about the same time, livid, that the two instruments were to be regarded as separate and distinct, and that the trust deed was valid.</p> <p>8. SAME — P.T3TENTION OB CHATTELS BT GRANTOR.</p> <p>A deed oí trust upon farming implements, teams, cotton, and crops for the' ensuing year, to secure a debt in excess of their value, held not void, ad hindering and delaying other creditors, merely because it provided for the retention of the implements and teams of the grantor until the new crops could be made.</p> <p>4. Same — Extension'of Time of Patment.</p> <p>The fact that a deed of trust given to secure an existing debt extends the time of payment for a year does not, in Mississippi, make the instrument, void as hindering or delaying other creditors, for they may at any time proceed to sell the equity of redemption.</p> <p>' 5. Equity Practice — Affirmative Relief to Defendant — Pleading.</p> <p>A court of equity has no power, merely upon an answer, and in the absence-of a cross bill, to make a decree granting affirmative relief to the defendant.</p>

<p>1. Public Officers — Breach of Duty — Rights of Citizens.</p> <p>One who seeks relief from the courts for a breach of a duty imposed upon public officers by statute must show that he has a vested right to the discharge of that duty, and that the statute which imposed it was enacted for the benefit of himself and others in a like situation.</p> <p>8. Same — Action for Breach of Duty.</p> <p>If the duty was imposed for the benefit of another person or class of persons, and the complainant’s advantage from its discharge is merely incidental, and not a part of the design of the statute, no such right is created as forms the subject of an action at law or of a suit in' equity.</p> <p>8. Municipal Corporations — Letting Contracts — Rights of Lowest Bidders.</p> <p>The usual provision in city charters that contracts for public work shall be awarded to the lowest reliable and responsible bidders was not enacted to furnish employment for contractors, or to benefit a bidder for such work, but with the design to benefit and protect the property holders and taxpayers of the municipalities.</p> <p>4. Same — Rights of Taxpayers — Injunction.</p> <p>Taxpayers and property holders whose rights of property will be injuriously affected by the fraudulent or arbitrary violation of this and similar provisions of city charters may maintain a suit to enjoin such action by public officers whose duty it is to comply with them.</p> <p>8. Same — Rights of Lowest Bidders — Injunction.</p> <p>But the lowest reliable and responsible bidder for a contract for public work has no such vested or absolute right to a compliance with such provisions of the statutes as will entitle him to maintain an injunction against their violation by public officials, because these provisions of the statutes were not enacted for his benefit, or for the benefit of his class.</p> <p>8. Same.</p> <p>The presentation by a reliable and responsible bidder of the lowest bid for a contract for public work to officials whose duty it is, under the charter of a city, to let the contract to the lowest reliable and responsible bidder, but who have the right, under the statute, to reject all bids, and who have given notice in their advertisement for bids that they reserve the right to reject any and all bids, does not constitute an agreement that they will make a contract for the work with such a bidder; nor does it vest in him such' an absolute right to the contract as will authorize a court of equity, at his suit, to compel the officials, or the municipality they represent, to enter into a contract for the work with him, when they are about to award, or have awarded, it to a higher bidder.</p> <p>(Syllabus by the Court.)</p>

<p>Bill to reform live policies of insurance, issued upon the life of Frank E. McMaster.</p>

<p>1. Collateral Security— Evidence of Surrender — Sufficiency.</p> <p>The only evidence that an assignment o.f a decree of foreclosure given by B. to D., as security for a note, had been surrendered to B. upon renewal of the note, was the fact that it was found among B.’s papers after his death, pinned to the old note, the new note being yet unpaid. It was shown, however, that B. administered on D.’s estate, and had charge of all his. papers, and that the assignment was not canceled. The correspondence between B. and D. relative to the renewal contained no reference to the assignment, the renewal being offered by D. “on the same terms” as the original loan. Held,, the evidence did not show a surrender of the assignment.</p> <p>2. Equitable Lien on Land — Priorities.</p> <p>A note executed by B. to S. provided that, upon the death of S., the money should be repaid to certain heirs of S. Nothing was said as to B.’s investment of or accounting for the money, the transaction being an absolute loan on real-estate security. B. loaned the money, taking as security a mortgage on land, which he afterwards foreclosed, assigning the decree of foreclosure to D., who had no notice of any claim by S. While the assignment was outstanding, B. had the land sold under the decree, and became the purchaser. Held, that the right of the heirs of D. to a lien on the land was superior to that of the heirs of S.</p>

The petition of the appellant, Rosborough, was filed September 4, 1895, in the case of Bound v. South Carolina R. Co., alleging that he was the owner of a $1,000 bond of said railroad company, with nine unpaid semiannual interest coupons, secured by the first consolidated mortgage of 1881; that by a decree of the said circuit' court the said mortgage had been foreclosed by a sale of the railroad on April 12, 1894; that at said sale Henry W. Smith, Gustave E. Kis-sel, and…

<p>Appeal from the Circuit Court of t he United States for the Southern District of Hew York.</p>

<p>1. Corporations — Power op Directors — Salaries to Ofpioetís — Past Services.</p> <p>The by-laws of the N. Co., as originally adopted, provided that the officers, including the president, should receive no compensation, and also provided for a general superintendent, who was to supervise the company’s business generally and in detail, and was to be paid a salary. Subsequently, the by-laws were amended by reducing the number of directors, abolishing the office of general superintendent, and providing that the president should have general charge of the business of the company. The president acted under these by-laws for five years, though he paid no attention to the details of the business or its active operations, and during this time made no claim for compensation. At a. meeting of the directors, at which only the president, his son, and his clerk were present, it was resolved to pay the president a salary for the future, and also for the five years during which he had already acted, and notes were issued to the president for such salary, for which new notes, secured.by mortgage, were afterwards issued, upon 'the vote of a majority of the directors, made up of the president himself and a person to whom he had assigned most of the notes. Held, that the directors had no power to bind the corporation to pay for the president’s services, and the notes, as between the president and the corporation, were void.</p> <p>2. Bills and Notes — Holders por Value.</p> <p>In the federal courts, one who takes negotiable paper, before maturity, as collateral security for an existing debt, is a holder of such' paper for value.</p> <p>3. Same — Suspicious Circumstances — Duty op Inquiry.</p> <p>It is not the rule, in the federal courts, that one who takes negotiable paper, • before maturity, with knowledge of facts which would put an ordinarily prudent man upon inquiry as to its validity, is chargeable with notice of all facts which such inquiry would disclose; but, unless he has willfully closed his eyes to facts which would show defects in the paper, he is entitled to be regarded as a bona fide purchaser.</p> <p>4. Corporations — Liability op Oppicers — Negligent Management. ■</p> <p>The president of the N. Co„ while in control of the corporation, sold large quantities of the coal produced by that company to a firm in which he either was a member, or was very closely interested, through his sons, who managed It; and did not require such firm, though it sold the coal at a large advance, to pay for it, but allowed such firm to incur a very large debt to the N. Go., which was ultimately lost through the insolvency of the firm. Held, that such action of the president amounted to such gross negligence as to charge him with the whole amount which the corporation had thereby lost.</p> <p>5. Samp — Insolvency—Mortgages.</p> <p>A creditor of a corporation is not prevented from taking a mortgage on its assets, to secure his debt, by the fact, or by his knowledge of the fact, that the corporation is insolvent; nor does such fact render the mortgage invalid.</p> <p>6. Same — Creditor with Collateral Security.</p> <p>A creditor of a corporation, who holds collateral security for his debt, cannot bo compelled to exhaust such security, before resorting to the general assets of the corporation for payment.</p> <p>7. Same — Stock Assessments — Presumption op Payment.</p> <p>Where it appears that the full amount of the par value of the stock of a corporation has been assessed, and the time for payment of the assessments has expired, it will be presumed, in the absence of a showing to the contrary, that the full amount of the par value of the subscribed stock has been paid.</p> <p>8. IteciuvEii’s Certificates — Payment — Ooukts op Primary and Auxiliary .Jurisdiction.</p> <p>When an issue of receiver’s certificates has been authorized by the court in which a suit ancillary to the principal suit in which the receiver was appointed is pending, the court of primary jurisdiction will remit to such court the matter of ordering the final payment of the certificates, and determining what, sums are due on them, together with the compensation of the receiver.</p> <p>&. Same — Lien—Private Corporations.</p> <p>Receiver’s certificates, issued by (lie receiver of a merely private corporation, are not a charge upon the assets of the corporation in preference to existing' liens, as against lienors who have not consented to their issue.</p>

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

<p>Subscription Contracts — Joint and Srvukal Liability.</p> <p>The C. Co., which was engaged in the business of furnishing material and machinery for erecting plants for the manufacture of butter and cheese in localities suitable for such industry, entered into a contract with sundry persons for the erection of a butter and cheese factory at M., to cost $5,250. The contract provided that the factory should be erected and equipped in accordance with the specifications “indorsed hereon,” and also provided that, as soon as the contract price was subscribed, the subscribers should form a corporation, with a capital not less than the amount subscribes!, in shares of $100 each, to be issued to the subscribers in proportion to their paid-up interest; each subscriber to be liable to the corporation only for the amount subscribed by him. The form of the contract indicated that it was presented by the agent of the O. Go. to various persons, with a request for subscriptions to the erection of the factory, and it was signed by 42 individuals, who set opposite their names the number of shares taken, and the amount of stock after incorporation, in sums ranging from $25 for a quarter share to $500 for five shares. Indorsed on the contract were specifications for the factory, ending with a long sentence, which included the words, “there shall be no waiver of original and joint liability until the contract price is fully paid.” Held, that there was no meeting of ihe minds of the parties on a proposition for a joint liability to the O. Go., and the contract of the subscribers was several only.</p>

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

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

<p>Trial to tiie Court — Agreed Statement — Jldgmext—Review on Error.</p> <p>When a case is submitted upon a stipulation as to facts, which is mainly a statement of evidence, and not of the ultimate or issuable facts, and the court thereupon makes neither a general finding nor a special finding of facts, but merely finds that the facts are as set forth in the agreed statement, a judg-inent rendered thereon is invalid; nor can the appellate court, in reviewing such judgment, draw the inference of fact from the admitted evidence, however plain such inference may be.</p>

<p>1. Money Wkongfully Retained by Federal Officer— Claim against United States — Statute. !</p> <p>Money taken from one arrested for larceny from a post office was retained by the inspector under the erroneous supposition that it was the money stolen. Held, that an order by the prisoner to the inspector to pay it to a third person was not an assignment of a claim against the United States, within Rev. St. § 3477, requiring such assignments to be made in the presence of witnesses, and after the allowance of the claim.</p> <p>2. Same — Right of Action — Assignment of. i</p> <p>A written order to an officer to pay to a third party money belonging to the drawer, but retained by the officer without authority, is an assignment of, the right of action to recover it.</p> <p>8. Review on Appeal — Findings of Fact.</p> <p>Findings of fact will not be reviewed where the evidence is not in the record.</p> <p>4. Same— Assisxmetits op Error — Sufficiency.</p> <p>General assignments that the court erred in rendering judgment against the defendant, and in not rendering judgment in his favor, cannot be considered.</p>

'■ This was a libel in personam by Thomas Prentice and others, owners of the steamship Burnley, against the United States & Central American Steamship Company, respondent, and C. Robinson Griíw» and George F. Shaver, as garnishees; also, a libel by the same parties as owners of the steamship Arecuna against the same respondents. This hearing was upon a motion to compel the garnishee to pay into court the balance due on a certain note, or for other relief.

<p>1. Subp<exas in Pension Casks — Constitutionat. jjaw.</p> <p>The act oí July 25,1882 (22 Stat. 174), authorizing judges and clerks of United States courts to issue subpoenas, upon the application of the commissioner of pensions, for the examination of witnesses concerning pension claims, is constitutional, and under it the courts may compel witnesses to appear and testify before the officers mentioned in the act, on the subject of pension claims. Commerce Commission y. Brimson, 14 Sup. Ot. 1125, 154 U. S. 447, followed.</p> <p>2. Same.</p> <p>While the investigations under said act need not be confined strictly to the merits of pension claims, yet they must be upon the subject of pension claims; and a subpoena -issued under the act should be drawn with such certainty and precision as to show that it is within the act, and to identify the pension claim in which the testimony is required.</p>

This is an appeal from a decision of the circuit court for the Northern district of New York (73 Fed. 191) affirming a decision of the board of general appraisers which reversed the decision of the collector of the port of New York assessing a rate of duty upon natural gas. The gas, which is obtained by boring into the ground, comes from Shirkstown, in the dominion of Canada, about 12 miles from Buffalo.

This was a. suit in equity by David Rousseau against John B: Peck and Sarah E. Ostrander for alleged infringement of an automatic electric circuit opener. The circuit court dismissed the bill, holding that the claims of the patent were not infringed, and were apparently invalid. 66 Fed. 759. The complainant has appealed.

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>This was a suit in equity by William Roemer against T. B. Peddie '& Go., for alleged infringement of a patent for an improvement in bag and satchel handles. The circuit court dismissed the bill, holding that the patent, if valid at all, must be so limited as to avoid infringement. 71 Fed. 407. From this decree the complainant has appealed.</p>

This was a suit in equity by the American Soda-Fountain Company against Robert M. Green and others, trading as Robert M. Green & Sons, for alleged infringement of a patent for a soda fountain. The canse was first heard on exceptions to certain paragraphs of the complaint. 69 Fed. 333. Thereafter the circuit court sustained the second claim of the patent in issue, and entered a decree in favor of complainant. 75 Fed. 680. From this decree the defendants have appealed.

This was a suit in equity by Leroy E. Robbins and Thomas M. Avery against the Illinois Watch Company for alleged infringement of reissued letters patent No. 10,631, issued for an improvement in stem-winding watches. ,The cause was heard on exceptions to the report of the master, to whom it was referred to take an account of profits.

<p>1. Patents — Assignments—Patent-Office Records.</p> <p>It seems that certified copies of assignments from the patent-office records are evidence of the genuineness of the signatures thereto, and prima facie proof of proper execution.</p> <p>£. Same — Infringement Suits — Proof of Title.</p> <p>Where there was no satisfactory proof as to the ownership of one-half of a patent sued on, and, by the averments of the bill, more of the title was conveyed than originally vested in the patentee, held, that complainants’ title was defective, and they were not entitled to relief.</p> <p>8. Same — Ik frtx gemeet — Bridle Bits.</p> <p>In the Campbell patent, No. 387,048, for a bridle bit, the curvature of the bit bars is made an' essential part of the claims, and there is no infringement where it does not appear that defendant’s bit bars curve in the same way, and accomplish the same function.</p>

<p>Patents — Validity and Inpkinoemknt — Cab Axlk Box Lids.</p> <p>The Morris patents, Nos. 379,712 and 423,795, for a car axle box lid, the main feature of which is a construction whereby the spring can be attached to the lid without the use of rivets, so that a broken spring can be replaced without removing the lid from the box, were not anticipated by the device of the Kinzer patent, No. -. Claim 1 of the former and claims 4 and 5 of the latter are valid, and are infringed by the device of the Davis patent, No. 521,231, in which the location of the spring is changed from the outside to the inside of the box, without substantially varying the mode of operation or result. But claims 1, 2, and 7 of the second Morris patent, which are for a car axlé box lid, as an article of manufacture, independent of the manner of attaching the spring thereto, are not infringed thereby, even if valid.</p>

These were two suits in equity by the Thomson-Houston Electric Company against the Ohio Brass Company and others for alleged infringement of patents relating to electric trolley switching devices.

These were two suits in equity by the Thomson-Houston Electric Company against the Ohio Brass Company and others to restrain the alleged infringement of the Van Depoele patents, NoS. 495,443 and 424,695, for electric trolley switching devices. Preliminary injunctions were heretofore granted. 78 Fed. 139. The present hearing is in relation to the granting of an appeal and supersedeas.

• This was a libel by the Barney Dumping Boat Company against the steamtug Mutual and the schooner J. Percy Bartram to recover damages resulting from a collision.

<p>Demurrage — Allowed after Express Notice and Reasonable Time — Brick Cargo —Unreasonable Detention — Alleged Customs Invalid.</p> <p>The libelant having taken on board his seow 252,500 brick from the yard of the manufacturer on the North river, was afterwards directed to a berth at the foot of Canal street for delivery to Mr. Peck, the purchaser. On September 12th, the day following arrival, the discharge was commenced at the rate of a few thousand per day only, as they were wanted and carted away by a snbvendee. The delay was increased by an unusual amount of inferior brick in the cargo. On the 20th the master gave notice that he would claim demurrage unless the cargo was delivered by the 25th. Five days was a reasonable time for unloading the whole cargo. Mr. I\, the first vendee, having finally refused to accept the residue of the cargo, the shippers on the 26th ordered the seow to the Wallabout, where the residue of. 110,000 was discharged on October 1st. There was no bill of lading, and no agreement a,s respects demurrage. Much evidence was taken as respects an alleged local custom (1) that the carrier of brick must wait the convenience of the vendee or the subvendee, in unloading the vessel; (2) that the master was bound to prevent putting on board inferior brick from the manufacturer’s yard. Held: (1) That the evidence as to both of the alleged local customs was insufficient to susiain them; and that they were also invalid, as unreasonable and indefinite; (2) that while the evidence showed that more Lime was 'usually allowed for discharging brick than other ordinary cargoes, the notice by the master in the present case was a lawful, reasonable and proper notice, giving abundant time for unloading, and that he was entitled to demurrage after the 25th.</p>

<p>Appeal from the District Court of the United States for the District of Maryland.</p> <p>This was a libel in rem by William H. Grafflin, as administrator of George Grafflin, deceased, against the barge Glide (George P. Hudson, claimant), to recover for damage to cargo. The district court rendered a decree for the libelant, and the complainant has appealed.</p>

This was a libel in rem, by various shippers of goods shipped on board the steamer Queen, for breach of contract, for damages to said goods by sea water, alleged to have been caused by the negligence of the master, officers, and crew of the steamer, while said goods were being transported from the port of San Francisco to the port of San Diego, state of California. The case involved 37 claims.

<p>This was a libel of forfeiture against the steam tug the Three Friends for alleged violation of the neutrality laws. The cause was heard on a motion by claimants for permission to give a release bond.</p>

This was a libel of forfeiture filed by the United States against the steamer Three Friends for alleged violation of the neutrality laws. A motion for permission to give bond for the release of the vessel was heretofore granted. 78 Fed. 173. The cause is now beard upon exceptions to the libel.

This was a libel in rem by the St. Louis & New Orleans Anchor Line against the steamboat Natchez (the New Orleans Navigation Compány, Limited, claimant) to recover damages resulting from a-collision. The district court rendered a decree for the libelant, from which the claimant has appealed.

This was a libel in rem by the Norfolk & Carolina Railroad Company against the steamboat City of Chester (Alfred P. Thom, receiver of tbe Atlantic & Danville Railway Company, claimant), to recover damages resulting from a collision in Norfolk Harbor. The district court found that tbe City of Chester was alone in fault', and entered a decree for libelant. 68 Fed. 574. Tbe claimant has appealed.

This was a libel by tbe North Michigan Transportation Company, owners of the propeller Charlevoix, against the propeller Waverly, to recover salvage for the services of the Charlevoix in taking in tow and conveying into port the Waverly, which was found disabled in Lake Michigan.

<p>1. Rbmovai. of Causes — Practice—Notice of Petition.</p> <p>No statute or rule oí practice requires a defendant to give notice to a plaintiff of the filing of a petition for Hie removal of a cause from a state to a federal court.</p> <p>8. Same — Firing of Transcript — Notice—Remand.</p> <p>Failure to give notice of the filing in the federal court of a transcript of the record of a case removed from a state court, as required by rule 79 of the circuit court for the district of Nevada, constitutes no ground for remanding the cause.</p> <p>8. Same — Time of Rbmovai, — Stipulation Extending- Time for Answer.</p> <p>Where a stipulation, signed by a party or his attorney or counsel, is of binding force, a cause may be removed from a state to a federal court within the period to which the defendant’s time to answer is extended by a written stipulation, though no order of court is entered thereon.</p> <p>4. Same — Citizenship.</p> <p>A defendant, who is a citizen and resident of another stale than that of the plaintiff, is entitled, under the act of 1887-88, to remove to the federal court a suit brought against him in the stage court, although, -at the time the suit was commenced, and the petition for removal filed, he was temporarily residing in the state where suit was brought.</p>

<p>Action in Ejectment. Demurrer.</p>

This was an intervening- petition filed by the appellees, James II. Benedict, Isaac H. Bromley, and P. It Pendleton, in the circuit courts of the United States fdr the districts of Nebraska, Kansas, and the Western district of Missouri, which was subsequently heard and determined in the district of Nebraska.

<p>Juhisbtction or Federal Courts — Federal Qukstíoss.</p> <p>The mere fact that, in the progress of (he trial of a case, it may become necessary to construe the constitution or laws of the United States, does not give the federal courts jurisdiction of such case; but the decision must depend on such construction, and this must appear by the complainant’s statement of his own claim, irrespective of what the contention of the defendant may be. Wise v. Nixon, 76 Fed. 8, reaffirmed.</p>

The Fidelity Insurance, Trust & Safe-Deposit Company, one of the appellants, on January 2, 1894, filed its bill in the circuit court of the United States for the Southern district of Illinois against the Litchfield, Carrollton & Western Railroad Company for the foreclosure of a trust deed or mortgage upon its railway, issued to it as trustee to secure bonds to the amount of $516,000, charging default on July 1, 1893, in payment of interest, asserting the insolvency of the…

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

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

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

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

This was a suit in equity, in the nature of a bill of interpleader, filed by the Union Pacific Railway Company, for its receivers, S. H. H. Clark and others, against Jacob H. Schiff and others, composing the firm of Kuhn, Loeb & Co., C. W. G-ould, as assignee of the firm of Field, Lindley, Wiechers & Co. for the benefit of creditors, and Norman S. Dike, as receiver of the assets of the latter firm. This cause has been several times before the court.

<p>1. Injunction — Estoppel by Acquiesce ¡toe — Cutting Timber.</p> <p>One R. agreed with the E. Co. for the purchase of certain timber lands, and, with its consent, began to cut the timber. Shortly after this agreement, and before the formal contract of sale was executed, certain parties, claiming the land, notified R. of their claim, and forbade him to cut the timber. They then brought an action of ejectment against the E. Co., and, upon a bill filed against it, obtained an injunction restraining it from cutting timber on the land. Later, but within little more than a year from the making of R.’s agreement with the E. Co., the claimants brought an action of ejectment against R., and, upon a bill filed, obtained an injunction restraining him from cutting the timber, which injunction R. moved to dissolve. Held, that there had been no such acquiescence on the part of the claimants as to estop them from claiming an injunction against R. 72 Fed. 1000, affirmed.</p> <p>■2. Appeal — Discretion op Court — Dissolution op Injunction.</p> <p>An appellate court will not interfere with the exercise of the discretion of a chancellor in refusing to dissolve an injunction, either absolutely or upon condition of giving security, unless there is manifest error in the conclusion reached by him.</p>

An original bill was filed by appellant in the circuit court against the Chattanooga Southern Railway Company for the appointment of a receiver, and to foreclose a mortgage executed by the railway company to secure certain bonds by it issued. An order was duly made by the court consolidating that cause with the suit of E. Suinmerlield against the railway company.

<p>Dissolution of Injunction — Judgment at Law for Defendant.</p> <p>When, upon a bill in equity filed as ancillary to an action of ejectment, a preliminary injunction has been granted restraining the defendant from cutting timber upon the land in controversy, for the purpose of preserving the status quo pending the litigation, and a verdict and judgment are afterwards rendered for the defendant in the action of ejectment, it is proper for the court, in the exorcise of its discretion, upon being informed of such verdict and judgment, to dissolve the injunction.</p>

<p>1. California Railroad Commission — Constitutional Law — Unlawful Determinations — Povvee of Courts — Injunctions.</p> <p>The constitution of California provides (article. 12, § 22): “The state shall be divided into three districts, * ⅜ ⅜ in each of which one railroad commissioner shall be elected. * * * Said commissioners shall have power, and it shall be their duty, to establish rates of charge for'the transportation of passengers and freight, by railroad and other transportation companies, * * * to hear and determine complaints against railroad and other transportation companies, * ⅜ ⅜ and enforce their decisions and correct abuses through the medium of the courts. $ ⅜ * Any railroad corporation or transportation company which shall fail or refuse to conform to such rates as shall be established by such commissioners, or shall charge rates in excess thereof, * * * shall be fined not exceeding $20,000 for each offense, and every officer, agent or employee, of any such corporation or company, who shall demand or receive rates in excess thereof, or who shall in any manner violate the provisions of this section, shall be fined not exceeding $5,000, or be imprisoned in the county jail one year. In all controversies, civil or criminal, the rates of fares and freights established by said commission shall be deemed conclusively just and reasonable. ⅜ ⅜ *” The act of the legislature (April 15, 1880) passed to carry this provision into effect provides for serving upon a railroad affected a schedule of rates, adopted by the commission, which becomes effective in 20 days after service. Reid that, under these provisions, the hoard of railroad commissioners is invested with administrative, as well as judicial and legislative, powers; and its duties are not so far discharged by the adoption and service of a schedule of rates as to leave nothing further to be done, and to put it beyond the jurisdiction of a court, in proceedings to restrain the enforcement of an unlawful determination.</p> <p>8. Same — Schedules of Rates.</p> <p>Held, further, that a resolution of such board as to the propriety and necessity of a certain reduction of rates, which has not, however, been embodied in a schedule, and is not intended to be acted upon, without further investigation (as to which the solemn declaration of the commissioners must be taken as true by the courts), does not afford a basis for the action of a court to restrain the enforcement of such resolution, on the ground that the proposed rates- are unreasonable.</p> <p>& Same — Unreasonable Schedule — Injunction.</p> <p>Held, further, that the functions of such commission are not so purely legislative that it is not amenable to the control of the courts, when it attempts to enforce a tariff of rates which is unjust and unreasonable.</p> <p>4. Samis.</p> <p>. . Held, further, that a suit to restrain the enforcement, by such commission, of an unreasonable schedule of rates, is not a suit to restrain criminal prosecu'tions.</p> <p>o. Same — Leased Lines — Estoppel—Illegal, Contracts.</p> <p>Held, further, that, where such commission has dealt with a corporation, operating lines of railroad under leases from other corporations, as an existing transportation company, by serving upon it a schedule of rates, and requiring it to conform thereto, it cannot afterwards, as an answer to a suit by such Corporation to restrain the enforcement of the rates, object or inquire into the validity of the leases, under which the corporation operates its lines, or the power'of the lessor companies to make them; nor have the principles applicable to suits between parties to illegal contracts, in pari delicto, any application to such a case.</p> <p>6. Same — Estoppel—3r,legal Combination.</p> <p>Held, further, that, such commission, having dealt with such an existing transportation company, is also estopped io object, in a suit by it, that it is an illegal combination.</p> <p>7. Same — Constitutional Law — Foreign Corporations.</p> <p>Held, further, that the above-stated provisions of the California constitution were not intended as conditions upon the exercise of their powers, within the state, by foreign corporations, nor as amendments of the charters of domestic corporations.</p> <p>8. Same — Amendment o» Corporate Charters — Property Rights — Federal Guaranties.</p> <p>Held, further, that the power to amend the charters of corporations, which may be reserved, is not a power to withdraw from them the guaranties of the federal constituí ion, nor to affect any rights not given them solely by their charters. It does not extend to affecting the property acquired in the exercise of their functions.</p> <p>9. Same — Power op State to Fix Railroad, Rates.</p> <p>Held, further, that, while a stale has power to regulate railroad rates, such power, as well as the right of a railroad company to control its business, stops at injustice, the state having no right to fix a rate unreasonably low, though it. may prevent a railroad from fixing one unreasonably high.</p> <p>10. Same — Unreasonable Rates — Unconstitutional Provisions.</p> <p>Held, further, that the provision of the constitution making the rates fixed by the commission conclusively just and reasonable is in conflict with the fourteenth amendment to the constitution of the United States, and void, but is so clearly separable from the rest of the provisions relating to the commission that it does not render them invalid.</p> <p>11. Same — Notice op Fixing op Rates.</p> <p>It seems, further, that the provisions of the constitution, if correctly interpreted, as not requiring notice to the railroads of a proposed fixing of rates, are not, for that reason, invalid.</p> <p>13.Same — Unlawful Discrimination.</p> <p>Held, further, that, under the ini erpretation of the above-recited constitutional provision by the supreme court of California, which is binding on this court, and which holds the words “transportation companies” to include individuals, such provisions are not void, as discriminating between corporations and individuals.</p> <p>13. Same — Conclusiveness of Rates.</p> <p>Held, further, that the constitutional provision making rates conclusive is not equivalent to directing them to be made unreasonable.</p> <p>14. Same — Decisions of Commission — Interest of Member.</p> <p>Held, further, that the interest, as a shipper, in the rates fixed, of one of the commissioners who takes part in fixing them, but whose vote is not necessary to the decision, does not render such decision invalid.</p> <p>15. Same — Prior Pledge by Member of Commission.</p> <p>Held, further, that the fact that a member of the commission had pledged himself, before his election, to make certain changes in rates, which are embodied in schedules by the commission, does not necessarily affect the validity of such schedule, since the real question is as to the reasonableness of the rates fixed.</p> <p>16. Same — What are Reasonable Rates.</p> <p>'■ Held, further, that rates for railroad transportation are not alone unreasonable when they amount to practical confiscation, nor necessarily reasonable when they allow any dividend, however small; but a railroad company is entitled "to be reimbursed its charges and expenses, and to receive, besides, an adequate return upon investment.</p> <p>17. Same — Operating Expenses.</p> <p>Held, further, that in ascertaining the cost of operating a railroad, with .reference to determining the reasonableness of rates, the expenses of operation are not to be strictly limited to the cost of running trains, excluding all better-ments, but the cost of reasonable renewals and improvements of roadbed, track, and equipment should be included in the operating expenses.</p> <p>18. Sa'me — Reasonableness oe Rates — Southern Pacific Railroads.</p> <p>Held, further, in view of the facts appearing .in this case, as to the receipts and expenditures of the Southern Pacific Company, taking into consideration 'the proper division of charges between it and its lessor companies, under its various' leases, that no reduction should be made in its rates, and that the enforcement of a reduction, determined upon by the board of railroad commissioners, should be restrained.</p>

Argued and submitted upon objections to confirmation of sale of personal property under execution, and upon a motion to retax the marshal’s fees and costs, upon final process.

This was an action at law by Lozano and others, constituting the firm of Lozano, Pendas & Co., against the Palatine Insurance Company, Limited, of Manchester, England, to recover upon two policies of fire insurance. The case was heard below upon demurrer to a plea in bar, and under a stipulation for final judgment on the decision thereof. The court overruled the demurrer, and entered judgment for defendant pursuant to the stipulation.

This suit was brought by the First National Bank of Brandon, Vt., against Kaiser “Ninety days after date, we promise to pay to the order of IJoyd & Adams two thousand dollars, at Brunswick State Bank, Brunswick, 6a. Value received. “No. 4,397. ' A. Kaiser & Bro. “Due Aug. 12.” Indorsed on back: “Lloyd & Adams. “Brunswick State Bank, Brunswick, 6a. “F. E. Cunningham, Cashier.” Indorsed across face: “Noted and protested for nonpayment, Aug. 12th, 1893. “M. P. King, Notary…

<p>AOCXIUSNT Insurance — “Bobil y Infirmities”- — Apoplexy.</p> <p>The T. Ins. Co. issued an accident policy to one S., insuring him-against death resulting through external, violent, and accidental means, but not covering death resulting wholly or partly, directly or indirectly, from disease or bodily infirmity, or voluntary overexertion. S., a man 53 years of age, while engaged in work which required stooping, and shortly after running rapidly up a hillside, to get an article needed in his work, was attacked with pains in his head, and shortly after died. On the trial of an action on the policy, two physicians, called J>y the plaintiff, testified that S. died of apoplexy, which is a bodily infirmity or disease, and that there was nothing in the circumstances to have caused death if there had been no bodily infirmity or predisposition to apoplexy. Held, that it was error to refuse to direct a verdict for the defendant.</p>

<p>This was an action by the United States against Joseph S. Harris, Edward M. Paxson, and John Lowber Welsh, receivers of the Philadelphia & Reading Railroad Company, to recover a penalty for the alleged violation of Rev. St. § 4388, relating to the transportation of live stock. The case was heard on a rule for judgment on a point reserved.</p>

<p>Actios on Note — Demand <⅛ Payment.</p> <p>The commencement of ■ an action on ,a note payable on demand is itself a ' demand of payment, and it is unnecessary to allege a request for payment before the commencement of the action.</p>

<p>MUNICIP.AI, COUPOK AT IONS — DETECTIVE' STKEETR — PERSONAL INJURIES.</p> <p>A municipal corporation is liable in damages to parties injured through its negligence in failing to keep its streets in proper repair, though no special statute authorizes an action for such cause. »</p>

<p>1. Mandamus — Jurisdiction op Federal Courts— Control op Clerk— Fond in Corin'.</p> <p>The United States district court entered a decree, upon a libel in admiralty, directing the clerk of that court to pay to a receiver of the property of the claimant of the libeled vessel, appointed by a court of another state, the surplus proceeds of ’ the sale of the vessel, then in the registry of the district court, alter payment of all costs, etc. Pursuant to such decree, the judge and clerk of the court drew a check for such surplus proceeds to the order of the receiver, but while said check was in the hands of the clerk, before it had been mailed, an execution, issued from a court of the state in which the district court sat, upon a judgment against the claimant, was served by the sheriff upon the clerk of the district court, with a notice that all debts, credits, and personal property of the 'claimant in the hands of the clerk were attached. Thereafter the state court appointed a receiver of the property of the claimant in supplementary proceedings taken upon said judgment, and such receiver applied to the district court for a writ of mandamus directing the clerk to deliver to him the check for the surplus proceeds of the vessel. Reid, that the proceeding was an original one, and the district court had no power to issue a writ of mandamus, but by virtue of its inherent power to control its own officers it might direct the action of the clerk.</p> <p>2. Fund in Court — Custody op Cleric — Attachment and Garnishment.</p> <p>‘Held, further, that the clerk was holding the check, not as an individual, but in his capacity as clerk, the fund being in the custody of the court itself until actually delivered to the receiver, to whom tho decree had ordered it paid, and the check and the fund on which it was drawn were not subject to attachment or garnishment under process of another court.</p> <p>3; Same — Proceeds in Admiralty — Juiilment op State Court.</p> <p>Reid, further, that the judgment of the state court constituted no claim upon the proceeds of the sale of the vessel. Chandler v. The Willamette Valley, 76 Fed. 838, reaffirmed.</p>

This is an intervening petition by the city of Cincinnati praying the court to direct its receiver to deliver over to the city, for occupation, by the Cincinnati Street Railway Company, portions of… Held: moreover, that the right of the Cincinnati Inclined Plane Railway Company to operate its inclined plane over Miami, Dorsey, and Baltimore streets had expired.

<p>Tboveb and Conversion — Timbee Cut pkom Plumo Lands — Agreement with Government.</p> <p>The United States government, through an agent of the land office, seized certain logs which were in the possession of defendants, claiming that they had been unlawfully cut on an Indian reservation. Thereupon a contract was entered into between the government and defendants, by which it was agreed, in order to preserve the logs free of cost to the United States, that they might be removed to a boom in the Mississippi river at Minneapolis, with the distinct understanding that the government’s possession of the logs should not be questioned or impaired on account of such removal, and that nothing in the contract should impair any right of either party in the logs. The logs were removed to Minneapolis, and, it being found desirable to manufacture them into lumber, defendants gave bonds to the government, reciting the previous proceedings, and tho purpose to have the logs manufactured into lumber to preservo the property for the interest of all concerned, and conditioned for the payment of any judgment that might be recovered by the government against the defendants, in any form of action, on account of the premises. The defendants, after the logs were sawed, sold the lumber, and took tho proceeds. Held, that the government did not, by accepting the bonds, agree to relinquish its rights in the logs, or consent that the lumber made from them might be sold by the defendants for their own benefit, and, upon proving that the logs were wrongfully cut, it would he entitled to recover from the defendants for a conversion thereof, and not merely for a trespass on the Indian reservation.</p>

<p>1. Ratio]. Evidence — Construction of Contract.</p> <p>Evidence of the situation of the parlies, the subject-matter of the contract, and file circumstances under which it was entered into cannot' authorize a construction which would make it conform to what the parties may have secretly intended, but failed to express, but only to explain the terms actually employed, if the language is of obscure or doubtful meaning.</p> <p>2. Construction of Contract — Eatext Rights.</p> <p>By a contract between a patentee of rotary shuttle sewing machines and & corporation, the patents were lo be vested in a trustee; the-corporation was “immediately to engage in and carry on with energy the business of making and selling sewing machines during the life of the contract, and shall make such number of machines as to keep the supply as nearly as practicable up to the demands of the trade”; the contract was to endure during the life of the palent, unless terminated by the corporation by giving written notice; the corporation was to pay a fixed royalty “upon each machine manufactured by it embodying the principles covered by the first party’s patent,” but was not obliged “to make rotary shuttle sewing machines like any model that has been or may be construed [constructed] or settled upon as a standard, but it may from time to time make such changes as may seem to it expedient,” but no such alteration was to relieve it from paying royalties so long as the machine involved “any of the essential principles” covered by the patent; the corporation was to make monthly statements “of the number of said machines shipped from the factory,” and make settlements accordingly; it was expressly stated that the patentee did not guaranty the validity of the patents; and tire royalties were to cease whenever the patents should be decreed invalid by a court of competent jurisdiction. Held, that the corporation was not restricted to the manufacture of machines embodying the principles of the patent, or bound to pay royalties on all machines made, whether covered by the patent or not, so long as it did not terminate the contract by written notice, but was required only to make and pay royalties on machines sufficient to meet the demands of the trade for that machine, and that in an action for royalties it was entitled to show that the machines made and sold did not embody the principles of the patent.</p>

This was an application by Apgar & Co. for a review of the decision of the board of general appraisers affirming the action of the collector at Chicago in assessing duty upon certain imported goods. The circuit court affirmed the decision of the board, and the importers have appealed.

<p>Customs Duties — Reimportations—Identification—Tkeasuby Regulations — Boxes and “Shooks.”</p> <p>The circular letter of the secretary of the treasury of October 20, 1890, continuing in force articles 381-383 of the treasury regulations of 1884, prescribed the regulations under which proof should be made of the identity of American articles reimported, under paragraph 493 of the tariff act of 1890. Such regulations apply to boxes imported filled with fruit, which have been exported from the United States in the form of shooks, and proof of the identity of such boxes with the shooks exported, furnished in any other form than that prescribed by such regulations, will not entitle the boxes to free entry. 72 Eed. 46, reversed.</p>

<p>Customs Duties — Classification—Acetate op Coprait.</p> <p>Acetate of copper, though a variety of verdigris, and known commercially as “pure or distilled verdigris,” was dutiable under paragraph 76 of the tariff act of 1890, as a chemical compound, and was not entitled to free entry under paragraph 749 of the same act, as verdigris or subacetate of copper. 71 Fed. 954, reversed.</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 Southern District: of New York.</p>

This was a suit in equity by the Carter Machine Company against Pleasant H. Hanes and John W. Hanes, trading under the firm name and style of P. H. Hanes & Co., for alleged infringement of a patent for a tobacco flavoring machine. The circuit court dismissed the bill, and the complainant has appealed.

This was a suit in equity by the Gates Iron Works against the Birmingham Cement Manufacturing Company and others for alleged infringement of 10 patents relating to improvements in stone breakers. There was a decree in the circuit court for complainant upon 8 of these patents, and defendants appeal.

This was a suit in equity by the Thomson-Houston Electric Company against the Johnson Company and others for alleged infringement of a patent for traveling contacts for electric railways. The cause was heard on a motion for a preliminary injunction.

These were two suits in equity, broug'ht by the Thomson-Houston Electric Company against the Union Railway Company and others, and the RTew York, Elmsford & White Plains Railway Gom-panv and others, respectively, to restrain the alleged infringement of the Van Depoele patent, Yo. 495,443, for traveling contacts for electric railways. The cause was heard on motion for a preliminary injunction.

<p>PaTBXTS — TNPUrNGKMKN’T—PRELIMINARY In'JUNCTION.</p> <p>Preliminary injunction granted, on the strength of prior decisions, against the infringement of the Yan Depoele patent, No. 424,695, for a trolley frog or switch.</p>

This was a suit in equity by the Thomson-Houston Electric Company against the Union Railway Company and others to restrain the alleged infringement oí the Van Depoele patent, No. 495,443, for an electric trolley switching device.

This was a suit in equity by Carl E. Nilsson against C. B. Jefferson and others for infringement of a patent for an aerial ballet. The cause was heard on motion for preliminary injunction.

<p>Patents — Preliminary Injunction — Delay.</p> <p>A delay of five years in bringing suit, where defendant was operating under a subsequent patent, and the parties had factories in the same locality, and were engaged in active competition, luid fatal to an application for a preliminary injunction, there.being no allegation of inability to respond in damages.</p>

<p>Libel in rein for balances claimed for seamen’s wages. Decree for libelants, after allowing claimants to deduct certain allotments authorized by section 10 of the act of June 26, 1884, as amended by section 3 of the act of June 19, 1886, in coasting voyages, and allowing a charge of 10 per cent, above the wholesale price for such articles of wearing apparel as were furnished by the master from the slop chest during the voyage to certain of the libelants.</p>

<p>1. AGREEMENT TO ARBITRATE.</p> <p>The masters of two vessels which had collided, having differed as to whether a certain part of one vessel was injured thereby, agreed that a certain third person should examine it, “and say if any damage had been done, and to what extent.” Held, that this was not an agreement to submit to arbitration, especially as there were other matters in dispute to which the agreement did not refer.</p> <p>2. Collision — Damages—Loss of Charter.</p> <p>A vessel injured by collision while in harbor awaiting a charter held not entitled to damages based on a decline in charter rates while she was undergoing repairs; it appearing that, before the accident, she has declined higher rates, and was held above the market price while rates were falling.</p> <p>8. Same-Commissions on Repairs.</p> <p>The injured vessel is not entitled to commissions on the money disbursed in making repairs.</p> <p>4. Same — Superintendence op Repairs.</p> <p>A claim for money paid to a third person for superintending the repairs to the injured vessel cannot be allowed, where no reason is shown why the master, who was actually present, could not himself have superintended the repairs.</p> <p>5. Same — Costs—Offers of Settlement.</p> <p>Where the claimant of a vessel libeled for collision made reasonable offers of settlement, and, pursuant thereto, paid into court an amount equal to what was afterwards found due by the court, held, that he was entitled to his costs.</p>

<p>1. Removal oy Causes — Jurisdiction or Federa.!, Court.</p> <p>The jurisdiction oí the circuit court, in a ease removed from a state court, does not depend on the regularity oí the order for removal, nor on the makii% of such an order, but only on the removability of the cause, and the compliance with the statute in respect to removal.</p> <p>2. Same — Federal Question — Federal Corporation's and Receivers.</p> <p>A suit against a corporation of the plaintiff's state, jointly with the Union Pac. liy. Co., a corporation chartered by congress, and its receivers appointed by a federal court, such suit being also brought against the receivers, without leave, by virtue of the federal statute, is a suit arising under the laws of the United States, and, if brought in a state court, may be removed to a federal court.</p>

<p>A Motion to Remand to tbe State Court.</p>

<p>Federal Courts — Injunction against Proceedings in State Court — Insolvent National Banks.</p> <p>When a valid judgment has been obtained in a state court against a national bank, and the lien thereof has attached to its property, before the appointment of a receiver, Rev. St. § 720, applies to prohibit the issue of an injunction by a federal court, at the suit of the receiver, to restrain the enforcement of such judgment.</p>

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

<p>■Natüiialtzattox — Issuance oe Cektificate — Conclusiveness.</p> <p>, The administration of the oaths and issuing of a certificate to an applicant for naturalization by a court having jurisdiction of such applications constitute a judgment of admission to citizenship, which is conclusive as to the existence of the necessary facts and the status of the applicant; and such certificate cannot be set aside upon the ground that the facts were falsely represented to the court.</p>

<p>1. Decrees ov Orphans’ Court — Trustee’s Account.</p> <p>S., as executor of ¿is wife’s will, held a considerable amount of personal property and some real estate, one-lialf of both belonging to him under the will, and one-half going to him as trustee for his children. He filed an account of the personalty, in which he charged himself with §13,800, overpaid beyond the actual amount of property received, as if with an asset of the estate, and credited himself with sundry items, including large disbursements for general expenses of the estate and family, and $88,900, paid to himself as trustee for his children, which would be the correct amount of their interest, if the other items were correct, and the §13,800 overpayment represented an actual receipt of property. The account was approved by the orphans’ court as filed. Upon the theory that he was entitled to reimburse himself for this overpayment out of tire beneficiaries’ share of the real estate, he took and deposited with his own funds, in the hands of his second wife, a part of the proceeds of the sale of the infants’ share of the real estate. S. having died, and litigation having arisen in the United States circuit court, between his widow and his successor as trustee, seeking to reclaim from her hands the share of the proceeds of the real estate taken by S., the widow claimed the right to show the overpayment, and charge it against the payment to the infants’ estate, which the trustee resisted unless permitted to open the whole account, and show that the overpayment was properly chargeable against other items. 7/oM, that the circuit court could not go behind the decree of the orphans’ court for one purpose, and not for all, and would apply the rule that the adjudication of a competent court will be accepted as a settlement of the questions before it. 75 Fed. 157, reversed.</p> <p>2. Federal Jurisdiction — Citizenship of Trustee or Special Guardian.</p> <p>A testamentary trustee, or a special guardian appointed under a state statute for the sale of infants’ land, suing in either capacity, is not a mere guardian ad litem or next friend; and the federal courts have jurisdiction of a suit brought by him against a citizen of a state other than his own.</p> <p>3. Trustees — Dealings with Trust Funds — Notice to Third Parties.</p> <p>S., who held a mortgage as special guardian and trustee for his children, received a payment on the mortgage in a chock payable to him as guardian, •which he turned over to his wife, who deposited it in her bank, and afterwards returned a paid; of the sum to S., and expended a part under his direction for the maintenance of the children. S. claimed a right to the proceeds of the mortgage as his own, which his wife knew; but, it being afterwards lield that he was not so entitled, also kid, in a suit by the successor of S., appointed after his death, against S.’s widow, that she was chargeable with knowledge that the money was a trust fund, and was accountable for all of it but that returned to S., the principal of the trust fund not being applicable t.o the maintenance of the beneficiaries, and the widow being chargeable with knowledge of that fact.</p>

<p>1. Constitutional Law — Titles of Acts.</p> <p>The legislature of New Jersey, in 1861, by an act entitled ’‘An act to authorize the construction of a dock or wharf on Toms River,” authorized H. & D. to “erect and maintain” a dock or wharf in front of their lands on Toms river, to collect wharfage for the use thereof, and to hold and enjoy the same, to themselves, their heirs and assigns. Held, that the object of the act was sufficiently expressed in its title, under article 4, § 7, el. 4, of the constitution of New Jersey.</p> <p>2. Legislative G-iiants — Transfer of Title — Wharves.</p> <p>Held, further, that it was unnecessary that such legislative grant should be supplemented by a formal instrument under the seal of the state, in order to convey title.</p> <p>8. Same — Adverse Possession.</p> <p>Held, further, that the fact that when the act was passed the title to the upland was in H. alone, and not in H. and E>., could not affect the title of a grantee from II. and D. after 35 years’ possession of the wharf by them and their heirs and assigns.</p> <p>4. Same — Private and Public Wharves.</p> <p>Held, further, that the words of the act were sufficient, under the law of New Jersey, to convey a fee in the wharf to the grantees, and the wharf did not become a public wharf, subject to the use of the public on payment of wharf-age. O’Neill v. Annett, 27 N. J. Law, 290, followed.</p> <p>5. Same — Certainty of Grant.</p> <p>Held, further, that the grant was not void for uncertainty, exactness of location having been supplied when the dock was built.</p> <p>6. Same — Accretions.</p> <p>Held, further, that, absolute ownership of the dock and the shore being shown, a small piece of land, formed by accretion, in the angle between the dock and the shore, belonged to the shore owners. 71 Fed. 914, affirmed.</p>

<p>1. Landt.okd .vxn Tenant — Lien ox Futuke Property,</p> <p>An equitable lien in favor oE the lessor oí a sugar house, on future bounties paid to the lessee for sugar there manufactured, may be created by stipulation in-the lease.</p> <p>2. Same — Le-for'i. Statutory Lien — Oblkjattoxs of Lease.</p> <p>The lessor’s privilege given by Rev. Giv. Code La. art. 2705, as security for the rent and “other obligations oí the lease,” secures an unpaid balance due the lessor of a sugar house for crojis of cane sold to the lessee, under a stipulation in the lease that the lessor shall sell, and the lessee buy, such crops, on conditions specified.</p> <p>3. Same — i) -FAiLr of Lessee — Damages.</p> <p>The lessor cannot recover for losses caused by the lessee’s default, where he might have protected himself against such losses by due diligence.</p>

<p>1. Mortgages to Secure Bonds — Duties op Trustee — After-Acquired Property.</p> <p>That a mortgage by a waterworks company to a trustee to secure an issue of bonds recites a purpose to extend the plant, and that it also contains a clause covering future-acquired property, and a covenant for further assurances, does not impose on the trustee a continuing duty to the extent of requiring it to take notice of what the mortgagor does with the money, or of the property which it purchases.</p> <p>2. Trusts — Prior Equities — Notice to Trustee — Rights of Beneficiaries.</p> <p>The doctrine that notice to the trustee is notice to the beneficiaries is of special significance only when the trustee is one of mutual selection by the grantor of the trust and the beneficiaries; and must not, when he is primarily a mere, agent of the grantor, be applied so stringently as to defeat the equitable rights of the beneficiaries. Especially is this true when the beneficiaries are purchasers, from the trustee named in a mortgage, of negotiable bonds secured thereby, which were issued by the grantor to the trustee.</p> <p>8. Mortgages to Secure Bonds —Prior Equities —Notice to Trustee and Bondholders.</p> <p>The N. Water Co., owning a plant in Kansas City, Mo., mortgaged the same to a trust company, to secure an issue of negotiable bonds. The mortgage recited that the purpose of the loan was to extend the plant; and it contained a clause covering future-acquired property, and also a covenant for further assurances. The N. Co. bought all the stock of another water company (which subsequently became the K. Co.), having a plant in Kansas City, Kan., and, by connecting the same with the Kansas City, Mo., plant, reached a new source of supply. Thereafter the N. Co. caused the K. Co. to execute a mortgage to the same trust company on its plant in Kansas, to secure a new issue of negotiable bonds. Held, that innocent purchasers of these bonds were entitled to rely upon the fact that the record title to the plant in Kansas was in the K. Co., and were not chargeable with the knowledge which their trustee had, or might have had, that the property was equitably within the after-acquired clause of the mortgage given by the N. Co.</p> <p>4. Notice from Adverse Possession — Joint Possession.</p> <p>Before one can be deprived of rights based on the record evidence of title, on the ground of notice from adverse possession, it must appear that such possession was open, notorious, and unequivocal; and no joint and indefinite possession, such as that of two corporations, one of which owns ■ all the stock of the other, through officers, who are officers of both, is sufficient to give notice of the equitable rights of one as against the record title of the other.</p>

<p>Officers — Process of Inferior Coorts — Protection.</p> <p>When a court which, though of inferior and local jurisdiction, has general jui'isdiction with respect to the violation of the ordinances of a town, entertains a complaint under such an ordinance, and thereupon issues process, fair on its face, to an officer, the process is a justification to the officer in doing the acts thereby required, notwithstanding the ordinance under which the court acts is invalid; and no action lies against the officer or the sureties on his bond for his acts done pursuant to such process.</p>

<p>On Motion to Direct a Verdict for Defendant at the Close of all the Evidence.</p>

This is a writ of error, brought by the plaintiff in error, who was defendant below, to reyiew a judgment in favor of defendant in error (plaintiff below), entered in the circuit court, Southern district of New York, upon the verdict of a jury. Williams, the plaintiff, was an architect and builder, and the owner of the premises at No. 32 Lafayette Place, in the city of New York. He constructed a building thereon, and leased the four upper floors to the defendant.

<p>Registfk or Land Office — Office Rent — Liabii.itt of United States.</p> <p>There is an implied contract on the part of the United States to refund, to a register of the land office, office rent necessarily paid by him, in order to have and maintain an office necessary to the conduct of the land office business in his district.</p>

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

<p>This was an indictment against John B. S. Brazeau for violation of the laws to prevent improper use of the mails.</p>

<p>J. Customs Duites — Drawback—Linseed Oii. Cake.</p> <p>Oil cake, made from linseed by the separation thereof into linseed oil and oil cako, is an article of manufacture, and, when made in the United S1at.es from imported linseed, is entitled, upon exportation, to the drawback provided by section 22 of the tariff act of 1891 (28 Stat. 551).</p> <p>2. Same — Amount op Drawback.</p> <p>The amount of drawback payable on the exportation of oil cake made from imported linseed is to be calculated in proportion to the amount of linseed entering into such oil cake, by weight, and not in proportion to the respective values of the oil and oil cake made from the linseed.</p> <p>Sami;.</p> <p>It. seems that when, by the treatment of an imported article, a valuable thing is produced, leaving a refuse of no value, no drawback would be allowable, under section 22 of the tariff act of 1894 (28 Stat. 551), upon exportation, of such refuse.</p>

<p>TBADE-MABKS — IXFRIXGKMENT—■“ C.Uil.SlUl) ” jVÍIXURAl. WATFR.</p> <p>From the discovery of the Carlsbad spring, in 1870, to 1845, none of its ■waters were exported from the city, the policy of the city being to attract invalids to that place. For 24 years before the first exportation, artificial Carlsbad, made after the anaylsis of the genuine, was sold at many places in Europe, and became very popular. After’ exportation of the genuine water’ was begun, the sale of the artificial was continued in Europe, and has continued to the present day, without deception or confusion. Twelve years before the real Carlsbad was first imported to this country, defendant began to make and sell his artificial Carlsbad, built up a large business therein, and continued the same without protest for 34 years. His labels and bottles are radically different from those of complainants, in which the real Carlsbad is now sold here. Held, that defendant had a right to continue the sale of his product, but should be enjoined from using “Carlsbad” unless accompanied by some word (as “Artificial”) plainly indicating that the water is not the natural spring water.</p>

This was a suit in equity by George B. Wilson, Henry D. Moore, and John O. Gilmore, partners doing- business under the firm name of W. E. Garrett & Sons, against T. H. Garrett & Co., a corporation, to restrain the alleged wrongful use of a trade name or mark and of imitative labels.

This was a bill alleging infringement of BO different copyrights relating to, or covering parts of, Amberg’s Directory System of Indexing. Each copyright was for an index covering a letter or portion of a letter of the alphabet, so that in1 the complete system BO indexes were employed, which had been severally copyrighted. Each index was provided with leaves arranged loosely, so that they could be separated, and letters indexed or temporarily filed in their proper places.

<p>This was a suit in' equity by the Blakesley Novelty Company against the Connecticut Web Company and Louis Neuberger for alleged infringement of a patent.</p>

This was a suit in equity by Arnold Sessier and Arnold Sessier & Co. against Samuel Borchardt for infringement of the Sessier patent, No. 525,746, for an “improvement in insoles for slippers, etc.” The alleged infringing slipper was made according to letters patent No. 539,387. issued May 14, 1895, to the defendant.

<p>This was a suit in equity by the Dewey Electric Heating Company against the Albany Railway for alleged infringement of a patent.</p> <p>This is an equity suit for infringement based upon letters patent, No. 464,247, granted to Mark W. Dewey, December 1, 1891, for improvements in electric-heating apparatus. The patentee says in the specification: “The objects of my invention are to provide an electric heater that will produce a great amount of heat, expose a large radiating surface, and yet not occupy much floor space. Also, to provide a heater having its resistance divided into sections, and so arranged that if any one of the sections becomes injured it may be repaired without cutting off the current from the entire heater or the other sections of resistance. Also, to provide the heater with an adjustable switch or current controller, so that the heat may be regulated as desired. The switch may be provided with an indicator to show the amount of current flowing through the heater or the number of sections of the resistance in circuit. To this end my invention consists in the combination of a plurality of cases, an electric heat-developing conductor within each of said cases, and a frame to hold or support said cases. Also, in the combination of supply conductors, a plurality of eases, an electric heat-developing conductor within each of said cases, and connected with the supply conductor in parallel, suitable means to hold said cases apart and a switch to, cut out of circuit one or more of the heat-developing conductors.” The ninth claim, the only one involved, is as follows: “(9) In an electric heating apparatus having heating conductors or sections adapted to be connected in different ways with the supply conductors, a switch for controlling said connections, and an indicator operated by the movement of the switch to indicate how the connections stand.” The defenses are anticipation, lack of novelty, and invention and noninfringement.</p>

This was a suit in equity by the Ewart Manufacturing Company against James H. Mitchell for alleged infringement of a patent for an improvement in chain cables.

<p>1. Patents— Agreement to Assign.</p> <p>An agreement to assign future patents, in consideration of the assignee’^ paying the expenses of taking them out, is broken by his refusal to pay for and take out in his own name, as assignee, a particular patent, when so requested by the inventor; and a subsequent assignment to another conveys a perfect title.</p> <p>2. Same — Validity and Construction — Brick-Mold Banding Machines.</p> <p>The Buck patent, No. 499,200, for improvements in brick-mold sanding machines, was not anticipated by a prior patent to the same inventor, and is for a new, valuable, and patentable combination, whereby, by means of a yielding mold-feeding rack, the molds are fed automatically to the revolving drum.</p> <p>3. Same — Invention.</p> <p>There is no invention in providing an iron plate with elongated holt holeb where the parts must be moved slightly to effect a proper adjustment.</p>

This was a suit in equity by the Fairbanks Wood Rim Company against Edward S. Moore for alleged infringement of a patent relating to bicycle rims. . .The patent in controversy, No. 496,971, was granted to Fairbanks and Berio, May 9, 1893, for improvements in rims for bicycle wheels. The invention consists in providing a wood rim for bicycle wheels in place of the metal rims theretofore used.

This is a bill ⅛ equity, in usual form, by Bobert G. Thomasson, appellant, agaiust Charles W. Bumpass and William MeCandlish, appellees, praying an injunction and other relief for the infringement of appellant’s patent, No. 444,561, dated January 1⅝ 1891, for an improved poultry crate to be used in shipping live poultry. The defenses principally relied upon by the appellees are noniri-fringement and -want of patentable invention.

<p>This was a suit in equity by Bead Holliday & Bons, Limited, against Paul Schulze-Herge, Victor Kocchl, and August Movius, for alleged infringement of a patent</p>

This was a libel in personam by Barzillia Bramble and Henry W. Elliott, owners of the schooner William Farren, and Calvin A. Murphy, her master, against James W. Culmer and Thomas B. Schall, to recover for the loss of said schooner, while under charter to the defendants. The district court dismissed the libel on the merits, and the libelants have appealed.

'Appeal from the District Court of the United States for the District of Maryland. This was a libel in admiralty by Eobert M. Spedden and Harvey E. Birch, trading as Spedden & Birch, in personam, against George Koenig and Nicholas B. Ford, part owners of the steam tug May Bussell, to recover for supplies furnished for her use. The circuit court dismissed the libel, and the libelants have appealed.

<p>L Seamks — Assign-mbnt op Wagkk — Part Owsbhs.</p> <p>Persons employed as hunters for a sealing voyage, by the master, from whom they had purchased interests in the vessel, agreeing that half their wages might be applied to tile purchase price, held to be within the protection of Rev. St. § 4536, forbidding the assignment of mariners’ wages.</p> <p>2. Samk — Lion.</p> <p>Persons employed as seal hunters, after purchasing interests in the vessel from the master, and giving mortgages thereon Cor unpaid balances, may, as against the master and other part owners, maintain a suit in rem for their wages.</p>

<p>On July 29, 1896, Divine Burtis, Jr., filed a libel against the steam tug Glen Iris for repairs, from April 18, 1895, to June 2, 1898, under which the tug was attached, and afterwards, on August 26,1896, sold for $1,050.</p> <p>On July 31st, tlie Moqum-Offerman-Heisseabuttel Coal - Company filed a libel against the tug ior coal furnished on monthly bills between June 1, 1895, and July 31, 1896, claiming a lien on the tug as a domestic vessel under the New Toxic statute of April 24, 1862, and its amendments. On August 3d, Robert Keasbj’ filed a libel against the tug for supplies and repairs furnished in December, 1895, also claiming a lien under the state statute. On August 7th, Joseph Meron, owner of the canal boat Gen. S. Moflitt, filed a libel against the tug for a collision occurring on June 28, 1896. On August 11th, H. G. Townsend and two others filed libels against the tug for wages. On August 12th, Caroline Rutlier filed a libel against the tug for supplies furnished between May 16, 1896, and July 7, 1896, claiming also a lien under the state statute. On the same day, Bernard H. Seemann filed a libel against the tug for supplies furnished between May 16 and July 7, 1896, claiming a lien under the state statute. On August 17th, George E. Lanagan filed a libel against the tug for repairs made between July 7 and 14, 1896, claiming a lien under the state statute. On August 19th, Eugene Sullivan filed a libel against the tug for wharfage from February 14, 1S95, to June 12, 1896, claiming also lien under the state statute. No appearance was made on behalf of the tug m$ any of the cases. Upon reference to the commissionei-, testimony was taken in the several cases, and upon the commissioner’s report a decree was entered in each case against the tug for the amount found to be due, the aggregate considerably exceeding the proceeds of the sale of the tug. The decree for seamen’s wages was paid in full, and the causes are now brought on for hearing as to the disposition of the remainder of the proceeds of the sale of the tug.</p>

<p>Jurisdiction or Courts--Claims against United States — Cancellation or Judgment Lien.</p> <p>Ghapier 359, Acts 1887 (Supp. Rev. St. p. 559), giving the court oí claims and district, courts jurisdiction to hear and determine claims' against the United States, does not authorize those courts to entertain a petition to cancel a judgment lien alleged to have been unlawfully placed upon the property of the petitioners by an oflieer. of the United States in an attempt to enforce a judgment recovered by the United States.</p>

<p>Appeal — Final Degree.</p> <p>A decree dissolving a partnership, enjoining, “until the final decree in this suit,” both parties from disposing of the partnership property, directing that testimony be taken before a commissioner as to moneys claimed to have been advanced to the partnership by complainant, and that costs shall “abide the further and final decree of this court,” is not a final, appealable decree.</p>

<p>1. Jurisdiction of Circuit Court of Appeals — Interlocutory Decree foe Injunction-.</p> <p>In a case in which a final decree would bo appealable to the circuit court of appeals under sections 5 and 6 of the act of March 3, 1891, an appeal will lie to that court, under section 7, from an interlocutory decree granting an injunction, even though such appeal raises only the question of the lower court’s jurisdiction.</p> <p>2. Same — Appealable Interlocutory Decree — Incidental Injunction.</p> <p>In a decree which appoints a receiver for a corporation, orders its officers to deliver the property into the receiver’s hands, and enjoins them from interfering further with it, the injunction, while incidental to the appointment of the receiver, is not merely nominal, but forms a substantial part of the decree, and is therefore appealable. Such an appeal, however, raises only the question whether, assuming the receiver to have been properly appointed, the injunction was improvidontly granted.</p> <p>3. Jurisdiction' op Circuit Courts — National Bank Receiverships.</p> <p>Under the provision in the judiciary act of 1887-88, that “the provisions of this section” shall not affect the jurisdiction of the circuit courts in cases for “winding up the affairs” of any national bank, the circuit courts have at least concurrent jurisdiction (whether exclusive or not is not decided) wilh the state courts in cases of that kind, without regard to the citizenship of the parties.</p> <p>4. Same — Conflict of Jurisdiction — Oomitt—Appointment op Receivers.</p> <p>A state court appointed a receiver of a national hank, hut he never obtained possession of its property. The original complainant discontinued, and the defendant filed a motion to dismiss, but no formal order of dismissal was entered. Held, that the pendency of the suit in lhat condition was no bar to a subsequent suit between the same parties in a federal court for the appointment of a receiver, etc.</p>

<p>1. Eminent Domain — Damages.</p> <p>In estimating the value of land taken for a public-use, its value for such' use is not to be considered. Boom Co. v.' Patterson, 98 U. S. 403, distinguished.</p> <p>2. Same.</p> <p>An estimate of the value of land taken for a public use should not be based upon the adaptation of the land to a special purpose, in the absence of anything to show a reasonable expectation of some demand at some time for the use of the land for that purpose. '</p> <p>3. New Trials — Practice in Federal Courts — State Practice.</p> <p>The discretion of the courts of the United States to grant new trials is not affected by state laws on the subject, and a new trial may be granted by a federal court for an error of law affecting a substantial right, though no exception has been taken to the ruling, and the error has not been urged on the hearing, and though a state statute requires an exception in such a case.</p>

<p>1. Eminent Domain — Measure of Damages.</p> <p>In estimating the value of land taken for a public use, its value for such use is not to be considered.</p> <p>.3. Same.</p> <p>An estimate of tbe value of land taken for a public use should not be based upon the adaptation of the land to a special purpose, in the absence of anything to show a reasonable expectation of some demand at some time for the use of the land for that purpose.</p> <p>8. New Trial — Discretion op Court — State Practice.</p> <p>The discretion of the courts of the United States to grant new trials is not affected by state laws on the subject, and a new trial may be granted by a lederal court for an error of law affecting a substantial right, though no exception has been taken to the ruling, and the error has not been urged on the hearing, and though a state statute requires an exception in such a case.</p> <p>4. Samp — Concurring Verdicts.</p> <p>Two verdicts, assessing the value of lands taken for public use at different sums, do not amount to two concurring verdicts. U. S. v. »3eufert' Bros. Co., 78 Fed. 520, reaffirmed.</p>

<p>1. Corporations — Illegal Stock — Suit to Cancel — Equity Jurisdiction.</p> <p>Where one has made a single purchase of a number of shares of the stock of a corporation, and afterwards discovers that a part of the stock of such corporation has been illegally issued, but cannot identify any particular shares of the stock purchased by him with the illegal issue, equity has no power to aid him in electing to cancel a proportional part of his stock, or to decree that any part of his stock is valid and the remainder invalid.</p> <p>2. Same — Multifarious Bill.</p> <p>A bill by a stockholder of a corporation which seeks, on his own behalf, to cancel a part of the stock held by him as invalid and to relieve him of the burdens of ownership thereof, and, on behalf of all the stockholders, to set aside transactions by which the property of the corporation has been diverted and misapplied, is multifarious.</p> <p>3. Same — Bona Fide Purchase of Stock — Equities.</p> <p>Shares of stock in a corporation are not negotiable securities governed by the law merchant, and one who purchases such shares for value, in good faith, acquires thereby no rights or equities in respect to the stock which did not belong to his transferror or assignor.</p> <p>4. Same — Suit by Stockholder in Behalf of Corporation.</p> <p>Under the ninety-fourth equity rule, it is not a sufficient excuse for the failure of a stockholder, suing to enforce rights of the corporation, to attempt to obtain remedial action by the corporation, that five of the seven directors who participated in the fraudulent transactions sought to be set aside are still members of the directory.</p>

This was an action of ejectment by Eliza J. Jones against Philip Wilkey. A jury was waived, and the case was tried by the court.

This was a suit in equity by Eugene O’Connell and others against the Central Bank to set aside a mortgage made to the latter by the Oakland Box & Barrel Manufacturing Company.

<p>1. Suit ttstdek Wtll — Necessabt Parties — Legatees.</p> <p>One M. made his will, in 1880, leaving his estate to be equally divided among his four children and a grandson, the son of a deceased child. The will also referred to advances made by the testator to his children, and charged to them on his books, and declared that the provision made by the will was to be in addition to such advances, and that, in the settlement of his estate, such advances already made, and any that should be afterwards made, should not be treated as advancements, but as gifts, not in any manner to be accounted for by the children or grandson. Some time after the making of this will, W., one of M.’s sons, met with financial disaster, and became very deeply involved. M. then directed J., another son, to do what was necessary to relieve W., and thereafter, through J., advanced very large sums to pay W.’s debts, taking W.’s notes therefor, and taking-assignments of collateral from some of W.’s creditors. Shortly before the death of M., and when it was expected, the persons who afterwards became administrators with the will annexed took from W. a paper authorizing the application of his share of his father’s estate to these notes. This paper W. afterwards revoked, and then revoked the revocation, and afterwards gave the administrators a receipt for nearly the whole amount of his share of the estate by its application to the payment of the notes, and thereafter he received the remaining collaterals, taken by-his father when ho paid W.’s debts, and which had not been realized on by him. In the meantime, in a suit instituted against W. by his wife, a decree ■ had been entered, pursuant to which he conveyed to trustees, for the benefit of his family, all his interest in his father’s estate. The trustees under this deed brought suit against the administrators executing M.’s will to set aside the receipt given to them by W., to establish W.’s right to his interest in his father's estate-, and tor an accounting thereof. Held, that the legatees under: M.’s will were not necessary parties to the suit, either as it was thereby sought to set aside W.’s receipt or as it was sought to establish W.’s interest in the estate notwithstanding the advances to him.</p> <p>8. Construction- of Will — Advances.</p> <p>Held, further, that the dominating purpose of M.’s will was that the property he should leave at his death should be equally divided among his children and grandchild, irrespective of previous advances, and, while a debt from a legatee might be created which would be independent of the absolution accorded by the will, to establish the creation of such a debt would require clear proof of the existence of a distinct purpose on the part of the testator himself, at the time of the transaction, to put such debt outside the pale of the forgiveness written in the will, and that the advances made to W., for which his notes were given, though debts during M.’s life, were not shown by the evidence To be outside the provisions of the will, and they were extinguished on M.’s death.</p> <p>3. Estoppel — Rkoatke’s Receipt.</p> <p>B eld, further, that the receipt of the collaterals, to which he became entitled upon the extinguishment of his debt, did not estop W. to dispute the receipt given to the administrators, and that, in view of the position of trust in which the administrators stood towards W., the receipt procured by them from him, by which, without legal obligation to do so, lie surrendered the greater part of his share of the estate, would not be permitted to stand in the way of the enforcement of his rights in the estate of M.</p>

ern District of Texas. This was a, suit in equity by Mrs. A. E. Fitzhugh and her husband, L. H. Fitzhugh, against Mrs. Fisher Hazzard, to enjoin the latter from prosecuting an action of ejectment; complainants claiming to be the equitable owners of the land in controversy, as their homestead.

<p>Banks and Banking — False Statements — Action against Directors by Depositor— Pleading. '</p> <p>In an action of deceit against the directors of a bank for making false statements 'as to its condition, whereby the plaintiff was induced to leave in the bank a deposit, previously made, which was lost by the failure of the bank, it is not sufficient to allege that the plaintiff was induced to remain a depositor ■by the statements so made, but it must be directly averred that, but for such statements, he would' have withdrawn his deposits before the failure of the bank.</p>

This was an. action at law by Addison G-. Ricaud, receiver of the First National Bank of Wilmington, against Fannie D. Tysen, to recover an assessment made by the comptroller of the currency on certain shares of the bank’s stock. The case was heard on plaintiff’s demurrer to the answer, which set up a prior adjudication as an estoppel.

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

<p>Life Insurance — False Statements in Application — Answers by Agent.</p> <p>The F. Ins. Co, issued a policy on the life of M., which was recited on its face to be issued in consideration of the application, which was made a part of the policy, and a copy of which was thereto attached, and to be subject to the conditions thereon indorsed, one of which was that, if any statement in the application was false, the policy should be null and void. The application concluded with a provision that all statements contained in it, by whomsoever written, were warranted to be true, and that no verbal statement, to whomsoever made, should modify the contract. Upon the trial of an action on the policy, it appeared that M. made the application at the solicitation of an agent of the insurance company; that such agent had a short conversation with him when he was in a hurry, and, after answering a few questions, he told the agent to finish the application himself, and he would sign it and leave it for the agent to finish, which the agent did; that the answers to questions in the application as to M.’s health and his habits of drinking were totally at variance with the facts, which were such as, if known, to make the acceptance of M.’s application very unlikely. Held, that the .insurance company was not estopped to deny the validity of the policy, and a verdict in its favor was properly directed by the court.</p>

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

In .Error to tbe Circuit Court of the United States for the Eastern Division of the Southern District of Ohio. The action was begun by the Baltimore & Ohio Railroad Company against Alfred Weedon, the clerk of the court of common pleas of Guernsey county, and his official bondsmen, to recover damages for an alleged breach of Weedon’s official' duty as such clerk.

This was an. action at law by Richard J. Swancoat against Charles Remsen, William Manice, Daniel Kimball, and Thomas W. Moore, The plaintiff’s complaint alleged that the Austin Consolidated Coal Company was a stock corporation, organized under the laws of New York for business purposes other than moneyed and railroad; that on July 1, 1885, said Austin Consolidated Coal Company executed and delivered to the plaintiff its 17 coupon bonds for $500 each, principal payable July…

<p>In Error to the Circuit Court oí the United States for the District of South Carolina.</p> <p>On January 4, 1896, the Atlantic Trust Company, a corporation of New York, filed in the court below its petition for a. mandamus against the town of Darling-ton, a corporation of South Carolina, alleging that on September 31, 1894, it had recovered in the said court, against the town of Darlington, a judgment for the sum of $6,873.60 and costs, the said judgment being for certain unpaid coupons due by the said town of Darlington; that demand had been made for the payment of the said judgment on the mayor and aldermen of the town, who failed and neglected to pay it; that there was no corporate property of said town subject to execution; that execution had been returned nulla bona; and that the petitioner had been unable to obtain payment of said judgment. The prayer was for a mandamus commanding the said town and the town council thereof to pay the judgment, interest and costs, and, if there were no sufficient funds in the treasury, then to levy a tax sufficient to raise the amount. The town of Darlington, in its return to the petition, for cause why the mandamus should not issue commanding a tax to be levied sufficient to pay the debt, set up that the coupons which were the cause of action upon which the judgment was recovered were interest coupons on bonds issued by the town of Darlington to aid in the construction of the Charleston, Sumter & Northern Railroad, in pursuance of an ordinance of the town passed under authority of an act of South Carolina amending the charter of the town, approved December 24, 1889; and that the town had no power to levy a tax for the payment of this debt, except a tax not exceeding 50 cents on each $100 of taxable property. The case came on to be heard upon the petition and answer, and the court ordered the mandamus to issue, directing that, at the time of the next annual town tax levy, there should be levied and collected, in the same manner as other taxes, a tax sufficient in amount to pay the judgment, interest, and costs. The town of Darlington then sued out this writ of error.</p> <p>In entering its decree, the court (Judge Simonton) filed the following opinion (63 Fed. 76), which fully states all the additional facts:</p> <p>“This is a petition for a mandamus. The petitioner, the Atlantic Trust Company, obtained in this court a verdict against the defendant, the town of Darling-ton, and entered up judgment in the sum of seven thousand one hundred and ten and 62-100 dollars. 63 Fed. 76; Id., 16 C. C. A. 28, 68 Fed. 849. Execution has been issued, and has been returned nulla bona. The officials of the defendant say that there is no money in the treasury to pay this debt. The causes of action on which judgment was obtained were coupons on bonds issued in aid of a railroad company. The plaintiff in execution now prays ‘that a writ of mandamus may issue against the said town of Darlington, and against the city council thereof, commanding them to pay forthwith to the petitioner the amount due on said judgment, with interest and costs, and, in the event that there are at the present time no funds in the treasury of the said town of Darlington sufficient for that purpose, that the said town be ordered and directed by said writ to levy a sufficient tax upon the property of the said town for the purpose of raising an amount sufficient to pay said judgment and interest, thereon and costs.’ This is the proper course in a case oi! this character, the mandamus being in the nature of an execution. Chanute City v. Trader, 132 U. S. 210, 10 Sup. Ct. 67.</p> <p>“The answer of the defendant in execution sets up several defenses. At the hearing, these were abandoned except one. That is that under its charter the town of Darlington has power to levy but fifty cents on each one hundred dollars of the real and personal property assessed for and liable to taxation to pay interest -on bonds issued in aid of railroads. It has been assumed, and it seems conceded, without, however, a statement of the figures, that such a levy would not pay this debt. The sole question ⅛ the case, then, is: Is the town of Darlington, by its charter, limited to the levy of an annual tax of fifty cents on eacli one hundred dollars of taxable property, for the purpose of paying interest, on bonds issued in aid oi railroads? The charter of this town is found in 18 St. at Large S. 0. p. 023. In this act this section occurs: ‘Sec. 16. That the mayor and aldermen shall have the power and authority to impose taxes each year for the use of said town, that is to say, not exceeding fifty cents on each one hundred dollars worth of real and personal property being in the limits of said town, except the property of churches, charitable associations and institutions of learning. The value of sucii rea.1 and personal property, for the purpose of taxation, shall be fixed and assessed as hereinafter provided.’ The twenty-ninth section of the same act authorized the mayor and aldermen, upon being authorized thereto by a majority vote of the said town, to borrow money for the purpose of internal improvements, and to issue bonds or scrip therefor, at an interest not exceeding 7 per cent, per annum, and payable out of the taxes and income of the town. In 1889 (20 St. at Large, p. 504) this act was amended. In the sixteenth section was inserted a proviso as follows: ‘Provided, that if the said mayor and aldermen should hereafter issue bonds for the purpose of aiding in the construction of railroads, then they may impose an additional tax to raise a sufficient amount to pay the interest on said bonds, which additional tax shall not exceed fifty cents on each one hundred dollars worth of real or personal property as above provided;’ the concluding words of the sixteenth section, ‘The value of such real and personal property,’ etc., being retained. The twenty-ninth section was amended also, alter the clause permitting the borrowing of money for internal improvements, and the issuing of bonds or scrip therefor, by the insertion of a proviso: ‘Said principal of bonds and scrip shall at no time exceed £5,000, except for the purpose of aiding in the construction of railroads and for that purpose the said mayor and aldermen may issue bonds or scrip in any amount.’ Note that this authority to borrow was for internal improvement, limited as to all other modes of internal improvement to £5,000, without limit'as to railroads; thus recognizing railroads as in the class of internal improvements. The bonds to which the coupons in this case belonged weie issued after the passage of this amendment. In 1891 this charter was again amended in several particulars. Those only requiring notice are these: Section 16 was amended in a peculiar way. The third section of the act declares: ‘In section 16 strike out after the word town on 3rd line the words “that is to say not exceeding fifty cents on each one hundred dollars worth of,” and insert instead thereof the words “on all.” So that said section as amended will read: “Sec*. 16. That the said mayor and aldermen shall -have tice power and authority to impose taxes each year for the use of the town on all real and personal property being in the limits of the town, except the property of churches, charitable associations and institutions of learning. The value of such real and personal property for the purpose of taxation shall he fixed and assessed as hereinafter provided.” ’ It will be observed that this section is precisely like the original section 16 in the charter, except that the power of taxation is unlimited, and not confined to fifty cents on the hundred dollars. No notice whatever is taken of the act of 1889 and the proviso attached by it to this section. Indeed, the act of 1891 proposes to amend act of 1884, saying nothing of act of 1889.</p> <p>“If it be concluded that, by the operation of the amending act of 1889, section 16 was eliminated from the act of 1884, and section 16 as amended inserted* in lieu thereof, and that, by the operation of the amending act of 1891, section 16 of the charter reads as if in the act of 1891, this would end this question. Under the act of 1891, the town council would have unlimited power of taxation, with no reference to railroads or any restriction thereon. There is much to be said in favor of this construction. The act of 1889 was intended to authorize the issue of bonds in aid of railroads, and applied to such bonds thereafter issued as an inducement to their purchase. The bonds were issued to an amount which exhausted the constitutional limit. At the time of the passage of the act of 1891. there was no necessity of this kind for the special railroad tax, and this act withdrew all restriction on the taxing power for the use — not the uses —of the town. The twenty-ninth section of the act of 1884 recognizes that'bonds in aid of railroads are for the purposes of internal improvement of the town, and makes them payable out of the taxes and income of the town. In addition to this, it will be seen by an inspection of section 16, as amended in the act of 1891, it concludes with the concluding sentence of the acts of 1884 and 1889 complete, leaving out the-limitation of the power to tax and the proviso also-. But this construction may be doubtful. The act of 1891 does not repeal the act of 1889 in express terms. There are no repealing words in the statute. Repeal by implication is not resorted to except in cases of absolute necessity or patent inconsistency. Chew Heong v. IT. S., 112 U. S. 536, 5 Sup. Ct. 255; Chicago, M. & St. P. Ry. Co. v. U. S., 127 ü. S. 406, 8 Sup. Ct. 1194.</p> <p>“It is not unreasonable to suppose that the legislature treated the charter of this town as containing a section 16, changed from its original language by the addition of the proviso with regard to bonds issued in aid of railroads, and that by the act of 1891 its purpose was simply to remove the restriction of the power to tax from fifty cents on the hundred dollars, and to substitute therefor unlimited power to tax; that, this being its purpose, it repeated only so much of amended section 16 as was changed, to show the change. We would then read the section as follows: ‘That the said mayor and aldermen shall have the power and authority to impose taxes each year for the use of said town on all real and personal property being in the limits of said town, except the property of churches, charitable associations and institutions of learning: provided that if the said mayor and aldermen sh.ould hereafter issue bonds for the purpose of aiding in the construction of railroads, then, they may impose an additional tax to raise a sufficient amount to pay interest on said bonds, which additional tax shall not exceed fifty cents on each one hundred dollars worth of real and personal property as above provided. The value of said real and personal property for the purpose of taxation, shall be fixed and assessed as hereinafter provided.’ It may be noticed here that this act provides for an annual tax for the use of the town and for bonds in aid of railroads, the money to be raised and expended annually. So the provision clearly is for the annual or current interest. This view is strengthened by the limitation. The constitution .limits this power of subscription to eight per cent, on the taxable values of the municipality. Public bonds draw six per cent, interest usually. Six per cent, interest on eight per cent, of taxable value is forty-eight cents on the one hundred dollars. Provision is thus made for the annual necessities of the town. If the provision is not acted upon, and the annual increment of interest is passed, then the past-due interest becomes a debt of the town, not to be provided for by the special annual tax, but by the provision made for raising money for the use of the town, an important use being the payment of its debts.</p> <p>“The first question is: Is this provision for levy of a tax to pay interest on the bonds in aid of railroads the creation of .a fund from which such interest shall be paid, involving the idea that it cannot be paid out of any other funds? There is no such provision in the act, and none can be fairly implied. The language of section 29, Acts 1889 (20 St. at Large, p. 504), is this: ‘The mayor and aldermen may for the purpose of internal improvements borrow money, issue bonds or scrip therefor, bearing not a greater interest than seven per cent., payable at such times as they may think advisable, and payable out of the taxes and income of said town,’ out of the taxes and income without qualification. Then comes the proviso, limiting amount for all other internal improvements except aid in the construction of railroads to $5,000, and, for the latter purpose, putting no limit, but making no other change. So, in the proviso to sixteenth section, if said mayor and aldermen should hereafter issue bonds for the purpose of aiding in the construction of railroads, then they may (not shall) impose (not a special tax, but) an additional tax to raise a sufficient amount to pay the interest, etc. It is very clear that, if the taxes and income could pay this interest without resort to an additional tax, such tax need not be levied, or, if such interest could be paid in part without such additional tax, only so much of the additional could be levied to meet the deficiency. In other words, this additional tax is additional security. It is no uncommon thing in legislation to provide a particular fund as additional security for the payment of a debt. See U. S. v. Clark Co., 06 U. S. 214.</p> <p>“Macon Co. v. Huidekoper, 134 U. S. 332, 10 Sup. Ct. 491, is a case on all fours with the present case. Huidekoper obtained a judgment on'interest coupons of railroad bonds against Macon county. It was not paid. Under the mandate of the court, a warrant was issued upon the treasurer of the county for the amount of the judgment. It was presented for payment to the treasurer of the county, and payment refused for want of funds. The act incorporating the railroad company in whose aid the county bonds were issued authorized any city or town or the county court of any county to subscribe to the capital stock of this railroad company, and to issue bonds therefor, and to levy a tax to pay the same, not exceeding' one-twentieth of one per cent, upon the assessed value of the taxable property for each year. The law of Missouri authorized the county court to levy and collect annually a tax of fifty cents on the one hundred dollars, in addition to this one-twentieth of one per cent, for the railroad bonds. The one-twentieth of one per cent, could not pay the judgment. The county authorities had not exhausted their power to tax for county purposes. The general tax levy being less than fifty cents on the one hundred dollars, a mandamus was asked for requiring them to levy a tax up to their limit, and to apply the proceeds of the levy, among other things, to this judgment. The court held that, after the application of the special tax of one-twentieth of one per cent, to the amount due on the judgment, the balance due thereon stood on the same footing as any other liability of the county, to be paid out of its general funds. U. S. v. Clark Co., 96 U. S, 211; Knox County Court v. U. S., 109 U. S. 229, 8 Sup. Ot. 131; Macon Co. v. Huidekoper, 134 U. S. 336, 10 Sup. Ct. 491. The levy was ordered.</p> <p>“Accepting, then, the construction of the act contended for by the town of Dar-lington, it would seem that under the operation of the act of 1889, if the proceeds of 1he additional railroad tax were not sufficient to pay the sum due on the coupons, the court would order the money to be paid out of the fund derivable from taxes, and, if the town council had not exhausted their power under that act, it would compel them to go to their limit. But under the act of 1891 there is now no limit. The court, then, can order them, in making a levy, to provide for the sum due on this judgment, and this notwithstanding that the act of 1891 was passed after the bonds were issued. County Court v. Hill, 118 U. S. 71, 6 Sup. Ct. 951. Let the mandamus issue as prayed.”</p>

<p>1. Master and Servant — Dangerous Appliances — Fellow Servants.</p> <p>A shipwright, at work in the hold, while necessarily going on deck by the forward hatchway ladder for purposes connected with his work, was struck on the head, as he emerged from the hatchway, by a barrel of cement, which was being swung in from the rail to be lowered into the hold, and was knocked from the ladder into the hold, and severely injured. A guy rope attached to the barrel was held by the mate, but he was looking in another direction at the time, and no warning was given. A general warning had been given at the hatchway when the loading began in the morning, but it was doubtful whether the shipwright was in position to hear it. Held, that no question of fellow servants was involved, but the case was one of breach of duty by the master to see that the places where his servant was compelled to go in the discharge of his duties were reasonably safe.</p> <p>2. Same — Duty to Warn op Danger.</p> <p>An employer does not discharge his duty in keeping a place reasonably safe by giving warnings of threatened danger, when the employs charged with the duty of giving the warnings, is so engrossed with other duties that he cannot properly and efficiently give the warnings.</p> <p>8. Damages — Personal Injuries.</p> <p>$5,000 allowed to a shipwright, 48 years old, in good health, married, and earning $94 to $96 per month, for permanent injuries which destroyed the hearing of one ear, impaired his muscular sense, and rendered him incapable of doing any but light work.</p>

<p>1. Master and Servant — Dangerous Premises or Machinery — Knowledge or Servant — Negligence oe Third Persons.</p> <p>A servant has the right to rely on the master’s taking -due care to give him a safe place and safe instruments with which to do his work, provided, in the exercise of reasonable care on his part, he does not discover any defect himself. But where, in the course of the employment, the acts of third persons, not in the same employment, may increase the danger of the service, and these acts and their character are under the eye of the servant, and, to the servant’s knowledge, are not subject- to the supervision of the master, the master is not .liable if injury results from the negligence of the- third persons.</p> <p>& Same.</p> <p>Plaintiff was employed by defendant as driver of a truck. The officers of a grand army post hired the truck, with driver and horses, for the purpose of erecting on it a superstructure on which a number of young girls were to ride in a Decoration Day procession. The superstructure was built and placed on the truck by the officers of the post, and was not seen by defendant. In placing it on .the truck, a railing intended foe the security of the driver was removed, and plaintiff was obliged to sit with his legs hanging over the front of the truck, very near the horses. "While driving in this manner, a jolt, occasioned by driving into a rut, caused the superstructure to fall forward upon plaintiff, and throw him under the horses’ feet, whereby he was injured. Held, that defendant, plaintiff’s employer, was not liable for the injury ,so caused.</p> <p>S. Same.</p> <p>Held, further, that plaintiff, though the general servant of defendant, was in this service the special servant of the grand army post, and it, and not defendant, was liable as master for any negligence in the construction of the superstructure which he was to use in his 'work.</p>

Petition of Catharine S. Dill, sole executrix of the last will and testament of Andrew H. Dill, deceased, praying judgment of the court against the United States for the sum of $758.16, claimed as due to her for services rendered by Andrew H. Dill as a marshal of the United States for this district.

<p>Customs Duties — Classification—Protest—Similitude Clause — Precious Stones.</p> <p>When an importer intends to rely upon the similitude clause of the tariff act for the purpose of identifying his merchandise with some enumerated article of the tariff schedules, and means to place his objection to the action of the collector on the ground that the collector has not given due effect to that provision, he should state the fact in his protest; and, if he fails to do so, his objection is not stated distinctly and specifically, within the meaning of the statute. Accordingly, held, that a protest, claiming that the articles in question were dutiable under the provision of the tariff act imposing a duty on precious stones, was insufficient to raise the question whether such articles should have been classified as precious stones by force of the similitude provision of the act.</p>

This was a suit in equity by the Diamond Match Company against the Hanover Match Company and others for alleged infringement of two patents relating to machines for bundling match splints.

This was a suit in equity by the Duff Manufacturing Company against William Forgie for alleged infringement of a patent. The cause, was heard on complainant’s motion for a preliminary injunction.

This was a suit in equity by the Clinton Wire-Cloth Company against the Hendrick Manufacturing Company, Limited, for alleged infringement of a patent for a revoluble coal screen.

This was a suit in equity by Vincent P. Travers against the Gem Hammock & Fly-Net Company for alleged infringment of two patents relating to the art of making hammocks. Defendant demurs to so much of the bill as relates to patent No. 296,460, issued April 8, 1884, to Albert O. Rood, assignor to the complainant.

This was a suit in equity by the Welsbacb Light Company against the Cosmopolitan Incandescent Gaslight Company for alleged infringement of a patent. The cause was heard on a motion by defendant for leave to file a cross bill.

This was a libel in admiralty by'the Lochmore Steamship Company, Limited, owner of the steamship Kilmore, against Walter F. Hagar and John H. Thompson, trading as W. F. Hagar & Co. The canse was heard on motion to vacate security on the cross-libel.

In Admiralty. Upon February 10, 1890, the Mississippi Coal & Ico Company, a corporation, brought its claim into this court for §109.77 for supplies by it furnished to the steamer Ottumwa Belle, between the dates of April 24 and October 2, 1895, inclusive; said steamer at and between the said dates being duly employed in the business of commerce and navigation between ports of different states of the United States upon the Mississippi river.

<p>Appeal from the District Oonrt of the United States for the District of Maryland.</p>

Tl)is was a petition for limitation of liability filed by the Com-pañía Transatlántica, owner of the Mexico, for damages amounting to $> 1,58,226.31, caused by the total loss of the steamship Nansemond and her cargo, in a collision with the Mexico, off the coast of Venezuela, and near the Island of Oruba, on December 21, 1895. The value of the Mexico and of her pending freight was fixed in the limitation proceeding at $00,754.88.

<p>Removal op Causes — Right to Speed Filin» op Record.</p> <p>After a party lias filed his petition and bond in the state court, the opposing party may file a copy of the record in the federal court before the expiration of the time limited for the removing party to do so; and the court may then require the latter to plead. Arthur’s Adm’rs v. Insurance Co., Fed. Cas. No. 565, 7 Reporter, 329, followed.</p>

This was a bill in equity filed by Jane Bryar, in the district court, against James Bryar, a bankrupt, Thomas Campbell, and others, she claiming to be equitable owner of an undivided one-half of certain lands the legal title of which was in the bankrupt. The district court rendered a decree for the complainant, and the opposite parties took an appeal to this court, where the cause has since been pending.

<p>Certiorari by Supreme Court to Circuit Court op Appeals — Effect as to Trial Court.</p> <p>The effect of a certiorari, when awarded by the supreme court in a cause decided by the circuit court of appeals, is to suspend any action that might be taken by that court, or by the trial court in obedience to its mandate; but it does not restore jurisdiction to the trial court, nor give such court authority to set aside orders legally and properly made, in obedience to the mandate of the circuit court of appeals, before the writ of certiorari was awarded.</p>

The Toledo, St. Louis & Kansas City Railroad Company is an insolvent railroad corporation. In May, 1883, certain unsecured creditors filed a bill in the circuit court of the United States, at Cleveland, Ohio, for the purpose of winding it up and distributing all of its assets justly among its creditors. This first bill was a general insolvent bill, and was professedly filed for the benefit of all creditors, secured and unsecured.

<p>1. Final Juiwmbnt.</p> <p>An act oí a state legislature providing for the construction o£ a levee and the issuing oí bonds to pay the eost of construction, and also- providing for the collection of assessments upon the lands bordering on the improvement “in the same manner as stale and county taxes,” was declared by a judgment of court, to be unconstitutional and void in so fur as it provided for that mode of collecting the assessments. Thereafter, in an action by the holder of certain of the bonds issued pursuant to that act against: the commissioners appointed under the act, asserting a. lien upon the lands benefited by the improvement for the amount advanced by him to- the commissioners, the master reported, under a reference to him for that purpose, the amounts advanced by plaintiff and others who came into the suit, and the court made an order adjudging that the amounts thus reported were duo the several complainants, and giving them liberty to file a sujiplemental bill against, the owners of the lands benefited, to compel them to contribute to 1he payment of the amounts thus reported. Held, that this was not such a, definite and certain adjudication as to he final and binding, and that the landowners against whom a supplemental bill was filed were not precluded from denying their liability.</p> <p>¾. Laciíi-'s.</p> <p>As it was thirteen years after the act was declared to- be unconstitutional, and nine years after leave was given to file the supplemental bill, before any step was taken against the present defendants, except those who were commissioners originally, there has been such laches as precludes the complainants from having the relief sought by «he supplemental hill; the condition of the properly and the relations of the parties having in the meantime greatly changed.</p> <p>3. Push hasrr of Boxes — Hubkohation.</p> <p>The purchaser in open market of the bonds, being a mere volunteer, is not subrogated to the equity of the contractors.</p> <p>4. Saw— Ms'open,.</p> <p>The purchaser of the bonds cannot set up any use made of the loan after he obtained his bonds as creating any estoppel, as his equities must be determined from the condition of things existing when lie obtained the bonds.</p> <p>5. Ju’tisoicrioN of KaObkai, Courts as Tax Oollrctors.</p> <p>While the federal courts will, in a limited class of instances, compel the agents of a state to set in motion machinery existing under stale authority for the collection of taxes, these courts will themselves neither create the machinery nor invest any person with the power to use the same.</p>

<p>1. State Statutes oe Limitation — Federal Courts.</p> <p>State statutes o£ limitation apply to proceedings, at law or in equity, in the federal courts, based upon federal statutes, state statutes, or common law. Campbell v. City of Haverhill, 15 Sup. Ct. 217, 155 IT. S. 610, followed.</p> <p>2. Actions on the Case — Suit against National Bank Directors.</p> <p>The right of action against, the directors of a national bank, for violation of the provisions of the national banking act, given by Rev. St. § 5239, is for a tort, and comes within the common-law definition of actions on the case.</p> <p>3. Limitation op Actions — Arkansas Statute.</p> <p>The Arkansas statute of limitations, providing that all special actions upon the case, for criminal conversation, assault and battery, and false imprisonment shall be brought within one year, applies to all special actions on the case, and not only to the three classes of actions specially mentioned; and it governs an action brought against the directors of a national bank, under-Rev. St. § 5239.</p> <p>4. Same — Forms op Actions — Code op Practice.</p> <p>The provision of the Arkansas Code of Practice that “the forms of all actions and suits heretofore existing are abolished” did not abolish the distinctions in the character of actions, and the statute of limitations governing-“special actions upon the case” was not thereby abrogated.</p>

In Equity. Suit by Marcus M. To-wle against tlie American Building-, Loan & Investment Company. A receiver having been appointed, the firm oí G-rommes & Ullrich filed a petition praying that the receiver be directed to pay them the amount of a certain accepted draft.

<p>Lease of Railroads — Provision for Payment oe Net Earnings to Bondholders— Receivership.</p> <p>Where the lease of a railroad provided for the payment of the net earnings to mortgage bondholders, who were creditors of the lessor, that agreement between the lessor and lessee, having been assented to by the bondholders, operated as an irrevocable assignment to them of the net earnings. And, while the lessee was obligated to pay out of the gross earnings certain prior claims before paying anything to bondholders, yet, the holders of those claims having let payment be made to the bondholders first, they became common, unsecured creditors of the lessee, and, a receiver having been appointed, they are not entitled, as against the bondholders, to have their claims paid out of earnings accruing after the appointment of the receiver; there being nothing to show that the gross earnings prior to the receiver’s appointment — out of which no net earnings have ever been paid to bondholders, and which are still in the hands of the lessee — are not sufficient to pay their claims.</p>

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

<p>Cross Appeals from,the Circuit Court of the United States for the Western District of Michigan.</p> <p>Bill to foreclose a mortgage, in form a deed, executed for the purpose of securing an indebtedness then due, and further indebtedness then contemplated. The mortgagor in August, 1888, was indebted in the sum of $1,590 to the complainant the Emil Kiewert Company, a corporation of the state of Wisconsin. To secure this he made an absolute deed of conveyance to Emil Kiewert, president of said corporation. It is conceded that this conveyance was intended to secure the debt then existing, and such further indebtedness as should from time to time be created, to the Emil Kiewert Company. It was understood that the said company, or Emil Kiewert as trustee, should take possession of the premises, make necessary repairs, and apply proceeds of rents first to costs of repairs, taxes, and expenses, and remainder, from time to time, upon the indebtedness intended to be secured. This relation lasted more than four years, when some misunderstanding as to the state of the accounts resulted in the filing of this bill and a cross bill by Juneau, who claimed, upon a true accounting, to have overpaid his indebtedness. The matters involved were referred to a special commissioner, who was directed to state an account, charging the complainant with all rents actually collected, and all which by proper diligence might have been collected. The report found that the mortgagor was chargeable with rents aggregating $9,322.42, including interest. He also found that Juneau was chargeable with an indebtedness, including interest, of $9,293.57, leaving a balance due Juneau of $28.91. Each party filed exceptions to this report. The principal ground of ex-eeptioii lakun by the complainant was that the mortgagee had been erroneously charged with rents not collected aggregating about $.‘'>,302.84. This exception was in part sustained, the circuit judge, on the facts, holding that the failure to rent out the premises was the mutual fault of the complainant and defendant, and . that the loss should therefore! be divided between them. It was therefore directed that the accounts should be altered so as to charge complainants with but one-half of the net loss resulting from failure to rent out the mortgaged premises. This operated to credit complainants with $1,818.83, that being one-half the loss of rent, with interest. Deducting from this the balance of $28.1)1 found in favor of Juneau left the latter indebted in the sum of $1,780.02, as due June 3, 1894. All oilier exceptions were overruled. Both parlies have appealed, and assigned as error tha overruling of their several exceptions to said report.</p>

<p>1. Anti-Tbust Act — Interstate Commehce.</p> <p>The act of congress of July 2, 1890, commonly known as the “Anti-Trust Act,” does not, and could not constitutionally, affect any monopoly or contract in restraint of trade, unless it interferes directly and substantially with interstate commerce, or commerce with foreign, nations.</p> <p>2. Same.</p> <p>Where several corporations engaged in the manufacture of cast-iron pipe formed an association whereby they agreed not to compote with each other in regard to work done or pipe furnished in certain states and territories, and, to make effectual the objects of the association, agreed to charge a bonus upon all work done and pipe furnished within those states and territories, which bonus was to be added to the real market price of the pipe sold by those companies, this combination was not a violation of the anti-trust act, as it affected interstate commerce only incidentally.</p> <p>8. Same.</p> <p>In the examination of such a contract, fraud and illegality are not to be presumed, but must be proved, as in all other cases,</p> <p>i. Same.</p> <p>In a suit such as this, in the name of the United States, jurisdiction depends alone upon the act; and the court is concerned with no case between private, persons or corporations, where jurisdiction depends on other conditions, and in which proceeding a common-law remedy might become available.</p>

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

<p>¡L Title or Executor — Parties to Action.</p> <p>Where an executor is empowered by the will to sell lands, and make and acknowledge titles to lands sold, he takes the fee-simple title; and, in an action against him in that character to rescind a contract made by the testator for the sale of land, he properly represents all of the beneficiaries. But If, upon a decree obtained against the executor, the lands embraced in the contract rescinded should fail to satisfy any recovery in favor of the plaintiff, the heir in any proceeding thereafter to subject real estate descended may make any defense to the action which the executor could have made m the first instance.</p> <p>8. Parties to Actions — Failure to Brins All Parties Interested before the Court.</p> <p>When the bill suggests as a reason for not bringing all parties interested before the court that some of them are not known to the plaintiff, the case may proceed without the unknown parties, in the absence of any statement of fact in the answer showing the excuse suggested in the bill to be untrue.</p> <p>3. Notice of Fraud — Laciies.</p> <p>In a suit for relief from a secret fraud, the defense of laches cannot prevail where the suit was commenced within a reasonable time after the evidence of fraud was discovered; and the complainant in such a suit was not required to take notice of facts brought out in a suit to which he was not a party, and which presented no issue affecting him directly or indirectly.</p> <p>4. Principal and Agent — Fraud or Agent in Sale op Land.</p> <p>The tew looks at the substance of a transaction, and not its form. And where real-estate agents with whom land was listed for sale procured the owner to give them an option and title bond, in order to make certain that the sale, if made, would be allowed to go through without obstruction, they did not become purchasers, and cease to be agents, and the principal is liable for their fraud.</p> <p>& Same — Bribery or Agent.</p> <p>Where an agent has been bribed or tempted to betray his principal, that fact is sufficient to entitle the principal to repudiate the transaction; and it is not necessary, as a basis for relief for the principal, to show the actual effect of the bribe or gift upon the agent.</p> <p>A Same — Acceptance op Profits of Transaction after Fraud of Agent is Discovered.</p> <p>Where one of two joint owners of land listed it with real-estate agents for sale, the other owner having consented thereto, and received a part of the Consideration, and never having repudiated the sale made by the agents after discovering the fact that they had been guilty of fraud, he is estopped to say that he is not connected with the fraud; hut, in view of his relation to the transaction, he is not liable beyond the benefit actually received.</p> <p>7. Same — Rescission.</p> <p>The fact that the purchaser has taken a small amount of timber from the land does not constitute such a change in the condition of the premises as to preclude him from having a rescission on account of the secret fraud of the vendor’s agent.</p>

i This was an action by E. II. llollins & Son against the board of commissioners of Gunnison county, Colo., to recover on coupons cut from county bonds. At the trial the jury, by direction of the court, returned a verdict for defendant, and judgment was entered accordingly.

<p>Conflict of Laws — Contracts of Married Women.</p> <p>A contract of a married woman, valid by the law of tbe place' where it is made, is valid and binding upon her, although by the law of her domicile she is prohibited from making such a contract.</p>

This action was brought in the circuit court of the United States for the Bast ern district of Arkansas by J. L. Edwards, the defendant in error, against the St. Louis, Iron Mountain & Southern Railway Company, the plaintiff in error, to recover' damages for negligently delaying the transportation of 847 head of cattle over the defendant’s road. The plaintiff in the action recovered judgment' in the lower court, and the defendant sued out this writ of error.

<p>L, Pleading — Objection Waived.</p> <p>After a case had been submitted to the court on the evidence, it is too late - for the defendant to object for the first time that plaintiff has not pleaded an estoppel upon which he relied, when the parties had, upon the trial, treated the issue as made. And, as leave given plaintiff to file an additional pleading ■ extended only to estoppel claimed by him on the trial, defendant was not entitled to introduce further evidence.</p> <p>Bonds oe School Distkict — Estoppel.</p> <p>An incorporated school district having issued bonds reciting that they were, issued pursuant to authority conferred by a vote of the people at an election held for that purpose ;is required by law, the corporation is estopped, as against a bona fide holder before maturity, .from claiming that an election was not held as recited in the bonds, and that the board of directors failed to pass such resolutions, or take such other steps, as may have been required to make the bonds valid.</p>

<p>1. Trial — Peremptory Instruction — Waiver.</p> <p>The failure of a defendant, at the close of the plaintiff’s evidence, to ask a peremptory instruction, will not of itself preclude such a motion at the close of the whole evidence.</p> <p>2. Same — When Given.</p> <p>i A peremptory instruction should not be given to a jury unless, upon a survey of the whole evidence, and giving effect to every inference to be fairly or reasonably drawn from, it, the case is palpably for the party asking such instruction; and a case cannot properly be withdrawn from the jury because, in the judgment of the court, there is a preponderance of evidence in favor of the party asking such instruction. Railway Co. v. Lowery, 20 C. C. A. 596, 74 Fed. 463, reaffirmed.</p> <p>3. Accident Insurance — Exceptions prom Risk — Voluntary Exposure.</p> <p>The expression “voluntary exposure to unnecessary danger,” used in stating the exceptions to the liability of an insurance company upon an accident policy, refers only to dangers of a real, substantial character, which the insured recognized, but to which he, nevertheless, purposely and consciously exposed himself, intending at the time to assume all the risks of the situation.</p> <p>4. Same — Question por Jury.</p> <p>Under a policy of accident insurance, which expressly declares that the insurance does not cover entering or trying to enter or leave a moving conveyance using steam as a motive power, and which also excepts injuries due to voluntary exposure to unnecessary danger, voluntary riding upon the platform of a rapidly moving railroad car, though there may be no necessity therefor, is not, in itself and as matter of law, a voluntary exposure to unnecessary danger, but presents a question of fact to be determined by the jury under all the evidence.</p> <p>5. Same — Neolioisnce op Insured.</p> <p>Cases determining that certain acts constitute contributory negligence, such as to defeat a recovery for personal injuries claimed to have been caused by the negligence of another, have no application to actions upon accident insurance policies which do not in terms exempt the insurer from liability for injuries caused by the negligence of the insured, since the liability upon such policies depends upon contract, and the negligence of the plaintiff is no defense unless expressly made so.</p> <p>6. Samis.</p> <p>Whore an accident insurance policy exempts the insurer from liability for injuries received while violating rules of a corporation, it is proper, in an action on the policy, to leave to the jury, upon all the evidence, the question whether the insured knew of a rule of a corporation which it is claimed he was violating when injured, and to charge them that, in order for Hie insured to be bound by the rule, it must bo one which the corporation enforced or used reasonable effort to enforce.</p>

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

<p>1. Evidence — Proof of Letters.</p> <p>Upon the trial of an action against the N. Co., a witness testified that He mailed a letter, addressed to the home office of the company; that he received in reply a letter written on a printed letter head of the N. Co., which was signed with a rubber stamp fac simile of the signature of an officer of the company, who had signed a plea in the action, and Which referred to the subject-matter of the witness’ letter to the N. Co. Held,, that the letter received by the witness was sufficiently proven, and was admissible.</p> <p>2. Appeal and Error — Defective Assignments of Error — When Considered.</p> <p>Under the discretion reserved in rule 11 of the circuit court of appeals (21 C. C. A. cxii., 78 Fed. cxii.), as to noticing errors not assigned, if an assignment which docs not comply with tho rule has any sound merit in it, and the court can be satisfied from the whole record that a probable injustice has been done, it will be disposed to notice the error so defectively assigned; but, if the error complained of is highly technical, the record indicating no probable injustice, the court will not incline to leniency in the enforcement of the rule, though, if the error had been correctly assigned, it might have felt constrained to reverse the judgment because of it.</p> <p>3. Piras in Abatement — Judgment.</p> <p>Under the practice at common law prevailing in Tennessee, when á plaintiff succeeds upon an issue joined on a plea in abatement the proper judgment is peremptory that the plaintiff recover.</p>

<p>1. Negligence — Contributory Negligence as Defense — Pleading.</p> <p>Contributory negligence is a matter of defense, in the national courts, and ■ an answer setting up the contributory negligence of the plaintiff, in an action for’ personal injuries alleged to have been caused by defendant’s negligence, is not demurrable.</p> <p>2. Same — Answer—Demurrer.</p> <p>A paragraph in an answer, in an action for personal injuries alleged to have been caused by defendant’s negligence, which sets up the negligence of one who was driving the vehicle in which the plaintiff was a passenger, such negligence not being imputable to the plaintiff, and also sets up plaintiff’s own contributory negligence, which has already been fully pleaded, is de-murrable,' and may also be stricken out on motion as surplusage.</p>

<p>Railkoads — Accident at Crossing — Instructions—Duty to Look and Listen.</p> <p>In an action against a railroad company for alleged negligence in running over the plaintiff "while crossing its tracks at a highway crossing, the defendant is entitled to have the jury specifically instructed as to the duty of the plaintiff, under such circumstances, to look and listen for a train, before attempting to cross the track, especially when the plaintiff’s own testimony suggests that he may have been negligent in this respect; and a general charge that the plaintiff was bound to act as a prudent man would do under the circumstances, leaving it for the jury to fix the standard of prudence, is not sufficient.</p>

<p>1. Costs — Solicitor’s Docket Fee — Final Hearing.</p> <p>To consiitute such a “final hearing” as will authorize the taxation of a solicitor’s docket fee of $20, under section 824, Key. St., there must be a hearing of ihe cause on the merits. And the mere fact that an order discontinuing a cause without prejudice provides that certain depositions filed by defendant may be used by him in any suit brought by complainant on the same cause of action does not make such a discontinuance a final hearing, within the meaning of the statute. Manufacturing Co. v. Colvin, 14 Fed. 209, Wooster y. Handy, 23 Fed. 49, and Ryan v. Gould, 32 Fed. 754, followed.</p> <p>2. Same.</p> <p>Although the statute allows no solicitor’s docket fee upon a discontinuance, yet, following the analogy of the common law, a fee of five dollars is allowed in equity.</p> <p>3. Same — Solicitor’s Fee for Depositions.</p> <p>It is not proper to tax a solicitor’s fee under that portion of section 824 which allows to attorneys a fee of $2.50 “for each deposition taken and admitted in evidence in a cause,” unless the depositions are admitted in evidence in that cause. It is not sufficient that the court, by order, provides for their use in any future suit.</p> <p>4. Same — Copies of Papers.</p> <p>A taxation for copies of papers cannot be allowed where the copies are not actually used on the trial or final hearing. Wooster v. Handy, 23 Fed. 49, followed.</p>

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

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

This was an application by E. Selbach & Co. for a review of the decision of the board of general appraisers, affirming the decision of the collector of the port of New York as to the classification of certain merchandise. The merchandise in question was invoiced as “alizarine blue,” “anthracene brown,” and “anthracene yellow.” The collector assessed duty thereon at 3a per cent, ad valorem, under paragraph 82 of the tariff act of 1883, as coal-tar colors.

<p>Customs Duties — Classification—Millet Pulp.</p> <p>Millet pulp, from which the hull has been removed, though adapted for use as food and not for agricultural purposes, and which will not germinate, is dutiable under paragraph 206½ of the tariff act of 1894, as seeds. Boving v. Lawrence, 1 Blatchf. 616, Fed. Cas. No. 1,712, followed.</p>

<p>Customs Duties — Classification— Camsonatk or Potash.</p> <p>The enumeration, in paragraph 595 of the free list of the tariff act of 1894, of “potash, crude, carbonate of, or black salts,” includes the three articles, crude potash, carbonate of potash, and black salts; and carbonate of potash, from which impurities have been removed by leeching, is accordingly entitled to free entry.</p>

<p>Customs Duties — Classification—Noxmhtallic Pixs.</p> <p>The word “metallic,” in paragraph 170 oí the tariff act of 1894, qualifies the whole paragraph; and pins which are not metallic are not within its provisions.</p>

This was an application by the collector of the port of New York for a review of the decision of the board of general appraisers, reversing the decision of the collector as to the rate of duty on certain lemons imported by the E. L. Goodsell Company. The permit to land and deliver the goods was not indorsed by the examiner until August 29, 1894.

<p>This was an application by Wiebnsch & Hilger for a review of the decision of the hoard of general appraisers as to the assessment of duties on certain merchandise imported by them, consisting of linen measuring tapes in cases of leather and brass, flax being the component material of chief value in the completed articles.</p> <p>Paragraph 334 of the tariff act of 1883 imposes a duty of 35 per cent, ad valorem on “brown and bleached linens, ⅜ ⅜ * or other manufactures of flax, jute or hemp, or of which flax, jute or hemp shall be the component material of chief value, not specially enumerated or provided for.” Paragraph 33(i imposes a duty of 40 per cent, ad valorem on “flax or linen thread, * * * and all manufactures of flax or of which flax shall be the component material of chief value, not specially enumerated or provided for.”</p>

<p>Customs Duties — Importations por Temporary Use — Failure to Re-export — Rate oe Duty.</p> <p>Articles admitted free of duty for temporary use, under paragraph. 596 of the tariff act of 1894, do not become subject to any duty until the importer, within or at the end of the period allowed by law, has elected not to export them; and are then subject to the rate of duty in force at such time, and not to that in force when they were imported.</p>

<p>Customs Duties — Classification—Mirror Prates.</p> <p>Mirror plates, not -framed, but intended to be put in frames or cases, are dutiable as mirrors, under paragraph 102 of the tariff act of 1894.</p>

This was an application by George Borgfeldt: & Co. for a review of the decision of the board of general appraisers affirming the decision of the collector of the port of New York as to the rate of duty on certain atomizers, consisting of bottles or vessels of glass, cut or ornamented, and surmounted with a metal top to which is attached a rubber bulb.

<p>Customs Duties — Classification—Fbee List — Coal-Tar Products.</p> <p>Coal-tar products, not shown to be oils in fact or to be chemically, commercially, or commonly known as distilled oils, are free, under paragraph 443 of the tariff act of 1894, as products of coal tar not specifically provided for, and are not dutiable as distilled oils, under paragraph 60.</p>

<p>This was a suit by John E. Hanifen, trading as John E. Hanifen & Co., against the E. H. Grodshalk Company and Edward H. Grodshalk, for alleged infringement of a patent for an improvement in knitted fabrics.</p>

<p>Admikalty Jurisdiction — Suits in Rem— Assault mr Master.</p> <p>A libel in rem will not lie to recover damages for intentional and unlawful violence inflicted by the master on a stowaway. The latter being a mere trespasser on board, there is no breach of any contractual or maritime obligation; and the suit is not in the nature of an action on the case, but is for an assault and battery.</p>

<p>In Admiralty. Collision.</p>

The steam barge Porter Chamberlain and the barge Comstock, while in tow of the former, came in collision with the barge Ashland, while in tow of the steamer Wheeler. This collision occurred in Lake St. Clair, in what is known as the Grosse Pointe Channel or Out. That channel is about 1½ miles long, and about 900 feet wide.

<p>Guardians — Suits in Eedf.rai. Courts.</p> <p>A guardian appointed by the courts of one state cannot sue, as such, in a federal court sitting in another state.</p>

<p>1. JURISDICTION TO ANNUL STAT13 JUDGMENTS FOR FRAUD — JUDGMENTS OR DIVORCE.</p> <p>The federal tribunals have jurisdiction of suits to relieve against judgments of state courts obtained by imposition and fraud; and this jurisdiction extends to judgments of divorce.</p> <p>2. Same — Limitation.</p> <p>Code Civ. Proc. Cal. § 473, limiting to six months the right of a party to proceed for relief from a judgment taken against him “through his mistake, inadvertence, surprise or excusable neglect,” does not apply to relief for fraud.</p> <p>Laches in Proceeding to Annul Judgment of Divorce.</p> <p>A delay of 18 months is such laches as precludes an independent suit to set aside a judgment of uivorce upon the ground that it was obtained by fraud.</p> <p>Void Judgment.</p> <p>It not being apparent on the record that the plaintiff in a divorce suit had not been a resident of the state for a sufficient length of time to give the court jurisdiction, the judgment is not void on its face; and, even if it were, it might be attacked by motion in the court which rendered it, and resort to a suit in equity would not be necessary.</p>

<p>Actions at Law and Suits tn Equity — Redekai. Courts.</p> <p>The distinction between aclions at law and suits in equity in the United States courts is not one of form merely, but of vital substance, and a purely legal action cannot be converted into a suit in equity, or become entitled to be heard as such, by the answer of a defendant asserting equitable rights; but a defendant who has such rights, which he is entitled to enforce against the plaintiff, should resort to equity to arrest or stay the action at law.</p>

<p>!. Tax Deeds — Laches.</p> <p>Lachos does not grow out of the mere passage of time, but out of the inequity of permitting a claim to be enforced, arising from some change in the condition or relations of the property or parties. Accordingly, held, that a nonresident owner of wild lands, who had reason to suppose the taxes thereon were paid, and had delayed, for a period beyond that of the statute of limitations, to assert his claims against one' who had held the lands under a tax deed, without improving them, might not be guilty of laches, although he would be barred by the statute of limitations.</p> <p>S. Same — Color or Title — Adverse Possession.</p> <p>A tax deed, though void and based upon a void sale, if not showing invalidity on its face, is a sufficient color of title to be a foundation for adverse possession.</p>

<p>1. Insolvent National Bank — Liabiliti of Transferror of Stock.</p> <p>It is not necessary, in order to hold liable for an assessment upon the shareholders of an insolvent national bank one who has transferred his stock to an irresponsible person, to show that the transferror had actual knowledge of the insolvency of the bank at the time of the transfer, but it is sufficient if he had good ground to apprehend its failure, and made the transfer with intent to relieve himself from individual liability.</p> <p>2. "Witnesses — Privileged Communications.</p> <p>Upon the trial of a suit brought by the receiver of an insolvent national bank i.o collect an assessment from one who had transferred his stock, a letter written by the defendant to a bank examiner, in reply to an inquiry about the bank, in which defendant admits his transfer of his stock when the bank was embarrassed, is not a privileged communication, thong-li the bank examiner’s letter, to which it is a reply, is marked “Confidential.”</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Texas.</p> <p>This suit was originally begun in the district court of Erath county by appellants, all of whom are citizens of the state of Texas, against P. J. Willis & Bro., a corporation duly incorporated under the laws of the state of West Virginia, and F. O. Oldham, a citizen of Texas. On the application of P. J. Willis & Bro., the cause was removed to the United States circuit for the Northern district of Texas, and there, on motion, the court ordered that the pleading should be recast so as to conform to the rules of equity practice, whereupon appellants filed their amended bill, therein alleging that they inherited from their mother an undivided half interest in the lands described in said bill; that their father, F. O. Oldham, after the death of their said mother, undertook to qualify, under the laws of Texas, as survivor of the community, and thereafter conveyed the lands in question to P. J. Willis & Bro., in settlement of indebtedness, all of which accrued, as appellants claim, after the death of their said mother; that the attempted qualification of F. 0. Oldham, as survivor, was absolutely void and of no effect whatever; specifically charging as follows :</p> <p>“And plaintiffs allege: That thereafter, on the 21st day of April, 1890, F. O. Old-ham filed in the probate court of Erath county, Texas, an application for appointment as community administrator of the community estate of himself and his deceased wife, M. V. Oldham, which was by said court on said day allowed, and appraisers appointed to inventory and appraise said estate, which inventory and appraisement was returned into said court on April 15, 1890; and thereupon the said F. O. Old-ham, being required to enter into a bond as such administrator in the sum of twenty-seven thousand four hundred and eighty dollars, conditioned as the law required, executed and filed with said court a certain pretended bond; and thereupon said court indorsed the same as being filed and approved, and made and had entered on the record minutes of said court a certain order as judgment approving said Rond, and ap-Aorized him to have, dispose of, and sell all the community property of said estate, as shown in said inventory, and which embraced the property hereinbefore described. That said bonds and said indorsements and judgment were and are substantially as follows, to wit:</p> <p>“‘No. 113. Bond filed May 13th, 1890.</p> <p>“ ‘The State of Texas, County of Brath. Know all men by these presents, that we, F. C. Oldham, as principal, and H. A. Smith and A. A. Chapman, as sureties, are held and firmly bound unto the county judge of the county of Bi'jith and state of Texas, and his successors in office, in the sum of twenty-seven thousand four hundred and eighty and 00-100 dollars, conditioned that the above-bound If. O. Old-ham, who has been appointed by the county judge of Brath county administrator of the estate of M. V. Oldham, deceased, shall well and truly perform all the duties required of him under said appointment.</p> <p>“ ‘[Signed] F. C. Oldham.</p> <p>“ ‘H. A. Smith.</p> <p>“ ‘A. A. Chapman.</p> <p>“ ‘No. 113. Decree.</p> <p>“ ‘The State of Texas, County of Brath. On this 13th day of May, A. D. 1890, came to be heard the inventory, appraisement, and bond of the survivor of the estate of F. C. Oldham and his deceased wife, M. V. Oldham, the same having been duly-considered by the court; and it appearing to the court that said appraisement is fair, just, and reasonable, and a fair valuation placed thereon, and that said bond is sufficient, it. is therefore considered, ordered, adjudged, and decreed by the court that said appraisement and bond be, and the same is hereby, in all things approved, and that F. O. Oldham, survivor, be, and he is hereby, authorized to manage, control, and dispose of said community property above inventoried.’</p> <p>“And which said bond and the order and judgment, so rendered and entered was and is erroneous, unauthorized, and unlawful, in this, to wit: (1) Said bond was and is unlawful and void as a bond to protect these plaintiff’s, as heirs of M. V. Oldham, because Lhe same shows on its face to be a bond by F. C. Oldham, as the regular administrator of the estate of M. V. Oldham, and not a bond of F. C. Oldham, as community administrator of the community estate of himself and his deceased wife, M. V. Oldham, and there being nothing in said bond or any reference therein to any other writing describing the particular estate that the sureties thereon were liable as such sureties, and nothing in said bond or reference to any writing therein defining and describing the subject-matter of the undertaking of said sureties, and that said bond on its face showing no undertaking on the part of said sureties 1o be liable in any other way except as shown in said bond, and that said bond is insufficient and incompetent to bind said sureties as sureties for said F. O. Oldliam as the community administrator of the community estate of himself and his deceased wife, M. Y. Oldham. (2) Said bond was and is erroneous, unlawful, and void, and wholly contrary to law, and insufficient and incompetent as a bond to secure and protect the heirs of M. V. Oldham in their interest in said estate, in this: that said bond is only conditioned that, said F. O. Oldham shall well and truly perform all the duties of administrator of the estate of M. V. Oldham, and which is the only condition therein, and is not conditioned, as provided by law in cases of community administration, that said F. 0. Oldham will faithfully administer the community estate of himself and his deceased wife, M. V. Oldham, and pay over one-half file surplus thereof, after the payment of the debts with which the whole of said properly is properly chargeable, to such person or persons as shall be entitled to receive the same; and therefore said bond is irregular, erroneous, and void, and said sureties were not and are not bound thereby to protect and secure the heirs of M. V. Oldliam their interest in said property. And (3) because the facts above set forth as to the irregularity, ineoinpetency, and insufficiency of said bond, and because no bond, in fact, vs as ever made and delivered to said court provided and conditioned as the law requires, by F. O. Oldham, to entitle him to be appointed and authorized to act as the surviving administrator of the community estate of himself and his deceased wife, M. Y. Oldham. The action of the court in approving said bond, and the order arid judgment thereon made by said court approving the same, and authorizing said Oldham to act as such administrator, and to sell, control, and dispose of said property, was irregular, erroneous, and unlawful, without authority in the court so to' do, and the same was and is void, and the court has no authority to have the same entered on the minutes of said court, and the entire matter as to these plaintiffs in this proceeding was and is void; and said bond and order of the court, as heretofore set out in this petition, is made part of the allegations here now made as to said bond and order.”</p> <p>The amended bill further alleged that, with full knowledge of the facts, P. J. Willis & Bro. received deeds to the property from F. 0. Oldham in payment of debts due by him to them, and which accrued subsequent to the death of their mother. M. Y. Oldham; that all the community debts of F. 0. Oldham and his deceased wife had been fully paid prior to the conveyances to P. J. Willis & Bro., out of community assets; and that F. 0. Oldham, at the time of said conveyances, was insolvent; and that P. J. Willis & Bro. had full notice of all these facts. The prayer of the bill was that said deeds be canceled, and held for naught, and for a partition of the land, and for rents, and for general and special relief.</p> <p>The defendant P. J. Willis & Bro. demurred to the amended bill on these grounds: (1) That complainants were not entitled to the relief prayed for. (2) That it appeared that administration had been opened on the estate of M. V. Oldham, and the defect in the bond was a mere irregularity, and the bond was in substantial compliance with the law, wherefore the said hill is insufficient. (3) That it appeared by said bill that, if said bond was defective, yet a court having jurisdiction had declared the same sufficient, and had entered an order declaring said F. 0. Oldham administrator of the community property of himself and deceased wife, and the same was res adjudicata, and for this reason the bill is insufficient. The court sustained the demurrer, and dismissed the bill. From this decree, appellants prosecute this appeal.</p>

<p>1. Receivers oí Federal Courts — Property in Other States.</p> <p>A federal court in one state cannot reach property in another state by means of a receiver.</p> <p>2. Railroads — Execution Sale — Rights op Creditors.</p> <p>A corporation to which the purchaser of railroad property at an execution sale has conveyed such property cannot be held liable, to creditors of the execution debtor, for or on account of the price paid for the property at the execution sale.</p> <p>8. Corporations — Director as Judgment Creditor — Preferences.</p> <p>Defendant, who was a director and also a creditor of the A. Xly. Co., caused its property to be sold under execution upon a judgment against it for his debt, and bought in the property for §100,000. Held that, though he had obtained no more than any creditor not standing in a trust relation could have, he should not, being a director, obtain any preference, and would be required to account to another creditor for a ratable proportion of the §100,000.</p>

<p>Contracts — Rescission—Sale oe Claim against Government.</p> <p>Plaintiff had an undisputed claim of $96,030 against the government of Peru, which he assigned for collection to defendants, who had accounts with that government. The claim was acknowledged by Peru as due to defendants, and was then charged to that government on defendants’ books, which showed at the time a balance due to it from defendants of $46,057.75. Subsequently, plaintiff, in ignorance of this state of the accounts, sold his claim to defendants for half its face value, of which he received $24,007.50 in cash, the balance to be paid on collection of the claim. After the entry of the amount of plaintiff’s claim in defendants’ account with the Peruvian government, other entries were made therein, varying the balances, but the items then standing remained in the account, and no arrangement was shown for keeping them alive distinct from the general account. Held, that by charging the claim against the credit to the Peruvian government the latter was in legal effect paid by the mutual extinguishment of the credit and of so much of the claim, and under these circumstances the sale of the claim was not binding upon the plaintiff, but he was entitled to be paid the amount so collected, less the amount already paid him in cash.</p>

<p>1. Telegraphs and Telephones — Post Roads — Act July 24,1866 — Rights in Streets.</p> <p>A corporation chartered as a telephone and telegraph company, and which maintains a telephone system through which, under contracts with its subscribers and with a company maintaining a telegraph system, its subscribers are connected with and transmit messages to the telegraph company, to be ■sent to points in other states and foreign countries, is entitled to the rights given by the act of congress of July 24, 1866, to aid in the construction of telegraph lines, and, on complying with the act, has the privilege of running its lines over and through the streets of a city, which are post roads of the United States, and such city has no right to prevent it from so doing, though it must pay its due proportion of taxes, and submit to the ordinary reasonable regulations of the state and city.</p> <p>& Same — Municipal Ordinances.</p> <p>The rights and privileges given by the act of congress of July 24, 1866, to aid in the construction of telegraph lines, were conferred both on companies then existing and on those thereafter organized; and, upon the acceptance by any company of the terms of the act, the conditions of any municipal ordinance under which it had previously been operating, so far as inconsistent with the act, are abrogated.</p>

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

<p>jL Principal and Surety — Release or Surety — Extension or Larger Credit.</p> <p>A surety is not released from bis obligation by the voluntary extension to his principal of a credit greater than that for which the surety has agreed to become bound, when no change is made in the terms of the contract between the principal and his creditor.</p> <p>2. Same — Assignment ron Creditors.</p> <p>The rule that a creditor who releases the principal debtor thereby discharges the surety does not apply to a release filed upon a claim made under an assignment for benefit of creditors, and in pursuance of a statute which provides that such releases shall be filed, and that it shall not operate to discharge any surety.</p>

<p>1. Violation op Neutrality Laws — Military Expedition — Rev. St. § 5286.</p> <p>Rev. St. § 5286, creates two offenses: (1) Setting on foot, within the United States, a military expedition, to be carried on from thence against the territory or dominion of any power, etc., with whom the United States are at peace; .(2) providing the means fot such an expedition, as, for instance, means for transportation.</p> <p>8. Same — Providing Means, Etc.</p> <p>To justify a conviction of preparing or providing means for such a military expedition, it must be proved (1) that a military expedition was organized in this country, and (2) that defendant, in the district of his trial, provided means for it, as charged, with knowledge that it was such an expedition.</p> <p>3. Same — “Military Expedition” Defined.</p> <p>A military expedition, in the meaning of the statute, comprehends any combination of men, organized in this country, provided with arms and ammunition, to go to a foreign country, and make war on its government. If the men have combined and organized here, though in a rudimentary, imperfect, and inefficient way, voluntarily agreeing to submit themselves to the orders of such persons as they have selected, this is sufficient. It is not necessary that they shall have been organized according to military regulations, or uniformed, drilled, or prepared for efficient service; nor that arms shall be carried on their persons here, or on their way; but only that they shall have been provided for use when occasion requires. And it is immaterial whether the expedition intends to make war as an independent body, or in combination with others in the foreign country.</p> <p>4. Same — Individuals Going Abroad to Enlist.</p> <p>It is lawful for men, many or few, to leave this country as individuals, without combination or organization here, to go abroad, even by the same vessel, with the purpose of enlisting with a body of insurgents to fight against a foreign government; and it is immaterial that the vessel also carries arms, as merchandise, which are to be carried on shore in packages, as merchandise, by the men, who so intend to enlist. And the transportation of such persons, knowing their intent, constitutes no offense.</p> <p>5. Same — Providing Transportation.</p> <p>If defendant, knowing that an expedition is an unlawful military expedition, has provided means, in the district of his trial, to carry it from the United States to an island over which the United States has jurisdiction, as one stage of the journey, with knowledge of its final destination, he is guilty.</p> <p>6. Same — Seoreoy and Mystery in Voyage — Instructions.</p> <p>The court will not instruct the jury that secrecy and mystery in the departure of the vessel, in the placing of men and arms upon her, are not of themselves evidences of criminality, and are as consistent with a lawful as an unlawful enterprise, and are not Inconsistent with tiie mere landing of contraband of war on a foreign shore. This subject presents no question of law for the court, but is one of fact for the jury alone.</p> <p>7. Samis — Presumption op Inxocjknce — Reasonable Doubt.</p> <p>The defendant is entitled to all reasonable presumptions in his favor; and if the jury find that all the evidence and circumstances relied on by the government to show guilt, when'taken together, are as compatible with the theory of innocence as with the theory of guilt, it would constitute a situation of reasonable doubt, and require an acquittal.</p>

<p>Appeal from the Circuit Court of the United States for the District of Vermont.</p> <p>This was a suit in equity by the Allington & Curtis Manufacturing Company and the Knickerbocker Company against J. K. Booth for alleged infringement of certain patents for improvements in dust collectors. The circuit court granted a preliminary injunction (72 Fed. 772), and the defendant has appealed.</p>

On Exceptions to Report of Special Master. The Iowa Water Company (hereinafter spoken of as the “Water Company”), a corporal ion organized under the laws of the state of Iowa, upon April 15, 1887, executed its bonds, secured by trust deed wherein complainant, a corporation organized under the laws of the state of New York, is named as trustee, to the face value of ⅜!400,()0().

<p>On Petition for Rehearing. Denied.</p>

During the years 1893, 1894, and 1895, the plaintiffs in error, constituting the firm of Jackson, Cramer & March, were wool factors in San Angelo, Tex., and the defendants in error, who were partners… Held: as a matter of law, that the facts so found were no defense to the suit upon the drafts. To all this the plaintiffs in error exeepted, and filed bill of exceptions and assignment of errors. The record is here on writ of error for revision of the judgment.

The petition herein avers, as canse of action: That on October 23, 1884, the defendant, a municipal corporation organized under the laws of the state of Iowa, arid under the statutes of ihat state known as a city of the second class, issued its five certain bonds of $1,000 each, a copy of one of said bonds being as follows: “United States of America. “Number 1. $1.000.00 “State of Iowa.

This is an appeal from a decree of the circuit • ■ outhern district of Yew York sustaining the validity of Uniter,, , ri.es letters patent Yo. 345,901, dated July 20, 1886, to Hoffman A We’nberg, assignors to Leopold, Oasella The patent reads as follows, the paragraphs being here numbered for convenience of reference. “(1) Be it known that we, Meinhard Hoffman and Arthur Weinberg, both residing in Mainkur, near Frankfort on the Main, Germany, have invented certain new and…

<p>Patents — Iwmn&bment—Paper-Box Machine.</p> <p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p>

<p>Collision — Ferryboat—Tug and Tow.</p> <p>Appeal from the District Court of the United States for the Southern District of New York. See 78 Fed. 819.</p>

<p>Accident Insurance — Voluntary Exposure — Negligence.</p> <p>In Error to the Circuit Court of the United States for the Western District of Tennessee.</p>

<p>Injitiíotiox — DrssonuTioN.</p> <p>Appeal from the Circuit Court of the United States for the District of West Virginia.</p>

<p>Patents — Novelty—Invention.</p> <p>Appeal from tbe Circuit Court of tbe United States for tbe Northern District of New York.</p>

<p>Patents — Infringement—Anticipation.</p> <p>In Equity.</p> <p>Bill brought by Carter-Grume Company against Lyman G. Bloomingdale for infringement of reissue letters patent No. 10,859, issued July 24, 1883, for an improvement in manifold 'copying books. The defenses were: (1) Noninfringement; (2) invalidity of the reissue; (3) anticipation by prior use; and (4) lack of equity in tbe complaint. On motion for preliminary injunction. Granted.</p>

<p>Patents — Preliminary Injunction — Denial.</p> <p>Motion for preliminary injunction. Suit on patent No. 242,382, dated May 31, 1881,. to Michael Shuter and Abraham Davis, for “tip for insoles,” and sustained on final hearing in Shuter v. Davis, 16 Fed. 564. Denied.</p>

<p>Customs Duties.</p>

<p>Admiralty — Sale of Vessel — Liens under State Laws.</p>