Volume 79 — Federal Reporter

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

This was a creditors’ bill by Milton G-. Shaw and others against A. J. Lyman and others to fix the personal liability of certain directors and stockholders in a corporation. Defendants moved the court to dismiss the case, because of the pendency in a state court of a prior suit between the same parties, on the same cause of action.

<p>On Application for Rehearing.</p>

The questions for settlement arise upon an intervening petition filed by the appellee in the ease of American Loan & Trust Co. v. Toledo, C. & S. Ry. Co., 47 Fed. 343. The petitioner is the owner and holder of certain interest coupons detached from mortgage bonds issued by the railway company.

The Southern Malleable Iron Company is a manufacturing company, incorporateil in August, 1890, under the general law of Tennessee. In November, 1893, 11. II. Peck and Charles D. McGnffey were appointed receivers under a, bill filed in the United States circuit court for the Southern division of the Eastern district of Tennessee, by the Northern Bank of Kentucky, a judgment creditor, with a levy upon certain assets.

<p>Upon the Intervening Petition of Ford, Eaton & Co.</p>

<p>On Demurrer to the Bill.</p>

<p>Mortgages—Foreclosure nr Bondholders—Trustees.</p> <p>Holders of bonds secured by a mortgage made to a trustee cannot ignore the trustee, and foreclose the mortgage by a suit in their own names, without showing that they have requested the trustee to take advantage of a default of the mortgagor, and that he has refused or unreasonably neglected to do so.</p>

<p>Banks and Banking—Special Deposits—Bank as Trustee—Insolvency.</p> <p>The 0. Ry. Co., in order to secure one H. as surely lor it on a bond for $18,000, given pursuant to an order of court, made a special deposit of $18,-000 in the name of H., trustee, in a bank of which H. was president, receiving from the bank a certificate stating the particulars of such deposit, and its purpose. The money so deposited was never separated from the other moneys of the bank, but the amount was credited on the books to H., trustee. Some lime after the deposit was made, H. drew $9,000 in checks signed as trustee, deposited the same in his personal account, and checked it out. The trust account showed a balance of $9,000 when the bank failed and passed into the hands of a receiver, the cash then in the bank amounting to about $11,0()0. Held, that the C. Ry. Oo. was entitled to have its claim allowed as a preferential claim upon the assets in the receiver’s hands to the extent of $9,000 only, and to lie paid the remaining $9,000 pari passu with other creditors.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Texas.</p> <p>The appellees, Charles P. Dewey and Albert B. Dewey, on September 29, 1894, filed their bill, which they designate as a “bill in the nature of a bill of review,” against Jesse 1). T. Stratton, Minnie Stratton and her husband (J. Thomas Stratton), and Horace E. Kelley, to review and sot aside a final decree pro confesso rendered by ihe circuit court November 18, 1893, in equity cause No. 233, in which all appellants here except Kelley were complainants and the appellees were defendants. The decree in suit No. 233 adjudged 1Ue real estate in controversy to the appellant Minnie Stratton. And, without a reference to a master to state the account between the parties, the sum of $4,000 was further decreed in her favor against the appellees, as (ho rental value of the land for the yeais 1890, 1891, 1892, arid 1893. A more extended reference to the provisions of the decree is not considered necessary. Errors of law apparent upon the face of the decree in suit No. 235 are principally relied upon by appellees to reverse the decree and reopen the case. And, as an excuse for their failure to seasonably file a bill of review, the bill alleges ignoran®' on ihe part of appellees of the rendition of the decree in No. 235, which resulted from the serious and protracted illness of their counsel, who had exclusive charge and coni rol of the litigation in their behalf. Appellants filed a demurrer to the bill December 31, 1894. It appears from the briefs on file that counsel for the respective parties agreed that at the hearing of the cause the court below should consider certain affidavits and other writlen evidence in connection with the bill and demurrer. The record discloses that the agreement of counsel was respected by the court, and the cause coming- on to be heard March 39, 1890, in the manner suggested by the agreement, the following decree was rendered: “This cause came on to lie heard at this term, and was argued by counsel; and thereupon, and upon consideration thereof, it was ordered, adjudged, and decreed as follows: That the demurrers of the defendants to complainants' bill are overruled, to which rulings defendants except-; ¡hid the court having heard the bill and exhibits and affidavits in support thereof, and counter affidavits and exhibits submitted by defendants, it is thereupon ordered, adjudged, and decreed that complainants, Chas. P. Dewey and A. B. Dewey, shall within thirty days from this date pay all costs incurred in equity cause, in this court. No. 235, up to this date, and also all costs that have been incurred in this cause No. 294, and that they shall pay into the registry of this court the sum of four-thousand dollars ($4,000), with interest thereon from the 38th day of November, 3893, to the date hereof, at the rate of six per cent, per annum, to he held until the final decree shall be rendered in cause No. 235, to abide such order as may be rendered in said decree; and, upon complainants paying said costs and making said deposit within the time specified, it is ordered, adjudged, and deem'd that the pro confesso taken and entered upon the order book of ibis court on the-----day of August, 1893 (the same being one of the rule days of this court), and also the final decree of this court pronounced, passed, and entered on the 18th day of November. 1893, in that certain cause then pending in this court upon the equity side of the docket, wherein the said Jesse D. T. miration, Minnie Stratton, and her husband, J. Thomas Stratton, defendants herein, were complainants, and said Charles P. Dewey and A. B. Dewey were defendants, and styled upon the equity docket of this court: as ‘.¡esse I). Stratton et al. vs. C. P. Dewey et al.,’ and numbered 233 on said equity docket, of this court, be and the same are set aside, and said cause reopened, and that said complainants heroin, Charles P. Dewey and A. B. Dewey, be now permitted to answer said bill in said cause No. 235,—such answer to be a full answer to (he allegations of ihe bill, and the interrogatories therein to them propounded, and to be filed on or before the first Monday in May, A. 1). 1890,— and, upon said payments and deposit being so made within the time herrín specified, said cause No. 235 will thereafter proceed according to the rules of practice in equity. It is further ordered, adjudged, and decreed that if said costs are not paid or said deposit not made within thirty days from the date hereof, or if said answers are not filed within the time herein specified, then said decree pro confesso ami final decree in said cause No. 235 shall bo and remain in full force, and not vacated by this decree, and complainants’ bill in this cause will thereupon stand dismissed as on final hearing, and all costs in this cause incurred are in that, event adjudged against them, for which execution may issue.” From tins decree the defendants in the court below appeal and assign error.</p>

On .Tilly 23,1892, the Pennsylvania Company for Insurances on Hives and Granting Annuities filed its bill against the Jacksonville, Tampa & Key West Railway Company for the foreclosure of a mortgage executed to it, as trustee, May 15, 1890, by said railway company.

<p>I. Irrigation Companies — Mortgage Foreclosures — Receivers—Preferential Claims.</p> <p>The equitable rules giving- priority to labor and supply claims arising within a limited time before the appointment of a railroad receiver in foreclosure proceedings are applicable by analogy to irrigation companies, which are also quasi public corporations, subserving great public uses.</p> <p>8. Samf.</p> <p>Where a receiver is appointed in foreclosure proceedings against an irrigation company, claims for labor performed in the construction of ditches, etc., aré not until led to preference over the mortgage debt. Claims for labor expended in repairs and improvements are entitled to preference only when there has been a diversion of income to payment of interest, or otherwise to the benefit of the security. But debts for labor and supplies necessary to keep the works a going concern will be given a preference, even out of the corpus of the property, though there has been no diversion of income.</p>

The plaintiff in error, a Missouri corporation, owning and conducting the Midland Hotel at Kansas City, Mo., on August 26, 1891, entered into a written contract with the defendants in error, a Pennsylvania partnership, using the firm name and style of Harrison Safety Boiler Works, whereby tbe defendants in error agreed to furnish and deliver to plaintiff in error, upon the cars at Philadelphia, in the state of Pennsylvania, two Harrison safety boilers of 150 horse power…

This was an action at law by Martha A. Cochran (now Martha A. Calloway) against the Mutual Life Insurance Company of New York, upon a policy of insurance on the life of her husband. The jury returned a verdict for plaintiff, and defendant moved for a new trial.

This was an action at law by Abner T. Bowen against the Needles National Bank on certain bills of exchange. The case was heard on defendant’s motion to strike out from the amended complaint certain parts thereof, which set up a new cause of action.

<p>Limitation of Actions—uonveksion of Ciuttei.s.</p> <p>An action by the receiver of an insolvent national bank, in wliieli it is alleged that the defendant, to which negotiable paper was sent by the bank for collection, appropriated the proceeds thereof, and refused to pay the same over on demand, is an action for the conversion of chattels, and is governed by the limitation fixed by subdivision 3 of section 338 of the California Code of Civil Procedure relating to actions for “taking, detaining, or injuring any goods or chattels.”</p>

This was an action by Edward Hawkins, as receiver of the Indianapolis National Bank, against the First. National Bank of Concord, to recover an assessment made by the comptroller of the currency upon certain shares of stock in the former bank, which were held by the latter as owner. In the circuit court a jury was waived by stipulation in writing, and the case was tried to the court, which made a finding of facts, and rendered judgment for the plaintiff.

<p>Limitation or Actions—Possession or Lands by Heir—Litigation with Administrator.</p> <p>Possession of land, held by one who claims it only as heir of a deceased owner, and who, during the whole of such possession, is litigating with the administrator of such deceased owner the validity of the administration, will not ripen into a title under statutes of limitation, good as against a purchaser from the administrator under an order of sale for payment of debts, made after the administrator’s right is established; nor can the possession of one to whom the heir has conveyed pending the litigation, and who has knowledge of it, and of the nature of the heir’s title, give any better right.</p>

This was an action at law by James 0. Edwards against Bates county, Mo., to recover upon certain funding bonds. The cause was heard on a motion to strike out the amended answer, and for judgment for the sum demanded in the pet ilion.

<p>Wixlfuu Murder—Death in a Foreign Country—Fugitive from Justice-Indictment— Three Years’ Limit — Sections 4043, 1045 and 5339, Rev. St.—On Demurrer, Pi.ma to Indictment Sustained.</p> <p>A seaman on the American schooner M. was indicted for having shot in the harbor of Havana one Miller, who died therefrom in die hospital, three days afterwards, at Havana, on January 21, 1892. The indictment was not found until March 10, 1896; and II. in the meantime bad been imprisoned at Havana upon conviction for an assault, and on the expiration of his sentence delivered to the United States authorities. On demurrer to the indictment: Held (1) that the defendant was not a fugitive from justice under section 1045 of the Revised Statutes, so as to be excepted from the exemption of indictment after three years, provided by section 1043; (2) that the death having taken place on land within a foreign jurisdiction, the ease was not one of “willful murder” at common law, under the federal authorities; (3) that the only United States statute applicable, viz., section 5339, though making the offense punishable with death, neither declares it to be “murder” nor does it limit that offense to cases of death within a year and a day, which at common law was an essential element of the offense of murder; (4) lie id, therefore, that the ease was not one of “willful murder” wilhin section 1043, and the indictment was therefore barred by the three-years limitation.</p>

<p>Warrant or Arrest—Complaint on Information and Hei.iep.</p> <p>Under the Penal Code of California, and, accordingly, by virtue of Rev. St. § 1014, in the courts of the United States sitring in that state, a complaint made to a committing magistrate, upon information and belief only, is insufficient to give such magistrate jurisdiction to issue a warrant of arrest for the accused person,, or to issue a subpeena for a witness.</p>

<p>On application of Frank F. Bradley, United States marshal, Southern district of .Iowa, for warrant of removal to district of Kansas of John Oanedy, alias James A. Beshears.</p>

This is an appeal from a decision of the circuit court, district of Vermont, reversing a decision of the board of general appraisers which affirmed a decision of the collector of customs classifying certain importations for duty under the tariff act of August 28, 1891. The articles imported were hoards and planks, each piece of a specified length, width, a.nd thickness, planed on one side, and matched or grooved for splines.

This was a suit in equity by the Gates Iron Works commenced against the Kimball & Cobb Stone Company for alleged infringement of a patent relating to stone crushers. Frazer & Chalmers were afterwards substituted as party defendant.

This was a suit in equity by the Everett Piano Company, La Marline M. French, and Ojiarles Nalence against George P. Bent for alleged infringement of letters patent No. 515,42(5, issued February 27, Í894, to La Martino M. French and 0. Nalence for a piano attachment. On final liearing.

This was a suit in equity by the Stirling Company against the St. Louis Brewing Association,'for alleged infringement of a patent for an improvement in steam boilers.

<p>Pm Am M tn Patent I.nfiung-mknt Suits—Ar, legations of Ownership.</p> <p>A bill by tlie patentee for infringement must allege tliat he owned the patent at tlie time of filing llie bill. It is not sufficient to show merely that the patent was issued to him at a certain prior date, and that, on liling the bill, he had possession, and made proferí thereof.</p>

<p>Appeal—Jurisdiction of Supreme Court.</p> <p>A writ of error from the supreme court does not lie, hy virtue of the last paragraph of section 6 of the circuit court of appeals act, to review a judgment of the circuit court of appeals which is not a final judgment.</p>

This was a suit in equity by the Brunswick-iíalke-Collender Cqm.pany against the Hielan Billiard-Ball Company for alleged infringement of a patent for an improvement in pool-ball frames. The cireuit court held that the patent was void for want of invention, and dismissed the bill. ■ 76 Fed. 978. The complainant has appealed.

This was a suit, in equity by the Pennsylvania Sait Manufacturing Company against Emanuel Myers, doing business as E. Myers & Co., to enjoin alleged unfair competition in trade, and infringement of a trade-mark.

<p>Cabbiage op Goods—Sea Furies—Extraordinary Weather — Dunnage InSUPPICTENT ABOUND THE MaSTS.</p> <p>Upon proof of extraordinary sea perils nitrl of damage to the ship, which was accompanied by considerable damage to cargo in the hold on the side of the vessel: Held, on proof of usual good dunnage, that the ship was not liable for such damage; but that the ship was liable for certain damage occasioned to bags stowed about the masts and pump-well, where the evidence showed that there was not the usual and customary amount of dunnage to prevent damage from leaks in heavy weather.</p>

<p>Seamen’s .Wages—Desertion—Commitment through Consul—Honolulu— Failure of Proof—Consul’s Certificates not Evidence—Rev. St. § 4600—Consular Examination Required.</p> <p>On the ship’s arrival at Honolulu, four men at different times, notappearing at the hour of commencing work in the morning, were within a few hours afterwards arrested as deserters by the police authorities at Honolulu on request of the consul, and kept in prison from 10 to 20 days, until the ship sailed. On arrival at New York, and on suit for their wages, an offset was presented for (1) rewards for detection, (2) arrest by the police, (3) hoard while in prison, and (4) the employment of a stevedore in place of each seaman while in prison, at $2.50 a day. The seamen denied any intent to desert; the master had no personal knowledge, but only that desertion was reported to him; nor was any record produced of any examination before the consul, such as is required hy section 4C>00 of the Revised Statutes. Held, (1) that the evidence of desertion was insufficient; that the mere certificates of the consul were not legal evidence; (3) that no such offsets as are claimed could he allowed, except on proper legal proof of their necessity, and of a substantial compliance with the statutory requirements.</p>

The record includes three libels in personam, filed by persons doing repairs or furnishing material to the tug Sea Gull, for which it is sought to make the appellee, Stephen Baldwin, liable as owner. These libelants were James Davidson, the Bay Gity Iron Company, and Charles and William If. Jennison. The record also includes a libel filed by James Murdock, who seeks to recover his wages as master of the Sea Gull.

<p>This was a libel by the Chapman Derrick & Wrecking Company against the steamboat Isabel to recover compensation for salvage services. The cause was heard on the marshal’s appeal from the clerk’s taxation of costs.</p>

This was a libel by J. T. Tibbol and others against the barkentine Marion and her cargo of 850 barrels of salmon, to enforce a claim for wages. The cause was beard on exceptions to an amended libel filed against the cargo.

<p>General Average — When Allowed — Repair op Cracked Shaft — Subsequent Breakdown.</p> <p>A steamship hound for New York discovered a crack in her shaft when about 316 miles from Sandy Hook. The shaft was si rengthened by bolts, and she proceeded at reduced speed until 16 miles from Sandy Hook, when the shaft broke and greatly damaged the machinery. Contribution was claimed on the ground that the risk to the ship was foreseen, and deliberately undertaken in order to save the ship and cargo the great expense of towage. The evidence showed, however, that, while the officers recognized the possibility of a new breakdown and further damage, they confidently believed that it could be avoided. Held, that there was no such voluntary sacrifice of the ship to save cargo as was necessary to make a case of general average. 70 Fed. 251, affirmed.</p>

<p>Demurrage—Detention in Loading, Etc:.—Measure of Damages.</p> <p>The measure of damages Cor detention of a vessel, ill loading or unloading, beyond the time stipulated in her charter, is the probable net earnings of such vessel during the period of her detention, and an inquiry into a subsequent period is inadmissible.</p>

<p>1. Collision—Vessels Breakino from Wharf in Storm.</p> <p>Two largo vessels were moored side by side to a wharf in ihe Schuylkill river, off Point Breeze. Heavy rains had fallen, and the water was rising, when, during a storm, one of the posts of the wharf pulled out. A careful examination of the remaining posts was made, but nothing was found to create a doubt of their sufficiency. The water continued to rise, increasing the vertical strain, accompanied by high winds, and on the next day another post pulled out. The vessels could not then be moved without peril to themselves and to others, but new lines were taken to the only other available post. The flood and wind still increased, and, on the following morning, the remaining posts pulled out, in succession, the vessels swung out from the wharf, and their stems struck and injured two vessels oil the opposite side of the river. Held, that, the vessels doing the injury were not liable, as they had taken all the precautions practicable; that, they were not blamable for mooring side by side, as was customary; and that it did not appear that it would have been either practicable or serviceable to carry ail anchor ashore, and imbed it in the earth, after the first posts gave way.</p> <p>2. Wharves—Insufficient Posts —• Vessels Breakincj Away — Damaok to Other Vessels.</p> <p>The posts of a wharf on the Schuylkill river, to which two large vessels were moored, pulled out under the vertical strain caused by the rapid rise of the water due to heavy rains, accompanied by high winds, so that the vessels swung across the river, and damaged other moored vessels. Held, that the wharfinger was liable for the damage, it appearing that the wharf was old, and had been insufficiently repaired, and that tile posts were so short as to extend only about five or six feet below the upper surface of the wharf, instead of being driven dee]) into tlie earth.</p>

<p>Collision—Tugs asd Tows.</p> <p>A sicamor, with tows lashed to her side, and a tug aiding her on a hawser ahead, after passing up tlie eastern side of Blackwell’s Island, with a flood tide of about five miles an hour, turned 1o cross the head of the island, to make a landing al Eighty-Sixth street. New York. In so doing, they attempted to cross the hows of a small tug, with two heavy tows, which was coming up the west side of the island, and which failed to hear their first signal. A collision resulted, causing the loss of a tow. Held, that the first-mentioned steamer and tug were guilty of contributory fault, in failing to observe thát the other tug would be unable to check her tows sufficiently in the strong tide to pass behind them, and in not keeping- further away and allowing a wider margin of safety.</p>

This was a libel in rem by the Garfield & Proctor Goal Company against the schooner Mount Hope, to recover for ihe loss of a barge which was cut adrift through fear of collision with the schooner.

<p>Tug and Tow Meeting Storm—Duty to Mark Examination biifokf, Entering Rough Water.</p> <p>The tug N. L., with two other fugboais, came up through the. Kills in threatening weather, with a large number of canal boats in low. They went out of the Kills between 32 and 3 a. m. in a westerly gale, blowing 31 miles an hour, and in tlie rough weather of the upper bay the tugs were, unable to handle the tow well, and several of the boats foundered from the rough seas. Held, that the iugs were in fault for leaving the Kills in such weather without the customary previous examination oí the condition o£ the water and weather outside.</p>

<p>Tug and Tow—Duty of Examination before Entering Rough Sea and ' Weather.</p> <p>Tbe tug V., with two other tugs coming down the North river with a fleet of canal boats, ran into a violent southeast storm and rough water in Haverstraw Bay, in which the tow was afterwards broken up. There was abundant previous warning of storm, both from the ordinary indications and from cautionary signals displayed, and the tug entered Haver straw Bay without previous examination of the condition of the hay. FeZd, that tbe tug was liable for lack of reasonable prudence with such a tow, and was responsible for the damage.</p>

<p>Collision—Damage to Valuable Barge by Twisting—Permanent Dbpiusciatiox.</p> <p>Where a new and valuable boat lias received a permanent twist from a severe collision, and tlie boat in oilier respects lias been repaired, bat without complete straightening, in consequence of the great expense that complete repair would involve, held, that $1,800 for damage or depreciation not covered by the repairs made was a reasonable allowance, and was upheld.</p>

<p>Tug and Tow—Top-IIeavy—Pumping Oakgo—Insurers Discharged.</p> <p>The barge K., loaded with lumber, while being towed down the narrow channelway from West Duluth, rolled so as to dump her deck cargo partly to starboard and partly to port. On a. conflict of testimony, held, that the circumstances showed that the barge was top-heavy and not loaded in a safe or seaworthy condition for the contemplated voyage to Tonawanda, and the insurers of the cargo were, therefore, discharged under the terms of the policy.</p>

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

After the trial of above case, resulting in a verdict and judgment thereon against the plaintiff, the defendant company filed its bill of costs, claiming, inter alia, viz.: (1) The cost of the depositions of two witnesses who were confined in the Eastern Penitentiary, taken by defendant in conformity with the rules of court. These depositions were offered in evidence on the trial by the defendant, and objected to by the plaintiff.

<p>Federad Courts — Jurisdiction — Forkci.osure Suit — Possession of Mortgaged Property.</p> <p>A federal court having possession, tlumigii its receiver, of Ilie mortgaged property, has jurisdiction of a suit to foreclose the mortgage, regardless of the citizenship of the parties.</p>

<p>On Motion to Remand.</p>

<p>Constitutional Law—Equity Rule 67—Examiners—1Taking Testimony outside District—Compulsory Attendance of Witnesses.</p> <p>The power conferred upon the supreme court by the act of August 23, 18-12 (5 Stat. 518; Rev. St. § 862), to prescribe the forms and modes of taking and obtaining evidence, is valid and constitutional, and under the amendment to Ihe sixty-seveniii equity rule, adopted pursuant to such power, the courts of the TTnit.ed States are authorized to appoint examiners to take testimony orally beyond the limits of the district in which a suit is pending, and the attendance of witnesses before such an examiner may be compelled by ihe courts in the district to which the examiner is sent.</p>

<p>Equity Pleading—Ancillary Proceeding—Enforcing Payment of Costs— Notice.</p> <p>In an equity suit, where execution for costs has been issued against the plaintiff without avail, and it is sought to enforce payment from patents owned by him, this should be done by petition in the original suit; and if, instead thereof, an original bill is filed, it may be treated as a dependent or ancillary proceeding, so that no subpoena is necessary, and a mere notice of the filing of the bill and of an intended motion for injunction is sufficient.</p>

<p>1. Taxation of Mortgages in Hands of Agent of Nonresident.</p> <p>Debts owned by a nonresident of the state of Ohio, evidenced by notes and mortgages upon real estate within the state, are not taxable there, under Rev. St. Ohio, §§ 2731, 2734, 273b. although the notes and mortgages are in the hands of a resident agent, who made the loans, and collects and remits principal and interest as they become due.</p> <p>2. Same.</p> <p>A mortgage, being a mere chose in action, follows the person of the owner, and is taxable only in the state in which he resides.</p>

This was a suit in equity, brought by William F. Cockrill against defendants, Clinton Cockrill, Helen Woodson, and others, to set aside two deeds to land executed by the complainant, on the grounds of fraud, undue influence, and incompetency of the grantor to transact business.

<p>1. Construction of Indian Treaty.</p> <p>Article 5 of the treaty of January 22,1855, with the several Indian tribes of Washington Territory (12 Stat. 928), which provides that “the right of tailing fish at usual and accustomed grounds and stations is further secured to’ said Indians in common with all citizens of the territory, and of erecting temporary liouws for the purpose of curing,”, was not intended to secure to the Indians exclusive rights at any particular places, but only such rights as might be enjoyed by all citizens in common, and valid state laws effective to abridge the fishing rights of citizens are equally effective as against the Indians.</p> <p>%. Right op National Government to Dispose op Indian Reservations.</p> <p>Tlie national government, as original proprietor, has the power to dispose of public lauds even within an Indian reservation without the consent of the Indians; and even if tlie Indian treaty of January 22, 1855 (12 Stat. 928), be regarded p„s making a reservation of fishing grounds and lands adjacent necessary for use of the Indians, congress still had tlie power to> make disposition of the same grounds, notwithstanding the treaty.</p> <p>8; State Control op Fisheries.</p> <p>In the control of fisheries within a state, the state government is supremo.</p>

<p>Intervention of the Eatonton Branch. Railroad Company on exceptions to the master’s report.</p>

This is an appeal from a decree of the circuit court, district of Vermont. The suit was brought by the receiver of the First National Bank of Deming, N. M., to enforce an assessment made by the comptroller upon the stock of that bank against Benjamin F. Lincoln, of Lyndon, Vt., as one of the actual stockholders of the bank, and seeking to set aside a transfer made by Mm, shortly before the failure of'-the bank, to his children, who were made defendants.

<p>Insolvent Corporations—Unpaid Subscriptions—Set-Off.</p> <p>A stockholder who is also a creditor of a corporation has no right to set off the debt of the corporation to him as against his unpaid subscription, after tjie corporation has become insolvent, and a suit in equity has been brought to wind up its affairs and distribute its assets, even though such debt arises upon an accommodation note given by him to the corporation because of his subscription, and to avoid an assessment on his stock. Bausman v. Denny, 73 Fed. 69, reversed.</p>

<p>1. Constitutional Law—Railroads—Preferred Df.bts.</p> <p>A state statute providing that citizens of the state shall have a lien on the personal property of railroad companies thereafter organized, to the amount of $100, for all debts originally contracted in the state, superior to all other liens or mortgages (2 Burns’ Rev. St. Ind. 1891, § 5179; Rev. St. Ind. 1881, § 3919), is valid both as against the railroad company and other lien holders.</p> <p>2. Same — Only Those Injuriously Affected can Question Constitutionality of Statute.</p> <p>Only those who are injuriously affected by an unconstitutional act will be heard to complain of it. Therefore neither a railroad corporation nor its receiver will be heard to question the right of a claimant to have his Claim paid as a preferred one, upon the ground that the statute upon which he bases his right discriminates against citizens of other states, as only a citizen of another state will be heard to make that complaint.</p>

<p>1. Foreclosure op Mortgage—Pleading—Default in Interest—Principal Declared Due.</p> <p>When a suit for the foreclosure of a mortgage has been commenced, based upon a default in interest alo-ne, and, while the suit is pending, (lie trustee of the mortgage, under the provisions thereof, elects to declare the principal of the bonds secured by it due because of the nonpayment of interest, such election is properly the subject of a supplemental bill, but, if introduced into the suit by amendment to the original bill, objection must be made by demurrer, plea, or answer; otherwise it is waived.</p> <p>2. Subpoena—Amended Bill—Stipulation to Answer.</p> <p>The sole office of the writ of subpoena is to bring a defendant into court, in order that the court may acquire jurisdiction of his person; and, when a defendant, has appeared generally in a cause, and subsequently, upon the filing of an amended bill containing a now cause of action, stipulates by his solicitor to file an answer to the merits of such amended bill, no subpoena thereon is required.</p> <p>8. Mortgage Foreclosures—Pleading—Deficiency Decree.</p> <p>A decree for a deficiency upon the foreclosure of a mortgage, may be, rendered, under the ninety-second equity rule, without a special prayer therefor in the bill, though it is the better practice to insert such a prayer.</p> <p>•I. Same—Stipulation ah to Property Covered.</p> <p>When, in a suit for the foreclosure of a mortgage, the parties have stipulated that certain property is covered by the mortgage, no objection can afterwards be made to its inclusion in the decree of foreclosure which could have been obviated by the introduction of any proof.</p>

<p>1. Insoi.vknt Nationat, Banks—Judgments—Receivers.</p> <p>While the receiver of an insolvent national bank may interpose and become a party to a suit to enforce a claim against the bank, he is not a necessary party to such a suit, and a judgment rendered against the bank by a court of competent jurisdiction, in a suit to which he is not a party, is binding upon the receiver, in the absence of fraud or collusion.</p> <p>2. Same—Equity Jurisdiction—Remedy at Law.</p> <p>The holder of a judgment against an insolvent national bank, recovered upon a. claim rejected by its receiver, lias an adequate remedy by an action at law against the receiver, by the judgment in which the latter may be directed to recognize the claim, and he cannot resort to equity to compel the allowance of the claim by the receiver, or enjoin its rejection.</p>

<p>Railkoad Coiii'Axius-—Esunuxt Domain— Judgment boii Land Api’komuated —Lien.</p> <p>A judgment under Rev. St. Ohio, § 6448, for the value of land appropriated hy a railroad company, in favor of a landowner who lias failed to take proceedings 1o prevent the construction of the road over his land, or to obtain compensation, is not a lien on tlie land.</p>

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

<p>1. Validity of Contract Made by Foreign Corporation — Failure of Agent to Comply with Statute.</p> <p>A contract made by the agent of a foreign corporation in the state of Indiana is valid,, although the agent may not have complied with sections 3453, 3454, 2 Burns’ Rev. St. Ind. 1894 (sections 3022, 3023, Rev. St. Ind. 1881), requiring the agents of foreign corporations to do certain things before entering upon the duties of their agency in the state, as the only 'inhibition of the statute is that the contract shall not be enforced in tbe courts of the state before compliance with these sections.</p> <p>2. Contract Enforced by Federal Court although not Enforceable in State Court.</p> <p>Where a state statute provides that contracts made by foreign corporations shall not he enforced in the courts of the state before compliance with certain requirements of the statute, the prohibition will not be extended to suits brought in the federal courts, the contracts not being void.</p>

On February 16, 1885, tbe Southern Development Company filed its bill of complaint in the United States circuit court for the Eastern district of Texas against the Houston & Texas Central Railway Company, in a canse known as “Cause No. 185” of the equity docket of that court. The complainant alleged that the railway company was indebted to it in tbe sum of about $600,000 for money loaned at various times, and prayed for the appointment of a receiver.

<p>Railroad Receiverships—Preferred Claims—Money Loaned.</p> <p>Money loaned to a railroad company on its notes at various times, ranging from about nine months to over four years before the appointment of a receiver, with the purpose and result of keeping its road in safe running order, increasing its property and business, and rendering the same more valuable to the bondholders, and maintaining its credit, is nevertheless not a debt which is entitled to a preference over the mortgage bonds, upon the appointment of a receiver. Lackawanna Iron & Coal Co. v. Farmers’ Loan & Trust Co., 79 Fed. 202, followed.</p>

<p>Railroad Receiverships—Preferred Debts—Advances to Pat Floating Debt. etc.</p> <p>Money advanced to a railroad company at various times to pay floating debts and interest coupons, and bonds loaned it to be pledged for the price of necessary rails to' be purchased, and which bonds it is unable to return, do not constitute a debt which is entitled to a preference over the mortgage bonds upon the'appointment of a receiver in foreclosure proceedings. Lackawanna Iron & Coal Co. v. Farmers’ Loan & Trust Co., 79 Fed. 202, followed.</p>

■ Appeal'from the Circuit Court of the United States for the'Eastern District of Texas. ■ Prior to May 27, 1886, separate bills were filed in the circuit court to foreclose certain mortgages executed by the Houston & Texas Central Railway Company, and for the appointment of a receiver. The mortgages sought to be foreclosed in these suits covered the main line of the Houston & Texas Central Railway, the. Western Division, and the Waco & Northwestern Division of said railway.

The Farmers’ Loan & Trust Company, as trustee under the first mortgage bonds on what was known as the “Waco & Northwestern Division of the Houston & Texas Central Railway,” filed its hill of complaint against the Houston & Texas Central Railway Company et al., seeking a foreclosure on said Waco & Northwestern Division. On March 10, 1892, the court entered a final decree ordering a sale of the trust property.

<p>IxsoiiVnxT Eailkoad Coah’axih.s—1’iiHFEiiEXTrAL Clams—Judgments foe PeeSOXAL Tx.jveiks.</p> <p>A judgment creditor of a railroad corporation, whose claim originate! in tlie negligent act of tlie corporation’s servants, is not entitled to be paid in preference to the holders of pre-existing liens upon the corporation’s property.</p>

This case was before this court, at the May term, 1896, on a motion to dismiss the writ ‘of error. Merritt v. Barge Co., 40 U. S. App. 127, 21 C. C. A. 525, and 75 Fed. 813. On the present occasion it is here for determination on the merits.

<p>Liability oe Sureties in Appeal Bond.</p> <p>An appeal bond in an action in which an attachment has been levied operates as security only for the costs of appeal, where there has been no impairment of the security by waste of the property, and no burdens accruing upon it by nonpayment of taxes.</p>

This is a writ of error by plaintiff below to review a judgment of the circuit court, Southern district of Yew York. Upon the trial verdict was directed for the defendant.

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

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

This is a writ of error to the circuit court, Southern district of New York, to review a judgment of that court entered April 21, 1896, against the plaintiff in error, who was defendant below. Tbe judgment was entered upon tbe verdict of a jury in favor of defendant in error, who was plaintiff below.

<p>1. Government Employes—Foreman at Navy Yard—Suspension—Compensation.</p> <p>One who is employed as foreman mason at a navy yard at a per diem compensation is not entitled to compensation except for the time during which he actually renders services; and the fact that, after being suspended by the commandant, he holds himself ready to perform such services, gives him no claim against the government.</p> <p>2. Same—Investigation ov Charges.</p> <p>The suspension of such an employe by the commandant is, in effect, his discharge; and the fact that after Ms suspension a board is appointed to invesiigate charges against him is no recognition of his status as an employ?, and gives him no right to compensation, nor to a recovery of sums expended in traveling to attend before the board.</p>

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

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

<p>Til Error to the Circuit Court of the United States for the District of Idaho.</p>

<p>1. Review ox Error—Instructions—Negligence.</p> <p>While, in a simple ease, involving only the issues of negligence of the defendant and contributory negligence of the plaintiff, it is better for the court to give a few terse and pointed instructions upon what constitutes the one and the other, yet if the instructions given are unnecessarily voluminous, and unnecessarily and improperly multiplied upon the same points, it is not permissible to select particular clauses, and consider them apart from their context, but the instructions must be taken as a whole, and if, so taken, the jury have been fairly instructed, no error can be justly affirmed.</p> <p>2. NEGLIGENOE—INSTRUCTIONS.</p> <p>The instructions given in this case upon the questions of negligence and contributory negligence considered, and found unobjectionable.</p>

Suit was brought by the defendant in error (plaintiff in the court below) in the ordinary form of “trespass to try title,” to recover four tracts of land situated in Olay county, Tex. W. M. Bowman, B. IT. Strange, and others were made defendants in the original petition filed in the circuit court, and the warrantors of title of the defendants were subsequently brought in by the latter.

This cause was tried before the circuit court, a .jury having been waived by stipulation of the parties, as provided by section l>49 of the Revised Statutes, upon an agreed statement of facts, as follows: “First.

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

<p>Taxation—Levy by County below Statutory Limit—Rights of Judgment Creditor—Mandamus.</p> <p>A judgment creditor of a county, who, having the statutory right to require the county to make an annual levy of 5 per cent, to pay current expenses and debts, makes no objection to repeated smaller levies, lias no right, after the lapse of several years, to mandamus to compel a levy sufficient to make up the deficiency.</p>

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

<p>1. Review on Error—Exception to Refusal of Instructions.</p> <p>An exception taken in gross to tlie refusal of a long series of instructions is of no avail in an appellate court, if some of such instructions were clearly erroneous, and ought not to have been given.</p> <p>2. Same—Exceptions to Charge.</p> <p>Exceptions to a charge to the jury, not taken until after the jury has retired, will not be noticed on appeal, especially where the objections to the charge are of such a nature that they might have been remedied bad the court’s attention been called to them at the proper time.</p>

<p>X. Banks and Banking— Rediscounts.</p> <p>A rediscount by a bank of its hills receivable, though it indorses the same, and becomes contingently liable for their payment, is not a borrowing of money by the bank, ímt has more the characteristics of a sale.</p> <p>2. Same—Powers of Phesident—Indorsement of Paper.</p> <p>It is within the scope of the implied powers of the president of a hank to indorse negotiable paper in the ordinary transaction of the bank’s business, and a special authority to that end need not be conferred by the hoard of directors.</p> <p>3. Same—Custom of Rediscounting.</p> <p>When a hank has long been in the habit of rediscounting its bills receivable in large amounts, all other banks in the same locality pursuing the same practice, and the president and cashier of such hank propose to its regular correspondent a rediscount of its hills, and there are no circumstances attending such proposal to arouse suspibion, the hank to which it is made may safely act upon it, without further inquiry, on the assumption that the act has either been specially authorized, or that the officers are acting within the purview of their general powers.</p> <p>4. Same—Knowledge of Directors—Estoppel.</p> <p>When the directors of a bank have known for many months that its paper was being rediscounted in large amounts, under the president’s direction, and without consulting- the hoard, and that the money so obtained was being used in the business of the hank, and they have made no inquiry as to how the paper was indorsed, the hank is estopped to dispute the authority of the president to indorse such paper for rediscount.</p> <p>5. Writ of Error—Dismissal—Indorsement of Filing.</p> <p>A writ of error, which has been allowed, served, and returned to the ap.pellate court with the transcript of the proceedings in the trial court, will not he dismissed because the clerk of the trial court has inadvertently failed to make an indorsement of its filing on the writ itself. Insurance Co. v. Phinney, 22 C. C. A. 425, 76 Fed. 617, disapproved.</p>

<p>Criminal Law—Pension—False Affidavit—Rev. St. §§ 5431, 4746—Intent to Defraud—Indictment Sustained—Conviction for a Less Offense Included.</p> <p>An indictment charging the defendant with procuring a false affidavit to be presented to the pension office in a pension case with intent ¡.o defraud the United Stales alleges but a single offense, viz., ¡m offense under Itev. St. § 5421, and the indictment is not double, but is good under that section. If the intent to defraud the United States is not proved, conviction on proof of the other facts may be had under section 4746, as a less offense included within the offense charged, under section 1035.</p>

The petition of (Huirles E. Huse for the issuance of a writ of habeas corpus avers: That “he is unlawfully and forcibly imprisoned, and against his will detained, restrained of his liberty and lawful… Held: “is a forgery and counterfeited, in pursuance of the said collusion, in order to prevent this affiant to retrieve his liberty.”

It is shown by the petition in this case that the petitioner was prosecuted'under tlie laws of the state of Washington for the crime of embezzlement of public moneys received by Mm in the capacity of city treasurer of the city of Seattle; that he was convicted and sentenced to serve a term in the state penitentiary; that the judgment against him has been affirmed by tlie supreme court of the state of Washington (41 Pac. 126); that he sued out a writ of error from the supreme…

This is an appeal from decision of the circuit court, Southern district of New York, reversing a decision of the board of general ax>praisers which affirmed the classification of certain imparted merchandise for customs duties by tlie collector of the i>ort of New York. 71 Fed. 957. Tlie facts are set forth in the opinion. The importations were entered in 1893, under the McKinley tariff act of October 1, 1890.

The only question before the court upon tills appeal involves the interpretation of paragraph 88 of the "Wilson tariff act. of August 28, 1891.

This was a suit by Benjamin J. Falk against the City Item Printing Company for alleged infringement’ of a copyright in certain photographs of lime. Loie Fuller. The cause was heard on exceptions to the petition.

<p>1. Patents—Novelty and Invention—Oral Evidence of Prior Constructions.</p> <p>Oral testimony as to prior constructions alleged to have been similar to that of tbe patent is insufficient to overcome the prima facie case made by tbe patent, when such evidence is merely from memory, and concerns events and matters of routine occurring from 8 to 15 years before, and which were not at the time considered of any special importance.</p> <p>2. Same—Public Use—Evidence.</p> <p>The defense of public use more than two years prior to tbe application is not sustained by indefinite and unsatisfactory oral evidence, mostly of interested witnesses, as to tbe fact of tbe public use and the identity of the construction.</p> <p>3. Same—Implied License—Administrative Sale.</p> <p>An implied license to make and use does not pass by an administrator’s sale of the licensee’s place of business, including a few articles covered by the patent.</p> <p>4. Same—Exhibiting Oases.</p> <p>The Kraatz patent, No. 392,038, for an improved case for exhibiting decorative art, held valid and infringed.</p>

<p>Appeal from tlie Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>This was a suit in equity by the Loewer Sole -Rounder Company against Charles S: Gibbon for alleged infringement of a patent for an improved sole-cutting machine. In the circuit court the patent was adjudged valid and infringed as to claims 1, 4, 5, 0, 9, and 14 (74 Fed. 555), and the defendant has appealed.</p>

<p>Patents—Invention and Infringement—Abrading Disks.</p> <p>The Buzzell patent, No. 317,622, held valid and infringed as to claim 3, which is for an abrading disk, with a cushioned peripheral face oblique to its axis, and with a circumferential guard to sustain the abrading band, to be used in smoothing the breast of boot and shoe heels.</p>

This was a suit in equity by John G. Buzzell against Thomas A. Norris for alleged infringement of the Buzzell patent, No. 317,622, for a device for smoothing the breast of boot and shoe heels.

<p>Appeal from the Circuit Court of the Uuited States for the Eastern Division of the Northern District of Ohio.</p> <p>The bill in this case was filed in the court below by Grosvenor P. Lowrey, of the city of New York, against the Cowles Electric Smelting & Aluminum Company, an Ohio corporation doing business at Cleveland, and Alanson T. Osborn, the treasurer of the company, for the purpose of removing a cloud upon the title of the complainant in two patents assigned to him by one Charles S. Bradley, the patentee therein, and to quiet the title of the complainant in said patents. The bill, after setting up the obtaining of the patents by Bradley and the transfer thereof to the complainant, alleged that the defendant, the Cowles Electric Smelting & Aluminum Company, had set up and asserted title to the same patents, under a certain contract made on the 18th day of May, 1885, between the said Cowles Electric Smelting & Aluminum Company of the one part and the said Charles S. Bradley and one Francis B. Crocker of the other part, whereby,' as the defendants claimed, all the right, title, and interest of the said Bradley in the invention covered by the patents so assigned to the complainant had been assigned by the said Bradley to the said company; and that the company had executed an instrument of assignment of the said patents to Alanson T. Osborn, its treasurer, and caused the same to be placed upon the record of assignments in the patent office. It is claimed in the bill that this instrument of assignment to Osborn was false and fraudulent, and had no foundation in the contract upon which the company claimed title, and that putting the same on record and the assertion of claim to the Bradley patents, under a claim founded upon the contract above mentioned, operated to create a cloud upon the complainant’s title. The contract made specific mention of an application of Bradley and Crocker, No. 158,805, then on file in the patent office. The bill sets out this contract in an exhibit, which will be presently copied, and alleges: “That while the language in said agreement between •Crocker and Bradley and said Cowles Electric Smelting & Aluminum Company is broad enough in its general terms to coyer other inventions of said Crocker and Bradley than that embraced in said application No. 158,805, it was not intended to and did not in ‘fact embrace any .other inventions;” and that the ap.plication of Bradieyj'hpón which the patents were issued to him as above mentioned, “was not by any act, understanding,' or contract of the parties included in said agreement of May 18, 1885.” The defendants appeared and pleaded to ilie bill, the substance of the plea being a statement of the facts and circumstances under which the contract of May 18, 1885, was executed, and a claim of title to the Bradley invention; and an answer, setting up substantially the same facts, was filed in support of the bill. The case having been brought on for hearing upon the defendants’ plea, the same was overruled by the court, and the defendants, under leave of the court, then filed a further answer to the bill, and they also filed a cross hill, praying that the assignment to the said Urosvenor J'. Lowrey might he decreed to be null and void, and that he might he perpetually enjoined from claiming any right, title, or interest in the said Bradley patents or either of them. Thereupon, a replication to the answer having been filed, and the pleadings upon the cross bill having been perfected, proofs were taken, and the cause again came on for final hearing. The case having been heard and considered, the court below decreed in favor of the complainant, holding, in its opinion, that Bradley’s invention did not pass to the Cowles Electric Smelting & Aluminum Company by the contract of May 18, 1885. The opinion of the court upon the overruling of the plea is found in 56 Fed. 488, and the opinion on the final hearing in 68 Fed. 354. On the 8tli of April, 1885, one Colgate Hoyt, acting in behalf of the Cowles Electric Smelting & Aluminum Company, procured from C. S. Bradley, who resided at Yonkers, NT. Y., an option for the purchase of an interest in Bradley’s inventions in the art, and took from him a writing witnessing it, as follows;</p> <p>“Now York, April 8, 1885.</p> <p>“By and between Charles S. Bradley and Colgate Hoyt, both of Yonkers, in the state of New York, it is agreed as follows: Said Bradley shall, upon demand (if said Hoyt, made at any time within ninety days from the date hereof, assign to said Hoyt, or his order, for the consideration of ten thousand dollars cash, an undivided cue-quarter interest in all inventions which he lias hitherto made in electric furnaces, and in the reduction of ores by electricity, and of all patents to be granted therefor, whether applications for such patents have already been filed or shall hereafter be filed, in the patent, office of the United States; and, in consideration of the option being granted, said Hoyt, or the party to whom he may have assigned the same, shall pay to said Bradley, at the date hereof, the sum of five hundred dollars.</p> <p>“Charles S. Bradley.”</p> <p>“New York, April 8, 1885.</p> <p>“Received of Colgate Hoyt five hundred dollars.</p> <p>“Charles S. Bradley.”</p> <p>This appears to have been in duplicate, for upon the making of the contract next to be mentioned such a writing was delivered up by each of the parties to the other.</p> <p>Not long thereafter a correspondence was opened by the company with Bradley and Crocker for the purpose of purchasing ilioir inventions, the immediately moving causes of which were an Interference which had been declared in the patent office between one of the Cowles applications and that of Bradley and Crocker, and an interference of a caveat of Bradley and Crocker with another of the Cowles applications. The result of tins correspondence was that Bradley and Crocker came to Cleveland a day or two before the 18tli of May, and, after further negotiations, reached an agreement. The contract upon which the controversy turns was made on the day of its date, and is here set forth, as follows:</p> <p>“This agreement, entered into this 18th day of May, 1885, between F. B. Crocker, of New York City, N. Y., and C. S. Bradley, of Yonkers, N. Y., constituting the first party, and the Cowles Electric Smelting and Aluminum Company, of Cleveland, Ohio, a corporation organized under the laws of the state of Otilo, constituting the second party, witnesseth that whereas, the first party have made certain discoveries and inventions relating' to electric smelting processes and furnaces, and have made some applications for patents therefor, in the United States patent office; and whereas, the said second party is desirous of becoming the owner of such discoveries and inventions,—it is therefore agreed between the parties as follows: (1) For the consideration hereinafter mentioned, the receipt of which to our full satisfaction is hereby acknowledged, the said first party does hereby sell, assign, and set over to the said second party all their interest in any and all discoveries and inventions relating •to electric smelting processes and furnaces, and all patents they have obtained therefor, and all applications now pending and caveats on file in the United States patent office relating to electric smelting processes and furnaces, which do or may interfere with any application for patents made by Eugene H. Cowles and Alfred H. Cowles, of Cleveland, Ohio, now pending in the United States patent office. It is understood and agreed between the parties that this clause also includes the application of said first party now pending in the United States patent office and designated ‘Serial Number 158,805,’ and filed March 14, 1885. (2) Said first party also sells, assigns, and sets over to said second party their entire interest in all inventions, patents, and applications for patents in all foreign countries for the discoveries and inventions mentioned in the preceding clause of this agreement. (3) Said first party hereby authorizes and requests the commissioner of patents to issue to said second party patents for said discoveries and inventions mentioned in the first clause of this agreement. (4) Said first party for said consideration further agrees to sign and execute all papers necessary to perfecting applications for said inventions and obtaining patents therefor. (5) In consideration of the preceding, said second-party hereby pays in hand to said first party the sum of five thousand dollars. In testimony whereof said parties have hereunto set their hands the day and year first above written. Francis B. Crocker.</p> <p>“Charles S. Bradley.”</p> <p>The material facts and circumstances which are referred to by the respective parties for the purpose of construing this contract, and ascertaining the intent and purposes of the parties therein, were these: The Cowles .Electric Smelting & Aluminum Company, having just been organized at Cleveland, was about to engage in business, principally that of the manufacture of aluminum. In aid of this purpose it had become the owner of several inventions made by Eugene H. and Alfred H. Cowles, relating to the reduction of metallic ores and compounds, and especially to the production of aluminum from its ores and compounds by smelting them by means of the electric current. The first of these applications was one filed December 24, 1884, by E. H. & A. H. Cowles, and it was stated therein that their invention related to improvements in electrical furnaces and the method of operating the same; and it was further stated that the invention related to that class of electric furnaces in which heat, was generated by means of the incandescence of a resistance body. The apparatus contemplated consisted of the electrodes of a dynamo-electrical machine placed within and on the opposite sides of the chamber or containing vessel and of the material deposited therein, and the process consisted of placing between the electrodes a mass of ore or other material to be operated upon, intermixed with carbon, both in a granulated or pulverized condition, and then passing through the material the electric current. In this mixture the carbon was intended to serve the purpose of a resistance medium in -which a high degree of heat would be produced by compelling the current through it. Thereby the commingled ore in contact with it would be fused and separated from its chemical compounds. In reference to the material to be treated, it was said that it might be “mixed with the granular resistance medium, or imbedded in it, or otherwise brought in close contact therewith; or it may constitute, in itself, the resistance medium, according to the character of the 'material and the object sought to be accomplished.” And in a subsequent part of the specifications this was further explained by saying: “Some ores or chemical mixtures may be of such a character, as to conductivity or resistance, as to become incandescent when treated in the above-described manner, in which case the addition of carbon is not necessary. The current of electricity passing through the mass of broken or pulverized ore, or mixture, will, in that case, generate the heat necessary to smelt or reduce it.” The specifications give the construction of the apparatus and the mode of combination in detail. It is only necessary here to state them generally, as above. The claims axipended thereto were 10 in number; some of them were for the axtparatus and others for the process, of which may be especially noted claim 0, which was as follows: “(6) The method of smelting ore herein described, which consists in pulverizing the ore and introducing the pulverized ore in a dry state ’within the circuit of an electric current by means of which the ore is reduced, substantially as and for the purpose set forth.” This claim (i was subsequently amended by inserting after the word “current,” in the third line: "The said circuit being established through the body of dry pulverized ore of which it forms a part and.” A further explanation was made of the process by an amendment as follows: “The heat is generated solely by the electric rests Lance !>f the particles of the granular body, exactly as in the case of an incandescent lamp by the resistance of the carbon filament to the passage of the current, and no other heat is employed at any stage of the work.” Subsequently, by an amendment filed December 24, 1884, the specifications were changed, and in the matter of the specifications after such change occurred this passage: “To this end the invention consists essentially in the use, for metallurgical purposes, of a body of granular material of high resistance or low conductivity interposed within the circuit in such a manner as to form a continuous and unbroken part of the same, which granular body, bv reason of its resistance, is made incandescent and generates all the heat required. The ore or other material to be reduced Is usually mixed with the body of granular resistance material.” In another part of the specifications it was stated that the degree of granulation might vary with the conditions of the case; and it was stated that the scope of the invention W'as not limited by the degree of granulation. And it was elsewhere stated that the proportions of ore and carbon would depend upon the character of the ore and the degree of heat required to reduce it, and that the degree of heat evolved would be determined by the resistance or conductivity of the mass and the strength of the current, employed.</p> <p>After stating that the matter of the apparatus was reserved for a separate application, entirely new1 claims were substituted for the original claims, three' in number, of which the following is claim 1: “(1) The method of generating heat for metallurgical operations herein described, which consists in passing an electric current through a body of broken or pulverized resistance material that forms a continuous part of the electric circuit, the material to be treated by the metallurgical process being brought in contact with or close proximity to the broken or pulverized resistance material, whereby the heat is generated by the resistance of the broken or pulverized hotly throughout its mass, and rite operation can he performed solely by means of electrical energy.” On February 14, 1885, the application was allowed; but, on the 20tli day of March following, the case was withdrawn from issue in view of the prospective interference with another pending application, which turned out to be that of Bradley and Crocker, No. 158,805, specifically mentioned in the contract of May 38, 1885, and on April 10, 1885, such interference was declared. This was the state of the proceedings upon the application, at the date of the contract.</p> <p>Another application by E. H. & A. H. Cowles was one filed February 24, 1885, being a divisional application founded upon that of December 24, 1884, just mentioned. It was for improvements in electric smelting furnaces. The details of construction suggested as embodying this invention were those enumerated in the main application, and the claims made thereon wore for combinations of such apparatus. After some changes in the specifications and claims, it was announced at the patent office that the application was ready for allowance: but on May 1st it was declared that the ease must be withheld from issue because of the fact that the main case was in interference with the Bradley and Crocker application, and on May G, 1885, it was declared suspended to await the tiling of an application by Bradley and Crocker upon their caveat which was found in the office. Notice of this suspension and the reason therefor was mailed to E. H. & A. H. Cowles, May 7, 3885, and this application of Cowles and Cowles stood in this plight on the 38th of May, 1885. Still another application was that of A. H. Cowles, filed May 15, 1885. It related to improvements in electric furnaces and methods of operating the same. The specifications delineated not only the apparatus, but also the method of operation. The apparatus consisted, substantially, of a containing chamber through the opposite sides of which the electrodes of a dynamo-electrical machine were inserted extending into the chamber towards each other so as to be in contact with the material to be reduced, and provided with mechanism whereby the electrodes could be pushed in so that -the ends would be near each other or withdrawn to the wall of the'chamber, as the requirements of the work to be performed should indicate. The chamber also contained a lining of some substance which was a nonconductor of heat or electricity, a lining not made integral with the walls of the chamber, but packed in at the time of putting in the charge of material, or perhaps continued for successive operations. The process was one plainly indicated by the apparatus. The material which was to be subjected to the operation was stated to consist generally of intermingled ore, or metallic compounds, and carbon. Although it was stated in the specifications that the mingling of the carbon or other resistance material was generally done, it was also said: “But in some cases pulverized ore -alone is used when it is a sufficient- conductor of electricity.” The claims also negative the necessity for the intermingling of the carbon or other resistance material. The material was filled into the chamber and covered with the lining material, provision made for the escape of gases, and the operation commenced by moving the points of the electrodes through the mass until they came sufficiently near each other so that the passage of the current would fuse the intervening or adjacent material. As soon as the fusion was started the electrodes were moved apart, gradually receding as the fusion progressed, whereby the mass of material between the electrodes acquired increased conductivity, until eventually the whole mass of material was brought within the influence of the current and melted down. The original claims as they stood at the date of the contract were for combinations of the apparatus only; but it should be noted in this connection that the specifications contained also the basis for a patent upon the process, and that eventually the patent did, in fact, issue for both, the first claim in which was as follows: “(1) The method of smelting ores and other substances by the incandescence of an electric material contained in said substances or mixed therewith, which consists in first bringing a limited quantity of the material to be treated between a pair of electrodes, and then gradually increasing the quantity of such material by causing the electrodes to recede from each other, substantially as herein set forth.”</p> <p>No proceedings in the patent office subsequent to the filing had taken place upon this application until after the 18th of May, 1885. On the other hand, there was at that time pending in the office the application of Bradley and Crocker, which claimed the invention by them of heating and reducing ores by electricity. That process was similar to that specified in tire Cowles application of December 24, 1884, and is the one which was put into interference with that. It is not necessary to go into the details of that apxffication, as there is no question material to the controversy relating to it. There was also then in the archives of the office a caveat deposited by Bradley and Crocker, February 20, 1884, which described the invention by them of an electrochemical or metallurgical process, in which the necessary “heat is produced and maintained by passing a powerful electric current either through the materials themselves which are undergoing treatjnent when these materials are conductors of electricity, or through separate conductors placed in the furnace, the energy of the electrical current being converted into heat by the electrical resistance of the materials or of the conductors through which it passes.” The details stated in this caveat are of the apparatus employed and also of the mode of operation. In general, the apparatus consisted of carbon plates set in brick work and constituting the two electrodes. These electrodes were placed on opposite sides of the space containing the material, and there was a lining of the furnace consisting of nonconducting material. The mode of using the apparatus was by filling in the intervening simce between the electrodes, and passing through it an electrical current in a way substantially like that already stated in the applications above described. In this caveat there was this passage: “We are about, to make application for a patent for an invention resembling to a certain extent the one herein described, but in which the electric current wo employ to produce the necessary heat in the furnace is also made to perform the function of electrolyzing a fused compound; that is, reducing a metal by the electrolytic action of the current that we epiploy to keep the bath in a state of fusion. But it is to be observed that in the invention described in this caveat the electric current by which we producé the required heat performs no electrolytic action upon the materials undergoing treatment, the reaction being purely chemical, and the function of the current being solely to develop the heat which is - a necessary condition of, tlie reaction.” This caveat is the one above mentioned, on account of which tlie application of Cowles and Cowles of February 24, 1885, was suspended on May (i, 1883. There was also pending in the office when the contract in question was made ike Bradley application, upon which and its outgrowths the present controversy has arisen; and a somewhat particular statement of its nature, history, and then existing status seems necessary for the purpose of explaining the grounds upon which the conclusion here reached is founded. Tin» application was filed by Charles S. Bradley, February 23, 1883. In it lie stated that his invention was: "A new and useful improvement in the electrometallurgical process,” and it was said to relate “to (lie process of effecting the reduction of minerals or other compound chemical substances, while in a state of fusion, by the electrolytic action of an electric current; and it is especially designed for the extraction of metals from their ores or compounds, and their reduction to the metallic state.” His method consisted of an operation therein described as follows: “Upon a hearth of brick or other suitable material is piled a heap or body of the ore, more or less pulverized, in the shape of a truncated cone, and a cavity or basin is excavated in the top of the heap to contain tlie fused portion of the ore winch is to bo treated electrolytically. In order to fuse Hie ore at the start, I bring the two electrodes into contact, separate thorn sufficiently to produce an electric arc, and then thrust them down into tlie ore lying at the bottom of the cavity or basin, where the ore soon fuses by the heat of the arc, and becomes a conducting medium or electrolyte Hirongh which the current from the electrodes continues to flow. The decomposition of the ore thereupon commences, the metallic aluminum being gradually deposited at the negative electrode, and the fluorine gas being set free at the positive electrode so long as the ore is maintained in a state of fusion; and I secure this result in my process by employing a current sufficiently powerful to develop the required heat in overcoming the resistance offered to its passage by the fused mass of ore, and, further, in having my electric generator or source of current so arranged that the strength of the electrolytic current may be properly regulated, and (he mass of ore thereby kept at the propon' temperature to obtain the most efficient electrolytic effect"; or, in other words, to produce the largest yield of metal with the greatest economy in tlie electric current consumed.” The claims were five in number, and were substantially as stated in claim No. 1: “The process of obtaining metals from their ores or compounds which consists in treating electrolytically a fused mass of ore contained in a basin or receptacle formed of the ore itself.” On objection being made to these claims, Bradley, on April 8, 1883, amended his specifications, and substituted new claims. In his amendments, among other things, he inserted the words “or electro-chemical” after the word “electrometallurgical” in the statement of the field of his invention, and placed, at the head of his communication to the office embodying his amendments, the title, “Improvement, in Electro-Metallurgical or Electro-Chemical Process.” .And in respect to the incidents of his process he inserted the following statement:</p> <p>“The arc. of course, ceases to exist as soon as there is a conducting liquid— the fused ore—between the electrodes, and the passage of tlie current then tabes place through the fused ore by conduction, and the heat is produced as it is in an incandescent lamp. The arc is merely used to melt tlie ore in the beginning, and the ore is kept melted by incandescence, so to speak.” Also the following: “It is obvious that other chemical mid metallurgical processes may be carried on according to my invention in substantially the same manner as that I have described. It is also evident that various forms of furnace and built of various malcriáis may be employed without departing from my invention.” The substituted claims were for the process only, eight in number, the third of which is here stated: “(3) The herein described electro-metallurgical or electro-chemical process which consists in employing an electric current sufficiently powerful, not only to effect tlie electrolytic decomposition of the ore or compound treated, but also to develop by its passage the heat required to fuse said ore or compound or maintain it in a state of fusion.” In no one of -these claims was the initial fusion made an element or step' in the process. The claims took up the process with the initial fusing already accomplished, adopting it as the datum from which the process described advanced.</p> <p>On April 16, 1S85, the claims were rejected upon references, especially to the detail of experiments of Sir Humphrey Davy in the Philosophical Transactions of the Royal Society. There were no other applications or caveats of Bradley and Crocker, or either of them, then on file. It is not deemed necessary to state the subsequent proceedings upon these several applications in minute detail; some of them are referred to in the opinion. It suffices here to state that the several Cowles applications were carried through to patents,—some of them after changes in the specifications and claims; and one of them in particular, that of A. H. Cowles, resulted in a-patent for not only the process, but also the apparatus in which it was conducted. Nothing was done after the contract was made by the Cowles Bros, in respect to the Bradley application, nor for the purpose of securing any rights in the invention stated in the Bradley and Crocker caveat; and Bradley himself did nothing further with his apiilication for nearly two years thereafter, when, on April 13, 1S87, he took up the proceedings again, and, after a protracted struggle—in w'hich there were repeated rejections and amendments of the specifications and claims—in the patent office, finally obtained three patents. One of these, that upon his original application, was numbered 468,148, was issued February 2, 1892, and was for the x>rocess stated therein. It was said in the sxoeeifications, which had been amended in this respect during the xn'ogress of the proceedings, that “the body of unfused ore may either be formed into an unconfined püe, as in Fig. 1. or it may be contained in a receptacle or box, 6, of any desired shape, so as practically to form a tank or holder lined of the ore itself, as in Fig. 2. Such a lining will prevent the destruction of the holder, and the process may go on indefinitely without internrption.” After describing his invention, he said; “I have described my process as preferably carried on by employing a body of the ore itself to form the basin or recex>tacle in which the electrodes are situated, between which the current flows through the ore for heating and electrolyzing the same. That specific invention, however, is not claimed herein, since it forms the subject-matter of patent No. 464,933, dated December 8, 1891. My i>resent invention is not limited to the specific character of the receptacle nor the specific arrangements of the electrodes.” Then follow the claims, of which the first was this: “(1) The process of separating or disassociating metals from their highly refractory ores or compounds, nonconductors in an unfused state, of which the ores and compounds of aluminum are a type, which consists in fusing the refractory ore or comxiound progressively by a source of heat concentrated directly upon it, rather than by an external furnace, and as it becomes fused effecting electrolysis by passing an electric current there-through between terminals which are maintained in circuit wfith the fused bath, whereby the process is rendered continuous, substantially as set forth.” Another of the patents obtained by Bradley was No. 464,933, issued December 8, 1891. It was entitled, “Process of Obtaining Metals from Their Ores or Compounds by Electrolysis,” and was based upon a divisional application of his original application, the general descrii>tion of the xn’oeess being that contained in the original ax>plication, with modifications made during its pendency. One of the amendments in the specifications was this: “The body of unfused ore may either be formed into an unconfined pile, as in Fig. 1, or it may be contained in a receptacle or box, 6, of any desired shape, so as practically to form a. tank or holder lined of the ore itself, as in Fig. 2. Such a lining will xrrevent the destruction of the holder, and the x>rocess may go on indefinitely without interruption.” And he further expressly disclaimed the initial fusing by an electric arc as a part of this invention, in the following terms: “I do not herein lay claim * * * to the process of obtaining metals from their ores or eomxjounds * * * consisting in first fusing the ore or compound by the direct passage of an electric current therethrough, and then, while maintaining üie fused condition by said current, also eleetrolytically decomposing the ore or compound.” And he also distinguished this invention from the one specifically embodying his eleetrolytieal process, by stating that he did not “herein lay claim, broadly, to the process of obtaining metals from their ores or compounds consisting in maintaining the ore or compound in a fused or molten condition by the passage of an electrical current therethrough, and eleotrolytically decomposing such ore or compound,” since, as he says, he had made those the subjects of another application. Claims 1 and 2 of this patent were as follows: “(1) The process of obtaining metals from their ores or compounds, consisting in passing an electric cummt through a fused portion of the ore or ecmpound contained in an rmfusert body or heap of said ore or compound. (2) The process of obtaining aluminum from its ores or compounds, consisting in passing an electric current through a fused portion of the aluminum ore or* cost)pound contained in an unfused body or hea.p of said ore or compound.” Still another of the Bradley patents was No. 473,806, issued April 26, 1892, entitled, “Process of Obtaining Metals from Their Ores or Compounds,” which states that it was “especially designed for the. extraction of metals from aluminous and the like class of highly refractory ores or compounds, and their reduction to the metallic state,—for example, the extraction of aluminum from one of its ores, say cryolite.” In his application, in addition to the apparatus provided in his original specifications, he states that he employs an auxiliary source of heat in the nature of blowpipe or similar flame projected upon the material in the vicinity of the electrodes, and keeping up the fusion in that way. The nature of this patent is disclosed substantially by the following, claim 1: “(1) The herein described process of obtaining metals from aluminous and the like class of highly refractory ores or compounds, which consists in fusing, and, when fused, establishing an electric current through a bath of the material to be treated, and by such current, together with a blowpipe flame or other auxiliary source of heat concentrated directly upon the material treated, rather than through the walls of a furnace or crucible, maintaining the fused bath of ore constant, and electrolyzing the same, as set forth.” During the progress of the suit Grosvenor P. Dowrey died, and it was revived in the name ot his executor, Francis P. Lowrey, who is the appellee in this court.</p>

<p>Patents—Tnfiungkment—Coal Houhicns.</p> <p>The Roberts reissue, No. 7,841, for an improvement in coal screens and chutes, is not infringed by an apparatus lacking the reservoir which is the principal feature of the Roberts patent, and controlling the flow of coal only by the use of gates at the upper and lower ends of the chute. Excelsior Coal Co. v. Oregon Imp. Co., 16 C. C. A. 219, 69 Fed. 246, reaffirmed.</p>

<p>Patents for Inventions—Infringement—Milk Creamers.</p> <p>Letters patent, No. 289,569, issued April 5, 1881, to Theodore Bergner, for creaming machines, were based upon speciiications providing for the removal of the skimmed milk by means of a pump, which speciiications were amended three years after filing so as to cover the entire process of creaming milk mechanically by centrifugal force. Held, that since the only new element in the device was the method of removing the milk, such patent was not infringed by a creaming device in which no pump was used.</p>

<p>1. Charter of Lake Steamers—Construction of Charter—Close of Navigation.</p> <p>By charter dated October 16, 1894, the charterers agreed to pay $2,700 for every east-hound cargo, from the head of Lake Superior t.o Buffalo, which the steamer “might be able to carry between the date above specified to the close of navigation for the season of 1894.” There being nothing to show that this freight was exceptional, held, that the charter contemplated that the owners should furnish west-bound cargo; that the charter was to terminate at the time fixed by custom for the close of navigation, viz. November 30th; and that, having arrived at Buffalo on the last trip November 24t.h, so that she could not possibly unload and load another cargo before tbe 27th, the steamer was under no obligation to attempt another trip.</p> <p>2. Same—Closing of Lake Navigation—Usage—Marine Insurance.</p> <p>The fact that, of late years, policies of marine insurance for vessels on the Great Lakes, have been made to expire on December 5th instead of November 30th, as formerly, has not impaired the recognized usage whereby navigation is considered as closed on the latter date.</p> <p>3. Parol Evidence—Maritime Usage—Close of Lake Navigation.</p> <p>Parol evidence of a usage whereby lake navigation is considered as closing November 30th each year is admissible to ¡.now the termination on that date of a charter which requires the vessel to carry as many cargoes as she can between the date of the charter and the “close, of navigation for the season.”</p>

<p>1. Maritime Ireks—Supplies—Phesumptiok op Necessity.</p> <p>To create a lien for supplies ordered by the master in a foreign port, it must appear that the supplies were reasonably necessary, and that a credit to the vessel is necessary. The necessity for the supplies may be presumed from their nature, and from tlie fact that the master ordered them; and, in tlie absence of other facts, tlie necessity for binding tlie vessel may also be presumed. But if the supply man knows that the master has funds of the owners, or of his own, credit to ihe vessel is not authorized, and no lien is created.</p> <p>2. 8am e.</p> <p>One furnishing a small amount of supplies to a fishing vessel in a foreign port, on tlie order of the master, lias no lien, though he give credit on his books to the vessel and owners, when he knows that the vessel brought in and sold for cash sufficient fish to furnish means of payment. Nor is it material that the vessel departed on the day of receiving the supplies, no fraud being practiced.</p>

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

<p>Libel by the American Sugar-Befining Company against tbe steamship Sandfield to recover the sum of $10,000 for damage to a cargo of sugar.</p>

<p>Collision—Signals—Steamer Aground in Channel—Acts in Extremis.</p> <p>A steamer aground in the river St. Mary, about 300 feet south of the light crib at Sailors’ Encampment Island, held solely in fault for a collision with her of a descending steamer, in that she failed to answer the usual signal given by the latter on turning the bend above, and gave no signal indicating that she was aground; and later, when the danger of collision was apparent, gave a signal of four blasts to summon a tug, which was understood on the other vessel as a signal to come on, or hurry up. " The latter vessel held not in fault for an alleged mistake in choosing the side for passing, such choice having been made in the face of a sudden peril, brought about by tbe inexcusable negligence of the steamer aground.</p>

This was a lihel in rem against the tag Albert N. Hughes to recover damages caused by a collision of her tow with the schooner Lottie K. Friend.

Aj>peal from the Circuit Court: of the United States for the District of Massachusetts. This was a suit in equity by the Tannage .Patent Company against John E. Donallan for Infringement of letters patent No. 291,784 and 291,785, for a process oí tanning leather. The circuit court made an order granting a preliminary injunction (75 Fed. 287), and the defendant appealed. The cause was heard on appellant’s motion to dismiss its appeal without prejudice.

<p>In Equity. On demurrer to answer to intervening petition.</p>

<p>1. Railroad Receivers—Settlement of Claims.</p> <p>The antliorily given to railroad receivers “to compromise, adjust, and settle, in their best discretion,” claims against the railroad company, vested no right in judgment creditors to have their respective claims paid in full.</p> <p>2. Same.</p> <p>A judgment creditor will not, in general, be allowed to enforce his judgment by sale of property in the hands of a receiver.</p> <p>3. Same—Ancillary Decree.</p> <p>Even if a, circuit court had acted improvidently in including all the property of a railroad company in a receivership, the circuit court of another district will not, by its ancillary decree, except a portion of the prop- - erty in that district from its operation.</p>

<p>Constitutional Law—Classification of Cities and Towns—SrEcrAL Legislation.</p> <p>The Missouri statute of March 18, 1893, concerning sewers and drains “for cities in the state having a special charter which now or hereafter contains more thau 2,000 and less than 30,000 inhabitants,” and for such cities of the third and fourth class as may by a vote of the people adopt the act, violates section 7, art. 9, Const. Mo., which provides for the division of the towns and cities of the state into four classes, and declares that the powers of each class shall be defined by general laws.</p>

’ This is an intervening petition filed by the Louisville & Nashville Railroad Company to compel the receiver of the ju'opei'ty of the Port Royal & Augusta Railway Company to pay over to the Georgia Railroad Company the amount of a claim for traffic balances due by the receiver to that company.

<p>1. Usury—Commissions.</p> <p>When one negotiates a loán through a third party with a money lender, and the latter bona fide lends tlie money at a legal rate of interest, the contract is not made usurious merely because the intermediary charge's the borrower with a heavy commission; the intermediary having no legal or established connection with the lender, as agent. Whaley v. Mortgage Co., 20 C. C. A. 306, 74 Fed. 77, followed.</p> <p>2. Same— Stipulation for.</p> <p>A loan secured by a deed of trust is not rendered usurious by a’ provision in tlie deed that in case of sale under the deed the proceeds shall he applied to the payment of expenses of sale, including commissions and a counsel foe. Such a provision is in tlie nature of a penalty, and the court can determine, when it has taken the matter within its jurisdiction, to what extent the penalty can be enforced.</p>

<p>Wife’s Interest tn Homestead—Consideration for Mortgage.</p> <p>Under tlie California laws the wife has an interest in the homestead which requires a consideration for her agreement to convey or incumber it, and therefore her mortgage of the homestead to secure an antecedent debt of the husband is not binding on her.</p>

<p>1. Suits against United States—Skt-Off.</p> <p>Under the act of March 3, 1887 (24 Stat. 505, 506), providing for the bringing of suits against tbe United States, the court has power to render judgment in favor of the United States for any balance which may be found due them upon a set-off or counterclaim.</p> <p>2. Recovery by United States of Money Paid by Mistake.</p> <p>The rule applied that the United States hare the right to recover moneys paid by the errors of their disbursing officers, as much where the error Is one of law as of fact, provided only the moneys belong to the United States ex sequo et bono.</p>

<p>1. Bond for Costs—Summary Remedies.</p> <p>A rule of court prescribing the form of a bond, and providing that, when costs become due by default or otherwise, a judgment or decree may he entered therefor against the surety on motion and ten days’ notice, is valid, as a surety is supposed to know the law, and consent to the proceedings for summary remedies by signing the bond.</p> <p>2. Same-Sureties Concluded by Decree against Principal.</p> <p>The sureties become voluntary parties to the suit, and are concluded by the decree for costs entered against their principals.</p> <p>'3. Same—Liability for Costs Accruing before Date of Bond.</p> <p>The bond covers costs accrued before the date of the bond, as well as those accruing after its execution.</p> <p>4. Same—Liberal Construction of Statute.</p> <p>Statutes requiring security for costs, being remedial in their nature, are to be liberally construed to effectuate that object.</p> <p>5. Same—Liability for Costs on Appeal.</p> <p>A bond executed in the trial court to secure “costs in this case” covers costs on appeal,</p> <p>6. Same—Liability for Costs Accruing after Surety’s Death.</p> <p>Liability upon the bond does not terminate with the surety’s death, but his estate continues liable for costs accruing after his death as well as before, though the language of the bond is, “X hereby acknowledge myself security for costs.”</p> <p>7. Same—Effect of Execution of Nf.w Bond.</p> <p>The giving of an additional bond after the death of the surety in the original bond does not discharge the estate of the surety in the old bond.</p> <p>8. Administrators—Termination of Trust.</p> <p>An administrator Is not discharged from his trust until full administration is accomplished, and therefore an administrator was not discharged by filing in the probate court a written statement under oalli that no assets had ever come into his hands as administrator, and that no claim of any kind had ever been presented to him, excepting such as had been i'ully paid by the widow, and that, having received no funds as administrator, and having paid out nothing, lie filed the statement under oath as his final account as administrator and for the discharge of his trust.</p> <p>9. Administrator of Surety in Cost Bond — Presentation of Claim for Costs.</p> <p>Before instituting summary proceedings against tiie administrator of a surety, it is not necessary to make presentation of the claim, as the surety, by executing the cost bond, became a party to the suit, and consented to the summary method of enforcing his liability.</p> <p>10. Limitation—Time when Liability upon Bond for Costs Acordes.</p> <p>Liability upon a cost bond does not accrue until ihe decree for costs is entered, and limitation runs only from that date.</p> <p>11. Same—Limitation of Proceedings against Administrators.</p> <p>Under the Ohio statute fixing the limitation for suits against an administrator at four years from the giving of bond, with the proviso that “no cause of action against any executor or administrator shall be adjudged barred by lapse of time until the expiration of one year from the time of the accruing thereof,” a proceeding against the administrator of a surety in a bond for costs, instituted within one year after the decree for costs was entered, was not barred.</p> <p>12. Same—Parties to Motion.</p> <p>To a motion for judgment upon a bond for costs the surety in which was dead, it was proper to make the. administrator of the surety, and the distributee and heir, parties, as ihe estate of the surety, although it hail passed into the hands of the heir and distributee, had not been fully settled.</p> <p>13. Judgment against Administrator—Costs.</p> <p>"Where, the estate of an intestate, although it had passed into the hands of the heir and distributee, had not been fully settled, judgment against the administrator was the proper proceeding, and not judgment against the heir and distributee as provided by Rev. St. Ohio, §§ 6217, 6218.</p> <p>14 Costs—Joint Obligors—Survivorship.</p> <p>The surety in an original bond for costs, and an additional surety, who became bound after his death, were not joint obligors; and the claim that the death of the old surety terminated his liability at law by reason of the doctrine of survivorship, and that, the remedy at law being gone, equity would not, afford relief against the surety, has no foundation in law or in fact.</p> <p>15. Same.</p> <p>The doctrine of survivorship having been abolished in Ohio, the death of one of two joint obligors does not terminate his liability.</p> <p>16. Sureties—Cost Bond.</p> <p>The sureties in a bond for costs are liable to judgment without the property of the principal being first, exhausted.</p>

<p>1, Bonds—Signature of Corporation.</p> <p>It makes no difference in what form an obligor signs a bond, if it appeal’s that the purpose was to bind himself. And where the name of a corporation, the principal in a bond, appeared in full in the body of the bond, and its seal was impressed, opposite the attestation clause, between the obligatory part and the condition, and at the close of the whole instrument the names of the president and secretary were signed, this being its customary method of executing' sealed instruments, it is binding; and the surety cannot complain that the bond was not executed by the principal, especially where it recognized the signature as sufficient by signing right below it.</p> <p>%. Insurance—Indemnity Bond—Action by Beneficiary.</p> <p>Under Sand. & H. Dig. Ark. § 4133h, a bond executed by an insurance company t,o indemnify policy holders, though by its terms made to the state of Arkansas, is for the use and benefit of the beneficiaries in the policies of insurance issued in that state, and any such beneficiary can maintain an action for breach of the condition of the bond.</p> <p>3. Agents—Harmless Error.</p> <p>The authority of an agent cannot be shown by pro.of of his admissions, but such proof is not prejudicial where the agency in question is abundantly proved in other ways.</p> <p>4. Principal and Surety—Effect of Judgment against Principal.</p> <p>A judgment against an insurance company on a policy of insurance is, if not collusive, prima facie evidence against the surety in a bond executed by the company to indemnify policy holders.</p> <p>5. Insurance—Bqnd to Indemnify Policy Holders—Measure of Damages.</p> <p>Where the plaintiff in a judgment against an insurance company upon a policy of insurance sues on a bond executed by tbe company to indemnify poli.cy holders, the proper measure of damages is the amount of the judgment, including the costs, and interest thereon.</p>

This case comes here upon writ of error to the circuit court, Northern district of New York. The action was brought by the plaintiffs (who are defendants in error) to recover §5,000 under a certificate of membership issued by defendant (which is plaintiff in error) to Thomas K. Fulton, and which, in effect, insured the plaintiffs, his beneficiaries, in the event of his death by accident. The jury found a verdict in favor of plaintiffs, upon which judgment was entered.

'Appeals from . the Circuit Court of tbe United States for tbe Southern District of New York. These are cross appeals from a decree of the circuit court, Southern district of New York, which sustained the validity of United States patent No. 447,791, granted March 10, 1891, to James B. .Osterhout, and found infringement of two claims and noninfringement of seven others. The patent is for a machine for cutting and stitching button holes.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This is. an appeal from the circuit court, Southern district of New York, dismissing complainant’s bill. 74 Fed. 792. The suit is brought for infringement of the first claims of United States patent 278,528, dated May 29, 1883, to Daniel Fraser, for “means for closing and controlling hoistway covers.”</p>

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

On October 18, 1892, George L. Frink, manager of the Glencoe Mining Company of the territory of Utah, applied to the plaintiff, a banker of Salt 1 jalee Oity, in said territory, with whom said mining- company had an account, for a loan by way of pverdrafts, to the amount of §7,500, which ivas declined, but with the statement that plaintiff would so loan such sum as one D. if. Soule, of New Milford, Conn., would authorize said Frink to draw for upon the said Soule.

<p>1. Appearance—What Constitutes—Petition for Removal.</p> <p>The filing, by defendant, of a petition to remove the cause into a federal court, disclaiming any intention to submit to the jurisdiction of the state court, is not an appearance in the action waiving defects in the service or return of summons.</p> <p>Process—Defective Return—Amendment.</p> <p>The sheriff cannot amend his return on a. summons after the cause has been removed into a federal court.</p>

This was a suit in equity, brought by Putnam, Hooker & Co-, and others against Timothy Dry-Goods & Carpet Company and others, to enforce the execution' of an assignment for creditors executed by the Timothy Dry-Goods & Carpet Company to E. A. Metz, in which there was a motion to remove the trustee.

In Equity. Hearing on a petition by Evelyn Ayerst, as assignee of E. A. Ayerst, to establish a lien upon lumber in the custody of a receiver of an insolvent corporation. Petition denied.

This suit was begun by the ICnights Templars & Masonic Mutual Aid Association by filing its petition in tbe. nature of an interpleader in the superior court of Cincinnati against Sarah L. Greene, the widow of John G. Greene, Mary Greene, the mother of John G. Greene, and John G. Greene’s brothers and sisters. The defendants removed the case to this court, where the pleadings were not reframed to conform to the equity practice of this court as they should have been.

<p>1. Railroad Mortgages—Receivers—Preferential Claims.</p> <p>A claim for damages for death by the negligence of a railroad company, occurring before the appointment of a receiver, is not a preferential claim, which is entitled to be paid out of the income or the corpus of the mortgaged property, to the exclusion of the mortgage debt.</p> <p>2. Same—Expenditures by Receivers.</p> <p>Where a railroad mortgage authorizes an expenditure of the income by tbe trustee, when he should take possession, to such extent as he deems proper in improvements, and in purchases of rolling stock and other necessary equipment and materials, a court appointing a receiver in foreclosure proceedings may authorize the receiver to make similar expenditures; and, where the plaintiffs in judgments against the company for deaths by negligence are claiming tlie right to a preference out of current income because of such alleged diversion of income by the receiver, it will be presumed, in the absence of a showing to the contrary, that the expenditures complained of were sanctioned by the court.</p> <p>8. Same.</p> <p>Where a contract under which the railroad of one company was controlled by another company bound the controlling company to apply "the income first to the payment of operating expenses, it only lies in the mouth of the owner of the road to complain of a breach of that provision; and such a breach does not constitute a diversion of funds that will entitle tlie plaintiffs in a judgment for death by negligence, against the company owning the road, to a preference out of current income as against mortgagees.</p> <p>4. Same.</p> <p>Where the plaintiffs in judgments against a railroad company for deaths by negligence are claiming a preference out of current income as against mortgage bondholders, on tlie ground that, when the accident occurred, the road was being operated by a company acting as the agent of tlie bondholders, the latter assertion being a mere conclusion of the pleader, and the facts on which it was based being too vague and general to show with sufficient certainty that it was well founded, the claim to a preference on that ground must be denied.</p> <p>5. Same.</p> <p>General judgment creditors, whether their claims arose out of contract or tort, are as much entitled as the mortgage bondholders to participate in the distribution of surplus income accumulating in the hands of a receiver appointed at the instance of stockholders, before the income lias been impounded by the mortgage bondholders; and, if there are equitable considerations giving the bondholders a better right, they must be shown by proper averment.</p>

This was a suit in equity brought by Benjamin F. Jones and others against the Great Southern Fireproof Hotel Company and others to foreclose a mechanic’s lien asserted by the complainants as subcontractors.

This was a suit iu equity brought by Gustavos F. Rhino against Thomas J. Emery and others, seeking to hold the defendants, as trustees, to an accounting for certain real and personal property. This case comes -on to be hoard upon a plea to the amended bill.

<p>1. Abatement—Pendency ot? Another Suit—Taxpayers’ Suits.</p> <p>A pending suit by a nonresident taxpayer, in behalf of herself and all other nonresident taxpayers, to annul a contract made by the city, may be pleaded in abatement of a suit for ihe same object subsequently brought in the same court by other nonresident taxpayers.</p> <p>2. Same—State and Federal. Courts.</p> <p>A suit in a slate court cannot lie pleaded in abatement of a suit as to the same matter in a federal court.</p> <p>8. Courts—Concurrent Jurisdiction'.</p> <p>Where a state court has first, taken cognizance of a cause of which that court and the federal court have concurrent jurisdiction, the federal court will dismiss a suit brought in that court as to the same matter, or suspend proceedings therein until the final action of the state court.</p> <p>4. Same.</p> <p>Where separate suits seeking the same relief have been filed in a state court and in a federal court on the same day, upon a motion in the federal court, to suspend proceedings in the suit brought therein proof will he heard as to which suit was instituted first.</p>

<p>Water Companies—Priority or Serai- over Mortgage Lien.</p> <p>Scrip issued by a water company in payment of claims for labor furnished for construction or repair, which, stipulates that it is accepted for the purpose only of being used in payment for the purchase of a permanent water right, “and not as a claim against the company for any other purpose whatever,” is a floating right, not yet attached to any specific property, and, in the absence of a, showing by the holder that he has land alongside the canal or ditch, and that the ditch has arrived opposite his land, accompanied by an offer of the scrip in payment for the permanent water right, it cannot be recognized to the prejudice of a prior mortgage lien by decreeing a conveyance of a water right, or by providing in the decree that the holder shall be paid that amount of the scrip out of the p-oceeds of the sale of the ditch property in advance of the mortgage, or by decreeing that it shall be recognized as a subsisting right by the purchaser of the property.</p>

<p>Equity Jurisdiction—Simple Contract Debt.</p> <p>An independent suit against a railroad receiver to recover a simple contract debt owing by the receiver is not sustainable in equity.</p>

<p>1. Reformation of Contract—Mistake—Estoppel.</p> <p>Where a written contract for the sale of an engine contained a clause guarantying that the engine should develop a certain horse power at a boiler'pressure of 100, pounds, the fact that the seller has brought an action at law to recover, the balante of the purchase price, stating the warranty as it appears in the written contract, does not preclude him from maintaining a suit in equity to reform the contract upon the ground that the pressure at which the required horse power was to be developed was by mistake stated at 100 pounds instead of 130 pounds, as the effect of such a change will not be to increase the complainant’s own right, but merely to deprive defendant of the right to maintain a cross action brought by him upon the warranty as stated by plaintiff in his action at law.</p> <p>2. Same—Pleading.</p> <p>In a suit in equity to reform a written contract on the ground of mistake, the allegations of the bill that the terms of the contract were agreed upon, that they were to be put in writing by plaintiff, and that both plaintiff and defendant executed the writing under the mistaken impression that it did conform to the prior verbal agreement, fully meet the objection that the bill states merely a ease of unilateral mistake in making a proposition.</p> <p>3. Same.</p> <p>The lapse of nearly three years from the making of an error in a contract to the filing of a bill to reform the contract, in the absence of a substantial change of condition, is not sufficient, under the circumstances alleged in the bill; to bar the plaintiff’s right of reformation.</p>

<p>1. Corporations—Lease—Liability ok Lessor pok Debts op Lessee.</p> <p>Where a mining corporation executed a lease of its property for five years, hy which the lessee covenanted to organize a “leasing company,” to which the lease was to he assigned, stipulating that the stock of the new corporation was first to be offered to the stockholders of the lessor, the new corporation thus organized was not identical with the old, although the greater part of 1he stock was subscribed for by the stockholders of the old corporation, and the statutory liens of persons who have furnished supplies to the new corporation while operating the mines under the lease do not attach to the title of the lessor as owner of the mine. 75 Fed. 368, reversed.</p> <p>2. Same—Retrospective Statutes.</p> <p>The lien law of Colorado having provided for a lien in favor of all persons who should perform labor or furnish material in the working of a mine, with the proviso that the statute shall not apply to the owners of any mine “when the same shall he worked by lessee or lessees,” an amendment to the statute materially modifying that proviso must be held to apply only to leases made after its enactment, as to give it a retrospective operation would be contrary to the express inhibition of section 11 of article 2 of the constitution of Colorado.</p>

This was a suit brought by Mary H. Pike against Charles A. Gregory, praying an injunction restraining said Gregory, his agents and attorneys, from further prosecution of certain suits touching the right of the complainant in certain notes, or the proceeds thereof, or any suits touching those matters, except a certain equity cause, to which it is alleged this bill is brought as a branch or ancillary suit, and in which the complainant prays this may be considered a cross bill.

<p>Appeal from tlie Circuit Court of flu; United States for the Eastern Division of the Uorfhern District of Ohio.</p> <p>This is a.n appeal- from a. decree of sale entered upon two creditors’ bills consolidated. Samuel .1. Ritchie was the owner of a large amount of the stock of the Canadian Copper Company, an Ohio corporation, engaged in the mining of nickel and copper at Sudbury, Ontario, in Canada. lie was also the owner of a large amount of the slock of the Anglo-American Iron Company, another Ohio corporation, organized to do a mining business in Ontario, Canada, and possessing extensive tracts of iron, copper, and nickel mining lands in that region. Ritchie also owned many of the bonds and shares of preferred and common stock of fne Central Ontario Railway Company, a company owning and operating a railway in Ontario, Canada. He became indebted in a large sum to Henry B. Payne, and secured the debt by depositing, as collateral, large blocks oí stocks of the two mining companies, and of the bonds and stocks of the railway company. He also became indebted to 'Stevenson Burke, and secured the loan by similar collateral. He also became indebted to Thomas W. Cornell, and secured him in the same way. Included in the collateral pledged to Thomas \V. Cornell were 901 shares of Oanadinu Copper stock, and 1,939 shares of the Anglo-American Iron stock, which belonged to Sophronia ,T. Ritchie, but which she had authorized her husband to pledge for this Cornell debt. James B. McMullen and George W. McMullen, citizens of Illinois and residents cf Ontario, obtained a judgment against, Ritchie, in Canada, for a large sum in a court of Ontario in 1888, and obtained a judgment in the circuit court below, on the law side of the court, based on the Canadian judgment, in February, 1890, for the sum of $265,307. Execution was issued, and returned nulla bona. The McMullens then tiled two creditors’ bills, the object of which was to subject to the payment of their judgment the interest of Ritchie in the collateral pledged by him to Payne, Burke, and Cornell, after satisfying the debts for which it was pledged. The first bill was filed October 1, 189.1, by the McMullens against Payne, Burke, and Cornell, then in life, the Canadian Copper Company, the Anglo-American Iron Company, and the Citizens’ Savings & Loan Association, all citizens of Ohio. After making the necessary averments concerning the recovery of tiie judgment against Ritchie and the nulla bona return, the bill set forth debts owing by Ritchie to Burke, Payne, and Cornell, respectively, together with the bonds and stocks pledged to secure each. The bill averred that, in the case of each loan, the value of the collateral was largely in excess of the amount of the debt. The bill prayed that an account might be taken between Ritchie and his various creditors; that the stocks and bonds might be sold at a. judicial sale; that ihe receiver might, be appointed to collect the interest and dividends; and that the Anglo-American Iron Company and the Canadian Copper Company, which were made parties defendant, might be enjoined from transferring tlie stocks on their books until such sale. On the 30th of October, all the defendants and Ritchie entered their appearances, and Ritchie entered his appearance upon the 2d of November. On the 5th of December, 1891, Cornell, Payne, and Burke filed separate answers to the bill. Cornell answered, averring that Ritchie’s indebtedness to him was about $151,776, with interest; that it was secured by $558,900 par value of Anglo-American Iron stock, by $90,100 par value Canadian Copper stock, and by $12,000 of the Central Ontario bonds; that $1,000 of the total amount due to Cornell was secured by $160,000 par value of the coupons cut from the bonds of the Central Ontario Company; and that the marshal of the ■ court had seized the box, and taken it away, without the consent of the defendant, under the process issued by the complainants in this cause. Payne’s answer, after setting up an indebtedness from Eitehie to him aggregating $477,-397.63, with interest, averred that it was secured by $300,000 in Canadian Copper stock, by $753,000 of Central Ontario'bonds, by $80,000 of the preferred stock of the Central Ontario Eailway Company,, and by $12,000 in the common stock of that railway. Burke answered, averring that the indebtedness of Eitehie to himself was $214,964.31, and that it was secured by $105,000 par value in the Canadian Copper stock, $400,000 in the Anglo-American Iron Company stock, and $225,000 in the bonds of the Central Ontario Eailway Company. These three defendants consented in their answers to the sale, under the decree of the court, of the various securities respectively held by them, and to the application of the proceeds of the sales to their debts. Upon the 15th of September, Sophronia J. Ritchie, wife of Samuel J. Ritchie, applied to the court to be made a party defendant, representing that she was the owner in her own right of a large amount of the stocks and securities set forth in the separate answer of Cornell. On the 11th of January, 1892, Mrs. Ritchie was made a party, and in her answer she averred that she was the owner of 901 shares of the Canadian Copper stock, and 1,939 shares of the Anglo-American Iron Company stock, mentioned in Cornell’s answer as held by him; that the copper stock was pledged for the indebtedness of her husband to Cornell for not exceeding $40,000; and that the Iron Company stock was pledged for a debt o'f $14,508; and that Cornell knew of the facts with reference to her ownership of the stock, and the limitation upon her husband’s authority in pledging the. same. She alleged that Cornell had a large amount of other securities from her husband, which should, in equity, first be subjected to the payment of his debt, *and that her stock should not be taken until Ritchie’s securities were first exhausted. She prayed an accounting between her and her co-defendant T. W. Cornell, and between Cornell and her husband.</p> <p>By supplemental bill, the complainants had set up the fact that the Canadian Copper Company and the Anglo-American Iron Company were largely Indebted to Ritchie for services rendered by him to them, and sought to subject to the payment of their debt the amounts thus alleged to be due. Ritchie, in his separate answer, filed December 19, .1891, to the bill and supplemental bill, denied that he was insolvent; denied that he was indebted to any of his co-defendants in the amounts alleged in the bill of complainants; admitted that his co-defendants Payne, Burke, and Cornell held the stocks and securities mentioned in the bill; and denied that the beneficial interest in all of them, after paying the debts for which they were pledged, belonged to him, but averred that a large part thereof belonged to Sophronia J. Ritchie, who had pledged her part of the same as collateral security for a portion only of said indebtedness, and as surety only. He further admitted that the copper company and the iron company were indebted to him for services rendered and for money expended, but averred that he was unable to state the amount which was in dispute between them, for the reason that they had never come to an accounting in relation thereto. He joined in the xnayer that an account be taken of the amount due to the complainants, and of the amounts due from each of the two companies to him. He also x>rayed that the respective interests of the said owners of said stocks and securities should be worked out in accordance with their respective rights and interests, and that such order be made in the premises as to justice might pertain. On the same day he filed what he called a separate answer to the answers of Cornell, Payne, and Burke. He denied that he was indebted to them in the amounts claimed by them. He averred that he was entitled to a credit of $60,000 from Payne on his. indebtedness. He averred that Cornell and Burke had .promised to carry him iinaucially, and to aid him in maintaining the market value of the stocks of the mining companies, and in consolidating the mining companies and the railway company, in consideration for which he had delivered to each large blocks of the stock in each company, and that they had broken their promises; that he was therefore entitled to compel them to- account for the stocks thus given them, because the consideration liad failed. He also charged that, in the purchase of the stock of 1he Vermillion Mining Company for ihe Copper Company, Cornell liad received, as trustee for Iliteliie, $8,750 in copper stock, which lie liad converted to liis own use, and should account for the same. He iirayed an accounting with all ilie defendants.</p> <p>On February 10, 1893, complainants, on leave of court, dismissed their hill as against the executors of ’Thomas W. Cornell, deceased since the filing of the hill, and the defendant Hophronia .1. Ritchie. On May 11, 1893, the, executors of Cornell were allowed again to become parties, and to file an answer in which, at the request of Ititchie, and, upon liis statement of the facts, they averred that in January, 1890, Ititchie assigned to Cornell, as collateral security for the indebtedness existing between Iliteliie and Cornell, ihe securities which were then held by the Citizens’ Havings & Loan Association of Cleveland, Ohio, and which since had been transferred to Paynes that ihey had not found among the books and papers of the said Thomas IV. Cornell, which came into their hands or under their control as said executors, any reference to or memorandum concerning said assignment Which said defendant Iliteliie so claimed to have been made, as aforesaid; and, for want of such information, they were unable either to affirm that such an assignment was made, or to deny, the fact of its having been made; but they averred that if it was (rue, as claimed by said Iliteliie, that he did so assign the said securities to the said Tilomas W. Cornell, these defendants as his executors were entitled in this proceeding to have the lien created by the said assignment enforced as against said securities in any decree which may be rendered in this cause, and they jira yed accordingly.</p> <p>Ho much for the first, creditors’ bill. On November 3, 1891, the same complainants below filed a second creditors’ bill, in which they set up tlieir judgment against Iliteliie, already referred to, the issue of execution, and the return of nulla bona, Ritchie's insolvency, the services of Iliteliie to the mining companies, and prayed that the amount due Iliteliie for Ms services be subjected to the payment of the judgment. This suit was brought against the Canadian Copper Company, the Anglo-American Iron Company, and Ilitchie, as well as the Central Ontario llailway Company. The two mining companies filed tlieir answers, denying that Iliteliie had rendered any service to them for which they were liable to pay to him compensation. Iliteliie answered at great length, setting out the services rendered, and claiming that he was entitled to have the same allowed in this proceeding, as prayed for by the complainants. Finally, on February 16, 1893, an amended bill of complaint was filed, in which, in addition to the other defendants, the executors of Cornell and Hoplironia J. Iliteliie were made defendants, and the .averments of tlie bill in the original suit, from which these defendants had been dismissed, relating to Ilitchie’fi indebtedness to Cornell, and tlie collaterals held by Cornell to secure the same, were repeated. The amended bill was answered by the various defendants, and then tlie iwo causes were consolidated August 7, 1893, and came on So be beard together.</p> <p>On the 31st of July, 1893. without obtaining the leave of court, the counsel for Iliteliie filed an amended answer and cross bill in cause No. 4,927, the first suit, brought. In this answer and cross bill, Iliteliie set out, at great length, the history of the organization of the three corporations, tlie Central Ontario ■Railway Company, the Anglo-American Iron Company, and the Canadian Copper Company, lie repeated the averments already made in his answer of his gifts of stock in the copper company and the iron company to Burke and to Cornell, in consideration of their promises to help him financially, and to maintain the value of the stocks, and to consolidate the three companies. He now made a. similar averment as to Payne, stating that he liad given him, in consideration for a similar promise, 4,000 aliares of the Canadian Copper stock, of tlie value of 8400,000. After referring to the indebtedness owing by him to the three defendants Cornell, Payne, and Burke, he made this averment: “(23? And this defendant avers that, in the prosecution of said enterprise, lie has in: vested therein almost his entire available estate that could be utilized, for such purpose; that lie was dependent upon development of the said properties for the release of the said securities which had been placed in the hands of the said Burke, Payne, and Gomel], as hereinbefore averred, all of which the said defendants, Burke, Payne, Cornell, and McIntosh well knew, and the facts last above stated were the subject-matter of repeated conversations between this defendant and the said Burke; Payne, Cornell, and McIntosh; and the said defendants, Burke, Payne, Cornell, and McIntosh, well knowing this defendant’s financial situation as above stated, and that this defendant could not relievo said securities except through the development of said properties, thereupon conceived the purpose of procuring the said securities of this defendant in their own right, and depriving the defendant of all benefit thereof. The moneys he had received had all been invested in the properties as hereinbefore averred, and, by the acquirement of these securities, they would get, not only the benefit of said moneys, but of all other moneys that had been invested by this defendant, as hereinbefore set forth, in efforts to develop said properties, and the benefit of said xrroperties as well.” He then sets out in detail the various acts of the defendants by which they sought to carry out this purpose. They include many acts of alleged intentional corporate mismanagement, with a view to dexjreciate-the value of Ritchie’s stock, and having that effect. The answer then continues: “(31) And the said defendants, Burke, Payne, Cornell, and McIntosh, further to accomplish the objects of the said conspiracy as hereinbefore averred, afterwards entered into a combination, confederation, and conspiracy with the said comxfiainants, the said McMullens, by which the bonds, stocks, apd coupons so held by the said defendants, as hereinbefore set forth, were to be sold, and the title thereto transferred to the said defendants, the said associates of this defendant, the particulars of which will be hereinafter specifically set forth. On the 13th day of January, 1886, a contract was entered into between said complainants, James B. and George W. McMullen, and this defendant, by which, in substance, it was agreed that the said McMullen sold to this defendant two hundred and ten of the first mortgage bonds of the said Central Ontario Railway, with coupons thereon, maturifig April 1, 1885, October, 1885, and April 1, 1886, also coupons of the said company amounting to $71,250, a cojiy of which said contract is hereunto annexed,'and made a part hereof, and marked ‘Exhibit A.’ This defendant avers that, at the time of entering into the said contract, they asserted that they, the said McMullens, were the owners of coupons to the said amount of $71,250, but in XJoint of fact they did not have the said coupons, but, on the contrary thereof, the coupons they had in their ■ possession were coupons that had been taken from the bonds of said company prior to the issue of such bonds, and were actually valueless, and were intended to be canceled, having been detached to be canceled by the secretary of the said company; but the secretary of said company having failed to cancel the same, and the same having been left in the custody of the Toronto General Trust Company, in the box belonging to the said railway, to which box the said McMullens had access, they (the said McMullens) procured the possession of- said worthless coupons, and, so having possession of them, stipulated, as appears 'in said agreement, to transfer the same to the defendant. Afterwards the said McMullens brought suit against this defendant on said contract in the. high court of justice, queen’s bench division, in the dominion of Canada, and without the xn’oduction of the bonds and the coupons mentioned in said contract, and without having the possession or the control of such bonds or coupons, and without having ever tendered the same to the defendant, and without having the power to tender or deliver the same as required by said contract, procured a judgment in said action against this defendant for the sum of $238,000, with interest from February 26, 1888. (32) And this defendant avers that a part of the basis of said suit, and upon which the said judgment was rendered, was'the said $71,250 of coupons which the said complainants, McMullen and McMullen, never owned, which they had surrexstitiously obtained, and which were utterly without value and void, because of the fact that they had been detached from the bonds prior to the issuance thereof, they being coupons that on their face had matured prior to the issuance of such bonds, and had been detached therefrom for the purposes of cancellation. This defendant further avers that afterwards the said McMullens brought suit upon the said judgment rendered in the dominion of Canada, in the circuit court of the United States, in the Northern district of Ohio, aud there obtained a judgment against the defendant for the amount of the said Canadian judgment.” The thirty-seventh paragraph of the amended answer and cross bill is as follows: “(37) And this defendant, hy reason of the premises, denies that either of the said parties are entitled to have from him any of the moneys claimed in their said several answers, and denies that they have any equitable right to hold the said securities for any purpose whatever, and avers that, hy their fraudulent conduct hereinbefore specifically set forth, it is inequitable and unconscionable for them to retain the said securities, or any part thereof, and that they should, in equity and good conscience, be required to deliver up the same and be remitted for any claims they may have on account of said money to the properties of the said several companies in which the said moneys were invested at the instance and request of the said defendants, Burke, Payne, Cornell, and McIntosh, and with the understanding and agreement hereinbefore set forth.”</p> <p>The prayer of (lie amended answer and cross bill is as follows: “This defendant further avers that hy reason of the misconduct of the said defendants, and of the mismanagement of said corporations as hereinbefore set forth, and the depreciation of the said properties in consequence of the conduct of the said defendants as hereinbefore averred, his interests in said properties liave been greatly injured and damaged. And he avers that, for the services rendered and the moneys expended by him in the service and management of said properties as in this bill hereinbefore set forth, said defendants are indebted to him in a large sum of money, not less than the sum of $700,000; and, forasmuch as this defendant is otherwise without adequate remedy, he prays: First That the said several parties herein named, including the said corporation, be required to answer this his cross bill. Second. Tliat the said McMullens, complainants in the original creditors’ bill, be forever enjoined and restrained from in any wise proceeding to the collection of the said judgment, and that judgment he decreed to be null and void. Third. That the said Burke and Payne, the executors of the said Cornell, and the said McIntosh, be ordered and decreed to deliver up to this defendant the said stocks, bonds, and coupons so held by them, derived from defendant on account of said moneys, as in this answer and cross bill alleged, and that, they be decreed to transfer to defendant the other stoekd received by them in consideration of services to be rendered by them. Fourth. That the said executors of the said Cornell be decreed to surrender the said certificates of stock issued to the said Cornell on account of the said Vermillion and the Crean and McConnell properties referred to and described in the said bill. Fifth. That tho^sald defendants, Burke, Payne, McIntosh, and the executors of the said Cornell, be restrained and enjoined from making transfers of any of the stocks, bonds, and. coupons held by them respectively, and that the said several companies be restrained and enjoined from permitting any transfers of said stocks, or any of them, on the books of said several companies. Sixth. That said Payne, Burke, McIntosh, and the executors of the said Cornell be enjoined from in any wise voting or using the said stock in the control and management of the said several corporations. Seventh. ’That an account be taken of the damages sustained by this defendant (cross complainant) by reason of the wrongful conduct of the said defendants, and that they be decreed to pay to him the amount thus ascertained to be due. Eighth. That an account be taken as to the value of the services of this defendant in and above the various services rendered and expenses incurred and paid in the matters in tills bill set forth, and that the said defendants be decreed to pay to him the sums thus ascertained. Ninth. That the said companies be decreed to cancel the said stock issued to others to which this defendant was justly entitled, and to reissue the same to this defendant. And he further prays the court to grant him all other and proper relief that may be just and eqnita: ble in the premises.”</p> <p>No leave was ever given to file this amended answer and cross bill. No process was over issued on it against Ritchie’s co-defendants. Subsequently there was tendered for filing in January, 1894, what was called a. supplemental answer and cross bill, which merely amplified the averments of the amended answer and cross bill, and added other circumstances claimed to show. the conspiracy of Payne, Burke, and Cornell to depreciate the value of the stock, and to obtain legal title thereto by sale: of the same when depreciated. The evidence taken on the issues was very voluminous. It began in January, 3892. and was continued from time to time until November 29, 1893. The pleadings and, evidence make a record of 2,000 printed pages. A motion was made by the counsel for Ritchie for an order requiring the Anglo-American Iron Company and the Canadian Copper Company to bring into court the books of the corporations for use of counsel for Ritchie in taking his evidence. This motion and a motion to consolidate the two cases came before Judge Lurton, in Nashville, and lie denied the former and granted the latter. On the 30th of September, 1S93, Ritchie moved for leave to file the amended answer and cross bill, and, in support of the motion, referred to the testimony in the two consolidated cases and the several affidavits of the defendants Ritchie and his wife in support of the motion. Subsequent to this there was further evidence talcen, and the cause was set for hearing, and heard in the spring of 1894. It was decided January, 1895. Leave to file the amended answer and cross bill was denied, as was also the motion for leave to file a supplemental answer and cross bill. The decree found that there was due from Ritchie to- complainants the sum of $339,541, for which they were given a lien on all the bonds, coupons, and stocks held by the co-defendants of Ritchie, except those belonging to Mrs. Ritchie; that there was due Stevenson Burke, after crediting a dividend from the copper stock of $7,350, the sum of $269,023, for which he held 1,050 shares of Canadian Copper stock, 4,000 shares of the Anglo-American Iron Company, and 225 bonds of the Central Ontario Railway Company; that there was due Henry B. Bayne, after crediting Ritchie with $21,000 received from the copper stock held as collateral, $605,382.26, for which Bayne held in pledge 800 shares of the preferred stock of the Central Ontario Railway Company, 1,200 shares of the common stock.of the Central Ontario Railway Company, 753 first mortgage bonds of the Central Ontario Railway Company, and 3,000 shares of the capital stock of the Canadian Copper Company; that the note for $60,000, claimed by Ritchie to have been a payment of that amount on the indebtedness to Bayne, was not Intended to be such- a payment, but was only tendered and received as collateral security for the debt; that there was due the executors for Cornell, deceased, the sum of $205,680.84, to secure which they held of Mrs. Ritchie’s stock 901 shares of the Canadian Copper Company and 1,939 shares of the Anglo-American Iron Company; that said exeeptors. also held property of Samuel J. Ritchie to secure the same amount,—336 shares of the Anglo-American Iron Company, 12 bonds of the Central Ontario Railway Company, and the 332 coupons, amounting in par value to $9,960, cut from the bonds of the Central Ontario Railway Company, and also a lien on certain other coupons, the property of Samuel "3. Ritchie, in the hands of the marshal, amounting In par value to .something over $150,000; that Ritchie was not entitled to any compensation for services rendered to the Canadian Copper Company and the Anglo-American Iron Company, or either of them, or for expenses incurred by him in théir services, and that the stocks, bonds, and coupons pledged to the Citizens’ Savings & Loan • Association, and held in pledge by Bayne, had not been assigned by Ritchie to Cornell, as alleged in Ritchie’s answer! The complainants were required to deliver to a special commissioner the mortgage bonds and coupons, upon the delivery of which their judgment against Ritchie had been based, and these were first ordered sold to pay the judgment. The other defendants, Bayne, Burke, and Cornell’s executors, were ordered to deliver to the commissioner all the bonds, stocks, and coupons held by them respectively, and to sell the saíne at public auction in separate lots. Out of the proceeds of each lot, the commissioner was ordered to pay the debt which that lot was pledged to secure. Ritchie was given an opportunity to pay the complainants and his co-defendants, in which ease the commissioner was directed to deliver the bonds and stocks to bim, except those which belonged to Mrs. Ritchie, which were to be delivered to her. Ritchie and Mrs. Ritchie took exception to everything found in the decree, and ordered to be done thereby. The reasons for the action of the circuit court are set forth in an opinion of Judge Lurton, reported in 64 Fed. 253.</p>

Action at law by L. P. Matthews against the - receiver of the Columbia National Bank to establish á claim for money received by the insolvent bank for plaintiff’s use. Jury waived. Trial by the court.

This was an action at law by William Yoigiit against the Baltimore & Ohio Southwestern Railway Company to recover damages for personal injuries. The case was heard on demurrer to the answer.

This writ of error was sued out to reverse a judgment in favor of George W. Platt, the defendant in error, and against the board of county commissioners of the county of Lake, the plaintiff in error, upon certain coupons cut from judgment bonds issued by that corporation.

<p>In Error to the Circuit Court of the United States for the District of Kansas.</p> <p>Tills action was brought in the United States circuit court for the district of Kansas, Second division, to recover the amount of a large number of overdue coupons, pertaining to two issues of funding bonds of Hamilton county, Kan. One of such issues, of 2» bonds for the sum of St,000 each, purported to have been made on May 7, 1887, at Kendall, in said county, under the seal of the county, and to be signed by J. M. Neeland, chairman of the hoard oX county commissioners, and attested and registered by J. M. Hicks, county clerk, by John S. Speer, deputy, and made payable at the fiscal agency of the state of Kansas in the city of New York, upon May 7,1917. The other issue, of 40 bonds of like amount, purported to have been made on May 16, 18S8, at the same place, under the seal of said county, and to be signed by O. H. Griffith, chairman of the board of county commissioners, and by James M. IJicks, county clerk, and wore made payable at the said fiscal agency on May 1, 3918. Interest coupons were attached to 1he bonds of both issues for the semiannual interest at the rate of 6 per cent., payable at said fiscal agency. Those pertaining to the first issue matured on the 1st days of February and, August; and those pertaining to the last issue, on the 1st days of January and July of each year. The bonds, upon the face thereof, contained a reference to the statute under which they purported to have been issued, and full recitals of compliance with all requirements precedent to their issue, and appeared to be regular and valid, and it was not disputed that the plaintiff was a bona fide holder, for value, of the bonds and coupons, without notice of any infirmity or defect. The defense pleaded and relied upon at the trial by the court (jury trial having been duly waived) was that the persons acting as, a.nd assuming to be, ihe board of county commissioners of said county, and holding their meetings at Kendall during the time from April, ,1887, until after June," 3888, and of which Neeland and Griffith successively claimed to be chairman, did not constitute, and were not during that time, the legal board of county commissioners of said county of Hamilton, and had no right to act as such, nor any authority to issue any such bonds; and hence that said bonds were not valid obligations of said county of Hamilton.</p> <p>From the agreed statement of facts presented on the trial, it appears that Hamilton county was organized by a proclamation of the governor. January 29, 1886, designating Kendall as the temporary county seat, and appointing a temporary hoard of conuty commissioners and county clerk; that an election was called for April 1, 1886, to permanently locate the county seat and elect county officers; and that, upon canvass of the votes, it was declared that Syracuse was selected as such county seat, and thereupon the hoard of county commissioners removed tlieir sessions to Syracuse. Later, in October, 1886, it was determined by the supreme court of Kansas that no- town bad been selected at said election as tlie permanent county seat, and that Kendall remained the temporary county seat. The question of locating the permanent county seat was again submitted to the voters of tlie county at the general election in November, 1886, and, upon a canvass of tlie votes, the election was again declared to have resulted in favor of Syracuse. This decision was not acquiesced in, and still another election to determine tlie selection of the permanent location of the seat of said county was held June 20,1888, and Syracuse again declared to have been selected. On November 9, 1888, the supreme court of Kansas duly determined that the city of Syracuse was duly selected as such county seat at the election last referred to.</p> <p>It is needless to follow in this statement, with particiilarity, the details of this prolonged dispute about the county seat of Hamilton county, and the attendant litigation. One result was that, from the beginning of the dispute, some of the commissioners, bolding that Kendall continued to be the county seat, held their meetings there, and filled as vacancies the places of such as did not meet at that place. Other commissioners, holding that Syracuse was the county seat, met there, and filled the alleged vacancies in the same manner; so that during tlie most of the years 1887 and 1SS8 there were two full boards of county commissioners, one meeting at Kendall, tlie other at Syracuse, each assuming and transacting the business of tlie county, and claiming to be the only legal board. On the trlial of the case, the court found generally for the defendant. ¡</p>

This was an action of ejectment brought by Platt Rogers, as mayor of the city of Denver, and the city of Denver, against Samuel B. Morgan. Judgment was rendered in favor of plaintiffs upon demurrer to the answer, and defendant brought this writ of error.

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

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>This was an action at law brought by the National Bank of Commerce of Kansas City, Mo., against John J. Riethmann, George W. Riethmann, and Napoleon Wagner upon a promissory note, in which an attachment was issued. The court sustained a motion by defendants to quash the attachment, and plaintiff brought this writ of error.</p> <p>This action was begun in October, 1894. The Colorado statute relative to attachments (Sess. Laws Colo. 1887, p. 121, §§ 91, 92) provided that upon issuing the summons or filing the complaint in an action on contract, or at any time afterwards before judgment, a writ of attachment against the unexempt property of the defendant might issue, upon filing in the office of the clerk of the court an affidavit of the plaintiff, his agent or attorney, or some creditable person for him, setting forth that the defendant is indebted to such plaintiff, stating the nature and amount of the indebtedness, as near as may be, and alleging one or more of the several enumerated causes for attachment, one of which causes was as follows: “Thirteenth. That the action is brought upon an overdue promissory note, bill of exchange, or other written instrument for the direct and unconditional payment of money only, or upon £m overdue book account.” After the filing of the complaint, and upon the filing in the office of the clerk of the court of an affidavit for attachment conforming to all the requirements of said statute, and alleging as cause for the attachment that the promissory note of the defendants upon' which the action was founded, and which was also described in said affidavit, was overdue from a date prior to the filing of the complaint, a writ of attachment in due form in said action was on October 25, 1894, duly issued, under the seal of the United States circuit court for the district of Colorado, wherein said action was pending, directed to the marshal of said district, and that said marshal on the same day, in obedience to and by virtue of said writ, duly ■ attached and levied upon property, real and personal, of one of the defendants in said action. Afterwards the legislature of Colorado, by an act approved April 8, 1895, and which took effect July 6, 1895 (Sess. Laws Colo. 1895, p. 143), purporting to amend the aforesaid act of 1887 “so as to read as follows,” re-enacted the said act of 1887 verbatim, except that the thirIfcutli subdivision of section 92. above quoted, was wholly omitted from and left out oí said act of 3895. Afterwards, on the 38th day of January, 1896, a petition was addressed to said United States circuit court by the defendants below asking the court to vacate, quash, and set aside the said attachment, upon rhe ground that the action was upon an overdue promissory note, suul that by virtue of said act of 1895 tlie provision allowing an attachment to issue on an overdue promissory note was repealed. Thereupon the court adjudged that, as ihe statute upon which the writ was issued had "been repealed, the said writ was thereby abated and obsolete.</p>

<p>1. Evidence—Medical Books.</p> <p>Medical books cannot be read to the .jury as independent evidence of the opinions therein expressed. Therefore, in an action against a railroad company to recover for personal injuries, in which it was contended that the plaintiff sustained a severe shock, which affected the nerves of the spine, and had produced a dangerous and progressive disease of the spinal cord, - it was error to permit plaintiff to road to the jury certain extracts' from a medical book relating to such diseases, especially as some of the medical experts stated that it was not regarded as an authority, and the fact in question was susceptible of proof by competent living physicians.</p> <p>2. Same—Federal Courts—Binding Effect of State Decisions.</p> <p>While the federal courts sitting within a state must enforce the provisions of a local statute prescribing rules of evidence, unless it is in conflict with some law of the United States regulating the same subject, yet the decisions of the state courts construing- common-law rules of evidence are not obligatory on the federal courts, though they will be followed when the question at issue is balanced with doubt.</p> <p>3. Same.</p> <p>McClain’s Code Iowa, § 4903, providing that “historical works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, are presumptive evidence of facts of general notoriety or interest,” does not authorize medical works to be read in evidence for the purpose of establishing the probable effects of a physical injury.</p>

This was an action by Henry McBeck against the Central Vermont Railroad Company to recover damages for personal injuries. The court directed a verdict for defendant, and plaintiff sued out' a writ of error.

<p>1. Pleading -Affidavits of Defense.</p> <p>The allegation, in an affidavit of defense filed by a corporation, that the plaintiff “never paid into the treasury of the said defendant company” Hie money for which the instruments in the statement of claim were given, is not good, as the allegation may he true, and yet the plaintiff entitled to recover.</p> <p>2. Oorforations—Breach of Promise Made to Servant.</p> <p>The breach of a promise made by plaintiff to sc servant of the defendant corporation, who in accepting that promise in no way acted for or represented the corporation, cannot be set up in defense to an action against the corporation itself.</p> <p>8. Same—Set-Off of Stock Liability.</p> <p>To entitle a corporation to set off a stock liability, it is requisite that the stock should have been issued as full paid, or that a regular call should liave been made; and an affidavit of defense lik'd by a corporal ion. alleging that the plaintiff has not “fully paid” for stock which he holds, is uo't sufficient.</p>

<p>1. Land Department of the United States—Judicial Power.</p> <p>The land department of the United States (including in that term the secretary of the interior, th’e commissioner of the general land office, and their subordinates) is- a quasi judicial- tribunal, whose judgments upon questions within its jurisdiction are impregnable to collateral attack.</p> <p>2. Patent to-Land—Legal Effect.</p> <p>A patent to land or mineral lodes within the jurisdiction of the land department conveys the legal title to the property, and constitutes a judgment of that tribunal upon the questions involved in its issue.</p> <p>3. Jurisdiction.</p> <p>The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry, not whether its conclusion in the course of it is right or wrong.</p> <p>4. Patent to Mining Claim—Act May 10. 1872.</p> <p>A patent issued in accordance with the provisions of the act of May 10, 1872 (17 Stat. 91, 94, c. 152, §§ 3, 9; Rev. St §§ 2322, 2328), to a mining claim located before the passage of that act, under the act of July 26, 1866 (14 Stat. 251, c. 262), conveys the legal title to every vein or lode, whose apex is within the exterior boundaries of the mining claim extended downward vertically, and is not subject to collateral attack in an action at law, either on the ground that there was a claim adverse to- that patented when the act of May 10, 1872, was passed, or on the ground that adverse rights were affected by its issue.</p> <p>5. Location and Entry of Mining Claim—Effect.</p> <p>One who locates and procures a patent to a mining claim under the act of May 10, 1872 (17 Stat. 91, 94, c. 152, §§ 3, 9; Rev. St. §§ 2322, 2328), thereby renounces and abandons all rights and privileges which do not pertain to his specific location under the provisions of that act.</p> <p>6 Location and Entry of .Mining Claim, under Act May 10, 1872—-Their Effect upon Rights Previously Acquired under Act July 26, 1866.</p> <p>A claimant, who discovered and located a lode mining claim under the act of July 26, 1866 (14 Stat. 251, c. 262), renounces and abandons all right to follow his lode or vein on the course of its strike beyond the exterior lines of his patented claim extended downward vertically, when he locates it upon the surface of the ground, enters it, and accepts a patent for it under the act of May 10, 1872 (17 Stat. 91, 94, c. 152, §§ 3, 9).</p> <p>7. Mining Claim—Limit of Right to Follow Lode beyond Side Lines.</p> <p>When the course of the strike of a lode or vein, on which a patented mining claim is based, crosses both side lines thereof, the side lines become end lines, and the owner has no right to the possession of the lode without those lines.</p> <p>8. Patent—Stranger may not Attack.</p> <p>One who is not in privity with the United States, and who did not acquire any right to he preferred in the acquisition of a mineral lode or claim before the same was patented to another, and whose grantor was never in such privity, and never acquired any such right, cannot successfully attack such patent, either at law or in equity.</p> <p>(Syllabus by the Court.)</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>This was an action of trespass to try title, brought by S. M. Swenson against Frank Mynair, E. Tinsley,-J. E. Tinsley, T. B. Cox, W. L. Smith; Paul Nemec, and E. EL Dickson. Judgment was rendered for defendants, and, plaintiff having subsequently died, this writ of error was prosecuted by his legal representatives.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>This was a suit consisting of three counts, which was brought by Bussell & Co., the defendant in error, against John A. Buckstaff and John B. Utt, the plaintiffs in error. By the first count of the petition the plaintiff below sought to recover the price agreed to be paid by the defendants for certain machinery which had been delivered to the defendants under the following contract:</p> <p>"This agreement, made and entered into this 22d day of June, A. D. 3888, by and between Bussell & Oo., of Massillon, Ohio, by its agent, JI. W. Young, party of the first x>art, and ,T. A. Buckstaff and J. B. Utt, parties of the second pari, witnesseth: That the said Bussell & Co. agree to furnish the following machinery, delivered on cars at Lincoln, Nebraska: Three (3) boilers, 60 inch x 14 feet; one (1) automatic cut-off engine, 125 horse power; one (1) automatic cut-off engine, 50 horse power; one Gordon Maxwell Duplex Pump; one (1) Garfield Injector; one (1) heater, and any necessary fittings of sufficient size and dimensions to xxroperly run such a plant; also two (2) smokestacks, 32 inch diameter, 60 feet long, made of No. 12 iron, with fancy tops, guy rods, and stays. Hereto attached, and made a part of this contract, proposals marked Exhibits A, B, 0, & D. For and in consideration of and in payment of the same,'the said J. .V. Buckstaff and J. E. Utt agree to pay four thousand' nine hundred and fifty dollars ($4,950.00), as fellows: One-third when machinery is steamed up ready to run; the balance in six (6) and twelve (12) months, with interest at the rate of 7 per cent, per annum from the time of erection in Lincoln; providing that, with proper and careful management, said engines, boilers, and pumps are hereby guarantied to work, and that said engines do give the amount of horse power as herein specified, and to he as economical of fuel and as durable as a Oorliss noncondensing engine. It is also understood and agreed that said Buckstaff & Utt shall use fair and honorable means to satisfy themselves, before payments are due, that said engines, boilers, and pumps are working- to their entire satisfaction, and, should they not be, then, in that event, the said Buckstaff & Utt are to notify said Russell & Co., and said Russell & Co. must at once comply with the terms of this contract within sixty days, and, in the event they do not, the said Buckstaff & Utt may declare this contract paid in full, or said I-tussell & Co. shall pay hack to said Buckstaff & Utt all money paid to them, and said Russell & Co. shall pay said Buckstaff & Utt such damage as shall be declared fair by competent judges, and, after paying such damages, may remove said machinery without cost to said Buckstaff & Utt. It is hereby agreed that said Russell & Co. shall ship said machinery not later than ,Tuly 15th, 1888. This contract signed in duplicate.”</p> <p>By the second and third causes of action the plaintiff sought to recover the valúe of certain iron piping and grate bars, which were sold and delivered by the plaintiff company to the defendants subsequent to the execution of the aforesaid contract, hut no controversy arises in this court with respect to the latter claims.</p> <p>As a defense to the first cause of action, the defendants pleaded, in substance. as follows: First. That with proper and careful management the engines and boilers supplied under the aforesaid contract were incapable of producing the horse power specified in the contract; that, they were not as economical of fuel as the Corliss noncondensing engine: and that there .was a breach of the warranty contained in said contract in both of these respects. Second. That the defendants used all fair and honorable means to satisfy themselves that the engines, boilers, and machinery supplied under the contract were capable of fulfilling the warranties therein contained; that, notwithstanding repeated efforts on the part of the. plaintiff and defendants, after the erection of said machinery, to cause the same to fulfill said warranties, the same had at all times failed to do so; that by reason thereof the defendants had notified-the plaintiff company that said boilers, engines, and machinery were defective and insufficient, and had demanded of the plaintiffs the removal of- the same from the property of the defendants, and the payment to the defendants of the amount of money, to wit, $690.68, which had been paid by them to the plaintiff under said contract, and the damage by them suffered in consequence of the foregoing facts. In addition to the aforesaid plea, the defendants interposed a counterclaim, whereby they sought to recover the damages sustained in consequence of the foregoing alleged breaches of warranty.. There was a trial to a jury, in which the issues were fairly presented as to whether the engines and boilers, when properly and carefully managed, developed the amount of horse power specified in the contract, and as to whether they were as economical in the consumption of fuel as the Corliss noneondensing engine. There was a verdict for the plaintiff company, from the amount of which it appears that both of the aforesaid issues were decided in favor of plaintiff, and that the jury found against the defendants on their counterclaim.</p>

<p>1. Right of Appeal to Supreme Court.</p> <p>Where, upon an application in the circuit court for a writ of habeas corpus, the only question arising under a treaty was as to whether the petitioner was seeking an asylum in the United. States, and no question arose as to the construction or validity of tire treaty, or as to the jurisdiction of the circuit court, the petitioner was not entitled, under Act March 3, 189.1, § 5, to an appeal to the supreme court of the United States.</p> <p>2. Same—Bond for Costs.</p> <p>The circuit court has no authority to grant an appeal to the supreme court of the United States without requiring bond for costs.</p>

<p>Appeal from an Order in Chambers made bj the District Judge of the United States for the District of Colorado.</p> <p>This was a petition by Emma (}. York for a writ of habeas corpus. The district judge discharged the petitioner from custody, and Elias H. Webb, as sheriff of Arapahoe county, Colo., and others, prosecuted this appeal. A motion to dismiss the appeal was denied in an opinion reported in 21 C. C. A. 65, 74 Fed. 753.</p> <p>Emma G. York, the appellee, being in the custody of Elias H. Webb, the sheriff of Arapahoe county, state of Colorado, applied by petition to the Honorable Moses Hallett, United States district, judge for the district of Colorado, for a writ of habeas corpus, alleging that she was wrongfully restrained of her liberty by the aforesaid sheriff. The writ of habeas corpus as prayed for was duly issued and served. The sheriff made return to the same lhat he held the petitioner as a fugitive from justice, under and by virtue of a warrant issued by the governor of the state of Colorado, in obedience 1o a requisition of the governor of the state of California. Appended to said return was a copy of the executive warrant, together with a copy of the requisition made by the governor of California, and the documents accompanying the requisition, on the strength of which the executive warrant had been issued. The papers thus appended to the return, so far as they are material, are as follows:</p> <p>“State of Colorado, Executive Department.</p> <p>“The People of the State of Colorado to any Sheriff or Peace Officer of any County in said State, Greeting: Whereas, it has been represented to me by the governor of the state of California that Emma York stands charged with embezzlement, a crime under the laws of the said state of California, committed in the county of San Francisco, in said state, and that she has fled from the. justice of the said state, and has taken refuge in the state of Colorado, and the said governor of the said state of California has, in pursuance of the constitution and laws of the United States, demanded of me that I shall cause the said Emma York to be arrested; and whereas, the said representation and demand is accompanied by a certified copy of the complaint, warrant, and affidavit duly returned and ‘filed in the office of the police court of said city and county of San Francisco, in the said state of California, whereby the said Emma York stands charged with said crime, which said copy and facts aforementioned are duly certified by the governor of the state of California to be true and authentic: You are therefore hereby commanded and required to arrest and take the body of the said Emma York wherever she may be found within this state, and her convey 1o the county jail of any county iu this state, and her there safely keep, or cause to be kept, to he dealt with according to law. Herein fail not, and due return of this writ make to this department, showing your acts and doings thereunder. In testimony whereof T have hereunto set my hand and affixed the great seal of the state, at the city of Denver, this 20fh day of April, A. I). 1806.</p> <p>“[Seal.] Albert W. Mclntire.</p> <p>“By the Governor.</p> <p>“A. B. McGaffey, Secretary of State.”</p> <p>“State of California, Executive Department.</p> <p>“.Tames H. Build, Governor of California, to His Excellency, the Governor of the State of Colorado: Whereas, it appears by the annexed exemplification of record, consisting of a certified copy of complaint filed in the police court of the dty and county of San Francisco, state of California, warrant of arrest and .affidavits of Charles Crockett and Adelia A. Gibson and William O. Cook, which I certify are authentic and duly authenticated, in accordance with the laws of this state, that Emma York stands charged with the crime of embezzlement, committed in the city and county of San Francisco, in this state, and it has been represented to me that she has fled from the justice of this state, and has taken refuge in the state of Colorado: Now, therefore, pursuant to the provisions of the constitution and laws of the United States, in such ease made and provided, I do hereby request that the said Emma 'York be apprehended and delivered to Charles Crockett, who is hereby authoifized to receive and convey Emma York to the state of California, there to be dealt with according to law, and to he tried for the offense herein designated. In witness whereof I have hereunto set my hand and caused the great seal of the state to be affixed at Sacramento, this llth day of April, in the year of onr Lord one thousand eight hundred and ninety-six.</p> <p>“[Seal.] James H. Budd, Governor of California.</p> <p>“By the Governor.</p> <p>“L. H. Brown, Secretaiy of Stale,</p> <p>“By W. T. Sesnon, Deputy.”</p> <p>“In the' Police Court of the City and County of San Francisco, State of California. Department No. 3.</p> <p>“The People of the State of California ys. Emma York.</p> <p>“State of California, City and County of San Francisco—ss.: Personally appears before me 'this 4th day of April, A. D. 1896, Adelia A. Gibson, who on oath makes complaint and deposes and says that on the 29th day of March, A. T). 1890, in the city and county of San Francisco, state of California, the crime of, to wit, embezzlement, was cominitted, to wit, by Emma York, who then and there was intimsted as bailee by C. F. Gibson with the following personal property of his, the said O. F. Gibson, namely, twenty-two- thousand five hundred ($22,500), of the value of twenty-two thousand five hundred dollars ($22,500) in lawful money of the United States of America, and the said Emma York then and there received the said personal property as bailee as aforesaid, and while said personal property so intrusted as aforesaid was in the possession, care, custody, and control of the said Emma York, she, the said Emma York, did then and there, to wit, on said 29th day of March, A. D. 1896, at said city and county of San Francisco, willfully, unlawfully, feloniously, and fraudulently convei*t, embezzle, and appropriate the same to her own use, contrary to her said trust as such bailee, as aforesaid, contrary to the form, force, and effect of the statute in such cases made and pi’ovided, and against the peace and dignity of the people of the state of California. And this complainant, upon oath, accuses the said Emma York of having committed the said crime, and prays that the said accused may he brought before a magistrate and dealt with according to law. Adelia Gibson.</p> <p>“Kes. or Place of Bus., 1206' Market St.</p> <p>“Subscribed and sworn to before me this 4th day of April, A. D. 1896.</p> <p>“H. L. Joachimson,</p> <p>“Judge of the Police Court of the City and County of San Francisco.”</p> <p>Indorsed: “* * * Filed in the police court of the city and county of San Francisco, department No. 3, this 4th day of April, 1896.</p> <p>“Jacob Shaen, Clerk.”</p> <p>“Warrant.</p> <p>**«*#***♦«* * * *</p> <p>“State of California, City and County of San Francisco—ss.: Charles Crock•ett, being duly sworn, deposes and says that he was, on the 5th day of April, A. D. 1896, and still is, a police officer of said city and county, and that as such police officer he received the above warrant of arrest for Emma York, charged with the crime of felony,—embezzlement; and deponent deposes and avers that he thereupon made due and diligent, search for the said Emma York, in said city and county, to wit, sought for her at [her] last known place of residence and at her place of business, and in the market place and at the exchange, and that he could not find said Emma York; and deponent deposes and avers, upon his information and belief, that the said Emma York has fled from justice in the state of California, and taken refuge in the state of Colorado. Charles Crockett.</p> <p>“¡Subscribed and sworn to before me this 5th flay of April, 1896.</p> <p>1 “H. L. Joaehimson,</p> <p>“Judge of the Police Court of the City and County of San Francisco, State of California.”</p> <p>Indorsed: “* * * Filed in the police court of the city and connty of San Francisco this 5th day of April, 3890.</p> <p>“H. Jj. Joaehimson, Judge of said Court.”</p> <p>“Office, of District Attorney, City and County of San Francisco.</p> <p>“San Francisco, April 5, 1896.</p> <p>“To His Excellency, the Governor of the State of California—Sir: I have the honor, to make herewith application for a. requisition upon the governor of the state of Colorado for Emma York, who is charged in this county with the crime1 of felony, to wit, embezzlement; and who, as appears by the affidavit of William 0. Cook, herewith submitted, is a fugitive from the justice of this stale, in support of the application. I inclose herewith, in duplicate, exemplified copies of the complaint a.nd warrant of arrest against the said Emma York, and affidavits alleging the fact required to be established, and respectfully certify: First, that, in my opinion, the ends of public justice require that the said Emma York be brought back to this state for trial at the public expense as a charge upon this state; second, that 1 have, as I believe, within my reach, and will be able to produce upon the trial, evidence sufficient to secure conviction; third, no other application lias lieen made, nor has any requisition been issued, for this person, growing out of the transaction set out in the present exemplification of-record; fourth, I believe that the criminal named is now under arrest in the state of Colorado awaiting requisition; fifth, the said Emma York, at the lime she fled therefrom, was a resident of this state. 1 name Charles Crockett as a proper person to bo designated as agent, and certify that lie lias no private interest in the arrest of the fugitive.</p> <p>“I am, sir, very respectfully, William S. Barnes,</p> <p>“District, Attorney, City and County of San Francisco.”</p> <p>*********** ***</p> <p>“In the Police Court of the City and County of San Francisco, State of California.</p> <p>“The People of the State of California vs. Emma York, alias Emma Brewer.</p> <p>“William C. Cook, being duly sworn, deposes and says that he is a resident of the city and county of San Francisco; state of California. That on the 29th day of March, 1896, he was the business partner of one C. F. Gibson, in the said city and county of San Francisco, and had so been for a period of about ten years next preceding said last-named date. That between the 17th day of March, 3896, and the said 29th day of March, 3896, one Emma York was engaged in nursing and caring for C. F. Gibson, who was during said last-named period in a dying condition. That said O. F. Gibson died on or about said 29th day of March, 1896. That between said 17th day of March, 1896, and said 29th day of March, 1896, there came into the custody and care and control of said Emma York, as the agent and trustee and bailee of said C. F. Gibson, the sum of twentyrtwo thousand five hundred dollars, in lawful money of the United States, the personal property of said C. F. Gibson, and during his lifetime; and she, the said Emma York, after the said sum of money heretofore set forth had come into her possession, care, custody, and control as aforesaid, did, on or about the said 29th day of March, 1896, at said city and county of San Francisco aforesaid, willfully, unlawfully, fraudulently, and feloniously convert, embezzle, and appropriate the same, and the whole thereof, to her own use. That immediately after said 29th day of March, 1896, said Emma York departed and fled from tlie state of California, and has taken refuge, and is now, as affiant is informed and believes, and so states the fact to be. in the state of Colorado, and without the jurisdiction of the laws of the state of California. All of which acts of said Emma York hereinbefore set forth are contrary to and in violation of the laws of the state of California in such cases made and provided. William C. Cook.</p> <p>“Subscribed and sworn to before me this 5th day of April, A. D, 189(1.</p> <p>“H. L. Joachimson,</p> <p>“Judge of the Police Court, City and County of San Francisco, State of California.</p> <p>“Filed in the police court, city and county of San Francisco, state of California, department number 3, this 5th day of April, 1890.</p> <p>“H. L. Joachimson, Judge of said Court.”</p> <p>The foregoing documents were duly authenticated by tbe certificate of Tim E. Sullivan, clerk of the police court of the city and county of San Francisco, state of California, and were further authenticated by a certificate of C. F. Curry, clerk of the superior court of the city and county of San Francisco, with the seal of said court attached, showing that H. L. Joachimson, whose name was subscribed to -the foregoing documents, was at the time of signing the same police judge in and for the city and county of San Francisco, duly elected and qualified, and that Tim E. Sullivan was the qualified clerk of said police court, and that the signatures of both of said officers were genuine signatures. The case having been submitted to the United States district judge for the district of Colorado on the aforesaid documents, the petitioner, Emma G. York, was discharged from custody. The case is before this court on appeal from said order.</p>

<p>This was an application by Jokn Newman for a wait of habeas corpus.</p>

<p>This was a petition by William Grice for a writ of babeas corpus.</p>

This was a suit iu equity by the National Starch-Manufacturing Company against Harry H. Duryea and others to enjoin the use of the word “Duryea & Co.” in connection with starch sold by defendants. The circuit court granted an injunction pendente lite, and defendants appealed.

Appeals from the Circuit Court of the United States for the District of Massachusetts. This was a suit in equity by the Campbell Printing-Press & Manufacturing Company against George A. Harden and others for alleged infringement of certain patents for web printing machines.

<p>1. Federal Oourts—Jurisdictional Amount.</p> <p>In a suit brought by the receiver of a water company to establish his alleged right to fix the rates at which he should furnish to consumers water for irrigation, it is the value of that right which constitutes the amount in controversy, and not ilie mere difference between the annual rate contended for by the defendants and that to which the complainant asserts a right.</p> <p>2. Samis—Suits rv Receivers.</p> <p>A suit by or against a receiver of a federal court in tlie course of the winding up of a corporation is ancillary to the main suit, and is cognizable in the same court, regardless of the amount in controversy.</p> <p>3. Samis—Stay of Proceedings in State Court.</p> <p>The provision of Rev. St. § 720, that no writ of injunction shall be granted by any court of the United States to stay proceedings in any state court, with a certain exception, relatos only to the stay of proceedings begun in a state court before any resort to the federal court, and does not apply to proceedings begun in the state court after the jurisdiction of the federal court has attached.</p> <p>4. Same.</p> <p>Where a federal court has taken possession of the property of an insolvent water company by the appointment of a receiver, and the receiver has brought suit in that court to test the alleged right of the company to fix water rates, the jurisdiction thus acquired cannot be taken away by a subsequent suit brought by a consumer of water in a state court to test the same question; and such a suit, having- been removed to the federal court, will not be remanded.</p>

<p>Ella B. Ward brought a suit in equity in the superior court of San Diego county, Cal., against the San Diego Land & Town Company and others, and the defendants made a motion to transfer to the United Stales circuit court for the Southern district of California, which was denied. Thereupon a certified copy of the record was eniered in the United States circuit court, and a motion was then made by the complainant, to remand to the state court, and by defendants to restrain the complainant and each of her attorneys from the further prosecution of the suit in the si.ate court.</p>

<p>Federar Courts—Diverse Citizenship—Quasi Corporations.</p> <p>Limited partnership associations, unaer the laws of Pennsylvania, which are governed by managers or directors, and may sue and he sued by their association names, have all the essential characteristics of corporations, and may sue in a federal court of another state, irrespective of the citizenship of their individual members.</p>

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

<p>Security for Costs.</p> <p>Rule No. 77 of the circuit court for the district of Minnesota, providing that in every case “the plaintiff shall give security for costs,” requires merely the giving of security for the clerk’s costs, and not security for the benefit of defendants.</p>

These were suits in equity, brought, the one by Charles TJ. Cot-ting-, and the other by Francis Lee Higginson, against the Kansas City Stock-Yards Company, a corporation, and others, and Louis 0. Boyle, as attorney general of the state of Kansas, to enjoin defendants from enforcing a certain act of the legislature..

<p>Mortgages—Coxditional Sai.es—Evidkece.</p> <p>On an application for a loan to redeem property from a foreclosure sale, a deed absolute on its face was executed by the applicant, reciting a consideration of $5,000; and an instrument dated the next day was executed by the grantee, agreeing to reeonvey on payment of $5,000 within three years, with interest at .1 per cen!. per month. A lease of the premises, of the same date, was executed by the grantee to the grantor for the term of three years, at a rental of $50 per month. The consideration recited was but little, if any, less than the actual value of the property. It was entirely optional with the grantor lo purchase or not, and he was not hound to repay the purchase price. In an insolvency proceeding commenced by him, and on other occasions, he emphatically declared that he was not the owner of the property, but hold it merely as lessee. Soon after the expiration of the three years, he made a tender to the grantee in accordance with the terms of the deed. Meld, ¡hat the transaction must be construed as a conditional sale, and not as a mortgage.</p>

Those were hills in equity brought by the United States against the Sierra Nevada Wood & Lumber Company and others to cancel a patent for certain lands.

<p>Mortgages—Affidavit of Good Faitii—Recording—Eights of Creditors.'</p> <p>A statute of Washington provides that “a mortgage of personal property is void as against creditors « * * unless it is accompanied by the affidavit of the mortgagor that it is made in good faith * * * and it is acknowledged and recorded.” Held, that under this statute a mortgage of real and personal property, which, when executed and recorded as a mortgage of realty, is not accompanied by the affidavit required by the statute, is not for that reason absolutely void as against creditors, but upon the affidavit being subsequently attached to it, and its being recorded as a mortgage of personal property, it acquires validity as such, except as against intervening rights and liens, or creditors who may have become such on the faith of the property’s being unincumbered.</p>

This was an action at law brought by Allen, West & Bush against Wyley Jones and others upon an injunction bond. Heard on motion to credit judgment entered on verdict of jury.

<p>Mortgages—Foreclosure—Rights of Creditor of the Mortgagor’s Vendee.</p> <p>After a decree of foreclosure and expiration of tbe time alloAved for redemption, a judgment creditor of a vendee of tbe mortgagor bad tbe land sold under an execution on bis judgment, and became tbe purchaser. Held, that be bad no interest in tbe land entitling him to claim a part of tbe proceeds of tbe foreclosure sale.</p>

<p>Appeal from the Circuit Court of the United States for the District of ^Nebraska.</p> <p>The appellant is a national bank doing business at the Union Stock Yards at South Omaha. Neb.: and in the year 1895, and prior thereto, the Waggoner-Birney' Company was a corporation of the same place, engaged in business as a live-stock commission agent and factor, doing all of its banking business with the appellant, and at the close of business on the 1st day of August, 1895, was indebted to the appellant, upon overdrafts and Us checks paid by the appellant, in the sum of $8,918.10, and upon its two promissory notes, having then considerable time to run before maturity', in the further, sum of $8,774.39. On said 1st day of August, 1895, the appellees brought by railroad to South Omaha a large shipment of cattle, and gave them, for sale upon commission, to the ■Waggoner-Birney Company aforesaid, who made sale of the. cattle on the same day, and, near the close of business of that day, deposited the proceeds of such sale, with some oilier,money's, in the appellant bank: the entire amount of the deposit being Hie sum of $17,660.30. On the receipt of such deposit by the appellant, it assumed to apply the same, as moneys of said Waggoner-Birney Company, in payment and satisfaction of all said indebtedness of said company to said bank, including the said two notes of said company' not matured; and on the morning of August 2, 1895, upon the presentation of the check of said company' upon said bank for the sum of 811,775.03, la be paid to the appellees as The net. amount belonging to them from the proceeds of The sale of their cattle, all of which proceeds had been included in said deposit of the preceding day', said hank refused to pay the same or any part thereof, and claimed to hold all of said money under said application by' it of the same in satisfaction of said indebtedness of the said company to said bank. Whereupon this suit was begun by the appellees, and upon trial thereof the court; made the decree in their favor which is appealed from.</p>

This appeal challenges a decree which sustained a demurrer to a bill brought by a judgment debtor to subject a homestead, which the debtor bad bought and caused to he conveyed to his wife, to the payment of the judgment.

<p>Appeal from the 'Circuit' Court of the United States for the District of Colorado.</p> <p>This was an appeal from a decree dismissing a bill brought to declare and enforce a trust in the title t.o certain lots in the city of Denver, in the state of Colorado. The statement is contained in the opinion.</p>

This is an appeal under the seventh section of the act to establish the- circuit courts of appeals, approved March 3, 1891 (26 Stat. 826, 82S, c. 517, § 7; 1 Supp. Rev. St. 904), as amended by the act of February 18, 1895 (28 Stat. 666, c. 96), from an interlocutory decree which granted a preliminary injunction on a bill exhibited in the court below by the appellee, Howard C. Levis.

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

This action was brought by appellant against appellee to recover Judgment against it on certain street-grade warrants issued in settlement of various contracts entered into by. it prior to October, 1889, for the purpose of grading the public streets of the- city; the gravamen of the action being the neglect and failure of the officers of appellee to create a fund out of which to pay said claims.

<p>1. Bill of Exceptions.</p> <p>Where a judge, in certifying a bill, provides that, if exceptions to certain-testimony are relied upon in any appellate proceedings, “at least the direct examination of such witnesses must be produced before the appellate court, and in such appellate court the full charge, as given the jury, must be also-produced,” such a certificate does not amount to any settlement of the bill at all, and it cannot be considered,</p> <p>a. Same.</p> <p>A bill of exceptions which the record says is a “substitute for first part of No. 9” cannot be considered, there being nothing to inform the court what No. 9 is. *</p> <p>8. Same.</p> <p>A bill of exceptions entitled “To be Substituted for Instruction No. 8”' cannot be considered, it not being the office of a bill of exceptions to serve-as an instruction.</p> <p>4. Master and Servant—Contributory -Negligence.</p> <p>Where the servant seeks to charge the master for personal injuries resulting from a defect in the roof of a mine in which the servant was employed, the master cannot complain of an instruction that, in order to-charge the servant with contributory negligence, the dangers and defects must have been so obvious and threatening that a reasonably prudent man would have avoided them.</p> <p>5. Sealed Verdict.</p> <p>It was not error to authorize the jury, against the objections of defendant, to return a sealed verdict.</p>

This was an action at law brought by Hector McLean against the county of Valley, in the state of Nebraska, upon overdue coupons upon certain county bonds. Judgment having been rendered in favor of plaintiff, the defendant brought this writ of error. The opinion of the circuit court is reported in 74 Fed. 389.

<p>1. Appeal and Error—Second Writ op Error—Prtor Decision.</p> <p>Where a case has been brought before an appellate court, and there decided, a second writ of error brings up nothing for review but the proceedings subsequent to the mandate; and the appellate court Is not bound to consider any of the questions which were before It on the first writ of error.</p> <p>3. Mining Locations—Kxtralatkral Rights.</p> <p>When a lode enters an end line of a regularly located mining claim, and runs in its course lengtlrwise, nearly parallel with the side lines of the claim for the greater part of the length of the claim, the owners of the claim are not deprived of the extralateral rights attached to it because the lode crosses a side line before reaching the other end line, but the extralateral rights will extend from the end at which the lode enters to the point at which it cresses the side line, whether a new end line is regarded as being drawn at. that point or not. Mining Co. v. Sweeney, 4 C. C. A. 329, 54 Fed. 284, and Last Chance Min. Co. v. Tyler Min. Co., 9 C. C. A. 613, 61 Fed. 557, reaffirmed.</p>

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

<p>1. Pensions—Payment Procured by Fraud—Action to Recover Back.</p> <p>The statement by an apiilic-ant for a pension that he contracted a certain disease in the line of his duty as a soldier was not false if, although he had the disease before he enlisted, he was then cured of it, and contracted it again while iri the service; and the United States cannot recover back the money on the ground it was obtained by fraud.</p> <p>2. Same.</p> <p>Under Rev. St. §§ 4693, 4694, providing that a soldier who was “disabled by reason of any wound or injury received, or disease contracted, while in the service of the United States and in the line of duty” shall be entitled to a pension, a disease cannot be regarded as having been contracted “in the line of duty” unless the service was the cause of the disease.</p> <p>3. Weighing of Testimony—Instructions to Jury.</p> <p>It is not error to charge the jury that it is for them to consider how much certain testimony of a negative character is worth as against positive testimony, and that ordinarily the evidence of a -witness who swears positively that he saw something is more valuable than that of witnesses who say they did not see it.</p> <p>4. Appeal and Error—Kevtew.</p> <p>There can he no reversal for error in admitting remarks of counsel to the jury when the record does not disclose llie substance or character of the remarks.</p> <p>5. Same.</p> <p>An objection to testimony cannot be considered by an appellate court where no ground of objection ivas stated at the trial.</p> <p>6. Same—Motion por New Trial.</p> <p>A motion for new trial is addressed to the sound discretion of the court, and the ruling upon it is not reviewable upon appeal.</p>

These were actions at law, brought, the one by George M. Pyle, and the other by A. E. Wright, against S. II. H. Clark and others, receivers of the Union Pacific Kailway Company, to recover damages for personal injuries.

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

The three insurance companies, defendants in the cases of Sallie E. Hillmon, plaintiff, pending in this court, have filed a complaint: That Webb McNall, the superintendent of insurance of the state of Kansas, is guilty of contempt of this court, in this: That he is unlawfully impeding and obstructing, and endeavoring to impede and obstruct, the due administration of justice in the trial of said actions; that said McNall, as superintendent of insurance, did on or about the 3d…

<p>Habeas Corpus—State Extradition—Proceedings against Consuls — Pkk iaminary Proceedings before State Magistrates Lawfui,.</p> <p>The Turkish consul I., being charged with embezzlement in Massachusetts, was committed in New York by a city magistrate for 30 days, to' await requisition from the governor of Massachusetts, in pursuance of the New York statute; on habeas corpus, held, that even though-criminal offenses by consuls may still be exclusively triable in the federal courts under sections 563 and 711 of the Revised Statutes, the exclusion of state authority by section 711 is limited to the -exclusion of state courts, and is not applicable to preliminary proceedings in extradition, or to a commitment by magistrates not acting as a court; (2) that the peculiar circumstances attending the repeal of paragraph 8 of section 711 as well as the language of paragraph 8 itself, apparently confined to civil suits, prevents any extension of that repeal by implication.</p>

<p>Bait.—Habeas Corpus—Api'KAr,.</p> <p>A district judge who has denied a writ of habeas corpus to release a foreign consul imprisoned under state authority has no power, under Kev. St. I 765, and Sup. Ct.. Hule ,‘>4 (C Sup. iii.) to admit the prisoner to bail pending an appeal from the order denying the writ.</p>

This is an appeal from decrees of the circuit court, Northern district of New York, in favor of complainant, in a suit brought for infringement of copyright. The interlocutory decree (53 Fed. 265) enjoined the further publication of a certain number of specified paragraphs, which the master and the court found to infringe; and the final decree (64 Fed. 360) awarded six cents as profits which accrued to defendant from the sale of books containing such paragraphs, with costs.

<p>1, Trade-Marks—Effect of Injuxctiox.</p> <p>An injunction forbidding the members of a partnership, charged with infringing a trade-mark, from preparing, putting up, selling, or offering for sale the article in question under the trade-mark in question, makes it a contempt for them to do these acts, not only in their own behalf, hut as .agent¡s or servants of others, who attempt to carry on the infringing- business. ' -</p> <p>2. Ikjuxotiox—Agents and ,Servants of Defendants.</p> <p>An injunction forbieleling tlio dofeiulants and their “agents, servants,-’ etc., from doing specified acts, hinds the agents only while acting as'such for the defendants, and not in their personal capacity after they have ceased to he defendants’ agents or servants, or have become agents or servants of some one else.</p>

This- was a suit in equity by Matthew J. Whittall against the Lowell Manufacturing Company for alleged infringement of a patent for a design for carpets.

<p>Bes Judicata— Parties and Privies—Patent-Inpeingejiext Suits.</p> <p>In a. suit asainst a manut'aciurpr of a machine for infringing' a patent, a judgment for defendant, <m the merits, on the question of infringement, is conclusive in a suit, by the same complainants against a purchaser of the identical machine from said manufacturer.</p>

<p>The patent was before the court on a motion for a preliminary injunction. 73 Fed. 828. The question of jurisdiction then decided is not again argued. The claims involved are there set out. There is also a quotation from the specification. These need not he repeated.</p>

This is an appeal from a decree of the circuit court, district of Connecticut, dismissing the complainants’ bill. The suit was brought for alleged infringement: of United States patent No. 378,-412, granted February 21, 1888, to John Burkhardt, assignor to complainants, for a “method of forming hollow spheroidal bodies from sheet-metal tubes.”

<p>Seamen’s Wages—Offset-—Alleged Smuggling—Fine—Settlement before Consul.</p> <p>Upon a. seaman’s discharge before the consul at Maracaibo and a settlement of his wages witli a month’s extra wages included in a written order given to the seaman upon the owners in New York for the payment of the balance duo and on suit by the seaman for 1he nonpayment, a claim io an offset was interposed for an alleged fine of $300, imposed upon the ship for the seaman’s alleged smuggling; but the facts, whatever they were, being known to the master prior to the settlement before the consul, and the order for the extra wages being unqualified, and the proofs as to the fine or any payment thereof being doubtful; held that the offset should not be allowed.</p> <p>(Syllabus by the Court.)</p>

This libel was filed March 19, 1896, on behalf of Messrs. Bickinson, Son & Co., of West Hartlepool, England, owners of the British steamship “Aries,” to recover the damages caused by the refusal of the respondents to load the steamship when tendered to them, on March 15, 1896, at Newport News, Ya., in violation, as the libel-ants allege, of a contract of affreightment. ■ The contract stipulaied that the shippers shoidd have the right to cancel the contract if the steamer was…

<p>In Error to the Circuit Court of the United States for the Northern District of New York.</p> <p>This case comes here on writ of error to review a judgment of the circuit court, Northern district of New York, entered September 10, 1896, against plaintiffs in error, who were defendants below, for $13,952.20, in favor of defendant in error.</p>

<p>In Equity. On motion. Suit by the Western Wheel-Scraper Company against one Drinnen and others to restrain the infringement of a patent.</p>

This is a bill in equity to quiet title to the Metropolitan mine and mining claims, owned by tlu; plaintiff. The suit was commenced in the state court, and thereafter removed to this court, on motion of defendant, upon the ground of diversity of citizenship of the parties.

<p>1. Mortgage of Homestead.</p> <p>Under the Arkansas homestead law, a deed purporting to mortgage the homestead of a married man is a nullity if his wife fails to join, in the deed as grantor and acknowledge it as such. And if she signs under duress, and that fact is known to the mortgagees, she does not “join in the execution” of the deed, in the meaning of the act.</p> <p>S. Same—Description.</p> <p>A description of land in a mortgage as the north part of a quarter section is void for indefiniteness.</p> <p>3. Same—Sunday.</p> <p>Under the Arkansas statutes, a mortgage executed on Sunday is void.</p> <p>4. Sunday—Federal Courts.</p> <p>The construction of a state Sunday law by a state court is followed by the federal courts.</p> <p>5. !3ame.</p> <p>A contract executed on Sunday being void, a ratification of it on a week day, in order to impart validity to it, must be by express agreement, and not by mere acquiescence.</p> <p>6. Same—Innocent Purchasers.</p> <p>As the mortgagees of a homestead, through their trustee and agent, knew that the mortgage had heen executed on Sunday, and that the wife had signed under duress, they are not innocent purchasers, and the parties to the mortgage may contradict the certificate of the officer.</p> <p>7. Same.</p> <p>Persons holding under an instrument to secure an antecedent debt are not bona fide purchasers for value.</p>

<p>1. Bank Receivers—Negotiable Paper.</p> <p>A receiver of a national hank holds its negotiable notes subject to the same defenses that applied to the hank itself.</p> <p>2. Same—Defenses to Negotiable Paper.</p> <p>A bank which, through its cashier and managing officer, procures a note to be illegally made by a corporation to secure a debt due the bank from one of the corporation’s stockholders, and. which, after negotiating it to a bona fide holder, receives it hack again, does not thereby become entitled to the protection of a bona fide holder.</p> <p>8. Corporations—Irregular Elections—Execution of Note and Mortgage.</p> <p>The acts of some of the directors who are the principal stockholders in electing officers, and through them executing a note and mortgage without tlio notices required by the by-laws and In defiance of their provisions are void as to other owners and bona fide pledgees of stock.</p> <p>4. Samb- -Attachment—Mortgages.</p> <p>The levy of an attachment on corporate property in an action on a debt against the principal stockholder can give no rights as against any mortgages, based upon a valid consideration as to such stockholder, which were executed prior to the levy of the writ.</p> <p>5. Same.</p> <p>Where a stockholder caused a note and mortgage on the corporate property to be illegally executed in part as security for his own debt and in part for a debt due from the corporation, held, that the mortgage should stand as an equitable charge against the property of the corporation to the extent of its own debt.</p> <p>6. Banks and Banking—Checks of Corporation—Misapplication of Proceeds.</p> <p>A bank cashier or teller may pay out a check drawn in the name of a corporal ion in the usual course of business, and when there are no circumstances of suspicion to put him on inquiry, without any investigation as to the destination of the money drawn; and the bank is not to be held liable if the money is misappropriated.</p>

<p>Corporations—Pledge of Bonds.</p> <p>Const. Cal. art. 12, § 11, and Civ. Code, § 359, providing that “no corporation shall issue stocks or bonds except for money paid, labor done or property actually received, and all fictitious increase of stock or indebtedness shall be void,” do. not prevent a corporation from pledging its bonds as collateral security for a. debt less in amount than their pax value. Such a pledge is an “issue” of the bonds, so as to make them valid corporate obligations.</p>

<p>1. Mortgage Trustees—Neglect to Record—Liability to Bondholders.</p> <p>A railroad-mortgage trustee, wlio certifies on the bonds that they are secured by a mortgage executed and delivered to him, is liable to' a holder of the bonds for loss of value occasioned by his neglect to record the mortgage, whereby a subsequent, duly-recorded mortgage obtains priority.</p> <p>2. Same—Limitations of Actions—Laches.</p> <p>The liability' in such case arises immediately on the recording of the subsequent mortgage, and a delay by a bondholder of over 20 years thereafter, and until the death of the trustee, in -enforcing his claim, precludes him from maintaining a suit, both under the New York statute of limitations, and by the equitable bar of laches.</p> <p>3. Same—Federal Courts.</p> <p>Although the ordinary chancery jurisdiction of the courts of the United States cannot be abridged by state statutes, they recognize the statutes of limitation of the. state in which the court is sitting, and adopt, them, if they do not act in obedience to them. And accordingly they will adjudge, in cases over which there is a concurrent jurisdiction by courts oí law and equity, that lapso of time to be a bar in equity which would have constituted a bar if the action had been at law.</p>

This was a bill in equity to have the respondent decreed to hold in trust for the complainant the legal title to a certain quarter section of land.

This was an intervening petition, filed by H. G. Ewart in a suit in equity brought by the United States against D. L. Boyd and others to enjoin the sale of timber,

<p>Corporations—Authority of President and General Manager—Creation of Preferences.</p> <p>The president and general manager of a business corporation, which is in a failing condition, has no power, without special authorization, to give preferences to certain creditors.</p>

This was a suit in equity to obtain a decree canceling and declaring void a certain sheriff’s deed to land sold upon foreclosure of a mortgage, to allow the comjdainaut to redeem as a judgment: creditor, and to direct the sheriff to execute and deliver a deed of the property to the complainant, etc.

This was a suit in equity by Collis P. Huntington, as special receiver of 1be Central Land Company of.West Virginia, against John B. Laidley and others, to set aside a deed lor fraud. On motion to strike out plea and- answer.

<p>1. Patent for Mining Claim—Failure of Adverse Claimant to Contest.</p> <p>Under Rev. St. §§ 2325, 2326, a decision of the land office awarding a patent for a mining claim after due publication of notice is conclusive upon an adverse claimant who has failed to file his. claim, except for reasons which a court of equity might allow to he urged against a judgment at law.</p> <p>2. Same.</p> <p>The question as to the true boundary of a mining claim for which a patent is askerl is a question of fact, coming properly within the jurisdiction of the land department; and its action therein is conclusive, in the absence of fraud.</p> <p>3. Same—Principal Charged with Knowledge of Agent.</p> <p>Where there was a conflict in the boundaries of the patents for two mining claims issued to separate corporations, the corporation to which the later patent was issued, having failed to adverse the claim of the other company, cannot claim relief in equity, upon the gfound of mistake in the boundary, although the person whom it employed to take all necessary proceedings to obtain its patent was also the agent of the other company, it being charged with the knowledge of its agent as to- the conflict.</p> <p>4. Same.</p> <p>Where a corporation, in apxflying for a patent for a mining claim, made a distinct disclaimer of a specific quantity of land, as being in conflict with a prior patent, it cannot claim relief in equity as to the conflict.</p> <p>5. Corporations—Negligence of Agents.</p> <p>As a corporation acts only through its officers and agents, it may he devested of its property by the negligence of its agents, in failing to adverse an apxffication for a patent for a mining claim.</p>

<p>1. Res Judicata—Extent of Estopped.</p> <p>The judgment in an action is conclusive, in a subsequent action beiween the same parties upon tlie same cause, as to all questions which might have been presented and determined in the first suit; but in a subsequent action between the same parties upon a different cause it is conclusive only upon such questions as were actually litigated and determined in the first suit.</p> <p>2. Same—.Judgment for Negligence—Suit for Indemnity.</p> <p>One who lias been prosecuted to judgment upon a cause of action based on the negligent act of another, who has been called in to defend and lias defended the suit, may sue such other party for indemnity, and rest his case upon the former adjudication, it being shown that it was in consequence of such negligence that the former judgment passed.</p> <p>3. Same—Evidence as to Questions Litigated—Opinions of Court.</p> <p>Under the provision of the constitution of Michigan (article 6, § 10) that the decisions of the supreme court, shall be in writing, signed by the judges, and filed in the clerk’s office, the opinion of the supreme court of that state is competent, and the. best evidence of the grounds of the adjudication in any case upon the questions litigated and determined therein.</p> <p>4. Laches—Knowledge of Ground of Action.</p> <p>In a suit by the receiver of a bank to cliaige its president with losses arising from his negligent management, whore it is fairly inferable from the evidence that the facts constituting such negligence were not disclosed by tlie president to tlie directors until long after their occurrence, and until disclosed by the bringing of a suit by a third parly, and the judgment therein, the lapse of more than tlie statutory period of limitation since the actual occurrence of tlie negligence cannot be. imputed to the receiver as laches.</p> <p>5. Banks and Banking—Mismanagement by President—Excessive Loans to Relative.</p> <p>Where the president of a bank, having the management of its business, has loaned to a near relative a large share of the capital of the. bank, and, with knowledge that securities offered to the bank by such relative are subject to conditions likely to eat away much of tlieir value, has accepted the securities at their face value, crediting his relative therewith, and surrendering obligations, good at. the time, he is liable to tlie bank, because of such negligent management, for a loss resulting from the depreciation of the securities so accepted.</p>

<p>1. Waters and Water Courses—Appropriation of Springs on Public Lands.</p> <p>In appropriating tlie waters of a spring upon public lands, only such acts are necessary, ancl such indications and evidences of appropriation, required, as the nature of the ease and the face of the country will admit of, and as, under the conditions and circumstances at the time, are practicable to accomplish the purpose of the appropriator in making a beneficial use of the water.</p> <p>8. Same.</p> <p>In an action of ejectment, involving the plaintiff's right, as against the defendant, to the waters of springs upon public land located by the plaintiff as a mill site in connection with a mine,—the right depending upon the prior appropriation, occupation, and use,—the jury were not called upon to determine what was necessary for plaintiff to prove in order to -entitle it to a patent; and the court properly charged the jury that the documentary evidence relating to the plaintiff's application for a patent was admitted only for the purpose of explaining the acts and conduct of the plaintiff, and the good faith of its possession of the laud in controversy.</p> <p>3. Same—Location of Mill Site.</p> <p>In an action of ejectment, involving- the right to tiie waters of certain sxn-ings upon public land located by the plaintiff as a mill site,—both plaintiff and defendant claiming under possessory rights,—it was not necessary for plaintiff to show, in order to establish lus right, that the water had been used for “mining- and milling purposes”; it being sufficient, if actual possession was shown, to prove that the water had been appropriated by it to any beneficial use, as for domestic and culinary purposes.</p>

In Error (o the Circuit Court of the United States for the Southern District of New York. This was an action at law brought by the receiver of the Stock Growers’ National Dank against the National Park Dank of (he City of New York to recover an assessment made by the comptroller of the currency upon stockholders of the Stock Growers’ National Dank. The trial judge rak'd üiat the defendant was a shareholder, and directed a verdict for plaintiff.

<p>This was an action at law by Joseph S. Kennedy and William E. Moon, partners under the firm name and style of Kennedy & Moon, against the United States, undér the act of March 3, 1887, which provides for the bringing- of suits against the United States. Tire plaintiffs sought to recover the sum of f 8,517.39 as drawbacks upon certain bags made of imported jute, and exported, under Eev. St. § 3019. The case was tried upon two of the entries, of which there were some 87 on the bill of particulars, namely, on the entry of the bags alleged to have been exported by the petitioners on the 8th of March, 1888, by the Ariete, and on the entry on the Sirius, December 8, 18S8.</p> <p>It appeared that the bags in question never belonged to the petitioners, but were the property of D. TV. Mainwaring & Oo., who leased them to the various steamers named in the bill of particulars, and that the bill of lading was indorsed to Kennedy & Moon, to act as exporters, for the benefit of drawback, by said firm of Mainwaring & Oo.</p> <p>Rev. St. § 3019, reads as follows: “There shall be allowed on all articles wholly manufactured or materials imported, on which duties have been paid when exported, a drawback equal in amount to the duty paid -on such materials. and no more, to be ascertained under such regulations as shall be prescribed by the secretary of the treasury. Ten per centum on the amount of all drawbacks so allowed ghall, however, be retained for the use of the United States by the collectors paying such drawbacks respectively.” The regulation made by the secretary of the treasury January «5, 1885 (S. 6708), provides as follows: “The person producing an outward bill of lading in his own name, or duly indorsed to him by the party named in the bill of lading, authorizing the indorsee to act for customhouse purposes, shall be recognized as the exporter of the bags and bagging- or meats for the purpose of making entry and receiving the drawback or a refund.”</p> <p>The petitioners insisted that they were entitled to recover, for the reason that there was an exportation of the bags in question, within the meaning of Rev. St. § 3019: citing Kidd v. Flagler, 54 Fed. 367, upon which case, they principally relied. The defendants maintained, by way of partial defense: (1) That the right to recover on a large number of the. entries on the bill of particulars had expired by reason of the proviso in the second paragraph of the act of March 3, 1887, relating to suits against the. United States, which' reads as follows: “Provided that no suit against the government of the United States shall be allowed under this act unless the same shall have been brought within six years after the right accrued for which the claim is made.” (2) That the parties plaintiff were not the. real owners of the. cause of action, and consequently not the, proper parties to sue on the claim, under Rev. St. § 3477, relating to the assignment of claims against the United States. (3) That there was no evidence in the. case to show that the bags in question had been taken without the United States and brought into some port, harbor or haven, with intent to land the goods there.” (4) That, assuming that the bags had actually been taken without the United States upon the vessels to which they had been leased, there, never had been such exportation thereof, within the meaning of Rev. St. § 3019.</p>

<p>1. Negligence—Personal Injuries—Evidence of Notice to Defendant.</p> <p>In an action for personal injuries, evidence of notice to tlie defendant, before the injury, of the nature of the dangers to be apprehended, and of the unsafe practices which he is employing, is competent upon the question of his negligence by the use of methods which he knew, or ought to have known, were hazardous.</p> <p>2. Same—Opinion Evidence. .</p> <p>In an action to recover damages alleged to have.been caused by the negligence of the defendant in hoisting pipes, it is not competent for a witness, called as an expert, to state whether it is necessary, in the proper performance of duty in hoisting pipe, that certain specified xirecautions should be taken, since the question is one which the jury can determine upon a statement of the facts.</p> <p>3. Trial—Objections to Evidence.</p> <p>An objection to a question, on the ground that it is immaterial, irrelevant, and incompetent, is insufficient, if the particular fault relied upon is not otherwise pointed out, and is such as, if stated at the trial, could have been obviated.</p> <p>4. Appeal and Error—Evidence—Waiver of Objections.</p> <p>By the admission, without objection, of irrelevant testimony, showing all the facts upon a topic which might, on objection, have been excluded, a party waives any reversible error in the admission of subsequent testimony of the same character.</p>

This was an action at law, brought by O'Keefe, by guardian, against the E. S. Higgins Carpet Company, to recover damages for personal injuries. The jury returned a verdict for plaintiff, and defendant has brought this writ of error.

<p>1. Master and Sera-ant—Rules Governing Employes—Evidence.</p> <p>A station master avIio lias, for seAxral weeks, been employed at a station located at a curve of the road, may be presumed to be familiar with the maimer in Avliieh trains are alloAved to approach the curve, and to haA*e assumed the risk thereof, so far as it concerns his work; and in an action for injuries caused by Inis being struck by a train Avhile in performance of his duties, it is not error to exclude evidence of the rules of other companies governing- engineers as to the maimer of approaching curves.</p> <p>2. Same—Safety of Employe’s Place of Work—Baggage Platform—Evidence.</p> <p>Whether a railroad platform was reasonably safe for employes handling baggage, or whether it was dangerous, because too narrow, or located too near the track, may be determined by the jury from the facts; and evidence shOAving liow the platforms of other companies are constructed Is incompetent.</p> <p>8. Same—Assumption of Risk—Charges.</p> <p>Where the charges giA'en eliminate from the case the issue whether the employs had assumed the risk of the dangers causing the injury, plaintiff is not prejudiced by a refusal to charge propositions of latv bearing on that issue.</p>

<p>1. Evidence—Written Admissions—Affidavit—Proof by Copy.</p> <p>Pursuant to a stipulation that either party might read in evidence any docu'ment “proved or admitted” in a prior action, plaintiff, to prove an alleged admission contained in an affidavit by defendant, read a copy of the affidavit, taken from the exemplified copy printed in the record of the case. Nothing was read from such record to show that defendant executed the affidavit, or that it had been proved or admitted in the case, ffrfd no evidence of the alleged admission to go to the jury.</p> <p>% Corporations—Proof of Membership—Entries in Corporate Books.</p> <p>Entries in the books of a corporation showing the transfer of stock to a certain person, and payments by him thereon, are not prima facie evidence that he is a stockholder, in a suit to charge him as a stockholder of the corporation.</p> <p>S. Same—Books as Evidekce—Statute.</p> <p>A statute providing that one “in whose name shares of stock stand on the hooks of the company shall, he deemed the owner thereof, as regards the company,” only estops the company from disputing that such person is a stockholder, and does not render the hooks admissible against him to prove that he is one.</p>

<p>Appeal — Ancillary Receivership—Rights ok Nonresident Creditors — Final Order. ''</p> <p>An order of the circuit court, denying the petition of nonresident creditors of an insolvent foreign corporation to be made formal parties to a suit for the appointment of ancillary receivers, and to be allowed to participate in the distribution of assets by such receivers, is not a final determination of the creditors’ right to participate in such distribution, from which an appeal will lie to the circuit court of appeals.</p>

<p>ITtre of Chattels — Contract — Termination jiy Destruction of tub Chattel.</p> <p>Plaintiff delivered to defendants a patented machine, under a contract providing that they should pay for its use a stipulated royalty semiannually until the expiration of the indents; that they might terminate the contract by returning the machine, and paying the amount then due; and that, if the machine should be destroyed by fire, plaintiff should furnish another at a specified price, and, if he refused to do so, defendants might have one made, the new machine, in either ease, to be subject to the payment of royalty and to all other conditions of the contract. Held, that defendants, upon the destruction oí lite machine by fire without their fault, could not terminate the contract, and avoid liability for royalty subsequently accruing, without procuring another machine, and delivering it to plaintiff.</p>

<p>1. Jurisdiction of Federal Courts — Action to Charge Stockholders in Corporations.</p> <p>An action against a director of a corporation, to charge him -with liability, under section 30 of the New York stock corporation law, is a civil action, of which the federal courts have jurisdiction concurrent with the state courts.</p> <p>2. Corporations—Reports to State Officers—Jurat.</p> <p>When the report filed by a corporation pursuant to section 30 of the New York stock corporation law is signed by ihe proper officers,, and the jurat shows that it was verified by their oath, the fact that the jurat itself is not signed by them does not render the report defective. -</p> <p>8. Samk—Signatures.</p> <p>When there Is a vacancy in the offices of secretary and treasurer of a corporation, in consequence of the resignation of the officers, a report signed by the president and a majority of the directors, and verified by the president alone, is a sufficient compliance with section 30 of the New York stock corporation law, requiring the filing of a report signed by a majority of the directors, and verified by the oath of the president or the vice president and treasurer or secretary.</p>

This was an action at law brought by O. M. Sheafe, receiver of the Washington Savings Bank, against A. V. Larimer, to recover an assessment on the stock of the bank. Submitted on demurrer to answer and counterclaim.

<p>Corporations—Insolvency—Calls on Stock—Discharge in Bankruptcy.</p> <p>The obligation of a subscriber to the stock of a corporation to respond to calls becomes, upon the declared insolvency of the corporation, by the execution of a deed of trust for the benefit of creditors, a liability with a contingency, though not fixed ip amount, and not payable until a call has been made; and when such subscriber has, subsequent to the execution of such a deed of trust, filed his petition in bankruptcy under the act of 1867, and been discharged, his discharge is a good defense to an action to recover the amount of his subscription, though the call on which the action is based is not made until after the discharge is granted.</p>

. This case comes here on writ of error to review a judgment of the circuit court, Southern district of Hew York, entered upon a verdict • for $1,535 in favor of defendant in error, who was plaintiff below. The facts sufficiently appear in the opinion.

<p>1. Conflict of Laws—Death by Negligence.</p> <p>A right of action given hy the statutes of Canada to the widow and children of one 'who has been killed in that country through the negligence of another may he prosecuted to judgment "by them in the, courts of Vermont, though the corresponding statute of that state gives the right of action to the personal representatives of the deceased. Dennick v. Railroad Co., 103 U. S. 11, followed.</p> <p>2. Same—Master and Servant—Fellow- Servants.</p> <p>In an action to recover damages for dentil or injury resulting from defendant’s negligence, the, application of the rule as to the responsibility of the master for the acts of fellow servants is governed by the law of the place where the cause of action arose, not hy that of the place where suit is brought, although the contract which created the relation of master and servant between the plaintiff and defendant -was made in the latter place.</p> <p>3. Master and Servant—Contributory Negligence—Province of Jury.</p> <p>Upon an examination of the evidence, field, that the question of the contributory negligence of the plaintiff in this case, a locomotive engineer, in running his train, without a flagman, towards a point where he was likely to meet another train, ivas properly left to the jury.</p> <p>4. Trt.yt,—Requests ror Instructions.</p> <p>A court is not hound 1o instruct the jury in the precise language of counsel’s requests, if the points suggested in such requests are otherwise covered in the charge.</p> <p>5. Samk—Proyixoi; or Court and Jury.</p> <p>11 is error to submit to a jury an issue as to which there is no evidence on which to base a finding, and the submission of which is an invitation to the jury to guess without i>roof, especially when the jury is thereby given an opportunity to follow a possible bias against one party.</p>

<p>1. Municipal Bonds—Delay of Buyer to Question Validity.</p> <p>Where a contract for the sale of municipal bonds provided that the city should furnish full information and copies of the record, of all proceedings affecting the validity of the bonds, and that the buyers should give notice of their rejection of the bonds for illegality, prior lo a specified date, otherwise they siiould be deemed to have accepted them, the city waived the right to enforce the time provision with strictness by its own delay in furnishing copies of its records, and by its action in submitting the records to the attorneys known to have been employed by the buyers to pass upon the validity of the braids after the time to give notice of rejection had elapsed.</p> <p>2. Sale—Douiit as to Validity.</p> <p>A buyer of municipal bonds from the city is not liable in damages for refusing to accept them when their marketable valué is destroyed or Impaired by questions of legality arising from facts shown by, or omissions in, the city’s own records; and it is immaterial that after his refusal, and after the bonds have been sold by the city to other parties, the state supreme court adjudges the bonds to be valid, as the purchaser then has no opportunity to accept them with the benefit of such adjudication.</p>

<p>1. Sheriff's Bonds —Defaults Occrnraxo rkfor'e Execution.</p> <p>It seems that, under the Washington statutes, the sureties on a sheriff’s hond assume responsibility for all the sheriffs official ads, and are liable fo-r defaults occurring before, the execution of the hond.</p> <p>2. Same- -Duties as to Writs of Execution.</p> <p>Under 2 Hill’s Code Wash. Ü 4ÍKÍ. where a sheriff has received money upon a, sale of attached property before judgment he must pay the money to the clerk forthwith, after receiving the writ of execution upon the judgment, but there must be an actual writ; and he is not in default, or liable upon his bond, for failure to pay the money over upon a simple order directing him to pay the money into court.</p>

<p>Conflict of Laws—Corporations—Stockholder's Liability—Pleading.</p> <p>Where an action at law is brought in a federal court in New York to charge a stockholder in a Kansas corporation, under tlie Kansas statute, to the extent of his liability, with a judgment against the corporation, it is sufficient to allege the recovery of the judgment and tlie return of execution unsatisfied, without averring the original debt, as the Kansas statute makes 1lie judgment at least presumptive evidence; and it is immaterial chat the New York courts in similar cases require the original debt to be recited, as the question is one of proof, and not of pleading.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an appeal by the United States from a decision of the board of general appraisers, reversing the action of the collector of customs in respect to the classification for duty of certain merchandise imported by Stearns & Spingarn, The circuit court affirmed the decision of the board (75 Fed. 833), and the United States appealed.</p>

This was an appeal from a decision of the board of general appraisers in respect to the classification of certain merchandise imported by Borgfeldt & Co. The circuit court reversed the decision of the board, and the United States appealed.

<p>Trade-Marks—Infringement.</p> <p>A trade-mark consisting of a red Greek cross is not infringed by a mark for similar goods, consisting of a Maltese cross having a red center and dark projections, the latter being placed upon packages which, by their peculiar lettering and ornamentation, are given a more distinct individuality than the packages to which the first mark is affixed.</p>

<p>Trade-Marks.</p> <p>A firm engaged in the United Stales in bottling and selling whiskey under the name of “Canadian Rye Whiskey,” in bottles and with labels, bands, and devices so nearly resembling 11k,so upon the boltlos oí: a corporation engaged in Canada in nuumfactnriug and selling whiskey under the name of "Canadian Club Whiskey” as to constitute unfair competition, and evidence an intent to deceive purchasers, will be restrained from the use of the words “Canadian Rye Whiskey” and of the bands and labels mentioned.</p>

<p>Patents for Invention—Extent of Claim—Corn Separator.</p> <p>Letters patent Nos. 217,152 and 247,152, issued September 20, 1881, to A. Belli1, lor a process of treating corn in the manufacture of starch, and for an apparatus used in such treatment, are. void for want of novelty, because the improvement over the previous state of the art consists in the peculiar conformation of the tank in which the corn is treated, and in the relative proportions of corn and water used, for neither of which elements do the patents contain any claim of invention.</p>

<p>Suit by the Western Electric Company against the Western Telephone Construction Company and others to restrain the alleged infringement of a patent.</p>

These were two suits in equity brought by the Computing Scale Company, the one against the National Computing Scale Company, and the other against Prank C. Hoyt, Charles A. Hoyt, and George B. Hoyt, partners as Hoyt & Co., for an injunction and damages for the infringement of a patent. Heard on motions by defendants for temporary injunction.

This is an appeal from a decree of the circuit court, Southern district of New Fork. The suit was for alleged infringement of United States, patent No. 207,486, granted August 27, 1878, to James H. Blessing, for an improvement in pump-regulating valves. The circuit court held that defendants’ structure did not infringe, and dismissed the bill.

<p>1. Salvage-Wreckers Hired to Raise Vessel are not Salvors—Right to Compensation.</p> <p>Wreckers employed by the master of a wrecked vessel to raise the wreck, not being salvors, are entitled to wages for their labor, reasonably and faithfully performed, whether it is successful or net.</p> <p>2. Marine Insurance—Liability of Underwriters for Services in Raising W RECK.</p> <p>Insurers of a wrecked vessel, who send an agent to superintend the master’s efforts to raise the wreck, become jointly liable with the owner for the pay of wreckers employed by the master.</p> <p>3. Same—Effect of 'Abandonment on Owner’s Liability.</p> <p>An abandonment of a wrecked vessel by the owner, after an attempt to raise it has proved unavailing, does not relieve the owner from liability to pay men employed in such attempt.</p> <p>4. Admiralty—Jurisdiction of Action for Wrecker’s Wages — Maritime Contract.</p> <p>A contract to raise a wrecked vessel is sufficiently maritime in its nature to give a court of admiralty jurisdiction of a suit to recover wages due under it.</p>

<p>This was a libel by Patrick Foley against the steamship Peninsular to recover damages for personal injuries.</p>

This is an appeal from a decree of the district, court, Southern district of Yew York, in favor of the libelants and against the steamship Alvena for §2,904.73, for loss and damage to sugar shipped at Savannah La Mar, in Jamaica, and consigned to the port of Yew York. The sugar was stowed in Yo. 3 hold, aft of the engine-room bulkhead.

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

<p>1 Collision—Vessel at Anchor— Unmanageable Steamer.</p> <p>A steamer which steers badly is in fault for approaching so near to an anchored vessel that a collision occurs through her failure to answer her helm.</p> <p>2. SAME—IMPROPER ANCHORAGE -HARBOR REGULATIONS.</p> <p>The fact that a vessel has come to anchor without obtaining the permit, from the harbor master mpiired by the port regulations does not place her in fault where another vessel runs into her in clear daylight.</p>

In Admiralty. Libel in rem against the steamship City of Puebla by the Puget Sound Tugboat Company, a corporation, owner of the steam tug Wanderer, for itself and in behalf of the officers and crew of said steam tug, for salvage. Findings and decree for libelant.

<p>Collision—Liability of City for Negltgf.nce of Its Fire Tug.</p> <p>A city is liable in personam for a collision between its fire tug and another vessel, caused by the negligence of the tug. The Fidelity, Fed. Cas. No. 4,758, 16 Blatchf. 569, disapproved.</p>

This was a libel in admiralty by Charles Manegold, Jr., and others against the propeller E. A. Shores, Jr., to recover for loss of cargo by stranding.

<p>In Error to the Circuit Court of ihe United States for the Eastern District of Pennsylvania.</p> <p>For opinion, see 75 Fed. 370.</p>

<p>Patents—Apparatus for Molding Earthenware.</p>

<p>This is an appeal from a decree of the district court, Southern district of New York, in favor of libelant, for seaman’s wages and penalty on discharge in a foreign port, with interest and costs. See 79 Fed. 809.</p>

<p>Assignability of Bill of Lading.</p>

<p>In Equity. Bill brought by Carter-Grume Company against Samuel R. Jonap and Arthur B. Levy for infringement of reissue letters patent No. 10,359, issued July 24, 1883, for Improvement in manifold copying books. The defenses were (1) noninfringement; (2) good faith of the defendants. On motion for preliminary injunction. Granted:</p>