Volume 8 — Federal Reporter

<p>1. NEGOTIANT.,® PATER — PRIMA FACIE EVIDENCE.</p> <p>In actions upon negotiable paper, the production oí it by the plaintiff, with ■prooí oí the genuineness of the signatures and oí the indorsements, entitles the plaintiff, without any additional evidence, to recover the full amount thereof, with interest, unless the defendants make out some satisfactory de-fence.</p> <p>2. Same — WANT of Authority to Negotiate — Ratification—Corporation— Secretary — Treasurer—'Estoppel—Accommodation Makers.</p> <p>Action upon negotiable paper, made by 1. and others for the accommodation of, and payable to, the M. Y. Ry. Co., and indorsed in blank by the railway company. Defence: that it was negotiated without the authority or consent of the railway company. Held, (1) if the note, having previously been indorsed in blank by the railway company, was delivered to the plaintiff by W., assuming to represent the railway company in the transaction, and in consideration thereof the plaintiff paid to W. the amount thereof, less the discount, or, at Yf.’s request, paid an equivalent amount of the railway company’s obligations, so that the railway company in fact received the value thereof, and the transaction was reported by W. to the secretary of the company, and by him to its treasurer, and the company has continued ever since to enjoy the benefit of the proceeds of said discount, without any offer to return the consideration, then the railway company is not entitled to set up the defence upon which it relies; (2) if the title of the plaintiff, in this respect, is sufficient as against the railway company, it is equally valid as against the accommodation makers.</p> <p>3. Notes Made in Pursuance of Resolution — Beoitals of Preamble do not Constitute Part of Agreement.</p> <p>The note in suit was made for the accommodation of the M. V. Ry. Co., in pursuance of a resolution of the hoard of directors of the company, in the preamble of which it was recited that, “Whereas, in the judgment of the board of directors, the interests of the M. V. Ry. Co. demand that certain rights of way should be speedily procured, and that the work of construction should be speedily prosecuted, these two objects requiring much more money than is at present under the control of the company,” etc.; but neither in the resolution nor the agreement, which it provided should be delivered to the note-makers by the company, was there any mention of the purposes for which said notes were to be used. Held, that these papers do not constitute any pledge or agreement on the part of the railway company to use these notes for the purposes specified in the preamble, and for no other purposes.</p> <p>4. Province of Jury — Agreement, as Distinguished from Mere Statements as to Purposes, Hopes, Etc.</p> <p>There 'also being oral testimony tending to prove the existence of an agreement to use said notes for the purposes specified in the foregoing preamble, held, tliat that testimony, in connection with the preamble and resolution, is for the consideration of the jury; but in, determining whether there was such an agreement, the jury should discriminate so as to be satisfied clearly of the existence of a definite agreement to that effect, as distinguished from mere declarations and statements on the part of the officers of the railway company as to the purposes, hopes, and expectations that they entertained concerning the matter.</p> <p>5. Negotiable Paper — Notice of Equities — President of Both Corporations — When Purchaser Responsible for Misapplication of Proceeds.</p> <p>The note in suit (accommodation note of I. and others to the M. V. Ry. Co., above described) was, before it became due, negotiated to the W. bank, through its cashier. It was claimed that this was done in violation of the agreement upon which the note was given. H. was at that time president of both the railway company and the bank, was member of the executive committee of the railway company and of the discount committee of the bank, and was claimed to have had knowledge of such agreement. Held, (1) that if -I-I. had actual knowledge of the facts alleged by the makers of the note, and he was aware of and acted in the negotiation on the*part of the bank for its discount, while such negotiation was in progress, the bank is chargeable with notice of these facts; (2) but if H., on being inquired of by the cashier in respect to the propriety of discounting the note, had replied to him, “These names are undoubtedly good for $10,000, but my relation to the two companies is such that I decline any part in the decision of the question of discount of the note,” and thereupon withdrew and took no further part in it, — the mere answering of that question is not such a participation in the transaction as to charge the bank with notice of facts of which H. had knowledge. Held, further, as to the violation of the alleged agreement, that the misapplication of the proceeds of the ■ note, made by the officers of the railway company without the knowledge and participation of the bank, would not defeat a recovery by the bank on the note.</p> <p>6. Notice — Corporations—President, Directors, and Other Officers.</p> <p>Discussion of the subject and full of authorities in note.</p>

<p>Civil Action at Law. Upon motions to dismiss attachments.</p> <p>In Equity. Upon motion to dissolve injunction.</p> <p>In Equity.</p>

This was a libel by the owner of a deck load of iron pipe, jettisoned, against the underwriter of the balance of the cargo, to recover contribution by general average.

In Equity. Trade-mark. Bill for injunction and account, and cross-bill for injunction. Final hearing upon pleadings and proofs. 1. Complainant’s trade-mark embodied his family name, and was therefore peculiarly appropriate. See Ainsworth v. Wahnesly, 44 P. J. 252. The right to use the name passed from father to son as a personal right, not as a chattel real. See Dixon Crucible Co. v. Guggenheim, Cox’s Trade-mark Cas. 577. 2.

<p>Hearing on Bill and Plea.</p> <p>The bill was filed to restrain the use of the invention embraced in letters patent No. 22,439, issued to complainant for an improvement in locomotive axle bearings. The bill admitted the purchase by-defendants, in 1861, of a license to use said invention, but alleged that defendants had used it in locomotives acquired since the date of the license, and under chartered rights and privileges acquired since that date as lessee of several railroads not contemplated or embraced in said license. Defendants filed a plea, setting up the license referred to, the material part of which was as follows:</p> <p>“ The Pennsylvania Railroad Company is * * * hereby authorized and licensed to make and use all of said improvements and inventions so patented as aforesaid, for and during the several terms of the-patents, and any extension of either of the same, in, upon, and about the locomotive engines used by the said The Pennsylvania Railroad Company, on the Pennsylvania Railroad, or any road or roads now owned, or that may hereafter be owned or operated by the said company.”</p> <p>Complainant claimed that the license embraced only locomotives in use at its date, and, further, that defendants had no legal right to operate the other roads on which it was using the invention.</p>

<p>Libel against a Tug for Breach of Contract.</p> <p>Libellant, by a written agreement, chartered the tug for use in certain dredging operations at the price of $500 per month. He averred that the tug failed to perform the work. Bespondents averred that, by a verbal agreement made at the same time as the written charter, libellant agreed to furnish the provisions and pay the current expenses of the tug in part payment of the $500 per month; and that he failed to do this, whereby the tug was unable to perform the work. Various question of law, affecting the validity of the lien claimed by libellant, were raised upon the argument.</p>

<p>1. Bill of Sale — -Invalidity of, When Signature Obtained by Fraud— Decree of District Court Affirmed.</p>

<p>1. Jurisdiction- — Creditors’ Bilí — Decree in Admiralty.</p> <p>Tlio circuit court of tlie United States lias not jurisdiction to entertain a. creditor’s Bill filed in that court, and based on a judgment or decree in admiralty recovered in tlie district court, all tlie parties to tlie bill being citizens of tlie same state.</p> <p>Jurisdiction in such a case is not maintainable on the ground that the bill in the circuit court is ancillary to the judgment or decree in the district court; nor is the case one arising under the constitution or laws of the United States, so as to give the court jurisdiction under the first clause of the first section of the removal act of March 3, 1873.</p>

<p>Demurrer to Plea.</p>

<p>1. Receiver — Extra Compensation.</p> <p>In case the duties of a receiver prove to he more arduous than he or the court expected, or in case he performs duties in addition to those ordinarily required of a receiver, in either case, provided he has faithfully administered his trust without intentional error or fraud, he is entitled to compensation in addition to that fixed by the order under which he was appointed.</p> <p>2. Same — Sale by, op His Own Property, to Corporation.</p> <p>Under the circumstances surrounding the sales, held, that certain sales by the receiver to the corporation, of property of which he was a sole or part owner, were not fraudulent in such a sense as to deprive him of just compensation for services rendered.</p> <p>8. Same — Instructions to, Construed.</p> <p>Instructions in writing accompanying the order of apportionment, which directed as follows : “It is not expected that you will serve as superintendent. You will continue the present superintendent, or employ another, as your judgment dictates, on the best terms that will secure a good man,” — were not intended to prohibit the receiver from discharging, in person, the duties of superintendent.</p>

<p>1. Board of Directors Improperly Convened — Action Taken by, Unauthorized.</p> <p>Where a by-law of a corporation required its secretary to give due notice of meetings of the board of directors, held, that important action taken at a meeting from which a director, whom the secretary made no attempt to notify that such a meeting was to he held, was absent, is unauthorized.</p> <p>2. Bona Fide Purchaser Without Notice — Who is Not.</p> <p>The purchaser, a former shareholder, was present at the meeting of the board at which the sale was made, and knew that one of the directors was away. He was bound to know that absent directors must be notified of board meetings. Held, that he was not a bona fide purchaser without notice.</p> <p>3. Stock Bought by the Corporation — When Entitled to Vote.</p> <p>It seems that stock bought by the corporation for non-payment of assessments is entitled to vote only when all the stock is represented at the meeting, and all consent to have the treasurer cast the vote.</p> <p>4. Nominal Subscriptions.</p> <p>Stock thus subscribed for is not to ha counted in taking a stock vote.</p> <p>5. Evidence.</p> <p>The records of a corporation are prima facie evidence against stockholders of its acts recorded therein.</p> <p>- Section 2847 of the Compiled Laws of Michigan, in so far as it provides for the due filing of proxies, is directory only.</p>

<p>Action at Raw.</p>

<p>Action at Law.</p>

<p>Action at Law.</p>

<p>1. Statute — Prospective—'When.</p> <p>Statutes are to be considered prospective, unless llio language is such, as to leave no doubt that they were intended to be retrospective.</p> <p>2. Yoid Judgment.</p> <p>Upon a void judgment no action can be maintained.</p> <p>S. Process — Same.</p> <p>The statute of Virginia passed in 1856, regulating the conduct of the business of foreign life insurance companies who should do business therein, provided, among other things, that such companies should have an agent in that state upon whom service of process could be made. In 1877 the existing law was amended so as to provide that, in case of the death,of such an agent, his personal representative was authorized to accept service of process against such corporation. In 1852 the defendant, a foreign company, insured the deceased, Lewis Ellis, and in 1856 dulv appointed an agent with authority to accept service of process in that state, who continued to act as such up to the time of the war, hut not thereafter, to defendant’s knowledge or with its consent, whose authority was not, however, formally revoked until 1866. This agent died in 1876, and one Edrington became his administrator. The death of the insured occurred in 1869, and in 1878 this plaintiff, the administrator upon his estate, brought a suit in a state court against this defendant by serving process upon Edrington" who had no authority from the defendant to accept service, and was not its agent, unless made so by the act of 1877. There was no appearance for the defendant, and the plaintiff recovered a judgment upon which this action was brought. Held, that the state court had no jurisdiction</p> <p>4. Same — Same—Virginia, Act oe 1877.</p> <p>'Held, further, that Edrington was not made the defendant’s agent by this act; that the act was prospective, not retrospective..</p>

<p>1. Minor — Contract of Enlistment — Avoidance.</p> <p>A minor’s contract oí enlistment is voidable only, and not void. If, after enlistment, he commits a military offence, is actually arrested and in course of trial before the contract is duly avoided, he may bo tried and punished</p> <p>2. Same.</p> <p>Where a minor enlists in the marine corps of the United States, deserts his post and goes home, is arrested and in course of trial before the contract of enlistment is avoided by him, held, that the trial must be proceeded with.</p>

<p>1. Re-Issue TTo. 7,704 — Bedstead Frames — Construction—Inmsinoement.</p> <p>Re-issued letters patent Ro. 7,704, granted May 29, 3877, to Woven-Wire Mattress Company, for improvement in bedstead frames, limited, as to its first claim to the language of the first claim of the original patent., sustained as to its third claim, and held infringed as to such claims.</p> <p>2. Re-Issue — Object.</p> <p>It is competent for a patentee to restate his invention in a re-issue so as to point out and claim a characteristic feature which is not clearly stated in the original patent.</p> <p>3. Anticipation- — Evidence—Presumption Attaching to a Patent.</p> <p>Evidence of anticipation, to overcome the presumption attaching to a patent, must he clear and sufficient. The unsupported oral testimony of a patentee that, he made a number of devices, containing a certain alleged anticipatory element, long prior to the controversy, but which was not shown in his application for a patent for said device, and without producing a device containing such clement, is not such evidence as would overcome the presumption which belongs to a patent.</p>

<p>1. Patent No. 132,208 — Gbadtjated Glass-Wabe — Anticipation—Validity— Infringement.</p> <p>Letters patent No. 132,208, granted October 15, 1872, to Jolm II. Hobbs, for improvement in manufacture of graduated glass-ware, held, valid, and infringed by graduated glass-ware manufactured under letters patent No. 217,050, granted July 1, 1879, to Marx Block.</p> <p>A glass measure graduated on its outer face, and a metallic measure gradual ed on its inner face, held, not to anticipate a glass measure graduated on its inner face.</p> <p>Complainant’s invention, consisting of glass-ware having a graduated scale on its inner surface, held, infringed by defendant’s construction, in which the graduation extends entirely around the inner face of such glass-ware.</p>

<p>1. Jurisdiction — Attachment—Stipulation.</p> <p>Where property was attached upon process issued in an action in personam, the defendant not being found', and the next day the secretary of the corporation defendant appeared and offered to accept service, and a motion before the court to vacate the attachment being denied, the property seized was after-wards released upon a stipulation for its value voluntarily given by the defendant, and the action was then tried, held, that it was not open to the stipulators to say that the court had not acquired jurisdiction to enter a decree upon the stipulation; that the libellants were entitled to a decree because the marshal’s return showed a regular attachment, and the evidence shows that it was made before the appearance of the defendant, and its offer to accept service was made.</p>

The plaintiff, on the fifth day of January, 1877, filed its bill in the circuit court of Webster county, Iowa, to enforce its claim against said navigation company to a large amount of taxes which it had paid upon certain lands lying in that county, alleging that said taxes had been paid in good faith, under color of title, by virtue of a deed received by the plaintiff from the Dubuque & Sioux City Railway Company.

In Equity. Bill of interpleader. ' The facts of the ease are sufficiently stated in the opinion, except that the character of the instrument referred to therein as a “bill of exchange, (or cheek,) ” is left somewhat indefinite. Said instrument is in words and figures as follows: No. 37,230. German Savings Institution, ?

<p>1. Jurisdiction of Circuit Court — Supersedeas—Injunction to Restrain Execution of Judgment.</p> <p>Neither a United States circuit court, nor a judge thereof, has authority to interfere by injunction to prevent the execution of a judgment of a state court, upon the ground that it has been superseded by an appeal therefrom to the United States supreme court, nor to enjoin state officials or other officers from disregarding such a supersedeas.</p> <p>2. Same — Supreme Court.</p> <p>In such cases, the application for an injunction must be made to the United States supreme court, or a judge thereof.</p>

<p>1. Supersedeas — Bond Required —How is the Amount of, to be Determined.</p> <p>The amount of the bond to be required by a United States circuit court granting a sup&rsedeas is to be determined by it, in its sound discretion, under the laws and rules of the supreme court.</p> <p>2. Same — Same.</p> <p>In the cases of mandamus against the city of New Orleans to direct the levy of taxation, looking to the payment of a specific sum of money, wherein the matter in dispute exceeds the sum of $5,000, exclusive of costs, and wherein writs of error are applied for and a sup&rsedeas asked, the bonds required were fixed at $150, plus 10 per cent, of the amount of the judgment or judgments sought to be stayed.</p> <p>3. Rule 29 of the General Rules of the United States Supreme Court— Municipal Officers.</p> <p>Where the defendants in the judgment are municipal officers, having little or no interest pecuniarily in the event of the suit, and .where the judgments sought to be stayed are not for money or property, but to direct the performance of a ministerial act, rule 29 of the general rules of the United States supreme court has no application.</p> <p>4. Appeal from Any Other than a Money Judgment — Section 2, Rule 23, General Rules of the United States Supreme Court — Damages May be Awarded.</p> <p>Quiere, as to whether, under section 2 of rule 23, general rules of the United States supreme court, which reads, “ In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at the rate of 10 per cent., in addition to. interest, shall be awarded upon the aipount of the judgment,”— any dámages may be awarded by the supreme court in any case where there is no direct appeal from a money judgment.</p>

<p>1. Heirs — Rev. Civil Code of Louisiana, Art. 1013.</p> <p>Provided none of the rights oí the complainant aro thereby affected, a court oí equity will not hold heirs to the liability, for the debts of the succession as if they themselves had contracted them, which they incur, under the provisions of article 1013 of the llov. Civil Code of Louisiana, by neglecting to take the inventory therein required, partícula rly where a formal inventory of the succession has been made under judicial authority.</p> <p>2. State and Federal Courts — National Hank — JURISDICTION.</p> <p>Though a corporation, incorporated under tho provisions of an act'of congress, may iiave adequate remedies in the state courts, it has a right to suo in the United States courts, and is not compelled to seek the jurisdiction of the state.</p> <p>3. Res Adjudícala.</p> <p>The plea of res adjndieata cannot bo successfully interposed by the respondents to a bill brought in a court, of equity to enforce a judgment obtained against the same parties, when defending an action at law.</p>

<p>1. Mortgagors and Mortgagees.</p> <p>An issue of bonds secured by a first mortgage and issued for the purpose of taking up others of a prior issue, was larger than necessary for that purpose. In a suit brought by holders of a second mortgage to foreclose their mortgage, held, that such surplus bonds, whether actually out and in the hands of bona fide holders when the second mortgage went into.effect, or issued afterwards for the first time, as collateral, to secure a debt contracted at the time they were thus pledged, — in either case, they were secured by such first mortgage equally with those applied to the purpose of the issue, even though, in the second case, such pledgee had full knowledge of all the facts.</p> <p>2. Manner of Issuing Bonds — Re-Issue, Retirement, and Cancellation of.</p> <p>Construing the language of the instrument with reference to the surrounding circumstances and the subject-matter of the contract, held, first mortgage bonds remaining unissued in the hands of the company, and those which after-wards came into their hands by purchase, without the intention of retiring them, could be issued, sold, and transferred by the company, after the date of the second mortgage, so as to carry a lien under the first mortgage.</p> <p>3. Second Mortgage Construed — Application of Bonds — Liens Determined —Payment of Prior Encumbrances — Directors as Creditors — Record of Mortgage — Lien of Subsequent Attachment.</p> <p>A second mortgage, made to secure the payment of an issue of 6,000 bonds, of $500 each, recited that the proceeds thereof were “to be applied exclusively to the extinguishment of the floating debt and the retirement of unsecured bonds. ’ The manner of effecting this extinguishment was not provided for, further than by authorizing the president of the company to sell the bonds at not less than 80 per cent., which might be for one-tliird cash and two-thirds in unsecured bonds, at not less than 80 per cent. Reid :</p> <p>(1) In a controversy between bondholders, that bonds of this issue, even if pledged as collateral upon an extension or renewal of the floating debt, or to secure notes given in payment of unsecured bonds, were regularly issued and properly applied.</p> <p>(2) Directors acting in good faith for the best interests of the company are entitled to the same rights as other creditors.</p> <p>(3) Outstanding unsecured bondholders are not entitled to participate in the security of the second mortgage without first complying with the terms dictated by the company.</p> <p>(4) Bonds purchased by the company with the proceeds of second mortgage bonds should be delivered up and cancelled.</p> <p>(5) An atta'Kmcnt regularly issued in the state of Georgia is superior to the lien of a mortgage defectively recorded.</p>

<p>1. Equity — Necessary Parties — Devisee.</p> <p>One wlio, in a certain event, may be interested in the disposition of the estate of a decedent, is not a necessary party to a hill brought hy a devisee against the executors praying for an account and a construction of the will.</p>

<p>1. Guaranty of Collection — Promise—Construction.</p> <p>’ promise “ tliat if the plaintiff would endeavor to collect the amount of'the loss described from the Grand Trunk Railway Company, they, the defendants, would pay the paid claim if the Grand Trunk Railway Company did not do so,” is, in legal effect, a guaranty of the collection of the debt.</p>

<p>Demurrer to Complaint.</p>

In Equity. Sur application for injunction to restrain the defendants from proceeding in the court of common pleas of Crawford county, Pennsylvania, to compel Joseph A. Neill to settle an account as trustee under a deed of voluntary assignment, etc.

<p>1. Patestt No. 178,869 — Counter-Stiffener Machine — Validity.</p> <p>Letters patent No. 178,869, granted June 20, 1876, to John R. Moffitt,, for process and machine for manufacturing counter stiffeners for boots and shoos, held, invalid.</p> <p>2. Patent — New Application of Old Machine.</p> <p>While a patent may hardly he sustained for a process or method which consists only in applying an old machine to a new use, it will only he supported when the new use is so remote from the old use that it is evident that a new idea has been discovered..</p> <p>3. Specification — Admission by Patentee.</p> <p>An admission by a patentee, in his specification or application for a patent, cannot afterwards be contradicted by him.</p> <p>Leggett v. Awry, 101 U. ¡3. 256.</p> <p>4. Counter Stiffeners — Old Methods — Combination of Old Methods— Patbntabi lity.</p> <p>The methods of manufacturing counter stiffeners for boots and shoes, either by forcing the blank through a mould by means of a revolving former, or by molding the blank by pressure between a male and female mould, being old, complainant’s process combining both such methods, in the manufacture of each counter, in a single machine, held, not patentable.</p>

<p>Suit for Injunction.</p>

<p>1. Re-issue JSTo. 7,356 — Boot and Shoe Stiffening Machine — Anticipation— Validity — Infringement.</p> <p>Re-issued letters patent No. 7,356, granted October 24, 1876, to Louis Coté, for machinery for forming boot and shoe stiffeners, held, not anticipated by letters patent No. 63,550, granted John R. Moffitt, April 2, 1867, for apparatus for molding and vulcanizing articles of rubber, and letters patent No. 135,150, granted January 21,1873, to John Pearce, for machine for bending sheet metal; also, held valid, and infringed by machines constructed under letters patent No, 178,869, granted June 20,1876, to John R. Moffitt, for process and machine for manufacturing counter-stiffeners for boots and shoes.</p> <p>2. bAME- — SAME—INFRINGEMENT.</p> <p>Complainants’ invention, consisting of a machine for making stiffeners for boots and shoes, having a single roller, whose head, rounded or curved to the required shape, and roughened, seizes the stiffener blank, and forces it to pass between such roller-head and a stationary concave mold, or die, conforming in shape to such head, held, infringed by defendant’s combination, which embodies such device as one of its elements.</p>

<p>1. Be-issue No. 5,067 — Suspension Bin» for Business Cards — Novelty — Validity.</p> <p>Be-issued letters patent No. 5,067, granted H. S. Griffiths, September 24,1872, for improved suspension rings for business cards, held, invalid for want of novelty.</p> <p>Complainant’s device, consisting of a ring of thin sheet metal having a shank or bottom piece provided with sharp spurs, which are pushed through the card and turned down on the opposite side, held, anticipated by the Twitchell umbrella fastener, being a ring of sheet metal with spurs, which are pushed through the India-rubber band which serves to keep a folded umbrella in place, the ring attaching the end of the band to a button or hook.</p>

<p>1. Rescission — Usage—Goon Cause.</p> <p>In the light of the usages of the port of Hew Bedford, the common contract to perform a whaling voyage can ho terminated by either party for good cause. Information justifying a party to such a contract in cone] tiding that the voyage had failed, and could no longer he prosecuted with success, constitutes good cause.</p> <p>2 Same — Oont ract — Construction—Usage.</p> <p>By a written contract the libellant agreed to proceed from the port of New Bedford to Mnhe, Seyehelle islands, and on his arrival there take charge of a bark and perform a whaling voyage in it, not exceeding three years in duration, and then return with it to said port; and the respondent,, in consideration of the libellant’s services, agreed to pay him a certain share of the net, proceeds of the cargo obt ained during said term. The libellant went to Malie and took charge of the bark, and made in tier an unsuccessful cruise, extending over a period of six months, when, becoming short-handed by desertion and otherwise, obedient to an order from the respondent he brought the vessel to Hew Bedford. Held, that, under the circumstances, the respondent eta rescind the contract.</p> <p>3. PARTNERSHIP — IMPLIED CONDITIONS.</p> <p>It seems that the contract is one of partnership, and that one of the implied conditions of such a contract is that either of the parties to it is at liberty to withdraw from the adventure whenever it becomes reasonably certain that it can no longer be prosecuted with success.</p> <p>4. Rescission — Acquiescence.</p> <p>It seems, further, that a letter written to the respondent on the date the order to return was received, in the terms following : “I very reluctantly comply with your request. Your views may be right, to a certain extent, as I am situated now, for we have seen sperm whales three times since we left Mahe Banks, but taken no oil. I believe if we had been properly manned we should have made a good show, although the chances were not the best. I should have liked very much to have had a man, and taken the season oft' the river, then gone north, and finished up the time as per agreement; but as you think it best for all concerned that the ship shall return to New Bedford direct, I will bring her there as fast as wind and weather will permit,” — amounts to an acquiescence in the rescission.</p>

<p>1. Usage — Fin-Back Whale Fishehy.</p> <p>'in the early spring months the easterly part of Massachusetts hay is frequented by fin-back whale. Fishermen JCrqrn Provincetown pursue them in open boats from tlie shore, and shoot them with homb-lanees fired from guns made expressly for the purpose. When killed they sink at once to the bottom, but in the course of from one to three days they rise and float on the surface. The person who happens to find them on the beach usually sends word to Prov-incetown, and ho receives a small salvage for his services. The business is of considerable extent, but is engaged in by but few people. Each boat's crew engaged in the business has its peculiar mark or device on its lances, and thus it is known by whom a whale is killed. The usage on Cape Cod, for many years, has been that the person who kills a whale, in the manner and under the circumstances described, owns''it. Held, that the usage is reasonable and valid.</p> <p>2. Animals Fekíe Natukíe — AimnoriuATioN—Title.</p> <p>Qup'i'e, whether the first taker of an animal form naturm, who performs the only act of appropriation that is possible in the nature of tlie case, does not thereby acquire title to it.</p> <p>3. Same — Same.</p> <p>On the morning of April 9, 1880, in Massachusetts bay, near the end of Capo Cod, the libellant shot and instantly killed, with a bomb-lance, the whale in question. It sunk at once, and on the morning of the 12th was found stranded on the beach in Brewster, within the ebb and flow of the tide, by one Ellis, 17 miles from the spot where it was killed, who advertised it for sale at auction, and sold it to the respondent, who shipped off the blubber and tried out the oil. On the morning of the 13th, the libellant heard that the whale had been found, and at once sent his men to claim it. Neither the respondent nor Ellis knew that the whale had been killed by the libellant, but they knew, or might have known if they had wished, that it had been shot and killed with a bomb-lance, by some person engaged in this species of business. Held, that the respondent was liable for a conversion.</p> <p>4. Damages — Kulh oi<\</p> <p>The rule of damages in such a case is 1he market value of the oil obtained from it, less the cost of trying it out and preparing it for the market, with interest on llie amount so ascertained from the date of conversion.</p>

<p>1. Joinder of Claim in Rem and in Personam,</p> <p>Under admiralty rule 15, in a suit ior damage by collision, a claim in rem and in personam cannot be joined in one libel.</p> <p>% Semble.</p> <p>That but ior said rule they might he so joined, and that convenience in prosecuting the claim would thereby be promoted.</p> <p>3. Fellow Servant — Injury to.</p> <p>Exception to libel for injury to a fireman on a steam-vessel caused by the negligence of the master, on the ground that they were fellow servants of a common employer, and that such fireman was aware of the incompetence of the master, overruled, upon the impression that the fireman and master were not fellow servants in the sense which excuses the common employer from liability lor an injury suffered by one in consequence of the misconduct or negligence of the other, with leave to raise the question upon final hearing.</p> <p>4. Touts — -Admiralty Jurisdiction.</p> <p>The national courts have jurisdiction of a tort committed anywhere upon the navigable waters of the United States. The ruling in Holmes v. 0. é. O. By. Go. 5 Fed. Rep. 75, followed.</p>

<p>1. Seamen — Oontkact—Imputed Teems.</p> <p>Where there are no shipping articles, and no express understanding to the contrary, it is the implied contract that deck hands shipped on an Ohio river packet engaged in the Pittsburgh and Cincinnati trade are to be returned to their several ports oí shipment.</p> <p>A packet in this trade shipped hands at Cincinnati and other points above, in Ohio, Kentucky, and West Virginia, and proceeded to Pittsburgh, and there the hands were put oil the boat, the river having then frozen over and navigation, by reason of ice, remaining suspended for eight days.</p> <p>Held, that the boat should either have kept the hands on board and furnished them with food until navigation was resumed, or provided them with means to reach their ports of shipment.</p> <p>Held, further, that the hands were entitled to a decree for traveling costs and expenses, as of the date of their discharge, from Pittsburgh to their several ports of shipment, by the ordinary routes of travel then open, and also wages at the contract rate during the time required to reach said points.</p>

<p>1. Collision — Burden of Proof.</p> <p>In case of a collision between a sloop close-hauled and a schooner sailing directly before the wind, the burden is on the schooner to account for it consistently with her innocence.</p> <p>2. Evidence — Absence of Witnesses.</p> <p>The absence of important witnesses, whose presence might, have been secured by the exercise of reasonable diligence, is open to remark.</p> <p>3. Damages — Net Freight.</p> <p>Where a vessel, chartered by a parol contract for a definite time, is sunk in a collision caused by the fault of the other colliding vessel, and becomes a total loss, the net freight for the unexpired time of the charter may be assessed as damages.</p>

<p>1. Collision — Negligence.</p> <p>A collision occurred in mid-oee&n, to tlie eastward of the Grand Banks, in about latitude 40 degrees, 1 minute, north; longitude 38 degrees, 9 minutes, west. Both vessels were bound to Hew Tork. One, a bark, was sailing at a speed of four or five knots an hour, close-hauled upon the wind, on a course north, one-half west; the other, a steam-ship, was steaming at a speed of between 11 and 12 knots an hour, on a course west by north, half west. A light west by north breeze was blowing. Held, that, as there is no question in the case as to the existence of a green light displayed from the starboard side of the bark, nor as to the brightness of the night being sufficient to render such light visible in time to avoid the collision, and as the question whether the steamer was approaching the bark from aft in a course that rendered it impossible for her to see the green light of the bark sooner than she did must be answered in the negative, the inference is irresistible that the cause of the collision was the failure on the part of the steam-ship, to keep a proper lookout.</p> <p>2. Lighted Torch — Bev. St. § 4234.</p> <p>No fault can be found with the bark for not displaying a torch over her stern towards the steamer seen approaching, if the display of an additional light from the bark would have been of no avail for want of a proper lookout on the steamer</p> <p>3. Witness.</p> <p>A mistake in regard to time and distance, in cases of this description, does not necessarily discredit a witness.</p>

<p>1. JURISDICTION — Erato.</p> <p>A court of equity will grant relief against a judgment at law on tlie ground of fraud, whether tlie fraud was in the transaction, or the instrument on which the action arose, or in the trial and the manner oí obtaining the judgment.</p> <p>2. Same — Practice in Equity — Bills for a ZS>w Trial.</p> <p>It is the practice in equity, when the prayer oí the bill is for an injunction and for general relief, after a judgment at law, unless the case discloses some defence peculiar to courts of equity, and which would be unavailing at law, to set aside- the judgment, and leave the parties to a now trial in tho original forum. In effect, such a bill is an application for a now trial.</p>

<p>1. Practice— Appeal — Rev. St. § 4-982.</p> <p>Under section 4982 of the Revised Statutes, the filing of a petition of appeal is an entry of the appeal.</p> <p>2. Same — Piling of Transcript — Rev. St. § 4981.</p> <p>Under section 4981 of the Revised Statutes, an appeal was claimed by the plaintiff from a decree of the district court, and due notice given to the clerk and the defendant’s solicitor. On the same day as that on which such notice was given, a citation was signed by the district judge and served. Held, that the transcript of the record from such district court was filed in time, if filed at any time during the term at which the citation was made returnable.</p>

<p>1. Equitable Rulier — Principal and Agent — Eire Insurance ~ Mutual Mistake.</p> <p>0., an agent, for several insurance companies, was accustomed to send to S., an agent for 1he defendant company, such applications as his own companies rejected. The course of business between them was for 0. to forward the application to S., and, if it was accepted, S. sent 0. a policy, which, upon the payment of a premium, 0. delivered, and was allowed a percentage of such premium as his commission. One such application was made by a mortgagee for the purpose of insuring his interest in the mortgage, but, through a mistake as to the law applicable to the case, the application was made to read as though it were one made by the mortgagor, payable, in case of loss, to the mortgagee. The policy was issued containing the name of the mortgagor as the assured. On a bill being brought by the mortgagee to reform the policy, alleging that, it was issued to the mortgagor through the mistake of C., who is averred to have been the agent of the defendant; that there has been a loss and due proof thereof, and praying payment of the loss and general relief, held, that (1) on those facts 0. was the agent of the defendant; (2) a mistake brought about by the erroneous representations as to the law in the premises, of such agent, a lawyer, while acting as agent, may be corrected in equity.</p> <p>2. Principal and Agent.</p> <p>The principal is bound by the knowledge of his agent obtained in the course of his employment.</p>

By the policy in suit, Abraham Cole was insured $1,500 on his two-story dwelling-house, ell, and barn connected, occupied in the summer season for a summer boarding-house, and in the winter by the assured as a dwelling-house, situated near Gorham, New Hampshire, and $500 on household furniture in the house and ell, payable in case of loss to George B. Sias, “as his interest may appear.” It was stipulated that “if the assured shall have, or shall hereafter make, any other…

<p>1. The International Bridge Company — Act op 1870.</p> <p>Tlie act of congress passed in June, 1870, providing, among other things, that “all railway companies desiring to use the said bridge shall have and be entitled to equal rights and privileges in the passage of the same, and in the use of the machinery and fixtures thereof, and of all the approaches thereto, under and upon such terms and conditions as shall be prescribed by the district court of the United States,” etc., does not confer upon such court jurisdiction over a controversy relating solely to the compensation which is due the corporation for the use of the bridge.</p> <p>2. Power to Regulate Commerce.</p> <p>Where a corporation incorporated by the legislatures of Canada and New York for the purpose of building a bridge, constructs it, in part, over public navigable waters of the United States, it seems that congress, under the power conferred upon it by the constitution to regulate commerce, has the right to prescribe what compensation it shall charge for its use.</p> <p>3. Congress — Delegation op Authority — Judicial Functions.</p> <p>As the exercise of judicial functions alone is involved in determining the amount of such compensation, congress can confer the authority necessary for" this purpose upon a federal court.</p> <p>4. Charter Rights — Legislative Interference.</p> <p>As the right to charge such tolls as the judgment of its officers might warrant constituted the essential value of such company’s franchise, it will not be inferred that congress intended to interfere therewith, if the language of the act is consistent with a less violent purpose.</p>

<p>1. Practice — Act of 18Í5 — Construction—Removal—First Term.</p> <p>A rule of tlie supreme court of New Hampshire provides that, unless 30 days before the beginning of the term the plaintiff has given to the defendant notice in writing to be prepared for trial, the defendant shall be entitled to a continuance at the first term, upon satisfying the court by affidavit that he has probable ground of defence, and that he intends, in good faith, to try the case. The plaintiff has a similar right.</p> <p>In this cause the defendant has a defence, and intends, in good faith, to try it. He was not asked to file an affidavit, and filed none. It is not usual to require one. Neither party gave the notice of trial 30 days before the beginning of the term. The cause was continued at the first term. At the next term, the defendant asked to have the cause removed to this court, And copies of ilie pleadings have been duly entered here. The plaintiff moves to remand the cause on the ground that the petition was filed too late. Haiti, that under the act of 1875, (18 St. 471, § 3.) requiring the petition to be filed before or at the term in which the cause could first be tried, the petition in this case was filed in time, as it was filed at the first regular trial term.</p> <p>2. Same.</p> <p>Lt seems that if the notice were an ordinary one, or the setting down for trial of a cause which is ready, the decision would have been different.</p>

<p>1. MuNtotpau Boros — -Ultra Yikks.</p> <p>Tlie city oí Ottawa was empowered by its charter to issue bonds to an unlimited extent for corporal e purposes, if such issue was sanctioned by a vote of the people. An ordinance was passed by the city council authorizing the mayor of the city to borrow money “ to be expended in developing the natural advantages of the city for manufacturing purposes,” and providing “ that bonds of the city be issued therefor.” This ordinance was submitted to the people at an election called for that purpose, and a majority of the votes were cast in its favor. The bonds were issued, and upon their becoming duo the city refused to pay them. This action was brought by a holder of past-due bonds, to which the defence set up is, in substance, a denial of the power of the city to issue them, and an allegation that the plaintiff holds the same charged with notice of such want of power. Held: (1) The city, in issuing these bonds for the purpose above specified, was acting within its powers; (2) this being so, it is immaterial whether or not the plaintiff, a bona fide purchaser for value, knew for what purpose the bonds were to be issued.</p>

<p>Motion for New Trial.</p>

<p>1. Testamentary Charges upon Real Estate.</p> <p>Only Wien there has been a complete disposition of the personal property by the testator, will it be presumed that he meant to charge the land with the payment of a legacy, or the raising of money to be applied to a specific purpose.</p> <p>2. Concurrent Jurisdiction — Eederal Court — State Court.</p> <p>Of two courts, the one a federal court and the other a state court, having concurrent jurisdiction, the one first gaining complete jurisdiction over the controversy is entitled to retain it.</p> <p>A particular will construed.</p>

<p>1. Import Duties — Fraudulent Invoices — Rev. St. $ 2854.</p> <p>In a proceeding, by information, to obtain judgment of condemnation against certain imports as forfeited for alleged violations of certain provisions of the statute regulating importations from foreign countries, held, that, as the invoice contained a discount that was not allowed the purchaser, under the provisions of section 2854 of the Revised Statutes, the property was forfeit.</p> <p>2. Same — Same.</p> <p>The fact that the property, i. e., malt, was invoiced, for purposes of importation, at the rate and upon the scale of 36 pounds to the bushel, that being the scale upon which it was sold in the country from which it was imported, under an arrangement to sell the same in this country upon a scale of 34 pounds to the bushel, that being the scale usually adopted here, does not constitute a ground of forfeiture.</p> <p>3. Same — Rev. St. § 2907.</p> <p>Where the railroad company, owing to competition, hauled the malt in question from the malt-house, the place of its manufacture and where it was stored when delivered to such railroad company for transportation, to the cars at the station, free of charge, no forfeiture ensues under section 2907 of the Revised Statutes for not adding the expense usuallv incurred for such services, as there has been none incurred to add.</p> <p>4. Rev. St. § 2864.</p> <p>Tlie invoice required by section 2864 oí the Revised Statutes is false within the meaning of the statute if untrue, simply. The existence or non-existence of a fraudulent intent is immaterial.</p> <p>5. Ditties — Customs Owioebs.</p> <p>Fraudulent practices in connection with the customs duties are not legalized by being treated as legal and regular by customs officers.</p>

The defendant was indicted for depredations upon property belonging to the steam-boat City of Vicksburgb, plying between St. Louis and New Orleans, which was wrecked at Asbport, Tennessee, in July 1880; this ease being one of a great number for the same offence now pending in this court.

<p>1. BANKRUPTCY — INDIRECT TRANSFERS — KEY. 0T. § 5110, SUBD. 9 — Rn)V. St. § 5129 — Discharge.</p> <p>Upon his own petition, P. was adjudged a bankrupt. The specifications in opposition to his discharge state, in substance, that, within six months previous to the filing oí his petition, he suffered a judgment to be obtained against him by default, in favor of his brother, upon a pretended claim for borrowed money; that upon execution on this judgment all of the bankrupt’s property was sold and the proceeds applied on this judgment; that the bankrupt was not indebted to his brother in any sum whatever; and that the judgment and execution were fraudulent and collusive, and for the purpose of preventing the property seized from coming to the hands of the assignee and being distributed among his creditors. Held:</p> <p>(1) The case falls under subdivision 9 of section 5110 of the Revised Statutes, as an “ indirect” transfer, made in contemplation of bankruptcy, to prevent the property from coming into the hands of the assignee.</p> <p>(2) The bankrupt is entitled to no shorter period of limitation than the six months prescribed by section 5129 of the Revised Statutes in analogous cases.</p> <p>2, Rev. St. § 5110, surd. 9, Construed.</p> <p>By the words “indirect” transfer, tire framers of the statute intended to include every device of the bankrupt by which the same purpose and effect are accomplished as by a direct transfer.</p>

<p>In Bankruptcy.</p>

<p>1. Ke-Issüe No. 4,372 — Driven Welds — Validity.</p> <p>Re-isued letters patent No. 4,372, granted May 9, 1873, to Nelson W. Green, i'or improvement in process in constructing artesian wells, held, valid.</p> <p>2. Claim — Construction—■ Process- — Novel Element — Non-Plowing Well— New Principle — Plowing Well.</p> <p>The. claim of tlie patent, to-wit, “theprocess of constructing wells by driving or forcing an instrument into the ground until it is projected into the water, without removing- the earth upwards, as it is in boring, substantially as herein described,” held, to be a claim to aprocess. Tlio novel element in the process consists in driving a tube lightly into the earth, without removing the earth upwards, to serve as a well-pit, and attaching thereto (in a non-flowing well) a pump, so that the process puts to practical use the new principle of forcing the water, in the water-bearing strata of the earth, from the earth into a well-pit, by the use of artilicial power applied to create a vacuum in the water-bearing strata of the earth, and, at the same time, in the well-pit. In a flowing well, to make the hole by displacement, and insert the tube and have the water flow, develops the process.</p> <p>3. Non-Flowing Well — Process—Infringement.</p> <p>In a non-flowing driven well, the use, to procure water, ot a- pump is a use of the process, and an infringement, although the person using the well and the pump and the process may not he the person who caused the rod to bo driven, or the hole to be made, or the tube to be inserted, or the pump to bo attached.</p> <p>4. Inventor — Scientific Principle — Omission in Specification.</p> <p>An inventor may be ignorant of the scientific or physical principle upon which his process acts, or may think lie knows it and yet be uncertain, or he may be confident as to what it is and yol others may think differently, and lie may, through accident or design, omit to sot it forth in the application; yet if he sets forth the process or mode of operation which ends in the result, and the means for working out the process and mode of operation, and if in such description the tiling is so set forth that it can be reproduced, such omission will not vitiate the patent.</p>

<p>In Admiralty. Petition for limitation of owner’s liability, etc., under sections 4283, 4284, 4285, Rev. St.</p>

<p>1. Salvage — Extbaoisdinaby Bepaibs — OonteibutioN.</p> <p>Where such a casualty happens to a vessel as requires salvage services to he rendered and extraordinary repairs to bo made, owners of the goods on board, if called upon to do so, must contribute to the expense thereby incurred, provided such casually was due in no way to the previous negligence of the master.</p> <p>2. EVIDENCE — BüBDEN OE PltOOE'.</p> <p>The burden of making out negligence is on such owners.</p>

These are actions by the holders of coupons attached to certain bonds issued by the city of Fond du Lac in payment of a subscription made… Held: and notice of the time and place of holding the same having been given in all respects as required by law and the act aforesaid, the name of the said Milwaukee & Northwestern Eailway Company was changed to that of the Northwestern Union Eailway Company, by unanimous vote of the stockholders at a regular meeting thereof, held at the…

<p>Ejectment. Motion for New Trial.</p>

Massey, late of the city of Philadelphia, died on the eighth day of June, 1863; that he left surviving his widow, Anna K. Massey, and issue, three children, and the issue of a son who died in his life-time.

Ejectment. Sur motion ex parte defendants for a new trial. . The plaintiff, the grandchild of Joseph Thornton, deceased, and only surviving heir, brought this action to recover a tract of land in Fay-ette county, Pennsylvania, devised by Joseph Thornton to Eliza Ann, natural (laughter of his son Nelson, subject to limitation, as expressed in the will. Defendants claimed title under conveyance from the surviving husband of Eliza Ann.

<p>In Bankruptcy.</p>

<p>1. BANKRUPTCY — FlNAL DIVIDEND — SECTION 5093, Rev. St.</p>

<p>1. Re-Issue No. 8598 — Tubular Lanterns — Motion for Preliminary Injunction — Validity—Infringement.</p> <p>■ Re-issued letters patent No. 8598, granted February 25, 1879, to John H. Irwin, for improvement in tubular lanterns, upon a motion for preliminary injunction, held valid, and infringed as to its first and second claims by lanterns constructed under letters patent No. 221,409, granted November 11, 1879, to Leonard Henkle, and letters patent No. 232,295, granted September 14, 1880, to > Russell B. Perkins, and motion granted.</p> <p>2. Same — Same-Infringement.</p> <p>Complainant’s lantern — having a closed reservoir below tbe burner-cone; a perforated plate above such reservoir; a globe or protector surrounding the flame, with a slight inward deflection at its upper end; a tube suspended slightly above the top of the globe, ending below, with an annular flange or plate curved downwardly, and connected above with two or more tubes, which curve down along the length of the globe and enter the closed reservoir below, whereby the heated air from the flame causes an ascending current within the globe, which, when it reaches its top, ejects the products of combustion, and is forced, together with external air injected between the annular plate and the top of the globe, into the tubes, is conducted thereby to the closed reservoir below and fed to the flame, thus providing a continual supply of fresh air to the flame; the perforated plate admitting external air at the lower part of the device, tending to cool the globe and assist in creating the ascending current within the globe — held infringed by defendant’s devices, in which the i tubes are connected with the closed reservoir below the burner-cone, but are outside the globe, disconnected with each other, and permit the injection ! and supply of external air only to the flame.</p> <p>3. Motion nob Pbeltminary Injunction — Inebingement Must be Established —Yatjdity—Pbkvious Judicial Construction — Public Acquiescence.</p> <p>Upon a motion for preliminary injunction the complainant must establish the point of infringement beyond a reasonable doubt, and as this question often, depends upon the proper construction of the patent, its claims should ordinarily have been construed by a court of competent jurisdiction, or should have been practically construed by the consent and acquiescence of that part of the public which is cognizant of the extent of the monopoly.</p>

<p>1. Patent No. 42,580 — Mode of Pitching Barbels — Hot Air — Erausch Machine — Superheated Steam — Infringement.</p> <p>Letters patent No. 42,580, g anted May 3,1864, to J. P. Holbeck and Matthew Gottfried, for mode of pitching barrels, operating by driving a blast of hoi aw, by means of a blower, thr ugh a bed of ignited coals into a pipe, whence it is conducted into the barrel to be pitched, held, not infringed by the Krausch machine, which opera s by the introduction of superheated steam into the casks to be pitched.</p> <p>2. Patent Covering a Combination Device as an Entirety — Replacing Worn-o^t Parts — Infringment.</p> <p>Where a patent- covers as an entirety a machine composed of several separate and distinct parts, the purchaser of such machine from the patentee will not infringe by replacing such parts as wear out as often as is necessary, so Rng as the identity of the machine is retained. If the patent is for a separate and distinct element of the combination, a purchaser will infringe by replacing such element.</p>

In Equity. Bill for injunction and account. Final hearing oh pleadings and proofs. The Fischer patent is described in the opinion.

<p>1. Patent N"o. 157,395 — Shoe Buckle — Anticipation—Validity.</p> <p>Letters patent No. 157,395, granted December 1,1874, to Calvin Hersome, for improvement in shoe buckles, held, not anticipated by letters patent No. 48,135, granted June 6, I860, to John E. Smith, and letters patent- No. 117,347, granted July 25, 1871, to Samuel O. Talcott; also, held valid.</p> <p>2. Same — Same—Sam is — In eringemknt.</p> <p>Complainants’ device, consisting of an ordinary buckle in combination with a plate hung- on tho cross-bar thereof, formed with a prong at each end, which, after being inserted in the leather, are bent down towards each other and hold the buckle in place, held, not anticipated by tho Smith buckle, in which the permanent connection with the strap is not made by clamping, but by inserting the end of the plate, which is formed with two projections, into a slit, and turning it half around; or the Talcott buckle, having a metal box to receive the free end of the strap, such box being firmly clamped to the strap ; and held infringed by defendant’s buckle, in which the prongs are arranged one behind the other, so that their points do not bend towards each other.</p> <p>3. Patent — Small Articles — Slight Dieeerences — Adavtation to Needs oe Commerce.</p> <p>In patents for small articles, slight, differences are often important, and if such things are patentable at all, it must always be in virtue of a more useful adaptation to tho needs of commerce, by small changes of structure, which in a great machine might bo merely alternate modes of reaching' a part of a general result.</p>

<p>1. Ingalls & Budding’s Patents — Boot and Shoe Machine — Inebingement.</p> <p>If tlie correct construction of Ingalls & Budding’s patents require tliat one element of tlioir combination shall consist of a holding mechanism in which a shoe, while being polished, is held more or less rigidly, one who dispenses with such mechanism may or may not effect a practical improvement, but he has done that which distinguishes his machine from the class to which these patents refer, and has not appropriated their inventions.</p>

<p>1. Priority — Maritime Liens — Material Men — The Tiurarrn — The Globe— Limns nor Successive Torts and the Order ojf their Payment — Laches.</p> <p>Whore a judgment for damages to a tow was recovered against a tug for negligence occurring on tlie sixth of November, and another judgment for similar acts of negligence, which occurred on the twenty-fifth of November, was recovered by other libellants, but the libel and the process in the latter case were dated December 23d, and in the former case December 24th, and both processes were returned by the marshal as served by arrest of the vessel on the same day, and the damages awarded to the latter exceeded the appraised value of the tug paid into the registry,—</p> <p>Held, that the rule in this district as to priority of payment of claims of material men, making the time of the service of process the test, does not apply to the case of successive claims for torts.</p> <p>The Triumph, 2 Blatchf. 433, note; The Globe, Id., discussed.</p> <p>Held, that if that rule were applicable to cases of successive torts, it would not give any priority to either party in this case, because upon the proofs the process inboth cases was served at the same time ; that there is no presumption from the prior date of filing the libel, or the prior date of the process, that the process in the first case was served before that in the second, the marshal's returns merely showing service on the same day; that there is no reason or authority for distributing the fund between the two libellants; that the party suffering damage from the first tort acquired a lien therefor on the vessel to the extent of his damage, which interest is quasi proprietary in its nature, but without the power or right, except by enforcing the lien through proceedings in rem,, to prevent the vessel from being used in commerce, and subjected to the attendant perils of navigation ; that the interest in the vessel of this prior lienholder, like the interests of the owners, is subject to the rule of the maritime law, which makes the vessel in solido, and without regard to the particular nature of the proprietary interest therein, liable in rem for injuries done by the vessel through the torts of the master and mariners, and on this ground the party suffering the second damage is entitled to priority of payment.</p> <p>Also field, that while the failure of the libellants, who suffered the first damage, to libel the tug before the voyage commenced, out of which the second cause of damage arose, was not laches operating to forfeit their lien, yet they took the chance of the tug incurring new liabilities, according to the principles of maritime law, and thus rendered the equity of the subsequent lienholder the stronger.</p>

<p>1. Canal-Boat in Tow op Tug on Long Island Sound — Seeking Shelter in Storm -Want on Anchor — Negligence—Direct Damage — Cutting Boat Adrift - Scarcity of Duel — Admission in Pleading.</p> <p>Where a tug, having in tow a canal-boat loaded with coal, started from New London for New York in November, the weather being fair and the sea smooth, and wljen oft' the westerly end of South Sand shoal was compelled to seek shelter on account of an increasing easterly storm, the boat becoming unmanageable and having broken her tiller, and put in under tlie lee of Duck island about 2 o’clock p. m., where she circled round and round to avoid drifting ashore, the boat having no anchor, and that of the tug being too small to hold both vessels, and althorigh she was in a safe place, and the storm had not abated, resumed her course about midnight for New Haven, but was soon compelled to cut the boat adrift, after taking her master and his baggage aboard, and the boat was found by her master the next day in Guilford creek, uninjured, in charge of salvors, who had found her in Guilford harbor, and brought her in and supplied her with an anchor, but, she subsequently dragged her anchor in a southerly storm, and was badly strained by getting across the channel,—</p> <p>Held, on the evidence, that the master of the boat used reasonable diligence and good judgment in trying to secure and protect his boat from injury after she was discovered in the possession of the salvors, and that the subsequent . damage was not caused by his negligence, and that such subsequent damage was the natural and probable result of her being cast adrift by the tug; that the want of an anchor, even if a defect in the equipment of a canal-boat on Long Island sound, was fully supplied by the one furnished by the salvors.</p> <p>Also held, on the evidence and pleadings, that the cause of the tug leaving the lee of the island was not due to the change or threatened change of wind to the southward, but to her scarcity of fuel,’ which was not sufficient to allow her to reach New Haven if she remained there longer, and that the want of an anchor on the boat did not contribute to diminish the supply of fuel, as the situation was such that the tug could not have safely allowed her fires to run dowii; that it was clearly negligence in the tug to attempt to tow a loaded canal-boat from New London to New York, at that season of the year, with so short a supply of coal that in case of accident or stress of weallier she could not lie over under si earn, in a placo of shelter, in the course of her voyage, for the space of something more than 10 or 12 hours ; and that to this negligence was due the abandonment of the boat, and the damage which followed; and the tug, being wholly in fault, is liable therefor.</p> <p>Where the t estimony showed that before tho tug changed her course for Duck island, and at a point where she could have made Saybrook harbor, the sea became so rough that she could not safely continue her voyage,—</p> <p>Held, that the subsequent disaster and damage were attributable to the tug’s failure to take shelter in 8avbrook harbor, which she ought, under the circumstances to have done; and that on this ground also the libellants are entitled to a decree.</p>

<p>L Public Sale of Condemned Vessel — Purchase by Master — Ratification BY OWNERS.</p> <p>A. owned nine-sixteenths of a brig, B. and C. each one-eighth, and other parties the balance. While on a voyage with A., as master, the brig was damaged by a storm, and on report of the surveyors was condemned, and by order of the master sold for whom it might concern at public auction. A., through a third party acting in his behalf, became at the sale the purchaser of the brig. B., as the agent of A., afterwards sold the brig to C., who sold her to the defendant, against whom A. brought an action of replevin for the brig. Held:</p> <p>(1) That such purchase by the master, though made through another, was invalid, and did not divest the other owners of their interest, unless subsequently ratified by them.</p> <p>(2) That B. and C. had ratified and confirmed the sale, the one by selling and the other by purchasing the brig as the property of the plaintifE, with knowledge of the indirect purchase by A. at the sale, and the consequent invalidity of his title.</p> <p>(3) That as the defendant claimed title through B. and 0., and claimed no rights under the other owners, it was immaterial in this action whether the latter had ratified the sale or not.</p> <p>2. Sale by Agent — Adverse Interest — Revocation of Authority — Lien-Waiver.</p> <p>A. was indebted to the firm of B. & Co., composed of B., C., and X., for advances on the brig’s account, and B. was individually responsible to the firm for the debt. B. held a power of attorney from A. “to transact any and all business in relation to my property and interest, to sell, transfer, and deliver such of my property to such persons and for such sums and on such terms as to him, my said attorney, may appear proper and expedient, and to make and execute all necessary bills of sale and acquittances therefor.” This was given by A. when he expected to be absent from the country, and the agency was created solely for his own advantage, and was not intended to be coupled with any interest or as security to the attorney. Acting under this power of attorney, B. sold the brig at private sale to 0. for her full cash value, and the amount was credited to A. on the books of the firm. C. afterwards sold the brig at public auction, to the defendant, who was present at the sale and heard A. forbid the sale and claim the brig as his property. In replevin by A. against the defendant for the brig, held,—</p> <p>(1) That B., as agent, in thus disposing of the vessel to C. to pay a firm debt for which he was individually accountable, was acting in a matter in which his own personal interests were in conflict with the interests of the plaintiff, and the sale was therefore invalid.</p> <p>(2) That, if the adverse interest of the agent did not invalidate the sale, it was invalid for the reason that the power of attorney had been revoked, as to the brig, before the sale, by a letter of the plaintiff to B. and C., directing them as to the place and manner of keeping the brig until his return from abroad.</p> <p>(3) That 0., being cognizant of the power of attorney and the letter of revocation, could acquire no title by the sale, and the defendant, having received notice of the plaintiff’s claim, could have no better rights than 0. to the brig.</p> <p>(4) That the defendant acquired no lien upon the vessel, either for those repairs made by order of 0. or for those made by himself as her owner, or for the dockage of the vessel.</p> <p>(5) That the purchase of the vessel by the defendant from 0., by hill of sale, with covenants of warranty of title, and afterwards taking possession of her, claiming absolute ownership, and dealing with her in all respects as his own, was a waiver of any lien for repairs done by C.’s order, if any such lien ever existed.</p>

<p>1. Damage to Tow — Navigating Channel of Harbor — Negligence—Compass —Release—Insurers—Interest of Insured.</p> <p>Where the steam-tug F. Q-. F., while attempting to get out of Stamford harbor on her way to Norwalk, having in tow a barge with lumber, ran her on Forked reef, at the mouth of the harbor, in the morning of November 25th, thereby breaking through her bottom and causing her to fill, and the tug at the time was outside and east of the channel, and heading S. by E. instead of S. W., her true course, and the libellants, an insurance company, having paid for the repairs, brought suit, and the claimants contended that the accident was due to a snow-storm, which obscured the view of the landmarks,—</p> <p>Held, on the evidence, that the fact of the tug getting so far out of the channel in so short a distance was not due to the obscuring of the lights by the storm as the primary cause, but to the pilot not keeping a good lookout, and proceeding cautiously, with the aid of a good compass; that the compass was not used as claimed by the pilot; that the accident was wholly due to the fault of the tug, and the libellants were entitled to recover.</p> <p>Also held, that the allegation of the claimants as to the libellant’s agreement to release the tug upon condition that she should unload the cargo, render certain assistance to the wrecking steamer, etc., was grossly improbable, under the circumstances shown to exist at the time, and that the authority of the agent of the underwriters to make the agreement was not proven.</p> <p>Held, further, that the libellants having paid the loss, and thus being entitled to the damages, could maintain a suit in admiralty, without proof of abandonment or assignment by the assured; that the answer, having admitted that the libellants were the underwriters on the hull, did not fairly raise the issue as to the right of the assured, who had hired the barge, to insure for the owners.</p>

<p>1. AdMXEAI/I'T— COLUSION.</p> <p>A tug having two scows in tow proceeded down the Hudson river at a time when the tow of a steam-boat was mainly broken up, and the boats comprising the tow were comparatively helpless, awaiting tugs to carry them off. Those on board the tug, though having ample opportunity to notice this condition of affairs, proceeded in the direction of the tow, without shortening the 200 feet of hawser with which she was towing her scows. The tug passed without colliding, but the first of her two scows struck the libellant’s boat, inflicting serious injury. Held, that the tug was in fault in this: that, in lack of sea-room, she did not shorten her hawser and get her tow under control; if there was sea-room, for colliding at all.</p> <p>2. Sam — Samis—Rev. St. j 4289.</p> <p>A vessel employed in navigation upon the Hudson river, and not elsewhere, is not within the class excepted by the provisions of section 4289 of the Revised Statutes, limiting the liability of the owners of vessels used m river or inland navigation.</p>

<p>1. Bxceptioits to Libel — Lien Under the Laws of New Yore.</p> <p>Exceptions being filed to a libel claiming a lien upon a vessel for repairs and supplies in the port of New York, under tlie statute of the state, alleging that no facts were stated sufficient to constitute a cause of action, that no lien existed, and that the cause of action was not one of admiralty and maritime jurisdiction: Held, that the exceptions were not well taken; that the filing of i specifications was not a necessary averment where it appeared that the vessel had not left the port; and that the statement of the libel that the work was ■ done on a domestic vessel, in her home port, at the request of the owner, and the claim was sought to be enforced within a month, were sufficient to create a lien under the statute of the state of New York which may be enforced in the admiralty. ,</p>

In Admiralty. Appeal by owners from a decree of the district court dismissing their petition for limitation of liability. The contents of the petition and plea, with the testimony and opinion of District Judge Brown, are given in the report of the case in the district court, 5 Fed. Rep. 813.

<p>1. Freight — Delivery—Abandonment.</p> <p>Where a cargo of coal was transported from Port Johnston, New Jersey, to New York, and, the boat being sunk at the consignees’ dock after arr.val, the cargo was abandoned by the consignees to the underwriters, who raised the , boat and ordered it, with the coal, to Brooklyn for sale to S. & Co., and the master being refused payment of freight by the consignees and ¡3. & Co., who received it, brought suit therefor and attached the coal in Brooklyn: Held, that, the boatnot having been abandoned,' the contract of affreightment was not , terminated-.by the abandonment of the^cargo to the underwriters; and the subsequent delivery of thé' coal at another dock was such a performance of the contract as entitled the master to his freight. That, under the custom of delivery proved, the lien of the master upon the cargo for his freight was not waived or lost by the delivery to S. & Co. without prepayment of freight, but remained in full force.</p>

<p>1. DISTRICT Court Judges — Issues of Fact.</p> <p>Judges oí the district courts of the United States are not acting in a judicial capacity when engaged in finding issues of fact.</p> <p>2. Same — Questions of Law — Appeals.</p> <p>Questions of law, arising in such court upon fact3 so found, are not open to revision upon appeal.</p> <p>3. Laws of New York, (1869,) e. 907, p. 2305, § 4, Construed.</p> <p>The provisions of chapter 907, § 4, of the Laws of Now York of 1869, as to interest on certain bonds ilnd the time of its payment, is directory only.</p> <p>4. Practice in Federal Courts.</p> <p>The attorneys for the respective parties to a suit at law, brought in 1he district court of the United States, by a written stipulation waived a jury trial, and agreed that the court should hear the action “without a jury.” The action was tried; a written decision was filed, finding certain facts and certain conclusions of law thereon, and a judgment entered. The cause was afterwards taken to the circuit court ou a writ of error. Held, that the rulings on findings of fact, and the conclusions of law connected therewith, were not open to revision, as facts so found were found in a way unknown to the common law, nor yet provided by statute. ,</p>

<p>1. Equity Pleading — Federad Courts.</p> <p>In the federal courts legal causes of action cannot he joined with equitable in the same bill.</p> <p>2. Same — Multifariousness.</p> <p>A bill is not demurrable on the ground of multifariousnoss when the joinder therein of two distinct matters prevents a needless multiplicity of suits, and neither inconveniences the defendants nor causes them additional expense.</p>

The jury, by a special verdict, found substantially the following facts: Erskine Hazard died February 14, 1865, leaving personal estate valued at $163,046.42. By his will he gave to his wife the full use and enjoyment of all his estate and property during her life, and he directed that at her death the remainder of his property be divided equally in shares ainong such of his children as might then be living and the families of those who might have died leaving issue.

The jury, by a special verdict, found substantially the following facts: Singleton A. Mercer died October 14, 1867, leaving personal estate valued at $133,866.08.

<p>1. Virginia Military District in Ohio — Act or Congress op March 23,1804 —Construction op — "When Entries, Surveys, and Returns Required to be Made.</p> <p>By the act of congress of March 23, 1804, entitled “An act to ascertain the boundary of the lands reserved by the state of Virginia,” etc., in Ohio, for the satisfaction of her officers and soldiers, and to limit the period for locating the same, a completed location within three years, and a survey and return thereof, with the original or certified copy of the warrant on which they were founded, to the general land-office, within five years from the passage of the act, were made conditions precedent, without compliance with which no one entitled to bounty land in that district could obtain a patent; and by section 3 of that act all lands in the reserved territory not thus effectually appropriated within these prescribed times should thenceforth cease to constitute a part of the reserved territory of the Virginia military district, should be released from all claims for such bounty lands by virtue of any location or survey not then completed and returned, and should become thereby the property of the United States, to be disposed of as part of its public lands, free from any trust in favor of the soldiers of Virginia.</p> <p>2. Same — Same—Subsequent Statutes — Extending Time op Entry, etc. — Act op 1804 Revived and Continued.</p> <p>The subsequent statutes extending the period of time for making valid entries, surveys, and returns of surveys, so as. to entitle the party to a patent, although the third section of the act of March 23,1804, was'not repeated therein, are to be taken as reviving the entire law, including the third section, as if the latter had been incorporated with each new enactment, so that the consequences of a failure to take the steps required to procure a patent within the periods from time to time limited, prescribed in the third section, follow and apply to each successive extension of the time of grace.</p> <p>3. Same.</p> <p>All entries and surveys made prior to January 1, 1852, and of which no return, with the original warrant or a certified copy thereof, had then been made to the general land office, are vacated and made void, so that they cannot lawfully serve as the basis of patents; the land covered by them lapsing into the general body of the public lands and no longer constituting any portion of the . Virginia military reservation of ^bounty lands.</p> <p>4. Same — Entby and Survey Gave Conditional, not Absolute, Estate.</p> <p>Tlie entiy and survey did not vest tlie party with an equitable estate which congress cannot deprive him of by legislation. His rights were not vested absolutely, but only subject to the conditions prescribed by the statutes, under which alone his rights arose; and, having failed to comply with the conditions prescribed to perfect his estate and title, his inchoate rights never ripened into an indefeasible title.</p> <p>5. Equity — Recovery oe Possession of Land by Equitable Owner — Legal Title in United States.</p> <p>A bill for the recovery of possession of land, but asserting no equity against the defendants in possession except that they are in possession without title to the land which in equity belongs to complainant, the legal title to which is in the United States, cannot be entertained.</p> <p>6. Jurisdiction of United States Courts Over Surveyor — Virginia Military District.</p> <p>The United States courts have no jurisdiction over the principal surveyor of the Virginia military district in the discharge of his duties, and have no right to control the public records lawfully in his custody.</p> <p>Galt v. Galloway, 4 Pet. 332, followed.</p> <p>7. Equity — Statute of Limitations — Legal and Equitable Titles.</p> <p>In equity, as well as at law, a statute of limitations is a bar when the conflicting titles are adverse in their origin, and one was equitable and the other legal.</p> <p>8. Statute of Limitations — Adverse Possession — Entire Tract Claimed.</p> <p>One who enters upon land under color of title, intending to take possession of the entire tract, no part of which is held adversely at the time of his entry, is deemed to be in possession to the extent of his claim.</p> <p>9. Ohio Statute of Limitations — Real Actions — When to be Brought After Removal of Disability.</p> <p>Under sections 4977-8 of the Revised Statutes of Ohio, limiting the times within which actions for the recovery of the title or possession of real estate may be brought, the action must be brought within 10 years after the disability is removed, unless in cases where that period would terminate less than 21 years from the time the cause of action accrued.</p>

<p>1. Equity — Bill Quia Timet — Requisites oe.</p> <p>In order to maintain a bill quia timet, the complainant must have a clear legal i and equitable title connected with possession, and the pretended title or right which is alleged to be a cloud upon his title must not only be clearly invalid or inequitable, but must be such as may, either now or in the future, embarrass the real owner in controverting it.</p> <p>2. Virginia. Military District in Ohio — Titles to Lands in — .equity Practice in U. S. Courts — Bill to Quiet Title — Remedy at Law — Action under Section 5779, Ohio Rev. St.</p> <p>On March 17, 1807, M. entered 100 acres of land in the Virginia military district in Ohio, under a Virginia military warrant, which was surveyed, and, on November 28,1823, and April 6,1824, the entry and survey were recorded in the surveyor’s office of the district. In July, 1877, the entry and survey were returned to the land-office and a patent issued thereon to M.’s heirs. In 1842 these lands, standing in the name of M., became delinquent for taxes and were sold to A., to whom a tax deed was executed and through whom the complain-i ant claims title. His predecessors in title entered into actual possession in 1849, since which time their and his possession has been under color of title, adverse, notorious, and uninterrupted.</p> <p>It seems (1) that the entry and survey not having been returned to the land-.office until after January 1,1852, that they were vacated and annulled; (2) that the patent to M.’s heirs was issued without authority of law, and is void; (3) that the legal title is still vested in the United States; (4)'that the tax title, being dependent upon the entry and survey of M., falls with them, and that the complainant has only a naked legal possession.</p> <p>(See opinion of Mr. Justice Matthews in Fusséll v. Hughes, supra.)</p> <p>■ Held, (1) that a bill quia timet, as known in the chancery practice, cannot be maintained; (2) that, although section 5779, Rev. St. of Ohio, mayauthor-ipe the complainant to commence an action for the determination of the adverse interest of the defendant, the complainant has a complete and adequate remedy at law, and cannot maintain a suit in equity in the courts of the United States to determine such interest.</p>

<p>1. Criminal Law — Federal Officers — Removal of Cases — Rev. St. § 643— Parties.</p> <p>The state authorities are the proper parties to continue the prosecution of officers of the United States, against whom a prosecution was commenced in a state court for an act done under the provisions of title 26, “The Elective Franchise,” of the Revised Statutes, and removed by them, under the provis-i ions of section 643 of the same statutes, to the circuit court of the United States.</p> <p>2. Duties of United States Attorneys.</p> <p>It is the duty of the attorneys of the United States to act as counsel for such defendants.</p> <p>8. Rev. St. § 643, Construed.</p> <p>Section 643 of the Revised Statutes contemplates a change of tribunal, not of prosecuting officers.</p>

<p>1. U. S. Pension Laws — ClaimAgent—Overcharging- eor Pees — Section 4785, Rev. St., Repealed — Indictment under Section 5485.</p> <p>The only provision in tiie title of the Revised Statutes pertaining to pensions, limiting the fee which an agent or attorney might lawfully demand and receive for the prosecution of a pension claim, (section 4785,) having been repealed by the act of congress of June 20, 1878, an indictment under section 5485, for receiving a greater compensation “than is provided for in the title pertaining to pensions,” cannot be maintained.</p> <p>2. Same — Indictment eor Withholding Pension Monet.</p> <p>Notwithstanding the law requires all pension moneys to be paid directly to the pensioner, an indictment charging the defendant with unlawfully withholding pension money due a pensioner, held good on demurrer</p> <p>JJ. 8. v. Connolly, 1 Fed. Rep. TVs), followed and approved.</p>

<p>On Demurrer to Indictment.</p>

<p>1. Session Laws op Connecticut op 1860, c. 348, § 5, Construed — Liability op SuReties Thereunder.</p> <p>Under section 5 of chapter 348 of the Session Laws of Connecticut of I860, sureties of an assignee in insolvency are liable upon their bond in case of their principal’s default, though it consists in refusing to obey an order made to subvert the assignment. Quare, whether or not an accounting before the county judge is a prerequisite to an action.</p> <p>2. Session Laws op 1877, e. 466, Construed — Actions against Sureties.</p> <p>Chapter 466, of tho Session Laws of Connecticut of 1877, did not make an accounting before somo'specified court a prerequisite to an action against such sureties.</p> <p>3. Same — Rights op Sureties as Appeoted Thereby.</p> <p>No substantial rights of such sureties were impaired by the repeal of the act of 1860 by the act of 1877.</p>

<p>1. WitNess — Reference—Referee’s Pees — Particular Order Construed.</p> <p>. - Tlie fees of tlie register, to whom a reference is taken under an order directing a witness, who had refused to answer certain questions, to answer each and all of them, etc., “ unless the said James W. Gillies shall, within five days from the service of a copy of this order upon him, or his attorney, take an order of reference herein to Edgar Ketchum, Esq., register,” etc., must be paid in the first instance by the witness therein referred to, as such reference is taken for his benefit, not for the information of the court.</p> <p>2. Officer of the Court — Agreements Affecting His Bight to Legal Compensation — BtTLE.</p> <p>An agreement, that is relied upon to vary the right of an officer of the court to legal compensation is not to be regarded, in case.a dispute arises as to its terms, unless it is in writing or entered in the minutes.</p>

<p>1. AGREEMENTS BETWEEN CREDITORS — PREFERENCES—REV. St. § 5128.</p> <p>A transfer, by one in failing circumstances, of tlie greater portion of Ms assets to a creditor is not void under section 5128 of the Revised Statutes, as involving .unlawful preference of such creditor, where all known creditors, and all whom the grantee suspected were creditors, and all the creditors of whose existence he was bound to know, joined in the arrangement under which the transfer was made; though such creditor thereby secured a preference.</p>

<p>In Bankruptcy. Petition of Hunter.</p>

<p>1.Vested Rights.</p> <p>One cannot ibe deprived of vested rights without his consent.</p>

<p>1. Re-Issue 3STo. 6,565 — Ruffling Machines — Validity—Infbingembnt.</p> <p>Re-issued letters patent No. 6,565, granted to John A. Pipo, July 27,1875, for improvements in machines for making ruffles, sustained as to its first, seventh, eighth, and tenth claims, and held infringed as to such claims.</p> <p>2. Re-Issue Ho. 6,566 — Sewing Machine fob Band Ruffling — Validity—In-feingement.</p> <p>Re-issued letters patent No. 6,566, granted to George H. Wooster, July 27, 1875, for sewing machines for making hand ruffling, sustained as to its eighth and ninth claims, and held infringed as to such claims.</p> <p>3. Invention — Pbimaby Constituent — Mechanical Opebation — Mechanical Abbangement.</p> <p>Invention consists primarily in finding out what mechanical operation is necessary to produce the practical result arrived at, and when such operation is hit upon, the mechanical work is easy. It is easy, when the mechanical operation is seen, to say that it was obvious that certain mechanical arrangements would effect it; but mechanical arrangements are tried and tried in vain to reach a practical result, because the mechanical operation which is to effect the result is not yet seen. In looking at the completed thing the riiochanical operation is there, hut the inventor, though he knew all about cams and levers and other mechanical arrangements, did not have in advance before him the coveted mechanical operation.</p>

<p>1. Re-Issue No. 1,804 — Metal Preserving- Cans — Limitation.</p> <p>Re-issued letters patent No. 1,804, granted to Moritz Pinner, November 1, 1864, for metal cans, cases, boxes, etc., for preserving food, paints, oils, etc., held valid, for the purposes of injunction, for the term of 17 years from November 27,1862, the date when the same invention was patented in France.</p> <p>2. Motion to Open a Degree — Supplemental Answer — Prior French Patent for Same Invention — Duration—Novelty.</p> <p>Upon a motion to open a decree and amend answer setting up the prior issue of a French patent for the same invention, held, that such patent could be admitted only as affecting the question of the duration of the United States patent, and not upon the question of novelty.</p> <p>8. “Perpetual Injunction” Construed.</p> <p>The words “ perpetual injunction,” in a decree, mean only for the life of the patent, which must be determined by the statute and all the facts of the case, and not merely by the terms of the grant in the patent.</p> <p>4. Interlocutory Decree — Amendment.</p> <p>An interlocutory decree is always open to amendment and correction.</p> <p>5. Section 16, Act March 2, 1861, Construed — Prior Foreign Patent to Same Inventor For Same Invention — Limitation of United States Patent.</p> <p>Section 16 of the act of March 2, 1861, providing that all patents thereafter granted should remain in force for the term of 17 years from the date of issue, and prohibiting all extension of such patents, held, to limit the duration of a United States patent for an invention previously patented abroad to the same inventor, to the term of 17 years from the date when the foreign patent had effect, as a patent, in his favor.</p>

<p>1. Damages — Profits Accruing between Interlocutory and Pinal Decree.</p> <p>Motion to recommit cause to master for statement of profits, to date of final decree, on machines enjoined subsequent to interlocutory decree, denied.</p>

<p>1. Bill of Lading Construed — Election.</p> <p>Under the following clause in a bill of lading, “ in case consignees discharge cargo, or any part thereof, they are to be charged not to exceed 10 cents per ton, and to have four full working days, after notice of arrival at dock of consignees of said boat, in which to discharge cargo,” and providing for payment of demurrage, in case of longer detention, a consignee has an option to unload the cargo or not.</p> <p>2. Same — Notification of an Election.</p> <p>Upon arrival of the boat, a notification that the consignee would not unload it except in its regular turn, and in that case would pay no demurrage, is a rejection of its right to unload under the bill of lading.</p> <p>3. Same — Unloading in Turn.</p> <p>The final unloading of the boat by the consignee in its turn cannot be construed as done under such right of election.</p> <p>4. Demurrage.</p> <p>A captain is not entitled to demurrage for time lost in waiting to avail himself of a consignee’s special facilities for unloading.</p>

<p>1. Equitable Maxim.</p> <p>He who comes into equity must do so with clean Hands.</p> <p>2. Same — Application op — Railroads — Stockholders—State Tax in Pant Illegal — Demüeeee.</p> <p>Where a stockholder, on behalf of himself and all others who should come in and contribute to the expense of the suit, brought a bill in equity against the corporation, and the tax collector of a particular county, to enjoin the collection of a state and county tax as being illegal and unconstitutional, and, as such, utterly void, it was held, that, as the bill did not allege payment of so much of the taxes as must be conceded ought be assessed and paid, it was demurrable. An averment in the bill of a readiness to make such payment is not enough.</p>

<p>1. Contracts — Partial Assignments!</p> <p>Partial assignments of one’s rights under a contract are not good as against the other contracting party.</p> <p>2. Same — Same—Rescission by Assignee.</p> <p>The assignee will not be allowed to work a rescission of the contract.</p> <p>S. Same — Same—Action by Assignee. '</p> <p>Nor can he maintain an action against such oflier party without joining the assignor, unless with such party’s consent.</p> <p>4. Same — Same.</p> <p>Albert Bell entered into an agreement with the defendant, Bidwell, by the terms of which the defendant', among other things, was to manufacture a certain plow under two patents, which belonged to the defendant, and to pay the defendant a royalty and a commission on sales made by liim. Subsequently tlie defendant assigned to John Ball & Co. all royalty due or to become due, and his interest in the patents, as security for a debt, which right and interest were by them assigned to the plaintiffs, who pray that the defendant’s license be decreed to be forfeited, and that he be required to account to them for royalties. Held, that as the assignment made by Albert Ball did not extend to commissions upon sales, a decree annulling defendant’s license would not be granted, as it would not only affect such commissions but work a rescission of the entire agreement. Held, farther, that as the assignment was but a partial one, the defendant could only be required to account for royalties becoming due after he had assented to it.</p>

<p>1. Equity Pbeading — Demurrers.</p> <p>A bill is not demurrable when a foundation has been laid for some of the discovery and relief asked.</p> <p>2. Same — Muetieariousness.</p> <p>No one can object to a bill on the ground of multifai'iousnoss unless injured thereby.</p> <p>3. Practice — Apreariiíg Gexeraley — Waiver.</p> <p>By appearing generally, one waives his right to object that he is not named as a defendant in the prayer for a subpoena.</p>

This hill in equity was brought by the Nashua & Lowell Railroad Corporation, which is alleged to be a citizen of New Hampshire, and other citizens.of that state, against the Boston & Lowell Railroad Corporate and others, citizens of Massachusetts.

<p>Exceptions to Master’s Report.</p>

<p>1. Pleading — Joint Claim.</p> <p>. On a joint claim a joint action must be brought.</p> <p>2. Partnership — Executor of Deceased Partner — Suit on Partneu ship Claim.</p> <p>A. bill, brought by the executor of a deceased partner to recover such partner’s share in a partnership claim, is demurrable, though the surviving partners were made defendants in the bill, and though the bill alleged that they had been requested to join as complainants buthad refused to do so.</p>

<p>1. Forward Contract to Furnish Coke to Proprietor of Beast Furnaces — Breach by Vendor, and Notice that he Wild ííot Deliver — New Forward Contract by Vendee — Measure of Damages.</p> <p>Defendant's intestate sold and agreed to deliver to plaintiff, tlie proprietor of blast furnaces for smelting iron, 36,621 tons of Oonnellsville coke, at $1.20 per ton, deliverable, in equal daily quantities, on each working- day during the year 1880. After delivering 3,765 tons, the vendor, without valid excuse, notified plaintiff, on February 13, 1880, that he rescinded the nontract, and thereafter delivered no coke. The vendor persisting in his refusal to deliver, the plaintiff, on February 27, 1880, made a substantially similar forward contract with H. for the delivery, during the balance of the year, of 29,587 tons of such coke at four dollars per ton, which was the then market rate for such a forward contract, and rather below the market price for present deliveries. The market price of coke declined in May, 1880, to $1.30 per ton. The plaintiff brought suit on February 26, 1880. Held, (1) that the plaintiff was not entitled to recover the difference between the price stipulated in the contract sued on and the price which the plaintiff agreed to pay H. under the contract of February 27,1880; (2) that the measure of damages was the sum of the differences between the price stipulated in the contract sued on and tho market price of Oonnellsville coke, at tho place of delivery, on tho several days when the several deliveries should have been made under tho contract..</p>

<p>1. CONTRACT— CONSTRUCTION — " Change in -Dutibs ” — Rev. St. $ 2838.</p> <p>A written contract entered into at San Francisco, in tiie state of California, for the sale of goods to arrive from Calcutta, contained this clause: “Any change in duties to be for or against purchasers.” The rate of duty on the bags constituting the subject-matter of the contract has not been changed since the contract was made. The amount of duty actually paid was, however, considerably less than the amount whieh it would have been necessary to pay on the same goods if they had been entered at the time when the contract was made, owing to a change, meanwhile, in the estimated value of the rupee, in which currency, under section 2838 of the Revised Statutes, the invoice of such merchandise was required to be made out. In an action by the purchaser of the goods to recover the amount of this difference, held, the parties, by the words “change of duties,” intended a change in the rate of duty by authority of. congress, not a difference in the amount of duty merely.</p> <p>2. Same — Same.</p> <p>Held, further, that the court would put that construction upon these words whether it viewed them in the light of the general and legislative history of the country, or in the light of the common understanding as to the meaning of these words, when used in this connection, among the merchants of the mercantile community where the contract was made; i. a,‘those of San Francisco.</p>

<p>1. Vain Acts.</p> <p>The law never requires one to do an idle or vain act.</p> <p>2. Same — Town Debts — Demand—Mandamus.</p> <p>Judgments had been recovered against a town from time to time through a number of years without any action being taken by the town authorities to provide for their payment. Upon an application for a mandamus against them to compel them to take the necessary action under the law, held, that the writ might issue without a formal demand tipon them for their payment, or to proceed as the law required, as it was apparent that to make such demand would be a mere idle act.</p>

<p>1. Witness — Other Party to Transaction Dead.</p> <p>All disqualifications on the ground of interest in the event of the suit are abolished by section 858 of the Revised Statutes, except only where an executor, administrator, or guardian is a party for or against whom judgment may be rendered, and it is sought to prove, by one of the parties, some transaction with or statement by the testator, intestate, or ward.</p> <p>2. Partnership.</p> <p>Under the facts of this case, held, that no partnership existed between Rice & Norton at the time this suit was commenced.</p>

In Admiralty. The libel alleges that said 90 demijohns of Spanish rum, or agua-diente, were brought into the port of Key West on the twenty-sixth of March, 1879, on a Spanish schooner, consigned in the manifest “to order;” that it was imported into the United States from Cardenas, Cuba, in large bottles, to-wit, demijohns, and the same were not packed in packages of one dozen bottles in each package, as required by section 2504, schedule D, of the Revised Statutes of the…

<p>1. Contributory Negligence.</p> <p>Wliere the plaintiff’s injury is occasioned in part by his own negligence, he cannot recover though the defendant is in fault also.</p> <p>2. Same — Railroads—Crossings—Nonsuit.</p> <p>The crossing, where the injury complained of in this action occurred, was one with which the plaintiff was familiar and one which he had often passed. Above it was the usual sign to “Look out for the cars,” printed in large letters, and at that place the highway and railroad were nearly on a level. Away from it, at a distance of 20 rods in the direction from which the train in question came, was the depot nearest it in that direction. This stretch of track was in full' view of the plaintiff while still 600 feet from the crossing, and at 33 feet from such crossing one could see a distance of some 20 rods beyond the depot. If, at any time after the train passed thp depot, the plaintiff had looked in that direction he would have seen it; and, if not then too near the train for escape, by stopping his horse he could have avoided the accident. On a motion to nonsuit, held, that these facts show contributory negligence on the part of the plaintiff, though the tram was not a regular one, and no train was due at the timé; though it was moving at an unusual and dangerous rate of speed; though it did not stop at the depot as trains usually but not always do-; and though no warning was given of its approach, by blowing the whistle or ringing the bell, after such depot was passed.</p>

<p>1. National BANKS — Act ok 1864, § 12 — Nattjbm ok Siiaeeiioli>eu,’s Liability.</p> <p>The liability which shareholders in national banks incur under section 12 of the act of 1864, which provides for a liability “ to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares,” is that of principals, not of sureties.</p> <p>2. Nature ok Liability ok Shareholders in National Banks — Rtjv. St. New Jersey, (1874,) p. 469, § 5 — Married Women.</p> <p>Such a liability is not one on a “ promise to pay the debt, or answer for the default or liability, of any oilier person,” within the moaning of the proviso to section 5 of the Revised Statutes of Now Jersey of 1874, p. 469.</p> <p>3. Estoppel.</p> <p>On the principle of estoppel, one cannot take advantage of certain statutory provisions without incurring thereby the attendant liabilities.</p>

<p>1. ¿Priority of tub United States</p> <p>Section 3466 (1 St. 515, 676) of tlie Revised Statutes does not give tlie United States a lien upon its debtor’s property, but only a right to priority of payment out of the same in certain cases, one of which is where a debtor not having sufficient property to pay all his debts makes a voluntary assignment thereof.</p> <p>2. Same — Assignment.</p> <p>A debtor of the United States may assign his property, within the meaning of this statute, by means of’* judgments confessed in favor of various persons for amounts equal in the aggregate to the value thereof, and the priority of the United States will thereupon attach to the property and prevail against said judgments, but subject to.all prior valid liens thereon.</p> <p>3. Fraudulent Conveyance.</p> <p>G-. being liable to the United States, in a sum more than equal to the value of his property, for money fraudulently obtained from the treasury, asked L. & B. to loan him $10,000 on his note and mortgage, then exhibited, which they declined, but let him have $3,500 on the same, with a credit indorsed on the note of $6,500, and recorded the mortgage for the full amount. Raid,, that upon the facts the mortgagees did not take the mortgage in excess of the loan for the purpose of aiding the mortgagor to hinder, delay, or defraud the United States, and therefore it was not fraudulent as to them.</p> <p>4. Same Subject.</p> <p>When a conveyance about which there is a suspicion of fraud will be allowed to stand as a security for the sum actually paid or advanced upon it.</p> <p>5. Attorneys’ Fee.</p> <p>An unconditional fee of $10,000, secured by a mortgage on real property, for the services of a firm of three attorneys in defending an action in the district court involving a claim of $143,000 for damages and forfeitures under sections 3490 and 5438 of the Revised Statutes, and the character of the defendant, in which there were three jury trials concerning transactions scattered through a quarter of a century, and. extending from the Atlantic to the Pacific, and one writ of error to the circuit court, and a final judgment against the defendant for $38,049, is not unreasonable, and furnishes no evidence that the mortgage was made for a sum larger than that agreed to be paid, for the purpose of hindering, delaying, or defrauding the creditors of the mortgagor, or in trust that a portion of the amount might be refunded to him.</p> <p>6. Priority of the United States — How Asserted.</p> <p>A sale of property of a debtor of the United States, made upon a decree or judgment given after the right of priority of the latter attached, disregarded, and the matter referred to the master to take an account of the sums due on the valid liens thereon, and sell the property free from them and distribute the proceeds accordingly.</p>

An information was filed against Yinson, charging him with selling and offering for sale manufactured tobacco without payment of the special tax required by law. Upon examination, defendant made the following statement of facts, which the district attorney accepted, and the question was submitted to the court whether, upon such state of facts, a jury would be authorized to return a verdict of guilty.

<p>1. Patent Ho. 174,465 — Improvements in Telegraphy — Telephone—'Validity —INFRI NGEM ENT.</p> <p>Letters patent Ho. 174,465, granted March. 7, 1876, to Alexander Graham Bell, for improvements in telegraphy, held 'salid as to its fifth claim, “for a method and apparatus for transmitting vocal or other sounds telegraphically hy causing electrical undulations similar in form to the vibrations of the air accompanying the vocal or other sounds,” and infringed.</p> <p>2. Patent — Combination of Old Devices — Substitution of a Hew Element— Infringement.</p> <p>If a patent is for a mere arrangement or combination of old devices to produce a somewhat better result in a known art, the substitution of a new element, not known at the date of the patent, may avoid infringement.</p> <p>S. Discoverer of Hew Art — Broad Claim.</p> <p>The discoverer o£ a new art is entitled to the broadest claim for it which can be permitted in any case; not to the abstract right to the art without regard to the means, but to all means and processes which he has both invented and claimed.</p> <p>4. Section 4922, Rev. St. , Construed — Costs.</p> <p>Section 4922, Rev. St., providing that where a patentee has claimed too much in any part of his patent, in a suit brought thereon, he shall not recover costs, does not mean that claims not in issue should be contested for the mere purpose of settling the costs.</p> <p>5. Patent Ho. 174,465 — Telephone—Anticipation—Infringement.</p> <p>Beil’s invention, consisting of the method and apparatus for transmitting vocal sounds by transferring to a wire undulatory electrical vibrations like those which the sounds have made in the air, and carrying them to a receiving instrument capable of echoing them, held, not anticipated by the invention of Reis, in Germany, in 1860, consisting of an apparatus for transmitting sounds by the use of membranes and electrodes, which was of no practical utility; and infringed by defendants’ method and apparatus, in which undulatory vibrations of electricity corresponding to those of the air are produced and transmitted to a receiver, though the specific method of producing the undulations is supplemented by the use of an instrument which in1 ensifies and makes audible very feeble sounds.</p>

<p>1. Patent No. 37,052 — Repeating Guns — Infringement.</p> <p>Letters patent No. 37,052, granted December 2, 1862, to Charles H. Palmer, for improvement in repeating guns, limited as to its first claim, and held not infringed as to its first and sixth claims by devices constructed under letters patent No. 47,631, granted May 9, 1865, to Richard J. Gatling, for a battery gun.</p> <p>2. Same — Claim—Construction—Limitation.</p> <p>The first claim of complainant’s patent, for “ presenting and thrusting the cartridges into the rear of the revolving barrels, or series of such barrels, in one point of the circuit, confining and discharging them at another point in such circuit, and removing the shells or cases at another point in such circuit, in the manner substantially as set forth,” construed not to cover a process or mode of operation, hut limited to the particular combinations described effecting the specific result.</p> <p>3. Same — Infringement.</p> <p>A battery gun, which consisted of a series of independent guns, each with its sepárale barrel, and loading, confining, firing, and shell-extracting devices, each operation of loading, firing, and ejecting covering a certain part of the circle of revolution, and being completed as to each barrel by one circuit in which the cartridges were fed against the rear of the barrels, confined by a plunger in a cartridge chamiber, from which they were discharged without being inserted i¡¡, the barrels, and in which the hook for extracting the shells was attached to the plunger and snapped over the flanges of the cartridges in its forward movement, retained in position until the discharge and then moved backward with the plunger, releasing the shell, was a prior invention. Complainant’s device, consisting of a series of continuous revolving barrels, with a single set of loading, firing, and extracting mechanisms, operating upon each barrel in turn, the motion of the barrels being intermitted while the operations of loading, firing, and extracting are being performed, the cartridge or charge being thrust directly into the rear end of the barrel from which it is discharged, and the shell being extracted by moans of a hooked bar reciprocated backwardly by a tappet on the operating crank-shaft and thrust against the breech, when released, by a spring,' held, not infringed by, defendant’s’device con-' structed substantially similar to tlie prior battery g'un, except that the cartridge chamber is discarded and the cartridge thrust directly into the ream of the barrel.</p>

<p>1. Re-Issue No. 5,294 — Impkovement in Monkey Wkenohes — Petition to Vacate Decuee and Reopen Cause.</p> <p>A petition to vacate decree sustaining re-issued letters patent No. 5,294, granted February 25, 1873, to Lucius Jordan and Leandor JS. Smith, for improvement in monkey wrenches, and to allow the defendant to sot up by a supplemental answer that Jordan was the sole inventor of the improvement, refused.</p> <p>2. Petition to Reopen Cause — Supplemental Answek — Newly-DiscovisRed Defence.</p> <p>Upon a petition for leave to reopen a cause, and to file a supplemental answer sotting up a newly-discovered defence, after final hearing and decree, the evidence must be clearly such as would have availed the defendants if introduced on final hearing. Whore, in such a case, the defence sought to be introduced was that a joint patent was the sole invention of one of its patentees, the affidavit of sucli patentee that he was the sole inventor, and of others that he claimed to them to be the sole inventor, held, not to be such proof as would warrant the court in reopening the cause and admitting such defence.</p>

<p>1. Re-Issue Ho. 8,091 — Oases bob Tkanspotitiug Eggs — Vamdity— IneeisgeMENT.</p> <p>’ Re-issued letters patent Ho. 8,091, granted February 19, 1878, io John L. and George W. Stevens, for cases for transporting eggs, held mbd and infringed.</p> <p>2. Same — Same—Ahticipation.</p> <p>Complainant’s device for transporting eggs, consisting in placing thin strips of the proper width edgewise, crossing each other, and halved together at proper distances, between horizontal thin partitions in a box, making layers of cells, (limited only by Ibe height of the hox,) preferably -irrespective of the walls of the box, to hold each an egg, separate from all the others, secure against injury from without the hox and from moving the box in transportation, held, not anticipated, by traveling cases with compartment-trays for carrying samples and boxes for holding chalk-balls, ink, medicine, or perfumery bottles made with similar partition strips and having compartments in two layers separated by a horizontal partition.</p>

<p>1. INTERLOCUTORY DECREE — “GAINS, SAVINGS, AND ADVANTAGES” — COSTS.</p> <p>Ail interlocutory decree directing an account of the gains, savings, and advantages due to the infringement of a patent, in addition to tho profits, and awarding costs, held, to bo proper.</p> <p>2. Costs in Equity — How Awarded.</p> <p>Costs generally, in equity, do not follow as a matter of right, as in proceeding's at law, but are subject to the discretion of tho court, and are awarded as part of the decree, or they cannot be recovered.</p>

<p>1. ColuisioN— Steam-Vessel--Satl-Vessel — Risv. St. § 4233.</p> <p>In an action by tlie owner oí a canal-boat, which was one oí seventeen comprising the tow oí two tugs, to recover damages ior an injury to his boat received in a collision with a schooner, whose apparent course, as seen by the tug's, was such, up to within so short a time oí the collision that it could not bo prevented, as to cause them no reasonable apprehension oí a collision, but whose apparent course was affected greatly by the leeway which she was making, oí which her master was aware, but not those on the tugs, held, that the effect oí the leeway on the legal relations oí the tugs and tow to the schooner was the same, so far as the rights of one cognizant of the fact were concerned, as that oí a direct change ol course. Held, further, that when the apparent course of a sail-vessel, as seen by a steam-vessel, is such as to cause the latter no reasonable apprehension of a collision, it is not incumbent on such steam-vessel, under section 4233 of the Revised ¡Statutes, to take precautions to keep out oí the way.</p>

<p>T. COLLISION — Steamer—Schooner.</p> <p>Where a sailing vessel and one propelled by steam are approaching each other, bow on, the steamer must give way.</p> <p>2. Same — Evidence.</p> <p>In case of a collision between such vessels, the steamer is prima facie in ■ fault.</p> <p>3. Negligence — Particular Instance.</p> <p>It amounts to negligence on the part of those in command of a steamer to make the port of Chicago at night at a speed from nine to ten miles an hour</p>

Bill in equity brought to set aside a decree in favor of respondents, establishing a mechanic’s lien upon the Burlington & Southwestern Railway for $39,763.26, heretofore rendered in this court.

<p>1. Act oe March 3, 1875, § 1, Construed — JURISDICTION oe the Circuit Court— Promissory Mote under Bead — Mew Trial.</p> <p>A corporation executed its promissory note, payable to the order of its president, attaching thereto, before delivery, its corporate seal. After having been indorsed by him, it was discounted by a citizen of the same state and assigned to a citizen of another state, who brought an action against both maker and indorser.'' Neld, on a motion for a new trial, that, under section 1 of the act of March 3, 1875, the circuit court had no jurisdiction .</p>

The Martin Bank carried on business at Kansas City, and between July 2» and August 2, 1878, made and delivered to the complainants in these cases its drafts or checks on the Metropolitan National Bank, of New York. They were in the following form, the only difference being in number, date, amount, and name of payee: “STATE OE MISSOURI. “$714.65. The Martin Bank, No. 196,104. “Kansas City, Mo., July 30, 1878. “Pay to the order of Theo. Stan wood, Cashier, $714.65. “D. 0.

<p>1. Railroads— Conductors — Engineers—Fellow Servants.</p> <p>\ Conductors and engineers are not fellow servants, so far as regards the per-formanceof the duty therein specified, under the following order: “ Conductors must, in all cases, while running "by telegraph or special orders, show the same to the engineer of their train before leaving stations where the orders are re- ' ceived. The engineer must read and understand the order before leaving the station.”</p> <p>2. Same — Negligence oe Co-Employe — Notice.</p> <p>A railroad company is liable to an employe who is injured by the negligence of a co-employe of whose negligent character it had been notified, provided the accident which occasioned the injury occurred before the expiration of a reasonable time for the company to take proper action in the premises after such notice had been given.</p> <p>3. Reasonable Time.</p> <p>Tour weeks would not be an unreasonable time under the circumstances of this case.</p>

<p>¡L. Fraudulent Conveyance — Admissions of Grantor.</p> <p>Iu a controversy between the creditors of a grantor and his grantee as to whether a conveyance to the latter was fraudulent-or not, the acts and declarations of tlie grantor made after the conveyance and inconsistent with it, hut while in possession of the premises or exercising control over them, are admissible in evidence to show the true character and purpose of the conveyance.</p> <p>2. Conveyance Procured by a Husband to his Wife.</p> <p>A conveyance to the wife procured by the husband upon a consideration moving from himself, if made in good faith and intended as an absolute gift or post-nuptial settlement, is good as against the subsequent creditors of the latter; but where it appears from the evidence that the conveyance to the wife is a mere device or contrivance to put the husband’s property in his wife’s name beyond the reach of creditors or the contingencies of business while he remains in the possession, control, and enjoyment of the same as though the legal title was in himself, a court of equity will disregard such device and hold her as the trustee of her husband, and subject the property to the payment of his debts at the suit of his creditors.</p> <p>3. Conveyance t.o ‘Wife.</p> <p>The claim of a husband and wife that certain property once belonging to the former had. been conveyed by his grantee to the wife for her own use upon a consideration moving from herself, considered, and disallowed as being inconsistent with the conduct of the parties,- and because of the improbable and contradictory accounts given of the transaction hy said parties, and the property directed to be sold as that of the husband to satisfy the demand of a judgment creditor.</p> <p>4. Unstamped Conveyance.</p> <p>An unstamped conveyance is not therefore void unless the stamp was omitted with intent to thereby defraud the revenue. A conveyance is sufficiently stamped if stamped according to the actual consideration thereof, be that more or less than the nominal one.</p> <p>R. Same.</p> <p>In a suit brought to set aside a conveyance to the wife as fraudulent against the creditors of-the husband, it is too late upon the hearing to raise the question that such conveyance or the record of it is void because the original is not duly stamped.</p> <p>6. Lien of Judgment and Conveyance</p> <p>Semble that section 268 of the Oregon Civil Code, which declares that a conveyance of real property shall be void as against the lien of a docketed judgment unless recorded within five days from its execution, should be limited to cases where such lien was acquired in good faith, without notice of such con-" veyance.</p>

<p>1. Wills — Bequests upon Condition — Condition Construed.</p> <p>Where a bequest was made upon condition that, within six months after the testator’s decease, responsible citizens of a particular town and county should pledge a certain amount for the same object, and subscriptions aggregating more than the amount, but over 700 in number, were obtained, — many from men of small means, to whom a long time of payment had been given, many signed by other parties than the subscribers, and some upon condition, — held, that the condition had not been complied with.</p>

<p>1. Revenue — Pekalties and Forfeitures — Imports—Rev. St. $ 2809 — Act of June 22, 1874, § 16.</p> <p>To enforce a forfeiture under section 2809 of tlie Revised Statutes, wliich relates to the importation of merchandise into the United States from abroad, the government must show affirmatively an “actual intention to defraud,” under section 16 of the act of June 22,1874.</p> <p>2. Case Stated.</p> <p>Where a libel for information was filed against a vessel’s boatswain to enforce a forfeiture, under section 2809 of the Revised Statutes, for attempting to import foreign goods without entering them in the vessel’s manifest, held, that it must be dismissed, in the absence of any attempt at concealment and in view of the fact that the practice of making such importations had boon tolerated and apparently recognized as legal by the. custom-house officials, and the further fact that the boatswain, a native of China, had no reason to suppose that he was thereby violating the law.</p>

<p>1. Letteus Patent — Manufacture for Sale Abroad — Infringement.</p> <p>Every manufacture for sale abroad, followed by actual sale, of a machine on wliicli an American patent has been issued, is an infringement of the American patentee’s rights of property and exclusive use.</p>

<p>1. Patent No. 47,764 — Snap-Hooks—Validity—Infringement.</p> <p>Letters patent No. 47,764, granted May 16, 1865, to C. B. Bristol, for an improved snap-hook, held, valid, and infringed as to its first claim</p> <p>2. Same — Same—Infringement.</p> <p>Complainant’s snap-hoolc, in which the tongue is pivoted in a recess Detween two cheeks in the shank, with a coiled spring in the recess arranged around the pivot so that the two ends of the spring bear, one upon the tongue and the other upon the body of the hook, tending to press the tongue up against the end of the hook, but yet permitting the tongue to be depressed to open the hook, held, infringed by defendant’s device having a similarly constructed shank, and tongue similarly pivoted, with a substantially similar recess in its rear end, but in which the ends of the spring within the recess do not project forward towards the hook.</p> <p>.5. Patent — Libebal Constrction — Technical Claims — Construction.</p> <p>Patents are to be liberally construed so as to give the owner of the patent his actual invention, if such favorable construction can fairly be made. Technical claims are to be construed with reference to the state of the art, so as to limit the patentee to, and give him the full benefit of, the invention he has made. Estdbrook v. ¡Dunbar, 10 O. G. 909.</p> <p>4. Same — Combination—Beneficial Besdlt.</p> <p>It is immaterial, in a patent for a combination, whether by means of the location of the parts they are severally benefited or not, provided a new and beneficial effect is the result of the combination, Bailee v. Van Wormer, 20 Wall: 353.</p>

<p>1. Equity.</p> <p>Between equal equities the law will prevail.</p> <p>2. Letters Patent — Assignees—Superior Title.</p> <p>Bona fide purchasers lor value without notice, under an instrument of assignment which was duly recorded, whereby interests are assigned in an unpat-ented invention and wherein the commissioner is requested to issue the patent to such assignees, as was duly done, can convey a good title to such patent as against prior assignees of a prior patent which W'as issued to the same inventor, to whom such inventor at the same time assigned interests in new inventions which he had made, of which the invention above referred to was one, the „ prior instrument of assignment having been executed and recorded first, and the invention, the nature of which was definitely referred to in such prior instrument, having been made before any of such assignments.</p> <p>3. Rev. St. § 4898, Construed — Records.</p> <p>Section 4898 of the Revised Statutes does not provide for the recording of assignments, grants, and conveyances of interests in patents not yet issued. -</p> <p>4. Rev. St. § 489S, Construed — Constructive Notice — Records.</p> <p>Section 4895 of the Revised Statutes makes no provision for the recording of an assignment of an unpatented invention on which the patent is not to he issued to the assignee; therefore its record is not constructive notice of its contents to one who subsequently deals with a party to it in respect to its subject-matter.</p>

<p>1. Patented Machine — Sale by , Owner of Patent.</p> <p>When the owner of a patent himself sells a machine constructed for the purpose of using his invention, he is understood to have, to that extent, parted with his exclusive right to that invention.</p> <p>2. .Same — Foreclosure Sale — Owner oe Patent a Party — Consent to Decree for Sale — Voluntary Sale — Rights oe Vendees.</p> <p>Upon a sale of a factory and its contents, including patented machines, under a suit for foreclosure of mortgage, to which the owner of such patents is a party and expressly consents to the decree for sale without reservation, and! with no intimation of any claim on his part that the right to use the. patented machines did not accompany the possession of them, held, so far as such machines are concerned, to he a voluntary sale by the owner of the patents,' and, as such, the right to use them passes with their purchase and possession.</p> <p>3. Same — Same—Same—Same—Estopped.</p> <p>Where, in such a case, the owner of the patents is interested in increasing the proceeds of the sale of such property, and takes the chance of being benefited by the enhancement of the price thereof arising from the presumption that the right to use the patented machines passes with the purchase and possession of them, and stands by and sees them sold without giving notice to the contrary, he will be estopped from thereafter claiming that the purchase did not carry with-it the right to use such machines.</p>

<p>1. Re-issue No. 8,672 — Sash Suppojktbbs — Iotiotgkment.</p> <p>Re-issued letters patent No. 8,672, granted April 15, 1879, to Charles A. Schaei'er, for improvement in sash supporters, the original patent being No. 64,910, granted May 21, 1867, held, not infringed by devices constructed under letters patent No. 82,580, granted September 28, 1868, to Rranklin Babcock, for sash holder.</p> <p>Complainant’s sash supporter, consisting of a cylindrical screw-case secured in position in the window-jamb, with a longitudinally-moving flat-sided plunger fitting into a flat-sided bearing in the case, having a pulley at its outer end bearing against the sash, and operated by a spiral spring, held, not infringed by defendants’ sasli-holder consisting of a cylindrical screw-case secured to the window frame, a plunger operated by a spring and having a shoulder on it outer end to fit in notches cut in the edge of the sash and support the window at certain heights.</p> <p>2. ISTVEKToit — Appmcatioh oe Old Device to New Use.</p> <p>An inventor who first applies an old device to a new use is not entitled to the exclusive use of such device when applied in other and not analogous mechanisms to produce a new effect.</p>

<p>1. Re-Issue No. 8,694 — Dies for Forming- Heads of Wagon King-Bolts— Validity — Infringement.</p> <p>Re-issued letters patent No. 8,694, granted May 6, 1879, to Robert R. Miller, for dies for forming the heads of king-bolts for wagons, held, void, as to its first claim, and valid and infringed as to its second claim.</p> <p>2. Original Specification — Re-Issue Specification — “ New Matter.”</p> <p>The original specification describing the invention as consisting of a series of dies, and disclaiming the use of the dies separately, the description in the re-issue of separate forming dies is the introduction of “ new matter.,” and the claim thereon is therefore void.</p> <p>3. Re-Issue — “New Matter.”</p> <p>“ New matter” cannot be introduced into a re-issued patent, even though it be the invention of the patentee, and was inadvertently omitted from the original application or specification.</p>

<p>1. Patent No. 185,716 — Sweat-Lining for Hats — Novelty—Validity.</p> <p>Letters patent No. 185,716, granted December 26, 1876, to John P. Beatty, for improvement in sweat-linings for bats, held, void for want of novelty.</p> <p>Hats with sweat-linings extending well out upon tbe brim and far enough to be stitched through the brim outside the crown-band, being well known, complainant’s patent for extending the sweat-lining well out upon the brim, crimping it over the angle formed by the brim and cro.wn, and stitching it to, the brim by stitches passing perpendicularly through the brim outside the crown-band, held,-invalid.</p>

In Admiralty. In this case I find the following facts: Gn the thirty-first of May, 1880, the steam-boat Laura, then a vessel propelled wholly by steam, and nót a public vessel of the United States, nor a vessel of any other country, nor a vessel propelled in whole or in part by steam for navigating canals, and also then a steam-vessel navigating waters of .the United States, which then were highways of commerce and open to competitive navigation, and also then a steam-vessel…

<p>Appeal in Admiralty..</p>

<p>1. Charter-Party.</p> <p>Tie cargo in' question was shipped under a charter-party, whereby the master engaged that in and during the voyage the vessel should he “ well fitted,” and “ that he would take and.receive on board all such lawful goods and merchandise!” as the other party to the contract should thinkfit to ship. The cargo shipped Iwas almonds in the shell, in sacks; out of the shell, in bags. The vessel on her ojitward trip had carried a cargo of petroleum, in barrels. Nothing was said in the charter-party about petroleum, but both parties knew when they signed the charter-party, before the outward voyage began, that she was loaded with such cargo. On the outward voyage petroleum leaked out from barrels in the hold' and from barrels in the hetween-decks. The flavor and odor of petroleum were imparted to the almonds while they were in the vessel. The damage might h&ve arisen from storing the almonds in contact with parts of the vessel containing petroleum, or with dunnage having petroleum in it or on it; or from the drip ¡of the sweat of the hold, carrying the odor and flavor of petroleum with it. I Held: (1) This damage did not arise from a peril of the sea; (2) the contract! was to provide a vessel fit to carry such a caigo as was actually carried, and the vessel provided was one unfit for this purpose.</p>

<p>In Admiralty. Sur libel, answer, and.proofs,</p>

<p>1. COTJUSION hiotwhhn Stjbambb and SAIDINfi Ybsbed.</p> <p>The sailing vessel claimed that she altered her course in extremis, and to ease the blow. Held, upon the facts as found by the court, that the sailing vessel unjustifiably altered her course, and contributed to bring about the collision; that if she altered her course at all she should have so acted as to aid the steamer in avoiding- tlie collision. Held, that the steamer was also in fault, when she had plenty of sea-room, in passing the sailing vessel in the nighttime so close as to allow a collision to result from a miscalculation of those in charge of the sailing vessel. Held, that the damages must be equally divided.</p>

<p>1. Exclusive Use of Vessel by a Part Owner.</p> <p>A part owner of a vessel is not entltled'to her exclusive use without giving security to his co-owner.</p> <p>2. Profits from Use of Yessel.</p> <p>Where a part owner of a vessel employs her on his own account and risk, ■ - the other part owners are not entitled to a share of the profits arising from ' such employment.</p> <p>3. Compulsory Sale of Vessel.</p> <p>. Where the equal part owners of a vessel cannot agree concerning her use arid employment, a court of admiralty has jurisdiction, upon the application of either party, to compel a sale of the same and ■ divide the proceeds between the owners; hut, where the disagreement arises between unequal owners, the jurisdiction is, though without good reason, doubted and denied.</p>

<p>1. Pi,FADING — General Replication.</p> <p>The purpose oí a general replication is to put in issue the new matter set forth in the answer.</p> <p>2. Same — Effect of General Denial as to Admissions in Answer.</p> <p>A complainant does not deprive himself of the benefit of admissions in the respondent’s answer by a general denial of the allegations thereof.</p> <p>3. Same — Same—Evidence.</p> <p>Where a devise is alleged in the hill and admitted in the answer, it is not necessary, though proper, for the complainant to produce the will in evidence.</p> <p>4. Tsusts — Duty of Trustee — Investment of Fund — Neglect of Duty — Insolvency — Removal—Appointment of New Trustee — His Duties.</p> <p>A. died, leaving a will, in which he named B. as his executor, and by which ho devised one-half of his property, after the payment of his debts, to B., in trust for 0., during his natural life, to be invested in real and personal security, and the income therefrom to be paid to C. semi-annually. B. qualified as executor, and subsequently, as executor, turned over the portion of the. estate devised as aforesaid to himself as trustee, and as trustee receipted to himself as executor therefor, was discharged as executor, and gave bond as trustee, but failed for more than two years to invest money receipted for by him as trustee, or to pay G. his share of the income from real estate left by A., and became insolvent.</p> <p>C. brought suit to have B. removed and a new trustee appointed, and for damages suffered by him from B.’s neglect of duty, and it was held: (1) That it was B.’s duty to have invested the fund that came into his hands as trustee, within a reasonable time after he qualified as such, at the current rate of interest, and to have paid the income therefrom, and one-half the income derived from said real estate, to 0. semi-annually. (2) That B. should be removed from Ms trust and a new trustee appointed, whose duty it would be — First,, to collect from B. and his sureties said principal sum received by B., and interest thereon from the time B. qualified as trustee; second, to collect from B. and his sureties one-half the income, if any, received by him from said real estate, and to pay the same, together with interest recovered, to O.; third, to invest said principal sum, and pay the income therefrom to G., as provided by said will; and, fourth, to collect, in the future, G.’s share of the income from said real estate and pay it over to him.</p>

<p>1. Pi,babinci-— Conditions Pnjsorcmcsn? — OjEnbrat, Averments — Demurrer.</p> <p>In an action on a policy of lire insurance, where the terms of the policy are set- out in the declaration, and there is a failure to aver specilio performance of conditions precedent, held, 1hat the declaration is demurrable. Held, also, that the defect is not cured by a general averment of performance by the plaintiffs of all things by them to be performed.</p>

<p>1. Act of FEBRUARY 19, 1873, of Missouri, Construed — Municipal Bonds — Constitutional Law — Infringing the Obligation of Contracts.</p> <p>A county levied and collected taxes for the purpose of paying interest on certain bonds issued by it, and thereafter litigation arose as to their validity, and an act was passed by the state legislature authorizing the county court to loan the fund collected, but not specifying the time for which loans might be made. A loan was made for four years to A. Before the expiration of that time a bondholder recovered final judgment against the county, execution was issued, and A. was served with a writ of garnishment. The garnishee answered that the debt from her to the county was not due, and stated the facts. It was held: (1) that said act only authorized the county court to invest the fund in question subject to call, or until the litigation was concluded; (2) that if construed to authorize loans for a longer period it would infringe the obligations of the county’s contract with its bondholders, and be unconstitutional; (3) that said funds, when paid into the county treasury, became trust funds for the payment of interest upon said bonds, and that it was the duty of the county authorities to apply them to that purpose as soon as the bonds were held valid; (4) that A. should be presumed to have known the provisions of the statute under which the loan was made, and that the plain till was entitled to judgment against her for the sum borrowed, and any interest thereon which might be unpaid.</p>

In Equity. Motion to remand. The first ground of the motion to remand was because the transcript from the state court was not filed until the second day of the next succeeding term of the federal court.

This is an action to recover damages upon a policy of insurance, and was originally instituted in the circuit court of Lee county, Iowa. The defendant, a non-resident corporation, appeared in the state court at the first term after the commencement of the suit, and, without filing any other pleading, presented its petition for a removal of the cause to this court.

<p>1. New TRIAD — Misdirection—Implied Agreement to Pay Rent.</p> <p>A new trial will not be granted on the ground of misdirection of the jury, where, in an action brought by tenants in common jointly, but continued by the survivor after suggesting on the record the death of the other, to recover what the use and occupation of certain premises were reasonably worth, the jury were instructed that the plaintiff was entitled to recover, if they found that the defendant remained in occupation under an implied agreement to pay rent; and that an agreement to pay rent would be implied, if the defendant occupied the premises by the lessors’ permission, without any understanding that such occupation should be without compensation.</p>

The complaint was a bill for specific performance, based upon a title bond executed by three of the defendants to the complainants, in pursuance of which they bound themselves to convey three-fifths of the “Terrible Mine” to the plaintiffs, upon the payment of certain sums therein named, within a specified time. Before the expiration of the time the said three defendants had sold and conveyed the property to John H. Maugham, and he had conveyed to A. E. Reynolds.

<p>1. Deed, when Void under the Internal Revenue Act.</p> <p>A deed alleged to have been matfe-with the intent to evade the internal revenue act or to defraud the United States is not, therefore, invalid under section 158 (13 St. 294; 14 St. 152) thereof, and to make it so it must also appear that the deed was made without being duly stamped, and with the intent thereby to evade the revenue act.</p> <p>2. Grantee in Deed.</p> <p>Said section 158 only avoids a deed on account of the intent of the grantor therein, and it is immaterial with what intern, me grantee receives it, or to what use he puts it.</p> <p>3. Amendment of Bill.</p> <p>After a demurrer to a bill is allowed, the right to amend rests in the discretion of the court, and leave to amend will not be granted unless it is necessary to promote or attain the ends of justice in the case.</p> <p>4. Case in Judgment.</p> <p>A demurrer to a bill being sustained, the plaintiff asked leave to amend, to the effect that a deed to the demurrants was void under said section 158, for want of being duly stamped, which was denied; it also appearing that said parties were bona fide purchasers for an adequate consideration.</p>

<p>1. Equity Pleading — Multifabiousness—Infringement of Letters Patent.</p> <p>A bill brought by a patentee to recover profits and damages for an alleged infringement of 38 claims in six different patents, is demurrable on the ground of multifariousness, where there is nothing in the bill to show that any two or more of the patents are in fact, or are capable of being, used in making a single structure, or that the defendant has so used them, and where the defendant would be clearly prejudiced by being compelled thus to defend himself in one suit against so many alleged causes of .action.</p> <p>2. Equity Rule 37 Construed.</p> <p>Equity rule 37 applies where a demurrer and an answer are put in at the same time to the whóle of a bill.</p>

<p>3 Patent- — Bill in Iniquity — Plea to Jurisdiction.</p> <p>To a bill in equity for infringement of letters patent, and by its sworn allegations fully vesting tlie court with jurisdiction, a sworn plea by the respondent, admitting the validity and infringement of the patents, but denying the jurisdiction, alleging a right to use the patented processes under a contract emanating from the only complainant in interest, and that such complainant is a citizen of the same state with himself, in the absence of further proof, held, insufficient.</p> <p>2. Plea — Evidence—Admissibility oe.</p> <p>Ex parte affidavits introduced without notice to complainant, or without tender of affiant for cross-examination, and writings under private signature unauthenticated, are inadmissible upon the hearing of such plea.</p>

<p>1. Letters Patent — Plumbers’ Traps — Novelty.</p> <p>Where old and new plumbers’ .traps differ only in tlie particular that the former are cast and the latter are drawn through a die, a patent issued on such new traps is void for want of novelty. i</p> <p>2. Evidence — Judicial Knowledge.</p> <p>The court will not take judicial notice of any substantial difference between lead,, or other soft metal suitable for the purpose of making such traps, when cast and when drawn.</p>

Appeal iroin the District Court of the Eastern District of Missouri. This is an action in rem.

<p>1. Collision in Bast River — Tug and Berry-Boat — Unavoidable Accident-Collision at Pier.</p> <p>Where collisions occurred in the East river, at New York, in rapid succession, between a tug-boat and a ferry-boat entering her slip, a bark in tow of the tug and the ferry-boat, and the ferry-boat and a lighter lying at the end of the pier, and actions for damages were brought by the owners of the bark against both the tug and the ferry-boat, and by the owners of the tug and of the lighter against the ferry-boat, held, that the tug was in fault for the first two collisions, having attempted to cross the bows of the ferry-boat when she might have gone safely under her stern; and the collision of the ferry-boat with the lighter being unavoidable by her as the result of the other collisions, the libel of the lighter against the ferry-boat must be dismissed.</p>

<p>1. Pebsonau Injuby — Negligence in Stowing Cargo.</p> <p>The decision in this case, as reported in 2 Feu. Rep. 241, affirmed.</p>

<p>Libel in Admiralty.</p>

This is an action brought by the plaintiff, a corporation organized under the national banking act, against the defendants to recover judgment upon a certain promissory note executed by the defendant Harrison to his co-defendant Alexander, and by the latter assigned to the plaintiff.

<p>1. Raileoads — Private Crossings — .Negligence.</p> <p>Instructions that although there was no statutory obligation which required the railroad company to ring a bell when approaching a private crossing, the jury might And it was negligence to omit to do this when running at a high rate of speed, at a time when the-view oí the train was so obstructed by cars on a side track as to render the use of the crossing peculiarly hazardous; that a railroad company ordinarily has the right to run its trains at any rate of speed it thinks proper, hut that the condition of the crossing might impose some restrictions upon this right, and, under the circumstances, the jury might predicate negligence upon excessive speed; that one using such crossing must uses all his faculties to ascertain whether or not he could do so safely ; that one has the right to assume that the company would uso more than ordinary care in approaching a crossing- so obstructed,— held, to bo unexceptionable. Held, also, that evidence was properly admitted to show how long the empty freight cars had been allowed to stand on the side track prior to the occurrence of the accident.</p>

In Equity. On the thirtieth of April, 1880, complainant recovered a judgment m tho circuit court of Madison county, Iowa, against respondent Robert Eyre, for the sum of $2,877. On the twenty-first of October, 1880, the said respondent Robert Eyre recovered judgment in this court against complainant for the sum of $287.12.

<p>In pursuance of written stipulation this case was tried by the court without the intervention of a jury.</p> <p>The following facts are, therefore, found by the court.</p> <p>(1) The plaintiff and the defendants in this case, respectively, claim title to the land in controversy through and under Jake Hill, who became seized thereof in fee-simple prior to' October 31, 1867.</p> <p>(2) By deed, dated and acknowledged October 31, 1867, Jake Hill sold and conveyed the land in controversy to Henry Metzger. On or about its date this deed was delivered by .Hill to Metzger, but by agreement between them it was withheld from record. Said deed was not recorded until June 8, 1876, and then without the consent or knowledge of either of the parties to it. It was recorded at the instance of some unknown person who had obtained possession of it.</p> <p>(3) The land in controversy is the undivided one-eighth part of certain tracts of timber land (described in the record in this case) situate in Jefferson county, Pennsylvania. The other owners of said lands were E. G. Carrier and. S. S. Jackson. From the date of his deed from Hill down until the summer of 1872 he (Metzger) and his said co-tenants, E. G. Carrier and S. S. Jackson, were engaged in the business of “ lumbering,” — running lumber via the Allegheny river to the Pittsburgh market, — and, in the prosecution of this business, Carrier and Jackson cut and removed timber from said tracts of land. Rt the time of the sale and conveyance to Alexander Smith, hereinafter men-tionod, Carrier and Jackson were cutting timber from said lands and accounting to Metzger for liis share. Henry Metzger lived iu the city of Pittsburgh, and never was on said land, except on three or four occasions, in the course of said lumbering business, when he visited the lands and was there during a few days. lie never took or held visible or actual possession of said land otherwise than as stated in this finding.</p> <p>(4) On the seventeenth of May, 1873, Andrew F. Baum obtained a judgment in the court of common pleas of Allegheny county, Pennsylvania, against the said Henry Metzger, for the sum of $4,451.02, which judgment was duly transferred to the court of common pleas of Jefferson county, Pennsylvania, by filing therein, on May 21, 1873, a certified copy of the record; and on the fifteenth day of December, 1875, by virtue of an execution issued from the court of common pleas of Jefferson county on said judgment, the sheriff of Jefferson county sold all the right, title, and interest of the said Henry Metzger in and to the land in controversy to Geoi-go W. Wilson, ono of the defendants, and subsequently executed to Mm a deed therefor, which was duly acknowledged September 21,1876. The defendants are in possession, and hold under this deed.</p> <p>(5) By a deed bearing date June 12, 1873, and duly executed, acknowledged, and delivered on the sixteenth day of June, 1873, the said Jake Hill sold and conveyed the land in controversy to Alexander Smith for the consideration of $15,000, which said Smith then paid to said Hill in cash. This deed was recorded in Jefferson county, Pennsylvania, on the eighth day of September, 1874, in Deed Book, vol. 29, p. 260.</p> <p>(6) At the time the said Alexander Smith bought and paid for said land and received his deed therefor, he did not know of the prior deed from Jake Hill to Ilenrv Metzger, nor had he any knowledge that said Metzger had any title to said land.</p> <p>(7) Said Smith had knowledge that Metzger was operating said land, but not how; and before he closed Ms bargain with Hill for said purchase, he (Smith) inquired of said Henry Metzger and was told by him that lie had no interest in said land, nor any objection to his (Smith’s) buying the same.</p> <p>(8) Andrew F. Baum, the plaintiff in the above-mentioned judgment, asked said Alexander Smith to buy said laud from Hill, and encouraged him to do so, — stating to Smith that the title was clear, — and he (Baum) was present when Smith paid Ills purchase money.</p> <p>(9) The said Alexander Smith was a lona fide purchaser for a valuable consideration of the land in controversy, without notice that the said Henry Metz-ger had, or claimed to have, any title, interest, estate, or claim in orto the same, and without notice that said Andrew P. Baum had, or claimed to have, any lien against the same.</p> <p>(10) Immediately alter his said purchase said Alexander Smith entered into an arrangement with His co-tenant, S. S. Jackson, to cut timber upon said tracts of land and account to him (Smith) for Ms share, and this arrangement was carried out. After Smith’s purchase Henry Metzger had no connection whatever with said land.</p> <p>(11) By deed dated and acknowledged February 20,1875, the said Alexander Smith sold and convoyed the land in controversy to the plaintiff, Duncan McBane. The consideration for this conveyance is stated in the deed to be $15,000, and the same is receipted for in the body of the deed and also at the foot thereof. This last-mentioned deed was recorded in Jefferson county,. Pennsylvania, on the twenty-sixth day of February, 1875, in Deed Booh, vol. 30, p. 14.</p>

<p>3. “County Court” — Particular Statute Construed.</p> <p>Tlie phrase “ comity court,” as used in an act to amend the charter of the Elizabethtown & Paducah Itailroad Company, approved February 24, 1868, does not moan a court composed of the county judge alone. So held, on a demurrer toa petition for the purpose of compelling a county judge alone to levy a tax on the property in his county, under the provisions of this act, to pay a judgment, which had been obtained against the county, on coupons for interest on county bonds issued to pay the county’s subscription to said railroad’s capital stock.</p>

<p>Bill for Dower.</p>

Exceptions to Report of Master. This was a bill in equity by assignees in bankruptcy to set aside, on the ground of procuration, two executions, both levied on the debt- or’s property prior to the filing of the petition in bankruptcy. A cross-bill was filed by the plaintiffs in the second execution, claiming to set aside the first execution on special equitable grounds outside of the bankrupt act.

<p>1. RECTstvniis — Accoromro.</p> <p>A receiver oí iánds, on a part of which he holds a mortgage with condition broken, must account for rent issuing out of such part as was not covered by his mortgage, where he rents them for a term which did not expire until after his appointment, and before his appointment receives the rent, which was payable in advance, for the full term.</p>

<p>1. Reissue Wo. 3,932 — Cultivator—Reference to Master — Exceptions to Master’s Report — “Nominal Damages — Costs.</p> <p>Upon a reference for tlie infringement of the first claim of reissued letters patent Wo. 3,932, granted April 26, 1870, to Julius Gerber, for improvement in cultivators, being but one element of a number composing defendant’s device, and consisting in hinging the beams of the cultivator to the pole or tongue between the evener and neck-yoke, exceptions to master’s report, finding arbitrarily, independent of any affirmative proof by the complainant, one-half the total net profit of defendant’s machine to be due to such feature, sustained, and nominal damages and costs only awarded complainant.</p> <p>2. Patent foe Single Feature of Machine — Infringement — Measure of Damages.</p> <p>“When a patent covers but one of many features of a machine, the gains on the whole machine cannot be reckoned as damages for infringement thereof, but only the gains arising from the use of the special device or element claimed by such patent.</p> <p>Seymour y. McCormick, 16 How. 490; Philp v. Nock, 17 Wall. 460; Mowry v. Whitney, 14 Wall. 620; Cawood Patent Case, 94 U. S. 710; Goulds Manuf’g Co. v. Cowing, 8 O. G. 278.</p> <p>3. Single Infringing Element — Combination with Infringing Element— Measure of Damages.</p> <p>Where a machine is composed of several elements, only one of which infringes a patent, the others making the whole a complete and operative mechanism, being covered by patents in which the complainant has no interest, ox-are public property, the complainant, cannot recover profits made by the use of such parts, even in combination with his device.</p> <p>4. Infringement — Damages—Proof—Burden of Proof.</p> <p>The complainant must show his damages by reason of the infringement by evidence. They must be proved, and not jumped at. They are not to be presumed. Philp v. Nock,, 17 Wall. 460; Blake v. llobertson, 94 U. S. 733.</p> <p>5. Same — Infringing Element not Increasing Value — Womtnal Damages.</p> <p>Where the defendant shows by affirmative proof that his machine derived no increased value in the market from the use of the infringing element, the complainant can only recover nominal damages.</p> <p>6. Same — Same—Affirmative Proof by Defendant — Absence of Proof by Complainant.</p> <p>Affii'mative proof by defendant that he has made no profit by the use of the infringing feature, supplemented by the lack of proof to the contrary by the complainant, make no record from which any damages or profits can be shown.</p> <p>7. Same — Damages—Apportionment—Burden of Proof — Evidence—Tangible — Speculative.</p> <p>The burden of proof is upon the complainant to separate or apportion the defendant’s profits and complainant’s damages between the features infringed and not infringed, and such evidence must be reliable and tangible, not conjectural or speculative; or he must show by equally reliable and satisfactory evidence that the profits and damages are to be calculated on the whole machine, for the reason that the entire value of the whole machine as a marketable article is properly and legally attributable to the patented feature.</p> <p>8. Same — Same —Absence on AeeiRmatxye Proof — Arbitrary Apportionment.</p> <p>In tlie absence of affirmative proof on the part of the complainant as to the profits made by the defendant by the use of the infringing feature, it cannot be assumed that half or any other share of the profits'made by defendant on his entire machine was due to the use of such feature.</p> <p>9. Same — Nominal Damages — Costs.</p> <p>Where nominal damages only are awarded the complainant for the infringement of his patent, the assessment of costs will depend upon the special circumstances of the case.</p>

<p>1. LETTERS Patent — Hydraulic Power Accumulator — Patent Broader than Improvement.</p> <p>Patent No. 202,660, granted for an improvement in hydraulic power accumulators, is void, because broader than tlio improvement.</p>

<p>1. Affreightment — Transhipment op Cargo — Lien—Duties.</p> <p>Where a vessel with a cargo of potatoes from the British provinces went ashore on the coast of Maine, and the master, under telegraphic orders from the shippers and consignees, sold the cargo at auction, and part of it was at once shipped in another vessel to Boston, the purchasers paying the duties; and subsequently, and before all the potatoes wore delivered, the master, under advice of the agent of the insurers of the cargo, broke off the trade, got the potatoes that had gone forward brought back, refunded the amount paid at auction and the duties paid, and reshippod all the sound part of the cargo in another vessel to New York, under a fresh bill of lading-, for delivery to the original consignees there, and afterwards brought suit to recover freight aud demurrage under the original bill of lading, and the amount of duties paid :</p> <p>Held, that the contract of affreightment was ended by the acts of 1he master in selling the cargo in Maine, and that he had no lien upon the potatoes transported to New York for the freight and demurrage provided for in the first bill of lading, nor for the sums he had refunded to the purchasers in Maine for duties paid.</p>

<p>1. Injuey to Employe on Steam-Yksshl.</p> <p>Tlie remedy given by section 4493 lor an injury to an employe on a steam-vessel is merely cumulative, and does not exclude the right to any other remedy for such injury which may be given by the general admiralty law.</p>

<p>1. Equity Pleading — Multieabiousness—Mistoindeb—Demuiuieb. ..</p> <p>Whether or not a bill is demurrable on the ground of multifariousness or misjoinder of causes of action will depend on the special circumstances, and what the due administration of justice demands, in each case.</p> <p>2. Same — Statute oe Limitations — Laches.</p> <p>A bill set out the facts that the complainants were judgment creditors, with returns of no property found, of an insolvent corporation; that the property of their common debtor was withdrawn from their reach by reason of transfers thereof to the defendants, in pursuance of a scheme to which they and the debtors were parties, though in different degrees, and, in some respects, by different acts; and that such scheme was carried out by the parties thereto with intent to hinder, delay, and defraud the complainants and other creditors. Held, that the bill was not demurrable on the ground of multifariousness or misjoinder of causes of action. Held, that, under the Wisconsin statutes, an action of this nature must be brought within six years after the fraud is discovered.</p> <p>Held, that the defence of the statute of limitations can bo taken advantage of on demurrer.</p> <p>Held, that it will not be inferred, in support of a demurrer setting up the statute of limitations, from the fact that the alleged fraud occurred more than six years prior to the commencement of the suit, that the facts constituting the frauds were discovered before that period of six years also.</p> <p>Held, also, that a demurrer, insisting on lapse of time short of the statutory period, will not be sustained, as the bill does not, upon its face and without resorting to inferences, make out a clear case of unreasonable delay on the part of the complainants after the discovery of the fraud.</p> <p>Query, whether the doctrine of laches or lapse of time can ever be invoked in a suit to which a statute of limitation applies.</p>

<p>1. Municipal Bonds — Power to Issue.</p> <p>Municipal corporations are created for governmental and administrative purposes, and not for business purposes. Their power to issue bonds or other commercial paper must be derived from legislative authority, either express or clearly implied.</p> <p>2. Holders of — Must Take Notice and Inquire, When.</p> <p>The holder of municipal bonds, in which there are no recitals to estop the municipality, is bound to know that they were issued under express legislative authority, and to inquire whether they were issued in the mode and for the purposes provided by the law authorizing their issue.</p> <p>S. When Not Commercial Paper.</p> <p>Bonds not issued in pursuance of express legislative authority, and in the mode and for the purposes provided by law, possess none of the qualities of commercial paper, but when the municipality is authorized to issue bonds under certain conditions, and the bonds contain recitals of the existence of the necessary conditions, such recitals are conclusive in favor oí a bona fide purchaser.</p> <p>4. Pleading — Burden of Proof.</p> <p>The plaintiff, in a suit upon municipal bonds, which contain no recitals as to the law, etc., under which they were issued, must aver and prove that they were issued under legislative authority, and in the mode and for the purposes provided by law.</p>

This was an action brought by Peter Boesner, administrator of the estate of George Beed, against Henry Hermann, on account of the death of Beed while in the defendant’s employ, alleged to have resulted from the defendant’s negligent use of defective and unsafe machinery.

<p>On Motion for New Trial.</p>

This is an action of ejectment. The plaintiff claims through mesne conveyances under two tax deeds, one of which was for the taxes of 1872, assessed on the land in question in the name of Mary A. Musser, under the revenue act of the Missouri legislature, approved March 3,1872; and the other for the taxes of 1875, assessed against the same land, in the same name, and under the same act, as amended by revenue act approved March 21, 1873.

An action of replevin is brought to recoverthe possession of goods alleged to have been fraudulently purchased by Harter & Claus, defendant’s assignors. The plaintiffs rescind the sale, and follow the goods, stating in their petition “that when Harter & Claus purchased the bill of goods they were insolvent, and did not expect to pay for the same.” The case was tried with a jury, and a verdict rendered for the-plaintiffs. Motion is made for a new trial.

<p>1. Criminal Law — False Returns by Postmasters — Accessories — Act of June 80, 1879.</p> <p>One who aids and ahets a postmaster in committing t-lie offence provided against by the provisions oí the act of June 30, 1879, which declares that a postmaster makign a false return shall be deemed guilty of a misdemeanor, etc., is guilty of the same offence, and liable to the same punishment, as his principal.</p>

, In Equity. Exceptions to master’s report. The suit was for infringement of patent STo. 66,692, granted to defendant on July 16,1867, for improvement in saws, and assigned to complainant The improvement consisted merely in providing the saw with a series of holes corresponding with the wear of the teeth, to facilitate dressing or filing the saw.

<p>1. Lbttjms Patent — 'Deh’knceoe Prior Patents and Publications — Pleading in Equity under Rev. St. § 4920, Surd. 3.</p> <p>The defences of a prior patent or previous description in «'printed publication. specified in subdivision 8 of section 4920 of the Revised Statutes, must, in a suit in equity, be set up in an answer and not in a technical plea.</p>

<p>1. Reissue No. 4,223 — Children’s Carriages — Novelty—'Validity.</p> <p>Reissued letters patent No. 4,223, granted January 3, 1871, to "William E. Crandall, for children’s carriages, held void for want of novelty as to first, and anticipated as to second, third, and fifth claims.</p> <p>2. Same — Same—Anticipation.</p> <p>Complainant’s riding device, cpnsisting of two profile frames representing horses, mounted on rockers, connected together with a seat, so as to allow the feet of the rider to extend downwardly between the frames, with a hinged toy-box in front of the seat, serving to hold the child in place and as a receptacle for its playthings, held, anticipated by the Brown devices — one consisting of side frames representing a horse, terminating in rockers below and connected together with a seat and foot-board, allowing the feet of the rider to extend downwardly between the frames, joined in front and rear by two vertical boards, one having extending from the front a profile horse-head, and from the rear a profile of a flying horse-tail; the other consisting of two solid frames representing an eagle or swan, continuous to and terminating in rockers below, with a seat connecting the frames together and a toy-box in front to keep the child from falling out.</p> <p>3. Same — Same—Modified Form.</p> <p>Whether the frames are the profiles or outlines of horses or are solid, or whether they are in the form of horses, eagles, swans, or of any other bird or animal, is a matter purely of taste or design, and, so far as any mechanical effect or result is concerned, is of no importance.</p> <p>4. Defence of Prior Use — Doubtful Evidence — Success of Later Device not Conclusive.</p> <p>In a defence of prior use it is oftén a controlling circumstance, where there is doubt in the proof, that, considering the success of the later device, if it had been made previously it would have attracted the attention of the trade and immediately have gone into use; but it often happens that from various fortuitous circumstances a complete invention, in a branch of business where much depends on energy and facilities and capital, fails to attract that attention which, under different and better auspices, it receives when independently produced at a later day. _</p>

<p>In Equity. Demurrer.</p>

<p>1. Letters Patent — Artificial Stone Pavements — Infringement.</p> <p>The method adopted by the defendants in laying artificial stone pavement was as follows: They first laid down a section as wide as the blocks were wanted, and tamped it down solid. When partially set these sections were out into blocks of proper length with a trowel, the trowel cutting to a greater or less depth, according to the character of the material. Into tlxo open joint thus made by the trowel was floated or rubbed some of the same material of which the block was composed. Then a top layer of finer material, containing a larger portion of cement, was laid on the lower section, pressed down, and smoothed over. The trowel was Ihen passed along the top layer, cutting partially or wholly through it, directly over the cutting below. The joint thus made in the upper layer was then smoothed over, and a joint marker, having a tongue from a sixteenth to an eighth of an inch in depth, was run over the line of the cuttings, marking oil the joints. Artificial stone pavements constructed in the mode described, as used by the defendants, are infringements of the Schillinger patent.</p> <p>2. Same — Invention—Title to UNSPEcrFiEn Benefits.</p> <p>The patentee is entitled to all the benefits which result from his invention, whether he has specified all the benefits in his patents or not.</p> <p>3. Same — Schtllingbr Patent — Infringement.</p> <p>The respondents having so constructed their pavements as to gain the advantages secured by the Schillinger patent, and by substantially the same means, they are infringers of tho patent.</p>

<p>1. Patent No. 216,293 — Apparatus fob Resweating Tobacco — Novelty—Validity — Infringement.</p> <p>Letters patent No. 216,293, granted June 10, 1879, to Abraham Robinson, for apparatus for resweating tobacco, held, not void for want of novelty by reason of letters patent No. 162,004, granted June 16, 1874, to Edmund J. Oppelt, for apparatus for coloring tobacco leaves, and letters patent No. 206,156, granted July 16, 1878, to Ernst Wenderoth, for process and apparatus for coloring tobacco leaves, held, also, to be valid, and infringed.</p> <p>2. Same — Same—“ Tight ” Construed.</p> <p>The term “ tight,” used in complainant’s claim to qualify the construction of the inner chamber or tobacco holder, construed to mean sufficiently tight to subserve the purposes of the invention. Slight crevices or openings, arising from defective mechanical construction, if not large enough to admit steam in such quantity or volume as to wet the tobacco and defeat the operation of the apparatus, will not violate such rule of construction, nor relieve such apparatus from the charge of infringepient.</p> <p>8. Same — Same—Oppelt and Wenderoth Devices — Novelty—Infringement.</p> <p>Complainant’s invention, consisting of an apparatus for resweating tobacco by packing the leaves closely in a wooden box or tub,'made substantially tight, except so far as the pores of the wood permit vapor or moisture to slowly percolate through the wood and diffuse itself with the mass of leaves, from a body of warm water and expanded steam contained in an outer tank or chamber surrounding such box, the heat being supplied by an external generator, held, not invalidated, for want if novelty, by the prior Oppelt and Wenderoth devices, consisting of metallic tanks and metallic tobacco holders within them, into which steam is directly admitted, by which the tobacco becomes wet, and, to a limited extent, cooked; and infringed by defendant’s device, having a similar outer tank, supplied with water heated by a similar external generator, but no specific, permanent inner chamber or tobacco holder, sufficiently tight to exclude moisture except through its pores; but using instead thereof the original case in which the leaf tobacco comes packed.</p>

<p>In Admiralty. Petition to establish liens.</p>

<p>1. Atoi-eralty — Collision — NEGLIGENCE — Steam-Boats with Tows — Amendment oe Libel.</p> <p>As tlie steam-boat S., with her tow of about 30 boats, was rounding West Point, on the west side of the Hudson river, on her way up, the day being clear, the steam-boal 0., with her tow, being just ahead of the S., and heading across the river to Magazine point, on the east side, the river here taking a sharp turn to the west, lliqre were disclosed to the pilot of the S. the steamer G. A. H., with her tow, coming down the river close io the west side, a schooner coming down, before a light west wind, and another heading up, and the 0., with her tow, in the position slated. The C. was taking the usual course in this narrow part of the river, the tide being strong Hood, but the S., which had been gaining on her, tried to pass her on the west, or her port side. As she was lapping the S.’s tow the schooner got in her way, while trying to make her tack to the eastward, and the S. then was compelled, in order to avoid the schooner, to head still further to the west, and then to stop till the schooner got out of the way, the effect of which was to bring her tow dangerously near to the tow of the G. A. II. The end of the S.’s tow having taken a westward swing with the tide, came in collision with the port boat, the schooner J. L. 1ST., on the first tier of the G. A. H.’s tow, thus causing the damage to the libellant’s barge on the port side of the S.’s tow; the G. A. 11., on seeing the S. change her course, having stopped, and slacked her starboard hawser, thus causing her tow to swing into the west bank.</p> <p>Held, that the libellant’s claim that the G. A. H. was in motion at the time of the collision and took a sudden sheer under the stern of the tow of the S. after passing, thus causing the collision, is against the weight of evidence.</p> <p>That such a movement was wholly uncalled for by the situation, and without apparent motive, and that the libellant’s witnesses may have been deceived on this point by the effect of the movement of their own tow.</p> <p>That the collision was wholly due to reckless navigation of the S. in keeping on at full speed in a narrow part of the river, and trying to pass the G. while the river was so obstructed that the attempt could not be safely made without serious risk of collision with one or another of the vessels she was approaching.</p> <p>Also field, that, the proof being that the S. did not keep anywhere near the eastern bank of the river, the libellant’s motion to amend in that regard should be denied.</p>

On Demurrer to Declaration. This is an action, based upon a statute of the province of Ontario, to recover damages for the death of plaintiff’s intestate by reason of the alleged negligence of the defendants.

<p>1. Municipal Bonds — Overdue Coupons — Interest.</p> <p>Coupon bonds bear interest from the date of the maturity of the respective coupons. ■</p>

<p>1. Contracts — Time Not of the Essence,</p> <p>Time is not of the essence of- a contract to convey real estate, in the absence of any express provision.’</p> <p>2. Same — Concurrent Conditions.</p> <p>When, in an agreement for the sale of real estate, the same day has been fixed for the payment of the money and the delivery of the deed, the two sides of the contract will be mutual and concurrent conditions.</p> <p>3. Same — Tender of Performance.</p> <p>The expression of a willingness to give a deed is not a sufficient tender of performance where the agreement was to givo a deed and also assign an interest in a lease.</p>

<p>1. Railroads — Eminent Domain — Limitation.</p> <p>■, Land already acquired by one railroad corporation, and held for the necessary enjoyment of its essential franchises, cannot be condemned and appropriated in the usual way by another corporation.</p> <p>2. Same — Ultra Vires.</p> <p>A railroad can only acquire and hold an amount of real estate commensurate with its necessities.</p> <p>3. Same — Same—Presumptions.</p> <p>Whether or not this limit has been overstepped is a proper subject of judicial investigation, where the controversy before the court arises from an alleged encroachment by another corporation; but every reasonable intendment must be made in favor of the corporation that was the first to acquire title.</p>

<p>1. Mimbral Lands — Discovert—Its Validity.</p> <p>If the outcrop of a vein or body of mineral-bearing rock is found on the surface, the discoverer has the period of 60 days from the date of the discovery to-show that the vein or body of rock is in place at a depth of 10 feet or more from the surface.</p> <p>2. Same — Notice</p> <p>A locator, under a notice containing no specification or description of the-territory claimed by him, has a claim only to the very place where the discovery stake was set up.</p> <p>3: Ejectment.</p> <p>To maintain an action of ejectment it must be shown either (1) that a perfect location has been made, and that there has been dispossession; or (2) that the failure to perfect the location was due to the wrongful act of the-defendant.</p> <p>4. Equity.</p> <p>One cannot take advantage of his own wrong.</p>

<p>1. National Banks —State Taxation — Revenue Law of Indiana of 1872— Rev. St. § 5219.</p> <p>By the revenue law of Indiana of 1872, capital represented by credits, which include money at interest within or without, the state, is not taxed for its full or fair value, but only on the balance which may remain after deducting the amount of 1he tax-payer’s bona fide indebtedness; while capital represented by national bank stock is taxed according to its fair value, without allowance for debts. Held, that the law is in conflict with section 5219 of the Revised Statutes, and therefore invalid. Held, also, that only such shareholders are entitled to relief as are subject to taxation in the state upon their credits, and who, at the time of the assessment of taxes under this law, had debts which were not deducted from their credits, because they had none, and which were not deducted from the valuation of the bank shares, because the state law would not permit it to be done.</p> <p>2. Same — Illegal Taxation — Pabtitos—Injunction.</p> <p>The bank, under the law of the state, is a proper parly to institute a suit for the purpose of enjoining the collection of taxes illegally assessed upon shares of its stock in the hands of the respective owners.</p>

This is an action of debt for legacy tax. The facts, as set forth in the petition, are as follows: On tlie eighteenth, of July, 1870, Ann Orr Kankin, a subject and resident of Great Britain, who liad never resided in the United States, died, testate, in Ireland. At the date of her death she owned real estate and personal estate both in Ireland and the United States. The latter property, situate in St. Bonis, had been long held and managed by her agent in said city.

<p>1. Bankruptcy — Equity Practice — Amendments under Equity Kule 29.</p> <p>Amendments, regularly made under equity rule 29, cannot be avoided by a motion to strike from the record, or set aside, the order allowing them,</p> <p>2. Equity Pleadinc.</p> <p>Semble that a bill to set aside a conveyance by the bankrupt, on the ground of fraud, is demurrable in the absence of anjr allegation that the fraud was discovered within the time prescribed by the statute.</p>

<p>1. Receivers — Removal.</p> <p>The relationship of a receiver to the complainant is not a sufficient ground for his removal, where the bankrupt admits that he was a party to a fraudulent transfer and concealment of his property.</p> <p>2. Same — Counsel.</p> <p>In such a case the receiver may employ the complainant’s solicitor.</p>

<p>1. United States Pension Laws — Indictment Under Ret. St. $ 5485 — Motion TO (JUASII.</p> <p>Tlie aot of June 20, 1878, (20 St. 243,) entitled “An act relating to claim agents find attorneys in pension cases,” does not, impliedly repeal the provisions of Rev. St.a § 5485, relating to the oil'ence of demanding, receiving, etc., unlawful fees by claim agents in pension cases, and those provisions of Rev. St. <S 5485, obtain and apply to violations of the act of June 20, 1878.</p>

This is a civil suit, in the nature of an action of debt, to recover from defendant a penalty of $1,000, for having violated the law of the United States by being in the Indian country contrary to said law.

Habeas corpus proceeding to release the relator, Houghton, who was convicted and sentenced by a state court to imprisonment upon an indictment for passing a counterfeit national bank note. The opinion states the case.

<p>1. Criminal Law — Discharge—Right to — Probable Cause.</p> <p>A defendant, who is held to await the action of the grand jury, is entitled to ’ ■ his discharge on the discharge of the jury, when no indictment has been found against him. Held, also, that there was then no longer arw necessity for this court to pass on the question whether probable cause had been shown for holding him to await the action of the grand jury.</p>

<p>1. Letteks Patent — Imtbovement in Lamp Chimneys.</p> <p>Reissued letters patent, granted May 8, 1877, to Frederick S. Shirley, for an improvement in lamp chimneys, are valid.</p> <p>2, Same — Affirmative Defence — Bukhen of Piioof.</p> <p>The burden of proof is on the defendant to establish his affirmative defence beyond a reasonable doubt.</p>

<p>1. Letters Patent — Improvement in Cords for Wrapping Thread.</p> <p>iieissued letters patent No. 6,751, granted November 16,1875, to Hugo Sutro, for an improvement in cords for wrapping tliread, aro not infringed by the device of August Moll.</p> <p>2. Same — Extent of the Patent.</p> <p>In view of arrangements already in use, the reissue musí, ho limited to covering sections strictly attached and requiring outimg io auuttuu mew.</p>

<p>1. LETTERS Patent — Folding Ohairs — Infringement.</p> <p>Letters patent Wo. 96,778, for an improvement in folding cliairs, granted November 16s 1869, to Claudius O. and Nicholas Collignon, are infringed, as to , claim 1, by chairs made under and in accordance with letters patent No. 221,-i .• 062, granted to the defendant, October 28, 1879.</p> <p>2. Infringement — Formal Changes.</p> <p>Where the same result is effected by corresponding parts and by an identity ' in the mode of operation, mere.formal changes will not avoid infringement.</p> <p>& Preliminary Injunction — Delay.-</p> <p>Where- the patentee gave prompt notice to an infringer to cease infringing, and, in the period of two years intervening between the time when the fact of 'the infringement first became known-tohim and the date of the commencement of legal proceedings, repeated the notice, three times, and where, during this time, the business engagements of the patentee were many and pressing, and no .affirmative encouragement was ever given by him to the infringer, 7¿«kZ,that the right to a preliminary injunction, in a case otherwise plain, will not be affected-by the delay.</p>

<p>1. Letters Patent — Globe Holders — Novelty—Invalidity.</p> <p>Reissued letters patent No. 7,28ü, i'or an improvement in globe holders, are invalid i'or want of novelty.</p>

<p>1. LetteRS Patent — Novelty—Inventive Skill.</p> <p>Mechanism for adjusting the disks on the face plate of sewing machines by a thumb-screw on. the top of the face plate, whereby the means of regulating the tension of the thread is accessible to the right hand, as well as to the left, of -the operator, is novel and involves the exercise of sufficient skill to entitle the inventor to a patent.</p> <p>2. Same — Infringement—Substitution of Equivalents.</p> <p>The substitution of well-known equivalents, for the minor parts of complicated mechanism, will not prevent infringement if the same result is accomplished by the two machines in substantially the same way.</p> <p>3. .Same — Sewing Machines — Infringement.</p> <p>Letters patent No. 214,513 are infringed by a machine having a thumb-screw at the top of the face plate to adjust the t'ension'of the thread by working a rigid lever of the first order inside the face plate, connected with the disks in the same manner as in the others, but having a coiled wire spring between the lever and thumb-screw to relieve against the latter’s action.</p>

<p>1. Damage — Tug an» Tow — Stranding in Creek.</p> <p>Where a tug, talcing a canal-hoat up a narrow creek, only navigable at high water, grounded by careless navigation, and, the tow left to itself, also grounded and received damage in consequence, held, that the tug was liable l'or such damage, it being her duty to keep herself oil the bank so as to control the movements of the tow and prevent injury to it.</p>

<p>1. Constitutional Law — Maryland Oyster Law oe 1880 — Seizure oe Vessel —Notice.</p> <p>Under the Maryland oyster law of 3880, an oyster schooner, found dredging in the Chesapeake hay without a license, was seized, and with her master and crew carried into Annapolis hy the state oyster police. The master and crew wore tried before a justice of the peace and fined, and upon non-payment of the fine the vessel was forfeited and sold.</p> <p>Held, that the forfeiture and sale were valid; that the law was not repugnant to the state constitutional provision that in all criminal prosecutions every man shall be entitled to trial hy jury.</p> <p>Held, also, that the law was not repugnant to the provision of the federal constitution that no state shall deprive any person of his property wilhout duo process of law.</p> <p>Held, that the seizure of the vessel was notice to the owner, and that, as the law provided for an appeal hy the owner from the decree of forfeiture, ho could make himself a party to the case and defend his rights.</p>