Volume 80 — Federal Reporter

The Indiana Manufacturing Company, the appellee, a corporation organized and existing under the laws of the state of Indiana, brought suit in the court below against the appellants, who were, respectively, Sterling It.

Some time in the fall of 1896, Story & Bunnell, of Baltimore, Md., had judgments entered on certain cognovit notes against the Linthicum Carriage Company, of Defiance, Ohio, in the court of common pleas of Marion county, Ohio, and on these judgments levies were made on the property of the corporation at Defiance. Subsequent judgments were taken in favor of the First National Bank of .Defiance and other parties, and levies followed.

<p>Fedebal Ooubts—State Decisions.</p> <p>The decisions of the supreme court of Illinois to the effect that an abutting lot owner in that state cannot stop the construction of a railroad in the street, that his remedy is in damages, and that a proceeding to enjoin must be by the city or attorney general, are binding upon the federal courts.</p>

This was a suit in equity brought by the Youngstown Bridge Company against Brazoria county, Tex., and others, to obtain a construction and reformation of a contract entered into between it and Brazoria county, and praying that an action at law upon the contract be suspended until the further order of the court. A decree having been rendered in favor of complainant, reforming the contract as prayed, defendants have appealed.

<p>1. Railroad Receivers—Affirmance of Sale—Rights of Bondholders.</p> <p>The S. R. Co. entered into an agreement with the A. R. Co. and two other railroad corporations hy which the S. Co. agreed to sell a certain described line of railroad, without equipment, to the A. Co., for a stipulated sum, of which a large amount was to be paid in cash, and the rest either in cash or in bonds of the A. Co., the payment of the purchase price being guarantied hy the other two companies in consideration of their interest in securing a connection over the line sold. It was also agreed that, as the S. Co. could not then give a clear title, it should lease the line in question to the A. Co., until it could give clear title, for a stipulated rental, including all taxes on the property, such rental being also guarantied by the other two companies. The A. Co. took possession of the line, and afterwards executed a mortgage covering it, with other property. In a suit for the foreclosure of this mortgage, subsequently brought, receivers of the road were appointed, who paid the rental and taxes under the agreement with the S. Go. from time to time, In part with the proceeds of receivers’ certificates issued upon their representations of the necessity to the mortgaged road of the line sold by the S. Co. Held,_ that the agreement between the several companies was not a mere lease,' but was a contract for a sale, the conditions of which the mortgagees who derived their rights under it could not, while asserting such rights, he permitted to disaffirm; but, if ever open to disaffirmance, the acts of the receivers had affirmed it.</p> <p>2. Same—Resisting Tax Assessment—Costs of Litigation.</p> <p>Prior to the appointment of the receiver of the A. Co., the S. Oo., to which the taxes on the line in question were assessed, objected to an increase, hy the California state hoard of equalization, of the assessment of its property, including said line, and sought, by litigation extending over several years, to reduce such assessment, and, having failed to do so, presented a claim to the receiver of the A. Co. for a proportional part of the amount paid hy it, including interest, penalties, and costs. Held, that as the contract under which the A. Co. held the line in question provided for the payment of taxes, and as the receivers had been directed in the order appointing them to pay the taxes due and to become due, the receiver should now he directed to pay the tax, and, as the A. Co. had assented to the contest instituted by the S. Co., they should also he required to pay a proportionate share of the interest, penalties, and costs.</p>

Suit by the American Loan & Trust Company, as trustee, to foreclose a mortgage upon property of the Union Depot Company of Spokane Falls, given to secure negotiable bonds to the amount of |500,000, and coupons for interest to accrue semiannually. On final hearing.

<p>1. Mortgages—Liability of Mortgagor’s Vendee—Subrogation.</p> <p>A. grantee of land is not directly liable to his grantor’s mortgagee, at law or in equity; and the only remedy of the mortgagee against such grantee is by bill in equity, in the right of the mortgagor and grantor, by virtue of the right in equity of a creditor to avail himself of any security which his debtor holds from a third person for the payment of the debt.'</p> <p>2. Same—Subrogation—Defenses by Vendee.</p> <p>Complainants sold a tract of land to M. and H., retaining a vendor’s lien for part of the purchase money. M. and H. sold the land to defendants. Subsequently complainants filed their bill against defendants, to which M. and H. were not parties, to obtain satisfaction of a deficiency arising on the foreclosure of their vendor’s lien out of the indebtedness of defendants to M. and H. for the purchase money of the land. Defendants, in their answer, set up, as a defense to the enforcement of such indebtedness, false representations made by M. and H. to induce defendants to purchase the land, and notice given by them to M. and H. of a rescission of the contract. Held that, as against complainants seeking relief by subrogation to the rights of M. and H., defendants were entitled to avail themselves of such misrepresentations as a defense simply, and were not restricted to presenting the same by cross bill for affirmative relief, to which M. and H. would be necessary parties.</p> <p>3. Subrogation—Defenses—Debtor’s Fraud.</p> <p>Where a creditor is seeking to obtain satisfaction of his claim through subrogation to the rights of his debtor against a third party, the utmost good faith on his own part will not entitle him to prevail, if it appears that his debtor has been guilty of such fraud as to defeat his rights against said third party.</p> <p>4 Vendor and Purchaser—Misrepresentations.</p> <p>The evidence discussed, and found to show misrepresentation in a sale of mining land.</p>

<p>1. Reformation of Contracts—Mistake.</p> <p>A clerical mistake by one party in reducing the terms agreed upon to writing, winch is either shared in or known to be a mistake by the other party a.t the time of executing the contract, is sufficient ground for decreeing a reformation.</p> <p>2. Same.</p> <p>The owner of a patent for day shingles proposed in writing to give to a manufacturer a license for certain states, and, among other provisions, stipulated that the licensee was to pay royalties upon at least 3,000 squares of the patented shingles each year. After some negotiations, resulting in modifications of other provisions, but without any objection by either party to this stipulation, the licensee by letter authorized the licensor to draw up a contract on the basis of the terms agreed- upon. These terms were set forth in the letter, but with a statement that royalties were to be paid, in any event, on 30,000 squares per annum, instead of 3,000. Held, on the evidence, that this was a clerical error known to be such by the licensor at the time of executing the contract, and that a reformation should therefore be decreed.</p>

<p>This was a suit in equity by A. B. Moore, receiver of the Great Western Manufacturing Company, against the American Loan & Trust Company of Boston and others, to set aside a mortgage as void, on the ground that it was made in contravention of the insolvent law of Minnesota.</p>

<p>1. Resulting Trusts—Redemptions from Foreclosure Sale — Evidence as to Advances.</p> <p>Testimony and circumstances held to show that certain moneys furnished by a savings bank to aid in effecting the redemption of real estate from foreclosure and tax sales were in fact a loan to the original owner, and that the legal title which became vested in the bank after redemption was held merely as security and in trust for such owner, so that his personal representatives were entitled to redeem it.</p> <p>S. Constitutional Law—Taxation of Mortgages—Trust Deeds.</p> <p>Const. Cal. art. 13, § 4, requiring the interests of mortgagors and mortgagees to’ be separately assessed, and making void any contract by which the debtor is bound to pay the tax of the mortgage interest, applies to a trust deed intended as a mortgage.</p> <p>8. Same—Retrospective Effect.</p> <p>The provision of the constitution requiring separate assessment and taxation of the respective interests of mortgagor and mortgagee applies to mortgages made before the adoption of the constitution, where the only stipulation was for interest at a fixed rate.</p> <p>4. Mortgages—Redemption from Sale—Taxes.</p> <p>Where a mortgagee, holding under a trust deed, claims the entire ownership, and returns the entire property in his own name for taxation, the mortgagor, on being decreed to have a right to redeem, will be charged only with the taxes properly assessable against his equity of redemption.</p> <p>5. Tender—Acts Excusing Tender.</p> <p>Under Civ. Code Cal. § 1511, subd. 3, two things are necessary to excuse a tender: (1) An act of the creditor, intended or naturally tending to induce the debtor not to make it, and (2) the effect thereof in actually inducing him to withhold it; and, if the debtor was not prepared to make a tender, the creditor’s act does not excuse him.</p>

This is a bill in the nature of a creditors’ bill, on behalf of the complainant and such other creditors of the defendant corporation as may desire to join the complainant in this suit.

<p>1. Chattel Mortgages—Foreclosure—Equity Jurisdiction.</p> <p>Equity has jurisdiction to foreclose a chattel mortgage when the actual sum due is in dispute, the remedies at law being then inadequate.</p> <p>2. Federal Courts—Jurisdictional Amount.</p> <p>When the amount claimed exceeds the jurisdictional amount, but defendant sets up a payment reducing the sum below that amount, the court has jurisdiction if, in order to ascertain the amount actually in controversy, it must consider conflicting testimony, or decide disputed questions of law.</p> <p>3. Same—Value of Property Mortgaged.</p> <p>In a suit to foreclose a chattel mortgage, the amount in controversy, as affecting the jurisdiction, is not determinable by the value of the property mortgaged.</p> <p>4. Foreclosure of Chattel Mortgage—Appointment of Receiver.</p> <p>In a suit to foreclose a chattel mortgage, a receiver will not be appointed where it appears prima facie that the mortgagor company is solvent.</p>

<p>1. Private Corporations—Appointment of Receivers.</p> <p>A receiver will not be appointed for a solvent private corporation at the instance of individual stockholders, on the ground that its officers and directors have changed its business from a large wholesale grocery business to a comparatively small specialty business, and have otherwise mismanaged its affairs, in the absence of evidence showing usurpation, fraud, ultra vires, gross negligence, or breach of trust.</p> <p>2. Same.</p> <p>All questions of policy respecting the management of the business of a private corporation must be' left to the sound discretion of the directors, and their acts done in good faith, if within the powers of the corporation, and in furtherance of its purposes, cannot be called in question in judicial proceedings by individual stockholders.</p>

<p>1. State Statutes—New Trial—Rulf, of Property.</p> <p>Rev. St. Ohio, § 5806, providing that “a new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages equal the actual pecuniary injury to the plaintiff,” cannot be read as a proviso to section 6184, giving a right of action for the unlawful killing of another, and is therefore not a rule of property binding on the federal courts in an action under the latter section.</p> <p>2. Roles oe Practice—When Binding on Federal Courts.</p> <p>Rev. St. § 914, providing that the practice and inodes of proceeding in the federal courts shall conform as near as may be to the practice in the courts of record of the state within which such courts are held, does not disturb the settled law of the federal courts with respect to granting or refusing new trials, and a state statute providing that a new trial shall not be granted on account of the smallness of damages is not binding on a federal court.</p> <p>8. Constitutional Law—Statute Impairing Right of Trial by Jury.</p> <p>A state statute providing that a new trial shall not be granted on ac-' count of the smallness of the damages is, if applicable to the federal courts, in violation of the seventh amendment to the federal constitution, which provides that “the right of trial by jury shall be preserved, and no-fact tried by jury shall be otherwise re-examined in any court of the-United States than according to the rules of the common law."</p>

Action, under provisions of interstate commerce act, to recover damages for alleged overcharges. Submitted on demurrer to petition.

<p>Í. New Trial—Newly-Discovered Evtofnoe.</p> <p>A new trial will not be granted upon tlie ground of newly-discovered evidence, where the party making the application had heard rumors which, if followed up, would have led to the discovery of the evidence before the trial, or where the new evidence would be merely cumulative.</p> <p>2. Insane Persons—Competency as Witnesses.</p> <p>Where one who has been adjudged to be insane is offered as a witness, the inquiry for the court on the preliminary examination is limited to his understanding of the obligations of an oath and ability to comprehend the examination as a witness, and, if he can stand this test, the effect of his alleged insanity upon his credibility is for the jury.</p> <p>3. Same—New Trial.</p> <p>Where there can be no doubt, from what occurred at the trial, that a witness who had been adjudged to be insane would have stood the test of any examination as to her sense of the obligation of an oath, the court will not grant a new trial merely because there was no such preliminary examination.</p> <p>4. Trespass—Use of Force to Prevent.</p> <p>One who is a trespasser undertaking to carry away the property of another cannot complain if the owner lays hold of the property and takes it from him, provided excessive violence is not used; and this is true even though the taking away might have been prevented by detaining the trespasser without the use of any violence or physical force.</p> <p>5. Practice—Insufficiency of Evidence to Support Verdict.</p> <p>It does not follow, because a case ought to be submitted to a jury, that the court should let the verdict stand; and while the time might come when it would be the duty of the court to yield even to the perversities of the jury, and not any longer interfere with their verdict, two verdicts are not ordinarily conclusive of that duty.</p> <p>6. Same.</p> <p>In actions to recover damages for personal injuries, the court should exercise the right of inspection of the verdict more readily and freely than In other classes of cases, where the occasion for its exercise does not so often arise; and where the alleged injury is hidden, and the plaintiff depends largely for success upon the bare opinions of medical men employed by him as expert witnesses, the court should be more vigilant than where the in-, jury is obvious.</p>

<p>t. Habeas Corpus—Federal and State Courts.</p> <p>The United States courts will not, except, perhaps, under extraordinary 'circumstances, take jurisdiction, by means of the writ of habeas corpus, over proceedings in state tribunals, even though it is alleged that a constitutional right is involved; and where such a question has been determined by the highest court in the state, upon the general allegation of an illegal imprisonment, the proper proceedings for review are for a writ of error to the supreme court of the United States.</p> <p>2. Same.</p> <p>A United States court will not grant the writ for the discharge of a prisoner in custody for contempt under the resolution of a state senate, upon the ground that his detention is contrary to the constitution of the United States, where there has been an inquiry in the supreme court of the state involving the whole question of the legality of the detention and of the contempt proceedings, which are matters peculiarly within the exclusive jurisdiction of the state.</p>

<p>Appeal from the 'Circuit Court of the United States for the Western-District of Wisconsin.</p> <p>The Sterling Remedy Company, the appellant, filed its bill against the Eureka Chemical & Manufacturing Company to restrain the alleged infringement of a trade-mark, and also upon the ground of unfair competition in trade. The appellant manufactures and deals in a so-called remedy or cure for the tobacco habit, which is sold under the trade-mark “No-To-Bae.” The remedy is prepared in the form of a lozenge or tablet, and is contained in an ordinary tin tobacco box. The lozenge or tablet is round, of a light, greyish hue, with the designation or trade-mark of “No-To-Bae” in large raised letters upon one side and forming part of the lozenge. The covering of the box is of a dark red ground, and has printed upon the upper side, in black letters, the following:</p> <p>“No-To-Bae. Trade-mark registered. Is a Positive and Permanent Cure for the Tobacco Habit in every form. It is Nature’s Own Remedy. It is entirely harmless, being of vegetable origin. It will build up, fortify, and rejuvenate the weak and unstrung nerves, and eradicate the "poisonous nicotine from the system. It will increase the appetite and digestive power, enrich and purify the blood. From ONE to THREE BOXES guaranteed to cure any case, if used as directed. PRICE, $1.00. Made only by the STERLING REMEDY COMPANY, Indiana Mineral Springs, Warren Co., Indiana. Chicago office, 45 and 47 Randolph St.”</p> <p>On the reverse side is the following:</p> <p>“Directions for the use of NO-TO-BAC. CURE FOR THE' TOBACCO HABIT IN EVERY FORM. Immediately discontinue the use of TOBACCO, and use 7 to 10 tablets a day by placing them in the mouth, and allowing the-tablet to gradually dissolve before swallowing. In this way you get the prolonged action of No-to-bac upon the secretive glands of the mouth. During treatment the bowels should be kept open. One or two free actions EVERY day will greatly assist the medicine in expelling the nicotine from the system. CONTINUE THE USE OF NO-TO-BAC until the desire for tobacco and its effects upon the system are completely eradicated. Patients writing about their case and asking advice, etc., must inclose stamp for reply. Address THE". STERLING REMEDY COMPANY, Indiana Mineral Springs, Warren Co., Ind. Chicago office, 45 and 47 Randolph St.”</p> <p>This box is sealed with a sealing label of reddish pink, having upon it the-complainant’s name in script letters, and the following printed thereon: “Not. genuine unless signed by The Sterling Remedy Co. Chicago, New York, Montreal. Laboratory, Indiana Mineral Springs, Ind.”</p> <p>The appellant at one time used a wire rack, adapted to hold three boxes arranged in a triangular form together with a show card; these racks being used principally by retail dealers in the article. It also used and distributed a booklet containing descriptive matter calling attention to the article and to its merits as a cure, and containing fac simile representations in black and white of the box in which the remedy was packed, and of the imprint and of the label for sealing and of the wire rack.</p> <p>The answer of the appellee admits that since the 1st day of July, 1894, it has prepared and put upon the market and sold a certain other alleged remedy or cure for the so-called “tobacco habit,” which preparation is put up and sold in an ordinary tin tobacco box of the same form and size as that of the complainant. The article is also in the form of a tablet or lozenge, of dark brown or black color, somewhat smaller than the lozenge manufactured by the complainant, and of less weight, and without any trade-name thereon. The defendant’s lozenge has a strong odor of licorice; the complainant’s lozenge is nearly or quite odorless. The imprint of the label upon the defendant’s box is green upon a white ground. Upon the top of the box is printed the following:</p> <p>“BACO-CURO. Trade-Mark. A SCIENTIFIC, RELIABLE, AND HARMLESS CURE FOR THE TOBACCO HABIT IN EVERY FORM. It builds up the system, enriches the blood, tones up the stomach, and increases the appetite and digestive power. It cures tobacco dyspepsia that so many tobacco users suffer with. Makes weak, nervous men strong and vigorous. Good, sound, refreshing sleep and a decided gain in weight and general health follows the first few days’ use. We guarantee to cure any case with from one to three boxes. Price $1.00. Prepared only at the laboratory of EUREKA CHEMICAL & MFG. CO., La Crosse, Wis., U. S. A. Read bottom of box.”</p> <p>Upon the reverse side are the following directions:</p> <p>“DON’T STOP TOBACCO when you begin taking a cure, AND DON’T BE IMPOSED UPON by buying a remedy that requires you to do so. Any-person can stop short on tobacco, and take a piece of gum or a cough drop in his mouth, every hour or two, as a substitute, and by keeping the bowels open, to more quickly work the nicotine out of the system, can practically curé himself, as well as by taking some so-called cures that require this mode of treatment. But it requires a strong will power to stay cured, as you always remember tobacco with a relish, and it will take years to outgrow the desire for it. BACO-CURO does not require you to stop tobacco when you begin the treatment. IT WILL NOTIFY YOU WHEN TO STOP. Your desire for tobacco will cease, and it causes you to remember it with disgust, not a relish, as other so-called cures do. You don’t care for tobacco any more than before you commenced using it. BACO-CURO does not rely upon your own will power to cure you, it does its work unaided, and leaves your system as pure and free from nicotine as the day before you took your first chew or smoke. BACO-CURO is compounded after the formula of an eminent German physician, who has prescribed it in his private practice since 1872 to hundreds of eases without a single failure, when directions have been followed. This formula is controlled exclusively by us in North and South America. Prepared only at the laboratory of EUREKA CHEMICAL & MFG. CO., La Crosse, Wis. U. S. A. Directions inside.”</p> <p>The sealing label on the bpx has the following, the name being in script, but much heavier in design than that on the sealing label of the appellant: “None genuine without Eureka Chemical & Mfg. Co. This signature.”</p> <p>There was given considerable evidence tending to show that in the transactions between the defendant and its .agents circulars similar in character to those of the complainant were used, and contracts with agents were of a similar nature with those used by the complainant. The hearing was had upon stipulation that the cause should be presented upon bill and answer “and upon such affidavits as the parties might see fit to produce, except that—First, no affidavits or testimony of any kind are to be produced on either side tending to show specific instances of failure to comply with the respective guaranties of the parties; and, second, that no affidavits or testimony of any kind shall be introduced tending to show that either of the remedies, that of the complainant or that of the defendant, is what is called a ‘quack ihedieine,’ or in relatién to the character or efficiency of such remedies.” Copies of the affidavits were to be served upon the opposite parties by a specified date. At the hearing a large number of ex parte affidavits were presented, and the bill was dismissed upon its merits.</p>

<p>1. Patents—Construction.</p> <p>A patentee cannot insist on the construction of his patent which will include what he was expressly required to abandon as a condition of the grant, even if this takes away a part of the real invention.</p> <p>'2. Same—Breaking-Carts.</p> <p>The Putnam patent, No. 232,207, for an improvement in breaking-carts, is confined by the language of the claim and the patentee’s acquiescence in amendments required by the patent office to a cart in which the foot-board is sustained below the shafts by straps passing beneath the axle.</p>

<p>1. Patents—Actions on Several Patents—Misjoinder.</p> <p>A suit can be maintained on several patents only when the inventions covered thereby are embodied in the alleged infringing machine, process, manufacture, or composition of matter; and where the averment is that defendant’s machines embody “either the whole, or one or more, of the said inventions” contained in the patent sued on, the bill is demurrable.</p> <p>2. Same—Misjoinder of Df.fendants. •</p> <p>A joinder of defendants alleged to be infringers is bad, unless they are alleged to be joint infringers.</p> <p>8. Same—Pleading.</p> <p>A bill which fails to show that the invention of the patent sued on was not patented or described in some printed publication in this or some foreign country prior to the patentee’s alleged invention thereof is demurrable.</p>

<p>1. Patent Infringement Suits—Preliminary Injunction—Judgment of Appellate Court.</p> <p>On application for preliminary injunction against infringement, a judgment of the appellate court in another action, declaring the patent valid, will be deemed conclusive on the court as to that question.</p> <p>2. Same—Invalidity of Patent—New Evidence.</p> <p>New evidence of the invalidity of a patent which has been declared valid by the appellate court in a prior case, to prevent the granting of a preliminary injunction against its infringement, must be such that, had it been introduced in the prior case, it would probably have 'produced a different decision,</p>

<p>1. Patents—Vapidity—Infringement.</p> <p>The Bowers patents, No. 318,859 and No. 355,251, for hydraulic dredging machines, construed, and held valid and infringed as to claims 10, 16, 25, 53, 54, and 59 of No. 318,859, and claims 13, 17, and 18 of No. 355,251, by machines constructed under the Von Schmidt patents, No. 277,177, No. 300,-333, and No. 306,368. Bowers v. Von Schmidt, 63 Fed. 572, affirmed.</p> <p>2. Same—Extent of Claims—Pioneer Invention.</p> <p>The Bowers patents disclose and cover inventions of a pioneer character standing at the head of the art, and their claims are entitled to a broad and liberal construction.</p> <p>3. Same—Functional Claims.</p> <p>Said claims are not functional in form, nor are they claims for results, nor are they limited to any particular form of construction of the elements which make up the combinations, but they are broad generic claims, without any limitation as to the form of construction of the particular elements; and all subsequent machines which employ substantially the same means to accomplish the same result are infringements, notwithstanding the subsequent machine may contain improvements in separate mechanism 'which go to make up the machine.</p> <p>4. Sauk—Aggregation.</p> <p>The Bowers claims are not mere aggregations, because the result produced is the product of the combination in which each element affects the action of all the others, and all of the elements co-operate in the one result of severing by the forward and side action of the machine the material in place where it is not wanted, and depositing it in another place where it is wanted.</p> <p>5. Same—Generic and Specific Claims.</p> <p>A pioneer inventor is entitled in his patent to a generic claim, under which will be included every species of the genus; and, in addition thereto, he is entitled in the same patent to make specific claims for one or more species of the genus.</p> <p>6. Same—Rotary Excavator with Inward Delivery.</p> <p>The terms “inward delivery,” in a claim for an excavator, have direct reference to the mechanism itself, and cannot properly be limited to the description or effect of such mechanism. The clear meaning of a claim to “an excavator having inward delivery” or “with inward delivery through itself” is an excavator so constructed as to produce an inward delivery.</p> <p>7. Same—Von Schmidt Excavator.</p> <p>The Von Schmidt excavator shown in his patents Nos. 277,177 and 300,-333 is a rotary excavator with inward delivery to a nonrotating suction pipe, within the above definition.</p> <p>8. Same—Originality of Bowers’ Invention—Date of Same.</p> <p>Bowers did not derive the ideas contained in his patents from Von Schmidt, or any model or machine of Von Schmidt, hut he was the original and first inventor thereof, and the date of such invention is July 13, 1864.</p> <p>9. Same—Anticipation—Time of.</p> <p>The defense of anticipation, to be successful, must be established as of a date anterior to the patented invention, not merely prior to the application for or date of the patent.</p> <p>10. Same—Early Drawings and Models.</p> <p>As against the defense of anticipation, the patentee may show the fact of invention by drawings, sketches, models, or any other competent proof.</p> <p>11. Same—Abandonment—Reasonable Diligence—Standard of Proof.</p> <p>Delay in applying for a patent after an invention is made will not constitute abandonment, where the inventor has used reasonable diligence to perfect the invention, and avail himself of its benefits; and there is no' general standard by which such diligence is to be established, hut it must be reasonable under all the circumstances of the particular case. Tested by this rule, held, that Bowers did not abandon bis invention.</p> <p>12. Same—Fault in Original Machine.</p> <p>The fact that the first machine built by a patentee, whose patent is sued' on, was not successful in operation, is unimportant, and no reason for denying him relief, especially where his subsequent machines have proved successful in practice.</p>

<p>1. Patents—Infringement.</p> <p>Structural characteristics of a device, which are. distinguished and made essential in a patent claim, must necessarily be found in any infringing device.</p> <p>2. Same—Anti-Rattlers for Thill Couplings.</p> <p>The Blair patent, No. 334,842, for an anti-rattler for thill couplings, made of a plate of steel or other suitable elastic material bent upon itself, and adapted to be inserted between the ears of a jack-clip, is expressly limited to the special form of device described, and is not infringed by a device of a different form which lacks some of its parts.</p>

<p>1. Towage—Duty op Tug.</p> <p>A tug is neither a common carrier nor an insurer, nor is the highest possible degree of skill and care exa cted of her. She is bound to exercise reasonable care and skill in the performance of the duty assumed, and failure therein is a gross fault, creating liability for resulting injury to the tow.</p> <p>S. Same—Presumptions.</p> <p>No presumption of negligence on the part of a tug arises from the mere fact of an injury to her tow, and the burden of proof is upon the tow to-show by the evidence and the reasonable probabilities of the ease that the tug was guilty of the fault charged through failure to exercise ordinary skill and care.</p> <p>8. Same—ConnrsiON or Tow with Dock—Evidence.</p> <p>Evidence and circumstances held insufficient to show that the collision of a schooner in tow of a tug with a dock in the harbor of Milwaukee was due to the negligence or want of skill and care of the tug.</p>

These were libels filed by the Commercial Towboat Company, by Lewis Luckenbach and others, and by the Morning Journal Association, against the steamer George W. Clyde, to recover compensation for alleged salvage services.

<p>This was a libel by Israel J. Merritt and others against the steamship Lamington to recover compensation for salvage services.</p>

<p>Federal Jurisdiction—State as Nominal Party.</p> <p>Under Rev. St. Mo. 1889, §§ 527, 531, 532, attachment bonds are payable to the state, and may be sued on at the instance of any party injured, in the name of the state, to his use, and defendant may avail himself of any set-off he may have against the party to whose use the suit is brought with the same effect as if such party were the plaintiff, etc. Helé, that in suits on such attachment bonds the state is merely a formal party, whose presence cannot oust the jurisdiction of the federal court.</p>

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

<p>1. National Banks—Taxation of Capital and Stock.</p> <p>Tbe Montana statute (Pol. Code, § 3692) provides for assessing shares of bank stock to the owners thereof, and, to aid the assessors in determining their value, requires the bank to furnish a verified statement showing the amount and number of shares of its capital stock, surplus, etc. An assessor, instead of demanding the statement here required, presented to a national bank a blank form for listing property subject to taxation. The bank did not return a verified list, but its assistant cashier handed to the assessor a statement beginning, “Capital, $800,000,” followed by items of surplus, undivided profits, United States bonds, and real estate. The assessor deducted the amount of the bonds and real estate from the “capital” and assessed the remainder to the bank, as stock. Helé, that the tax was illegal, as the capital of national banks is exempt from taxation under the federal laws, and as both the state and federal laws require the shares to be taxed to their owners; and that the form of the return did not warrant the assumption that the bank owned its own shares.</p> <p>2. Same—Estoppel.</p> <p>A national bank which returns its capital for taxation is not thereby es-topped from setting up that the same was not subject to taxation, and refusing to pay the tax.</p> <p>3. Same—Injunction.</p> <p>A federal court will enjoin a sale of the real estate of a national bank to enforce payment of taxes illegally assessed against its capital stock, under a law which would make the sale a cloud on its title, though the state law gives an action at law to recover back taxes illegally exacted.</p> <p>4. Same—National Bank Receivers.</p> <p>A receiver of an insolvent national bank occupies a fiduciary relation to its creditors, and may sue in equity to enjoin the collection of taxes illegally assessed against the stock of the bank.</p>

<p>Injunctions Pending Ejectment.</p> <p>An injunction obtained by a plaintiff in ejectment to preserve the status quo pendente lite is properly dissolved, and the bill dismissed, when it appears that judgment has been rendered for the defendant in ejectment.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The question presented by this appeal is whether upon the facts averred in the amended bill, to which the circuit court sustained demurrers, the appellants, who were complainants below, are entitled to equitable relief. The original bill was filed on the 30th day of October, 1894, and a temporary injunction granted, which, after the filing of the answers, ivas dissolved on the ground that the averments of the bill were not sufficient. 71 Fed. 898. The amended bill fills 62 pages of the printed record, and differs from the original only in being more specific and .full in its allegations of fraudulent purposes, promises, representations, and conduct on the part of Walsh and the Equitable Trust Company at the time of making and after the execution of the contracts of .Tune 8, 1894. The following summary is deemed sufficient for an understanding of the case and of the questions to be determined:</p> <p>After averment of the citizenship of the parties, it is alleged that in 1891 the appellants William L. Breyfogle, W. C. Winstandley, and one Thornton caused to be organized, under the laws of Kentucky, the Bedford Stone-Quarries Company, which for brevity will be called the “Stone-Quarries Company,” with a capital of $1,000,000, which corporation acquired the stone-quarry properties of two other corporations, issuing for - that purpose first mortgage bonds to the amount of $500,000, of which Thornton received $50,000, together with $100,000 of the capital stock, the appellants receiving the remaining $450,000 of the bonds and the remaining $900,000 of the stock, under an agreement with Thornton that, in consideration of the stock and bonds, they would acquire for the Stone-Quarries Company the property of the Oolitic Stone Company, one of the two corporations mentioned, which,. it is alleged, the appellants did acquire hy the payment' in cash to the Oolitic Stone Company, represented by Voris, of $50,000, and the delivery to it of $275,000 of said bonds, of which $250,000 were intended as security for the payment of the further cash sum of $150,000, which, by subsequent agreement, was reduced to $140,000, a part of which sum was paid with money borrowed through the appellee Walsh, and became a portion of the $542,720.95, for which the appellants on the 8th of June, 1894, were indebted to the Equitable Trust Company, as hereinafter stated; that the $50,000 cash payment to the Oolitic Stone Company was also borrowed by appellants from the Chicago National Bank, of which Walsh was president, upon the pledge of $175,000 of the bonds of the Stone-Quarries Company. The bill then avers that, after the purchase of the property of the Oolitic Stone Company, the construction of a short railroad being deemed necessary to fully develop the stone quarries, the appellants entered into an oral agreement with Walsh, by which all the money necessary to pay the balance of the purchase price due the Oolitic Stone Company (except $30,000 to be paid by appellants), and to construct and equip the railroad, and to improve and develop the quarries, should be “advanced and furnished, or caused to be advanced and furnished,” by Walsh, as needed; that out of the profits of the business, or out of the proceeds of the sale of bonds of the Stone-Quarries Company and the Belt Railway Company (organized to construct the railroad), or out of the sale of the properties of the companies, there should be paid to the appellants the amounts advanced by them, and the value of their interest at the time the agreement was made, and the advances made or caused to be made by Walsh, and that the balance, being the profits of the enterprise, should be divided, one-half going to the appellants and one-half to Walsh; that to carry out this plan there was organized by appellants, with a capital stock of $250,000, the Bedford Belt Railway Company, which immediately issued first mortgage bonds to the amount of $250,000; that all these bonds were delivered to appellee the Equitable Trust Company, from which, through Walsh, $300,000 were borrowed and expended in the construction and equipment of the proposed railroad; but that, notwithstanding the completion of the railroad by means of the loans thus procured, Walsh refused in May, 1893, to advance the money necessary fully to complete the work of developing the stone quarries, by reason whereof the appellants were compelled either to advance or to incur liability for $50,000, whereby they became “so financially embarrassed and distressed as to be unable to advance any further money,” and the Stone-Quarries Company, on June 20, 1893, executed an assignment for the benefit of creditors to appellant Breyfogle, who remained in possession of and conducted the' business of the company until July 10, 1S94, when its property was sold by order of the court for the sum of $7,700 to E. C. Ritslier, who purchased for the benefit of Walsh and the trust company. It is further alleged that Thornton's interest in the Stone-Quarries Company was purchased prior to September 1893, by appellants, for $48,000, of which Walsh caused to be advanced to appellants $40,000 upon the security of $50,000 of the Stone-Quarries Company’s bonds; that by this purchase appellants became possessed of all the stock of the Stone-Quarries Company; that they also owned all the bonds of that company, and all the stock and all the bonds of the Belt Railway Company, subject only to the pledges thereof to secure the loans made to them through Walsh, and subject to the right which, as alleged, Walsh had in the profits of the enterprise.</p> <p>It is averred that, for the advances thus obtained from time to time, the appellants executed notes to Walsh; that on the 31st of March, 1894, all these advances ($65,000 of the purchase price of the Oolitic Stone Company property being still unpaid) were represented by two notes signed by appellant Breyfogle, payable to his own order, and by him indorsed, one for $300,000, dated •January 31, 1S94, and due 15 days after demand, and the other for $166,677.95, dated March 31, 1894, and due 15 days after demand; that as collateral for these notes Breyfogle delivered all the stock and all of the bonds of the Belt Railway Company, and all of the bonds of the Stone-Quarries Company (the latter being subject to a prior pledge to secure the payment of the balance of $65,000 of the purchase price of the Oolitic Stone Company property), and also promissory notes of third parties for small amounts; that the principal notes each contained the usual clause, in general use in Chicago, describing the collateral, and authorizing its sale at any time after maturity (or before, if, in the judgment of the legal holder, any such collateral should be depreciating in value), at public or private sale, “with or without notice or demand of any kind,” and authorizing the legal holder of the note to purchase at such sale. The bill avers, further, that all of these notes were delivered to Walsh upon the understanding that, if used by him for the purpose of borrowing money to prosecute the work contemplated, he (Walsh) “would attend to the payment or renewal” thereof, and prevent the sale of the securities; that the note for $166,677.95 was held by the Chicago National Bank up to the 7th day of April, 1894, when the bank transferred the same to the Equitable Trust Company, which then held the note for $300,000, and that on the 10th day of April, 1894, the Equitable Trust Company demanded of appellant Breyfogle payment of the two notes, whereby, under the terms thereof, both (aggregating $466,-677.95 and interest) became due and payable, and the Equitable Trust Company became in law entitled to sell the collaterals at private sale, with or without notice.</p> <p>It is further averred that Walsh gave a false reason for not furnishing more money, pretending that on account of the panic he could not obtain it, when in fact he was able to procure all the money needed; that knowing the value of the properties, and being aware of the financial embarrassments of the appellants, on or about the 5th of April, 1894, he entered into a conspiracy with the Equitable Trust Company, of which he was president, to cheat and defraud the appellants of their interest in the property, and to procure from them without consideration a release from all liability on account of« his agreement with them; that all subsequent steps and movements by him and by the Equitable Trust Company in the premises were planned with a view to effect the purpose of the conspiracy; that for that purpose the trust company, at the instigation of Walsh, demanded of Breyfogle the payment of his notes, and, Breyfogle having thereupon applied to Walsh to carry out his agreement and prevent the sale of the bonds and stock by the trust company, Walsh repudiated the agreement and threatened that unless the notes were paid he would cause the bonds and stock to be sold as provided in the powers of attorney contained in the notes; that thereupon the appellants applied to the trust company, but that neither that company nor Walsh would enter into any negotiation with them, unless they would abandon all claim that Walsh was liable to them as a partner in respect to the property, and that, unable to do otherwis,e, they assented to the execution of the three contracts of June 8, 1894, of which the following is the substance: The first agreement, which was between the trust company and the plaintiffs, was, in substance, a sale by the plaintiffs of the bonds and stock of the Stone-Quarries Company and of the railway company, also of two notes of $5,000 each of the railway company, three notes of the Stone-Quarries Company amounting to $14,898.41, and the note of Samuel Chandler for $1,800, in consideration of the cancellation and surrender to the plaintiffs of the two notes of $300,000 and $166,677.95, and the payment by the trust company of the balance due Yoris, for the Oolitic Stone Company, under the contract between him and Breyfogle, which balance amounted to $65,000 and interest from April 1, 1894. By the second agreement, which was between Walsh and the appellants, each released the other from all claims and demands of every name and nature, and the appellants especially released Walsh from all claims against him as a partner. The third agreement was between the trust company and Breyfogle, representing the appellants, and provided for the repurchase from the trust company by Breyfogle of the bonds and stock of the Stone-Quarries Company and the railway company, the two notes of $5,000 each of the railway company, the three notes for $14,896.41 of the Stone-Quarries Company, and the note of Chandler for $1,800, the consideration of the repurchase being $542,720.95, with interest thereon at 6 per cent, from June 8, 1894, to the date of payment, and in addition thereto such sum or sums as should have been paid out by the trust company after the date of the agreement to pay any outstanding indebtedness of the Stone-Quarries Company or of the railway company, or to furnish working capital for the Stone-Quarries Company or for the railway company, or to purchase any lien or outstanding title, claim, or equity of redemption, in or-upon the property of either company, or to protect either company or the property of either, and which should not have been repaid to the trust company, together with interest upon all such sums at the rate of 6 per cent, per annum. Payments were to be made as follows: On or before November 1, 1894, $225,000, with 6 per cent, interest from June 8, 1894, to the date of payment; on or before January 1, 1895, $317,720.95, with 6 per cent, interest from June 8, 1894, to the date of payment, and in addition thereto all such sums as should have been paid out by the trust company for the purposes above mentioned. Time was declared to be of the essence of the agreement, and, upon the default of Breyfogle to make the payments above mentioned within-the time provided by the agreement, the agreement was to be null and void, unless the trust company should otherwise expressly elect. In case the trust company elected not to declare the agreement null and void, it was required to commence suit to enforce the same against Breyfogle within five days after the default.</p> <p>It is alleged that in the negotiations which ended in the execution of these-contracts Walsh and the trust company repeatedly stated to Breyfogle that neither of them had any desire to acquire the property or to make any profit out of it, and promised that they would give appellants every possible aid in their efforts to raise money, would keep the agreements secret, and that if the property of the Stone-Quarries Company should be sold under the decree of the circuit court of Lawrence county, and should be purchased by Walsh or by the trust company, the purchase should inure to the benefit of the appellants; that the appellants relied upon these representations and promises, without which they would not have entered into the agreements; that immediately after the making of the agreements the appellants proceeded to endeavor to make some arrangement whereby they might be able to make the payments required by the agreement of repurchase, to which end Breyfogle opened negotiations with Messrs. Harvey Fisk & Sons, of New York, by which, if consummated, the appellants would have been able to obtain for their interest in the quarries property at least $400,000 over and above the payments to be-made to the trust company; that the negotiations failed because of repeated violations of their promises by Walsh and the trust company, who shortly after the agreements were made entered into negotiations with divers persons, some of whom are named in the bill, for the purpose of preventing a sale of the property by the appellants, and, with a view of inducing them to refrain from dealing with the appellants, informed them of the nature and terms of the agreements, and of the financial embarrassments and distress of the appellants, and promised and held out to them that if they would not deal with appellants they could, after November 1, 1894, deal more advantageously with Walsh and the trust company; that at the instigation of Walsh a communication was sent to Harvey Fisk & Sons, to the effect that Breyfogle’s statements to them in respect to the value of the property were false, though they were in fact true; that by this and by other representations, which are set out in detail, Harvey Fisk & Sons were induced to abandon the negotiations, and the appellants were prevented from effecting any disposition of the-property; that the promises and representations made by Walsh and the trust company, in order to obtain an execution of the agreements by the appellants, were not made in good faith, but with an intent to violate them, for the-purpose of preventing a repurchase of the property by the appellants; that although the agreement of sale purports to be an absolute conveyance, and although by the strict terms of the agreement of repurchase the trust company would, upon the failure of the appellants to make the payments within the time sioecified, be empowered apparently to declare the rights of the-appellants in the property forfeited, yet in equity and good conscience the-agreements of sale and repurchase are and always have been in fact only a mortgage, and the title to the stock and bonds has never been held by any of the respondents otherwise than in trust to secure the repayments to the-trust company of any moneys that might be due it from appellants on account of the transactions mentioned; that all moneys advanced by the trust company, and interest thereon, have been paid to it by Walsh, but that, if that company has not been repaid in full by Walsh or otherwise, the appellants are ready and willing and offer to pay to it within such time as the court may decree-all such sums as upon an accounting had under the direction of the court shall be found to have been advanced by it over and above repayments; also to pay to Walsh, though he has no right to demand it, within such time as the court may direct, all suc-h sums as may be found to be justly and equitably due him, and to perform any and all acts that may be decreed to be performed by them.</p> <p>The prayer of the bill, so far as it need be'stated, is that the agreement of release entered into between the plaintiffs and Walsh may be adjudged null and void; that the agreement of sale and the agreement of repurchase may be adjudged to have no other force or effect than a mortgage, and that the property may be decreed to be held’in trust only for plaintiffs and Walsh and as security for the payment of the moneys advanced by the trust company, and not repaid to it, and for the satisfaction of the liabilities incurred by it; that an account may be taken of the moneys and properties advanced by plaintiffs and Walsh and the trust company in and about the property over and above the amounts, if any, received by them, or either of them, including the moneys paid to Voris, together with all outstanding liabilities incurred by Walsh and the trust company in and about the property; that the damages sustained by plaintiffs by reason of the failure of Walsh to advance the moneys necessary for the development and improvement of the property may be ascertained, and Walsh charged therewith; that the indebtedness of the Bedford Stone-Quarries Company may be ascertained, and the payment of the same provided for; that if, upon a just accounting, it shall appear that the trust company has not already received repayment in full, plaintiffs may be permitted to redeem the stock and bonds of the companies and the other property mentioned in the agreement of repurchase by paying to the trust company, within such time as the court may direct, such an amount as upon such accounting the trust company shall be entitled to receive from plaintiffs, which amount plaintiffs are ready and willing and offer to pay, and that the respective rights and interests of plaintiffs and Walsh in and to the property may be determined, declared, and adjusted in such manner as may seem equitable and just, and that the plaintiffs may have such other and further relief as to equity may appertain.</p>

<p>1. Receivers—Petition for Removal—Motion for Leave to Inspect Mine.</p> <p>A petition by a stockholder and bondholder of an insolvent company to inspect a mine either in person or by agent, with a view to having the receiver in charge thereof removed, is in the nature of a motion made for the production, by parties, of books or writings in their possession, or motion for inspection of writings or examination of' parties before trial, and being made by a party in interest, and entitled to the knowledge sought, will be granted by a federal court.</p> <p>2. Same—Evidence.</p> <p>An inspection made pursuant to such a petition gives the party inspecting only the ordinary powers, and his report is subject to the same rules of evidence as the testimony of any other witness.</p>

The Toledo, Cincinnati & St. Louis Railroad Company, a consolidated corporation/ owned and operated a line of railway extending from Toledo, in the state of Ohio, through the states of Ohio, Indiana, and Illinois, to the city of East St. Louis, in the latter state. The Toledo or Eastern Division of this road extended from Toledo to the city of Kokomo, in the state of Indiana; the Western or St. Louis Division from Kokomo to East St. Louis.

<p>1. Judgment-Equitable Relief—Misconduct of Jury.</p> <p>Equity has jurisdiction of a suit to enjoin the enforcement of a judgment based on a verdict which is vitiated by the misconduct of the jury, where the complainant had lost all ground of relief at law at the time of discovering the facts. Nor does it affect the jurisdiction that the judgment Is pending on error, and under a supersedeas, in the supreme court.</p> <p>2. Same—Improper Influence.</p> <p>In an action against a common carrier to recover for loss of a shipment of cigars, where the quality and value of the cigars are in issue, the fact that plaintiff conducted three jurors to his agent’s place of business, and gave them a box of cigars, is sufficient ground for enjoining the enforcement of the judgment by suit in equity.</p>

<p>1. Equity Practice—Intervention in Receivership Cases.</p> <p>interventions by persons interested in the funds of a receiversliip will not be permitted if their rights may be conserved without it, since such interventions multiply the number of litigants, and, if begun in the case of one creditor, cannot be consistently denied as to others, thereby resulting in unnecessary expense and confusion of proceedings.</p> <p>-2. Same—Auxiliary Receiverships—Intervention by Nonresident Creditors.</p> <p>In cases of auxiliary receiverships for nonresident corporations, creditors who reside without the jurisdiction where either the original or auxiliary proceedings are pending are not entitled to intervene, and become technical parties, either for the purpose of asserting a claim to equal rights with resident creditors, or of placing themselves in position to object to ■the claims of other creditors, or to examine and dispute the propriety of the receivers’ action. Their proper course is to file their claims with the ’receivers, and, if rejected hy them, to present them to the master. They will then have the same opportunity as other creditors to overhaul the ■receiver’s accounts, and raise all these questions before the master and before the court on the coming up of his report.</p>

<p>1. Equity Practice — Intervention in Receivership Casks.</p> <p>Interventions by persons interested in the funds of a receivership will not be permitted if their rights ma.y be conserved without it, since such interventions multiply the number of litigants, and, if begun in the case of one creditor, cannot be consistently denied as to others, thereby resulting in unnecessary expense and confusion of proceedings.</p> <p>2. Same — Auxiliary Receiverships — Intervention by Nonresident Creditors.</p> <p>In eases of auxiliary receiverships for nonresident corporations, creditors who reside without the jurisdiction where either the original or auxiliary proceedings are pending are not entitled to intervene, and become technical parties, either for the purpose of asserting a claim to equal rights with resident creditors, or of placing themselves in position to object to the claims of other creditors, or to examine and dispute the propriety of the receivers’ action. Their proper course is to file their claims with the receivers, and, if rejected by them, to present them to the master. They will then have the same opportunity as other creditors to overhaul the receiver’s accounts, and raise all these questions before the master and before the court on the coming up of his report.</p>

The bill in this ease was filed by the Grape Creek Coal Company for the purpose of setting aside the sale made under the decree of foreclosure which was reversed by this court in Grape Creek Coal Co. v. Farmers’ Loan & Trust Co., 24 U. S. App. 38,12 C. C. A. 350, and 63 Fed. 891. In that ease, this appellant, being the mortgagor, was the principal respondent.

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>This suit was brought by Pauline Jacobus, the widow of Osear I. Jacobus, a citizen of Wisconsin, against the Knights Templars’ & Masons’ Life Indemnity Company, a corporation of Illinois, to compel the latter to issue and pay a policy or certificate of insurance upon the life of her husband. The averments of the bill and answer need not be stated, because the hearing was upon an agreed statement of facts and a stipulation that the pleadings, if found at variance, should be considered as amended so as to correspond to the agreed statement.</p> <p>The essential facts were these: The Knights Templars’ & Masons’ Life Indemnity Company was organized under the act of the general assembly of the state of Illinois, approved June 18, 1883 (1 Starr & C. Ann. St. p. 1348, § 123), whereby it is required that the incorporators sign and acknowledge a certificate of association, in which shall be stated “the object of incorporation, with its plan of doing business clearly and fully defined,” which certificate shall be submitted to the auditor of public accounts, who, if he finds it “sufficient and satisfactory,” must indorse his approval, and file the certificate and approval in the office of the secretary of state. In the year 1889, Oscar I. Jacobus, who had permitted a prior membership to lapse, became again a member under certificate of membership or life insurance policy No. 7,448, by which, on conditions and warranties stated, the company promised to pay $5,000 to the widow, children, or heirs of the member, unless he should have directed otherwise. On the back of the policy was printed the “constitution” of the company, of which the sixth article, concerning assessments, is as follows:</p> <p>“Section 1. Upon notice and satisfactory proof of the death of a member (should it be necessary to make an assessment), the company, or such person as the board may direct, shall send by mail, to the last recorded post-office address of every member, a notice containing the name and residence of the deceased member, and the amount due from the member to whom said assessment is sent. The party sending such notice may employ a suitable person, persons, or corporation, in any town or city, who may act in serving such notices either personally or by mail. A notice so sent or served shall be deemed and taken to be a lawful and sufficient notice for the payment of the assessment required.</p> <p>“Sec. 2. Should any one fail to forward, as indicated in the notice, the amount thus due, for a period of ten days after the date of said notice, he shall forfeit his membership and all benefits arising therefrom. Any one having thus forfeited his membership may be reinstated, he being alive, within thirty days after the date of said notice, by the payment of all arrearages, and may be reinstated to membership subsequent to the thirty days, upon such terms as the board of directors may fix.</p> <p>“Sec. 3. Any member may make a deposit in advance, for the payment of his assessments, which money shall be used for no other purpose by the company; and, in case of the member’s death before it is so needed, the unused balance shall be paid back with the policy.”</p> <p>On October 13, 1891, the board of directors of the company, acting within its power, passed the following resolutions: “Resolved, that no policy holder of this company, who is over the age of 56 years (excepting the holder of a limited term policy), who is delinquent more than thirty days in the payment of any assessment or annual due, shall be reinstated to membership; and, further, that no policy holder who is under the age of 56 years, at the time of his being thirty days delinquent, shall be reinstated without first having furnished a certificate of good health signed by himself, and also a medical examination which shall prove satisfactory to this company, the acceptance of which new medical examination shall be governed by the same rules as apply to an original application for membership, and also by the payment of all arrearages: provided, that any holder of a limited term policy may be reinstated upon the same terms as herein stipulated for life policy holders under the age of 56 years.”</p> <p>On March 3, 1893, notice of an assessment was mailed to and received in due course by Oscar I. Jacobus; but he neglected to respond, and, the assessment remaining unpaid, on March 14, 1893, the following letter (unessential parts omitted) was sent him:</p> <p>“Chicago, Ill., March 14, 1893.</p> <p>“O. I. Jacobus, Edgerton, Wis.—Dear Sir and Bro.: A notice of assessment No. 82, amounting to six dollars, was mailed to your address March 3, 1893, with the ten days’ grace provided in the policy. This assessment still remains unpaid. Article 6, section 2, of the constitution, printed on the back of your policy, reads as follows: [See supra.] Under this article, it can be paid, if you are living, any time prior to 30 days from the date of the original notice. Until such payment is made, you are carrying your own risk in case of death. Your receipt is now at this office, and will be mailed to you, and your policy reinstated upon receipt of the amount due, as hereinabove stated. We desire you to remain with us, and assure you our best efforts will be put forth to secure the greatest benefit to our policy holders at the least expense. Please let us hear from you on receipt of this, as to your wishes in the matter.</p> <p>“Respectfully, W. H. Gray, General Manager.”</p> <p>No response to that letter having been received, and the assessment not having been paid, on April 3, 1893, the certificate of membership, policy No. 7,248, was formally canceled on the books of the company, and on the same day the following letter was sent to Jacobus:</p> <p>“Chicago, April 3, 1893.</p> <p>“O. I. Jacobus, Edgerton, Wis.—Dear Sir and Bro.: Your policy has been canceled for nonpayment. By a resolution of the board of directors, governing reinstatements of persons under fifty-six years of age, you will now be required to furnish a new medical examination satisfactory to the company, and sign the certificate of good health as per the inclosed forms. If it is your pleasure to reinstate your policy, give this your prompt attention. In addition, if the policy is reinstated, you will be required to pay $18.00, the amount delinquent at this date. * * * With best wishes, and trusting to hear from you at an early date, I am,</p> <p>“Yours, respectfully, W. H. Gray, General Manager.”</p> <p>To that letter Jacobus made no response until April 27, 1893, when he mailed a letter, which was received the next day by the general manager of the company, inclosing a “P. O. order for $18.00 and medical examination,” for which he asked a receipt. The medical examiner’s report, it is agreed, “was carefully, skillfully, and honestly made, and was true.” It was made by Dr. James A. Lord, at the request of Oscar I. Jacobus, upon a printed blank sent to Jacobus by the defendant, inclosed in the letter of April 3, 1893, the regular custom of the company in admitting persons to membership or reinstating lapsed members under new medical examination being to allow the appb'cant to be examined by his local physician, and to refer the application and the examination so made to the company’s medical director, whose duty it was to examine such application and medical examination, and pass upon the same, before a new certificate of membership could issue, or a lapsed certificate of membership be reinstated. Whether Jacobus knew this custom, there is no-evidence, except the inferences, if any, to be drawn from his several memberships in and communications and correspondence with the company as in the statement of facts set forth. In this instance the examination was forwarded from the home office of the company in Chicago to its only medical director, Dr. J. L. White, at his office in Bloomington, “in accordance with such custom, very soon after it was received by the defendant”; but, by reason of its “not being accompanied by an application,” it was not examined or passed upon by White, and the company had not issued any new policy or certificate of membership to Jacobus before his death.</p> <p>No further communication passed between the parties until May 3, 1893, when the company, acting by its general manager, mailed to Jacobus the following letter:</p> <p>“Chicago, May 3, 1893.</p> <p>“O. I. Jacobus, Esq., Edgerton, Wis.—Dear Sir: Your new examination received at this office, but too late to accept same and reinstate your policy, as same has been canceled off the company’s books. However, we will issue you a new policy, which is the best we can now do for you, for the sum of what one assessment would amount to, or $6.00. I inclose herewith a b’ank application for that purpose, which you may fill out carefully on the members’side, sign same, and forward it to this office. Your examination of recent date will answer if attended to immediately. In the meantime we hold your remittance of $18.00 at this office, subject to your order or the above. With best wishes, I am,</p> <p>“Yours, respectfully, W. H. Gray, Geni. Mgr.”</p> <p>This letter, with the inclosed printed blank application, Jacobus received the next day, and, “having duly filled up and signed” the application, inclosed it in the following letter, which on May 5, 1893, he mailed to the company:</p> <p>“Edgerton, Wis., May 5th, 1893.</p> <p>“W. H. Gray, Geni. Manager, 1303 Masonic Temple, Chicago—Dear Sir: Inclosed please find application filled out as per your letter of the 3rd inst.; if anything left from remittance, place it to my credit.</p> <p>“Yours, Resp., O. I. Jacobus.”</p> <p>The letter and application were received by the company the next day. In the printed part of the application, preceding the signature of the applicant, is the following expression: “I further understand and agree that no liability whatever is assumed by the company under any circumstances, until after the policy or membership hereby applied for has actually been issued at the home office by the officers of the company.” The answers of Jacobus to questions in the application and the certificate of health at the end thereof were truthful and correct so far as he knew. For several months prior thereto he was in apparent good health, without premonitions of disease, and continued so until the evening of May 6, 1893, when he became ill, and on the 10th died, after an unsuccessful attempt by surgery to relieve him of a stricture of the intestines. He was at his death under 56 years of age.</p>

<p>1. Equity Pleading—Multifariousness—Waiver of Objections.</p> <p>When the objection of multifariousness is not taken to a bill which from its nature is open to that objection, and the cause is submitted upon one of its aspects alone, the other being apparently abandoned, it may be heard and decided as submitted.</p> <p>2. Federal Jurisdiction—Citizenship—Quieting Title.</p> <p>Where one tenant in common brings a suit against his co-tenant and others for partition of the land held in common, and to quiet the title as against claims of the defendants other than his co-tenant, but does not press it as a bill for partition, it may be sustained as a bill to quiet the title of the complainant’s undivided interest, notwithstanding there is a want of diverse citizenship between him and the defendant, his co-tenant.</p> <p>8. Quieting Title—General Equity Rule—Kentucky Statute.</p> <p>The Kentucky statute (section 2861, Ky. St.) giving a right of action to restrain trespasses on land of which the plaintiff is not in possession, has not changed the general equity rule that a suit to quiet title cannot be maintained except by one who has both the legal title and possession.</p> <p>4. Taxation—Listing and Assessment.</p> <p>Complainant, claiming lands in Kentucky under a sale for taxes, showed by the records that the lands were assessed to one F. from 1792 to 1810; that they were sold m 1811 by the register of the land office for the taxes of 1810, and, not having been redeemed, were conveyed in 1815 to complainant’s predecessor in title. It was shown, however, by the defendant, that prior to March 1, 1796, F. had conveyed to others all his interest in the lands by deeds duly executed, which were duly recorded in' the clerk’s office of the court of appeals on April 11, 1796. Held, that there was no legal assessment of the lands to F. for 1810, since he had then ceased to have any interest therein; that the fact that, prior to the requirement of the listing of nonresidents’ lands with the slate auditor by the act in force March 1, 1796, the lands had been properly assessed to F. by the county tax commissioners, did not justify a continued assessment thereof to him after the recording of his deeds; and, accordingly, that no title passed under the sale and conveyance for the taxes of 1810.</p> <p>5, Same—Sale of Lands Struck off to State.</p> <p>One who claims land under a sale made by an agent of the auditor of Kentucky, pursuant to the act of 1840, as amended March 10, 1843, authorizing the selling of lands stricken off to the commomvealth for taxes, must show not only proper public notice of the sale, but that the agent, before making it, made diligent search and inquiry for the former owner, his heirs, or persons in adverse possession, and, upon such search and inquiry, failed to find them.</p>

<p>¡1. Constitutional Law — Special and Local Legislation — Classification of Cities.</p> <p>The constitution of Indiana provides (article 4, § 23) that in certain enumerated eases, and “in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state”; and also (article 11, § 13) that “corporations other than banking shall not be created by special act, but may be formed under general laws.” In 1897 the legislature of Indiana passed an act to amend its general law for the incorporation of street-railroad companies by adding to the clauses giving directors of such companies power to make by-laws regulating the rate of fare a proviso that in cities having more than 100,000 population according to the United States census of 1890 the rate of fare should not be more than three cents, with other restrictions on companies in such cities, and penalties for their enforcement. There was but one city in the state having a population of more than 100,000 according to the census of 1890. Held, that the act was special and local, and was accordingly unconstitutional and void, and was not such an amendment as could be made under a reservation of a right to amend the original act for the incorporation of street-railroad companies.</p> <p>2. Injunction—Restraining Criminal Proceedings.</p> <p>When criminal prosecutions are threatened under color of an invalid statute for the purpose of compelling the relinquishment of a property right, the remedy in chancery is available, and a preliminary injunction may properly issue.</p>

<p>This was a suit in equity by the London & San Francisco Bank against the Willamette Steam-Mill, Lumbering & Manufacturing Company, in which a receiver has been appointed for the defendant corporation. The cause is now heard on the motion of a creditor to require the receiver to pay it dividends in proportion to those already paid to others.</p>

<p>1. Action to Recover Lands — Admissibility op Evidence — Harmless Error.</p> <p>In an action under the North Carolina statute to recover lands, the admission of a will for the purpose of showing title in plaintiff to an undivided one-fourth interest in the lauds, even if erroneous because of defective execution of the will, is not prejudicial error where it otherwise appears that plaintiff has title to an undivided three-fourths interest; since, under the state decisions,.plaintiff, as owner of such interest, could maintain the suit for its own benefit and that of its co-tenants.</p> <p>2. Same — Will as Evidence — Presumptions on Probate.</p> <p>When a copy of a will which has been admitted to probate is offered in evidence, the presumption arises that the requirements of the statute have been complied with, and that the evidence given when the will was offered for probate was of such a character as to authorize its admission to record.</p> <p>8. Appeal and Error — Assignments op Error.</p> <p>Assignments of error as to the admission or rejection of evidence will not be considered when they fail to set out the full substance of the evidence admitted or rejected, in disregard of the requirements of rule 11 of the circuit court of appeals. 21 O. O. A. cxii., 78 Fed. exii.</p> <p>4 Actions to Recover Land — Admissibility op Evidence.</p> <p>In an action to recover lands under the North Carolina statute a bond for title is admissible in evidence in connection with oral testimony showing occupation thereunder.</p> <p>5. Same — Bond eor Title — Sufficiency op Description.</p> <p>The description in a bond for title, which is offered in evidence, is sufficient where it locates the land on a certain ridge in a particular county, designating the same as a square of 100 acres, and alludes to it as the same land that had been sold to a certain person, and by him transferred to another.</p> <p>6. Same — Trial—Submission op Issues.</p> <p>In an action to recover land under the- North Carolina statute the Issues to be submitted to the jury are to a great extent in the discretion of the court. No particular form is required, but it is essential that the real matters in controversy raised by the pleading should be fairly presented.</p> <p>7. Appeal and Error — Exceptions—Assignments op Error.</p> <p>Exceptions which refer to the charge of the court as a whole instead of pointing out only the several matters of law excepted to are insufficient, and the defect cannot be remedied in the assignments of error.</p> <p>8. Same.</p> <p>Assignments of error in relation to instructions asked and refused will be disregarded when they neither quote nor refer to the evidence that shows the relevancy of the propositions of law propounded therein.</p> <p>9. Save — Bills off 'Exceptions.</p> <p>A bill of exceptions relating to the refusal of instructions must show affirmatively the errors alleged, that they were prejudicial, and that timely objections were made thereto, and the grounds clearly stated; otherwise It. is fatally defective.</p>

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

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

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

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

These were actions of trespass, brought the one by the Glen Manufacturing Company against the Weston Lumber Company, and the other by the Weston Lumber Company against the Glen Manufacturing Company. Jury waived.

<p>1. Immigration—Contract Labor Laws.</p> <p>The acts of February 26, 1885, and March 3, 1891, are highly penal, and must be so construed as to bring within their condemnation only those who are shown by direct and positive averments to be embraced within their terms. They are to be construed in the light of the evil to be remedied, and are' limited to cases in which the assisted immigrant is brought into this country under a contract to perform manual labor or service.</p> <p>2. Same—Pleading.</p> <p>In an action for the penalty for violation of these laws, a declaration is insufficient which fails to show the character of the labor which the immigrant was to perform, or the terms of the contract, at least in substance, under which he came to this country, and which fails to allege definitely that -he actually came here pursuant to the contract, or to set forth the acts done by the defendant to assist or procure his immigration.</p>

<p>1. Equity Practice—Dismissal for Want of Prosecution.</p> <p>A motion by complainant to dismiss for want of prosecution will not be granted where it appears that defendant bas taken testimony in support of his defense and of his claim on his cross bill, and that the next step in the orderly disposition of the cause is one to be taken by complainant himself, namely, the taking of testimony in rebuttal of the defense to the original bill and in answer to the testimony in support of the cross bill.</p> <p>2. Same.</p> <p>A delay by complainant of 13 years after joinder of issue without taking any testimony gives defendant a right to a dismissal; and this right is not affected by the fact that complainant then died, and his administratrix obtained an order of revivor, for the latter takes the litigation in the same condition in which the deceased left it.</p>

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

<p>1. Master and Servant—Negligence of Fellow Servants.</p> <p>A railroad employs, who starts upon a trip on a hand car on his own business or pleasure, assumes the risk of injury from a fast mail train, which he knows to be due, and cannot recover against the company for injury received while attempting, pursuant to an order of the foreman, to get the hand car off the track in the immediate presence of the approaching train.</p> <p>2. Same—City Ordinances Regulating Speed of Trains.</p> <p>City ordinances limiting the speed of railway trains are not for the protection of railway employés, but merely for that of persons crossing its tracks on the streets and highways.</p> <p>3. Same—Fellow Servants.</p> <p>The conductor and engineer of a railway train which collides with a hand ear are fellow servants of an employe riding upon the car so that he cannot recover for an injury resulting from their negligence.</p> <p>A Same—State Statutes—Retroactive Effect.</p> <p>State statutes modifying the common-law doctrines recognized by the federal courts in regard to fellow servants will not be construed to have a retroactive effect in the absence of express provision to that effect.</p> <p>5. Practice—Nolle Prosequi.</p> <p>Leave to enter a nolle prosequi as to certain defendants will not be granted after the court has rendered an opinion granting a motion to direct a verdict for defendants, though such verdict has not yet been formally rendered.</p>

<p>In Error to tbe Circuit Court of tbe United States for tbe Western District of Wisconsin.</p> <p>This suit is in ejectment by Daniel Cameron, plaintiff below, defendant in error here, brought on the 3d day of February, 1890, to recover of the city of La Crosse the possession of an undivided five-sixths of certain premises in the city of La Crosse.</p> <p>The defendant below pleaded: (1) A denial of the plaintiff’s title; (2) that the land demanded was dedicated to public use as a public square by a plat made and recorded by the owners of the land in the year 1851, accepted by the public, and ever thereafter so used to the commencement of the action; (3) twenty years’ continuous use and occupation by the defendant prior to the suit; (4) that neither the plaintiff nor his grantors were in possession of the premises demanded, or any part thereof, within 20 years before the commencement of the suit, but that the defendant, during 20 years and more before the suit, held the land in trust for the public, and for the uses and purposes of the public square, and exclusive of any other right; (5) that the defendant entered into possession of the demanded premises under a claim of title thereto exclusive of any other right, founding such claim upon a certain plat known as “C. and F. J. Dunn, H. L. Dousman, and Peter Cameron’s Addition to . the Town of La Crosse,” recorded in the office of the register of deeds of La Crosse on the 19th day of November, 1851, in volume 1 of Deeds, on page 165, upon which plat the demanded premises are described, marked, and designated by the words “Public Square” in writing thereon, and that they had been in continuous occupation and possession of the premises of the defendant for 10 years and more last past before the suit under such claim of title by virtue of that plat and exclusive of any other right; and (6) the general issue.</p> <p>The premises in question are part of fractional lot 1 in section 6, township 15 N., of range 7 W., in La Crosse county, and otherwise described as the “North half of the northeast quarter” of that section. This fractional lot 1 was patented by the United States to Peter Cameron, of La Crosse, who on May 10, 1850, conveyed an undivided one-half thereof to Francis J. Dunn, Charles Dunn, and Hercules L. Dousman. By deed dated September 18, 1850, recorded November 19, 1851, Peter Cameron conveyed the other undivided one-half to his brother, Daniel Cameron, the defendant in error. On September 11, 1851, Daniel Cameron executed to his brother, Peter, a power of attorney, by which he authorized his brother to execute deeds of partition to his co-tenants, and to receive like deeds from them before or after such partition, and in conjunction with his co-tenants to plat and lay off the whole or any part of the tract into lots, and in so doing to make such reservation or reservations thereof “for public streets, alleys, and landings, and for charitable, religious, and educational purposes as he, or he and they, shall think fit and proper,” to sell and convey for such purposes and upon such consideration as he may deem proper all the interest of his principal in the tract or the village lots if platted. Peter Cameron united with the Dunns and Dousmans in platting this fractional lot 1 into lots. The plat was executed on the 17th day of November, 1851. It is entitled “C. and F. J. Dunn, H. L. Dousman, and Peter Cameron’s Addition to the Town of La Crosse.” The surveyor’s certificate, dated November 6, 1851, recites that he surveyed the property for C. and F. J. Dunn, H. L. Dousman, and Peter Cameron. Following that certificate is this certificate of acknowledgment:</p> <p>“State of Wisconsin, La Crosse County—ss.:</p> <p>“We, Francis J. Dunn, Charles Dunn, and Daniel Cameron, by Peter Cameron, his attorney in fact, do hereby acknowledge the annexed plot of our addition to the town of La Crosse, in said county, as and for our act and deed, for the uses and purposes expressed on the same and contemplated by the law authorizing the laying out of towns and platting and recording the same.”</p> <p>This certificate was dated the 17th day of November, 1851, and was executed by the parties mentioned under their respective hands and seals; the execution by Daniel Cameron being “Daniel Cameron, by Peter Cameron, His Attorney in Fact.”</p> <p>This certificate is followed by another certificate by a notary public, which is as follows:</p> <p>“State of Wisconsin, Crawford County—ss.:</p> <p>“This seventeenth day of November, 1851, personally came before the undersigned, notary public in and for said county of Crawford, in the state of Wisconsin, Hercules L. Dousman, Francis J. Dunn, Charles Dunn, and Peter Cameron, attorney in fact for Daniel Cameron, known to me as the identical persons who have laid out the addition to the town of La Crosse and made the annexed plat thereof, and the persons who have signed and sealed the above acknowledgment thereof, and acknowledged the annexed said plat as and for their act and deed, for the uses and purposes expressed on the same and contemplated by the law authorizing the laying out of towns and platting and recording the same, and desire that the same should be certified and made public preparatory to recording the same. In testimony whereof I have hereunto set my hand and notarial seal at Prairie du Chien in said county the day and year last aforesaid.</p> <p>“[Official Seal.] D. H. Johnson,</p> <p>“Notary Public, Crawford County, Wis„"</p> <p>This plat and the certificates were recorded in the office of the register of deeds of La Croese county, in volume 1 of Deeds, on pages 164 and 165, on November 19, 1851.</p> <p>On the date of such acknowledgment, November 17, 1851, the Dunns, Dousman, and Daniel Cameron, by Peter Cameron, his attorney in fact, executed to each other deeds of partition; Daniel Cameron releasing to Dousman and the Dunns 84 lots and the others releasing to Daniel Cameron 81 lots. These deeds conveyed all the defined and numbered lots upon the plat, “according to the plat laid out and recorded by Dousman, Francis J. and Charles Dunn, and Cameron.” There were also given in evidence 24 deeds, which were severally executed by Daniel Cameron, the plaintiff below, between January 13, 1857, and January 25, 1890, all of which conveyed described lots in Dunn, Dousman and Cameron’s addition to La Crosse, “according to the plat of said addition now of record in the office of the register of deeds in and for said county of La Crosse.”</p> <p>The principal contention of fact touching the plat in question is with respect to the designation thereon of the demanded premises. The plaintiff below contended that upon the plat the premises in controversy were left without exterior lines, were not divided into lots, and had no designation upon them. The defendant below contended that the premises upon the plat were left without exterior lines, and were undivided into lots, and had written across the space the words “Public Square.” The record of the plat in volume 1 of Deeds, which was introduced in evidence at the trial, shows that upon such record exterior lines had been drawn around this space, and other lines produced, corresponding to the alleys through the blocks in the plat, and that they had been erased, and the words “Public Square” written across the space, and evidence was given tending to prove that these lines were drawn through misprision, and were so drawn and erased at the time of the copying of the plat in volume 1 of Deeds, and that the words “Public Square” were written at the same time, in the same handwriting and with the same ink as the other writings on record; but upon that subject there was dispute. It was also proven that before the month of June, 1858, there was in the office of the register of deeds of La Crosse county no special book provided for recording plats, and that plats left for record prior to that time were transcribed in the books of deeds, or kept in a drawer in the office. On June 5, 1858, the county of La Crosse purchased of John A. Walker, the then register of deeds, a book prepared by him of the plats which had theretofore been recorded or filed in that office. Such book was thereafter kept in the register’s office and denominated “Book 1 of Plats,” and certified copies of the records of plats were thereafter made from that book as from an original record. This book of plats, made in 1858, shows the plat of Dunn, Dousman & Cameron’s addition without the words “Public Square” on the north half of block 15, being the demanded premises. The plat is designated in this book as “C. and F. J. Dunn, H. L. Dousman, and Peter Cameron’s Addition to the Town of La Crosse.” The evidence tended to show that the record of the plat in the book of plats was copied from the earlier record in volume 1 of Deeds, and is not a new and independent record cop'ed from the original plat, and it was left uncertain at what time the original plat was taken from the office of the register; but the evidence tended to show that such original plat had, before the suit, been destroyed in a fire. The property in question has never been assessed by the city of La Crosse, or taxed for any general or special tax since the year 1851, and has been left unlisted and undescribed upon all assessment rolls and tax lists of the city, except for certain years, in which the premises were entered upon such assessment rolls and designated thereon, either as a “public square” or as a “park,” and were not valued or assessed in any such year. In the year 1867 the common council of the city refused permission for the use of the premises as a baseball ground, and in the year 1868 caused certain filling to be done upon the premises. In the year 1870 the common council caused the removal of certain fences which were alleged to encroach upon the demanded premises. In the same year the city laid sidewalks upon Fourth and Fifth streets adjoining the land in question, and graded both of the streets, the expense thereof being paid out of the general fund of the city. In the year 1871 the premises were graded, leveled, and fenced, and in the year 1872, at the expense of the city, trees were set out upon the premises, and are now growing thereon, a band stand was erected, and thereafter and continuously down to the time of this suit the premises had been looked after, improved, grass sown, and trees trimmed and watered under the authority of and at the expense of the city, and the premises have been used as a public square or park.</p> <p>The defendant below requested the court to instruct the jury as follows: “If you find, from the evidence, that the defendant, the city of La Crosse, in or about the year 1871, entered into possession of the premises described in the complaint under a claim of title exclusive of any other right, founding such claim upon the recorded plat contained in volume 1 of Deeds, pages 164, 165, as being a conveyance of the premises, protected the same by a substantial inclosure, and has been in continuous occupation and possession of these premises, and usually cultivated and improved them for and during 10 years prior to February 3, 1890, then your verdict should be for the defendant.” This instruction was refused by the court, and an exception to such ruling saved, and such refusal is assigned for error.</p> <p>The court charged the jury upon this subject as follows: “Another question of much importance has been argued, which is whether the 10-years statute of limitation provided for by the statutes of Wisconsin can be pleaded in bar of the action. That statute, in substance, is that when the occupant, or those under whom he claims, entered into possession of any premises under claim of title, exclusive of any other right, founding such claim upon some written instrument as being a conveyance of the premises in question, the premises shall be deemed to have been held adversely. In such case the action to recover must be brought within 10 years. The evidence shows that the city fenced up this property, built sidewalks, graded, and planted trees in 1871, and occupied it as a public square and park continuously up to 1890,—a period of about 18 or 19 years; so that, if the 10-year limitation is applicable to the case, it should be submitted to the jury whether the city has not held the land adversely to the plaintiff 10 years immediately preceding the commencement of the action. The question I have found one of much difficulty, and upon the consideration I have been able to give it I cannot say that it is free from doubt. Still the best judgment I have been able to form is that the instrument under which the city went into possession, claiming title, is not one giving color of title and upon which this statute would run. ‘Color of title’ is what appears on the face of the instrument to be a good title, but is not in fact. The instrument on the face of it is, in the judgment of the court, not good to convey title. It is apparent from the record, including the power of attorney from Daniel Cameron to Peter Cameron, that Daniel Cameron is a part owner of the land with the two Dunns and Dousman, but the instrument does not profess to be a conveyance by Daniel Cameron.” To this portion of the charge the plaintiff in error duly excepted, and assigns the giving of such charge as error.</p> <p>The court also charged the jury as follows: “The record of the plat is not a conveyance, and does not profess to be a conveyance, except so far as the statute makes it such by a strict compliance with its provisions. All the owners must execute and acknowledge in order to make it binding upon any. Daniel Cameron did not execute. He did not acknowledge before an officer as required by law, so that, while it appears on the face of the record that he was a part owner, it also appears that he'did not execute or acknowledge the instrument; and in this ease it seems clear that the acknowledgment stands In the place of an execution, as it is all the execution that is provided for. As it, appears on the face of the record that Daniel Cameron, being a part owner, did not join in the conveyance, the instrument, while it discloses his interest, does not profess to convey it, and therefore cannot give color of title.” To this charge an exception was reserved, and the giving of it is assigned for error.</p> <p>The court also charged the jury as follows: “The statute could not run upon the instrument as a conveyance of the Dunns, Dousman, and Peter Cameron as the part owners interested, because it appears from the record that Daniel Cameron had an interest, and that Peter Cameron is only acting as attorney without an interest in himself. In order that the statute should run, it sboulcl appear that the city might take possession in good faith under the instrument as a conveyance of the premises. This it could hardly do with the disclosure in the record in regard to the title, and the failure of Peter Cameron to acknowledge for and in the place of his principal.” The plaintiff in error excepted to the giving of such charge, and assigns error thereon.</p> <p>There was much evidence upon the question of common-law dedication and of 20 years’ adverse occupation by the city, and there were many exceptions to the introduction of evidence, to the giving of charges requested, to the refusal to give instructions demanded, and to various provisions of the charge as given, which in view of the judgment of this court it is not material to specify. The jury returned a verdict for the plaintiff below.</p>

<p>1. Carriers—Dangerous Premises—Invitation to Enter Baggage Room.</p> <p>Where plaintiff, the owner of several pieces of baggage in a baggage room at a railway station, told the baggage master that a part of it was wanted, and the baggage master, upon going in and leaving the door open, was followed by plaintiff, who while there was injured, the jury was authorized to find that plaintiff entered the room at the invitation and for the benefit of the railroad company. ,</p> <p>2. Same—Defective Premises.</p> <p>Where the owner of baggage enters a baggage room at a railway station at the invitation of the baggage master, for the purpose of pointing out the baggage wanted, and is injured by the falling of a defective door in an attempt to open it for the purpose of asking a street-car motorman to wait, the questions of negligence and contributory negligence are for the jury; there being testimony tending to show defendant’s knowledge of the defect, and testimony—contradicted by plaintiff—tending to show she was told not to open the door.</p> <p>3. Trial—Motion for Peremptory Instruction—Remarks of Court.</p> <p>While the better practice is to send the jury out of the room when a motion for peremptory instruction is to he made, argued, or decided, there can be no reversal because of remarks of the court thereon in the presence of the jury, when there was no exception, and no request that the jury retire.</p> <p>4. Same—Interrogation of Witnesses.</p> <p>It is in the discretion of the court to permit the plaintiff to he further interrogated as a witness after the motion for a verdict has been decided, and there can he no reversal therefor unless that discretion is abused.</p> <p>5. Pleading and Proofs—Evidence as to Personal Injuries.</p> <p>Under a declaration alleging nervous prostration, and sensations of numbness and pain in certain parts of the body, as the result of personal injuries, the sympathetic affection of other parts of the body may be shown.</p> <p>6. Damages—Physical Examination.</p> <p>A physical examination of one suing for personal injuries, by physicians to be designated by the court, cannot he compelled either before or. during the trial.</p> <p>7. Trial—Inconsistent Charges.</p> <p>A party cannot complain of inconsistent charges where the inconsistency is between a proper charge and an erroneous instruction giyen on his request.</p>

The accused, who was held for extradition for the offenses of for.gery, larceny, and embezzlement by United States Commissioner •Shields, sued out a habeas corpus and certiorari. Counsel for the relator contended: First. That as to the three checks of Morison & Marshall, for 500 pounds, 500 pounds, and 720 pounds, respectively, which relator was charged with forging, there was no testimony before the commissioner tending to show his criminality. Second.

<p>1. Internal Revenue—Illegal Assessment—Limitation.</p> <p>The inhibition of Rev. St. § 3224, against suits “for the purpose of restraining the assessment or collection of a tax,” and the provisions of sections 3226, 3227, that a suit to recover an illegal tax shall not be brought “until after appeal to the commissioner of internal revenue, and must be brought within two years next after the cause of action accrued,” do not apply to a proceeding in which the government is the moving party; and, therefore, upon an application by the United States for an order upon a receiver to pay an assessment, the receiver may show that the assessment was erroneous or illegal, without regard to the lapse of time, or to whether there has been an appeal to the commissioner of internal revenue.</p> <p>2. Same—Deficiency Assessment against Distillery.</p> <p>A deficiency assessment against a distillery is erroneous where the deficiency of production for which the assessment was made was caused by a defective still, and was not the result of “culpable neglect, default, or mismanagement of the owners”; and the failure to apply to the collector to have the distillery sealed up until the fault could be rectified, as provided by Rev. St. § 3310, was not in this instance a want of diligence.</p>

This was a suit in equity to enjoin the alleged infringement of letters patent No. 239,702, issued April 5, 1881, to Sumner A. Bemis, for a car axle box, and No. 330,372, also to said Bemis, November 17, 1885, for a car wheel and axle box. The circuit court entered a decree for complainant under the first patent, but found that respondent did not infringe the second one. 75 Fed. 403. From this decree the defendant has appealed.

<p>Patents—Infringement—Slipper Soles.</p> <p>The Sessler patent, No. 625,746, for an insole for slippers, made of leather, paper, and wool, and used as an outsole for knit slippers by turning the thickness of leather over the thickness of paper, and uniting it to the braid to which the knit slipper is to be attached, is not, in view of prior devices, infringed by the slipper of the Borehardt patent, No. 539,337, which has a cord running under stitches in the turned-over edge of the leather, for attachment to the knit upper by stitches under it. 78 Fed. 482, affirmed.</p>

<p>1. Patents—Construction.</p> <p>Patents, like other writings, are to he construed by the terms in which they are expressed, except as limited by the prior art, and an attempt to restrict them to the scope of the inventor’s understanding of the device is unwarranted.</p> <p>2. Same—Invention—Machine por Trussing Tubs.</p> <p>Claim 2 of the Corcoran patent, No. 294,764, for a “machine for trussing tubs,” covering a combination of recessed standards, with truss hoops, removable bottom, and driving weight, if upheld at all, must be restricted to the particular construction described. The right to drive staves through trussing hoops resting in recesses is covered by the prior art, and the insertion of a removable bottom requires no invention. Held, therefore, that the claim is not infringed by machines made in accordance with the Ulrich patent, No. 356,217, or the Glader & Smith patent, No. 477,105.</p>

<p>1. Appeals in Collision Cases—Conflicting Evidence—Findings Below.</p> <p>Where the judge below has recorded his impression that certain testimony given by witnesses in his presence was of doubtful value, and on an examination of it by the appellate court there is nothing to suggest that the trial judge overlooked anything appearing on a careful comparison of the whole record, his conclusions will be entitled to great weight.</p> <p>2. Collision—Burden op Proof—Lookouts.</p> <p>Where a lookout is shown to have been absent from his post for a large part of the critical time during which the vessels were approaching each other, and was therefore unable to observe a considerable portion of the essential occurrences in controversy, the presumptions arising from this lack of vigilance are of very substantial importance; especially where it appears that the master of the vessel, instead of being in command of the deck, was himself at the wheel. In such case, if the vessel is unable to sustain the burden of showing fault in the other party, such inability must be laid to her own misfortune or negligence. The Charles L. Jeffrey, 5 C. C. A. 246, 55 Fed. 685, applied.</p> <p>3. Same—Errors in Extremis—Luffing.</p> <p>Where a sailing vessel going closehauled finds that another sailing vessel running free is crossing her course so close under her bow that she will probably not go clear, and thereupon luffs, she will not be held in fault, even if this was a mistake, as the rule of error in extremis applies.</p> <p>4 Same—Evidence—Admissions.</p> <p>While the courts seldom put much reliance on the evidence of officers or seamen as to alleged admissions by officers or seamen of the hostile vessel, yet, when such admissions are in harmony with the reasonable probabilities of the case in other particulars, they may be of value in suggesting a solution as between conflicting proofs.</p> <p>5. Admiralty Appeals—Costs.</p> <p>While, perhaps, there may be no appeal from ordinary questions of costs within the common jurisdiction of taxing masters, yet there may be such an appeal when the force of a statute or some positive rule of law is involved, though it concerns only costs.</p>

<p>Federal Courts—Equity Jurisdiction—State Statute—Removed Cases.</p> <p>A suit brought in a state court, under a state statute, to quiet title against one in possession, is an equitable suit, which cannot, alter removal to a federal court, be prosecuted therein, because there is an adequate remedy at law. The federal court will not, however, dismiss the suit, but will remand it to the state court.</p>

<p>t. Removal of Causes — Filing of Record by Plaintiff — Motion to Remand.</p> <p>Quaere, -whether, after the removal papers are filed in the state court, and before the time allowed to defendant for filing the record in the federal court, the plaintiff may himself file the record, and move to remand.</p> <p>2. Same—Time of Removal.</p> <p>The rule of the superior court of Massachusetts requiring demurrers, answers, pleas in abatement, and motions to dismiss to be filed within the time allowed by law for entering an appearance is a general rule of practice, so as to require that a petition for removal to a federal court shall be filed within the same period; nor is it material that the rule permits the court to enlarge the time on special cause shown. First Littleton Bridge Corp. v. Connecticut River Lumber Co., 71 Fed. 225, affirmed.</p>

<p>Bill in equity to cancel, set aside, and have decreed null and void certain patents issued by the United States to all the lands set forth and described in the bill. A plea in bar was filed by the defendants setting up the question of the statute of limitations under the act of March 3, 1891 (26 Stat. 1099). The complainant answered the plea in bar, to which answer the defendants excepted for impertinency.</p>

<p>Mortgage op Homestead—Texas Statute—Estoppel.</p> <p>In Texas, a wife who, in an application for a loan, joins her husband in representations that the lands proposed to be mortgaged, and which are contiguous to, but not a part of, the tract on which they reside, are no part of their homestead, is estopped thereby, where they have been acted on in good faith, as against a title acquired under the mortgage, when, at the time, they owned 200 acres in addition to the mortgaged lands, including the tract on which they actually resided, and parcels contiguous thereto, and also an outlying disconnected timber tract used in connection with the others for fuel and timber supplies.</p>

<p>1. Kes Judicata—Extent of Estoppel.</p> <p>Unless it appears from the record or consistent extrinsic evidence that the particular matter sought to be concluded was necessarily tried and determined, so that the judgment could not have been rendered without deciding it, there is no estoppel.</p> <p>2. Same—Decree in Patent Suit.</p> <p>Where a decree sustains one claim of a patent, but there is nothing, either in the decree or the opinion, showing whether another claim is or is not valid, the defendant in a second suit is not estopped from contesting its validity.</p>

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

<p>3. Receivers—Power to Sue.</p> <p>A receiver of a corporation, appointed by a state court, with powér to collect its assets and to sue therefor, can sue in a federal court to enforce specific performance of an alleged contract of insurance on corporate property. 77 Fed. 375, affirmed.</p> <p>3. Mailing oe Letters—Presumptions.</p> <p>When a party alleges that he duly mailed a letter, the court must presume that the requirements of the law as to stamping, etc., were complied with.</p> <p>3. Insurance—Completion of Contract.</p> <p>After extended correspondence between certain insurance agents and the brokers representing a corporation desiring insurance, the agents telegraphed the brokers, “With specific form, can write $10,000 at 90 cents, if it will help you.” On the same day the brokers accepted this offer by mail, saying that they inclose forms, which they “trust will be specific enough and satisfy the companies.” Before receipt of this letter and inclosures, the property was destroyed by fire. Held, that the mailing of the letter left it unsettled whether the forms inclosed were sufficiently specific to satisfy the agents, and hence there was no meeting of minds, so as to form a' binding contract. 77 Fed. 375, reversed. Brawley, District Judge, dissenting.</p>

<p>1. National Banks — Duty and Liability of Directors — Malfeasance of Officers.</p> <p>The duty of the board of directors is not discharged by merely selecting officers of good reputation for ability and integrity, and then leaving the affairs of the bank in their hands, without any other supervision or examination than mere inquiry of such officers, and relying upon their statements until some cause for suspicion attracts their attention. The board is bound to maintain a supervision of the bank’s affairs, to have a general knowledge of the character of the business and the manner in which it is conducted, and to know at least on what security its large lines of credit are given.</p> <p>2. Same—Insolvency—Suit by Receiver against Directors.</p> <p>A receiver of a national bank may sue the directors to hold them responsible for the malfeasance of the managing officer, when it appears that they were so negligent as to make practically no examination of its books or affairs, and to hold meetings only at rare intervals, and then to limit their business almost wholly to the election of directors and the declaration of dividends. In such case their liability for losses should begin at a time when they ceased to discharge the duty of giving proper supervision to the conduct of the bank’s affairs. In the circumstances of the present case, they were held liable from the time when, by reason of the failure to earn dividends for more than a year, their attention should have been drawn to the necessity of making a thorough examination.</p>

<p>1. Action to Determine Adverse Claim—Instructions.</p> <p>In an action to determine, an adverse claim to land under the North Carolina statute, an omission of the court to define the nature of adverse possession is not reversible error where the matter was not brought to its attention either by a prayer for instructions or by an exception to the charge for insufficiency in this respect, taken before the jury retired.</p> <p>2. Same—Effect of Adverse Possession—Omission to Charge.</p> <p>Where adverse possession by actual occupancy of part of a tract is relied on, a charge which fails to definitely state whether the adverse possession was limited to the particular land occupied or extended to the whole tract, and to clearly state the effect of such occupation under the circumstances of the case, constitutes reversible error, where exceptions to the insufficiency of the charge were taken in proper time.</p> <p>8. Appeal and Error—Errors not Assigned.</p> <p>In an action to determine an adverse claim under the North Carolina statutes, where the court gave a misleading and insufficient instruction as to the effect of adverse possession, held, that in view of the far-reaching consequences of the verdict on this issue, and the special circumstances of the trial, the circuit court of appeals would exercise its discretion, under rule 11 (21 C. C. A. cxii., 78 Fed. cxii.), to notice the error, though not properly assigned.</p>

<p>1. Officers of Court—Appointment—Relation to Judge.</p> <p>The provision of 24 Stat. 552, that no federal judge shall “hereafter” appoint to any office or duty in the courts a person related to him within the degree of first cousin, does not invalidate such an appointment previously made.</p> <p>■ 2. Clerk of Court—Appointments—Master—Form of Order.</p> <p>An order appointing a clerk of a federal court as master in chancery without assigning a special reason therefor, as required by 20 Stat. 415, is-sufficient, however irregular, to clothe him with insignia of the office, so-that his acts will be those of a de facto incumbent, and not subject to question in a collateral proceeding.</p> <p>3. Judicial Sales—Vacating Appointment.</p> <p>Under the Nebraska statute, giving judgment debtors the right to have-their property appraised, and providing that it shall not be sold for less-than two-thirds its appraised value, an appraisement cannot be set aside,. as too low, where fraud in the appraisement is not alleged.</p>

<p>1. Carriers op Passengers — Violation oe Regulations — Personal Injuries.</p> <p>A carrier of passengers is entitled to insist that passengers shall remain In such places as are provided for them, and comply with reasonable regulations for their safety and comfort, and if a passenger of mature age leaves the place provided for him, and, without occasion for so doing, or to gratify his curiosity, goes to a place of greater danger, he assumes any increased risk of injury incurred by so doing.</p> <p>2. Same—Contributory Negligence.</p> <p>A passenger who, of his own volition, incurs an unnecessary risk by leaving a place provided for him, and going to one where he has no right to go. cannot excuse his conduct, and hold a carrier liable, as such, for injuries received while he is in such exposed position, on the plea that he or othens believed the place to be safe; and it is error, in an action by a passenger against a carrier for injuries incurred under such circumstances, to refuse to charge the jury that such conduct on the plaintiff’s part would prevent a recovery.</p> <p>3. Evidence—Stenographic Notes op Former Trial.</p> <p>The stenographic report of the testimony given on a former trial by a witness whose attendance cannot be procured may be admitted if the witness was fully examined and cross-examined, and the report is correct and complete; but, if incomplete, as by the absence of photographs used by the-witness in illustrating his testimony, it cannot be admitted.</p>

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

<p>Accident Insurance—Death in Quarrel.</p> <p>A benefit certificate iusuring against “death by accident” does not cover a ease where the assured was shot in a quarrel in which he was the aggressor, and violently attacked his adversary with a pistol, accompanying the act with the exclamation mat he must have revenge, and warning his adversary to “put himself in shape.”</p>

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

<p>1. District Attorneys—Services Outside of District—Compensation.</p> <p>A district attorney is not entitled to special compensation for services rendered by direction of the attorney general in an appellate court outside of his district. 22 C. O. A. 223, 76 Fed. 359, followed.</p> <p>2. Same—Expenses.</p> <p>Under Eev. St. § 370, a district attorney sent by the attorney general to conduct a cause in a court outside of his district is entitled to recover expenses necessarily incurred.</p>

<p>1. Grand Juries—Secrecy of Proceedings—Presence of Other Parties.</p> <p>No person, other than a witness undergoing examination and the government attorney, can he present at the sessions of a grand jury; and an indictment should be quashed where an expert witness remained in the jury room while another witness was being examined, and put questions to him.</p> <p>2. Criminal Law — Testifying against Oneself — Examination before Grand Jury.</p> <p>An indictment should bo quashed when it appears that defendant was compelled by subpoena to attend before the grand jury, and give material testimony, without knowing that his own conduct was under investigation.</p>

<p>National Banks—False Reports.</p> <p>It is not a necessary ingredient of the offense of making a false entry in a report, under Rev. St. § 5209, that the report shall he one of those mentioned in sections 5211, 5212, or one which the hank is hound hy law to make. It is sufficient if the report is one made in the due course of business. U. S. v. Potter, 56 Fed. 83, 97, disapproved.</p>

This was a suit in equity by Wilson L. Mead, Charles E. Grill, James E. Callaghan, FT.

This was a bill in equity by the American Sulphite Pulp Company against the Howland Falls Pulp Company for alleged infringement of reissue patent No. 11,282 (original No. 445,235), for an improvement in wood-pulp digesters. The circuit court dismissed the bill (70 Fed. 986), and the complainant has appealed.

This was a suit in equity by the W. T. 0. Macallen Company against the Johns-Pratt Company for alleged infringement of certain patents relating to electric insulators.

<p>Collision—Tugs and Tows—Entering Slack Water.</p> <p>A tug towing a barge on a bawser from Jersey City around the Battery-to tbe East river held solely in fault for a collision of the barge with a schooner in tow of a tug rounding the Battery in the opposite direction, because she miscalculated or neglected to consider the space necessary for the turn of the barge in going through the slack water.</p>

<p>Appeal from the Circuit 'Court of the United States for the District of Colorado.</p> <p>This suit was brought by Eugene Zimmerman, the appellant, against Wiley E. So Relie, the appellee, in the circuit court of the United States for the district of Colorado, on December 27, 1895. For present purposes, it is unnecessary to state the averments of the bill in detail. It showed, substantially, that a controversy had arisen between the parties to the suit, relative to the ownership of certain real estate situated in the town of Aspen. Pitkin county, Colo., to wit, the southerly 75 feet of lots R and S in block 88, which had at one time been sold by Zimmerman to So Relie, and had thereafter been reacquired by Zimmerman at a trustee’s sale, under a power of sale contained in a deed of trust, that had been executed by So Relie to secure the payment of a part of the purchase money; that in equity the property belonged to Zimmerman, although it was at the time in the possession of So Relie; that the complainant’s title derived through the aforesaid trustee’s sale was defective, because the notice under which said sale had been made was not published for the requisite length of time; that, by virtue of such defect in the notice of sale, the complainant had not acquired at such sale a good legal title, under which a recovery could be had against the defendant by a suit in ejectment; that the defect in said notice of sale was due to the negligent and fraudulent conduct of the defendant, So Relie, who was an attorney by profession; and that, by virtue of such fraud and negligence, he was in law estopped from taking advantage of the defect in the plaintiff’s legal title, and from further retaining possession of the property. In view of the allegations of the bill, the complainant prayed that “the defendant may be decreed to be forever estopped from setting up or claiming any right, title, or interest whatsoever in and to said premises, or from in any manner claiming that said foreclosure, and the sale of said property thereunder, was illegal or insufficient, and that your orator may be decreed to have a good and perfect title to said premises, * * * and that any cloud may be removed which may rest upon the title of your orator to the said property, by virtue of any defect in said foreclosure sale or in the notice thereof.” To the aforesaid bill the defendant beiow filed the following plea: “And this defendant further says: That at the time of the commencement of said suit, and at the time when service of the writ of subpoena issued thereunder was attempted or pretended to be made upon this defendant, another suit was, and at all times herein mentioned has been, and now is, pending in the district court of Pitkin county, state of Colorado (No. 1,718), between the said Eugene Zimmerman and the said Wiley E. So Relie, involving the same subject-matter, and wherein similar relief was sought. That the said suit in the said district court of Pitkin county was commenced by filing a bill in equity on the 4th day of October, 1895, and wherein said Wiley E. So Relie is plaintiff, and the said Eugene Zimmerman, the Mortgage Trust Company of Pennsylvania, and Biddle Reeves are defendants. That summons and complaint was served upon each of the said defendants on the 5th day of October, A. D. 1895. That the subject-matter in said suit in said district court of Pitkin county is the title to the southerly seventy-five (75) feet of lots R and S in block 88 of the town site and city of Aspen, in Pitkin county, Colorado. That the relief sought therein is to quiet the title of said premises in the said Wiley E. So Relie, and for general relief, by injunction and otherwise. That on the 26th day of October, 1895, the said Eugene Zimmerman filed therein a notice of application to remove the said cause to the federal court, together with a petition and bond for removal. That on the 4th day of November, 1895, the separate answer of the said Reeves and the said Mortgage & Trust Company of Pennsylvania was filed therein. That on the 4th day of November, 1895, the said Eugene Zimmerman filed a demurrer to the complaint therein. That on the 14th day of November, 1895, the said Wiley E. So Relie filed a motion to make the answer of Reeves and the said Mortgage & Trust Company of Pennsylvania more specific. That on the 18th day of November, 1895, said Zimmerman filed therein his motion to withdraw his demurrer. That on the 12th day of December, 1895, a motion to dissolve an injunction issued in said cause was heard and overruled. That on the 30th day of December, 1895, said Zimmerman filed his separate answer therein. That on the 20th day of January, 1896, the said So Relie filed a demurrer therein. That on the 25th day of January, 1896, the said So Relie filed replications to the answers of the said Zimmerman, Reeves, and the said Mortgage & Trust Company of Pennsylvania. That on the 2Sth day of January, 1896, the said Zimmerman filed his motion to strike out the said replication. That on the 8th day of February, 1896, the motion of said Zimmerman to strike out the said replication was heard and overruled by the said district court in said Pitkin county. That on Wednesday, the 13th day of November, 1895. a motion of the said Eugene Zimmerman to docket the cause pending in the said district court of Pitkin county, and to file in the circuit court of the United States for the district of Colorado a transcript of the record from the said district court of Pitkin county, was heard by this honorable court, and, after the court was fully advised in the premises, the last aforesaid motion was overruled. That the said suit in the said district court of Pitkin county, Colo., is still pending, and is now at issue; and that adequate relief may be had by all partieé therein. * * * Wherefore this defendant prays the judgment of this honorable court whether he ought to be required to appear in accordance with any writ of subpoena issued in said suit.” To the foregoing plea, the defendant below interposed a demurrer, on the ground that it did not state facts showing any reason why the suit might not be prosecuted by the plaintiff, and for the reason that the plea was uncertain, defective, and ambiguous in stating the matters alleged to be involved in the litigation pending in the district court of Pitkin county, Colo. The trial court overruled said demurrer, whereupon the complainant asked leave to file a replication to said plea', which leave was denied, and the bill of complaint was thereupon ordered to be dismissed. The present appeal was taken from such order of dismissal.</p>

This was a suit in equity by William Goddard and others, stockholders of the Bowery Insurance Company, against Isaac P. Mailler and others, as the receiver and directors of that company, for an accounting because of alleged malfeasance resulting in the impairment of the company’s capital stock.

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>This was a bill filed by the Durango Land & Goal Company, the appellant, in the circuit court of the United States for the district of Colorado, against Roger O. Evans, Reese G. Carlisle, John Tetard, Sprigg Shackleford, and Frank Adams, the appellees, to restrain them from prosecuting any 'suits at law against the appellant, with respect to certain coal lands which were alleged to be in the possession of the appellant; and to restrain them as well from making any conveyance, either by way of sale or mortgage, affecting the title to said lands: The bill further prayed that the appellees, who held the legal title to said lands under a patent theretofore issued by the United States, might be adjudged to hold the same in trust for the appellant, and that they might be compelled to transfer all their right, title, and interest in said lands to the appellant. The grounds upon which such relief was asked were thus stated in the complaint: It was averred, in substance, that on December 1, 1881, Byron McMaster made a cash entry of the lands in controversy, the same being situated in Gunnison county, Colo., by paying to the receiver of the land office of the United States, at Leadville, Colo., the price demanded therefor, as fixed by the laws of the United States; that, on or about said last named day, the usual duplicate final receipt for the money so paid was issued by said receiver to the said McMaster; that on or about December 26, 1882, said receiver's receipt was duly recorded in the official records of Gunnison county, Colo.; that on or about December 26, 1881, William A. Bell, as trustee, purchased the lands in controversy from said McMaster for value, and received a warranty deed therefor, without notice of any adverse claims thereto; that on or about January 1, 1S82, said Bell leased said lands for the term of 99 years to the Colorado Coal & Iron Company, a corporation of Colorado; that said lessee entered into possession of said lands under said lease, opened and developed coal mines thereon, and expended in improvements about $250,000; that ever since said date the Colorado Coal & Iron Company, or its transferee, the Colorado Fuel & Iron Company, or the complainant, the Durango Land & Coal Company, had been, and then were, In the open, actual, notorious, and continuous possession of said lands, and had been engaged during said period in mining and extracting coal therefrom; that during all of said period the complainant, or its predecessors in interest, had paid all taxes and assessments levied thereon; and that on or about the Sth day of January, 1885, the lands in controversy were duly conveyed by the aforesaid William A. Bell to the complainant, the Durango Land & Coal Company, which had purchased the same for value and in good faith, in reliance upon the title thus acquired by it from said Bell, under and by virtue of the aforesaid entry made by the said Byron McMaster.</p> <p>The bill of complaint contained the following additional averments, stating the same in hsec verba: “(6) And your orator, further complaining of the said defendants, says that on or about, to wit, the 27th day of June, 1892, and nearly ten years after the said entry of and payment for said lands by the said McMaster, and after the said improvements had been made as aforesaid thereon, said defendant Koger O. Evans, fraudulently and wrongfully claiming, or pretending to claim, some interest in said lands adverse to the title of your orator, filed in the local land office of the United States at Leadville, in said state of Colorado, an affidavit to the effect that he (the said Evans) had, at some time previous thereto, filed a coal declaratory statement on said lands, and, among other things, alleged therein, upon information and belief, that said entry of the said McMaster was not made for his own use and benefit, and he (the said Evans) made application therein to enter said lands himself. But your orator alleges that at some time prior to the entry of said lands by the said McMaster, and on or about, to wit, the 21st day of October, 1880, the said Evans filed in the United States land office at Leadville, in said state of Colorado, a paper purporting to be a coal declaratory statement, in which he (the said Evans) stated, among other things, that he had discovered and developed coal mines on said lands, and had taken possession of said lands, which statements, your orator alleges, were willfully and knowingly false and untrue, in this, to wit: that he, (the said Evans) never discovered any coal thereon, and never took possession of said lands or any part thereof, and never made any improvements of any kind or description thereon; and therefore your orator says that the said pretended entry and filing of the said Evans were fraudulent and void, and that he (the said Evans) acquired no rights thereby. And your orator further alleges that the said Evans, after filing the said pretended coal declaratory statement, wholly and completely abandoned the said lands and all claims thereto, and absolutely failed to make or attempt to make any final proof of payment therefor within the time, and as required by the coal land laws of the United States, although he was duly notified by the said land office to appear and show cause why his said pretended filing should not be canceled. (7) And your orator alleges that on or about the 27th day of June, 1892, the said defendants, who, during all the time aforesaid, resided near said lands in controversy, and had personal observation and knowledge, at the time they transpired, of all facts hereinbefore stated relating to the said lands, and to the said entry of the said McMaster, and to the purchase of the said lands by the said Bell and your orator, and of the lease and of the operations and improvements carried on and made as aforesaid, conspired and confederated together, for speculative purposes and in bad faith, to deceive the land department of the United States, and to unlawfully and fraudulently obtain from the United States a pretended title to said lands, and to defraud your orator and said lessee of their rights therein, and to unlawfully and fraudulently obtain the benefit of the improvements so made as aforesaid, and to extort from them large sums of money; and, so conspiring and confederating together for said purposes, they, the said defendants, made, or procured to be made, and presented to and filed in the said United States land office, certain statements, applications, and affidavits, alleging, among other things, that said Evans had expended money in developing coal mines on said lands, and that he was at that time in actual possession of said lands, and that he made the entry for his own use and benefit, and not directly or indirectly for the use and benefit of any other party; whereas, in truth and íd fact, * * * the said Evans had never opened or developed any coal mine or mines on said lands, and never discovered any coal thereon, and he was not then, nor had he ever been, in the actual or other possession of said lands or any part thereof; and that he (the said Evans) did not make said entry for his own use or benefit. But your orator alleges that, on the contrary, the only coal ever discovered on said lands', or any part thereof, was discovered by your orator, its grantor, or said lessee or transferee; and that the only coal mines •ever developed or existing- or opened on said lands, or any part thereof, were opened, developed, and worked by your orator, or its grantor or lessee or transferee, as aforesaid; and that said Evans made said pretended entry for the joint use and benefit of himself and the other defendants herein, and under and in pursuance of a prior agreement made by and between them, to the effect that said lands and all pretended claims against your orator and said lessee or transferee should, upon entry and patent, be divided between them. And your orator is informed and believes, and so alleges, that said defendants, and each and every of them, were at said time, and are now, disqualified to enter the said coal lands, or any other coal lands, by reason of the fact that they and each of them had previously exhausted their right in that respect. (8) And your ■orator further alleges that, deceived, misled, and imposed upon by the said false .and fraudulent statements, applications, and affidavits of the said parties as •aforesaid, and without notice either to the said McMaster, or to the said Bell, or to the said lessee or transferee, and without any appearance on behalf of them or any of them therein, the said land department of the United States, contrary to law, and in violation of the statutes of the United States in such case made and provided, proceeded, or pretended to proceed, to a so-called ‘hearing’ or ‘contest’ to determine the respective rights of the said McMaster’s and Evans’ entry; that such proceedings were thereupon had in said pretended contest or hearing that the United States land department canceled, or pretended to cancel, the said entry of the said McMaster, and did, on or about the •31st day of December, 1894, allow, or attempt to allow, the said entry of the said Evans, and thereafter, and on or about the 28th day of February, A. D. 1895, issued to him a patent for said lands, or a portion thereof. And your •orator alleges that the said action, finding, and decision of the United States land department were contrary to law, and without authority of law, and were in violation of the statutes of the United States and of the rights of .your orator, its grantor and lessee, among other things, in this, to wit: that by reason of the .acts and things done and performed by the said McMaster, his grantee, and the said lessee and transferee, as hereinbefore set forth, the said entry of the said McMaster should have been allowed, and a patent of the United States .should have been issued to him by the said land department, and the said pretended entry of the said Evans should have been disallowed and canceled; that there was no evidence before the said land department at said hearing • or contest showing that the said entry of the said McMaster was unlawful or invalid in any respect; and that there was no evidence in said pretended contest upon which the said pretended entry of the said Evans should or could legally have been allowed; that no notice of said pretended hearing or contest was ever given the said McMaster, or the said Bell, or said lessee, the Colorado ■Coal & Iron Company, or its transferee, the Colorado Fuel & Iron Company, and that neither they nor any of them appeared or were represented at said hearing or contest; that your orator, its grantor, and said lessee or transferee have been in continuous, notorious, and open possession of the said lands from about the-day of November, 1881, up to and until about the 27th day of June, 1892, without any notice or knowledge of any adverse or other claim to said lands, or any portion thereof, on the part of the said defendants, or any of them; and that during said time, and long subsequent thereto, and up to a very recent date, your orator, its grantor, or said lessee or transferee, have made ■the said improvements and have paid the said taxes on said lands as aforesaid, —all of which was well known to the said defendants, and all of which facts were entirely disregarded by the said United States land department in said ■pretended hearing or contest; that neither the said Evans nor any of the other defendants ever discovered any coal on said lands, nor did they, or any of them, .at any time take possession of the said lands, or any part thereof, nor did they, or any of them, ever at any time make, or attempt to make, any improvements of any nature on said lands, or any part thereof; that the said Evans did not ■make said pretended entry for his sole use and benefit, but the same was made or attempted to be made for tbe joint use and benefit of all defendants herein, in pursuance of tbe prior agreement between them, and for the purpose of defrauding tbe United States government, and for tbe purpose of depriving your orator and said lessee of their rights in said premises, in violation of the statutes of tbe United States; that the said Evans bad, at tbe time of bis said pretended entry, exhausted all bis rights, powers, and privileges to enter or take up coal lands under tbe laws of tbe United States; that tbe said Evans absolutely and completely abandoned any and all right, title, and claim which ne might have had in or to said lands long prior to bis said pretended entry, and absolutely failed to make final proof and payment for said lands within tbe time prescribed by tbe statutes of the United States in such case made and provided, and failed and omitted in bis said pretended coal declaratory statement to show or claim that be had discovered any coal on said lands, or tbbt be bad opened a mine thereon, or that be bad taken possession thereof: and that be (tbe said Evans) absolutely abandoned tbe said pretended fifing on said lands long prior to bis said pretended entry; and that after said abandonment tbe land department of tbe United States erroneously, and in violation of tbe statutes of tbe United States in such case made and provided, allowed him to renew tbe same, and to appear and be beard at said alleged contest or bearing, all of which facts were entirely disregarded and ignored by tbe said land department of tbe United States in said contest or hearing, wherein and whereby tbe said MeMaster’s entry was disallowed, and which facts, if properly considered, and tbe laws of tbe United States applicable thereto properly and legally construed by tbe said United States land department, would have resulted in tbe cancellation of tbe said pretended entry of the said Evans, and tbe allowance of tbe said MeMaster’s entry, and tbe issuance of a patent to him. Wherefore your orator says that for tbe reasons hereinbefore set forth, and for other and divers matters, facts, and things occurring in and at said pretended bearing or contest, tbe said land department erred, and violated tbe laws of tbe United States in such case made and provided, and more particularly the said act of congress above mentioned, in allowing the said Evans’ entry, and in issuing said patent to him.”</p> <p>Tbe bill further averred, in substance, that, since tbe issuance of said patent to tbe said Evans, be bad conveyed to his co-defendants Carlisle, Tetard, and Shackleford a certain interest in the lands in controversy; that the defendant Adams claimed, or pretended to claim, some interest in or lien upon said lands under and by virtue of a mortgage executed by Evans; and that tbe said defendants were asserting and claiming a title to sáid lands under tbe entry of Evans, and were denying tbe validity of the title asserted by tbe complainant, which depended upon the validity of tbe entry made by said McMaster. Tbe defendants filed a general demurrer to said bill, which, upon a hearing thereof, was sustained, and tbe bill was thereupon dismissed. Tbe case comes to this court on appeal from tbe order sustaining said demurrer, and dismissing tbe bill of complaint.</p>

This was a suit at law brought in the district court of Gunnison county, Colo., by Roger C. Evans, R. G. Carlisle, John Tetard, and Sprigg Shackleford, the plaintiffs in error, against the Durango Land & Coal Company, John A. Porter, William A. Bell, James H. Barlow, and William J. Palmer, the defendants in error, to recover the value of certain coal alleged to have been mined and removed from certain lands situated in Gunnison county, Colo.

<p>Appeal from the Circuit Court of the United States for the Western District of Virginia.</p> <p>On September 17, 1892, the Connecticut River Banking Company, a corporation of Connecticut, filed its bill of complaint in the circuit court of the United States for the Western district of Virginia against the Rockbridge Company, ;a corporation of Virginia, and against the Manhattan Trust Company, a corporation of New York, and F. T. Glasgow, a citizen of Virginia, trustees, alleging that it held, as collateral security for a debt due to it by the Rockbridge Company, certain past-due and unpaid first mortgage (series A) bonds of the said Rockbridge Company, secured by a deed of trust from said Rockbridge Company to the said Manhattan Trust Company and F. T. Glasgow, trustees; that, of said first mortgage (series A) bonds, there were outstanding, in all, about $120,000 or $130,000, of which no part of the principal or interest had been paid, and that the said Rockbridge Company was largely indebted to persons other than said mortgage bondholders, and was insolvent and unable to pay its debts, and that suits to a considerable amount had already been instituted against it, and other suits were threatened; that said company owned large and valuable properties, real and personal, in the county of Rockbridge, but was unable to realize funds to meet its defaulted engagements, and its officers and managers were unable to do anything to relieve it from its embarrassments; and that the interests of all parties concerned required that the company should go into liquidation, and its property and assets be placed in the hands of a receiver, to avoid being wasted by suits, and so that lull justice might be done to all parties. The prayer was that the Rockbridge Company and the said mortgage trustees be required to answer, and that an injunction be granted restraining the Rockbridge Company from all further acts as a corporation, and for the appointment of a receiver of the property and assets of the company, in order that the same might be administered under the direction and control of the court, and that the debts might be collected, and the property sold, and the proceeds appropriated, under the direction of the court, to the payment of the company’s debts according to their priorities; that all necessary accounts might be taken; and that the claims of all parties who should come in might be ascertained and adjudicated; and for- general relief. Subpoenas were issued, and the Rockbridge Company and Glasgow were returned summoned to the October rule day, 1S92, and the Manhattan Trust Company to the November rule day, 1892. The matter of the appointment of a receiver was, upon notice, set for hearing on October 17, and postponed to November 10, 1892, and on that day it was continued to the next regular term.</p> <p>On December 6, 1893, one H. C. Parsons filed his petition in said suit, alleging, in substance, that in his own right, and as president of the Natural Bridge Forest Company, he was the owner of $17,500 of the first mortgage bonds of said Rockbridge Company, similar to those described in the bill, and that all -of said mortgage bonds were past due and unpaid. And thereuiDon he concurred in the averments and the prayers in complainant’s bill, alleging as additional grounds for the appointment of a receiver that the personalty of the defendant company under its management at that time was being rapidly wasted. On December 21, 1893, J. O. Burdett, receiver, filed a petition stating that he was the holder of $5,800 of said mortgage bonds, which were a lien upon the property described in the mortgage filed with the bill, and alleging that unless a receiver was appointed the assets of the defendant company would go to waste, and judgments would be obtained against it by different creditors. He joined in the prayer of the original bill, and asked, in addition, that “the property of said company embraced in the mortgage aforementioned be subjected to the lien of said mortgage, and be divided amongst the creditors secured therein, and, if your petitioner’s debt should not be fully satisfied thereby, that he be allowed to share in the proceeds, pro rala, of any property not embraced in said mortgage, along with the unsecured creditors.” On February 26, 1894, a similar petition was filed by the Glasgow Manufacturing Company, setting forth at great length an open account due it by the defendant Rockbridge Company, explaining how a large part of said account had been paid from the proceeds of certain mechanics’ liens, and stating that the remainder thereof was secured by the hypothecation of $14,200 of said mortgage bonds. It was again stated that the defendant company owned valuable real and personal property not conveyed by said mortgage; that it was insolvent; that actions were pending against it which would soon go to judgment, and, unless some action was taken, the plaintiffs in said actions would acquire liens on the property “not embraced in said mortgage, giving them priority over creditors who have not instituted actions at law.” The appointment of a receiver was again prayed, and certain affidavits were filed with the petition in support of the allegations therein made.</p> <p>Thereafter, upon notice to the defendants, the motion for the appointment of a receiver was renewed on February 26, 1894, and on that day a decree was entered, which, after reciting that it appeared to the court that the appointment of a receiver was necessary, decreed as follows: “It is adjudged, ordered, and decreed that J. Lewis Bumgardner and F. T. Glasgow be, and are hereby, appointed as receivers for said the Rockbridge Company, and that they shall, as soon as practicable, take possession, and that the- officers and agents of the said company be directed to give them possession, of all the property, books, papers, and assets of the said company, of all nature and description. And the said receivers shall, as soon as practicable, malee an inventory of the property and effects of the said company, and shall report the same to this •court, with such suggestions and recommendations as they shall deem best, with a view to the liquidation of the indebtedness of the said company. And that said receivers are authorized to employ such agents, clerical, expert, and other assistance as they may deem proper, in order that the property of the company may be protected, the inventory above directed made, the books of the company examined and written up, if necessary, and such other work done .as may become necessary in the discharge of their duty. And said receivers are directed to collect all debts due the said company, by suit or otherwise,-not incurring the expense of suit, however, on claims known to be insolvent, but only on such claims as they, in their judgment, may deem it best for the interests of the creditors of the company to institute suit upon; and they also shall have power to compromise claims on such terms as they both may agree upon. That the officers and agents of the said company are hereby enjoined and restrained from exercising any rights or control over the property, assets, 'books, and papers of the said company, and from interfering in any manner whatever with the control and management of the receivers over and with the same. And all persons who are, or claim to be, creditors of the said •company, are hereby enjoined and restrained from instituting any suit or suits against the said company; and, in case any such suit or suits has or have been heretofore instituted against the said company, the further prosecution of the same is or are hereby enjoined and restrained. And it is further adjudged, ordered, and decreed that George E. Sipe, of Harrisonburg, Va., be, and he is hereby, appointed as a special master commissioner of this court for this purpose, whose duty it shall be, as soon as practicable, to take, state, ■and settle (1) an account of the property and assets of the Rockbridge Company; (2) an account of the debts and liabilities-of the Rockbridge Company, and the order of their priorities; (3) any other matter which he may deem pertinent, or which any party in interest may require to be specially stated. But before executing the said account the said special master commissioner ■shall first advertise the times and places of his primary appointments once .a week for four successive weeks in some newspaper published in the town of Harrisonburg, Virginia, and also in some newspaper published in the town of Lexington, Virginia, which said publication shall be deemed equivalent to personal service of notice on all parties in interest. And before said J. Lewis Bumgardner and F. T. Glasgow, receivers, shall be authorized to act under this decree, they shall each execute and file before the clerk of this court their 'bonds, with approved personal security, and to be approved by this court, in -the penalty of ten thousand dollars, each separately, payable to the United States of America, and conditioned for the faithful discharge of his duty under this and all future orders and decrees of the court in this cause.”</p> <p>In pursuance of this decree, one of the receivers thereby appointed filed his "bond, with sureties, on the 26th day of February, the day of his appointment, .and the other receiver filed a similar bond on the 1st day of March following; but, as appears from the record, neither bond was approved by the court until March 2d. When the decree was entered, actions at law in favor of the appellants against said Rockbridge Company were pending in the circuit court of Rockbridge county, Va., and matured for a term of said court commencing on the 1st day of March, 1894. At this time the appellants were not parties to -.this suit, and on said 1st day of March, 1894, judgments were entered in said actions at law in favor of the appellants. The special master, who was directed to state an account of the debts and liabilities of the Rockbridge Company, showing the order of their priorities, on June 3, 1895, filed his report. He reported certain judgments entered prior to the filing of the bill of complaint as liens upon all the property not covered by the mortgage, but as to the judgments of the appellants which were recovered at the March term, 1894, which commenced on March 1, 1894, and which, by Code Va. 1887, §§ 3287, 3576, dated back, and took effect as of the first day of the term, he reported that those judgments were not a lien on the property of the defendant corporation not included in the mortgage. The appellants excepted to this report. The case came on again to be heard on July 22, 1895, and the court ratified certain adjustments of mechanics’ lien claims and other lien claims, which had been reported, and decreed a foreclosure sale of the mortgaged property, authorized and decreed a sale also of all the property not embraced in the mortgage, and authorized a sale of the lands in subdivisions and parcels. On December 12, 1895, the court overruled the appellants’ exceptions, and confirmed the special master’s report, and from that order this appeal is taken.</p>

<p>Equity Pleading—Decision—Consistency with Pleading.</p> <p>In a suit by the assignees of a legacy to cancel a' receipt of payment thereof given by the legatee to the executors, the bill alleged the making of the will, the death of the testator, the assignment of the legacy to complainants, and the giving of the receipt to the administrators by the legatee, without any payment in fact of the legacy either to him or the assignees. The bill further alleged that the receipt was given in pursuance of a combination between the legatee and the executors to defraud complainants. The executors denied any fraudulent combination, and the court found, on the evidence, that there was in fact no such combination, but held that the receipt was invalid, because obtained by the executors without payment of the legacy. Held, that there was no substantial inconsistency between this decision and the allegations of the bill.</p>

<p>Appeal from the Circuit Court of the United States for the northern District of Illinois.</p> <p>This is a suit brought by the Northern Trust Company, a corporation organized under the laws of Illinois, and doing business at Chicago, and Ovid B. Jameson, a citizen of the state of Indiana, as trustees, against the Columbia Straw-Paper Company, a corporation organized under the laws of New Jersey, to foreclose a trust deed covering various paper-mill properties given by the Columbia Straw-Paper Company to the appellees, to secure the payment of 1,000 first mortgage gold-bearing bonds of the company for the sum of $1,000 each, payable to the bearer or registered owner thereof in gold coin, and bearing interest at 6 per cent, per annum from the 1st day of December, 1892, payable half yearly; the interest on the bonds being secured by coupons in the usual manner attached to the bonds. At the commencement of the suit-the Columbia' Straw-Paper Company was the only defendant. During the progress of the cause Harry W. Dickerman and other persons, minority holders of stock in the Columbia Straw-Paper Company, upon petition to the court, were allowed to come in and answer and to file a cross bill. Answers were filed setting up collusion and fraud on the part of the Columbia Straw-Paper 'Company and the controlling stockholders, and especially in overvaluing the various mill plants and properties upon which options were taken and which were transferred to that company in exchange for its capital stock; such Columbia' Straw-Paper Company having been organized for the purpose of taking such conveyances, and thus consolidating the plants upon which options had been taken for that purpose. There were, it seems, some 70 of these paper-mill properties, situated in Illinois and other states. 'With the purpose of reducing expenses, and more economically carrying on the business, the idea was conceived by some of the owners of consolidating the various plants under one organization. To that end options were taken running for six months, and a new company, to be called the Columbia Straw-Paper Company, was organized with a capital stock of $4,000,000, with preferred stock of $1,000,000, to receive conveyances of the various plants from the person or persons taking the options, in exchange for the stock of the new company. The business, as it had been carried on by the separate mills, each with a full set of officers and managers, had not been profitable, and the purpose of the scheme was to reduce expenses by a consolidation of the various interests, and by the organization of a single management. More capital was also needed to carry on the business, and this was to be provided by the issuance by the new company of $1,000,000 of gold-bearing bonds to be secured by a first mortgage upon the consolidated properties of the new company. The plan is fully set forth in the option contracts given by the mill owners. One hundred thousand dollars of the bonded indebtedness was to be retired annually. The mill owners were to be paid according to their options, partly in cash and partly in the common and preferred stock of the company. The money to pay for the mills, and provide the working capital to organize the new company and carry into effect all the details of the plan, including negotiations with mill owners and paying preliminary expenses, was to be furnished by the party taking the options. This party was to procure and convey to the company a good title to the property named in the options, and give the new company a working capital of $200,000, and the company in return was to transfer to the party so taking the options all the stock and bonds of the company. This arrangement was perfected and carried out by written contract between the company and Emanuel Stein, contained in the record. Some or all of the options in the first instance were given to Philo D. Beard and Thomas T. Bamsdell, both of Buffalo, who transferred them to Stein. Stein, according to the contract, transferred all of the options to the company in exchange for its stock; but the stock called for by the options, and which was to go to the various companies who had given the options, was delivered by the company to the mill owners upon the order of Stein. All the other stock was delivered by the company to Stein, who converted the bonds, and from the proceeds made the cash payments for the mills and $200,000 to the company. Some of the stock was used in paying for the mills as agreed, some was used in payment for assistance to promoters of the enterprise in obtaining options, and some to pay commissions on sale to third parties of bonds, to lawyers for services, and to pay traveling and incidental expenses. In disposing of the bonds it was found necessary to give the purchaser of each $1,000 a bonus of $200 in addition of the preferred stock, and $400 in the common stock, of the company. All the bonds were sold in this way to any one who would buy them. The sum of $200,000 of the proceeds was handed over by Stein to the company, and the balance used in paying for the plants. Of the $1,000,000 preferred stock, $029,000 went to the mill owners and $200,000 to the purchasers of bonds. Of the common stock, $1,258,000 went to the mill owners, and $400,000 to purchasers of bonds. Some of the remainder went to Stein for services, and some was retransferred to the company under a modification agreement between him and the company. In this way the company acquired title to 39 mill plants out of 70 then in existence in the district covering the new enterprise. As before stated, the appellants are minority stockholders in the Columbia Straw-Paper Company, having in the aggregate 785 of the 10,000 shares of the preferred stock of the company and 1,070 of the 30,000 shares of the common stock. The answer of appellants to the original bill for foreclosure admits that 1,000 bonds of the company were sold and paid for at par, $1,000 for each bond, ■ by the parties who purchased from Stein. This is also shown by the evidence. These are the bonds in suit, and to secure which the company gave its deed of trust for the various mill properties conveyed to it, which it was the purpose of the suit to foreclose. After the new enterprise was launched, the panic and hard times came on, business was interrupted and broken up, and the company unable to meet its obligations. Default was made in the payment of the principal and interest of the bonds. Indeed, no portion, either of principal or interest, has ever been paid. The proofs are quite voluminous, but perhaps the above statement will be sufficient for the purposes of this opinion. As stated, the Columbia Straw-Paper Company was the only defendant in the original bill to foreclose. Its answer virtually admitted the facts set out in the bill, and confessed its inability to pay. Subsequently Dickerman and the other stockholders who are here as appellants came in by petition and obtained leave to defend. The theory of their answer was that there was a fraudulent overvaluation of the property transferred to the company; that all the bondholders had acquired stock of the company without payment therefor, or that they were assignees of the bonds with notice of these facts; that they were still indebted to the company for the stock; and that the court should ascertain the amount of such indebtedness, and set off the same against the bonds. Substantially the same matters were set up by cross bill. The case was referred to Henry W. Bishop, master in chancery, to take the proofs and report to the court, which he did. By this report the master found all the issues in favor of the complainant and against the defendants; that the bonds had been made and delivered as alleged; that they were valid obligations against the company; that default had been made by the nonpayment of principal and interest; that the defendant company was insolvent and unable to pay its debts; that on or about January 22, 1S95, an execution was duly sued out against the property of the company upon a judgment against the defendant by one James Flanagan, before George W. Underwood, justice of the peace, which still remained undischarged; and that by reason of the premises, and as provided in the deed of trust, the complainants had declared the principal and interest secured by the said 1,000 bonds, of the aggregate face value of $1,000,000, to be immediately due and payable, and that they had been requested in writing by the owners of more than one-third of the bonds to enforce the provisions of the deed of trust and the security created thereby. The report further finds that the contention of the defendants, who are now the appellants, that the procurement of the Flanagan judgment was the result of collusion with the company, is not supported by the testimony. All the other issues were found in favor of the complainants. This report was filed on April 15, 1896, and two days after the opinion of the court was rendered, and a decree signed overruling the exceptions to and affirming the master’s report, and ordering a foreclosure and sale in accordance with the prayer of the bill.</p>

This is a bill in equity, filed in the court below by John Godkin, the appellant here, as complainant, which stated, in substance, the following facts: On June 10, 1896, Crosier Davidson, being the owner of military land warrant numbered 93,834, issued by the United States under the act of congress of March 3, 1895, applied at the United States land office at Stevens Point, in the state of Wisconsin, to locate in satisfaction of the warrant all that portion of section 12 in…

This was a suit in equity by the Farmers’ Loan & Trust Company against the Iowa Water Company and others, in which the New England Waterworks Company, C. H. Yenner, and others intervened. The cause was heard on a motion to vacate the final decree and certain antecedent orders.

<p>This was a suit in equity by the Farmers’ Loan & Trust Company against the Iowa Water Company and others, in which the New England Waterworks Company, C. H. Yenner, and others intervened. The cause was heard on a motion to vacate the final decree and certain antecedent orders.</p>

The action was brought by Stephen Kiszel to recover damages for personal injuries received by him while in the defendant’s employ, by the explosion of one of its boilers upon its premises at Lost Creek, Pa., on the evening of July 28, 1894. The jury rendered a verdict of $2,500 for the plaintiff. This writ of error was brought by the defendant.

<p>In Error to the Circuit Court of the United States for the Western District of North Carolina.</p> <p>This writ of error brings to us for examination the exceptions reserved by the defendant in the court below to the rulings in a jury trial, the facts of which are sufficiently set forth in the following Statement, taken from the brief of the counsel for the plaintiff in error:</p> <p>“This was a civil action, brought by W. A. Graham, the defendant in error, to recover of the Wrought-Iron Range Company, plaintiff in error, the sum of $5,000 damages, caused from the burning of his dwelling house and contents and one outhouse on the 5th day of June, 1894, by fire, which fire, the said Graham alleged, was communicated from the range and piping sold him by the Wrought-Iron Bange Company, plaintiff in error. It appeared in evidence on the trial of the case in the court below that on the 16th day of May, 1894, one Goetchins, the agent of the plaintiff in error, contracted to sell to the said Graham a range and piping at the price of $68, and the said Graham agreed to take a range, and on that day executed his note for $68. On the 21st day of May one Bell, another agent of the plaintiff in error, came to Graham’s house with a range and piping, and the said Bell procured two carpenters to erect and place said range in position in the house, the piping being run straight up through a room over the kitchen, and through the roof of che house, without placing around the piping any terra cotta or other nonconductor of heat. The same night that the range was placed in position, and after it had been so placed, the said Graham signed a paper writing known in this ease as ‘Exhibit A,’ which is in words and figures as follows:</p> <p>“ ‘This agreement, made and entered into this 21st day of May, 1894, between the AYrought-Iron Bange Company, of St. Louis, Mo., of the first part, and Maj. W. A. Graham of the second part, witnesseth: That the Wrought-Iron Bange Company has this day delivered in good order to the parties of the second part one Home Comfort Bange and ware, same as sample ordered from, for which the party of the second part executed their promissory note on the 16th day May, 1894, for the sum of $68, payable to the Wrought-Iron Bango Company without discount or offset, and due on the 1st day of October after date, with eight per cent, interest from date, if not paid when due and presented. Now, be it understood, that the Wrought-Iron Bange Company war rant said range to bake, boil, and do all kinds of cooking in a good, workmanlike manner, and agree to furnish free of charge any parts that may, with ordinary usage, get out of repair sufficiently to injure the working of said range during the period of twelve months from the date of this writing: provided, that the above note is paid when due and presented, and that the parties of the second part furnish such flue and fuel as is necessary to its perfect operation. It is further agreed that the range is not transferable until paid for, and that no receipt, discounts, or offset will be accepted against the above-mentioned note. This is the only agreement or stipulation recognized in the purchase and sale of said range, and no alteration of the above conditions or erasures by salesmen is authorized or will be recognized by the said company.</p> <p>“ ‘[Signed in duplicate] The Wrought-Iron Bange Company.</p> <p>“ ‘W. A. Graham.</p> <p>“ ‘County of Lincoln, State of North Carolina.</p> <p>“ ‘Witness: J. D. Bell.’</p> <p>“When the agent, Goetchins, contracted to sell the range and piping on the 16th day of May, it appeared in evidence that he stated to the said Graham that the piping was made of sheet steel, and that the range was constructed in such a manner that the heat from the fire went around the oven before going up the pipe, and that there would be no danger to Graham’s house from fire if the piping was placed in immediate contact with the woodwork of the house, and there was no need of terra cotta or other nonconductor of heat; that the pipe would not get heated enough to burn a cotton string in ten years. There were other statements of like nature by the agent as to the qualities of the range, and the safety from fire in using it. The plaintiff in error duly objected to the admission in evidence of all the declarations of the agent, Goetchins, and of all his statements, upon the ground that, the contract having been subsequently reduced to writing, all the prior negotiations were merged in the writing, and it was not permissible to prove by parol evidence any statements, representations, or contract of the agent not embraced in the writing. The question as to the admissibility of this parol testimony is one of the main points in the case. The plaintiff in error further objected to any evidence that Bell had had the range placed in position upon the ground that there was no evidence of any agency on the part of Bell to erect tlie range and piping; that neither his acts nor declarations in reference to erecting the range could be shown in evidence; nor could the plaintiff in error be chargeable if the range and piping were placed in position negligently under the direction of Bell. The admissibility of this evidence raises another question in the' case. The defendant in error was permitted to testify that he lost by the fire shade trees to the value of $500. This evidence was duly objected to by plaintiff in error upon the ground that it was not such damage as was claimed in the complaint. The complaint set forth the damage in article 7 of the first cause of action on page 14 of the printed record in these words: ‘That on or about the 5th day of June, 1894, a dwelling house and the greater part of its contents, consisting of furniture, library, silverware, jewelry, wearing apparel, and other personal property, and also an outhouse, were consumed by fire,’ etc.</p> <p>“The complaint in the action contains three causes of action: (1) The cause of action for deceit and false representation,—that the agent falsely and fraudulently represented that the range and piping would not communicate fire to the plaintiff’s dwelling house if the piping was placed in immediate contact with the woodwork. (2) The second cause of action was upon a warranty that the agent warranted that fire would not be communicated to the plaintiff’s dwelling house if the range and piping were placed in immediate contact with the woodwork of the house. (3) The third cause of action was for negligence in that the agent at the time of the sale agreed to place the range and piping in position in the house so that there would be no danger of fire therefrom, and that the agent negligently failed to erect the range and piping so that there would be no danger from fire, etc.</p> <p>“The plaintiff in error contended that there could be no recovery as to any of these three causes of action, because, in the first place, the evidence should be restricted to the paper writing known as ‘Exhibit A,’ and this contained no representations or contracts of the nature alleged in the complaint, and the contract, ‘Exhibit A,’ expressly showed that the plaintiff in error had not authorized its agent to make any other contract than that contained in the writing, and had not authorized its agent to erect the range and place it in position, and was, therefore, not responsible for any negligence. Even if these points were against the plaintiff in error, and even if parol evidence were admissible, yet it appeared from the whole case and the testimony of the said Graham himself that the agent contracted to sell a range made of wrought iron, and piping made of sheet steel, both well-known articles, and therefore no statement or representation of the agent as to these well-known articles could be allowed in law to be a cause of action for deceit, or even warranty; and that, although the range and piping were negligently placed in position by the agent of the plaintiff in error, yet it was negligence on the part of the defendant in error to use the range erected as it was, and he cannot be heard to say that he did not know the qualities of wrought iron and steel, and' he cannot be heard to say that he relied* upon the representations of the agent; that the question as to whether the fire built in a range made of wrought iron, and used with piping made of sheet steel, would get heated enough to burn the woodwork in immediate contact with the piping was a fact which the said Graham ought to have known; and, if he did not know it already, it was a fact which he could so easily have ascertained that his failure to know the, fact or to ascertain it will effectually bar any recovery on his part in this action. The plaintiff in error further contended that at the time the alleged fraudulent representations were made no particular range was referred to, and that there could not be any deceit in an executory contract to deliver a range and piping of a certain kind at some time in the future. There is no evidence that there was any representation as to the qualities of the particular range and piping which were sold and delivered to the said Graham. The plaintiff in error asked for special instructions in its favor upon the issues submitted, and in this way has raised the point that on the whole evidence the said Graham is not entitled to recover in this action, and the plaintiff in error earnestly insists that in no aspect of this case is the defendant in error entitled to recover.</p> <p>“Issues were settled in accordance with the practice in North Carolina, and submitted to the jury under each of the three causes of action as follows:</p> <p>“ ‘Issues Tendered by Plaintiff. First Cause of Action.</p> <p>“ ‘(1) Did the defendant, as alleged in the complaint, through its agent, represent to the plaintiff, with the purpose of inducing him to purchase and use one of its ranges and piping, that the range and piping were so made and constructed as not to require any insulation of the pipe by terra cotta or other nonconductor of heat, to prevent setting fire to the house of plaintiff; and that, if the range and pipe were put up and used without such nonconductor, it would not ignite the plaintiff’s house, and there would be no danger from fire? Answer. Yes. (2) Was said representation knowingly false? Answer. Yes. (3) Was plaintiff induced by said representation to purchase from defendant and use one of its ranges and piping without insulating the pipe by terra ^cotta or other nonconductor of heat, as alleged in the complaint? Answer. Yes. (4) Was plaintiff injured by reason of said false representation, as alleged in the complaint? Answer. Yes. (5) What are the plaintiff’s damages? Answer. $3,600.’</p> <p>“ ‘Second Cause of Action. Issues.</p> <p>“ ‘(1) Did defendant agree with and warrant to the plaintiff, as alleged in the complaint, through its agent, that the range and piping to be used therewith, -which defendant sold to plaintiff, were so made and constructed as not to require any insulation of the pipe by terra cotta or other nonconductor of heat to prevent setting fire to the house of plaintiff, and that, if the range and pipe were put up and used without such nonconductor, it would not ignite the plaintiff’s house, and there would be no danger from fire? Answer. Yes. (2) Was there a breach of said agreement and warranty by the defendant? Answer. Yes. (3) Was the plaintiff injured by said breach? Answer. Yes. (4) What are plaintiff’s damages? Answer. $3,600.’</p> <p>“ ‘Third Cause of Action. Issues.</p> <p>“ ‘(1) Was the plaintiff injured by the defendant’s negligence, as alleged in the complaint? Answer. Yes. (2) (Objected to by plaintiff. Objection overruled. Exception.) Did the plaintiff, by his own negligence, contribute to his injury? Answer. No. (3) If plaintiff, by his own negligence, contributed to his injury, could defendant, notwithstanding the negligence of plaintiff, have prevented the injury by the exercise of care on its part? Answer. Yes. (4) What are plaintiff’s damages? Answer. $3,600. (5) Did the defendant, as a part of the contract of sale of the said range, and for the consideration of the price contracted to be paid therefor, agree with the plaintiff to deliver the said range, and to place the same in position in the plaintiff’s house in such manner that there would be no danger of the plaintiff’s house catching fire from said piping, and so that the plaintiff could use the same with perfect safety? Answer. Yes.’</p> <p>“The jury having answered all the questions submitted in favor of the plaintiff, and in such cause of action having assessed the damages at $3,600, judgment was entered for that amount.”</p>

William Finn, the plaintiff in the court below, an employé of the Knickerbocker Ice Company, recovered in the circuit court for the Southern district of New York a verdict for $7,500, in an action against said company for damages caused by the kick of a horse of the defendant, which inflicted so severe an injury as to compel the amputation of the plaintiff’s leg.

<p>1. Wills—Construction—Ltfe Estate.</p> <p>Testator devised lands to his son, “to have and to hold * * * during the life of my son, * * * and the lifetime of his wife, * * * to have and to hold the same and enjoy all the benefits or profits in any wise accruing from said land during their natural lives,” and, at the death of his son and his wife, the land to be sold, and the proceeds equally divided among their children. Held, that the son took only a life estate, notwithstanding that a small charge was made upon the land in favor of his mother.</p> <p>2. Federal Courts—Effect of State Decisions.</p> <p>A decision by a state supreme court that, under a state statute, a sheriff’s sale of certain land passed no title, is binding on the federal courts.</p> <p>3. Statute of Frauds—Parol Contract for Land—Part Performance.</p> <p>An alleged parol contract, whereby a father authorized his son to go upon a certain tract of land, and occupy and improve the same, with the understanding that it would be his “sometime,” is so indefinite as not to be taken out of the statute by a part performance on the part of the son by living upon the land and making improvements.</p>

<p>1. Master and Servant—Personal Injury—Disregard of Rules—Evidence.</p> <p>Where an injury to a railroad employé is alleged to be due to a violation of a rule of the company, evidence that the employés habitually disregarded the rule, with the knowledge of the superintendent, is admissible to show abrogation thereof, without showing previous nonobservance under conditions similar to those which existed at the time of the accident.</p> <p>2. Same—Contributory Negligence.</p> <p>A railroad employé cannot recover for personal injuries resulting from going between moving cars to uncouple them, in violation of a subsisting rule of the company.</p>

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

<p>1. Conversion—Evidence.</p> <p>Plaintiff ordered certain brokers to purchase a specified number of shares in a corporation, and gave them money to partly pay for them. The brokers made written reports that they had purchased the stock, and afterwards repeatedly declared that they were holding it for plaintiff, and had received dividends thereon for him. They also accepted from him several payments on a balance due therefor. Held that,' in view of the fact that in the common course of dealing certificates accompany the purchase of stock, and are the usual and only evidence of purchase and transfer of title, the above circumstances were sufficient to warrant the jury, in a suit for conversion by the brokers, in finding that they actually had possession of such certificates at the time of the alleged conversion.</p> <p>2. Same.</p> <p>Where brokers hold stocks and bonds purchased through them by a customer for investment, awaiting payment by him of a balance due; with an express contract that they are not to transfer them to others, their possession is that of bailees, and a piledge thereof by them for their own benefit, or an assignment in payment of their creditors, is a conversion for which trover and conversion will lie.</p>

<p>1. Federal Courts—Jurisdiction—Diverse Citizenship—Evidence on Citizenship.</p> <p>For the purpose of proving that a plaintiff was a citizen of a certain state when his suit was filed, he may be asked the direct question of what state he was a resident at such date; but such question is improper when propounded to a third party, since such third party can only form an opinion of the plaintiff’s intentions as to citizenship from his acts and declarations, which should be passed upon by the jury uninfluenced by the opinion of the witness.</p> <p>2. Same.</p> <p>The fact that a party, in executing legal instruments, described himself as. a citizen of a certain state, is evidence to show that at that time he regarded himself as a citizen of the state.</p> <p>3. Same.</p> <p>The determination of the citizenship of a party, where dependent upon the question of intention to abandon one residence and take up another, is for the jury, under proper instructions.</p> <p>4. Champerty and Maintenance.</p> <p>The assignment of a portion of a claim in suit, In good faith, for a money consideration, the assignor retaining entire control of the suit, is not void either under the statute of Colorado concerning maintenance, or at common law, although the assignee have no previous interest in the claim.</p> <p>5. Same.</p> <p>A bona fide contract for the assignment of a part of a claim in suit is not rendered invalid because the ulterior motive of one of the parties is to prevent a compromise of the claim, and to prolong the suit, in order to annoy and embarrass the defendant therein.</p> <p>6. Release and Discharge—Consideration.</p> <p>The consideration for a release from a contract may consist in something detrimental to the party released as well as in something beneficial to the other party.</p>

This was an indictment, under Rev. St. § 5467, against Ulysses T. Jones, Jr., for abstracting and embezzling money from the mails. Tbe facts, as developed in tbe evidence, show that complaints bad been made against the post office at Mattoax, where tbe defendant was assistant postmaster, in consequence of which tbe post-office department bad delegated one of its inspectors to investigate tbe matter.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This is an appeal from the circuit court, Southern district of New York, dismissing complainant’s bill. 76 Fed. 757. The suit is brought to restrain publication of the well-known book written by Oliver Wendell Holmes, and entitled “The Autocrat of the Breakfast Table.” On November 2,1858, the title of the book was deposited in pursuance of the statutes of the United States relating to copyrights. On November 22, 1858, a copy of the book was delivered to the clerk of the district court, as therein provided, and the other statutory require-merits were duly complied with. Thereafter the statutory provisions concerning renewals were complied with, whereby the copyright was extended for a period of 14 years from July 12, 1886.. Complainant, as ancillary executor, holds the legal title to the copyright. The defendant contends that the author never became entitled to the benefit of the copyright act in force in 1858 (the act of 1831), for the reason that he did not, before publication, deposit a printed copy of the title, as required by the fourth section of the act, which reads: “Sec. 4. And be it further enacted: That no person shall be entitled to the benefit of this act unless he shall before publication deposit a printed copy of the title of such book,” etc. The evidence shows that the book was printed or published in parts or fragments, as it was written (such publication being without copyright), in the Atlantic Monthly, beginning with the number of the magazine for November, 1857, and continuing from month to month until the number for October, 1858, in which number the last part or fragment of the book appeared,—a full month before deposit of the title. Each of these parts, as it appeared, was entitled “The Autocrat of the Breakfast Table”; and none of the numbers of the Atlantic Monthly were copyrighted. The judge who heard the cause at circuit reached the conclusion that this was a publication, and the same opinion was expressed in the United States circuit court for the Northern district of Illinois in a suit against another alleged infringer. Holmes v. Donohue, 77 Fed. 179.</p>

<p>Patents — Duration of Right — Foreign Patent for Same Invention — Supply Tanks.</p> <p>The Robertson patent, No. 245,318, for an improvement in supply tanks for water-closets, etc., wbicb covers, in substance, a balance float valve, in combination with other parts, in a tank for intermittent supply, is for substantially the same invention covered by the earlier Canadian patent, No. 7,128, to the same inventor, and consequently expired with the said Canadian patent, under the provisions of Rev. St. § 4887.</p>

This was a suit in equity by the McKay-Oopeland Lasting Machine Company against the Copeland Rapid-Laster Manufacturing Company for alleged infringement of letters patent No. 243,917, issued July 15, 1881, to R. H. Hurlbut and C. E. Kennard, for a machine for flanging the counters of boots and shoes. The circuit court dismissed the bill after a hearing on the merits (77 Fed. 306), and the complainant has appealed.

This was a suit in equity by the A. B. Dick Company against Frederick A. Wichelman for alleged infringement of letters patent No. 377,706, issued February 7, 1888, to John Broderick, for a “prepared sheet for stencils.” A decree was heretofore entered by the court for an account of profits and damages. See 74 Fed. 799, where a fuller statement of the case will be found. The cause is now heard on exceptions to the master’s report.

<p>1. Patents—Infringement Suits—Res .Tudicata.</p> <p>When purchasers of a machine, on being sued for infringement, justify under an alleged equitable right or title to the patent in suit claimed by the manufacturers of their machine, a prior decree obtained by plaintiff’s assignors, enjoining said manufacturers from infringing the patent, is admissible, and would seem to be conclusive both as to plaintiff’s title to the patent and the validity thereof.</p> <p>2. Same—Equitable Title—Parol Agreement.</p> <p>A parol agreement between the members of a firm that all inventions and patent rights obtained by either of them “should be the .property of the firm, and should belong to both whilst members of that firm,” gives to each partner a right to the use by the firm of inventions for which the other obtained a patent; but such right ends on the dissolution of the partnership, leaving the title in the partner to whom the patent is issued.</p>

<p>1. Patents—Limitation by Prior Art—Burden of Proof.</p> <p>A defendant who relies upon the prior art to limit the scope of the patent sued on has not the burden of proving that earlier patents were useful, operative, or commercially successful, or that they stated all the undeveloped possibilities of the invention therein disclosed. The mere fact that a patented device is limited in operation or application is not alone sufficient to destroy its relevancy in a consideration of the prior art. Mere paper patents may negative patentable novelty, if they sufficiently disclose the principles of the alleged invention, or if the alleged objections thereto could be obviated by mere mechanical shill.</p> <p>2. Sam:e—Invention—Infringement—Lamp-Wick Adjusters.</p> <p>The Homan patent, No. 477,865, for a device for adjusting the wick of a central-draft lamp, which combines the advantages both.of a screw action and a direct-thrust action, is without patentable invention or novelty, and, even if conceded to be valid, is limited to the exact construction shown, or the ordinary equivalents thereof.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>This was a bill in equity by the Kennedy Valve Manufacturing Company against the Chapman Valve Manufacturing Company for alleged infringement of the first claim of letters patent Ho. 404,844, issued June 11, 1889, to Daniel Kennedy, for a valve indicator. The circuit court was inclined to the opinion that the claim was valid, but was limited to the specific structure shown and described, and, being so construed, was not infringed by defendant’s valve indicator. 75 Fed. 277. From this decree the complainant has appealed.</p>

The questions presented by this appeal are of the validity and infringement of claims 4, 5, 26, 27, 29, 30, 31, 43, and 45 of letters patent of the United States, No. 380,346, granted on April 3, 1888, to Willis J. Perkins, for improvements in shingle-sawing machines.

<p>Appeal from the Circuit Court of the. United States for the Northern Division of the Northern District of Illinois.</p> <p>This was a suit in equity by Clemontine I. Clark and the Cutaway Harrow Company against the Deere & Mansur Company for alleged infringement of a patent. In the circuit court a decree was entered dismissing the bill on the merits, and the plaintiffs appealed.</p> <p>This appeal seeks to bring under review a final decree, the entry of which reads as follows: “On this 20th day of March, 1896, this cause having been heard at final hearing upon the pleadings and proofs, * * * it is ordered, adjudged, and decreed that the bill of complaint herein be, and the same is hereby, dismissed at the complainants’ cost, to be taxed in favor of the defendant and for the amount of which the defendant shall have judgment and execution; the ground of dismissal being that defendant’s harrow does not infringe the claims of letters patent of the United States No. 369,163, granted to George M. Clark, August 30, 1887, the court, however, not expressing any opinion upon the validity of the claims of the said letters patent.”</p> <p>The patent in controversy is for improvements in disk harrows. The specification, after recognizing the existence and pointing out the defects of prior revolving disk harrows and revolving toothed harrows, says: “Among the many prior harrows heretofore patented are some which embody what may be termed ‘revolving bladed disks,’ because of their general disk-like form and the presence of a series of blades which have not only a cutting capacity, but also the function of harrow teeth; and there are other forms of harrows embodying disks which have corrugated edges, and still others which have teeth which are not cutting blades. As compared with any prior harrow known to me, a harrow embodying my invention has soil-working devices, each of which in its best form possesses all of the following characteristics, viz.: First, a central circular earth-working face, which may be flat, but which in its best form is concave; second, cutting blades which have their forward edges sharpened, and also their outer ends, and said outer ends occupy a circular line concentric to the axis of the disk; third, said forward edges are substantially tangential to said central circular working face, and in its best form each blade as a whole is substantially tangential to the axis of the disk; fourth, at the junction of the edges of any two adjacent blades their lines are merged, so that no wedging crevice is afforded into which a root or stalk can be forced and retained therein; fifth, when employed in gangs angular to each other and to the line of draft, my bladed disks of one gang must be ‘rights,’ and those of the other ‘lefts,’ as distinguished from any prior harrow known to me, whether it had either toothed or bladed devices, with the single exception of a certain special type of prior harrow embodying an angular frame, and having at each side thereof individual earth-working wheels provided with spade-like blades, which were twisted substantially parallel with the axis, and then at their outer ends bent or curved in the line of the periphery of the wheel, and hence said blades were specially bent in each wheel for service at one particular side of said frame. * * * Although for obtaining the best results the bladed disks should be formed and arranged substantially as shown, it is to be understood that it will be within certain portions of my invention if the disks be flat, instead of concavo-convex, provided they be otherwise constructed as shown and described.”</p> <p>The claims in issue read as follows: “(1) In a harrow the combination of angularly arranged gangs of bladed disks, each disk having a circular central earth-working face, and also cutting blades, each having a forward or front cutting edge tangential to said central working face, and a cutting edge at its outer end in a line concentric to the axis of the disk, substantially as described. (2) A harrow disk having a central circular earth-working face, and blades having front cutting edges which are tangential to said central face, substantially as described. (3) A harrow disk having a central circular concave earth-working face, blades having front cutting edges which are tangential to said face, and cutting edges at their outer ends which occupy a line concentric with the axis of the disk, substantially as described.”</p> <p>The annexed Fig. 1 represents the' disk of the patent, and Fig. 2 the disk made by the appellee, which is alleged to infringe:</p> <p> </p> <p>In the prior art are the following, among other, disks.</p> <p> </p>

<p>Patents— Infringement—Meat Cutters.</p> <p>The Baker patent, No. 271,398, for an improved machine for cutting up plastic substances, in which the main idea consists in pressing the meat, by means of a forcing screw, and without any preliminary cutting, against a perforated plate, on the inner face of which is a knife, which, operating in connection with the plate, serves as the sole means of the cutting, held not infringed by a somewhat similar device, in which there was a preliminary cutting or slitting of the meat by stationary knives. 72 Fed. 262, affirmed.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p> <p>This was a suit in equity by the Campbell Printing-Press & Manufacturing Company against Theodora Prieth, Edmund S. Prieth, and Benedict Prieth, for alleged infringement of letters patent Uo. 376,-053, issued January 3, 1888, to John H. Stonemetz, for an improvement in printing presses. The court below granted a preliminary injunction, on the strength of a decision by the circuit court for the district of Massachusetts (64 Fed. 782) sustaining the patent. 77 Fed. 976. From the order granting said injunction the defendants have appealed.</p>

The J. J. Warren Company, the appellant, as assignee of the patentees, filed Its bill to restrain the infringement of letters patent of the United States No. 444,642, issued January 13, 1891, to Thomas Gaskell Allen, Jr., William Louis Sachtleben, and John Forrest Walters for “luggage carrier for cycles.” The-answer denied patentable novelty and invention, and asserted that the alleged invention required nothing more than the exercise of mere mechanical skill,, and that the…

This was an action at law brought by Louis K. Church, receiver of the Puget Sound National Bank, against Edwin Ayer, to enforce his individual liability as a stockholder, under Rev. St. §§ 5151, 5234. Upon motion to strike out amendment to answer.

A libel in rem was filed in the district court of the United States for the Northern district of Illinois by the O. S. Richardson Fueling Company, appellant here, against the Hydraulic Steam Dredge No. 1 for supplies of coals furnished to the dredge at the port of Chicago, and which were necessary to enable her to engage in her business.

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

<p>Federal Courts—Enjoining Sales Ordered by State Courts.</p> <p>After the entry of an order in a state court dissolving a corporation and ordering a' sale of its property, consisting chiefly of real estate, certain members of the corporation (some of whom had had notice of the proceedings in the state court two years before, but had taken no action) applied to the federal court to restrain the sale, on the ground that the state court was wholly without jurisdiction. Held, that such injunction should not be granted.</p>

<p>1. Federal Courts—Jurisdiction—Eights under State Statutes.</p> <p>Whenever a statute of a state gives a right, such right may, on proper citizenship, be enforced by suitable proceedings in the federal courts.</p> <p>2. Same—Fraudulent Conveyances—Foreign Creditors.</p> <p>Undeir chapter 740, Laws N. Y. 1894, providing that a creditor of a deceased insolvent debtor, having a claim over !?100, may disaffirm, treat as void, and resist all acts done and conveyances made in fraud of creditors by sucb debtor, and may maintain an action for the purpose, though no judgment has been obtained, a foreign creditor of a' deceased debtor may maintain an action in a federal court in New York to set aside transfers made by him, though no judgment has been obtained in New York and no administration has been taken out there.</p> <p>3. Foreign Judgments—Fraudulent Conveyances.</p> <p>A judgment of a French tribunal, adjudicating that a wife is entitled to a certain amount of property as against her husband, both being residents of France, which judgment has been voluntarily liquidated by him in part, is sufficient to constitute the wife a creditor of the husband for the purpose of bringing suit to set aside his fraudulent conveyances under Laws N. Y. 1894, c. 740.</p>

<p>1. Equity Practice—Master—Reference Discretionary.</p> <p>Reference to a master to ascertain an amount due is discretionary with the court, and the determination of the amount without such reference is not error.</p> <p>а. Witness—Privileged Communication—Attorney and Client.</p> <p>An attorney acting for a firm in completing arrangements for securing it by a trust deed for a line of credit to be allowed on goods to be ordered by the grantor is not disqualified from testifying as to the negotiations leading up to the deed by the fact that his fee for drawing it was paid by the grantor.</p> <p>3. Evidence—Contemporaneous Writings.</p> <p>Writings contemporaneously executed by the parties to a deed of trust are admissible in evidence in a suit to enforce the trust, for the purpose of supplementing the deed and explaining the real intention of the parties.</p> <p>4. Equity Jurisdiction—Coming into Equity with Clean Hands.</p> <p>A. agreed to give credit to B., who was financially embarrassed, in consideration of a deed of trust made by B., which, for business reasons, was executed to C., a clerk of A. In a suit to enforce the trust, held, that the defense that complainant did not come into equity with clean hands had no application, there being nothing illegitimate in the transaction; and that, in any event, the maxim could not be invoked by B., who had received the benefit of the transaction.</p> <p>5. Limitation of Actions—Deed of Trust.</p> <p>Under the statute of West Virginia, the period of limitation of actions to enforce a deed of trust given as security is 20 years.</p> <p>б. Same—Contract tn Writing.</p> <p>Under the statute of limitations of West Virginia (Code, c. 104, § 6), a debt evidenced by contemporaneous memoranda made by each party to a deed of trust to secure the debt, as parts of the contract then made, and explaining and limiting the deed, is a debt evidenced by contract in writing, signed by the party to be charged, and therefore has 10 years to run.</p>

<p>Bill of Exceptions—Extension of Time—Obder Nunc pro Tunc.</p> <p>The circuit court has power to extend the time for making, filing, and serving a hill of exceptions hy an order entered nunc pro tunc as of a date before the expiration of the time allowed for the purpose, made after the expiration of the term at which the case was tried and judgment entered.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>The Hughes Lumber Company, a corporation organized under the law of Tennessee, and doing a manufacturing business at Chattanooga, issued its interest-bearing bonds, to the extent of 8200,000, secured by a mortgage upon its real estate, machinery, etc., to R. M. Barton, Jr., as trustee. Ten of these bonds, each for 81,000, were pledged by it to the Radford Trust Company, a corporation organized under the law of the state of Virginia, as collateral security for an indebtedness of about an equal amount due to it by tbe Hughes Lumber Company. This indebtedness has not been discharged, and default has been made in the payment of interest on the bonds so held, in consequence of which the principal of the bonds has matured, under a provision of the mortgage. This Barton mortgage, as we shall designate it, was executed October 22, 1890. On the 26th of December, 1890, the same corporation made a deed of general assignment to the defendant M. H. Ward, whereby it conveyed its equity of redemption in the property conveyed to Barton, and all of its other assets of every kind, for the equal benefit of all its creditors. On the same day D. W. Hughes, president of the Hughes Lumber Company, and a large owner of its stock, also made a general deed of assignment to M. H. Ward, whereby he conveyed all of his individual assets for the equal benefit of all his creditors. Subsequently Mr. Hughes proposed a plan for the settlement of the debts of both the Hughes Lumber Company and himself, and a reorganization of the business of the corporation. This plan involved the organization of a new corporation, which should assume the debts of both himself and the old corporation, by giving to such creditors its own mortgage bonds in substitution for the bonds of the Hughes Lumber Company, and in discharge of the Barton mortgage and of the two assignments made to Ward; such bonds to be secured by a first mortgage upon the combined assets of the Hughes Lumber Company and of himself, which for this puipose should be conveyed to the new corporation. The combined indebtedness of the two debtors aggregated about $250,000. Bonds to this amount, secured as mentioned, were to be exchanged for the bonds of the Hughes Lumber Company, to the extent outstanding, and the surplus applied in the paying off of debts not protected by such bonds, but which were entitled to the security provided by the assignments to Ward. This-plan was submitted to a number of creditors, including appellants, who regarded it with favor, and joined in recommending its acceptance by all. Pending communication with creditors, Ward, assignee, brought to public sale the property conveyed to him under the general assignments of the Hughes Lumber Company. At that sale the real estate and the manufacturing plant of the Hughes Lumber Company were sold, subject to the Barton mortgage, for the sum of $450. A large quantity of lumber and other material belonging to the same corporation, and not embraced in the Barton mortgage, were sold for $11,889.57. The successful bidder for both properties was J. F. Loomis. The evidence establishes that the purchase was made by Loomis as the agent for appellants, and that their purpose in buying in the property was to promote the scheme of settlement and reorganization which had already been accepted by a large proportion of the creditors interested. It was believed that all would assent finally, and that it was desirable that the property should be kept together, so that when the assent of all was received the property could be conveyed to the new corporation, and the plan carried out. No part of the purchase money was ever paid to Ward, who subsequently, at the instance of Loomis and those for whom he acted, conveyed the property so sold to the Hughes Bros. Manufacturing Company, the new corporation organized under the plan of settlement above detailed. Mr. Loomis’ account of the purchase of this property is as follows: “The purchases were made for T. G. Montague, president of the First National Bank, O. ID. Stivers, cashier City Savings Bank, and the Loomis & Hart Manufacturing Company. I purchased them as trustee for the above-mentioned parties. I did not pay anything on these purchases. It was the understanding that Mr. Hughes was to make some arrangement with all of his creditors by which they were to take bonds issued on the plant and material, and on Mr. Hughes’ individual property. When this arrangement was made, I was to deed back the property to Hughes Bros. If the arrangement was not made, I was then to handle the property for Mr. Montague, president, Mr. Stivers, cashier, and the Loomis & Hart Manufacturing Company. I understood Mr. Hughes had made such an-arrangement with his company, and I deeded back the property, except what had been sold, to him, and the net proceeds of all sales that had been made by me.” “Q. Did not T. G. Montague, president of the First National Bank. O. E. Stivers, cashier of the City Savings Bank, and the Loomis & 1-Iart Manufacturing Company all consent to your transferring said property back to Hughes Bros. Manufacturing Company, or Hughes Bros? And is it not also a fact that they knew you were not receiving- anything for it, and were they not to 'take bonds of Hughes Bros. Manufacturing Company for their debts? A. I so understood that these parties all consented to my deeding the property back to Hughes Bros. The Loomis & Hart Manufacturing Company did agree to take bonds of the Hughes Bros, in settlement of their claim. Cannot answer as to other parties.” Ward’s deposition is not in this record, but, from exhibits and other evidence, it appears that he conveyed this property to D. W. Hughes, or to the Hughes Bros. Manufacturing Company, in promotion of the scheme of settlement, and without receiving the purchase price bid by Mr. Loomis, protecting himsélf by an indemnifying bond made by Hughes and some of his friends.</p> <p>The original bill was filed by the Radford Trust Company, as a creditor of both the Hughes Lumber Company and D. W. Hughes, and entitled to the benefits of the Barton mortgage and of both the assignments made to Ward, for the purpose of foreclosing the Barton mortgage and of winding up the assignments to Ward for the benefit of all such creditors as had not waived the benefit of those instruments by accepting the liability of the new corporation in exchange for the obligations of the lumber company. That bill was filed against the Hughes Lumber Company, the Hughes Bros. Manufacturing Company, R. M. Barton, trustee under the mortgage of the Hughes Lumber Company, H. C. Beck, trustee under the mortgage of the Hughes Bros. Manufacturing Company, M. H. Ward, assignee under the two general assignments mentioned, and a number of others liable upon commercial paper transferred to the complainant by the Hughes Lumber Company either for value received, or as collateral for the debts of that corporation to the complainant. September 22, 1893, on application of complainant, a temporary receiver was appointed to take possession of the property embraced in these instruments. This appointment was subsequently made permanent. By an amended bill, filed October 5, 1893, other defendants were brought in; among them being the appellants, the First National Bank of Chattanooga, G. H. Jamagin, assignee of the City Savings Bank, and the Hart & Loomis Manufacturing Company. After setting out the transactions we have stated, the bill, as amended, avers that, with the exception of complainant, every holder of bonds secured by the Barton mortgage had accepted bonds of the Hughes Bros. Manufacturing Company secured by a mortgage embracing the identical property conveyed to Barton, in addition to other property included in the assignments to Ward, and insists that thereby all such beneficiaries have estopped themselves from claiming any benefit under the Barton mortgage. It further insists that never having accepted bonds of the Hughes Bros. Manufacturing Company, nor assented to the conveyances made by Ward to that company, it is entitled to have the Barton mortgage foreclosed, and the assignments to Ward closed up, and the proceeds, as far as necessary, applied in payment of its ■ debts against the Hughes Lumber Company and against D. W. Hughes. The complainant further insisted that all creditors who had assented to this reorganization scheme, and accepted the new security provided by the mortgage made by the new corporation, had waived the benefit of the general assignment made by the Hughes Lumber Company and D. W. Hughes, and that complainant was entitled to enforce said assignments for its benefit and that of other general creditors who had not agreed to this plan of reorganization. To this end, this amended bill asserted the right of complainant, in behalf of itself and all other creditors who had not accepted the bonds of the corporation, or assented to the acquisition of the property covered by the several conveyances in trust mentioned above, to follow and recover all such property, and compel its application exclusively to the payment of the demands of creditors who had not waived the benefit of the said several trusts, or, if such property could not be found or recovered from those into whose hands it had come, the right to hold Ward liable personally for the value of the property so lost to the trust was asserted, and proper relief prayed. Other facts necessary to an understanding of the case will appear in the opinion.</p> <p>Upon a final hearing the circuit court decreed as follows: (1) That complainant was entitled to a decree foreclosing the Barton mortgage. (2) That complainant was the only holder of bonds secured under that mortgage who had not accepted the new security provided by the mortgage made by the Hughes Bros. Manufacturing Company, and was therefore the only beneficiary entitled to look to that security. (3) That general creditors of the Loomis & Hart Company and of D. W. Hughes, who assented to the conveyance by Ward of the property assigned to him, and who had accepted the bonds of the-Hughes Bros. Manufacturing Company, thereby waived the benefit of said-assignments, and that only such creditors as had not elected to take such bonds as a substitute for their claims were entitled to share in the proceeds arising-from the sale of the property -so assigned to Ward. (4) That the persons bidding in the property of the Hughes Lumber Company at the sale made by Ward should be required to pay to the receiver the price they agreed to pay, which should be first applied in the payment of the claim of creditors secured' by said assignments who had not assented to the reorganization scheme. From this decree the First National Bank of Chattanooga, the Hart & LoomisManufacturing Company, and Q. H. Jarnagin, assignee of the City Savings-Bank, have perfected appeals and assigned errors.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>The Hughes Lumber Company, a corporation organized under the law of Tennessee, and doing a manufacturing business at Chattanooga, issued its interest-hearing bonds, to the extent of !{i20Q,00G, secured by a mortgage upon its real estate, machinery, etc., to R. M. Barton, Jr., as trustee. Ten of these bonds, each for 81,000, were pledged by it to the Radford Trust Company, a corporation organized under the law of the state of Virginia, as collateral security ior an indebtedness of about an equal amount due to It by tbe Hughes Lumber Company. This indebtedness has not been discharged, and default has been made in the payment of interest on the bonds so held, in consequence of which the principal of the bonds has matured, under a provision of the mortgage. This Barton mortgage, as we shall designate it, was executed October 22, 1890. On the 26th of December, 1890, the same corporation made a deed of general assignment to the defendant M. H. Ward, whereby it conveyed its equity of redemption in the property conveyed to Barton, and all of its other assets of every kind, for the equal benefit of all its creditors. On the same day D. W. Hughes, president of the Hughes Lumber Company, and a large owner of its stock, also made a general deed of assignment to M. H. Ward, whereby he conveyed all of his individual assets for the equal benefit of all his creditors. Subsequently Mr. Hughes proposed a plan for the settlement of the debts of both the Hughes Lumber Company and himself, and a reorganization of the business of the corporation. This plan involved the organization of a new corporation, which should assume the debts of both himself and the old corporation, by giving to such creditors its own mortgage bonds in substitution for the bonds of the Hughes Lumber Company, and in discharge of the Barton mortgage and of the two assignments made to Ward; such bonds to be secured by a first mortgage upon the combined assets of the Hughes Lumber Company and of himself, which for this purpose should be conveyed to the new corporation. The combined indebtedness of the two debtors aggregated about $250,000. Bonds to this' amount, secured as mentioned, were to be exchanged for the bonds of the Hughes Lumber Company, to the extent outstanding, and the surplus applied in the paying off of debts not protected by such bonds, but which were entitled to the security provided by the assignments to Ward. This plan was submitted to a number of creditors, including appellants, who regarded it with favor, and joined in recommending its acceptance by all. Pending communication with creditors, Ward, assignee, brought to public sale the property conveyed to him under the general assignments of the Hughes Lumber Company. At that sale the real estate and the manufacturing plant of the Hughes Lumber Company were sold, subject to the Barton mortgage, for the sum of $450. A large quantity of lumber and other'material belonging to the same corporation, and not embraced in the Barton mortgage, were sold for $11,889.57. The successful bidder for both properties was J. F. Loomis. The evidence establishes that the purchase was made by Loomis as the agent for appellants, and that their purpose in buying in the property was to promote the scheme of settlement and reorganization which had already been accepted by a large proportion of the creditors interested. It was believed that all would assent finally, and that it was desirable that the property should be kept together, so that when the assent of all was received the property could be conveyed to the new corporation, and the plan carried out. No part of the purchase money was ever paid to Ward, who subsequently, at the instance of Loomis and those for whom he acted, conveyed the property so sold to the Hughes Bros. Manufacturing Company, the new corporation organized under the plan of settlement above detailed. Mr. Loomis’ account of the purchase of this property is as follows: “The purchases were made for T. G. Montague, president of the First National Bank, C. B. Stivers, cashier City Savings' Bank, and the Loomis & Hart Manufacturing Company. I purchased them as trustee for the above-mentioned parties. I did not pay anything on these purchases. It was the understanding that Mr. Hughes was to make some arrangement with all of his creditors by which they were to take bonds issued on the plant and material, and on Mr. Hughes’ individual property. When this arrangement was made, I was to deed back the property to Hughes Bros. If the arrangement was not made, I was then to handle the property for Mr. Montague, president, Mr. Stivers, cashier, and the Loomis & Hart Manufacturing Company. I understood Mr. Hughes had made such an arrangement with his company, and I deeded back the property, except what had been sold, to him, and the net proceeds of all sales that had been made by me.” “Q. Did not T. G. Montague, president of the First National Bank, C. B. Stivers, cashier of the City Savings Bank, and the Loomis & Hart Manufacturing Company all consent to your transferring said property back to Hughes Bros. Manufacturing Company, or Hughes Bros? And is it not also a fact that they knew you were not receiving anything for it, and were they not to take bonds of Hughes Bros. Manufacturing Company for their debts? A: I so understood that these parties all consented to my deeding the property back to Hughes Bros. The Loomis & Hart Manufacturing Company did agree to take bonds of the Hughes Bros, in settlement of their claim. Cannot answer as to other parties.” Ward’s deposition is not in this record, but, from exhibits and other evidence, it appears that he conveyed this property to D. W. Hughes, or to the Hughes Bros. Manufacturing Company, in promotion of the scheme of settlement, and without receiving the purchase price bid by Mr. Loomis, protecting himsdlf by an indemnifying bond made by Hughes and some of his friends.</p> <p>The original bill was filed by the Radford Trust Company, as a creditor of both the Hughes Lumber Company and D. W. Hughes, and entitled to the-' benefits of the Barton mortgage and of both the assignments made to Ward, for the purpose of foreclosing the Barton mortgage and of winding up the assignments to Ward for the benefit of all such creditors as had not waived the benefit of those instruments by accepting the liability of the new corporation in exchange for the obligations of the lumber company. That bill was filed against the Hughes Lumber Company, th& Hughes Bros. Manufacturing-Company, R. M. Barton, trustee under the mortgage of the Hughes Lumber Company, II. G. Beck, trustee under the mortgage of the Hughes Bros. Manufacturing Company, M. H. Ward, assignee under the two general assignments mentioned, and a number of others liable upon commercial paper transferred to the complainant by the Hughes Lumber Company either for value received, or as collateral for the debts of that corporation to the complainant. September 22, 1893, on ai>pllcation of complainant, a temporary receiver was appointed to take possession of the property embraced in these instruments. This appointment was subsequently made permanent. By an amended bill, filed October 5, 1893, other defendants were brought in; among them being the appellants, the First National Bank of Chattanooga, 6. H. .Tarnagin, assignee of the City Savings Bank, and the Hart & Loomis Manufacturing Company. After setting out the transactions we have stated, the bill, as amended, avers that, with the exception of complainant, every holder of bonds secured by the Barton mortgage had accepted bonds of the Hughes Bros. Manufacturing Company secured by a mortgage embracing the identical properly conveyed to Barton, in addition to ether property included in the assignments to Ward, and insists that thereby all such beneficiaries have estopped themselves from claiming any benefit under the Barton mortgage. It further insists that never having accepted bonds of the Hughes Bros. Manufacturing Company, nor assented to tiie conveyances made by Ward to that company, it is entitled to have the Barton mortgage foreclosed, and the assignments to Ward closed up, and the proceeds, as far as necessary, applied in payment of its debts against the Hughes Lumber Company and against D. W. Hughes. The complainant further insisted that all creditors who had assented to this reorganization scheme, and accepted the new security provided by the mortgage made by the new corporation, had waived the benefit of the general assignment made by the Hughes Lumiier Company and D. W. Hughes, and that complainant was entitled to enforce said assignments for its benefit and that of other general creditors who had not agreed to this plan of reorganization. To this end, this amended bill asserted the right of complainant, in behalf of itself and all other creditors who had not accepted the bonds of the corporation, or assented to the acquisition of the property covered by the several conveyances in trust mentioned above, to follow and recover all such property, and compel its application exclusively to the payment of the demands of creditors who had not waived the benefit of the said several trusts, or, if such property could not be found or recovered from those into whose hands it had come, the right to hold Ward liable personally for the value of the property so lost to the trust was asserted, and proper relief prayed. Other facts necessary to an understanding of the case will appear in the opinion.</p> <p>Upon a final hearing the circuit court decreed as follows: (1) That complainant was entitled to a decree foreclosing the Barton mortgage. (2) That complainant was the only holder of bonds secured under that mortgage who had not accepted the new security provided by the mortgage made by the Hughes Bros. Manufacturing Company, and was therefore the only beneficiary entitled to look to that security. (3) That general creditors of the Loomis & Hart Company and of D. W. Hughes, who assented to the conveyance by Ward of the property assigned to him, and who had accepted the bonds of the Hughes Bros. Manufacturing Company, thereby waived the benefit of said assignments, and that only such creditors as had not elected to take such bonds as a substitute for their claims were entitled to share in the proceeds arising from the sale of the property so assigned to Ward. (4) That the persons bidding in the property of the Hughes Lumber Company at the sale made by Ward should be required to pay to the receiver the price they agreed to pay, which should be first applied in the payment of the claim of creditors secured by said assignments who had not assented to the reorganization scheme. From this decree the First National Bank of Chattanooga, the Hart & Loomis Manufacturing Company, and G. H. Jarnagin, assignee of the City Savings Bank, have perfected appeals and assigned errors.</p>

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

<p>1. Equity Jurisdiction—Bill to Recover Oil Wells—Legal Remedies.</p> <p>In Pennsylvania, equity bas no jurisdiction of a bill to restrain tbe operation of oil wells, or the taking of oil therefrcm, where the complainant’s title is purely legal, the respondent is solvent, and there are neither complicated accounts nor such irreparable injury as warrants interference by injunction. The substantial purpose of such a bill being to recover possession of the wells, the remedy by ejectment, aided by writ of estrepement under the state statutes, is full and adequate.</p> <p>2. Same—Discovery.</p> <p>Discovery is not, ordinarily, an independent ground of equitable relief, and where a bill presents no other ground for interference equity will not take jurisdiction merely because discovery is prayed for,</p>

<p>National Banks—Insolvency—Remittances.</p> <p>Remittances made by a national bank to its correspondents, in the ordinary course of business, before the commission of any act of insolvency, are not void under Rev. St. § 5242, though the bank is in fact insolvent at the time, and is closed by the bank examiner before the remittances are actually received by the correspondent banks.</p>

<p>Abatement and Survival of Actions—Corporations—Misconduct of Officers.</p> <p>The liability imposed by the statutes of Maryland (Code Pub. Gen. Laws, art. 23, §§ 67, 69) on the directors and officers of a corporation who declare dividends rendering the corporation insolvent or impairing its capital, or who make loans to stockholders, is not a liability for wrongs to property rights and interests, such that the cause of action therefor survives against the representatives of a deceased director or officer, under the statutes of New York (2 Rev. St. N. Y. p. 447, § 1).</p>

<p>Corporations—Liability of Directors.</p> <p>A director of a corporation is not liable for tbe misconduct of co-directors, not participated in by him as a wrongdoer, and a bill which seeks to fix upon a director liability for negligent acts of the board, but does not charge him personally with any neglect, charging only neglect by the board of directors, without mentioning him, and alleging that information showing the character of their acts was accessible to all the directors, is insufficient.</p>

<p>1. Tax Sales—Forfeitures—Redemption from State.</p> <p>The statute of Arkansas (Sand. & H. Dig. § 4596) relating to redemption of lands forfeited for nonpayment of taxes, by application to the commissioner of state lands, applies only to lands which remain in the hands of the state, and not to those which have been sold or donated by the state..</p> <p>2. Same—Redemption from Donee or Purchaser.</p> <p>The statute of Arkansas (Sand. & H. D’ig. § 2595) providing that no action shall be maintained for the recovery of lands forfeited for nonpayment of taxes against a purchaser or donee of the state, without a previous affidavit of tender to such person of the amount of taxes paid and the value of improvements made by him, does not apply where a bill in equity is filed for the redemption of lands by one claiming an undivided share thereof. In such a case a tender is impracticable, and the right must be determined upon equitable principles.</p>

<p>Trusts—Dispute as to Continuance—Appointment op Receiver.</p> <p>When there is a dispute among the parties to a suit as to the continued existence of a trust, the court will not appoint a new trustee, on a preliminary motion, though ail parties concede the need for some one to protect the trust property, but will reserve that question for the final hearing; but it will appoint a receiver to hold and protect personalty pending the suit, and, where there is real property out of the jurisdiction, and all persons interested are parties, will direct the heirs of a deceased trustee to convey to such receiver, leaving it to the court in the jurisdiction where the land lies to determine whether the receiver thereby acquires sufficient title to manage and protect the property.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p> <p>This is a bill in equity filed by W. C. Niblack, receiver of the Columbia National Bank, against S. S. Cosier, as assignee, under a general assignment of the Valley Bank. The Valley Bank is a partnership doing business at Spring Valley, Ohio, under the partnership name of the Valley Bank. The object of the bill is to compel an allowance by its assignee of two certificates of deposit issued by the Valley Bank. The first of these certificates is known in the record as “Exhibit A,” and is in the following words and figures:</p> <p>“No. 112. The Valley Bank, Spring Valley, Ohio. $4,175.</p> <p>“Dec. 17, 1892.</p> <p>“Dwiggins, Starbuek & Co. have deposited in this bank forty-one hundred and seventy-five-no/100 dollars, payable to the order of themselves-in current funds on the return of this certificate properly indorsed, with interest at 4 per cent, per annum if left 6 months. No interest after 12 months unless renewed.</p> <p>“$4,175.00. S. S. Cosier, Teller.”</p> <p>The said certificate is indorsed as follows:</p> <p>“Face ...................................................... $4,175 00</p> <p>Int. at 4 per cent., Dec. 17—92, to May 11—93, 145 days........ 67 26</p> <p>Total, 5—11—93....................................... $4,242 26-</p> <p>Oct. 28—93, balance....................................... $1,225 43</p> <p>Suspense .................................................. 620 28</p> <p>$1,855 71</p> <p>Balance due .......................................... $2,386 55</p> <p>“Dwiggins, Starbuek & Co.”</p> <p>The second certificate is known as "Exhibit B,” and is in words and figures as follows:</p> <p>“No. 106. The Valley Bank, Spring Valley, Ohio. $5,150.</p> <p>“Feby. 1, 1893.</p> <p>“United States Loan & Trust Co. has deposited in this bank fifty-one hundred and fifty and-no/100 dollars, payable to the order of self-in current funds on the return of this certificate properly indorsed, 6 months after date, with interest at — per cent, per annum, if left — months. No interest after 12 months unless renewed.</p> <p>“$5,150.00. S. S. Cosier, Teller.”</p> <p>Indorsed:</p> <p>“Without recourse. United States Loan & Trust Co., Harry M. Green, Secy.”</p> <p>The certificate which we shall designate as “Exhibit A” is not the original one issued by the Valley Bank, but is a duplicate, issued April 19, 1S93, as a substitute for an original certificate issued December 17, 1892. The original was issued at the request of a firm doing a banking business at Chicago, under the firm name of Dwiggins, Starbuck & Co. The consideration upon which it was issued was certain notes deposited in the Valley Bank, in which Dwiggins, Starbuck & Co. owned a one-half interest. The words “payable in current funds,” found in the certificate as it now appears, were crossed out of the form used in filling out the original, and the words “payable in certain notes” substituted. The original also contained the words “special deposit.” This original certificate was indorsed by Dwiggins, Starbuck & Co. to the Columbia National Bank, and the proceeds passed to their credit. Subsequently that bank charged it to the account of the Valley Bank, and sent it in for payment April 19, 1893. Payment was refused, as the notes in which it was payable had not been collected, and Mr. Cosier, the bank teller, was instructed by Mr. Puckett, the cashier, to return it. In opening the letter in which this certificate was inclosed, the teller accidentally detached the signature from the certificate, and was directed to issue a similar certificate, aud send it to the Columbia Bank in place of the one defaced. In the execution of this simple direction, Mr. Cosier omitted to make the substituted certificate payable “'in certain notes,” as was the original, and omitted to mark it as a “special deposit.” The certificate, in form as heretofore set out, was returned to the Columbia National Bank. These instructions were given the teller by Mr. Puckett, the cashier, over the telephone, and the latter never knew of this .change in its terms until after the demand for payment in current funds was made by the receiver subsequently appointed to wind up the Chicago bank.</p> <p>The history of Exhibit B is much the same. On February 2, 1893, Dwiggins. Starbuck & Co. sent to the Valley Bank $5,000 par value of bonds issued by a corporation doing business in Chicago as the United States Loan & Trust Company. These bonds were called “income bonds,” and were supposed to be based upon shares in country banks owned by the trust company. These bonds were remitted with the request that a certificate of deposit be issued for them. By direction of the cashier, the teller issued a certificate for $5,150, being the par value of these bonds, with accrued interest. That certificate was made “payable in certain bonds,” and was plainly marked as a “special deposit.” The certificate was made payable to the order of Dwiggins, Starbuck & Co., and was remitted to that firm through the mail. On the 4th of February, 1893, it was returned to the Valley Bank by letter requesting that it would send “a similar one, but to the order of the United States Loan & Trust Company,” and that it should be dated February 1st, instead of February 2d. Mr. Puckett, the cashier, was consulted by the teller, and instructed over the telephone to comply with this request, and issue another certificate similar to the one returned except in the particulars mentioned. The teller repeated the blunder he had made in renewing Exhibit A, and omitted to strike out the words “payable in current funds,” and to insert in place the words “payable in certain bonds”; and for the second time he neglected to write on the certificate the words “special deposit.” Instead of sending a similar certificate as requested, he sent the one set out in the earlier part of this statement of facts. This substituted certificate was indorsed without recourse by the United States Loan & Trust Company, and was discounted by the Columbia National Bank on February 8, 1893, which now claims as an innocent purchaser for value, without notice of the real consideration or of the circumstances we have detailed as to the issuance of the substituted certificate. The notes upon which Exhibit A was issued are uncollectible, and probably worthless. The so-called “income bonds” have never been sold by the Valley Bank, and are probably of no real value. The defendant below averred its readiness and willingness to take up these certificates in the notes and bonds in which, according to its contract, they were payable, and denied that the Columbia National Bank was entitled to the status and rights of an innocent purchaser for value. The Columbia National Bank failed in May, 1893. At that time it held for collection, on account of the Valley Bank, checks on other banks aggregating $620.28, which were subsequently collected by its receiver. There was to the credit of the Valley Bank $1,225.43, as shown by its books. Both these sums were credited on Exhibit A by the receiver, who seeks to recover only the balance after such credits. The defendant, by cross bill, prays that the complainant, as receiver, be required to pay to him the sum of $C20.2S, as a collection made after tlie Columbia Bank had been closed, and to allcw tbe dividend due upon its claim for $1,225.43, as a depositor. Tbe circuit court held that tbe complainant was not an innocent purchaser for value of either of said certificates, and that it was not entitled to an order for tbe payment thereof, and granted the relief sought by the cross bill.</p>

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

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

<p>1. Municipal Corporations—Town Councils.</p> <p>Towns and the town councils thereof, in Rhode Island, are distinct bodies, with distinct powers.</p> <p>2. Same—Grant of Waterworks Franchise.</p> <p>Under section 32, c. 425, Pub. Laws R. I., providing that the town council of any town may grant the right to lay water pipes in the highways, and may consent to the erection and maintenance of reservoirs upon such terms as they may deem proper, including the power to exempt the works from taxation, a town council has no power to grant an exclusive right to construct 'waterworks in the town.</p> <p>3. Same—Exclusive Rights—Erection of Competing Works by' Town.</p> <p>Nor does a town council, by giving to a company the use of the highways so long as the inhabitants shall be reasonably supplied with water, and exempting it from taxation for 25 years, and exacting an obligation to supply water to the town and to sell its works to the town, exclude the town from the right to construct waterworks of its own.</p> <p>4. Same.</p> <p>Whether a town, under section 1, c. 285, Pub. Laws R. I., has power to grant an exclusive franchise to construct waterworks, or to preclude itself by contract from competing with a company holding the right to construct such works, quaere.</p> <p>5. Same—Contract— Ratification.</p> <p>When a town council has granted to a company a right to lay water pipes in the town upon certain conditions, the facts that subsequently, for several years, while the company is erecting its plant and conducting its business, the town takes no action relating to it, and that it then, at town meetings, the notices for which contain no mention of a proposed ratification of a contract between the company and the town, passes resolutions looking to the purchase of the waterworks by the town “under the agreement between said town and” the company, do not amount to a ratification on the part of the town of a supposed contract with the company for an exclusive right on its part or for the abstention of the town from constructing waterworks of its own.</p>

Appeals of W. B. Belknap & Co., E. A. Kinsey & Co., Matthews, Northrup & Co., and Westinghouse Air-Brake Co., Parties by Intervention, from the Circuit Court of the United States for the Eastern District of Tennessee.

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

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

<p>1. Costs—Certification of Documents.</p> <p>A party cannot tax as costs the fees for certifying documents for use in evidence, which, in the absence of stipulation, would require certification, but have not in fact been certified.</p> <p>2. Same—Allowance and Disallowance.</p> <p>Where a nontaxable charge for certifying and a taxable charge for printing have been combined in a bill of costs, and the amount of the latter can be separated from the former, it should be allowed, though the former is disallowed.</p>

<p>1. Contracts—Rescission—Abandonment.</p> <p>Besides technical rescission of a contract, releasing each party from every obligation under it, as if it had never been made, there is a mode of abandoning a contract, as a live and enforceable obligation, -which still entitles the party declaring its abandonment to look to the contract to determine the compensation he may be entitled to under its terms for the breach which gave him the right of abandonment; and courts, in construing the language used by laymen in such cases, will consider, not only the language of the party, but all the circumstances, including the effect of a complete rescission, and the probability or improbability of the party’s intending such a result.</p> <p>2. Sales—Default in Payments—Right to Resell.</p> <p>When the title passes to something which is sold, one of the remedies of the vendor for a failure by the vendee to make payments in accordance with the contract at the time fixed for the deliveries and payments is, after notice, to resell the subject-matter of the sale, and to hold the defaulting vendee for the difference between the proceeds of the sale and the contract price.</p>

<p>1. Negotiable Bonds—Bona Fide Holders—Presumptions.</p> <p>In an action upon negotiable bonds, when evidence has been given to show that they are illegal, the plaintiff cannot .rely on the presumption arising from title and possession thereof, but must prove that he gave value therefor in the usual course of business, in order to constitute himself a bona fide holder.</p> <p>2. Municipal Bonds—Validity—Excessive Indebtedness.</p> <p>Municipal bonds issued at a time when the debt of the municipality exceeds 5 per cent, of its assessed valuation, and without any provision for a sinking fund, are illegal, under article 13, §§ 4, 5, of the constitution of South Dakota.</p>

In the year 1880 the defendant N. B. Price, a farmer and merchant residing and doing business at Mt. Adams, in the state of Arkansas, began doing business with the firm of Porter, Taylor & Co., cotton brokers, commission merchants, and grocers, at Memphis, in the state of Tennessee, which firm consisted of the plaintiffs and one Taylor, who withdrew from the business the next year, and thereafter the plaintiffs alone, under the firm name of Porter & Macrae, continued the…

<p>1. Municipal Corporations—Bona Fide Purchasers.</p> <p>In the absence of evidence to the contrary, a stipulation that a party “purchased” certain negotiable bonds is sufficient to show that he is a bona fide holder of them for value.</p> <p>2. Same—Estoppel by' Recitals.</p> <p>As against a bona fide holder of its bonds, a municipal corporation is es- ■ topped, by recitals in such bonds of the purpose of their issue and that all the provisions of the act authorizing their issue were complied with, from asserting that they were not issued for such purpose or that the provisions of the act were not complied with.</p> <p>3. Same—Refunding Bonds.</p> <p>It is no defense to an action on municipal bonds, issued to fund floating Indebtedness, that the proceeds were used to take up warrants issued for illegal purposes.</p> <p>4. Same.</p> <p>A municipal corporation empowered by its charter to borrow money by issuing bonds, for any legitimate municipal purpose, is thereby authorized to issue bonds to fund its floating indebtedness.</p> <p>5. Same—Excessive Indebtedness—Estoppel.</p> <p>A municipal corporation, for the purpose of selling its bonds, furnished to an intending purchaser a certificate, purporting to show the assessed valuation of its property and the amount of its indebtedness, being less than the legal limit. The bonds were taken and paid for, and the municipality paid several coupons. Held that, as against a bona fide purchaser, it was es-topped to set up that, at the time of the issue of the bonds, it was indebted to an amount exceeding the legal limit.</p>

Lobdell, Farwell & Co., of Chicago, who were plaintiffs in the court below, brought this suit against the defendant, Leahy, a resident of Muskegon, Mich., for the purpose of recovering a balance alleged to be due them on account of certain dealings in stocks and bonds.

This action was brought to recover the amount of a large number of coupons, aggregating $26,500, exclusive of interest, which had formed part of and been attached to bonds of said county of Lake, in… Held: and the vote on that question duly had! and canvassed, and found and declared to be carried. And all the acts and doings were properly recorded, and the bonds prepared, executed, and issued in strict accordance with the provisions of said act.

<p>1. Life Insurance—False Representations—Waiver by Company.</p> <p>A notification by the insurer to the beneficiary that payment of the policy will be made in full is not a waiver of a defense founded upon alleged false statements in the application, where, at the time, the insurer had no reason to suspect that such statements were false.</p> <p>■2. Same—Estoppel by Delay.</p> <p>An insurance company which, several months after receiving proofs of loss, notifies the beneficiary that the claim has been approved, and will be paid, is not precluded by the delay from thereafter setting up the falsity of representations made in the application, where nothing had come to its knowledge putting it upon inquiry as to the truth of the representations. This is especially true where the beneficiary has taken no action in reliance upon the notice of approval, and has been in no way prejudiced thereby.</p> <p>■3. Same—Compromise.</p> <p>A notice by a life insurance company to the beneficiary that the policy will be paid in full is not an adjustment of liability, or a compromise, which will preclude it from setting up false representations in the application.</p> <p>4. Same—Promise without Consideration.</p> <p>A notice by a life insurance company to the beneficiary that the policy will be paid in full is not a binding promise, which will preclude it from subsequently setting up false representations, which render the policy void ab initio; for in such case the promise would be without consideration.</p> <p>-6. Pleading—Special Traverse.</p> <p>The inducement of a special traverse should be an indirect denial, and, if it consists of a direct denial, the special traverse is improper.</p> <p>3. Life Insurance—Application—Agreement as to Agency.</p> <p>An agreement contained in the application that the person taking the application, and also the medical examiner, are the agents of the applicant, and not of the insurance company, is binding on the insured; and he cannot, by parol evidence, show the fact to be otherwise.</p> <p>7. Same—Waiver of Defenses—Reasons for Refusal to Pay.</p> <p>The company is not restricted in its defense to the reasons set forth in its notice to the beneficiary of its refusal to pay, when it does not appear that the beneficiary has been misled or influenced by the omission to set forth other reasons.</p>

<p>In Error to tbe Circuit Court of tbe United States for tbe District of Nebraska.</p> <p>This writ of error was sued out by the county of Holt, in the state of Nebraska, and its county clerk, county treasurer, and board of supervisors, the plaintiffs in error, to reverse a judgment of mandamus against them, which directed them to collect and pay over a tax of 50 mills on the dollar which had been levied upon the property in school district No. 44 in that county, to pay a judgment in favor of the National Life Insurance Company of Montpelier, Vt., which .had been rendered against that district. The case was tried by the court upon an agreed statement of facts, and the only question presented here is whether those facts warrant the judgment. The facts were these: On November 26, 1894, the National Life Insurance Company of Montpelier, Vt., recovered a judgment in the court below for $5,023.88 against school district No. 44 in the county of Holt. In the case of the United States, on the relation of this insurance company, against school district No. 44, its director, moderator, and treasurer, the same court subsequently adjudged that the school district and its officers should make and report to the county clerk and board of supervisors of the county of Holt, annually, for five years, the amount of tax upon the property in that district necessary to be levied and collected to pay one-fifth of the amount due on this judgment, with interest and costs, and that, in case the necessary steps should not be taken to make such reports and to levy and collect such taxes until the entire judgment should be paid, a peremptory writ of mandamus should issue to compel the performance of these duties. On June 25, 1895, pursuant to this judgment, the following taxes were voted by this school district for the ensuing year, viz.: For teachers’ fund, 15 mills on the dollar; for fuel, repairs, hooks, and supplies, 10 mills on. the •dollar; for judgments against the district, 50 mills on the dollar,—total, 75 mills on the dollar; and the school hoard of that district certified these taxes to the county clerk of Holt county, and he duly levied them upon the property in the district, placed them upon the tax list, and certified them to the county •treasurer of the county for collection, pursuant to the command of the judgment and the provisions of the statutes of Nebraska. On February 7, 1896, the Fremont,' Elkhorn & Missouri Valley Railroad Company, a corporation, .and one of the taxpayers in school district No. 44, refused to pay the tax of 50 mills which had been levied on its property to pay the judgment, on the ground that that levy was illegal, and thereupon the board of supervisors of Holt county passed a resolution to the effect that the county treasurer of that county might fail to collect that tax, and that the county attorney ofs that county might enter into an amicable suit with the railroad company upon an agreed statement of facts, to determine the legality of the levy of this 50 mills, which had been made pursuant to the judgment of the federal court. On February 17, 1896, the railroad company brought a suit in one of the state courts in Nebraska against the plaintiffs in error in this suit, and prayed for an injunction forbidding them to collect this tax. The railroad company was careful not to disclose to that court in its complaint in that suit the controlling fact that this tax had been levied under the judgment of the circuit court of the United States, and the state court undoubtedly acted in ignorance of that fact. The plaintiffs in error demurred to this complaint, and an injunction was issued against them as prayed. On May 28, 1896, the United States, on the relation of the National Life Insurance Company of Montpelier, Vt., brought this action, and prayed that the county of Holt and its officers be commanded to collect and pay over the tax which had been levied to pay the judgment of the insurance company against the school district, and, after answer and trial, the prayer of the petitioner was granted.</p>

This was a suit which was brought by E. H. Rollins & Sons, a corporation of New Hampshire, the plaintiff in error, against the board of county commissioners of the county of Gunnison, state of Colorado, the defendant in error. The action was founded on coupons attached to 10 county bonds, each of which was in the following form: "No. -.

This was an action of assumpsit in which the plaintiff’s statement •of claim disclosed the following state of facts : The plaintiff being the owner of three patent rights for improvements in the manufacture and bluing of tacks entered into an agreement with the Pennsylvania Tack Works, whereby he sold to that company the right to employ the devices and processes specified in his patents in consideration of the payment to him of a certain yearly royalty for the use of each…

<p>Joinder of Acttons—Joint Negligence—Railroads.</p> <p>An action will lie against two railroad companies jointly for an injury to a passenger in a train of one of them when occasioned by a collision of that train with a train of the other.</p>

<p>1. Fire Insurance—Waiver op Forfeiture—Estoppel.</p> <p>A prior forfeiture of a' fire insurance policy is not waived where an agent of the insurer, after a loss, indorses on the policy an agreement assuming liability for future losses, since such indorsement does not induce any action of the policy holder affecting his rights, and therefore cannot operate by way of estoppel.</p> <p>2. Pleading—Argumentative Denial.</p> <p>An argumentative denial of the allegation of a rejoinder amounts to a simple traverse only, and must conclude as such.</p>

This is an action of assumpsit brought by Crane Elevator Company, the plaintiff in error, to recover the unpaid balance of the contract price for the furnishing and construction in a 12-story and basement building in the city of Chicago of three high-pressure hydraulic passenger elevators. O. Everett Clark, the defendant in error, was the contractor for the construction of the building for William D. Boyce, the owner.

Appeals from the Circuit Court of the United States for the Northern District of Ohio. These are appeals in two patent cases between the same parties, that present •questions of such a similar character that they were argued together, and may be properly disposed of in one opinion. The appeals are from orders of preliminary injunction made before a hearing upon the merits.

<p>Patents—Invention and Anticipation—Dress Stays.</p> <p>The Janowitz patent, No. 512,113, for a dress stay composed of twin wires covered with a hard, resilient, waterproof coating, such as vulcanized rubber, which also fills in the space between the wires, firmly uniting their inner edges, and having perforations or grooves along the middle for sewing through, discloses a patentable improvement over prior constructions, though the difference seems but slight.</p>

<p>Patents—Construction and Infringement—Improvements in Brooms.</p> <p>The Bradshaw & Richardson patent, No. 248,252, and the Bradshaw patent, No. 249,884, both for improvements in brooms, are limited to the precise form and combinations shown, and are not infringed by a broom the ferrule of which has neither the serrations of the former patent nor the lugs of the latter.</p>

<p>Admiralty Jurisdiction—House Boat—Lien for Towage.</p> <p>A scow, which had been fitted up. with a cabin and other appurtenances to serve as a house boat, was chartered for the season, the owner agree - . mg with the charterers to share the profits after a certain date. The char- ' terers engaged the libelant to tow them to New London and back, without informing him that it was a chartered vessel. The answer in the case-objected to' the jurisdiction, that there was no admiralty lien on such a craft, and that the charterers were liable for the towage. Held, that the house boat was subject to admiralty liens, and that the towage was done on the credit of the boat.</p>

<p>Bill in equity for alleged infringement of .letters patent No. 319,-125, covering a “process of working and using asphaltum.” Order to show cause why a preliminary injunction should not he granted. Application for preliminary injunction granted.</p>

<p>1. Review on Error—Motion for New Trial.</p> <p>Alleged error in refusing to grant a motion for a new trial is not reviewable in the federal courts.</p> <p>2. Same—Trial to Court.</p> <p>When a jury is waived in writing, and the case tried to the court, and the court makes a mere general finding, there is nothing which can be reviewed under an assignment that the judgment entered is contrary to the law and the evidence.</p> <p>3. Same—Special Findings—Bill of Exceptions.</p> <p>A paper purporting to be a bill of exceptions, and which opens and closes in the appropriate forms of such a bill, cannot be considered as a special finding of facts, though it contains an extended statement of the evidence submitted at the trial.</p>

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

<p>1. Process—Service Outside State.</p> <p>Service of summons outside the state, under Rev. St. Mo. 1889, § is not valid if the summons is not served on the defendant in person. 2022,</p> <p>2. Same—Affidavit of Service.</p> <p>An affidavit of service of a summons under Rev. St. Mo. 1889, § 2022, made before a deputy cleric, instead of a clerk of court, is insufficient.</p> <p>3. Same—Substituted Service.</p> <p>Substituted service of summons, under Rev. St. Mo. 1889, § 2022, is not authorized if it does not appear by the petition or by affidavit that the defendant is a nonresident.</p> <p>4. Same—Nature of Suit.</p> <p>A suit which seeks to require the defendant to perfect his title to certain land, furnish the plaintiff an abstract thereof, convey the land .to the plaintiff, and pay him damages, under a contract for the sale of the land, is not one in which the decree can be executed by the court, under Rev. St. Mo. 1889, §§ 2225-2227, without requiring any personal act by the defendant, and accordingly is not so far a suit in rem as to authorize substituted service on a nonresident defendant.</p> <p>5. Same—Amendment of Pleadings.</p> <p>When the nature of a suit as originally brought is not such as to give the court jurisdiction over a nonresident defendant brought in by substituted service, the court has no power to amend the pleadings so as to give jurisdiction over such a defendant.</p>

The Chicago & South Atlantic Railroad Company was organized September 1, 1873, under the general railroad .incorporation law of Illinois, approved March 1, 1872. Its proposed capital stock was $3,500,000, divided into Shares of $100 each. To this capital stock only a nominal subscription was ever made. It is stated in the argument for appellant, and apparently not disputed in that for appellee, that the total amount of stock subscribed was eight shares.

This was a suit in equity by O. H. Rogers, receiver of the New South National Building & Loan Association, against F. B. Riley and Sarah Riley, Ms wife. The cause was heard on demurrer to the cause of complaint.

<p>-Savings and Loan Associations—Loans and Mortgages—Default—Withdrawal Value of Shares.</p> <p>Defendant made a mortgage to a savings and loan company to secure a loan made upon 40 shares of the stock of the company. The note given for the loan provided that, if the borrower failed to make any monthly payment on said stock, or to pay any installment of interest for a period of three months -after it was due, then the whole amount of the note should become due and payable; and the mortgage provided that in the like case the principal sum -and interest should, at the election of the mortgagee, become thereupon immediately due and payable upon such default. Held, that upon the occurrence ■ of a default in the payment of the monthly dues on the stock an election to declare the debt matured, whenever actually made, must be as of the date of three months after such default, and the amount due on the stock' and the withdrawal value of the shares must be calculated as of said date.</p>

This was a bill in equity filed in the chancery court of Davidson county, Tenn., by the assignee for the benefit of creditors of the Mechanics’ Savings Bank & Trust Company against the Union Bank & Trust Company, administrator of John Schardt, deceased, a corporation of Tennessee, and the Guarantee Company of North America, a corporation of Canada, to state an account between the bank and John Schardt, its deceased cashier and teller, to obtain a decree properly applying…

<p>1. Intoxicating Liquors—Police Power op States.</p> <p>Any state may, in tlie exercise of the police power, declare that the manu facture, sale, barter, and exchange, or the use as a beverage, of alcohol! liquors, are public evils, and, having thus declared, can forbid such manu facture, sale, barter, and exchange, or use within her territory.</p> <p>2. Same—Interstate Commerce.</p> <p>But when a state recognizes and approves the manufacture, sale, barter and exchange, and the use, as a beverage, of alcoholic liquors, and the stat< itself encourages the manufacture, engages in the sale of, and provides foi the consumption of alcoholic liquors as a beverage, and so precludes tin idea that such manufacture, sale, barter, exchange, or use are injurious tc the public welfare, it is not a lawful exercise of the police power to forbic the importation of such liquors or their sale in original packages for persona use and consumption.</p> <p>8. Same.</p> <p>Such prohibition, under such circumstances, is in conflict with the laws of interstate and foreign commerce.</p> <p>Í- Same—South Carolina Dispensary Act.</p> <p>The dispensary act of 1896, as amended by the act of 1897, inasmuch as it approves the purchase and manufacture of alcoholic liquors for the state, and provides for the sale of such alcoholic liquors as a beverage, in aid of the finances of the state, in so far as it forbids the importation of alcoholic liquors in original packages for personal use and consumption, and the sale of such original packages for such use in this state, is in conflict with the laws of interstate and foreign commerce, and is therefore to that extent void.</p>

<p>1. Trusts—Sale of Stock—Authority from Probate Court.</p> <p>When stock has been transferred by the owner to a trustee for the purpose of enabling a sale of it to be made, with the stock of other parties, to good advantage, it is not necessary that a sale of such stock, made by the trustee after the death of the owner, should be authorized by the probate court, under the provisions of the California statute.</p> <p>9. Equity Jurisdiction—Consent Decree of Probate Court.</p> <p>A court of equity has no jurisdiction to set aside a stipulation óf parties pursuant to which a decree of distribution of the estate of a deceased person has been made by a probate court, nor to cancel, set aside, or modify such decree, nor to compel an account for what has been received under such distribution, which would, in effect, set aside the deoree by indirection.</p> <p>3. Accounting—Evidence.</p> <p>Upon an examination of the evidence as to the dealings between the parties in this case, held, that the complainant established no right to an accounting by the defendants.</p>

This was a suit in equity by the Consolidated Steel & Wire Company against Patrick Murray, Daniel Murray, Patrick Ryan, and others, and the P. J. Mundie Lodge, No. 1, and Banner Lodge, No. 2, of the Rod-Mill Workers of America, etc., to enjoin them from interfering with complainant and its employés.

<p>1. Railroad Foreclosures—Masters’ Sales—Rights op Purchaser.</p> <p>A bid for property at a special master’s sale is only an offer to take it at that price, and the acceptance or rejection of the offer is within the sound legal discretion of the court, to be exercised with due regard to the special circumstance of the ease. The acceptance of the offer is only manifested by an order confirming the sale, and, until this is done, the purchaser does not stand in the position of an innocent purchaser.</p> <p>2. Same—Purchaser as Party.</p> <p>A purchaser at a master’s sale becomes a quasi party to the suit, and is affected with notice of every step subsequently taken in the case relating to the purchase and the title acquired thereby.</p> <p>3. Same—Rights and Liabilities of Purchasers.</p> <p>Where, after a master’s sale of a railroad, but before confirmation thereof, a third party intervened, asserting a right to have the railroad in the hands of the purchasers hound by a traffic agreement made with the receivers before the sale, and the purchaser did not then ask to be relieved from his bid, but submitted to a decree confirming the sale, and reserving the rights of the intervener for future determination, held, that this amounted to an election by the purchaser to take the property burdened with the contract,, if the same should be upheld by the court.</p> <p>4. Same—Interventions.</p> <p>A land company incorporated for the building of towns, etc., and the “establishment and encouragement of industries,” purchased large tracts of coal lands in Tennessee, and, to make them accessible, organized the H. Railroad Company to build a road connecting them with the Cincinnati Southern Railroad. Afterwards the land company contracted to sell to the state a portion of the coal lands for mining by convict labor, but with a proviso that the sale was not to take effect until the state had arranged with the Cincinnati road and the H. Company as to rates of transportation from these coal fields. Before the sale was completed, the land company, the Cincinnati road, and the H. road were all placed in the hands of receivers in foreclosure proceedings. Thereafter the receiver of the Cincinnati road made a contract with the H. Company giving the former the exclusive right to fix through rates on trafile originating on the H. road, with provisos, however, that the contract was not to take effect until the state-should complete its purchase of the coal lands, and that the state should he entitled to any benefits accruing to it from the contract. The state, however, was not a party to this contract. The state subsequently made a contract with the company controlling the Cincinnati road, fixing rates of transportation for the products of the state mines on the purchased lands. The H. road 'having not yet been completed, the court authorized the issuance of receiver’s certificates to finish the road, and at the same time empowered the receiver to execute the contract giving the Cincinnati road (or the company controlling it) a' right to fix rates. This was done, and thereupon both contracts became effective, and the state proceeded to make large expenditures in developing the purchased lands. In this condition of affairs, the H. road was sold by a master in the foreclosure proceedings, and bought in for a reorganization committee. The foreclosure decree contained no provision protecting the rights of the state under these contracts, but, before confirmation of the sale, the state intervened, asking that such rights he defined and secured by the court. The purchasers did not then withdraw their hid, hut merely filed an answer denying the state’s right to-relief, and, without Invoking any action of the court upon the state’s petition, suffered the entry of a decree confirming the sale, and reserving the question of the state’s rights for future determination. Held, that in view of all the circumstances, and especially of the fact that all parties, including the purchasers, knew that these contracts were made to induce the state to complete its purchase of the coal lands, the state was entitled to-intervene in its own name for the protection of its rights thereunder, though it was not a formal party to the contract between the H. Company and the receiver of the Cincinnati road; and that the purchasers of the-H. road took it subject to the obligation of these traffic contracts.</p>

This case comes up on appeal from the circuit court of the United States for the Eastern district of Virginia. The cause was heard helow upon demurrer to the bill.

Tn Error to the Circuit Court of the United States for the District •of New Jersey. This was a suit against the United States by William Utz, Thomas M. Garrett, .and William H. Kirby, to recover a sum of money alleged to be due for cartage of imported goods while in custody of the customs officers at the port of New York. The circuit court entered a judgment for the petitioners (75 Fed. 648), and the United States bring error.

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

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

<p>Banks and Banking—Borrowing by Cashier—Liability of Bank.</p> <p>The cashier of the Q. Bank, who, in addition to his usual powers as such, was allowed by the officers to have full control of its business, applied to a bank in another city for accommodation, sending to the lattec bank what purported to be the signatures of the officers of the Q. Bank and a resolution of its directors authorizing him to borrow money and re-discount paper. Thereafter loans were made to the Q. Bank on its notes, signed by the cashier in its name. It was customary for banks in the region where the Q. Bank was located to borrow at certain seasons, and everything connected with the transaction was apparently done in the usual and regular course of business. Held, that the Q. Bank was Hable on the notes signed by the cashier, though it afterwards appeared that the signatures of the officers and the resolutions sent by him to the lending bank were forgeries, and the proceeds of the loans were used by him for his own benefit.</p>

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

This action was brought by Robert Kile, administrator of the estate of Eli M. Davis, deceased, defendant in error, against the appellant, Robert B. F. Peirce, receiver of the Toledo, St. Louis & Kansas City Railroad Company, to recover damages for negligently causing the death of Eli M. Davis.

In 1856, Simon Van Antwerp Sickles, formerly a -resident of the city of New Orleans, state of Louisiana, but then a resident of the state of New York, departed this life, leaving an olographic will, executed on the 30th day of July, 1855, as follows: “I, Simon Y. Sickles, late of the city of New Orleans, now residing in the village of Nyack, county of Rockland and state of New York, considering the uncertainty of this mortal life, but being of sound and disposing mind and…

<p>1. Sales—Executory Agreement—Passage of Title.</p> <p>An agreement for the sale of steam boilers then in place in a factory, which provides that they shall be taken out and delivered before a certain time, is an executory contract, and is not rendered operative to pass title by a statement in the memorandum of sale that the vendee “purchased the * * * boilers.”</p> <p>2 Same—Injuries to Property in Hands of Vendor—Failure to Deliver.</p> <p>Slight damages occurring to the subject-matter of an executory contract of sale prior to the time of delivery, not being such as to render performance impossible, will not excuse the vendor for refusing to deliver on the vendee’s offer to accept the property with a deduction for the damages.</p> <p>S. Same—Damages.</p> <p>It is the duty of one injured by breach of contract to make reasonable exertions to save himself from loss. He can charge the delinquent with such damage only as with reasonable endeavors and expenses he could not prevent. A. agreed to sell to B. certain boilers, which were to be taken out of A.’s factory, and delivered before a day named. Prior to that time the boilers were slightly injured by fire. A. offered to cancel the contract, or to deliver the boilers in their injured condition at the original price. B. insisted upon his rights under the contract. A resold the boilers to D., who sold them to C., the agent and manager of the corporation (Bl), C. purchasing in his individual name. The boilers were delivered at B.’s place of business. In an action by B. against A. for breach' of contract, held, that as B., through its agent, O., had an opportunity to purchase the boilers, as a part of B.’s business was repairing boilers, and as the injuries in question might have been repaired with trifling trouble and expense, it was B.’s duty to use the available means to place itself in the same condition as if' the contract had been fulfilled; and that, in consequence, B. could recover-only such damages as B. could not have prevented by the use of such available means, namely, an amount equal to the expense of mailing the repairs. Warren v. Stoddart, 105 U. S. 230, followed.</p>

<p>1. Chinese Immigrants—Certificate of Right to Enter</p> <p>An infant child of a Chinese merchant lawfully residing in the United States is not entitled to enter the country without the production of the certificate required by- the act of July 5, 1884 (1 Supp. Rev. St. [2d Ed.] p. 458), which is the sole evidence of the right of a Chinese "alien to enter.</p> <p>2. Same—Collector’s Decision.</p> <p>Under the act of August 18, 1894 (28 Stat. 390), the decision of a collector of customs in favor of the right of a Chinese alien to enter the country is not final, but the question of his right to enter is subject to re-examination by the courts.</p>

This was an application for a writ of habeas corpus to procure the release of Olive A. Stemaman, who had been committed by a commissioner for extradition to Canada on the charge of murder. The circuit court, after a hearing, discharged the writ (77 Fed. 595), and the petitioner appealed.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>This is a writ of error to review a judgment of the district court, Southern district of New York, entered upon a verdict directed by the court in favor of defendants in error, who were plaintiffs below. The action was to recover damages for the breach of a warehouse bond given by plaintiffs in error (defendants below) to the United States on March 23, 1891.</p>

<p>Customs Duties—Classification—Bengal Rice.</p> <p>Patna or Bengal rice, from which both the outer and inner cuticle have been removed, is dutiable, under paragraph 193 of the tariff act of 1894, as cleaned rice, though containing from 3 to 5 per cent, of “rice polish,” and a small percentage of broken grains of rice, and commercially known, prior to August 28, 1894, as uncleaned Tice. 77 Fed. 826, affirmed.</p>

This is an appeal from a decree of the circuit court, Southern district of New York, rendered in a suit brought by the proprietors of the original “Baker’s Chocolate” to restrain unfair competition by defendants in the sale of a rival chocolate manufactured and put up in the city of New York in the name of W. H. Baker, of Winchester, Va.

<p>1. Unfair Competition in Business—Methods of Advertising.</p> <p>Money invested in advertising is as much a part of a business as if invested in buildings or machinery, and when the goods of a manufacturer have become popular, not only because of their intrinsic worth, but also by reason of the ingenious, attractive, and persistent manner in which they have been advertised, the good will thus created is entitled to protection against unfair competition.</p> <p>3. Same.</p> <p>The adoption of a manufacturer’s distinctive means of advertising his goods, by the use, for similar goods, of means which involve nothing original, and, though not identical at any point, are similar at every point, including the use of a picture which, in general design and in the idea conveyed, is so like a picture used to advertise such manufacturer’s goods as to be readily mistaken for it by the ordinary purchaser, though differing from it in details of arrangement, constitutes unfair competition.</p> <p>3. Same—Evidence—Proof of Intent.</p> <p>Similarities in the methods of dressing up goods for the market, and of advertising them, which, when considered alone, are immaterial and insignificant, may be important as tending to establish a general design on the part of one dealer to palm off his goods as those of another, and as helping to establish the intent in more flagrant infringements of right.</p> <p>4. Same—Equitable Relief—False Statements by Complainant.</p> <p>A manufacturer of cigars placed in each box thereof a printed statement that only the best grades of Havana tobacco were used in the cigars, which were guarantied to be of choice Havana tobacco. In fact, the cigars contained a considerable proportion of inferior tobacco, not Havana, and in some instances no Havana tobacco at all. Held, that this was such a misrepresentation as to disentitle the manufacturer to relief against an imitator of his labels, advertisements, etc., though found clearly guilty of unfair competition.</p>

This was a suit in equity by Adolphe Corbett against Fannie Riee Purdy and others to enjoin the alleged infringement of a copyright on a dramatic composition. The cause was heard on a motion for preliminary injunction.

<p>Patents—Preliminary Injunction— Gambling Devices.</p> <p>The Wertheimer patent, No. 26,684, for a design to be placed on a case containing a coin-controlled machine, known as a “card-playing slot machine,” held to cover a gambling device, for which reason a preliminary injunction would be denied, though it was claimed that the patent was applicable to other purposes; it appearing that, up to the time of the present proceeding, it had never been used except upon a card-playing machine.</p>

This was a suit in equity by Samuel Davison against the Steel-Clad Bath Company for alleged infringement of a patent for an improved bath tub. The circuit court entered a decree for the complainant (77 Fed. 736), and the defendant has appealed.

<p>Appeal from the Circuit Court of the United States for the South-ern District of New York.</p> <p>This was a suit in equity by James M. S. Blauvelt, trustee, against the Interior Conduit & Insulation Company, to restrain the alleged infringement of a patent. The circuit court dismissed the bill, and -.the complainant has appealed.</p>

This was a suit in equity by Samuel Davison against the Steel-Clad Bath Company for alleged infringement of a patent for an improved bath tub. The circuit court entered a decree for the complainant (77 Fed. 736), and the defendant has appealed.

<p>1. Patents—Rights of Inventor Pending Application—Injunction.</p> <p>The inchoate right of an inventor, after application, and while the same is undergoing examination in the patent office, does not entitle him to an injunction against an alleged infringer. Hence any acts done by another, either in the way of using the invention or of threats to use it, prior to the date of a patent, cannot of themselves be any such evidence of infringement as to entitle the patentee to an injunction in a suit brought after the grant of the patent. If, however, the threats to use the invention are of a character to fairly justify the inference that defendants intended to continue the use thereof after a patent should be issued, then complainant may have a decree enjoining the carrying out of such threats.</p> <p>2. Same—Presumptions.</p> <p>Proof of construction by defendants, pending complainant’s application for a patent, of ears which would infringe the patent, does not create a presumption that defendants would continue to make such cars after issuance of the patent. On the contrary the presumption is that defendants would conform to the law rather than violate it.</p> <p>3. -Same—Burden of Proof.</p> <p>The fact that it is easy for defendants to disprove an intention to infringe does not make their omission to do so presumptive evidence that they entertained such an intention.</p>

<p>Patents—Anticipation—Door Hangers.</p> <p>Tlie Sumner patent, No. 455,695, for a door hanger for sliding doors, whereby the door may be laterally adjusted to be slid in a plane at any desired proximity to the partition in which the doorway is formed, was anticipated by the Kasson patent, No. 369,451.</p>

On November 24, 1877, James Boyle filed in the patent office his application for a patent on an improvement in gas-liquefying pumps. Three days later Mr. Boyle died. Afterwards, and on substituted claims, the patent was issued as 175,020, on the procurement of Boyle’s personal representatives, and the title apparently vested in one Thomas L. Rankin as assignee. See the opinion of the supreme court of the United States. 147 U. S. 209, 13 Sup. Ct. 283.

The New York Filter Company brought its bill in equity before the circuit court for the Southern district of New York against Schwarzwalder & Fink to restrain them from the infringement of letters patent No. 293,740,. which-were issued to Isaiah S. Hyatt on February 19, 1884, for an improved method of clarifying water.

<p>1. Rescission of Sales—Breach of Warranties—Executory Contracts.</p> <p>Wiien there is an express warranty upon an executory contract of sale, and the articles which .are the subject thereof do not correspond to the warranty, the vendee may return them, as not being what he has agreed to buy, and rescind the contract; and if several distinct articles at diferent prices are embraced in the contract, though covered by the same warranty, a right of rescission exists as to each.</p> <p>2. Same—Resale by Vendee.</p> <p>When the vendee in an executory contract of sale rescinds the contract and returns the goods, because they do not correspond to a warranty, but the vendor refuses to receive them, it is proper, if not obligatory, for the vendee to take such measures as are expedient to save unnecessary loss to the vendor, and if he sells them, exercising reasonable diligence, he is responsible only for the proceeds.</p> <p>S. Same—Action eon Price—Evidence.</p> <p>When the vendee in ’an executory contract of sale has rejected and returned the goods, but the vendor has refused to receive them, in an action by the vendor for the price, evidence of attempts to induce the vendor to arbitrate is competent on behalf of the vendee to explain a delay in selling the goods to save loss.</p>

This was a libel in rem by Hard & Rand against the steamship Iona (Speeding, Marshall & Co., claimants), to recover the amount of certain exactions made by the master before he would consent to deliver cargo. The district court rendered a decree for libelants in the sum of $650.57, with interest, and the claimants have appealed.

This is the case of a libel in personam filed by the appellants in the court below for the purpose of recovering of the appellees damages alleged to have resulted to the steamer H. D. Gofiinberry and her machinery in consequence of a breach of contract by the appellees, in failing to secure by sufficient fastenings in the steamer a new boiler which the appellees had built and put into the steamer in the spring of 1892.

<p>Application of Payments—Accounts.</p> <p>One owing wharfage for a yacht, paid $200, which was applied by the creditor upon a claim for brokerage on the purchase of the yacht. This brokerage was primarily the debt of the seller, and the creditor had originally charged it to him and rendered a bill therefor. Subsequent to the payment the creditor had rendered bills to the purchaser of the yacht which Showed the application of the $200 to the brokerage demand. To these the creditor paid no attention, having always denied liability for the brokerage. Held, that this rendering of bills did not bring the ease within the rules applicable to accounts stated, and that the $200 should be credited upon the wharfage account.</p>

<p>Collision—Steamer, with Wharf Boat.</p> <p>Where a wharf boat sunk immediately after being struck by a steamer, and when she was raised it was found that a new and strong plank connected with the knee which received the blow was split a distance of many feet, and opened so as to admit water freely, held, on the weight of the evidence, that the sinking was due to the blow, so as to make the steamer liable, though the wharf boat was previously in bad condition and sometimes leaked.</p>

This was an action by W. A. Fox, administrator, against the Southern Railway Company and others. The case was heard on a motion to remand to the state court.

<p>Motion to remand.</p>

<p>Appeal from the Circuit Court of the United States for the Southern Division of the northern District of Illinois.</p> <p>This was a suit in equity by Lorenzo D. Benner against Eugenio K. Hayes for alleged infringement of letters patent Ho. 232,137, granted September 14, 1880, to Tyler C. Lord, for improvements in check-rowing attachment for corn planters. The circuit court dismissed the bill, holding that, if complainant’s device was patentable at all, the patent must be limited to the mechanical arrangement by which the rope or cable is permitted, on the removal of obstacles, to straighten itself, and that, so construed, it was not infringed by defendant. From this decree the complainant appealed.</p>

This was an action of replevin, begun by William E. Webb, the plaintiff in. error, to recover the possession of a large number of logs lying in and about the mouth of Contrary creek, a stream running into the Kentucky river.

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

In a suit brought by the Mercantile Trust Company on the 21st day of September, A. D. 1893, to foreclose a mortgage upon the Chicago, Peoria & St. Louis Railway, the court appointed a receiver, with the authority usually conferred upon receivers in the charge and operation of railways and in the general administration of the estate, and required the receiver to pay (1) all past-due taxes; (2) all current operating expenses; (3) all past-due wages; (4) “all claims for…

This is an appeal from a decree of the court below denying the intervening petition of Charles Becker, receiver of the North & South Rolling-Stock Company, appointed by the circuit court of St. Clair county in the state of Illinois, on November 30, 1896.

This cause was before this court upon the appeal of the present appellant, and is reported in Hook v. Ayers, 24 U. S. App. 202, 12 C. C. A. 554, 63 Fed. 347, and 24 U. S. App. 487, 12 C. C. A. 564, 64 Fed. 660, to which reference is made for the facts as then developed. The decree was reversed, and the cause remanded for further proceedings in accordance with the opinion of the court.

<p>Equity Pleading — Supplemental Bill —• Infringement o® Trade-Mark — New Parties.</p> <p>Complainants, after securing a decree against certain parties restraining the use of a trade-mark, sought by supplemental bill to make parties tithe suit others who had purchased the business from the original defendants, and were using the trade-mark, and also certain persons, formerly servants of the original defendants, who had entered the employ of the new users of the mark. It appeared that the original defendants had made no attempt to transfer a right to use the mark, and that the new users of it did not base their claim to use it upon any rights supposed to-be derived from the original defendants. Held, that leave to file the supplemental bill should be denied.</p>

The injury which was the subject-matter of this action happened to George Bane, the defendant in error, while in the service of the receiver of the Toledo, St. Louis & Kansas City Railroad Company, in the capacity of brakeman upon freight trains. On the 18th day of January, 1895, at about 4 o’clock p. m., the defendant in error and the train crew were summoned at Frankfort, Ind., to take charge of a through freight train destined for Charleston, Ill.

The heading to the affidavit for attachment referred to in the opinion is as follows: “Silver Peak Mines, a corporation, the plaintiff above named, by M. A. Murphy, its attorney, being duly sworn, says,” etc. The heading in the affidavit attached to the complaint is as follows: “M. A. Murphy, being duly sworn on behalf of the plaintiff in the above-entitled action, says,” etc. The motion to dissolve the attachment was based upon the ground that there was no affidavit on file…

<p>1. Revival of Judgment.</p> <p>A proceeding to revive a' judgment being a collateral proceeding, no error in sucb judgment is available against it, if tbe court which rendered it was duly organized, and had jurisdiction of the subject-matter and the parties.</p> <p>2. Levy of Execution—Presumptive Evidence of Satisfaction.</p> <p>Though the levy of an execution upon sufficient personal property is, prima facie, presumptive evidence of the satisfaction of the debt, such presumption is overcome by proof, even without the return of the officer, that the property levied on was returned to the execution defendant.</p>

This was an action at law by J. W. Emerson and D. W. Emerson against the Minneapolis, St. Paul & Sault Sainte Marie Railway Company to recover damages alleged to have been caused to plaintiff’s property by fire communicated from a locomotive. In the circuit court, verdict and judgment were given for plaintiffs, and the defendant sued out this writ of error.

This was a suit in equity by Delia De Beaumont, administratrix of Alexandre De Beaumont, against Napoleon Williames, for alleged infringement of a patent for an improvement in heaters and feeders for steam boilers. The circuit court held that complainant had failed to prove title to the patent, and therefore dismissed the bill. 71 Fed. 812. The complainant has appealed.

Tbis was a libel in rem by W. W. Crossley, master of the schooner Morgan, against the steam tug Hercules (George Taylor, her master, claimant), to recover damages resulting from a collision. The district court found both vessels in fault, and entered a decree for divided damages. 70 Fed. 334. The claimant has appealed.

<p>Shipping—Damage to Cargo—Perils op Sea.</p>

<p>Bill in equity to have the respondent decreed to hold, in trust for the complainant, the legal title to a certain quarter section of land.</p>

<p>Bill in equity to have the respondent decreed to hold, in trust for the complainant, the legal title to a certain quarter section of land.</p>

This was a suit in equity by the Fourth Street National Bank against Robert M. Yardley, receiver of the Keystone National Bank, to subject moneys in hik hands to the satisfaction of an alleged equitable charge or lien thereon. The circuit court dismissed the bill, and complainant took an appeal to the circuit court of appeals. The latter court certified certain questions to the supreme court for decision, and, having received its answers thereto (see 17 Sup.

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

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

<p>In Error to the Circuit Court of the United States for the District of New Jersey. For opinion, see 75 Fed. 648.</p>

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