Volume 81 — Federal Reporter

<p>Submitted on Motion to Remand to the State Court.</p>

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

<p>t, Removal on Causes — Local Prejudice.</p> <p>Under the acts of 1887-88, a cause can only be removed from a state to a federal court on the ground of local prejudice before the trial of the case; and the submission of a demurrer to the petition, based upon the ground that the petition fails to show a cause of action, and the ruling oí the court thereon, constitute a trial of the case, such as to prevent the removal. Fisk v. Henarie, 12 Sup. Ct. 207, 142 U. S. 459, followed.</p> <p>8. Pleading — Amendment—New Cause oe Action.</p> <p>When a demurrer to a petition, setting up a cause of action based on defendant’s alleged negligence, has been filed and sustained, the filing of an amended petition, pursuant to leave, which sets up, and bases the right of action upon, a statute of the state where the accident happened, does not make the case a new action, so as to avoid the effect of the rule that a cause cannot he removed to a federal court on the ground of local prejudice after a trial on demurrer or otherwise. Railway Co. v. Wyler, 15 Sup. Ct. 877, 158 U. S. 285, distinguished.</p>

This was a proceeding to probate a will under the Arkansas statutes. The case was heard on an application to remove the cause to this court on the ground of local prejudice.

<p>1. Equity Jurisdiction — Corporations—Stockholder’s Bill — Conspiracy.</p> <p>Complainant, a1 stockholder in the N. Ry. Co., alleged in his bill that a conspiracy had been formed between that company and the C. Ry. Co. to force the N. Co. into insolvency, and bring about its sale under foreclosure of a mortgage, and its purchase by the O. Co.; that in pursuance of such conspiracy the officers of the O. Co., while in control of the N. Co., after the C. Co. had acquired a majority of its stock, declined to accept traffic from other roads which would have produced a fund to pay the Interest on its mortgage, and diverted its income from the payment of such interest to improper purposes. Hdd, that the bill stated a case for relief in equity. Farmers’ Loan & Trust Co. v. New York & N. Ry. Co., 44 N. E. 1043, 150 N. Y. 410, followed.</p> <p>St Equity Pleading— MirLTrt'AiuousNBss.</p> <p>A bill will not be dismissed as multifarious because the complainant, in addition to praying for the relief appropriate to the only cause of action supported by the facts pleaded in the bill, has also asked for other relief to which he is not entitled.</p> <p>& Same — Corporations—Stockholder's Bill — Diversion or Funds.</p> <p>A bill by a stockholder in a corporation, -which sets out facts showing an improper diversion of the funds of such corporation, entitling it to sue for the protection of its rights, or, in default of action by the directors, entitling a stockholder to sue, will not be treated as a bill in the complainant’s own right, though he uses language in the bill implying that he regards the wrong as a misappropriation of his own property.</p> <p>4 Same; -Wrongful Acts of Corporate Directors.</p> <p>When it is averred in a bill by a stockholder on behalf of a corporation that the board of directors has been elected in pursuance of the wrongful design on the pari of the majority stockholder of which complaint is made, it is not necessary, under the ninety-fourth equity rule, to set forth with particularity efforts to secure action by such directors to right tli<: wrong complained of.</p>

<p>Appeal from the Circuit 'Court of the United States for the Eastern District of Louisiana.</p> <p>This suit was filed March 18, 1895, to compel an accounting by defendants to the complainants of the affairs of the steamboat Alto during the time complainants were her owners (from October 27, 1890, to February 27, 1891), during which time defendants were the agents of said boat, receiving all her earnings, and paying some of her bills, and an accounting of 72 shares of the Alto Transportation Company, belonging to complainants, after said boat was sold to said corporation for said stock, and which remained in the hands and under the control of defendants under power of attorney from the complainants. The original bill, in substance, alleged that on the 27th day of October, 1890, complainant T. C. Sweeney bought the steamboat Alto from one Hamilton for $6,800 (part cash and part notes), for himself and his son, O. H. Sweeney, the other complainant, taking the title to the same in his own name, which notes were payable at the commercial house of defendants, and were to be paid by them from the earnings of said boat; that immediately on said purchase said boat was chartered to the Ouachita Consolidated Line for two years, and that while thus situated all of said charter money was collected by said defendants; that shortly after said purchase said E. Conery advised said T. O. Sweeney to put said steamboat in a corporation, saying that said T. C. Sweeney could, with his son, said C. H. Sweeney, be the owner of all the stock therein, with the exception of a few shares necessary to qualify officers of the corporation, but that said T. C. Sweeney could have entire control and could and would be president thereof, and that he (Conery) would procure a Mr. Woolfolk, of Louisville, Ky. (under whose laws, it was suggested, said corporation should be formed), to act as secretary at the domicile of said corporation, and he would only have to pay him $100 per year for his services, and he (Conery) would have all of said matters attended to for him; that, having implicit faith in the judgment and integrity of said Conery, he consented to the formation of said corporation, and articles of incorporation were drawn up under the direction of said Conery, and were signed in the city of- New Orleans, November 25, 1890, by said T. C. Sweeney and C. H. Sweeney, and by L. R. Woolfolk and R. L. Woolfolk in Louisville, Ky., and said corporation was called the Alto Transportation Company, whose stock was 75 shares, of the par value of $100 each,- and to which corporation said steamboat Alto was on the 27th day of February, 1891, duly sold for the above shares of stock, 86 shares of which were issued to complainant T. C. Sweeney, 36 shares to complainant C. H. Sweeney, and 1 share to each of said Woolfolks, and 1 share to defendant Conery; that when said stock was issued to complainants, and in their name, it came to them from the hands of said Conery, who requested that they deliver the same to him or his house as collateral security for any sum said T. C. Sweeney might owe said Conery and his house by reason of any advances he or said house might have to make in paying said purchase notes, agreeing that when said advances were paid said stock would be returned complainants, and that with this understanding and agreement they gave said shares of stock to said Conery as security, but not otherwise; that said steamboat continued under said charter, with defendants, as agents of said boat and her owners, collecting all of her earnings, and looking after and managing the interest of complainants in said corporation, until April, 1802, when she was sold for §8,200, which was paid to defendants, who received all the revenues and earnings of said boat during the time she was running, as the property of said T. O. Sweeney, as well as all the profits and dividends coming to the stock in said corporation belonging to complainants; that said Tilomas O. Sweeney always believed he was the president of said corporation until said sale of said boat, and undertook to sign the bill of sale, when he was for the first time informed by Oonery that he was not such president, but ho (Oonery) was; that they were informed that Conery, after securing said shares of stock, without notice to them, and without their knowledge and consent, surrendered their said shares of stock to the company, and had other shares issued to himself, from which he or his house have received large amounts of money, but the exact amount whereof is unknown to them; that after the delivery of said stock to defendants as collateral as aforesaid, with authority to manage the same, said E. Conery, without the knowledge or consent of complainants, and without knowing lie was president of said company, instructed said Wool-folk. to vote him a salary of §200 per month as president of said company, and all in violation of his agreement that said T. O. Sweeney was to be president, in pursuance of which said Conery claimed to have received, sometimes §2,600, and at other times §8,000, to which it is alleged he was not entitled; that they have a piffled to said defendants, without avail, for an accounting of the affairs of said boat while she stood in the name of said T. C. Sweeney before the sale to the company, and for an accounting of all moneys received by defendants for said 72 shares oí stock after the sale of said boat to said corporation. And tlie prayer oí said bill Is for an accounting of the affairs of said boat from October 27, 1800, to the time of her sale to said corporation, on the 21st of February, 1801, and for an accounting of all moneys and profits received on said 86 shares of stock of said T. O. Sweeney, and said 36 shares of stock of said O. H. Sweeney, and for judgment for such an amount as may be due on such accounting, and for costs and general relief. To this bill defendants demurred, and, for cause of demurrer, showed “that it appears by the bill that It Is necessary that the Alto Transportation Company, a corporation therein mentioned, and concerning whose doings the principal complaint appears to be made in the bill, and which should be represented in this suit, is not made a party thereto, and no proper hearing and decree can bo made without the presence of said company.”</p> <p>This demurrer the court sustained, unless within five days the complainants amended their bill by striking therefrom the allegations concerning the salary of Conery as president of said Alto Transportation Company. This amendment was duly made, and thereupon an answer was filed, which, in substance, alleged that said boat was really purchased from Hamilton for defendants in order to be put in the Ouachita Line, and the title was put in Sweeney’s name, at his request, who was without, means, the object being to give complainants employment and good salaries; that the company was formed in Kentucky, to which the boat was sold for 75 shares of stock, of which 36 were nominally issued to T. C. Sweeney, and 36 nominally issued to O. H. Sweeney, said nominal title being in the name of the complainants for the purpose aforesaid, and because defendants did not wish to take it in their own names, and that said shares were forthwith delivered to defendants with the authority from the complainants to transfer the same, and that each of the complainants, in writing, authorized said E. Conery, Sr., to transfer the same to any person; that said Conery was duly made president, and he and his firm gave said company the benefit, of their experience, and kept said full accounts of the doings of said corporation; that, when said shares of stock were delivered to defendants, complainant T. C. Sweeney entered into a verbal agreement with defendants that when the amount due them for amounts advanced for said purchase and all other obligations should be paid, and the boat was free of debt, then one-half the stock of the company should be transferred to said T. C. Sweeney, It being Implied in that ease the boat should be sold by the company, the same being the only property of the corporation, said T. C. Sweeney should secure one-half the net balance remaining from the price; that an account was opened, in which were duly entered receipts and expenditures; that said boat was duly sold; that thereafter said account was balanced on the 25th April, 1892, and it was found that there was coming to defendants $1,189.97, and a like amount to complainants, which latter sum was received by said T. G. Sweeney in full settlement of said understanding and agreement; that said boat, the only asset' of said company, having been sold, said shares of stock have no value, and are mere vouchers; that complainants have received all that is due them; that neither of defendants are indebted to them or either of them; that said account has been exhibited to complainants; that they have had the benefits of the facts therein set forth, “accepted” the benefits of the situation and the proceeds of said accounts, and are each estopped to make the demands which they made in said suit. Upon replication being filed, an examiner was appointed, and the taking of the evidence begun; and after it was about concluded an admission was made, which is in the following words: “It is admitted that the amount shown to be due on the 23d of April, 1892, on the accounting by the defendants herein, is $3,638.77, including an item of $965.50, known as the ‘'Contingent Fund of the Steamboat Alto,’ and that said sum of $3,638.77 now belongs either to the complainants or the defendants; that, according to the contention of complainants, 36/75 thereof belongs to O. H-Sweeney, and 36/75 to T. C. Sweeney, and according to the contention of defendants the whole of said sum belongs to defendants. It is further admitted that, independent of the above, — that is, on private account, — said T. C. Sweeney owed defendants on the 23d of April, 1892, $1,672.72, which should be deducted from the above claim of T. O. Sweeney of 36/75 of the above amount of $3,638.77 in ease the same should be allowed to said T. O. Sweeney, and, in case said 36/75 should not be allowed said T. C. Sweeney, then nothing would be due to defendants.”</p>

This is an appeal from a decree of the circuit court, Southern district of Yew York, dismissing the bill.

<p>Payments — Acceptance—Notice.</p> <p>In 1886, F. R. and N. R., through one T., obtained from defendant a loan of $2,500 on mortgage, which was extended at maturity for 5 years, and, in consideration of the extension, made payable at defendant’s office in New Jersey. Subsequently the mortgaged land was sold to plaintiff’s husband, V., and by him devised to plaintiff. Desiring to make a payment of $1,000, in advance of maturity of the extended loan, V. applied, through T., to defendant, to know if it would be accepted, and defendant replied that it would if certain interest were paid. Some months later, V. gave to T. a check for $1,000, and T. notified defendant of the receipt thereof, and that it was intended as a payment on the loan, if defendant would accept it, to which defendant replied that the payment would be accepted if certain other interest were paid. T. did not remit the money, but defendant never called for it, nor made any inquiry, nor did anything further in the mattes for more than a year, when T. had absconded. Held, that the defendant had accepted the payment, and plaintiff was entitled.to have the same credited on the mortgage.</p>

<p>fAI’MKNTS TO UlTAUTHOItlZED AGENT.</p> <p>In 1885 plaintiff, through one T., obtained from defendant a loan of $25.000, secured by mortgage. At the maturity thereof the loan was extended for five years, and, in consideration of the extension, was made payable at defendant’s office in New Jersey. As the interest coupons matured, they were sent to the F. Bank, at plaintiff’s residence, in Missouri, of which bank T. was cashier, and the interest was collected by T. and remitted to the defendant. Before the maturity of the extended loan, plaintiff applied to T. for permission to make a payment in.advance of maturity, and, on T.’s assurance that it would be accepted, gave a check to the F. Bank for $7,000. T. did not remit the money to defendant, nor inform it of the payment, but, while collecting interest on the reduced amount from plaintiff, accounted to defendant as for interest on the whole amount of the loan. A similar transaction took place later, when plaintiff paid $5,000 to the bank. Defendant was not informed of the payments till T. absconded, some time later, and the bank failed. Field, that the payments so made were not payments to the defendant, and plaintiff was not entitled to have them credited on the mortgage.</p>

<p>Principal and Agent — Existence of Agency — Payments to Assumed Agent.</p> <p>In 1887, defendants, through one T. as their agent, borrowed $3,000 of plaintiff, and gave a note therefor, payable at their residence, in Missouri, in five years, and secured by mortgage. In 1892 the loan was extended for five years, and, in consideration thereof, made payable at plaintiff’s office, in New Jersey. In 1894 defendants applied to T. to have him secure a release of part of the mortgaged land, which defendants had sold, on payment of $1,000. Plaintiff informed T. that it would not release the land, but, if the title were satisfactory, it would accept payment of the $3,000 loan and make a new loan of $2,000 to defendants on the unsold land. Defendants then delivered to T. a check for $1,000, drawn to the order of a bank of which T. was cashier, and a new mortgage for $2,000, for which T. receipted as cashier of the bank. Plaintiff did not release the $3,000 mortgage, and knew nothing of these transactions till T. absconded, some time later, when the $2,000 mortgage was found in the bank. Held, that the $1,000 was not paid to plaintiff, in fact or in law, and plaintiff was not bound to credit the same on its mortgage.</p>

<p>1. Principal and Agent — Note Signed by Agents Individually.</p> <p>M. and IT., who were the agents of the subscribers to a syndicate formed to buy the securities of two railroads, executed to the C. Bank, through which the financial operations of the syndicate were carried on, a note for $100,000, which was headed “M.-H. Syndicate,” and read: “On demand the undersigned promise to pay « * *, having deposited with said bank as collateral security for this or any other liability of-to the said bank * * * syndicate securities and agreement,” — signed by M. and H. in their own names. The loan was entered in the discount book of the bank as made to the M.-H. Syndicate. A guaranty taken by the bank described the note as the note of the M.-H. Syndicate, and demands for interest from time to time were addressed by the bank to the M.-H. Syndicate. Held, that the note was the obligation of the syndicate, and not the individual debt of M. and H.</p> <p>2. Evidence — Waiver of Objections — Court Rules'.</p> <p>Rule 34 of the circuit court for the district of Indiana, requiring the filing of briefs on all motions, demurrers, and exceptions, in default of which they are waived, does not apply to objections made on the trial to the competency of evidence contained in a deposition.</p> <p>8. Competency of Witnesses — Suit against Heirs — Agent of Decedent-Federal Courts.</p> <p>Rev. St. § 858, does not provide for the case covered by the Indiana statute (Rev. St. 1894, § 508; Rev. St. 1881, § 500) excluding, as against the heirs or representatives of a decedent, the testimony of one who has acted as an agent in making or continuing a contract with such decedent, and such statute is the rule of decision as to the competency of such testimony in the federal courts.</p> <p>4. Federal Courts — Jurisdiction—Suit to Charge Heirs — Limitation of Actions.</p> <p>The federal courts have original and inherent jurisdiction, apart from any state statutes, to take cognizance of a suit by a creditor to charge heirs, devisees, and legatees, to the extent of the assets taken by descent or devise, with ancestral debts, and they are not restricted therein by state statutes limiting the time for bringing such suits, but the right to 'maintain such a suit may be lost by laches, and a failure to proceed within the time limited by a state statute may be evidence of laches.</p> <p>5. Laches — Failure to Present Claims against Decedent’s Estate — Depreciation of Collateral.</p> <p>When one who claims to be a creditor of a deceased person neglects for over three years to present his claim, of which the representatives of the decedent are ignorant, and in that time collateral securities held for the claim depreciate from more than its amount to much less, such creditor is guilty of laches which bars him from proceeding in equity against the heirs and devisees of the decedent.</p>

This appeal is from a decree dismissing the intervening petition of the appellants, John B. Grommes and Michael Ullrich, in the case of Towle v. Investment Soc., 78 Fed. 688, wherein William K. Sullivan had been appointed receiver of the assets of the society. The case was submitted and hoard upon the petition, answer, and a stipulation of the parties.

<p>1. Patents — Construction of Claims — Infringement.</p> <p>A claim for a pan or other vessel having its perpendicular sides provided with a “continuous loop” to form “continuous parallel flanges” and an intermediate “continuous zinc plate” is infringed by a vessel made of two tin plates and two zinc strips, soldered together, because the vessel is too large to be made conveniently of one piece.</p> <p>2. Same — Improved Pans.</p> <p>The Brown patent, No. 480,555, for an improved pan or other vessel, con‘strued, and held, valid and infringed.</p>

<p>Railroad Receivers — Responsibility under Prior Contracts — Crossing of Tracks.</p> <p>The S. Ry. Co. and the D. Ry. Co. entered into a contract by which the latter granted to the former the right to cross its tracks, and the S. Co. agreed, as a condition of the grant, that if the statutes of Iowa, in which state the lines were situated, should be so amended as to permit trains of intersecting railroads to cross each other’s tracks without stopping when a safe system of interlocking switches had been constructed, the S. Ry. Co. would construct and maintain such a system at its own expense. The contract was duly executed, but not recorded. After the crossing had been built, the S. Ry. Co. mortgaged its road to secure an issue of bonds, and subsequently the road was placed in the hands of receivers under foreclosure of the mortgage. The statutes of Iowa were amended so as to permit trains to cross the tracks of other railroads without stopping where a safe system of interlocking switches existed, and the D. Ry. Co. and its lessee applied to the court to require the receivers to put in such a system. The statutes of Iowa provide that one railroad may obtain the right to cross another’s track without its consent, and also that upon application to a court a system of switches at a crossing may be ordered put in, and the cost equitably apportioned among the several roads. Held, that the bondholders, who were equitably the real owners of the S. road, were not bound by the contract to put in and maintain switches, either as running with the land, or on the theory of a vendor’s lien or of a condition of a grant, and that the court would not be justified in compelling the receivers to carry out such contract, and in throwing the whole expense of the construction and maintenance of the switch system on the bondholders, or those who might succeed to their rights.</p>

<p>Eminent Domain — Rtvku Improvements — 1Taking of Submerged Lands.</p> <p>When ihe government, for the purpose of improving the navigation of a river, takes possession of submerged land which is in the use and possession of a citizen, under a right derived from the state, it takes private property for a public use, and must compensate the owner therefor.</p>

Complainant brought a bill in equity against the respondent for infringement of' a patent reissue No. 11,304, dated February 7, 1893, relative to the construction of dwelling houses. Respondent filed an answer setting up prior use and other defenses and the cause was put at issue on August 3, 1894. The ordinary rule upon respondent to close his testimony was taken March 25, 1895, but respondent, although the time was repeatedly extended, failed to offer any evidence.

<p>Insolvent Railroad Companies — Leased Roads — Receivership—Funds.</p> <p>By a covenant in a railroad lease, the lessee company assumed all obligations of the lessor incurred as common carriers, warehousemen, or otherwise, and agreed to indemnify it for all costs, damages, or losses arising from its failure to perform such obligations, or from negligence, accident, or default, and for claims, damages, judgments, or actions arising from the maintenance of the leased road. Held, that net earnings of the leased road, accruing in the hands of receivers of both companies, were not chargeable with judgments obtained during the receivership, for losses sustained on that road prior to the appointment of receivers, but such earnings must go to the bondholders under other provisions of the lease.</p>

<p>Receivers — Attorney’s Fees.</p> <p>Fees earned by' attorneys under a contract with a receiver of a state court are not chargeable as a prior lien on the property when in the hands of a receiver appointed by a federal court in an entirely independent suit, and cannot be allowed, even among the claims of general creditors, unless they have been ascertained and allowed by the state court.</p>

<p>1. Rescission of Contracts — False Representations — Delay—Character of Proofs.</p> <p>A contract of sale of certain merchandise to be delivered in the future was repudiated by the purchasing firm on wholly insufficient grounds, upon discovering that it would involve large pecuniary loss. Seven years later they sought to justify this repudiation on the ground that they were induced to make the contract by false representations, and thereafter sued to rescind. Held that, in view of the delay and of the apparent susceptibility to pecuniary bias, the proofs, especially when consisting of testimony of persons interested in the firm, should be most clear and convincing, both as to the making of false representations of fact, and as to the firm’s reliance thereon as an inducement.</p> <p>2. Same.</p> <p>Statements of forecast, opinion, or expectation, that are in substance mere matters of inference, cannot be considered false representations, justifying the rescission of a contract.</p>

This suit is brought by the complainant, as the owner or part owner of seven quartz mills situated along and upon the banks of the Carson river, in Ovmsby and Lyon counties, in the state of Nevada, to wit, the Mexican, Brunswick, Merrimac, Vivian, Santiego, Franklin, and Bock Point, against H. F. Dangberg and about 125 other respondents, comprising all of the farmers residing in Carson valley, in Douglas county, who live above the Mexican mill, and use the water of the…

<p>1. Contracts with Government — Road Construction — Estimates and Measurements of Engineer.</p> <p>Where contractors engaged in road building for the United States have agreed by the terms of their contract that the engineer in charge shall determine the classification of the excavations, the grading'of the ground, the depth and foundation of the culverts, and that he shall have general supervision, with'power to accept or reject any portion of the work, such contractors are conclusively bound by the engineer’s estimates, and cannot recover beyond what he has allowed them, in the absence of fraud, or of such gross mistake as would imply bad faith on his part.</p> <p>3. Same — Estoppel—Receipt in Pull.</p> <p>Where contractors with the government, after the completion of their work, have received the balance due them according' to the accounts of the engineer in charge, and have given a receipt in full without protest or objection, such receipt precludes them from a further recovery in a suit against the government under the act of March 3, 18S7.</p>

Action on bonds and coupons issued by the county defendant under date of 'November 12, 1880. Tried to court. A jury trial having been duly waived in writing, signed by the parties litigant, the evidence was submitted to the court, from which the court finds the facts to be as follows: (1) The plaintiff corporation is a national bank created under the laws of the United States, having its principal place of business at Keene, in the state of New Hampshire.

<p>Master and Servant — Personal Injuries — Railroad Fencing Laws.</p> <p>Tlie Virginia statute requiring railroad companies to fence their tracks through all inclosed lands except within the limits of cities or towns, and except where the landowner has been compensated for maintaining his own fences (Code 1887, §§ 1258, 1259), and which provides that in cases of injury to “property” on any part of the track not so inclosed the claimant need not prove negligence, etc. fseciion 1261), is not intended for the protection of railroad employes, and, ihough the death of an employe results from an accident .caused by a failure of the company to fence, a recovery cannot be had without proving negligence.</p>

<p>New Trial — Sufficiexcy of Evidence.</p> <p>When one person might, think one way and another another upon evidence, it cannot be said that a jury were iniluenced by any wrong motives in finding- either way upon it.</p>

This was an action of ejectment by Setb O. Holmes and others against Josephus Grab eel. The case was beard upon defendant’s objection to the admission in evidence of the record in a previous action entitled Holmes v. Fulkerson and others.

-This was an action at law by Augustus H. La Rue against the Pennsylvania Railroad Company to recover damages for personal injuries. At the trial the defendant requested the court to direct a verdict in its favor, and also requested certain instructions, which were denied. The jury returned a verdict for plaintiff, and judgment was entered accordingly. The defendant then brought the case to this court on writ of error.

<p>1. Public Lands — Opening Indian Reservation — Invalid Treaty — Cancellation of Entries.</p> <p>In 1884 an agreement was negotiated between tbe government and an Indian chief named Moses, purporting to represent the Indians living on the Columbia reservation, in Washington territory, by which the Indians, in consideration of a sum of money, agreed to remove to another reservation, and that the Columbia reservation should, be opened to settlement, except that any Indians who desired to remain might do so, and lands not exceeding 640 acres to each family should he selected for them. Certain Indians living on the reservation, who did not acknowledge the authority of Moses, refused to he hound by this agreement, though they indicated a willingness to make a similar one on their own account. Through the misunderstanding of an agent, the position taken by these Indians was incorrectly reported to the government, and, without making any provision for them, the land, was opened to settlement. -Certain white men attempted to settle on the lands, and were resisted by the Indians, who were thereupon forcibly removed by United States troops, and imprisoned. During their imprisonment, the white settlers seized their improvements, settled on the land, and filed homestead declarations, which were accepted. The government having learned the facts as to the Indians’ position in the matter, contest proceedings were instituted in the land department, and the entries were finally canceled, though the settlers had in the meantime made improvements at considerable expense; and suits were brought to oust them from possession. Held, that the lands in question never became part of the public domain which could lawfully he taken up under the homestead law, and that neither by estoppel against tbe government, nor as bona fide purchasers, had the settlers acquired any rights to hold the lands.</p> <p>2. Estoppel against Government — Private Rights.</p> <p>Though the doctrine of estoppel may he applied in some cases against, the government, it cannot be applied to give one private individual an advantage over another, or to devest existing rights of individuals without txieir consent.</p>

<p>Fraudulent Conveyances — Husband and 'Wife — Instructions to Jury.</p> <p>On a question as to the validity, as against creditors, of a conveyance of property from a husband to his wife, in payment of an alleged indebtedness, a charge which expressly leaves the question of the bona fides of such indebtedness to the jury is not erroneous, though it calls attention to Hie ab sence of any notes, book charges, or other contemporaneous evidence of the debt.</p>

<p>Postmasters — Underpayments to Letter Carriers — Experimental Free Delivery Offices — Indictment.</p> <p>A postmaster at an experimental free delivery office, designated by the postmaster general, pursuant to the joint resolution of October 1, 1800, is an officer of llie United States, charged with the payment of an appropriation made by act of congress, within the meaning of Hev. St. § 5183, and is indictable thereunder for paying to a letter carrier, employed in such experimental free delivery, less than the amount provided by law, and requiring them to give vouchers for a sum greater than that paid to them.</p>

This was an appeal from the decision of the circuit court affirming the decision of the board of general appraisers as to the classification of certain merchandise consisting of cylinder, crown, or common window glass, a part of which was colored throughout when melted, and the rest on the outside by Hashing.

This is an action to enjoin the defendant from compounding, making, or selling any liver medicine called “Simmons’ Liver Medicine,” and on which the name of Simmons is used, or disclosing, for making and compounding such medicine, the knowledge which was imparted to him by complainants while in their employ, and to restrain him from selling medicines put up by him, and called “Simmons’ Stomach Compound.” Tlie hill alleges: That the complainant corporation is now, and for…

This ivas a suit in equity by William Goldie and others against the Diamond State Iron Company and others for alleged infringement of certain patents relating to railroad spikes and spike machines. The cause was heretofore heard on motion for a preliminary injunction, which motion was granted. 64 Fed. 237.

This was a suit in equity by the Tannage Patent Company against William W. Adams and others for alleged infringement of letters patent Nos. 291,784 and 291,785, issued January 8, 1884, to Augustus Schultz, for processes of tawing hides and skins. The cause was heard below on motion to dissolve a preliminary injunction, and the motion was denied. 77 Fed. 191. The defendants have appealed.

<p>1. Patents — Validity and Infringement — Centrifugal Milk Separators.</p> <p>The Sharpies reissue, No. 11,311 (original No. 442,461), for a centrifugal milk-separating machine, of which the distinguishing features are the simultaneous driving of the vessel and heating of the milk by a jet of steam or other similar motive power applied direcüy to the vessel, without the use of a driving spindle, held valid as to claims 4 and 5; and said claims held to be infringed by a rotary “milk tester,” in which these distinctive features are used. 75 Fed. 595, affirmed.</p> <p>2. Same.</p> <p>The Sharpies patent, No. 458,194, for a rotary milk-testing apparatus, construed as to claim 3, of which the distinctive feature is an annular easing fixed to the frame outside the pockets, against which the jet of steam is delivered, and which aids in concentrating the steam about the bottles; and said claim held not infringed by a machine made in accordance with the Stoddard patent, No. 484,685. 75 Fed. 595, reversed.</p>

<p>1. Patents — Statutes of Limitation.</p> <p>A patent was granted May 24, 1864, and infringement was begun in 1865, and continued until the expiration of tbe patent. Suit was begun November 24, 1877. At tbe time tbe patent was granted, therefore, there was no federal statute of limitations applicable to infringements, and the state statute would govern. The state statute was displaced by section 55 of tbe patent act of 1870, which required suits to be brought during the term of the patent or within six years after its expiration. This provision was repealed by Rev. St. § 5599, but existing causes of action were saved. Held, that no part of the claim for infringement was barred.</p> <p>2. Same-Marking Artici.es Patented.</p> <p>Rev. St. § 4900, in relation to marking articles “patented,” does not apply so as to prevent recovery of damages for infringement, when neither the plaintiff, nor any one for or under him, has made or sold the patented device.</p> <p>3. Same — Notice of Infringement — Estoppel as to Prior Infringement.</p> <p>Where notice of infringement is given, on a certain date, there is no estoppel, as against complainant, as to prior infringements, when it appears that defendant did not act upon the notice with respect to prior, or even subsequent, infringements, so as to make the claim for the prior infringements inequitable.</p> <p>4. Same — Competency ob’ Witnesses.</p> <p>In determining the profits or savings made hy a, city hy the use of an infringing inrprovement upon its fire engines, the chiefs of its fire departments, its foremen, and others in those 'departments engaged at the time and before the infringement commenced, are competent witnesses on the question of the savings accruing from the infringing device.</p> <p>5. Computation of Damages by the Court.</p> <p>The very long pendency of a suit in equity is good reason for a computation of damages or profits hy the court, if it can be done, instead of again referring the cause to a master.</p> <p>6. Patents — Infringement—Profits on Savings.</p> <p>Where, by the use of an infringing device in connection with a city’s fire engines, the number of men required with each engine was reduced, the amount of their wages should he included in the computation of savings or profits, although the city did not in fact reduce the number of men employed, but either utilized them for other purposes or allowed them to remain idle.</p> <p>7. Same — Burden of Proof.</p> <p>Where the complainant has shown that a certain amount of saving to the defendant resulted from the use of an infringing device, the defendant, if he claims that a part of the saving was due to a different device, has the burden of proof in respect thereto and as to the amount attributable to such other device.</p>

<p>Patents — Limitation by Prior Art — Infringement—Dynamo-Electric Machines.</p> <p>The Scribner & Warner patent, No. 496,449, construed in connection with the prior art, and held not infringed as to claim 2, which is for a dynamo-electric machine having pole pieces perforated on a line coincident with a plane passing through the axis of the armature shaft, whereby a uniform magnetic field is produced, regardless of the direction of rotation of the armature.</p>

This was a suit in equity by the National Folding-Box & Paper Company against Herman Elsas and others ior infringement of a patent. The cause was heard on a motion by plaintiff to be allowed treble damages.

<p>In Equity. Suit by Samuel Evans and others against the Suess Ornamental Glass' Company and others.</p>

<p>This was a suit in equity by Benajah Williams against the American String Wrapper Company and others for alleged infringement of a patent.</p>

<p>L Patents — Invention—Combinations—Grain Elevators.</p> <p>'The Dunbar reissue, No. 10,521 (original No. 264,938), for an improvement in grain elevators, and consisting in a combination whereby a portable elevator tower is arranged to be moved along in front of tbe elevator, so as to reach the different batches of the vessel, and so that two elevator legs may be simultaneously used, is void for want of invention, and as being the result of mere selection by the skilled mechanic of existing devices, and applying them to their appropriate uses, with modifications of detail to fit them for the new environment. 75 Fed. 567, reversed.</p> <p>8. Same.</p> <p>The circumstance that the same congregation of devices has never been assembled in the new location is not controlling, and is often of little value in determining the question of patentable novelty. Their assemblage may be nothing but an instance of a. double use, and, when they require special adaptation to the new arrangement and occasion, it still remains to inquire whether this has required invention. - '</p>

<p>Towage — Injury to Mate of Tow — Liability of Tug Owners.</p> <p>A schooner was taken in tow by a tug. The mate of the schooner superintended the fastening of the line on the schooner, and caused it to be passed through the breast chock instead of the forward chock, and made fast to the pawl bitt, instead of to the windlass bitt, which would have given a straighter lead, and been in accordance with better seamanship. In the towing, the breast chock gave way, and the rope struck the mate, throwing him against the capstan, and breaking his leg. Held, on the evidence, that the breaking of the chock was due to this manner of fastening, and not to excessive speed of the tug, and that the tug owners were not liable.</p>

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

Libel for salvage services. Stipulated, value of Monticello was $.12,000,. She had no cargo or passengers, and was out of commission. She was in no particular or immediate danger, and tugs from San Francisco were on their way up the coast to tow her, and would have reached her some four or five hours after she was taken in tow by the San Benito. The Monticello was disabled, her boiler having ' become broken down, and she was being navigated with but one sail, — the jib.

This was a libel in admiralty by Joseph Keating, a stevedore, against the schooner John Shay, to enforce an alleged lien against her. The cause was heard upon the following exceptions to the libel: “First. Because the allegations thereof do not disclose any admiralty or maritime lien or claim upon the said vessel whereupon an attachment should he founded. “Second.

<p>Towage — Duty of Tug — Buoy Marking Obstruction.</p> <p>The master of a tug plying in a busy harbor is not justified in relying absolutely upon the presumption that a buoy, placed by the government to indicate a dangerous obstruction to navigation in such harbor, is in its proper position, but is bound, especially when towing a large ship past the obstruction, to observe the bearing of such buoy, and watch for any change in its position, and to be so familiar with the actual location of the obstruction as to be put on his guard by a displacement of the buoy amounting to 200 feet in distance and making a difference of a point and a half in its bearing.</p>

This was a libel by Domenico Penco, master of the bark Armonía, against John Cory & Sons, owners of the steamer Eedruth, to recover damages resulting from a collision. The district court rendered a decree for the libelant (67 Fed. 362), and the respondents appealed. After the record was brought up from the court below, the appellants wei-e permitted by the court to file additional assignments of error. 22 C. C. A. 675, 76 Fed. 997.

<p>Collision — Steamer and Sail in Slip — Breaking Adrift in Gale.</p> <p>A sailing vessel, which leaves a probably safe mooring, and, in the face of a dangerous and increasing gale, comes into a slip, and moors under the lee oí a steamer already there, in such a position that, if the lines of the latter part, a collision will be probable, assumes the risk of injury to herself from such a collision, where all reasonable and ordinary precautions are taken by the steamer by putting out additional fastenings. The steamer is not bound, under such circumstances, to change her position in the midst of the storm, in order to avoid responsibility for a collision, made possible by the action of the other vessel.</p>

<p>These were cross libels to recover damages resulting from a collision.</p>

Appeal front the Circuit Court of the United States for the District of Maine. This was a suit in admiralty by Thomas J. Stewart and others, owners of the schooner Kabboni, against O. P. Kumball and others, owners of the barkentine Nellie E. Kumball, to recover damages for a collision. A cross libel was also filed by the respondents. The district court found that the Kumball was alone in fault, and decreed accordingly. 53 Fed. 948.

<p>United States Courts — Jurisdiction—Amount in Controversy.</p> <p>In an action on negotiable bonds which have matured, together with the coupons, neither the interest on the bonds after maturity, nor the interest on Uio coupons after their maturity, constitutes a part of the matter in dispute. in determining the jurisdiction of the circuit court, where the controversy arises between citizens of different states.</p>

<p>Appeal — Dismissal—Injunction against Public Officer.</p> <p>An appeal from an order denying an injunction against a postmaster will be dismissed without costs to either party, where, pending the appeal, the appellee has been succeeded in office by another.</p>

<p>Costs — Attorney’s Docket Fee.</p> <p>An attorney’s docket fee will not he allowed upon an order to remand to a state court, either under Rev. St. § 824, authorizing such an allowance where there has been a “final hearing” in equity, nor under the act of March 8, 1875, permitting the court, in remanding a case, to “make such order as to costs as shall he just.”</p>

<p>1. Constitutional Law — Power ov Congress over Navigable Waters — Obstructions to Navigation.</p> <p>Congress lias absolute power, in tbe Interests of interstate and foreign commerce, over tbe navigable waters of tbe United States, and may declare wiiaL may or may not constitute obstructions thereto.</p> <p>2. Obstructions to Navigable Waters — Regulation oe Hydraulic Mining.</p> <p>The act of March 1, 1893 (27 Sta.t. 507), creating the California débris commission, and prohibiting and declaring unlawful hydraulic mining ‘‘directly or indirectly injuring the navigability” of the Sacramento and San Joaquin river systems, and requiring persons or corporations desiring to carry on hydraulic mining in the territory drained by those river systems to file a petition, setting forth the facts, to obtain permission from the dfibris commission to cany on such mining, etc., is to be construed as entirely prohibiting any hydraulic mining in said territory until such application lias been made and permission given. And the fact that prior to the passage of said act the United States had filed a hill to restrain a certain corporation from carrying on hydraulic mining' so as to interfere with the navigability of such rivers, and that a decree liad been entered adjudging that impounding works erected by the company pending the suit were sufficient to remove all injurious matter, and that the company could not thereafter be restrained under the then existing law, is no defense to a suit by the United States to enforce compliance with the act of 1893.</p>

<p>L Railroad Receivers — Adoption of Leases.</p> <p>Receivers of a mortgaged railroad have the option to assume or to renounce within a reasonable time the leases of branch railroads which they find in the possession of the mortgagor, and are directed to operate.</p> <p>8. Same — Liability for Deficits.</p> <p>The expenses and deficits incurred by the receivers of an insolvent corporation, in lawfully. operating another railroad which has been operated by the insolvent corporation under a lease which it was the duty of the receivers to renounce, are chargeable to the leased railroad, and not to the railroad of the lessee, where the receivers have not assumed the lease.</p> <p>8. Same — Expenses—Preferential Claims.</p> <p>The moneys expended and the liabilities incurred by the receivers or trustees in the management of property intrusted to them constitute preferential claims upon the trust estate, which must be paid out of its proceeds before they can be distributed to the beneficiaries.</p> <p>4. Same — Discretion of Court — Appeal.</p> <p>When the question of the renunciation or adoption by tbe receiver of a railroad of tbe leases of branch lines has been submitted to the court which appointed the receiver, and, after full investigation by a master and the submission to him of conflicting evidence bearing upon tbe question, has been decided by such court, its decision, being upon a question of business policy and not of law, and administrative rather than judicial in its nature, should not he disturbed by an appellate court, unless it appears that the discretion of the lower court was abused.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri.</p> <p>This is an appeal from a decree of foreclosure of a mechanic’s lien. The Springfield Milling Company, the appellant, is a corporation of the state of Missouri, whose principal place of business is at Springfield, in that state, where it owns and operates a flouring mill. The appellee, the Barnard & Leas Manufacturing Company, is a corporation of the state of Illinois, and its principal place of business is at Moline, in that state, where it is engaged in the manufacturing and sale oí plansifters and other machinery for mills. In December, 1892, the plansifter was a machine just invented for bolting flour, and the appellant was not familiar wiih it. It was a substitute for the reels which were generally used for that purpose, and which the appellant itself was then using. On December 29, 1802, the appellee contracted io remodel the mill of the appellant, to take out the reels, to supply the mill with plansifters and certain other machinery, and to put all this machinery in place and in operation in the mill. It guarantied “that the quality of the machinery so to be furnished will be such, when properly set up, connected, and operated, that it shall be capable of producing as good results as any other equivalent line of machinery, on the same kind and quality of wheat, and a capacity of 200 barrels in 24 hours"; “that said mill shall make a barrel of flour from 4 bushels and 30 pounds of No. 2 wheat, in standard grades of flour, as follows: Patent, 45 per cent,; extra fancy, 15 per cent.; low grade, 5 per cent.”; and that the mill “will he capable of producing flour, both in quality and yield, as good as that made in any other mill of same capacity using the same kind and quality of wheat and an equivalent line of machinery.” The appellee further agreed that in case the plansifter machines failed to produce the results guarantied by it, or in case, it failed to make them produce such results after a fair trial, then that it would remove them, or as many of them as were mutually agreed upon, from the mill, and replace them with a sufficient number of suitable reels. The appellant agreed to pay for the performance of this contract $500 in cash on receipt of the hill of lading of the machinery, $450 in cash in weekly payments during the process of placing the machinery in the mill, $1,655.53 when the mill had fulfilled the contract for "three consecutive working days, and $1,100 in three months, $.1,100 in six months, and $1,100 in nine months thereafter. It also agreed to transfer to the appellee certain old machinery then in the mill, to give notes for the $3,300 deferred payments, to secure these notes by a mortgage upon the mill and the land upon which it stood, and to pay all expenses of foreclosure and collection, including plaintiff’s attorneys’ or solicitors’ fees. Under this contract the appellee placed three plansifters and other machinery in the mill, and commenced to operate it on February 23, 1893. It would not fulfill the guaranties, and the Barnard Company required the' milling company to take out four pairs of rolls and have them made true. This the milling company did, and returned them to their places in the mill by March 11, 1893. Still the mill failed to fulfill the guaranties. The appellee then took out the three plansifters, and put in their place three of a larger size, and a reel, to increase the capacity and service of the mill. The mill still failed to fulfill the guaranties, and the appellee required the milling company to take out two more sets of rolls and have them made true. This was done about the 1st of June, 1893, and it was not until June 29th of that year that the milling company first made the three days’ test. The appellee then claimed that it had performed its contract. The appellant denied the claim. On August 1, 1893, the appellee exhibited its bill in this suit in the court below, in which it set forth the contract and alleged that it had complied with its terms; that the appellant became indebted to it in the sum of $5,007,47%, under the contract, on June 29, 1893; that it had filed its account in the office of the clerk of the circuit court for the county of Greene, in the state of Missouri, had verified it by affidavit, and had given a description of the property upon which the mill stood, as required by the statutes of Missouri, in order to establish a mechanic's lien; and that it had ernployed attorneys to foreclose this lien, whose services were worth $500; and it prayed for the adjudication of the indebtedness of the appellant, the establishment of its lien, and for such other relief as should he just and appropriate. The appellant answered this bill. In this answer it denied that the appellee had complied with the terms .of the contract. It alleged that the remodeled mill did not fulfill the guaranties made by the appellee; that it did not have a capacity of 200 barrels of flour in 24 hours, or any greater capacity than 125 barrels in 24 hours; that it would not produce a barrel of flour of the grades guarantied from 4 bushels and 30 pounds of No. 2 wheat, but required 4 bushels and 56 pounds to produce such a barrel of flour; and it set forth six other particulars in which it alleged that the Barnard Company had failed to fulfill its contract.</p> <p>On December 22, 1893, the appellant filed a cross bill in this suit, in which it set forth, in substance, the complaint and answer in the original suit, and alleged the making of said contract, and the failure of the appellee to comply with its terms, substantially as stated in the answer. It further averred that during the time the appellee was- attempting to complete the mill, and was experimenting with its new machines which it had placed in the mill, it had used and wasted a large amount of appellant’s wheat, of the value of $2,200; that the appellant was not familiar with the character of the plansifters, and the appellee was; that these machines, while running, have a powerful swinging and vibrating motion, which so racked and weakened the walls of the mill building that it was damaged in the sum of $2,000; that, if the guaranties of the appellee had been complied with, the mill wotfid have been worth $20,000, while it is now worth but $10,000; that the appellant was really not indebted to the appellee in any amount, hut the Barnard Company was indebted to the appellant in the sum of $14,200, hut lliat the appellee had nevertheless filed a claim of lien for more than $5,000 against the mill, and was a nonresident of the state, and without the jurisdiction of the court. The prayer of the bill was that the appellant might have judgment against the appellee for $14,200 damages, that the pretended lien asserted by the appellee against the property of the” appellant might be canceled, set aside, and ordered to be discharged of record, and for such other relief as should be right and just. A demurrer to the cross bill was overruled, and an answer was interposed, and then all questions of law and fact in the case were referred to a special master; who heard the testimony and reported that the appellee was entitled to recover the amount claimed in its bill, less $30 damages arising from its failure to furnish a flow sheet, and $50 damages on account of defective and leaky spouting furnished, and that for the balance of $4,888.39 for the machinery, and $500 for attorney’s fees, it was entitled to a decree of foreclosure of its mechanic’s lien, and of sale of the property of the appellant. The master also reported that lie had roa.de no finding upon the issues raised by the cross bill, because, in his opinion, there was no equity in the bill, and it should be dismissed. Exceptions were taken to the findings and conclusions of the master, but upon hearing they were overruled, the master’s report was confirmed, and a decree was rendered accordingly. The appeal in this ease challenges the rightfulness of this decree.</p>

The record in this ca.se discloses, in substance, the following facts: Some time during the month of September, 1892, the Midvale Steel Company entered into a contract with the Denver City Cable Railway Company (hereafter termed the “Railway Company”), whereby it agreed to make and furnish to the railway company a large steel gear wheel and pinion, for the price of $10,-500.

<p>JITS AGAINST RECEIVERS — ACTS OF PRIOR RECEIVERS — INJUNCTION.</p> <p>A receiver appointed by a federal court for a road formerly constituting part of a larger system is not liable to be sued in another court, without permission of the appointing court, for alleged wrongful acts committed in the operation of the road by the receivers of the whole system, whom he has displaced; and such a suit will be enjoined.</p>

<p>Measure op Damages — Breach or Contract by Carrier.</p> <p>Where the agent of, a connecting- carrier by mistake has giren to a shipper an unusually low rate on a special shipment, and the initial carriel-, without knowledge of such rate, breaks its contract of carriage by sending the goods over a different road from that mentioned in the bills of lading, so that the shipper is compelled to pay the usual rate of freight, the initial carrier is liable, because of the breach, only for such damages as might reasonably have been within the contemplation of the parties on making the contract, and not for the whole difference between the regular rate and the special rate, of which it had no notice.</p>

<p>Suit by F. Lewis Clark and others against the Great Northern Railway Company and others to enforce specific performance of a contract.</p>

<p>1.. Master and Servant — Wrongful Discharge — Measure of Damages.</p> <p>When suit is brought and trial is had before the expiration of the stipulated term of service to recover damages for a breach of contract by a wrongful discharge, the recovery cannot be for the whole amount of salary for the entire term, but only for tbe amount thereof to the date of trial, less such sum as plaintiff has earned, or might with reasonable diligence have earned, from the time of discharge to the time of trial.</p> <p>2. Same — Grounds for Discharge.</p> <p>The use by a salaried employe of a corporation pf insulting, disrespectful, or abusive language, to any officer or superior employe thereof, in connection with the duties of the former, or his refusal to obey, or his advising other employes to disobey, the orders of any superior, is good ground for discharging him.</p>

, In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio. The action below was brought by N. K. Fairbank & Co. against the Cincinnati, New Orleans & Texas Pacific Railway Company to recover damages for the loss of four tanks of oil alleged to have been destroyed while in transportation over the defendant’s railroad.

<p>1. Conflict of Laws — Action in Federal Court for Injuries in Another Country — Master and Servant.</p> <p>The right of an employe of a railroad company, injured in the republic of Mexico by the negligence of the company, to recover in a civil action damages for such injury under the law of that republic, may be enforced in a federal -court of the state of Texas having jurisdiction of the parties and of the subject-matter; that law being neither so vague and uncertain, nor so dissimilar to the law of the state of Texas, as to prevent It from being so enforced, and both parties being citizens of the United States.</p> <p>2. Same — Dissimilarity in Law.</p> <p>A dissimilarity between the law of another country and the law of a state, In the federal court of which it is sought to be enforced, will not prevent such enforcement, unless the dissimilarity is so great as to conflict with the settled public policy of that state.</p> <p>8. Same — Right to Sue Where Injury Occurred.</p> <p>The fact that a person injured by the negligence of a railroad company In another country might sue in that country Is not sufficient to prevent üm from suing in a United States court, particularly where the company owns and operates part of the same line of railroad In the state in which the suit is brought.</p> <p>4. Same — Res Judicata — Second Suit for Additional Damages.</p> <p>The provision of the Penal -Code of Mexico (article 306) that the required condition that the damages and injuries shall be actual “shall not prevent that the indemnization of subsequent damages and injuries be exacted by a new suit when they shall have accrued,” has reference only to damages for injuries that develop after the first suit.</p> <p>R Same — Matters Pertaining to Remedy.</p> <p>The fact that the law of another country provides for the recovery in a second suit of damages for injuries which develop after the first suit does not prevent the person injured from suing in a court of this country, in which all damages must be recovered in one suit, as that provision of the foreign law relates merely to the remedy, and cannot govern here.</p> <p>6. Same — Matters of Procedure</p> <p>The provision of the Penal Code of Mexico (article 313) that the judges “shall endeavor that the amount and terms of payment be fixed by agreement of the parties” relates merely to procedure, and not even to the remedy, and therefore does not control in an action in a United States court arising under the law of Mexico.</p> <p>7. Samis — Criminal Liability.</p> <p>The fact that acts of negligence for which the laws of Mexico give a civil remedy constitute also a (Time under the laws of that country does not prevent the person injured from maintaining a civil suit therefor in a United States court, the liability not depending on the criminal prosecution or conviction of the defendant.</p> <p>8. Same — Provisions Contrary to Policy of Our Law.</p> <p>The fact that the provision of the Penal Code of Mexico (article 323) that the judge may award, as “extraordinary indemnity,” any sum that he may determine, considering the “social position” of the person injured, is against the policy of our law, is no obstacle to a suit in a United States court to enforce a right given by the law of Mexico, there being no prayer for such extraordinary indemnity.</p> <p>9. Same — Want of Precedents in Foreign Country.</p> <p>The fact that the Mexican courts are not governed by precedent, and have no reports of adjudicated cases, is not an obstacle to an action in a United States court to enforce a right given by the laws of Mexico.</p> <p>10. Federal Courts — Decisions of State Court.</p> <p>The decisions of a state court that a law of another country is opposed to the policy of the state, and cannot be enforced there, are not controlling-in the federal courts, the question of international comity being controlled by international law and custom.</p>

<p>Equitable Assignment — Corporations—Unpaid Subscriptions.</p> <p>Defendants entered into a contract with the S. Co., hy which they agreed to surrender certain bonds of the S. Co. held by them as collateral to its demand note in consideration of an agreement by the S. Co. to pursue certain stockholders indebted to it on subscriptions, and use every effort to collect from them, by litigation if necessary, which should be conducted by attorneys selected by defendants, any sums collected to be received by the S. Co. for defendants, and paid to them, and any judgment to be assigned to defendants on request; all sums received by defendants to be applied on the S. Co.’s note. Held, that this contract constituted an equitable assignment of the claims against the stockholders to defendants, and in an action by the S. Co. against defendants to recover a sum paid to them by one of the stockholders against whom judgment was obtained as money had and received to the use of the S. Co., a statement of such contract constituted a sufficient affidavit of defense.</p>

<p>Action by Hughes county, South Dakota, against James A. Ward.</p>

These were actions on the case against the city of Chicago, brought by the Pennsylvania Company and the Yazoo & Mississippi Valley Railroad Company, respectively.

A l law. Action on the ease by lióse F. Wheeler, administratrix, against (diaries W. Smith, as receiver of the Atlantic; & Pacific Railroad Company. Defendant filed a jilea in abatement, denying jurisdiction.

<p>1. Jurisdiction of Federal Courts — Citizenship—Action by Next Friend.</p> <p>A next friend conducting a snit in behalf of an infant is not a party to the action, and his citizenship is not a test of the jurisdiction of the federal courts.</p> <p>2. Opinion Evidence — Master and Servant — Defective Machine.</p> <p>In an action in which one of the issues is whether the condition of a machine by which the plaintiff has been injured of itself warned plaintiff of danger, it is not error to allow a more experienced workman to testify as to whether he would have known the machine, in such condition, to be dangerous.</p> <p>8. Master and Servant — Defective Machinery — Evidence.</p> <p>When a witness is called for the purpose of showing that a machine, through which an accident has happened, is not absolutely safe, even when in perfect condition, it is not error to allow him to be asked, on cross-examination, whether he had ever known of such an accident through a perfect machine.</p> <p>4. Same — Contributory Negligence — Youth and Inexperience.</p> <p>In considering the question of contributory negligence, youth and Inexperience of a plaintiff are to be taken into account, and it is not error, in connection with proper instructions as to the obligations of the plaintiff, to direct the jury to make proper allowance therefor, nor to refuse a requested instruction which applies to the case of a minor, — a rule applicable where minority and inexperience are not factors.</p> <p>5. Same — Defective Machinery — Assumption of Risk.</p> <p>A defect in a machine and the risk in operating it when defective are not necessarily the same, and the risk may not be patent and obvious, though the defect is so.</p>

<p>Carriers — Limitation op Liability — Waybills—Question por Jury.</p> <p>Wlien a skipper of freight over a railroad has signed a waybill containing stipulations limiting the carrier’s liability which are not very plain, and are not so situated as to be plainly included within the terms of the contract, it is for the jury, in an action to recover for the loss of the freight, to determine whether the shipper understood, or ought, under all the circumstances, to have understood, that there was such a limitation of liability.</p>

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

Two actions heard together, the one by Consumers’ Cotton-Oil Company against E. J. Ashburn for the price of goods sold, and the other by E. J. Ashburn against the company for damages for breach of contract. • Verdict for plaintiff in the latter action, and judgment in his favor for balance due after deducting the amount sued for by the company, and admitted by him to be due.

<p>This case was heard upon the following agreed statement of facts:</p> <p>•‘By writ dated June 28, 1878, the partnership of Packer, Healy & Co. commenced a suit in the superior court of the commonwealth of Massachusetts, for the county of Suffolk, against the city of Chelsea and Albert R. Whittier; and on the 29th day of December, 1875, judgment was entered by said superior court in favor of-said Packer, Healy & Co. against said Albert R. Whittier, for the .sum of $2,729.95, damage, and $208.41, costs of suit. Said court had jurisdiction both of the parties and the subject-matter, and said judgment has not been reversed or annulled, except as herein stated. Said judgment has been satisfied only to the extent of $65.20. After verdict and before judgment, certain exceptions to the ruling of the said superior court in the trial of said case were taken by said Whittier, and duly allowed, and said exceptions were not entered in the supreme judicial court, and upon complaint said exceptions were overruled. The plaintiff in the present suit, Elisha A. Packer, was at the beginning of this suit, and still is, a citizen and resident of thé' state of New York, and is the sole surviving partner of said partnership of Packer, Healy & Co. The defendant in the present suit, Albert R. Whittier, was at the beginning of this suit, and still is, a citizen and resident of the state of Massachusetts, and is the person against whom said judgment was recovered. Exhibit A, hereto annexed, is offered in evidence by the plaintiff as an exemplified record of the judgment in said suit, duly certified and binding upon the court; but the defendant reserves the right to object to the admission of any parts thereof, though he admits that the copies are true copies of the original papers and records on file in said superior court relating to said suit. Exhibit B is a certified copy of the complaint to the supreme judicial court, and of the rescript of said court, and is offered in evidence so far as it may be material. The defendant Albert R. Whittier, on the 24th day of August, 1878, filed in the district court of the United States, sitting in bankruptcy for the district of Massachusetts, a petition to take advantage of the act relating to bankrupts, and on the 6th day of December, 1878, was duly granted his discharge. Said district court had full jurisdiction of the subject-matter and of the parties. The copies annexed hereto, marked ‘Exhibit 0,’ are true copies of the discharge, and of the papers and records on file in and of said district court, so far as they relate to said proceeding, and may be used in evidence, so far as material, in the same manner as the original. The firm of Packer, Healy & Co., named in the schedule of creditors, is the same firm which recovered judgment against said Whittier as aforesaid, and the indebtedness therein mentioned was the debt due upon said judgment. Each party reserves the right to object to the materiality of any of the facts, x’apers, or records hereinbefore mentioned. The foregoing are all the facts which either party claims are material to the issue; and from the above facts the court is authorized to draw such inferences as .a jury might draw, and to enter such order hereon as justice may require.”</p> <p>The exhibits above referred to,, and which are contained in the record, although not here set out, are made a part of the agreed statement of facts.</p>

<p>At the May term, 1896, of this court, Ricardo Rodriguez, a citizen of: Mexico, filed an application, in due form, hv which he sought to become a naturalized citizen of the United States. Two affidavits, embodying the essential requisites prescribed by the naturalization laws, accompanied the application, and also a copy of the affidavit made by the applicant, and filed in the county court of Bexar county, Tex., January 25. 1893, in which he declared his intention to become a citizen of the United States.</p> <p>At the hearing of the application, two attorneys of the court, Mr. A. ,T. Evans and Mr. T. -T. MeMlnn, appeared for the purpose of contesting the same, and filed a paper setting forth the ground of their opposition, of which the following is a copy: “Gome now the undersigned, as amici curise, and respectfully suggest to the court that the applicant, Ricardo Rodriguez, is ineligible to citizenship, for this, to wit: that he is not a white person, nor an African, nor of African descent, and is therefore not capable of becoming an American citizen, and of this they ask the judgment of the court.” In addition to the supporting affidavits filed with the application, the testimony of the applicant and J. G. Risk was taken in open court. From the proofs on fde it appears that the applicant is a citizen of Mexico by birth, having been born in the state of Guanajuato, about thirty-seven years ago. He Is a very ignorant and illiterate man, not being able to read or write either English or Spanish. Tie speaks the latter tongue as it is spoken by others of Ms class and humble condition in life. It appears from ids own statement that he traces his descent from neither the Spaniards nor Africans. As to color, he may be classed with the copper-colored or red men. He has dark eyes, straight black hair, and high cheek bones. He knows nothing of the Aztecs or Toltecs. He is not an Indian, and his parents informed him that he was a Mexican, and he claims to be “a pure-blooded Mexican.” To extract from the applicant what knowledge he possessed concerning himself, counsel propounded, among others, the following questions: “Q. Do you not believe that you belong to the original Aztec race in Mexico? A. No, sir. Q. I)o you belong to the aborigines or original races of Mexico? A. No, sir. Q. Where did your race come from? Spain? A. No, sir. Q. Where did your race come from? A. I do not know where they came from. Q. Does your family claim any religion? What religion do they profess? A. Catholic religion.” The supporting affidavits show upon their face that the applicant is “attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same.” The inability of the applicant, made manifest upon his examination, to explain the nature of those principles, may well be attributed to his illiteracy. The testimony of J. G. Fisk, in support of the application, is here inserted at length: “Q. I see by your affidavit that you aré acquainted with this applicant. A. Yes, sir. Q. And have been acquainted with him for how long? A, I couldn’t say exactly, but it has been in the neighborhood of ten years. Q. Well, do you know anything about his ancestry? A. No, sir; no more than judging by his appearance, and about what he had told me previously, — -that he was of pure 'blood. Q. I see that you make an affidavit in which you say he is of good moral character, and attached to the principles of the constitution of the United States. A. Well, I have known the man for a good while. Q. What reasons did you have for saying that he was attached to the principles of the constitution? What induced you to say that he was attached to the principles of the constitution of the United States? Did-you have any intimation that he had any knowledge of the principles of the constitution of the United States? A. Not exactly, but I know the man. I know that he is a good man, and know that if, whatever the principles of the constitution of the United States might be, that he would uphold them if he knew what they were. Q. You say that you have known him for about ten years? A. In the neighborhood of ten years. Q. Has he been a peaceable citizen? A. Yes, sir; a very good man. Q. A hard-working citizen? A. Yes, sir. Q. Any children — a man of family? A. A wife; no children. Q. Do you know what his occupation has been? A. He has been working for the city a greater part of the time; that is, working on the ditches, cleaning the ditches and river. Q. A man of good moral character? A. Yes, sir. Q. A good, law-abiding citizen? A. Yes, sir; to a remarkable degree.”</p> <p>As a member of the committee to whom has been referred by the court the application of Ricardo Rodriguez, a citizen of the republic of Mexico, to be granted final letters of citizenship, for an opinion touching the eligiblity of the applicant under the constitution and laws of the United States and the testimony offered in support of said application, I beg leave to submit the following preparatory observations, views, and conclusions in the premises, the same having been formed and arrived at without previous conference, consultation, or comparison with my associate brothers of the committee, deeming it more likely that conclusions thus independently reached would be more nearly correct than would those actuated, more or less, by a desire for mere unanimity, such as preconcert usually inspires:</p> <p>I believe I speak within a record for official action and public and official utterance when I suggest to this court that I realize the peril that confronts the free republican institutions of our country by a loose, indiscriminate — indeed, a criminally negligent — administration of our extraordinarily liberal and lenient naturalization laws. To say that the peril becomes more grave with eách succeeding year is to affirm that which must be apparent to every thoughtful, intelligent, and patriotic citizen, natural or naturalized. In fact, under a system of government where the people make, interpret, and execute the laws, their reasonable intelligence, education, and virtue are indispensable prerequisites to the preservation and transmission of civil liberty and republican institutions. Patriotism, in its highest and truest sense, in a republic, cannot exist unless resting securely upon this trio of cardinal qualities. It is true that a low form, or germ, of patriotism, that leads primitive man to defend his home, however humble or rude, may exist, and, under a monarchy more or less absolute, would suffice, without, the qualities referred to, in so high a degree, at least; hut where wise aiul just laws are to he framed to-day, to meet the complex existing conditions of a mighty republic, and to-morrow must needs be modified or repealed, to meet still more complex industrial, economic, or political changes, and yet avoid a conflict with organic state or federal law, It will readily he conceded that no graver responsibility rests upon jurist, legislator, or citizen of that republic than to see to it, within their several spheres, that the greatest practicable amount of intelligence, education, and morality is diffused among those who are charged with the tremendous responsibility of handing down to posterity, untarnished, our free institutions and best traditions, and, to this end, equally their duty to guard the “outer and inner door” of the sanctuary of American citizenship, lest those unworthy to wear it should enter.</p> <p>When our form of government is considered in connection with the duties and functions of citizenship therein, we will find a polar star by which we may he guided in our interpretation of every clause of our naturalization laws, where judicial Interpretation, legislative enactment, or'diplomatic recognition has left the same in doubt, if not in fact obnoxious to criticism. It is the right of each nation to establish the forms and requisites for the naturalization of aliens, and to determine what acts must be done in order to acquire the new nationality. To fix the conditions in accordance with which an individual may he admitted to form part of a society cannot he the attribute of any pov.er except the rules of such society, and it is, for the same reason, the natural and peculiar privilege of each nation to point out who may he naturalized, and by what means. Martin’s Case, before Mixed Commission on Mexican & American Claims Treaty of July 10, 1868.</p> <p>Citizenship may he acquired in one of the following ways, and no other: (1) By birth; (2) by compliance with our naturalization laws; (3) by constitutional amendment; (4) by collective naturalization, as where a country or province becomes incorporated in another country by conquest, cession, or free gift, and the treaty which ratifies such annexation usually provides for allowing the residents within the annexed territory a certain time within which io decide and take steps to preserve the nationality of his origin, and Urns to defeat naturalization by annexation. J. C. Bancroft Davis, 1 Phillimane Internal’. Law. p. 382; Pasch. Ann. Const. p. 222; 13 Ops. Attys. Gen. 397, Akerman. Illustrations of naturalization collectively or by treaty are found in the cases of those who were born in the colonies, or who resided here prior to 1776, and who adhered to the cause of independence. Again, in 1819 (October 241h) the inhabitants of Florida who adhered to the United States, and remained in the country, were by treaty of that date made citizens. All persons who were citizens of Texas at the date of annexation, December 29, 1848, became citizens of the United States by virtue of collective naturalization effected by the act of that dale. See [1871] 13 Ops. Attys. Gen. 397, Afeminan. So, likewise, were the citizens of California and other territory acquired by the treaty of Guadalupe-Hicialg’o on the 2d of February, 1848, and who remained and adhered to the United States (McKinney v. Saviego, 18 How. 239): and again, in 1854, all the Mexican citizens, inhabitants of Arizona, who adhered to and remained in the United States (10 Stat. 1035, art. 5); and, finally, all the free white or European inhabitants of Louisiana, and the creoles, of native birth, residing there at the time of the purchase from Napoleon First, and who remained in and adhered to the United States, and the descendants of all such were, by the treaty of April 30, A. D. 1803, made citizens (8 Stat. 202, art. 3). Nationality obtained in this manner, said the arbitrator, must he as sound and valid as that procured by individual specific compliance with the naturalization laws. In re Galetes Marnot v. Spain, United States and Spanish Commission under Agreement of February 12, 1871.</p> <p>While, it seems to be true that no treaty exists (that of 1868 having been rescinded, under notice from Mexico) by virtue of which the applicant may claim the right or privilege to become naturalized, yet these illustrations and authorities, together with others equally cogent, are of great importance as to the main question which is at issue in this case, viz. as to the eligibility of the applicant for naturalization, because of the ethnological feature involved in the case, or, in other words, because he is not a “white” man, and apparently belongs to the Indian or red race (nations of North and South America), and as going to show what interpretation or construction was placed upon our «¿turalization laws by the treaty-making power of the government, confessedly, as to a large class of inhabitants incorporated in our country by annexation, treaty, or purchase, and who were not, in the strict and narrow meaning of the term, of the white, or Caucasian, race.</p> <p>The cases of In re Ah Yup, 5 Sawy. 155, 1 Fed. Cas. 223, and In re Camille, 6 Fed. 256, have been cited, and are strongly relied on in support of the proposition that the white, or Caucasian, and negro, or African, race, alone are eligible to citizenship under the statute of February 18, 1875. In the former (which is much the ablest and best-considered ease of the two) this principle is not asserted by implication, much less distinctly enumerated, but the decision is clear and emphatic that the Chinese or Mongolian was intended expressly to be excluded by congress when the whole question was under discussion, in 1869-70, on Senator Sumner’s amendment to strike out the word “white” from the naturalization law, that had been omitted after the adoption of the thirteenth and fourteenth amendments, and subsequently inserted under the revision of the statutes by section 2169 of the act last above referred to.- The debates attending the passage of an act are, by well-settled canons of construction, an infallible guide to determine the legislative intent; and these leave no shadow of doubt touching the race that was intended to be denied the boon of American citizenship, and what was the motive that prompted the American congress to deny that privilege to that race, — unquestionably the same that actuated the congress to insert the word “white” in the first instance, viz. the fear of interference with the unrestricted operation of slavery, by giving the large number of Africans that were then being imported an opportunity to become American citizens. So it refused to strike out the word “white,” even to allow the negro the benefit of citizenship, — the most natural mode, — but decided, by separate provision, that the naturalization laws should apply to Africans and persons of African descent. The fear of Mongolian citizenship arose from considerations of the highest national policy. That race was not only alien in color, but was, in all things that render possible a sound citizenship, the very antipodes of the Anglo-Saxon or even native American races. His total inability to assimilate with our people in them laws, customs, institutions, or religion, or even to suffer his acquisitions to go into the general store of national prosperity; his idol worship; his mode of living; his very vices; and, lastly, the countless myriads who stood hovering on the shores of the Chinese waters, ready and anxious to swarm upon us, like the Goths and Huns upon ancient Borne, — were a menace that it would have been unpatriotic and unwise in the extreme to have disregarded; and yet, when the word “white” was first inserted, no such danger confronted us, nor was anticipated, and it was solely intended to meet the then solely existing danger or evil of African citizenship, possibly of the numerous tribes of Indians in their wild or tribal state. The term “Caucasian,” while used and commonly understood to embrace only the white races, is now abandoned by all acknowledged writers on ethnology as too restricted a term to embrace all those races who first peopled and flourished on the shores of the Mediterranean, and erroneously supposed to be a pare Caucasian stock. The term now applied is “Mediterraneans.” These are now scattered over the whole world, and, as a species, have no equal, physically or mentally. The skin is, as a rule, of a light color, but appears in all tinges from pure white or a ruddy white, through yellow and yellow brown, to dark and even black brown. Their species are divided into four races, connected only by the roots. Two of these races, the Basques and Caucasians, are represented by only very small remnants. The Basques formerly inhabited the whole of Spain and south of France, but now dwell near the northern coast of Spain, at the foot of the Bay of Biscay. The Aztec, Indian, or copper-colored races have been for over 350 years amalgamating, assimilating, and incorporated with the Spanish and Basque stock -who subjugated these original peoples. Their tribal or wild state has been for centuries abandoned. Under most adverse conditions, they have displayed an ability io advance modern Christian civilization along the lines of its best traditions,— truly ro/mirkable when those conditions are considered. The first really great stop forward and blow struck for liberty and free government in Mexico was by Hidalgo and Inanez, both of pure Indian or Aztec stock; and to-day one of the most enlightened, progressive, and ablest rulers of this or any other age occupies tlie presidential chair, in whose veins runs morn of the Aztec or Indian strain than of the Spanish or Caucasian. Those instances, however, can be multiplied beyond number. What is tree of the ability and aptitude of the Aztec or native races of Mexico to assimilate the ideas in government, morals, progress, political economy, social and domestic regulations, and, above all, our religious codes, is equally true of many of the races of North American Indians. If the American people, as a whole, have faith, as they do, that in time the African or negro will prove io be a. stock on which can be grafted an excellent, if not the best, type of American citizenship, surely the evidence:; are not wanting that equal or greater possibilities exist in a race who, in religion, war, statesmanship, letters, science, music, art, painting, have shown so many and such conspicuous examples. Add to this the fact that no legal ban'tors exist to the union or mingling of the whites of either country and native Mexican races, and the further fact that, among the comparatively few who might seek citizenship, not a sufficient number apply to make any appreciable effect upon our institutions as a nation, and it will be conceded that no analogy exists, in the very fundamental nature of things, between the exclusion of the Mongolian and the proposition 1o exclude a citizen-of Mexico, not living in a wild or tribal state, and who for many years has resided among us, subject and obedient to our laws. In my judgment, the highest test, looking to the preservation and transmission of civil liberty and free republican institutions, that can and that ought to bo applied to races, — other than 1 lie Mongolian, whose ineligibility is settled, — of their eligibility to American citizenship, is stated in the pregnant language of the statute itself, viz. that “he is a man of good moral character, and that he is attached to the principles of the constitution of the United States, and that he is well disposed to the good order and happiness of the same.” “s‘ ® * In these words are written the whole law and the prophets.” This involves a reasonable and fair knowledge of the general outlines of our form of government and republican institutions; i. e. the right of irial by juiy, elective, franchise, subordination of the military to the civil authority, immunity from search, seizure, attainder, or confiscation, save as authorized by law. ft involves intelligence to that extent, for how, otherwise, could the applicant swear to an attachment to what he is ignorant of, or be well disposed to the good order and happiness of a country, the rudiments of whose institutions he was densely ignorant of? It is admitted that the Case of Camille, before referred to, is in point adversely to the eligibility of an Indian: but it is respectfully submitted that the case bears not the slightest evidence of having been well considered, and abounds in inaccuracies as well. If or instance, it avers that the court, in Ah Yup’s Case, before alluded to, declared that “the words ‘white person,’ as used in the naturalization laws, mean a person of the Caucasian race,” etc. That case (Ah Yup) simply decides that a Mongolian is ineligible, and concludes as follows: “It was intended to exclude some classes, and, as all white aliens and those of the African race are entitled to naturalization under other words, It is difficult to perceive whom it could exclude, unless it be the Chinese.” Again, the learned judge wholly and erroneously ignores the accurate and restricted sense in which the term “Caucasian” is used by ethnologists, when he says: “One using the term ‘white person’ would intend a person of the Caucasian race.” The most serious criticism, however, to which that decision is obnoxious, a.n<i that which to my mind discloses the fact that the learned judge fully realized that the construction which he gave, and fancied had been given also by Judge Sawyer, in Re Ah Yup, had led to an illogical and most inconsistent conclusion, is shown by the following language: “From the first, our naturalization laws only applied to the people who had set tied the country, — the Europeans or white race, — and so remained until 1870, when, under the pro-negro feeling, generated and inflamed by the war with the Southern states, and its political consequences, congress was driven at once to the other extreme, and opened th< door, not only to persons of African descent, but to all those of ‘African nativity,’ thereby offering the boon of American citizenship to the comparatively savage and strange inhabitants of the ‘Dark Continent,’ while withholding it from the intermediate and much better qualified red and yellow races.” The court then assumes that this “inconsistency” was due to congress indulging in “buncombe,” and being under no apprehension that the natives of Africa would avail themselves of the “boon”; but it is respectfully submitted that these are violent assumptions to excuse or assume so grave inconsistency.</p> <p>In Elk v. Wilkins, 112 U. S. 94. 5 Sup. Ct. 41, a very elaborate, learned, and able presentation of some of the questions we have been considering is made by the supreme court of the United States, Justice Gray delivering the opinion. In that case. Elk sued Wilkins, registrar, for refusing to register him as a voter in Omaha. He alleged that he had “severed his tribal relations with the Indian tribe to which he belonged,” and “had fully and completely surrendered himself to the jurisdiction of the United States,” and declared that, by virtue of the fourteenth amendment (he having been born in the United States), he was a citizen of the United States, and entitled to the rights and privileges of a citizen. A demurrer to the petition was sustained. Plaintiff electing to stand by his pleadings, a writ of error was sued out. I do not deem it necessary, for the purposes of this discussion, to follow that opinion throughout its lengthy reasoning, because It is wholly unnecessary to a clear perception of the proposition upon which this case turns, but I will only quote such portions as will substantiate and enforce those propositions, and the inevitable deductions therefrom, which are: (1) That the word “white” was inserted in our naturalization laws in the beginning wholly to exclude the negro from citizenship. (2) It was subsequently omitted when danger from this source no longer existed. (3) It was inserted again when the laws were revised, when the new danger from hordes of Mongolians on our Pacific border confronted us; and (4) when political conditions seemed, in the opinion of the party in power, to demand it, the amendment to strike it out was defeated expressly to exclude that race, and the African was specially excepted from its operations, from which we deduce the following: That the question of eligibility of an Indian depends not on his color, but (1) whether there are treaty stipulations that make him a citizen, or by compliance with some of its provisions he may become one; or (2) whether he has abandoned his tribal relations, and become subject to the jurisdiction of the United States, and been recognized and accepted by the state or United States as such, and makes application under our law to be naturalized.</p> <p>We think we might safely rest the ease with the ethnological question before referred to, as to the strictly proper classification of the descendant of an aboriginal inhabitant of Mexico, whose ancestors had been, politically and religiously, incorporated for over 300 years with one of the proudest, 'finest, and purest scions of the true Caucasian race. — the Spaniards and their fellow countrymen, the Basques, — during which time even their very language has been lost, and their blood so freely intermingled with the pure stock of either that the fair, blue-eyed Castilian, or tawny, low-browed, straight coarse haired Aztec, is seldom met with. One might as well affirm, almost, that prior to the restoration of Alsace and Lorraine to the Fatherland, from which they had been forcibly torn 300 years before, those provinces were aught else but French in any essential particular. As well say the Normans left no indelible impress or modification upon the laws, customs, religion, and institutions of the Saxons. All history points with unerring fingers to the inevitable fading away of every lesser and ruder form of civilization when brought in contact with that great dominant Latin race, whether Caesar, Charlemagne. Columbus, Cortez, Pizarro, or Napoleon marched at the head of their conquering legions, as it points with equal unerring certainty to the fact that the Anglo-Saxon has carried his language, his laws, his customs, his progress, and his institutions to every quarter of the globe where floats his flag. I repeat, I think it might be safely left to the broad principles involved in these considerations, rather than to a hairsplitting, technical, and meaningless consideration of who are meant by “white people,” save such as we know are excluded by express judicial interpretation and legislative intent, and those expressly declared to be excepted from that interpretation. The spirit of the law must he present, whatever may be its letter, else we may have no flavor in its meat, or saving grace in it.</p> <p>But, recurring to the decision last alluded to. the court says (page 100, 112 U. S., and page 45, 5 Sup. Ct.): “Chief Justice Taney, in the passage cited for the plaintiff from his opinion in Scott v. Sandford, 19 How. 393 — 404, did not affirm or imply that either tito Indian tribes or individual members of those tribes had the right, beyond other foreigners, to become citizens of their own will, without being naturalized by the United States. His words were: ‘They (the Indian tribes) may, without doubt, like the subjects of any foreign government, be naturalized by the authority of congress, and become citizens of the state and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an immigrant from any oí her foreign people.’ ” Again, on same page, the court, says: “The alien and denondent condition of the members of the Indian tribes could not be put off at their own will, without the ad io-n or assent of the United States,” and it is this reason — i. e. failure to recognize in some manner, by the state or United States, this act of subjection to its authority or jurisdiction — -that was the basis of the court’s action in sustaining the demurrer to the plaintiff’s petition. They were never deemed citizens of the United States except under explicit provision of treaty or statute to that effect, either declaring a certain tribe, or such members of it as cliose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on applications to a court of the United Slates for naturalization and satisfactory proof of fitness for civilized life. See, for examples of which, treaties, in 1817 and 1835, with Cherokees, and, in 1820, 1825, 1830, with Choctaws; Wilson v. Wall, 6 Wall. 83: Ops. Attys. Gen., Taney: Karrahoo v. Adams, 1 Dill 344, 346. Fed. Cas. No. 7,614: Acts Cong. March 3. 1839, c. 83, § 7, concerning Brothertown Indians; and other authorities there cited. The court further says that, though plaintiff alleges that he had fully and completely surrendered himself to the jurisdiction of the United Stales, he does not allege that the United States accepted his surrender, or that he has ever been naturalized or taxed, or in any manner recognized or treat «I as a citizen by the state or by the United States. I apprehend that the converse of this proposition would be that, had this allegation been made by Elk, his right to citizenship would not have been questioned by the court, regardless of his color.</p> <p>Is there, then, anything in the la w, or in this decision, or in the underlying reasons therefor, which raises a presumption or inference that while an Indian born here may he naturalized or otherwise become a citizen, despite his color, yet, if he be born in Mexico, South America, or Canada, he is ineligible on 1lmt account? I confess T see no shadow of reason for any such assumption, either in the law in its underlying principles, or in Ihe conditions that confront the country to-day. Every danger, real or imaginary (and 1 concede that there is a serious danger to our institutions from the loose and indiscriminate administration of our naturalization laws), can be amply remedied by a sensible, logical, and yet plain, interpretation of their several provisions, and a rigid enforcement of them, without such an illogical one as is sought in this instance. That interpretation has been outlined in the first stages of this opinion. There is no shadow of a doubt that the safety and welfare of our government, its people and institutions, depend largely on those charged with granting citizenship, whether by treaty, constitutional amendment, legislative enactment, or through the medium of the courts, to see to it that all who seek admission to our political family should have a fair knowledge or understanding of our form of government, its basic structure and underlying principles. as hereinbefore specified, of his general rights, duties, and privileges as a citizen. If it be contended that to acquire even that rudimentary knowledge would involve several years of study, reading, or observation, and perhaps more or less knowledge of the English language, I reply: (1) The American youth, though generally of rare intelligence and clear perceptions and knowledge upon this and kindred subjects, is denied the rigid: to vote, hold office, or sit on a jury, before he is 21 years old; (2) that a man born here has the advantage of inherited love of the country, its traditions and institutions, all of which must take time to acquire by one raised to manhood under another flag, other laws, customs, and ties of a numberless character. Can he complain justly, then, that before we exact his allegiance in war, and trust to, his wisdom in peace, to assist us in framing laws that have taken centuries to. crystallize, and to preserve and transmit our sacred traditions and free institutions to posterity, — in short, to help govern this great people, — he shall, at least, have a fair knowledge of these principles which he is swearing to sup-, port, and that he is attached to? Shall we suffer him to take a meaningless oath? Is it unfair to insist that he shall stand in this respect approximately where the great mass of native-born American youths stand before they — our sons and brothers — are suffered to participate in governmental affairs? Tens of thousands of citizens of Texas are excluded from jury service under our educational qualifications. The civil service rules exclude hundreds of thousands of bright, brainy, deserving American youths and maidens from lucrative and needful emxfioyment, all of which require a fair knowledge of geography, history, mathematics, our form of government and its general principles, and yet good citizens rejoice at the placing of our governmental affairs on a higher plane than heretofore. So self-evident do these propositions appear to my mind that I am tempted to declare that no patriotic American citizen of barely average intelligence, whether native born or naturalized, will raise a voice in opposition thereto. Whence, then, comes the protest when the voice of sturdy American patriotism is lifted in warning to his fellow countrymen to check the evils alluded to? From the political trickster and demagogue alone.</p> <p>If the reasoning herein is sound, the conclusion is inevitable that the applicant, Bodriguez, admitting that he is clearly shown by the testimony to be of Indian origin or extraction, of whole or part blood, but conceding that he has severed his tribal relations, and is a citizen of Mexico, is eligible; but, so far as the evidence discloses, it does not appear to my mind that he has even a fairly approximate knowledge of the form or general structure of our government, of any of the rights, duties, or privileges of a citizen thereof, and hence it is impossible for him to swear either intelligently or conscientiously that he is “attached to the principles of. the constitution” of the United States, or “well disposed to its good order and happiness.” This, however, is a fact upon which the court must be “satisfied,” in the language of the statute; and the degree of intelligence that is requisite is a question that must appeal to the individual judgment of the judge.</p> <p>I beg to express my regret that, owing to absence due in part to sickness in my family, to a futile effort to obtain originals of debates, treatises, reports, and documents that bear on the question involved, much of the time allotted by the court has slipped away; and I have at last been unable to systematize and present in a logical manner such observations and conclusions as I have reached, not even to make a redraft of them, to eliminate repetitions, or render more perspicuous that which I fear has been often somewhat crudely expressed; but my object has rather been to attack the apparent and too literal interpretation of the law, — its raison d’étre, — and merely to quote authorities in so far- as they clearly bore on this phase of the question, and to invoke the court’s serious and thoughtful consideration of that which it seems to me beyond cavil' to be the great pivotal point upon which the admission to American citizenship should depend, feeling confident that the trained legal mind of the court will as quickly grasp any suggestions worthy of its attention, though deficient in grace, elegance, or force of expression, and even segregated from their logical or proper sequence, as though all had been pearls of thought strung in their- proper proportion. All of which is respectfully submitted.</p> <p>The facts ,succinctly are: (1) Bicardo Bodriguez filed, in accordance with the law, his declaration of intention to become a citizen of the United States of America, on the 25th day of January, A. D. 1893, with- Thad W. Smith, county clerk Bexar county, Tex. In this declaration it is shown that he was then 35 years of age, a natural-born subject of Mexico, born in Villa d'e Hijules, and arrived in Port Laredo February 15, 1883. (2) His application for final papers was filed in the United States circuit court, in and for the Western district of Texas, at San Antonio, on May 11, 1896, and was'in due form. Accompanying this application are the affidavits of L. G-. Peek arid Lorenzo Galvan, to the effect that the applicant has resided in the United Siates for more than five years, and has behaved as a man of good moral character, is attached to the principles of the constitution of the United States, and is well disposed to the good order and happiness of the same. (3) At the hearing of this application it was proved that the applicant was bom in Ojuelos, ilex., and had been there and in Lampasos, Mex., prior to coming to San Antonio, Tex., some 13 years ago. His father’s name was - Rodriguez, and his mother’s name was Petra Hernandez. They were both bom and lived near Ojueles, in the state of Guanajuato, Mex. They were of Mexican parentage, and he never heard of them speaking any other language, or of having come from any other country. His parents told him he was a Mexican. The applicant staled that; he wished to become a citizen of the United States, because he lived here. He knew nothing about the constitution or laws of the United States, nor did he know how it was governed, nor could he read or write in any language. He knew the name of the president of 'Mexico, having seen his picture. He did not know the name of the president of the United States. He believed that Texas was a state, but did not know the name of the governor. He stated he was -a pure-blooded Mexican, having neither Spanish nor African blood in him. The applicant, has dark eyes, straight, black hail', chocolate brown skin, and high cheek bones.</p> <p>The conditions to naturalization are: (1) The constitution (article 1, § 8, cl. 4) gives to congress the power “to establish an uniform rule of naturalization”; and section 2165, Rev. St. U. S., declares: “An alien, being a free white person, may be admitted to become a citizen of the United States in the following manner, and not otherwise”: (1) By declaration of his intention, etc. (2) By declaring his support of the constitution, etc. (3) By proving five years’ residence, etc., moral character, attachment to the principles of the constitution of the United States, and well disposed to the good order and happiness of tlie same. Section 2169, Id., declares: “The provisions of this title shall apply to aliens (being free white persons, and to aliens) of African nativity, and to persons of African descent.” 18 Stat. 318 (Act Feb. 18, 1875).</p> <p>Application of the Requirements to the Facts in This Case.</p> <p>The applicant has complied with all the requirements, and is entitled to citizens])!]», unless defeated: (1) Because he is not a free white person; (2) because of his ignorance of the principles of the constitution of the United States of America. In re Kanaka Nian (Utah) 21 Pac. 994. The amendment of 1875, limiting the right of naturalization io free white persons (and Africans, not involved In this case), restored the restrictions found in the old statutes, These words must, be held to have their natural and ordinary moaning, and. fortunately, we are not left in doubt as to their significance, for this statute has come raider repeated judicial scrutiny, and these words are definitely construed. On April 29, 1878, in the case of In re Ah Yup, 1 Fed. Cas. 223, Mr. Justice Sawyer said: “As ordinarily used in the United States, one would scarcely fail to understand that the party employing the words ‘white person’ would intend a person of the Caucasian race.” On November 2, 1880, in (he «¡se of In re Camille, Mr. Justice Deady, 6 Fed. 256, after quoting from the oidnion in the Ah Yup Case, used this language: “In all classification of man kind hitherto color lias been a controlling circumstance, and for this reason Indians have never, ethnologieally, been considered white persons, nor included in any such designation. From the first our naturalization laws only applied to the people who had settled the country, the European or white race.” And these cases were approved by Mr. Chief Justice Zane, of the supreme court of Utah, on June 7, 1889, in the Case of Kanaka Nian, a native of Hawaii, reported 21 Pac. 993. Mr. Justice Colt, on June 24, 1894, in the ease of In re Saito, a Japanese, reported in 62 Fed. 126, said: “These words were incorporated in the naturalization lays as early as 1802. At that time the country was inhabited by three races: The Caucasian, or white, race; the negro, or black, race; and the American, or red, race. It is reasonable, therefore, to infer that when congress, in designating the class of persons who could be naturalized, inserted the qualifying word ‘white,’ it intended to exclude from the privilege of citizenship all alien races except the Caucasian.” In the Deportation Cases, 149 U. S. 698, 13 Sup. Ct. 1016, the Ah Yup and several of the above eases are cited with approval by the United States supreme court. See, also, U. S. v. Perryman, 100 U. S. 235; Lynch v. Clarke, 1 Sandf. Ch. 583; Chirac v. Chirac, 2 Wheat. 259; Elk v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41; Nevada v. Ah Chew, 16 Nev. 50; 9 and 13 Ops. Attys. Gen.; 5 Myer, Fed. Dec. “Citizenship,” 829 (1 Fed. Cas. 223); U. S. v. Rhodes, 1 Abb. (U. S.) 28, 27 Fed. Cas. 785. These latter authorities we have not examined. U. S. v. Ritchie, 17 How. 525, is an interesting case, showing who are citizens of ¡Mexico. Its population is composed of several races.</p> <p>Under these authorities, the applicant is not entitled to naturalization, unless he is of a Caucasian, or white, race. His appearance indicates that he is a descendant of the original races of Mexico. To determine to what races these people belong, we have examined the following authorities: According to E. B. Tylor, author of the article on “Anthropology,” in 2 Enc. Brit. p. Ill, the popular terms describing white, yellow, brown, and black races, which often occur in ancient writings, are still used. But, for scientific purposes, greater accuracy is required. This is obtained by Dr. Brocas’ table, by which “the varieties of the human skin may be followed from the fairest hue of the Swede, and the darker tint of the Provencal, to the withered leaf brown of the Hottentot, the chocolate brown of the Mexican, and the brown black of the West African.” In discussing Blumenbach’s division (Caucasian and Malay), he says: “The ill-chosen name of ‘Caucasian,’ used by B-to denote what may be called ‘white men,’ is still current. It brings into one race peoples such as the Arabs and Swedes, although these are scarcely less different than the Americans and Malays.” By “Americans” here is meant the aborigines of this continent, who clearly, in his opinion, constitute a distinctive race from the Caucasians, or whites.</p> <p>It seems, then, that, by the scientific classification, the applicant is not a white person. He certainly is not in the sense in which these words are commonly used and understood in the every-day life of our people. Hence, under the rule placing the burden upon the applicant to show his eligibility to citizenship, we are of the opinion that his application ought to be refused. And, incidentally, we are of the opinion that, if .he were a white person, his utter ignorance of the principles of our constitution would defeat his application.</p> <p>Admitted and proven facts: Applicant is a native-born person of Mexico, 38 years old, and of pure Aztec or Indian race, one of the races found in Mexico when conquered by Cortez, in 1519; came to the United States before 1883, and in that year made his first declaration of intention, and now offers his final declaration, in due form of law, and supports his declaration by two witnesses.</p> <p>As a fx-iend of the court, I challenge the right of the applicant to become a citizen of the United States, on the ground that he is not a man or person entitled to be naturalized under the laws of the United States. Laws Cong. “To establish an uniform rule of naturalization.” Const. U. S. art. 1, § 8, cl. 4. “That any alien (being a free white person) may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise.” Act April 14,1802. The act of July 17, 1862, extended natux'alization to soldiers in the army and navy, but did not otherwise change the law. “The xxrovisions of this title [“Naturalization”] shall apply to aliens (being free white persons), and to aliens of African nativity, and to persons of Afx-ican descent.” Act 1870. The above are the acts of congress in force on the subject; and if the applicant is an alien, and a free white person, or of African nativity or descent, then he is entitled to natxxralization. It is confessed that he is an alien, but it is denied that he is a “white person,” in the eyes of the acts of congress, or an African, or of African descent. The, applicant is a native Mexican. Mx\ Dana, in his'American Encyclopedia, published in 1876 and 1881, says: “The popixlation of Mexico comprises about six million Indians of unmixed blood, nearly one-half of whom are nomadic savage tribes of the mountain districts of the north; about five million whites or creoles, chiefly descended froxn the early Spanish colonists; perhaps twenty-five thousand Africans or hybrids, possessing some negro blood, whether mixed with the European or the Indian element; and the Mestizos, or half-breeds, derived from the anion of the whites and Indians,” “Of the Indians, there are thirty-five tribes,” etc.</p> <p>Now, it is clear from the evidence of Mr. Fisk in this case, and from the appearance of the applicant, that he is one of the (>,000,000 Indians of umuixod blood, named above, and most probably a member of one of the 35 tribes above, if so, is he a “white person”? If an Indian, he cannot be naturalized. Elk v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41; Rev. St. U. S. § 2169. “This section does not include Indians.” See 7 Ops. Attys. Gen. p. 746; In re Camille, 6 Sawy. 541, 6 Fed. 256; 2 Kent, Comm. p. 72; Lynch v. Clarke, 1 Sandf. Ch. 583; 9 Ops. Attys. Gen. 373. Something has been said about naturalization or extending the right of naturalization by treaty. I opine no treaty can be found with Mexico that makes her citizens citizens of the United States, or that extends to her citizens the rights of naturalization when they come to (lie United States, for the simple and cogent reason that the power of naturalization is in congress, and not in the treaty-making power; i. e. the president unci the senate. Judge Deady, in a single sentence in the case above cited (In re Camille), settles that question when he says; “The power to say when and under what circumstances aliens may become citizens belongs to congress.” The last act of congress on the subject, that of adding the African and his descendants “to free white persons,” was passed in 1870, and I know of no treaty with Mexico since that date affecting our naturalization laws. If such a treaty did exist before that date, it is wiped out by tiie act of 1870, which covers the whole ground. The most probable account of the origin of the aborigines of Mexico is that they are of Asiatic or Mongolian descent, and “erossed from Asia to America by a chain of islands, which in the remote ages stretched at 1he north from the shores of the eastern to those of the western, continent.” 11 Dana, Am. Enc. art. “Mexico.” The questions here raised have no political significance whatever, for five reason that the state of Texas, in her sovereign capacity, determines who shall or shall not vote, and Texas, if she chooses, can make the wildest Indian of Mexico a voter upon one hour’s arrival.</p> <p>Mexicans eligible: (1) Zavala and other patriots; (2) sons, descendants of patriots; (3) Mexicans, residents on Independence Day; (4) descendants -of such residents; (5) Spanish, Caucasian Mexican citizens. Mexicans ineligible: Excepting abovp, all Mexicans. Because, first, the Texas revolution was fought to get rid of the “Mexican people,” who, in the declaration of independence, were declared to be “unfit to he free, and incapable of self-government.” See Declaration of Independence. Because, second, at the first convention, in 1835, it was held that “all free whites and Mexicans opposed to central government” should vote. See Brown’s Hist. Tex. 445. Because, third, Sam Houston wrote to Gov. Smith, January 17, 1836: “1 have no confidence in them.” Because, fourth, the Mexican, a genuine Mexican, is an Indian, a Mexican Indian; and Indians are ineligible. Nevada v. Ah Chew, 16 Nev. 50, 61: 1 Internat. Dig. pp. 344-563; 9 Ops. Attys. Gen. p. 356, Black: Rev. St. U. S. § 2169; In re Ah Yup, Myer, Fed. Dec. “Citizenship,” p. 829, 1 Fed. Cas. 223: In re Camille, 5 Myer, Fed. Dec. 827, 6 Fed. 256: In re Kanaka Nian (Utah) 21 Pac. 993. Because, fifth, it was not ever politically contemplated by the United States that Mexicans should become citizens. Opponents of the Mexican war in congress charged the Democrats with the intention of introducing to eitizenshp a foreign, alien, and antagonistic class of people, incapable of self-government. Senator McDuffie denied that • charge. Globe, vol. 14, p. 335. And U. S. Foote, answering Dayton, said: “No sane man of practical intellect would think of intrusting them [Mexicans and Indians] with American citizenship.” Globe, vol. 10, p. 127. John O. Calhoun said, January 4, 1848: They “were incompetent to become Republicans.” “They cannot govern themselves. Shall they govern us?” Sam Houston (1850). in the senate, said: “A proposition to extend suffrage to Mexicans would involve the greatest responsibilities.” Because, sixth, the treaty of Guadalupe-Hidalgo excludes the Mexicans, and was so understood by Mexican diplomatists. See Extr. Sess. Senate, pp. 19-27. The proposition and desire of Mexico, not accepted by United States, is found on page 48. Letter sent to Buchanan (page 171) expresses fear of those people becoming citizens. See Hex. Project, pp. 341-343.</p>

<p>This was an application by Ira Moore for a writ of habeas corpus.</p>

<p>Upon Writ of Ha boas Corpus. Submitted on petition, return, reply, and evidence.</p>

Libel for Forfeiture. Intervention. On petitions by Société Fabriques de Produíts Ohimiques de Thann et de Mulbouse, owner of United States letters patent, for leave to intervene in forfeiture proceedings for its interest in the res, the following facts appeared: These proceedings were begun by the government for the forfeiture of two cases of chemical compounds for fraudulent undervaluation.

<p>t. Costs in Equity — Apportionment.</p> <p>A plaintiff! is not to be refused costs merely because he may not have recovered all that he has in good faith and with reasonable prudence supposed himself entitled to.</p> <p>2. Same — Patent Suits.</p> <p>Where three patents were sued on, and two were held valid and infringed, but as to the third it was found that infringement had not been fully made out by a preponderance of evidence, held, that plaintiff would not be denied full costs, especially as there had been no attempt to discriminate sharply the infringements of the third patent from the others.</p>

<p>Customs Duties — Classification—Coal-Tar Product.</p> <p>The merchandise known as “coal-tar product,” or “dead oil,” is not dutiable under the provision for “products known as distilled oils” in paragraph 60 of the act of August 28, 1894, but is entitled to free entry under paragraph 443, as a product of coal tar not a color or dye, and not specifically provided for.</p>

This was a suit in equity by the Michigan. Stove Company against the Fuller-Warren Company for alleged infringement of certain patents for improvements in stoves. , 1 . The bill alleges infringement of two letters patent owned by the compla ihant: (1) Mechanical patent, No. 368,770, for improvement in stoves, granted to William J. Keep, August 28, 1887; and (2) design patent, No. 18,190, for heating stove, granted to William J. Keep and Charles Wipfler, March 21, 1888. First.

This was a suit in equity by William Roemer against T. B. Peddie & Co. for alleged infringement of two patents for bag or -satchel frames.

<p>Patents — Preliminary Injunction-Violation of Aorekmf.nt.</p> <p>A preliminary injunction will not be issued to prevent the alleged violation of a contract liy tlie manufacture of a certain kind of article, where the affidavits show that it will be contended at the trial that the construction of the written contract depends upon the intention, to be gathered from the surrounding circumstances, and the conduct of the parties before and after execution of the contract, which questions cannot bo satisfactorily determined upon the affidavits.</p>

<p>This was a suit in equity by the Consolidated Safety-Valve Company against the Ashton Valve Company and others for alleged infringement of a patent for an improvement in steam safety valves.</p>

This was a suit in equity by Edmund S. Hunt against Thomas Archibald and others for alleged infringement of a patent relating to firecrackers.

This was a suit in equity by Kelson W.- Green against the city of Lynn for alleged infringement of two patents. The cause was heard upon complainant’s claim in respect to the taxation of costs.

<p>Patents — Validity and Inbbingbmbnt — Eye Shields.</p> <p>The Lamb patent, No. 540,746, for an improvement in eye shields, whereby the device is made to cover, protect, and practically inclose a considerable portion of the face adjacent to the eyes, without obstructing the vision in any direction, discloses a patentable, though somewhat narrow, invention.</p>

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

This appeal is from a decree of the circuit court for the Northern district of New York which dismissed the appellant’s bill in equity for an alleged infringement of letters pateuf No. 259,416, dated June 13, 1882, and issued to Edward B. Munson and Harvey S. Munson for an improvement in the manufacture of paper boxes.

This was an appeal by A. J. Cloete from a decision of the board of general appraisers affirming the action of the collector of customs denying the claimant’s right to enter certain cattle free of duty. The circuit court reversed the decision of the board, and the United States appealed.

<p>1. Patents — Priority of Invention — Evidence.</p> <p>Where, in a.n infringement suit, a parly attempts to carry back his Invention so as to antedate an anticipating patent issued, upon a prior application, the burden is upon him to prove priority to the satisfaction of the court, and by evidence which shall strongly outweigh that of the other party, if not beyond a reasonable doubt.</p> <p>2. Same — Unsupported RecoltjBotions op Witnesses.</p> <p>Unsupported recollections of witnesses as to facts and dates fully six years prior to giving testimony are insufficient to establish priority of invention over an earlier patent, especially where such facts are of a kindred character to other facts, occurring at or near the same time with'which they might easily be confused.</p> <p>3. Same — Anticipation.</p> <p>The Sacks and Richmond patent, No. 443,199, for an improvement in boo4, or shoe lasts, was anticipated by the Dusenbery patent, No. 430,782, for au improvement in pegging jacks.</p>

<p>Appeal from the Circuit Court of the United States for the District of Delaware.</p> <p>This was a suit in equity by the Morris Box-Lid Company against the Davis Pressed-Steel Company and Nathan S. Davis for infringement of certain patents for car axle box lids. The circuit court rendered a final decree for complainant (78 Fed. 129), and defendants have appealed.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>Thesp were cross libels in ran to recover damages resulting from a collision between the schooner Alice B. Phillips and the steamship Sirius. The collision occurred between 1 and 2 o’clock on the morn ing of September 9, 1894, on the open sea, about 12 miles soulhward of Femvick Island Lightsliix>, and resulted in serious injury to the schooner. The night was dark, but neither foggy nor thick. The courses of the vessels, as they approached, were slightly crossing, but nearly head on. In the answer filed in behalf of the steamer, the schooner, among other things, was charged with changing her course; but this charge was abandoned at the hearing, and the claimant relied on an allegation that the schooner’s port light was not burning. The circuit court found that this allegation was not proved, and accordingly sustained the libel of the schooner, and dismissed that of the steamer. The claimant of the steamer ax>pealed.</p>

<p>1. Removal op Causes — Diverse Citizenship.</p> <p>The restrictions as to the residence of parties contained in section 1 of the act of August 13, 1888, do not apply to jurisdiction by removal; and a suit between citizens of different states, commenced in a state couri, may be removed to a federal court, though neither party is a citizen or resident of the state where such suit is commenced.</p> <p>2. Same — Time for Removal.</p> <p>The fact that a petition for the removal of a cause from a state to a federal court, which is filed before the time to answer expires, is accompanied or even preceded by a demurrer, does not in any way prejudice or affect the .right of removal.</p>

This was a suit in equity by the Holland Trust Company, a corporation organized under the laws of New York, against the International Bridge & Tramway Company and others, to foreclose a mortgage upon a toll bridge across the Rio Grande river between the city of Laredo, Tex., and the city of Nuevo Laredo, in the republic of Mexico, and upon the approaches thereto, and all of the bridge company’s premises, property, franchises, etc. The International Bridge Company was…

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

<p>On .Exceptions to tlie Master’s Report.</p>

<p>1. National Banks — Liability of Stockholders — Fraudulent Transfer of Stock.</p> <p>The burden is on tbe receiver of a national bank to show that a transfer of stock was made by tbe transferror for tbe fraudulent purpose of avoiding liability as a stockholder; and evidence showing that the husband of the transferror had knowledge of the embarrassed condition of the hank before the transfer was made, and that she had admitted that she never transacted any business without the advice of her husband, is not sufficient for that purpose, as against the positive statement of the transferror that no one ever suggested to her to transfer the stock for the purpose of relieving herself from liability, or suggested to her that the bank was in a failing condition, and that she made the transfer to her daughter as an advancement.</p> <p>2. Same — Gift of Stock to Irresponsible Person.</p> <p>Under Bev. St. U. S. § 5151, making shareholders in a national bank liable for the debts of the association, and section 5139, providing for the transfer of shares, with a provision that the transferee shall “succeed to all the rights and liabilities of tbe prior stockholders of such shares; and no change shall be made in tbe articles of the association by wbieb the rights, remedies, and securities of the existing creditors of the association shall he impaired,” — a transfer of stock, though without consideration and to an irresponsible person, cannot be set aside by tbe receiver if made in good faith without knowledge of the failing condition of the bank.</p>

This cause was, by a former decree, referred to a master commissioner, to take an account, and report upon the rights of the plaintiff company, trustees, and of the holders of the bonds issued under a deed of trust or mortgage made by the defendant, the Roanoke Iron Company, dated June 9, 1891, an account of all the debts and liabilities of said company, the liens on the property of said company, and the priorities of such liens; also, an account of all the assets and…

<p>Appeals from tlie Circuit Court of the United States for the District of Kentucky.</p> <p>These are four appeals from a decree of the circuit court for the district of Kentucky adjudging the priority of the liens of the various appellants and the Central Trust CoBrpany, one of the appellees, upon tlie entire property of tlie Ohio Valley Railroad Company which ivas being foreclosed under a mortgage issued by it to the Central Trust Company to secure a large number of bonds, and also' the priority of the liens on certain of these bonds deposited with the Columbia Finance & Trust Company under a contract made between tlie Western Contract Company, a party to these appeals, and the ’ Chesapeake, Ohio & Southwestern Railway Company, represented in iliese appeals by St. •Tolm Boyle, its receiver. The Ohio Valley Railroad Company (hereafter called the “Valley Company”) owned a railroad running originally from Kvansville. Ind., ilirough Henderson, Ky., to Preston, where it intersected tlie railroad of the Chesapeake, Ohio & Southwestern Railway Company. Subsequently the Ohio Valley Railroad was extended through Preston about 12 miles to Hopkinsville, a point on tlie Louisville & Nashville Railroad. This extension, which plays some part iu tlie issues of tlie eafse, ivas known as the “Hopkins-ville'Extension.” The Chesapeake, Ohio & Southwest evil Company (hereafter called üte “Chesapeake Company”) owned and operated a litio of railroad from Memphis to Louisville. The Western Contract Company (hereafter called the “Contract Company”) was a construction company which built part of tlie Ohio Valley Railroad extending from Evansville to Preston, and became thereby the owner of a large majority of its stock and its bonds. In order to enable it to dispose of t lie bonds held by it, it entered into a contract with the Ohesa • pealce Company hy which, in consideration of receiving a majority of the stock in the Valley Company from the Contract Company, the Chesapeake Company agreed to guaranty all tlie bonds theretofore issued by the Valley Company. That contract, upon which turns all but one of the important questions in this case, was executed on the 6th of March, 3891, and was as follows:</p> <p>“Agreement made and entered into the sixth day of March, 1891. by and between tlie Western Contract Company of Louisville, Kentucky, a corporation created, organized, and existing under tlie laws of the state of Kentucky, hereinafter called the ‘Contract Company,’ of tlie first part, and tlie Chesapeake, Ohio & Southwestern Railroad Company, a corporation created, organized, and existing under the laws of the stares of Kentucky and ’Tennessee, hereinafter called the ‘Railroad Company,’ of the, second part. Whereas, tlie Ohio Valley Railway Company is a corporation of the state of Kentucky having a, capital stock of two million one hundred and sixty-two thousand six hundred dollars (.82,162,600), and no mows and. in addition to its existing floating in debtedness and liabilities, being liable for the following, and no other, debts.— that is to say: (1) A bonded indebtedness to an amount not exceeding two million one hundred and sixty-two thousand and six hundred ($2,162,(>!)()) with interest thereon from January 3, 1891, represented by its first mortgage five per cent, forty-year gold bonds, and its general consolidated and first mortgage five per cent, fifty-year gold bonds now outstanding; (2) Car Trust obligations to the amount of eighty-eight thousand eight, hundred and five and ®Vioo dollars ($88,805.64); and (8) real-estate notes to the amount of fourteen thousand dollars ($14,000), given in x>ayment for real estate purchased in Henderson, Kentucky, to secure approaches to the Henderson bridge and for terminals. And whereas, the Contract Company is the holder of upwards of sixty per cent, of the capital stock of said Ohio Valley Railway Company, and is interested in and desirous of xn'ocuring a guaranty of the payment of the principal and interest of said general consolidated and first mortgage bonds of the Ohio Valley Railroad Company. And whereas, it has been agreed between the parties hereto'as hereinafter expressed: ' Now, therefore, this agreement witnesseth that the parties hereto, in consideration of the premises and of the mutual undertakings, covenants, and agreements hereinafter contained, have undertaken, covenanted, and agreed, and do hereby undertake, covenant, and agree, to and with' each other as follows; that is to say:</p> <p>¡ /‘First. The Contract Company on or before the first day of April, 1891, will deliver, to the Railroad Company, party of the second part hereto (to he simultaneously deposited by the Railroad Company with a trustee as hereinafter provided), sixty per cent, of all outstanding capital stock of the Ohio Valley Railway Company (the same being full-paid stock), and will cause to be delivered to the Ohio Valley Railway Company the control of the charter of the Evansville Bridge Company, and will give to the Railroad Company a guaranty satisfactory to it, that all indebtedness and liabilities of said Ohio Valley Railway Company which have accrued or may accrue up to the time of the delivery and deposit of stock and bonds under this article of this agreement (including accrued, though unmatured, interest on all obligations and liabilities, and including all claims for right .of way or compensation therefor, or land damages or damages for construction or operation of its railroad), excepting- only the bonded indebtedness, not exceeding $2,162,600, above referred to, and the interest from January 1, 1891, thereon, and the said real-estate notes for $14,000 and unpaid interest thereon, and the face value of the said Car Trust obligations of said Ohio Valley Railway Company, shall not exceed the ■sum of thirty thousand dollars, and that any excess' thereof above that sum shall be paid by the Contract Company, and will dex>osit with the trustee hereinafter named general consolidate:! and first mortgage five per cent, fifty-year bonds of the Ohio Valley Railway Company (forming part of the bonds above referred to) to the amount at their par value of the face value of such Car Trust obligations, which bonds, and the interest thereon, and the proceeds thereof are to he held as security for, and aiplied in discharge of, the amount due upon such Car Trust obligations, and will also deposit with said trustee thirty thousand dollars par value of such general consolidated and first mortgage five per cent, fifty-year bonds, which bonds and the interest thereon and the proceeds thereof are to be held as security for and apxfiied in discharge of the indebtedness and liabilities of said Ohio Valley Railway Company other than the Car Trust obligations and real-estate notes above referred to. Tho said railroad company is to be entitled to sell and dispose of the general consolidated and first mortgage bonds of the Ohio Valley Railway Company so deposited as security for payment of such Car Trust obligations and such indebtedness and liabilities at such prices not less than 90 per cent, of their X>ar value,, and upon such terms as it may from time to time determine, the Xiroceeds of such bonds, simultaneously with the delivery thereof by said trustee to the purchaser, to be deposited with the said trustee, but subject to be drawn against by the Ohio Valley Railway Company for payment of the amount from time to time due on such Car Trust obligations, or such indebtedness or liabilities, or for repayments of amounts paid on account of such Car Trust obligations or such indebtedness or liabilities.</p> <p>“Second. Upon the performance on the part of the Contract Company of the ■obligations hereinbefore in article first hereof expressed, the said Railroad Company will, under and in pursuance of adequate statutory authority and of sufficient resolutions of the stockholders and directors, guaranty the )>ayment of the principal and interest accruing subsequently to January 1, 1891, of the general consolidated and first mortgage fifty-year five per cent, gold bonds of the said Ohio Valley Railway Company to the amount at their par value of $2,162,600, hereinbefore referred to-, such guaranty to be indorsed on each bond in the following words and figures; that is to say: ‘For valuable consideration, the Chesapeake, Ohio & Southwestern Railroad Company hereby guaranties the punctual payment of the principal of and interest accruing subsequently to January 1, 1891, on the within bond. In witness whereof the said Chesapeake, Ohio & Southwestern Railroad Company has caused its corporate seal to be hereunto affixed stud attested by its secretary, and these presents to be signed by its president or vice president, this----day of---, 1891.” And the said Railroad Company lias undertaken and agreed, and hereby undertakes and agrees, that simultaneously with its receipt of said sixty per cent. of. such stock of the Ohio Valley Railway Company it will deposit the same with the trustee hereinafter named as security for the fulfillment for the period of seven years from the execution of such guaranty of its obligations thereunder, subject to the provision that, in case during such period it shall fail to fulfill its obligations under such guaranty, upon demand made upon said Railroad Company at its office in the city of New York by the trustee of the mortgage securing such general consolidated and first mortgage bonds, said deposited stock shall, upon demand, sustained by the affidavit of the president or vice president of the trustee of such mortgage that such demand has been made upon said Railroad Company as hereinbefore required, be delivered by said trustee to said Contract Company; but that unless or until It shall so fail to fulfill its obligations such deposited stock shall stand on the books of the Ohio Valley Railway Company in the name of the said Chesapeake, Ohio & Southwestern Railroad Company, or the names of its appointees, and it and the.i' shall be deemed the legal owners thereof, and be entitled to vote thereon, and exercise the rights and powers of stockholders in respect thereof. At the expiration of seven years from the execution of such guaranty, if the obligations of the Railroad Company during such period thereunder shall have been fulfilled, such deposited stock shall, by said trustee, be redelivered to said Railroad Company.</p> <p>“Third. Darnings from traffic shall be apportioned between the Ohio Valley Railway and the Chesapeake, Ohio & Southwestern Railroad as if they were operated as separate roads, and substantially on the same basis as now in use, and the general expenses common to the operation of said lines si mil be prorated on a mileage basis. The Ohio Valley Railway Company shall he maintained as a separate organization. All improvements and betterments shall be held as its separate property, and all rolling stock purchased for it shall he properly marked as its properly.</p> <p>“Fourth. The depositary trustee under this agreement shall be the Columbia Finance & Trust; Company of Louisville, Kentucky, or such other trust company as may be agreed upon by the parties hereto.</p> <p>“Fifth. This contract is signed subject to the approval of the respective boards.</p> <p>“In witness whereof the parties hereto have caused their respective corporate seals to be hereunto affixed and attested by (heir respective secretaries, and these presents to be signed by their respective presidents or vice presidents, the day and year first above written.</p> <p>“fSigned] Western Contract Company, by Samuel S. Brown.</p> <p>“[Signed] Chesapeake, Ohio & Southwestern Railroad Co.,</p> <p>By C. P. Hun iington, Pt”</p> <p>The above was accompanied by a supplementary agreement as follows:</p> <p>“Referring to contract between the Western Contract Company and the Chesapeake, Ohio & Southwestern Railroad Company, executed and exchanged to-day, it is understood that the Chesapeake, Ohio & Southwestern Railroad Company is to designate the president and four directors of the Ohio Valley Railway Company, and that Oapt. 8. S. Brown is to remain as vice president and direr tor, and is to designate two other directors of the company.</p> <p>“March 0, 1891.</p> <p>“! Pig-nod] C. P. Huntington, Pt.</p> <p>“[ffignod] Samuel S. Brown.”</p> <p>The stock was transferred in accordance with the contract and was deposited with the Columbia Finance & Trust Company, of Louisville. Dr. P. G. Kelsey was president of the \ alley Company at the time of the execution of this contract. He remained its president until late in the summer or early iu the fall of 1891, and while he was president the earnings of the Valley Company wore kept in a fund separate from that of the Cl esapeake Company or its lessee. The Chesapeake Company had leased its road running from Memphis to Louisville to the Newport News & Mississippi Valley Company (hereafter called the-“Newport News Company”)', a corporation of Connecticut, organized to manage railroads for other companies. The lease by the Chesapeake Company to the Newport Nows Company provided a rental of $5,000 a year to be paid by the Newport News Company to the Chesapeake Company for the purpose as stated in the lease of sustaining the organization of the Chesapeake Company. The lease provided that the Newport News Company should take charge of all the cash, accounts payable, and dioses in action of the Chesapeake Company of whatever kind, and should operate its main road and all its branches; that out of the net earnings and income of the railroad .the Newport News Company should pay the operating expenses, taxes, assessments, insurance, should keep the road and equipment in proper repair, and should apply the net earnings to the payment of the interest on certain bonds of the lessor company and its grantors. The lease provided that, if there was any balance left after such payments, and that balance should exceed the amount of 6 per cent, per annum par value of the capital stock of the lessor company, the lessee company might retain to itself for its own use this excess. The lease further provided that, if anything was left out of the income after the payment of interest on contain bonds, and there should he any sum owing from the party of the first, part to the party of the second part “in respect to advances or payments made for any expenses of its business or affairs, or for or in respect of any other sums which may have been lawfully advanced' by tbe lessee to or for the party of the first part,” the party of the second part should be entitled to retain and pay to itself whatever might he owing to it from the party of the first part “for or in respect of any of the causes and matters or considerations aforesaid, including any interest which may be due and owing from tbe party of the first part to the party of the second part thereon.” From November, 1891. until the 1st of July, 1893, the management and officers of the Chesapeake Company, the Newport News Company, and the Valley Company were practically the same. A good deal of money was expended in the repair of the Valley road. Both roads were really oiierated by the Newport News Company. Except for a short period, all the earnings of the Valley Company wore deposited in the bank account of the Newport News Company, and nil payments of every sort for and on account of the Valley Company were made out of this general bank account. Accounts were kept on books of the Valley Company, on books of tbe Newport News Company, and on books of the Chesapeake‘Company, hut the only company which received earnings and disbursed expenditures was the Newport News Company. All repairs that were made upon the Valley Company were made by men who were on the pay roll of the Newport News Company. All the supplies and materials were furnished from the storehouse of the Newport News Company. But the salaries and wages of those engaged in making and superintending the repairs of the Valley Company were in part charged to the Valley Company and in part charged to the Newport News Company. The Newport News Company, acting as the agent of the Chesapeake' Company, charged to the Chesapeake Company at various times its expenditures on account of the Valley Company, and, on the other hand, credited the Chesapeake Company with the receipts of the earnings from the Valley Company, together with the receipts from bonds issued by tbe Valley Company and from subsidies voted to tbe Valley Company by various counties through which its line was extended. The account of the Newport News Company with the Valley Company, and on the bdoks both of the Newport News Company and of the Chesapeake Company, was an account current in which items of debit and credit were regularly entered, and a balance struck on the 30th of June of each year, and that balance carried forward into the next year upon the proper side of the ledger. Upon the 30th of June, 1S93, the lease of the Newport News Company from the Chesapeake Company was canceled by the agreement of the two companies, and thereafter the Chesapeake Company took the place of the Newport News Company in its management of the Valley Company. It should lie said that there was neillier a lease nor any express running arrangement, parol or in writing, between the Valley Company and 1ho Newport News Company, nor between the Valley Company and the Ohesaiieake Company, but because the latter company owned a majority of tlie stock, and elected tlie board of directors and officers, the majority of whom were the same as those of tlie Newport News Company and of the Chesapeake Company, tlie management was the same, and 1lie operations of the two roads were kept separate only by proper charges upon the books. In February, 1894, when both the Chesapeake Company and-the Valley Company went into the hands of receivers, Hiere was due, according to the hooks anil accounts; from the Valley Company to the Chesapeake Company the sum of $160,252.80. This indebtedness was made up by a charge against the Valley Company of interest upon the bonds of the Valley Company paid by the Chesapeake Company, amounting to $216,200, and an expenditure for the construction of the Hopkinsville Extension of $192,689.85. To pay- this amount, the Chesapeake Company received from the sale of bonds of the Valley Company $174.000, and from subscriptions $133,009.80, leaving a balance due and unpaid of 8101,100.20, which represented the advances on account of the Valley Company by the Chesapeake Company for purposes other than the payment of operating expenses. In addition to this sum, the Chesapeake Company also paid out in operating expenses and repairs over and above the earnings received from the Valley Company the sum of $59,062.66. It was contended in the circuit court by the receiver of the Chesapeake Company that he had the right so to arrange the account between the two companies as to apply all the payments made to those debits for which tlie company could not iiave a lien, and to leave as unpaid the expenses for operating tlie Valley Company, and the repairs, so as to give a lien prior to the mortgage debt upon tlie Ohio Valley Company’s road, both in equity and under the following statute of Kentucky:</p> <p>“Section 1. When the property or effects of any railroad company, or of any owner or operator of any rolling mill, foundry, or oilier manufacturing establishment, whether incorporated or not, shall be assigned for the benefit of creditors, or shall come into the hands of any executor, administrator, commissioner, receiver of a court, trustee, or assignee, for the benefit, of creditors, or shall in anywise come to be distributed among creditors, whether by operation of law, or by the act of such company, owner or operator, the employes of such company, owner or operator in such business, and the persons who shall have supplied materials or supplies for the carrying on of such business, shall have a lien upon so much of such property and effects as may have been embarked in such business, and all the accessories connected therewith, including the interest of such company, owner or operator In the real esiate used in carrying on such business.</p> <p>“Sec. 2. The said lien shall be superior to the lien of any mortgage or other encumbrance heretofore or hereafter created, and shall he for the whole amount due such employes as such, or due for such materials or supplies: provided, that, no president or other chief officer, nor any director or stockholder of any such company, shall be deemed an employs within the meaning- of this act.”</p> <p>Gen. St. Ky. (Ed. 1888) c. 70, art. 3, p. 877.</p> <p>lilis claim was set up in the intervening petition filed by the then receivers of tlie Chesapeake Company, to which the Trust Company, the trustee of the mortgage bondholders, was made a party. The intervening petition prayed for a money decree for the amount of tlie indebtedness against the Vailey Company as well as tlie enforcement of a lien prior to tlie mortgage. Judge Karr, sitting at the circuit, held that the circumstances of the indebtedness were such that the Chesapeake Company acquired no lien upon the property of the Valley Company, and refused to allow a money decree for the amount shown to he duo. From the decrees of the circuit court embodying these rulings, Hie now sole receiver, St. John Boyle, appeals.</p> <p>The other questions in the case arose upon the construction of the contract »t March 6, 1891. The receivers of tlie Chesapeake Company, by tlieir intervening petition, made the Western Contract Company and the Valley Company parties, and the controversy as between tlie receivers and the Contract Company was over the 116 bonds which were deposited with the Columbia Finance & Trust Company in accordance with that contiact; 80 of them to pay the floating debt of the Valley Company, and 86 of them to pay the Car Trust obligations of the Valley Company. The claim of the receivers on this point was that about $10,000 was expended in paying prior debts of the road contracted and owing April 1, 1891, and $24,462 in paying Car Trust obligations, all out of the subsequent earnings of the Ohio Valley road; and that as these earnings, if not so diverted, would have been available to assist the Chesapeake Company in meeting the interest due on the Valley bonds, which the Chesapeake Company paid, the receivers of the latter company were entitled to have part of their debt thus contracted paid out of the bonds deposited by the Contract Company to pay the floating debt and Car Trust obligations of the Valley Company. The United States Trust Company, as the assignee in the trust deed of the Newport News Company, filed its intervening petition against the Contract Company seeking to appropriate the 86 bonds deposited under the contract of March 6, 1891, to repay the $49,898.83 paid by the Newport News Company to take up additional Car Trust obligations of the Valley Company. These payments, it appears from the evidence, were never charged by the Newport News Company against the Chesapeake Company upon the books of either company, but they were made at the request and on account of the latter company. Another intervening petition was filed by Samuel S. Brown, Arthur Cary, Jordan Giles, P. G. Kelsey, and the Ohio Valley Coal & Mining Company, insisting that, if the receivers of the Chesapeake Company were entitled to appropriate the 30 bonds deposited under the contract of March 6, 1891, to meet the floating debt of the Valley Company, they, as owners of much of that debt, were also entitled to share in the proceeds of those bonds. The Contract Company filed answers to these intervening petitions in which it denied the right of any of the claimants to use the bonds deposited under the contract of March 6, 1891, for the purposes proposed. Against the receivers of the Chesapeake Company the Contract Company pleaded a set-off arising out of the failure of that company to fulfill its guaranty under the contract of March 6, 1891. It appears from the evidence that the Chesapeake Company fulfilled its guaranty of the bonds of the Valley Company upon all payments of interest due until the one of January 1, 1894, became due when it defaulted. Upon an intervening petition shortly thereafter filed by the Contract Company in the creditors’ suit in which receivers were appointed for the Chesapeake Company, the Contract Company prayed for an order of the court requiring the receivers to consent and direct that the trustee under the contract of March 6, 1891, deliver back to the Contract Company the majority of the stock of the Valley Company in accordance therewith. The court granted the prayer of the petition, and directed the receivers to consent to the redelivering of the stock, and the trustee, the Columbia Finance & Trust Company, did deliver the same back to the Contract Company early in 1894. In order more definitely to fix the facts concerning payments made on the old debts of the Valley Company paid out of its earnings after April 1,1891, and also by the Newport News and the Chesapeake Companies, the circuit court referred the case to a master for answers to certain questions. The report of the master upon these questions is as follows:</p> <p>“This action has been referred to me as special commissioner to ascertain and report to the court:</p> <p>“First. What is the amount of any debts due by the Ohio Valley Railway Company on April 1, 1891, which since that date have been discharged out of its earnings since that date, and what is the amount of any such debt which has been paid by the Newport News & Mississippi Valley Company for the benefit of the Chesapeake, Ohio & Southwestern Railroad Company.</p> <p>“Second. What, if any, Car Trust notes of the Ohio Valley Railway Company, existing on the 1st of April, 1891, have since that time been paid out of its subsequently accruing earnings, or by the Chesapeake, Ohio & Southwestern Railroad Company, or by the Newport News & Mississippi Valley Company, or in any other way.</p> <p>“Third. What debts are still outstanding which were owing by the Ohio Valley Railway Company April 1, 1891, and who owns and holds such debts.</p> <p>“Fourth. What is the amount of the fund in the hands of the Columbia Finance & Trust Company, deposited by the Western Contract Company, either in bonds or in money.</p> <p>“Fifth. What is the amount of bonds held by the Western Contract Company over and above the 116 bonds deposited by it with the Columbia Finance & Trust Company, and what amount of interest is still due and unpaid on such bonds. * * *</p> <p>‘•(1) Under the first clause of said order of reference, I find the following facts: The amount of debts due by the Ohio Valley Railway on April 1, ,18i)i, was $51,457.85. Of this amount the following have been paid:.</p> <p>Mechanical wages ..........................................5 802 57</p> <p>Audited vouchers ........................................... 2,561 94</p> <p>L. & N. R. R. track rental................................... 798 00</p> <p>Bills payable, O. Y. O. & M. Go............................... 4,509 00</p> <p>Individuals and companies........................:.......... 1,376 62</p> <p>Total ................................................v?10,039 13</p> <p>“It is contended on the one side that all of these payments should have been made out of the company’s resources other than its earnings. These alleged resources wore as follows:</p> <p>Resources.</p> <p>U. S. P. O. dept............................................$ 283 58</p> <p>Accounts receivable ......................................... 461 22</p> <p>Company’s agents .......................................... 327 25</p> <p>Evansville Bridge Co........................................ 10 25</p> <p>Stone quarry ............................................... 1,600 00</p> <p>Sundry r’ds. for pro of claims ]>aid............................ 2,482 91</p> <p>Jas. F. Clay................................................. 710 00</p> <p>Unclaimed f’t transportation digs............................. 35 28</p> <p>Southern extension acct...................................... 12,452 37</p> <p>§18,362 86</p> <p>“But it is claimed on the other hand that two items of said alleged resources, which constitute more than two-thirds of the whole amount, were not, and could not have been, applied to the payment of said debts. These two items were:</p> <p>The stone quarry............................................§ 1,600 00</p> <p>The Southern extension acct................................... 12,452 37</p> <p>Total....................................................§14,052 37</p> <p>“As to the first item, Dr. Kelsey testifies that the Ohio Yalloy Company had, prior to April 1, 1801, purchased the stone quarry, and paid therefor the sum of 81,600; that it was thought more economical to buy the quarry than to pay a royalty for rock to make ballast, as they had been doing theretofore. The company seems to have treated the quarry as so much ballast on hand, and for this reason included it among Its resources, but the witnesses do not state there was any agreement that it should be invoiced in this way. Doubtless the net earnings of the road were increased to the extent that, the company was relieved of the royalty it would have otherwise been compelled to pay for rock;, but there is no testimony as to what the royalties would have *been, nor as to how much of the quarry has been exhausted.</p> <p>“As to the other item, ‘The Southern Extension Acct.,’ the following facts are established by the testimony: The Ohio Valley Company, contemplating an extension of its line south to Hopkinsville and Clarksville, had, prior to April 1. 1891, caused surveys, maps, profiles, etc., to be made and secured, arid some contracts for rig-ht of tvay, at a cost of §12,452.37, which had been entered on the books as an asset. Dr. Kelsey lestifies that in making this contract with the G., O. & S. W., its representative, Mr. Huntington, was asked to allow this item to be placed on the same footing with material oh hand, which vras to be charged to the new organization at its invoice pnce. To this Air. Huntington objected, saying they would not pay for these things until the subsidies which the company expected to receive for the extension were realized. Upon cross-examination the witness says no other agreement than this was ever made with Air. Huntington. The witness does not state that any oi' the subsidies were ever collected. We submit to the court whether, under this testimony, either of those turn items was available for the payment of liabilities. If they were available, then the resources were sufficient to pay the liabilities that were canceled, amounting to $10,039.13, and leave a surplus of $8,323.73. But, if they were not available, then there remained only $4,310.49 of the resources that could have been applied to the debts, leaving $5,726.64 as the sum paid out of the earnings of the Ohio Valley Railway after April 1, 1891. I further find that the Newport News & Mississippi Valley paid of such debts the sum of $2,937.70, of which the sum of $1,089.08 was xaaid out of the assets of the Ohio Valley, leaving a balance of $1,848.62 paid by the Newport News & Mississippi Valley for the benefit of the O., O. & S. W. I further find that the C., O. & S. W. paid of said debts the sum of $77.99.</p> <p>“(2) Under the second clause of said order I find that of the Oar Trust notes of the Ohio Valley Railway Company existing on April 1,1891, there have since that time been paid out of its subsequently accruing earnings the following sums:</p> <p>Notes maturing on Aj>ril 1, 1891 $ 3.203 72</p> <p>May ....... . 4,218 39</p> <p>June ....... . 3,203 72</p> <p>July ....... . 3,203 72</p> <p>August .... , 2,189 05</p> <p>September . . 3,203 72</p> <p>October .... . 5,240 26</p> <p>Making a total of........................................$24,462 58</p> <p>“I further find that the Newport News & Mississippi Valley has paid Oar Trust notes of the Ohio Valley Railway Company that existed on Apiril 1, .1891, amounting to $49,898.83.</p> <p>“(3) Under the third clause of said order, I find that the following debts of the Ohio Valley Railway Company owing April 1, 1891, are still outstanding, and are owned and held by the following parties, viz.:</p> <p>To Arthur Cary...........................................$ 4,500 00</p> <p>To Jordan Giles............................................. 953 11</p> <p>To P. G. Kelsey............................................. 3,438 13</p> <p>To S. S. Brown, as owner of steamer Campbell................. 23,574 98</p> <p>To Ohio Valley Coal & Mining Co.............................. 8,952 50</p> <p>Making a total of.........................................$41,418 72</p> <p>“(4) Under the fourth clause of said order, I find that the account of the Columbia Finance & Trust Company for the bonds deposited with it by the Western Contract Co. stands as follows: Bonds on band of the O. V. R. Co., numbered from 1,S49 to 1,964, inclusive, being 116 bonds, of the face value of $116,000. Five sets of coupons collected, amounting to $14,500; out of which collections it has paid the following expenses:</p> <p>Ifxpressage on bonds, &c.....................................$ 101 10</p> <p>Counsel fees in C., O. & S. W. ease........................... 50 00</p> <p>Counsel fees in this case..................................... 100 00</p> <p>$ 251 10</p> <p>Leaving cash balance on hand..........................■...... 14,248 90</p> <p>“(5) Under,the fifth clause of said order, I find that the Western Contract Company holds 480 of the bonds of Hie Ohio Valley Company, amounting to $480,000, without including 116 bonds deposited with the Columbia Ifinanee & Trust Compafiy, all of which are indorsed by the C., O. & S. W. according to its contract. Since the coupons which fell due July 1, 1893, no interest has been paid on these bonds.”</p> <p>The circuit court held that the Chesapeake Company and its successors, -the receivers, would have been entitled to resort to the bonds deposited under the contract of March G, 1891, to the extent, if any, to which earnings of the Valley Company after April 1, 1891, had been used to pay the floating indebtedness of the Valley Company, but that really there was no diversion of earnings for this purpose because the old management of the Valley Company had on hand and delivered over to the Newport News Company, when, as agent Tor the Chesapeake Company, it assumed the management of the Valley Company, enough “quick” assets, easily reducible to money, to pay the entire floaling indebtedness. The court further held that as to the $24,462 of earnings diverted to pay Car Trust notes the Chesapeake Company and its receivers were entitled to apply In repayment thereof such number of the bonds deposited as, at 90 per cent, of their face value, would he required to satisfy and pay the amount thus diverted from the Valley Company, together with the interest paid on such bonds, and held in -cash by the trustee. The court refused to allow the set-off claimed by the Contract Company for the default in the guaranty of interest by the Chesapeake Company on two grounds: first, that the set-off could not he granted in equity where the debt set off was a debt in personam and that against which it was to be set off was a debt in rem; and. second, that the taking back of the majority of stock, which was the general consideration for the guaranty, canceled and destroyed, as between the Contract Company and the Chesapeake Company, any obligation on the part of the latter to fulfill the guaranty. Upon the intervening petition of the United States Trust Company, the court held that in paying the Car Trust obligations the Newport News Company was a volunteer, and could not be subrogated to the rights of the Chesapeake Company under the contract of March'6, 1891, and, therefore, had no interest in the deposited bonds. With reference to the intervening petition of Brown and others, the court held that the contract of March 6, 1891, did not inure to their benefit, and that they could not take advantage of the bonds deposited thereunder. The decree appealed from embodied the rulings of the court above stated by appropriate findings and orders.</p>

On Exceptions to Answer and Motion for Temporary Injunction. The platnliff, in his bill, alleges: That he is a citizen of the stale of Kentucky, and. a business man, having extensive social, business, and general correspondence.

This is an action to recover on refunding bonds issued by defendant, a township of Gray county, Kan., under the provisions of chapter 50 of the Laws of Kansas enacted at the session of 1879. The facts are that in 1889 the legislature of Kansas authorized its municipalities, including townships, to extend aid to companies and corporations engaged in the manufacture of sugar from sorghum cane by issuing bonds.

<p>Life Insurance — Completion of Contract — Acceptance of Application.</p> <p>The payment to an insurance agent of a sum equal to the first premium, and the taking of a receipt therefor, which expressly declares that, if the application is accepted by the company, the insurance shall take effect from the date of application, but that, if the application is not accepted, the money shall be returned, and the receipt surrendered, does not amount to a contract of insurance until acceptance by the company, and, if the insured die before acceptance, the company is not liable.</p>

This was a suit in equity by the Kinnear & Gager Company against the Capital Sheet-Metal Company for alleged infringement of a patent, for a sheet-metal ceiling panel.

This was a suit in equity by Edwin Norton and Oliver W. Norton against Mathias Jensen for alleged infringement of certain patents relating to automatic can-heading machines.

<p>Patents — Costs of Referencf..</p> <p>Each party should, in the first instance, pay his own costs, on a reference in a patent ease to ascertain profits and damages, leaving- the question of their final disposition to he determined' when the decree is entered.</p>

<p>On Final Hearing on Libel and Answer.</p>

<p>1. Removal op Causes — Attachment Suits —Waiver op Right to Remove.</p> <p>When an action is begun in a state court against a, nonresident defendant by process of foreign attachment, without personal service, such defendant does not submit io the exclusive jurisdiction of the state court, nor waive the right to remove the cause to a federal court, by giving a bond to release the attachment in accordance with the stale procedure.</p> <p>2. Same — Lack op Personal Service — Jurisdiction.</p> <p>Custody of a res being recognized by the federal courts as a ground of jurisdiction, as well as personal service of process, a suit begun in a state court by attachment of property, and removed into a federal court, will not be there dismissed for want of jurisdiction because there has been no personal service. Goldey v. Morning News, 15 Sup. Ct. 559, 156 U. S. 518, distinguished.</p> <p>8. Same — Dismissal.</p> <p>When a suit commenced in a state court by attachment is removed into a federal court before the proceedings upon the attachment are complete, the fact that the federal court cannot complete such proceedings is not a reason for dismissing the action.</p>

This was a suit by the county of Snohomish against the Puget Sound National Bank of Everett, and A. J. Hayward, and others, to enjoin an agent engaged in winding up the affairs of the hank from proceeding further, and to procure the appointment of a receiver to take charge of its remaining assets.

<p>Bill In equity for specific performance of contract as to certain letters patent. Demurrer to the bill. Demurrer sustained on the ground of lack of jurisdiction.</p>

This was a suit in equity by Henry Siegel, a citizen of the German empire, against the city of New Orleans, to obtain an accounting of the revenues of the city alleged to be applicable to the payment of some 17 judgments theretofore obtained, by the complainant against the city. These judgments aggregated $74,262.17, and by their terms were made payable out of the revenues of particular years, extending from 1879 to 1887.

<p>1. Equity Procedure — Interventions.</p> <p>Under section 387, Code- Civ. Proc. Cal., providing that any person interested may intervene in an action or proceeding “before the trial,” an application to intervene comes too late which is made at the time of the submission of the case on bill and answer.</p> <p>3. Same — Jurisdiction of Federal Courts — Citizensihp—Intervention.</p> <p>The circuit court cannot take jurisdiction of an ■ intervention in a merely personal action, in which no fund has come into the possession of the court, by one who is a citizen of the same state as the party against whom his complaint is directed.</p> <p>3. Same — Intervention by Taxpayer — Illegal Taxes.</p> <p>Though a taxpayér may intervene in a pending suit to stop an illegal levy while his property is subject to taxation, he has no right to intervene to prevent the expenditure of money which has already been collected, upon the ground that the tax which produced it was illegal.</p>

<p>This was a suit by Charles A. Whittemore against William H. Patten and Norman Stafford, copartners under the name and style of Patten & Stafford.</p>

<p>Suits against Receivers — Leave of Court.</p> <p>The provisions of the act of August 13, 1888, authorizing the bringing of suits, without leave of court, against receivers appointed by federal courts, in respect to any act or transaction in carrying on the business connected with the property in their charge, does not authorize the bringing of a suit, without leave, against such a receiver, to establish a right to the property placed in his custody, adverse to his right thereto.</p>

<p>Corporations — Stockholders’ Meeting — Vote to Wind up Business.</p> <p>Tire directors of the G. Co., a corporation organized under the laws of New Jersey to conduct a manufacturing and mercantile business, called a meeting of the stockholders to consider the propriety of a sale of the business. Less than one-third of the stock was represented at the meeting, but a resolution was passed by a large majority of the stock represented, instructing the .directors to dispose of the business of the company on such terms as they should deem best. Held, that as the statutes fully provided for winding up the corporation in case its business were unprofitable, or it was obliged to suspend for want of funds, the directors should be enjoined, at the suit of a stockholder, from disposing of the assets, so as to prevent the corporation from carrying out the objects of its incorporation.</p>

<p>Service of Process — Publication—Property within Jurisdiction — Judgment against Nonresident.</p> <p>Defendant, a resident of New York, held a mortgage on land in South Carolina, and was proceeding to sell the mortgaged land under a power in such mortgage. Plaintiff, the mortgagor, brought suit in a state court to enjoin the sale and to recover damages for breach of contract, and served defendant by 'publication. Defendant removed the case to the federal court, and moved to set aside the service. Eélá, that the state court had jurisdiction of the property right claimed by defendant under the mortgage, and the service, accordingly, could not be set aside, but that no general judgment could be taken against defendant, and, in requiring him to plead, it should be declared that no judgment or decree rendered should affect any interest or property outside the state of South Carolina.</p>

<p>Appeal from the Circuit Court of the United States for the District of Xew Jersey.</p> <p>This was a suit in equity by Alexandre De Beaumont and Delia De Beaumont, his wife, against Warren Webster, a citizen of the state of Now Jersey, for an accounting under a written contract dated March 21, 18S7. between the said Alexandre De Beaumont on the one side and Warren Webster and Elwood S. Webster on the other. Ifilwood 8. Webster died before tin-, suit was brought. Alexandre De Beaumont had on July 7, 1887, assigned to his wife and co-complainant all his interest in the contract in question, to the use of' himself and family. Alexandre De Beaumont died during the progress of the suit, and a suggestion of his death, and the appointment of his wife as administratrix of his estate, was duly made upon the "record. The circuit court, after a hearing on the merits, dismissed the bill (71 Fed. 226), and the complainant has apipealed.</p> <p>Alexandre De Beaumont was the patentee of letters patent No. 187.S25, dated February 27, 1877, for heaters and feeders for steam boilers, and of letters patent No.. 199,038, dated January 8, 1878, for an improvement thereon. On January 31, 1887, he entered into a contract with Warren Webster and Elwood S. Webster whereby, in consideration of tbe sum of §15 per week as wages, and the further sum of §1 in hand paid by them, he agreed to allow them one-half the net profits arising from and growing out of the sales and adjustments made under these patents. The agreement provided that the Websters were to have tbe exclusive right to the sales and management of all the business connected with the sales and adjustment of said patent, arid were to contribute all necessary capital. Business was begun under this agreement, but it shortly appeared that certain third parties, Palmer and Garratt, claimed title to the patent under an assignment from De Beaumont. Thereupon the contract of January 31, 1887, was canceled; and at the request of De Beaumont the defendant Warren Webster purchased with his own funds the outstanding interest in patent No. 187,825, and took an assignment thereof in his own name. A new contract was then made, dated March 21, 1887, between De Beaumont and tbe Websters, by which it was provided that the Websters “shall have the exclusive rights to the sales and management of -all the business connected with the said patents, including sales to the right to the same in such localities as may by them, the said Warren and' Elwood S. Webster, be deemed advisable; they to contribute so much capital as may be necessary for the prosecution of the business.” The consideration of this contract was recited to be the before-mentioned purchase of the outstanding 'interests in the patent, and the sum of §15 to be paid weekly by the Websters to De Beaumont for wages. De Beaumont agreed to allow each of tbe Websters one-third of tbe net profits of the business, which profits were declared to consist of the amount of money received, less all expenses incident to the prosecution of the business, including all the items for wages, labor, work, and duties performed in and about tbe business.</p> <p>Under this new contract business was carried on for some time. De Beaumont claimed to cover by his patent, No. 187,825, the vacuum system of steam heating known as the “Williames System,” and for which patent No. 256,089 was issued to Napoleon W. Williames; and suit was -brought by Webster against Williames on March 15, 1887, for infringing the De Beaumont patents. Subsequently Mr. Webster was notified that he was infringing upon the Williames patent, and on January 3, 1888, Williames brought suit for infringement against De Beaumont and Webster jointly. Under these circumstances the business did not prosper, and prior to January 6, 1888, tlio Webster brothers submitted a statement of the business done under the. contract, showing a loss of several thousand dollars, to Thomas B. Earned, De Beaumont’s attorney. On that date Earned acknowledged the receipt of the same in the following terms: “I received the statement and am very much surprised at it. X will call and examine the books some time next week. The result is very unsatisfactory.” Thereafter the Websters received the following letter from Mr. Earned:</p> <p>“April 19, 1888.</p> <p>“Messrs. Webster Bros. — Gents: By my advice Mr. De Beaumont and wife have given George A. Barnard, of New York, a power of attorney to act as their exclusive agent in all things pertaining to their rights and interests in patents 387,825 and 35)0,038, and in the future he (Barnard) will give such interest his personal attention.</p> <p>“Very resp’y, T. B. Earned, Atty. of Mr. & Mrs. De Beaumont.”</p> <p>To this letter the following reply was sent:</p> <p>“Philadelphia, Pa., April 19th, 1888.</p> <p>.“.Mr. T. B. Earned, Camden, N. ,T. — Dear Sir: Your letter of .April 3.9th, ’88. in the De Beaumont matter received. Is it writen hy the direction of Mr. Alexandre De Beaumont? Until disputing- any right of Mr. De Beaumont to take Hiis action wo would like to have such notices signed by him, and then there will be no question of authority.</p> <p>“Very respectfully, ' Warren Webster.”</p> <p>Thereafter Mr. Webster received the following letter from Mr. Earned:</p> <p>“Camden, N. J., April 21st, 1888.</p> <p>“Dear Sir: Your letter of 19th is at hand. My letter of 19tA was written by the direction of Alexandre De Beaumont. I am surprised that you should ask the question, inasmuch as you know I am his counsel.</p> <p>“Mr. De Beaumont and wife have signed the power of attorney to Barnard, and my letter was written simply to inform you of that fact.</p> <p>“Respectfully, T. B. Earned.</p> <p>“Mr. Warren Webster.”</p> <p>After receiving this letter, Mr. Webster called upon Mr. Earned, and with reference to the interview then had, he testifies as follows: “Mr. Earned suited that the business had been entirely unsatisfactory, and that the transfer to Mr. Barnard was for the best interest of Mr. and Mrs. De Beaumont. He also stated that he wanted the statement of the business just as soon as ir could be gotten out.” Referring to the same interview, Mr. Webster further testifies: “He stated that the interests of Mr. & Mrs. De Beaumont were in the hands of Mr. Barnard, of New York, which I told him I considered a cancellation of the agreement, and wanted to know if that was what he meant, which he said it was, and which I accepted.” Mr. Webster further testified that after April 19, 3888, De Beaumont did no further work for Webster Bros., and that they paid him no money thereafter as wages, and dirt no further business under the contract. It appears, however, that between that time and September 28, 1891, the 'Websters did install five steam-heating plants, and that on the latter date they accepted a license raider the Williames patent, and have since been engaged in introducing the Williames system, and in granting licenses for the use thereof. The present suit was commenced in October, 1893, and it seeks an accounting in respect io the business in steam heaters, etc., carried oil by the Websters, and by Warren Webster after the death of Ifllwood S. Webster, up to the filing'of the bill. In the summer of 1893 the De Beaumonts also brought a suit against Napoleon W. Williames for infringement of the same two patents involved in the present controversy. The latter suit was dismissed after a hearing on the merits, the court holding that Uie De Beaumont patent, No. 187,825, did not cover the Williames system of vacuum steam heating, and in fact had no relation to any system of vacuum steam heating. See 80 Bed. 95)5. In the suit at bar the bill was dismissed, the court holding that up to the. time the statement heretofore mentioned was rendered to Mr. Earned as the attorney for the De Beaumonts the business had resulted in large losses, and that the contract between De Beaumont and the Websters was canceled by the letters which passed between Mr. ¡lamed ancl the Websters in April, 1888. Before the argument of the cause was entered upon, complainant’s counsel presented a motion in writing to strike out the testimony of Warren Webster on the ground that his examination as a witness in his own behalf occurred after the death of Alexandre De Beaumont, and the substitution of his administratrix as a party plaintiff. The court held that only such testimony should lie excluded as related to transactions with or statements by De1 Beaumont, and that other testimony given by Webster should be retained. The assignments of error were in full as follows: “(1) The learned judge erred in not striking out all of the testimony of Warren Webster. (2) The learned judge erred in considering any oí the testimony of Warren Webster. (3) The learned judge erred in .finding that the letter of Mr. Harned, dated April 19, 1888, was meant to cancel the agreement between the parties upon which suit was brought. (4) The learned judge erred in finding that Mr. Harned had authority to cancel the agreement. (5) The learned judge erred in finding that Mr. and Mrs. De Beaumont knew and acquiesced in what Mr. Harned had done, and fully understood that the contract had come to an end. (6) The learned judge erred in finding that the contract was canceled. (7) The learned judge erred in finding that the business prior to April, 1888, resulted in loss. (8) The learned judge erred in not finding that the contract was in force.after April, 1888, and up to the time of the filing of the bill, and that the plaintiffs are'entitled to an account. (9) The learned judge erred in dismissing the plaintiffs’ bill of complaint. (10) The learned judge erred in not finding that the defendant had continued to use the invention of the plaintiff A. De Beaumont, and that the plaintiffs are entitled to an account as prayed for in the bill.”</p>

<p>Railboad Receivers — Bank Loan — Pledge of Deposits.</p> <p>The R. Railroad was leased to the C. R. R. Co.; the lease providing that the receipts from stations on the road should be deposited in a certain bank, and held as security for the rent accruing monthly; the C. R. R. Co. having the right to check out any sums in excess of the monthly rent. Subsequently the O. R. R. Co. obtained a loan of !?20,000 from the bank, agreeing that the bank might hold any balance in its hands, above the rent, as collateral for such loan. Before the maturity of the loan, receivers of the O. R. IS. Co. were appointed, there being at the time on deposit with the bank a sum, derived from station receipts, slightly less than the rent then due to the R. Co. The receivers subsequently deposited certain sums, received from stations of the R. Railroad and other sources, and the bank claimed to hold such sums to be applied on the loan. A sum sufficient to pay the rent was withdrawn by consent, without prejudice, and applied to the rent. Held, that the money on deposit at the time of the receivership was impressed with a trust for the payment of the rent to the R. Co., and was properly so applied by the receivers, but that, as the receivers took possession, not as the successors or assignees of the O. Co., but for the court, in the interest of all parties, the moneys corning to their hands could not be held by the bank under its agreement with the C. Co., though deposited by the receivers in the bank.</p>

This was a bill in equity, filed by the United States against the Tennessee & Coosa Railroad Company, Hugh Carlisle, and others, under the act of congress of September 29, 1890, to forfeit certain land granted to the state of Alabama to aid in the construction of a railroad. The circuit court, after a hearing on the merits, entered a final decree, the material part of which was as follows: First.

<p>1. Action for Damages under Interstate Commerce Act — Necessary Showing.</p> <p>When relief by way of damages is sought under the provisions of (he interstate commerce act, upon the averment that a shipper has been charged an unreasonable rate for goods transported by a railway company, the plaintiff, in order to be entitled to recover, must show that the rate charged is unreasonable .according to the provisions of that act.</p> <p>2. Same — Standard of Reasonable Rates.</p> <p>The interstate commerce act provides for and prescribes a standard by comparison with which it- may be determined whether a given rate is or is not to be deemed unreasonable within the meaning of the act: and that standard is the rate adopted, printed, and kept posted, as required by. the statute, by those engaged in the business, and subject to the effects of free competition. Courts and juries cannot resort to any other standard.</p> <p>8. ISame — Actions for Damages — Defenses.</p> <p>It is a.’ good defense to an action for damages for alleged extortionate, unjust, discriminating, and unreasonable freight charges to show that the defendant, in obedience to the interstate commerce act, has adopted, printed, and posted a properly proportioned schedule of rates, and that the charges complained of are in accordance with those in the schedule.</p>

<p>Reclamation Distbicts — Liability bob Negligence.</p> <p>A reclamation district, being, under the law of California, a corporation of a quasi public character, is not liable to a private action for negligence in the performance of its duties, or for a nuisance.</p>

<p>1. United States Commissioners — Jurisdiction under Chinese Exclusion Act.</p> <p>A United States commissioner is “a United States judge,” within the meaning of section 6 of the Chinese exclusion act of May 5, 1892, which provides that a Chinese laborer within the limits of the United States who shall neglect to comply with its provisions may he arrested and taken before “a United States judge,” whose duty it shall he to order that he be deported, as that section is to he read in connection with section 3 of the same act, which provides that a Chinese person may he adjudged to be unlawfully within the United States “by a justice, judge, or commissioner.”</p> <p>2. Same — Validity of Order of Deportation.</p> <p>A commissioner haying made an order of deportation under that statute, his further order that the person to be deported “be forthwith taken before the nearest United States judge, that a review of these proceedings may he had and proper order of deportation made,” being unnecessary, may be treated as surplusage.</p>

<p>1. United States Commissioners — Jurisdiction under Chinese Exclusion Act.</p> <p>A commissioner has jurisdiction to make an order of deportation under section 6 of the Chinese exclusion act of May 5, 1S92, and also to order the deportation of Chinese persons who are adjudged, under section 12 of the act of July 5, 1884, to have unlawfully entered the United States. In re Wong Fock, 81 Fed. 558, followed.</p> <p>2. Same — Sufficiency of Findings.</p> <p>It is enough if the order of deportation shows that the person to be deported has been adjudged to be unlawfully within the United States, without a finding stating where he came from, as the specification of the country to which he is to be deported concludes any inquiry on that point.</p> <p>3. Same — Country to which Deported — Habeas Corpus.</p> <p>The person ordered to be deported cannot, on habeas corpus, claim that he was entitled to be deported to a country other than China, as provided by section 2 of the act; his remedy being by appeal, if dissatisfied with the commissioner’s findings in that respect.</p> <p>4. Same — Sufficiency of Order of Deportatton.</p> <p>The order of deportation need not explicitly refer to the specific act of congress under which the person to be deported is adjudged to be unlawfully in the United States.</p> <p>5. Same — -Right to Jury Trim,.</p> <p>The order of deportation may too made without a jury trial, as it is not a punishment for crime. And the fact that a plea of “not guilty” is entered does not change the character of the proceedings.</p>

<p>1. Forgery — Notary Public — False Jurat to Affidavit. '</p> <p>The making by a notary public of a jurat or certificate, containing false statements, to an affidavit in support of a pension claim, does not constitute an offense under Rev. St. § 5421, providing for the punishment of “every person who falsely makes, alters, forp;es or counterfeits * * * any deed, power of attorney, order, certificate, receipt or other writing for the purpose of obtaining or receiving, or enabling any other person, directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money * * the offense defined by said section being the false making or forgery of the writings enumerated.</p> <p>2. Criminal Law — False Affidavit for Pension — What Constitutes Affidavit.</p> <p>An affidavit, within the meaning of Rev. St. § 4746, winch provides for the punishment of “every person who knowingly or wilfully in any wise procures tnc making or presentation of any false or fraudulent affidavit concerning a claim for pension, * * *” includes only the statements or declarations which purport to have heen made under oa.th, and subscribed by the alhaiit; and the fact that the jurat of the notary attached contains false statements dot's not render it a "false affidavit.”</p>

<p>t. Patents — Preliminary Injunction — Prior Adjudication.</p> <p>A preliminary injunction will be granted upon a patent which has been repeatedly sustained, aft,or long, arduous, and expensive litigation, if infringement is shown, unless defendants produce now evidence of invalidity of such a conclusive character that, if introduced in the former cases, it would probably have led to a different conclusion. The burden of establishing this rests on the defendant, and every reasonable doubt will be resolved against him.</p> <p>2. Same — Dredging Machines.</p> <p>The Bowers patent, No. 818,859, for a dredging machine, hc.ld valid and infringed, on motion for preliminary injunction.</p>

This was a suit in equity by the Western Electric Company against the Western Telephone Construction Company, James E. Keelyn, Madison B. Kennedy, and Isador Baumgartl, for alleged infringement of a patent for an improved telephone switch.

Libel in rem to recover $10,000 as damages for personal injuries alleged to have been sustained in consequence of the negligence of the master of the vessel, and of those intrusted by the owners of said vessel with its care and management.

<p>Collision — Mutual Fault — Tow and Sail — Fog.</p> <p>A schooner collided in Lake Michigan, during a fog, with a barge towed by a steamer. The barge did not ring a bell so as to be heard on the other vessels, and the schooner might have avoided the collision by porting her helm after hearing the steamer’s whistle. Bold, that the damages should be divided between the barge and the schooner, both being to blame.</p>

<p>1. Federad Courts — Jurisdiction oe Suits against National. Bank Beoeivers.</p> <p>The federal courts have no jurisdiction of a suit in equity against a national hank receiver, appointed by the comptroller, unless the amount in controversy exceeds if2,000.</p> <p>2. Sauk — Jurisdictional Amount.</p> <p>In a suit by a creditor of an insolvent national bank, in behalf of himself and all other creditors, to enjoin the receiver and the comptroller from paying dividends on an alleged fraudulent claim which has been allowed by them, the jurisdictional amount is to be determined solely by the amount of complairumt’s own claim, and not by the aggregate of all the claims of those whom he assumes to represent, or by the amount of the dividends, payment of which is sought to be enjoined.</p>

TMs was a suit in equity by the’Southern Kailway Company against the North Carolina Railroad Company and others to establish the validity of a lease of the defendant’s road, and to enjoin threatened attacks thereon.

<p>Banks and Banking — Special Deposits — Insolvency.</p> <p>Money deposited in one bank to the account of another, with directions to the latter to pay the amount thereof by telegram to a third bank, is a specific deposit, which may be recovered in full, as against general creditors, where the bank to whose credit the money is deposited receives the same, but suspends before making payment as directed.</p>

This was a suit in equity by George O. Carey, as trustee, etc., against John E. Roosevelt and others, as trustees and legatees under the will of Amos Cotting, deceased, to enforce payment of a judgment previously rendered against the administrators c. t. a. of said (Jotting’s estate.

<p>1. Ejectment against State Officers — Enforcement of Execution.</p> <p>When final judgment in ejectment has been rendered against persons in possession as officers of the state, execution will be enforced, as against a stranger who also claims to be in possession as a state officer, though he asserts that his possession was not acquired through or under the de- ■ fendants.</p> <p>2. ' Same — Lis Pendens.</p> <p>One who obtains possession of premises after entry of final judgment m ejectment against a prior possessor cannot rely on the failure to "file a lis pendens, under Code Civ. Proe. S, O. § 153, as the suit was merged in the judgment, which became notice to all the world, before he obtained possession.</p> <p>8. Lis Pendens — Parties Protected.</p> <p>Failure to file notice of lis pendens, under Code Civ. Proc. S. C. § 153, protects only subsequent purchasers or incumbrancers.</p>

<p>Internal Revenue — Forfeiture Proceedings — Production of Books and Papers.</p> <p>In a proceeding- for forfeiture, based on a charge of fraud in violation of the internal revenue laws, the government will not be required, on motion of an intervening claimant, to produce, for the inspection of such claimant, all books and writings in its possession containing evidence pertinent to the issues; nor to produce or furnish copies of the original measurements of the packages containing the goods in question, such measurements being on file in the office of a collector of internal revenue outside the district where the proceeding is pending.</p>

This was a suit in equity by Joseph K. Priest against the Coates Clipper Manufacturing Company for alleged infringement of reissued letters patent No. 11,411, granted April 10, 1894, to the complainant, for an improvement in hair clippers. The original patent (No. 478,461) was issued July 5, 1892.

This was a suit in equity by Oliver S. Kelly and the General Electric Company against the Springfield Railway ’Company and others for alleged infringement of certain patents for electric railways.

Tliis was a suit in equity by Arthur F. Tyler and others, trustees, against the T. E. Rich Company, far alleged infringement of letters patent Ho. 389,826, to Arthur F. Tyler, for improvements in machines for smoothing and finishing blind slats.

<p>This was a libel in rem in behalf of the owners of the schooner John E. Penrose against the schooner William J. Lipsett to recover damages resulting from a collision between the two vessels in Delaware Hay.</p> <p>The following questions were submitted to Capt. Jarvis Call:</p> <p>(1) Are you a member of the board of survey in admiralty a.t the port of Phila delphia?</p> <p>(2) How much experience have you had as a, master of sailing vessels?</p> <p>(3) Supposing the situation of the Penrose to have been such as her officers described in their testimony, could she have come about southward conveniently, within less space than she covered in doing so? if she could, state about how much less.</p> <p>(4) Could the Lipsett have safely turned westward at the time she shifted eastward and thus have avoided the threatened danger?</p> <p>Jarvis Call, master, will jilease read the testimony of the officers above named and answer the foregoing question» in writing. Wm. Butler, J.</p> <p>June 22, 1897.</p> <p>To the Honorable William Butler, Judge of the District Court of the United States</p> <p>for the Eastern District of Pennsylvania:</p> <p>A. 1. I am a member of the board of surveyors in admiralty at the port of Philadelphia.</p> <p>A. 2. I have been master of sailing vessels for thirty years.</p> <p>A. 3. After carefully considering the positions of the Penrose and the state of the tide and wind at the time, it would be difficult to say just what distance it would take to wear said vessel around. Under favorable circumstances where there was no tide, and in smooth water she ought to go around in three or four times her length when the anchor is off the bottom.</p> <p>In a strong tideway it is not an unfrequent occurrence for a vessel to fall off until she gets the tide on her beam and stops, still continuing to forge ahead. I have known instances of vessels in a strong tideway to go for miles before paying off, tlie vessel being under the influence of the tide and not her helm.</p> <p>A. 4. Considering ail the circumstances, the state of the tide, the direction of the wind, the management of the holm and sails of the Penrose, it is my judgment that she did everything practicable to wear around as soon as possible. The state of the tide did not aid her, striking her side it tended to stop her from failing off. She was moro under its influence than of her helm and would 'thus be retarded in getting around.</p> <p>It Is my opinion that a vessel getting under way has the right of way, while a vessel under way with all sail set is under control and can luff to, or keep off as the case may require. The Lipsett even at a mile distance might easily have changed her course westward and gone under the stem of the Penrose. A change of one or two points would have been sufficient. In her condition she ought to have had complete control of her movements.</p> <p>(Signed) Jarvis Call.</p> <p>Philadelphia, June 24th, 1897.</p>

<p>Obrense Committed by One Indian against Another — Jurisdiction op United States Court.</p> <p>The offense of assault with intent to commit rape, committed by an Indian upon an Indian woman, both residing upon an Indian reservation, is not cognizable as a crime by any statute of the United States, and United Slates courts have no jurisdiction of such offense.</p>

<p>1. Patents — Interpretation—Infringement.</p> <p>In a patent for a heat regulator, the diagrams showed, and the specifications described, a bar designed to expand and contract with changes of temperature, and the patentee stated that the valves were actuated “by the. direct utilization of the mechanical effects of the expansion or contraction of the substances of which the thermostat is composed.” The claims included, as elements of the combination, “a thermostat and a double valve operated directly thereby,” and “a thermostat whose free portion is moved by a change of temperature in the surrounding medium.” Held, that the patent was not infringed by a device in which the thermostatic power was furnished by confined rhigolene, which changes from a liquid to a gaseous form, and back again, with variations of temperature.</p> <p>2. Same — 'Temperature Regulators.</p> <p>The Johnson patent, No. 314,027, for an improvement in “thermo-pneumatic temperature regulators,” construed, and held not infringed.</p>

<p>1. Admiralty Jurisdiction — Statutory Liens — Action for Wrongful Disath.</p> <p>A state statute giving a right of suit in rem against a vessel wrongfully or negligently causing the death of any person (Code Va. § 2902) creates a lion, and may he enforced by a libel in rem in the federal courts, when the accident occurs in waters of the state navigable from the sea. 77 Fed. 906, affirmed.</p> <p>2. Admiralty Appeals — Weight of Evidence — Effect of Decision Below.</p> <p>When all the testimony in the cause has been taken, not before the judge below, but before a commissioner, and is a,ll before the appellate court in his report, that court must examine it for itself, and reach its own conclusions.</p>

This wsts a suit in equity by Charles IT. Hoyt against Edwin G. Bates and others to compel an assignment by. defendants to complainant of a copyright in a song entitled “Sweet Daisy Stokes,” and to enjoin defendants from interfering with the use of said song by complainant. The bill was filed in the superior court for the coimiy of Suffolk, Mass., and was removed to this conrt on petition of the defendants.

<p>Appeal from Hie Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>On May 14, 1895, tlie questions arising in this case were by this court certified to the supreme court for its instructions thereon. The certificate, which fully states the facts, was in full as follows:</p> <p>“The complainant, a citizen of the state of New York, filed his bill in said circuit court against the city of New Orleans, alleging substantially as follows: By act approved March 18, 1858, the legislature of the state of Louisiana undertook to provide for draining and reclaiming portions of the parishes of Orleans and Jefferson. The work was to be accomplished through boards of drainage, commissioners appointed for each of the three districts into which the territory was divided. The funds to pay for work were to be raised as follows: Whenever the several boards were prepared to drain their districts, they were required to cause a plan to be made of the proposed work, designating its subdivisions and the names of the proprietors of the land, etc. This plan was to be filed in the mortgage office, of which notice was required to be published once a week for four consecutive weeks. At the expiration of the no'tice the hoards were to apply to a court specified iu the act, which was required to decree that the district was subject to a first mortgage lien and privilege for such an amount as might he assessed upon the property. After the tax had been levied the court was authorized to render judgment against the several property owners for the amount due by them. By another act, approved March 17, 1859, the boards were authorized to issue bonds to the extent of $300,000 for each district for the purpose of carrying on the work, redeemable out of drainage taxes. By an act approved March 1, 1861, the boards were authorized to apportion the amount which each taxpayer should he required to pay yearly to meet the annual interest and installments due on the bonds. Other and more stringent provisions for the collection of these taxes were also made in the act, such as authorizing judgments to be rendered against the taxpayer and his property, and the issuance of execution as in ordinary cases. The boards of commissioners for the First and Second districts filed plans of the work they proposed to do,' and obtained judgments decreeing the lands in those districts to be subjecr to liens and privileges for the proposed work. They levied assessments payable in installments, and obtained judgments for the amount of the rolls, and some money was collected thereon. By Act 30 of 1871 the several boards of drainage commissioners were abolished, and the work of drainage was transferred to the Mississippi & Mexican Gulf Ship-Canal Company, but the board of administrators of the city of New Orleans for all other purposes was made their successor, and was subrogated to all moneys, assessments, and other assets then belonging to them, and was required to collect such tax and assessments, ^nd to make "and collect an additional tax of two mills per superficial foot on all lands where no tax had been levied for drainage purposes, and that all collections from these sources he placed to the credit of said Mississipifi & Mexican I Gulf Ship-Canal Company, and held as a fund to be applied only to the drain- ] age of the city of New Orleans and Carrollton. By the eighth section of the ' act it was made the duty of the administrator of accounts to draw a warrant ! on the administrator of finance against this fund for the payment of amounts due for all work done by that company. The board of administrators entered on the duties imposed on them under this act, procured the mortgages and liens to he decreed, assessments to he levied, and judgments to be rendered for the taxes assessed in the Third and Fourth drainage districts. The. whole amount of assessments that came under their administration was $1,099,637.37, and of this $1,003,342.28 was assessed against individuals and $096,394.30 against the city of New Orleans on the area of her streets and squares. The work was continued under this act until 1876 by Warner Van Norden, who had become transferee of the said Mississippi & Mexican Gulf Ship-Canal Company. He excavated some 5,000,000 cubic yards of earth, and completed two-tiiirds of the plan of drainage, when Act No. 16, of February 24, 1876, was passed for the purpose of authorizing the city of New Orleans to assume, exclusive control of all drainage work, and, if she desired it or deemed it advisable, to purchase from said canal company and its transferee, Van Norden, all the tools, boats, and apparatus appertaining to drainage work and the franchise of the company, upon an appraisement to be made by appraisers to be appointed by the city council. The act further provided that the price should he paid by the city of New Orleans in drainage warrants in the same form and manner as those theretofore issued under Act 30 of 1871. Pursuant to this act the city council caused the property to be appraised. The valuation was fixed at $300,000, and on the 7th of «Tune, 1876, a formal act of sale and transfer was executed between Warner Van Norden and said canal company and said eily of New Orleans, by which the former made a transfer of the drainage plant and- franchise for said amount, payable in drainage warrants, and the city covenanted ‘not to obstruct or impede, but, on the contrary, to facilitate, by all lawful means, the collection of drainage assessments, as provided by law, until said warrants have been fully paid, it being well understood and agreed by and between said parties thereto that collection of drainage tax assessments should not be diverted from the liquidation of said warrants and expenses under any pretext whatsoever until the full and final payment of the same.’</p> <p>“Up to the date of this sale the city had collected on the assessments against private property 8229.922.S9, leaving «$1,469,714.47 outstanding and uncollected, of which amount the city owed $696,394.30, as assessed against file streets and squares. The drainage warrants issued prior to December 31, 1874, had been paid or taken up before said sale by the issue of bonds of the ‘drainage series’ to the amount of $1,672,105.21 under authority of Act 73, approved April 26, 1872. The thirteenth section of "this act, after providing for the issue oí said bonds, further provided that ‘all taxes collected for drainage and not required for payment of drainage warrants shall be devoted to the purchase from the lowest bidder of bonds issuetl for drainage.’ Complainant sites on three of the drainage warrants, of $2,000 each, given for the purchase price of the drainage plant and franchise sold to the city of New Orleans as above set forth. The bill, after setting out the foregoing stale of facts in more amplified form, avers: (1) That the city of New Orleans, after she became possessed of the drainage franchise, sold some of The drainage machinery, and suffered the rest to become rotten and valueless, and abandoned all work of drainage; that by reason of the noncompletion of the drainage system the supreme court of Louisiana decided the drainage taxes could not be collected, inasmuch as no benefit had been conferred on the property. (2) That the city by various means impeded the collection of drainage taxes, and by her conduct, ordinances, and proclamations encouraged and induced people to refuse to pay the assessments, by reason whereof the drainage assessments due by private persons have become valueless. (3) That the city will plead that site has been discharged from all liability to account for the drainage taxes she has collected, or which she ought to have collected but has wasted, as well as her own indebtedness, by the issuance and delivery, between May 10, 1872, and December 31. 1874. of drainage bonds under authority of Act 73 of 1872. (4) That the city had never claimed, jtrior to the purchase of said property and franchise, that the issuance of said bonds operated as such discharge, and made no such plea, save iu the ease of «Tames W. Peake «against the city of New Orleans, filed March 19, 1888. (5) That the act of 1876 was an authority for the city to make said purchase as well as a, legislative recognition that said drainage fund had not ¡teen discharged by the issue of said bonds, and was an appropriation and dedication of so much thereof as was necessary to pay the purchase warrants without offset or impairment. (6) Thai the contract of sale was entered into by Van Norden in consideration of the provisions of said act of 1876 and its effects on his rights «and remedies; that neither at the time of entering into the contract of sale nor when the warrants were delivered in discharge of the price did the city disclose to him that .she would claim the issuance of said bonds as a discharge of her liability to account for and «apply the drainage taxes, including those due by herself, to the payment of said purchase warrants: that he was ignorant that the city would claim such discharge, and would not have entered into said contract if he had been advised that any such claim would be made as aforesaid; that Van Norden has expressly, and by a writing annexed to avd made part of the bill, subrogated complainant to all his rights and remedies growing out of said sale. The complainant therefore avers that the city is estopped in equity and good conscience from pleading or maintaining such defense. The bill closes with a. prayer for an accounting of said drainage fund, «and especially that the amount due by the city as assesseo of the streets and squares, be decreed to be a trust fund in the hands of the city, applicable to the payment of said drainage warrants.</p> <p>“Defendant demurred to the bill, especially asserting that the decision in the case of Peake v. City of New Orleans, reported in 139 U. S. 342, 11 Sup. Ct. 541, is decisive of the issues in this case. The demurrer having been sustained by the circuit court, the complainant has removed the case to this court for review, assigning, among others, error in this respect. And it appearing that the suit of said Peake was based on drainage warrants given for work, all dated July 9, 1875, complainant insists that they were issued while the city was an involuntary and noncontractual trustee, and in this respect differ from those involved in this ease, which were issued by the city as a voluntary and contractual trustee, under the permissive authority of the legislature, and that, both on principle and owing to the estoppel pleaded in the bill, his rights are not affected by said decision.</p> <p>“The case having been argued in this court on the errors assigned, and this court desiring the instruction of the honorable the supreme court for the proper decision of ihe questions arising herein touching the matter of estoppel aforesaid, and the application of the decision of the supreme court to the issues involved in this suit,rj it is ordered that the following questions and propositions of law be certified to the supreme court in accordance with the provisions of section 6 of the act entitled ‘An act to establish circuit courts of appeal and define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,’ approved March 3, 1891, to wit:</p> <p>“First. Is the city of New Orleans, under the warranties, express and implied;' contained in the contract of sale of June 7, 1876, by which she acquired the property and franchise from Warner Van Norden, and under the averments of the bill, estopped from pleading against the complainant the issuance of bonds to retire $1,672,105.21 of drainage warrants, issued prior to said sale, as a discharge of her obligation to account for drainage funds collected on private property, and as a discharge from her own liability to that fund as assessee of the streets and squares?</p> <p>“Second. Should the decision in the case of Peake v. City of New Orleans, 139 U. S. 342, 11 Sup. Ct. 541, be held to apply to the facts of this case and operate to defeat the complainant’s action?</p> <p>“It is further ordered that a copy of the printed record and the several acts of the legislature, together with copies of the briefs on file in this. court, be sent to the honorable the supreme, court with the transcript certifying the aforesaid questions.”</p> <p>The opinion of the supreme court in respect to the questions thus certified was delivered by Mr. Justice Brewer in the following language:</p> <p>“We had occasion in the recent case of Cross v. Evans, 17 Sup. Ct. 733, to comment on the' practice of certifying questions in such manner as to practically submit the entire case to this court for consideration. In addition to what was said in the opinion then filed, it may be proper to observe that the purpose of the act of 1891, creating the courts of appeal, was to vest final jurisdiction as to certain classes of cases in the courts then created, and this in order that the docket of this court might be relieved, and it be enabled with more promptness to dispose of the cases directly coming to it. In order to guard against any injurious results which might flow from having nine appellate courts, acting independently of each other, power was given to this court to bring before it for decision by certiorari any case pending in either of those courts. In that way it was believed that uniformity of ruling- might be secured, as well as the disposition of cases whose gravity and importance rendered the action of the tribunal of last resort peculiarly desirable; but the power of determining- what cases should be so brought up was vested in this court, and il was not intended to give to any one of the courts of appeal the right to avoid the responsibility cast upon it by statute by transmitting any case it saw fit to this court for decision. If such practice were tolerated, it is easy to be perceived that the purpose of the act might be defeated, and the courts of appeal, by transferring cases here, not only relieve themselves of burden, but also crowd upon this court the very cases which it was the intent of congress they should finally determine. It is true, power was given to the courts of appeal to certify questions, but it is only ‘questions or propositions of law’ which they arc' authorized to certify. And such questions must be, as held^ in the case just cited, ‘distinct questions or propositions of law, unmixed with questions of fact or of mixed law and fact.’ It is not always easy to draw the line, for, in order to present a distinct question of law, it may sometimes be necessary to present many facts upon which that question is based. But care must always be taken that, under the guise of certifying questions, the courts of appeal do not transmit the whole case to us for consideration. Here, in addition to the long- preliminary statement of facts, the court ordered up the entire record, and counsel, in their briefs, assuming that the whole case is before us, have entered into a discussion of many questions, such as the effect of certain limitations in the constitution of Louisiana, which may have been in the case as it was presented to the court of appeals, but cannot be found ill any distinct question of law certified to us.</p> <p>‘•With these preliminary observations, we pass to the consideration of the questions certified, or so much thereof as are distinct questions of law. The first question is one of estoppel. In order to a full understanding of it a brief review of the facts is essential, and for these facts we look simply to the statement prepared by the court of appeals, and not to the bill and exhibits, copies of which it ordered to be sent to this court. From that statement it appears that in 1858 the state of Louisiana undertook the work of draining and reclaiming portions of the parishes of Orleans and Jefferson; that this work was to be done under the direction and control of boards of drainage commissioners appointed for the several districts into which the territory was divided. Provision was made for assessing tlio cost and expenses of the work upon the property benefited. The work continued under these auspices until 1871, when, by an act of the legislature, the boards of drainage commissioners were abolished. and the work of drainage transferred to a canal company. But the duty of collecting the assessments was imposed upon the board of administrators of the city of New Orleans, and the administrator of accounts was directed to draw warrants on the administrator of finance against the drainage fund for the payments of amounts due for the work. Warner Tan Norden became the transferee of the canal company, and completed about two-thirds of the work prior to February 24, 1876. when an act was passed authorizing the city oí New Orleans to assume exclusive control of the drainage work, and, if it desired, to purchase from the canal company and Its transferee all the boats, tools, and apparatus pertaining to the work, and also the franchise of the company. This act further provided that the price should be paid by the city in drainage warrants in the same form and maimer as those theretofore issued. The whole amount of assessments was SI,699.637.37. Of this, $1,003.342.28 was assessed against individuals, and the balance against the city of New Orleans on the ami of its streets and squares. Of the assessment against private property the city had up to this time collected $229,922.89. The drainage warrants issued prior to December 31, 1874, had been paid or taken up before this act of 1876 by the issue of eitv bonds, to the amount of $1.072.105.21, under authority of an ad approved April 20, 1872. The city elected to make the purchase of the property of the canal company and, its transferee. It was appraised at $300,000, and on June 7, 1876. a formal sale and transfer was executed by the company and its transferee to the city for the amount named, payable in drainage war-ranis, and ¡he city covenanted ‘not to obstruct or impede, but. on the contrary, to facilitate, by all lawful means, the collection of drainage assessments, as provided by law, until said warrants have been fully paid, it being well understood and agreed by and between said parties thereto that collection of drainage tax assessments should not- be diverted from the liquidation of said warranto and expenses under any pretext whatsoever until the full and final payment of the same.’</p> <p>“Tt will be seen that the bonds issued by the city more than covered- in amount the assessments against its streets and public grounds and the amount it had collected from private properly, and all this had taken place prior to the purchase of the property from the canal company and its transferee. Now, after the city liad assumed exclusive control of the work, after it had voluntarily purchased from ihe canal company and its transferee their property, and had given these warranto, parable out of the drainage fund, it sold some of the drainage machinery, suffered the rest to become rotten and valueless, and abandoned the work of drainage, so that by reason of the noncompletion of the drainage system, as held by the supreme court of the state, drainage taxes could not be collected; inasmuch as no benefit had been conferred upon the property. Not only that; it by various means impeded the collection of the taxes, and by conduct, ordinances, and proclamations encouraged aud induced the people to refuse, to pay the assessments, whereby those due by private persons became valueless.</p> <p>“And now the question is whether the city is not estopped to plead, in defense of liability on these drainage warrants, the fact of the prior issue of bonds to a larger amount than that assessed against the areas of its streets and squares and collected from private property. We think this question must be answered in the alhrmative. The city, in respect to the purchase of this property from the canal company and its transferee, and in the obligations assumed by the warrants issued, acted voluntarily. It was not, in reference to these matters, as it was to those considered in Peake v. City of New Orleans, 139 U. S. 342, 11 Sup. Ct. 541, a compulsory trustee, but a voluntary contractor; and the proposition which we affirm is that one who purchases property, contracting to pay for it out of a particular fund, and issues warrants therefor payable out of that fund, — a fund yet partially to be created, and created by the performance by him of a statutory duty, — cannot deliberately abandon that duty, take active steps to prevent the further creation of the fund, and then, there being notliingin the fund, plead, in defense to a liability on the warrants drawn on that fund, that it had, prior to the purchase, paid off obligations theretofore created against the fund. AVhatever equity may do in setting off against all warrants drawn before this purchase from the canal company and its transferee the bonds issued by the city (and in respect to that matter we can only refer to Peake v. City of New Orleans, supra), it by no means follows that the city can draw new warrants on the fund in payment for property which it voluntarily purchases, and then abandon the work by which alone the fund could be made good, resort to means within its power to prevent any payments of assessments into that fund, and thus, after violating its contract promise not to obstruct or impede, but on the contrary to facilitate, by all lawful means, the collection of the assessments, plead its prior issue of bonds as a reason for evading any liability upon the warrants. One who purchases property, and pays for it in warrants drawn upon a particular fund, the creation of which depends largely on his own action, is under an implied obligation to do whatever is reasonable and fair to make that fund good. He cannot certainly so act as to prevent the fund being made good, and then say to his vendor, ‘You must look to the fund, and not to me.’ AVe are clear in the opinion, therefore, that the first question must be answered in the affirmative.</p> <p>“AArith reference to the second, we are' of the opinion that it does not come within the rule in respect to certifying distinct questions of law. It invites an inquiry into all the matters considered in the case of Peake v. City of New Orleans (and there were many), and asks whether the matters there decided apply to- the facts of this case and operate to defeat the plaintiff’s action. In other words, the question puts the facts of the one ease over against the facts of the other, and asks us to search the record in each to Fee whether the one case operates to bar the other. Surely that is practically submitting the whole case; instead of certifying a distinct question of law. Our decision, therefore, is that the first question must be answered in the affirmative, and the second we decline to answer.</p>

This suit was brought by Ravaud K. Hawley and Russel A. Alger, the appellees, against D. Edgar Diller, the appellant herein, to compel the appellant to convey certain land to them, which had been conveyed to him by a United States patent.

<p>1. Navigable Waters — Obstructions—Federal and State Legislation.</p> <p>Acts of congress merely making appropriations for the improvement of a river lying within a state do not operate as an inhibition against state legislation authorizing the construction of booms, dams, piers, etc., so as to make unlawful such structures when erected under state authority.</p> <p>2. Same.</p> <p>To bring obstructions and nuisances in navigable waters lying within a-state within the cognizance of the federal courts, there must be some statute of the United States directly applicable to such streams.</p> <p>8. Same — Retroactive Legislation.</p> <p>Act Cong. Sept. 19, 1890 (26 Stat. 426), which, in section 10, prohibits the creation of any obstruction “not affirmatively authorized by law” to the navigable (-¡¡jmcily of any waters over which ihe United States lias jurisdiction, was not retroactive so as to make unlawful the continuance of a boom constructed prior to its passage, under authority oí a state law. 72 Fed. 585, affirmed.</p> <p>4 Same — Effect of State Laws.</p> <p>That a log boom constructed under authority of a state statute on a river lying wholly within the state may not conform to the regulations prescribed by the state statute does not make it an unlawful structure, so as to be cognizable in the federal courts, under Act Cong. Sept. 19, 1890 (26 Stat. 426). The question whether it does comply with the provisions of the state statute is a state, and not a federal, question.</p>

This was a suit by the Burdon Central Sugar-Refining Company against the Ferris Sugar-Manufacturing Company, for the appointment of a receiver, etc. A receiver was accordingly appointed, and thereafter the firm of J. U. Payne & Co. filed an intervening pcti tion, setting up certain alleged liens on property found on the premises, and also on the sugar bounty due under the act of October 1, 1890.

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

<p>1. Master and Servant — Unsafe Premises — Instructions.</p> <p>In an action hy a railway brakeman for injuries suffered in uncoupling cars through an alleged defect in the track, an instruction that defendant ‘•undertook to furnish plaintiff a reasonably safe place to work"’ is erroneous; defendant’s true obligation being to exercise ordinary and reasonable care, having regard to the hazards of the service, to furnish a reasonably safe place to work and to keep it in reasonably safe repair.</p> <p>2. Trial — Correcting Erroneous Instructions.</p> <p>When it is proposed by á further Instruction to correct an erroneous charge, the purpose should be stated, and the explanation made so clear as to leave no room for reasonable mistake.</p> <p>3. Negligence — Proximate Cause — Question for Jury.</p> <p>When negligence, if established as alleged or asserted, clearly contributed to rite injury, it should not bo left to the jury to say whether that negligence was the proximate cause of the injury.</p>

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

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

This was a hearing upon return to- a writ of habeas corpus issued in behalf of Tsu Tse Mee, a Chinese person, under sentence of deportation from this country.

This was a suit in equity by Emilie Saxlehner against Harry C. G-raef and another, agents of the Apollinaris Company, to enjoin the use by the latter of certain alleged infringing labels and trade-marks in the sale of mineral waters. The cause was heard on motion for a preliminary injunction.

This is a hill in equity, brought by the St. Louis Car-Coupler Company, as complainant, to enjoin the National Malleable Costings Company, defendant, from further alleged infringement of a patent for an automatic car coupler averred to he the property of the complainant and for the damages arising from past infringements.

This suit was brought by the Kansas City Hay-Press Company, the appellant, against H. S. Devol, George Devol, and W. S. Livengood, the appellees, to restrain the infringement of the following letters patent, to wot: Patent No. 338,-898, issued to Ephraim C. Sooy March 8,1887; patent No. 333.012, issued to said Sooy May 17,1887: patent No. 380.330, issued to said Sooy July 17,1888; patent No. 394,023, issued to said Sooy on December 18,1888; patent No. 450,239, issued to said…

Action at law against an assessor and the sureties on his official bond to recover $10,000 damages for an excessive assessment alleged to have been made maliciously upon plaintiff’s property. Demurrer that the complaint does not state facts sufficient to constitute a cause of action.

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

This was a libel by Joseph Defrier and others against the steamship ^Nicaragua to recover damages suffered because of alleged insufficiency of food and accommodations furnished to them as passengers.

<p>Forfeiture of Vessel to United States — Liens for Supplies.</p> <p>The forfeiture of a vessel to the United States does not cut off liens of innocent parties for supplies furnished in a foreign port prior to the act for which the forfeiture is declared. 74 Fed. 246, reversed.</p>

<p>1. Federal, Courts — Jurisdiction—Ancillary Proceeding.</p> <p>A bill in equity filed in the circuit court against the parties to an action at law, which has proceeded to judgment in said court, to enjoin the enforcement of such judgment, and for permission to the complainant to intervene in said action and set up a defense, is ancillary to the original action, so far as the question of jurisdiction is concerned, and may be maintained without regard 1o diversity of citizenship.</p> <p>2. Judgment — Rns Judicata — Equity.</p> <p>One wiio has filed a petition to be allowed io intervene and defend in an action at law in the circuit court between citizens of another state and a municipal corporation of which he is a, citizen and a taxpayer, and whose petition lias been denied on the ground that his status as a taxpayer did not entitle him to intervene, cannot afterwards maintain a bill in equity in said court to enjoin further proceedings in the action at law, and for leave to intervene therein.</p>

<p>Receivers — Compensation— Objections to Report.</p> <p>Where an order of court is ma.de that a railroad receiver shall be paid a monthly salary for his services until lie shall be discharged, and he continues to act as receiver, making quarterly reports showing tlie payment to himself of such compensation each month, and such reports are 'conlirmed without objection, and no steps are taken by those interested to have him discharged, objections afterwards filed to bis reports and compensation, on the ground that he ought to have been discharged years before, should be overruled, and the compensation allowed as long as' he continues to act.</p>

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

<p>In Error to the Circuit Court of the United States for the North-, ern District of Texas.</p>

<p>1. Railroad Mortgages — Claims for Pdrohase Money of Right of Way-Priorities.</p> <p>Railroad mortgage bondholders, who, hy virtue of a future-acquired property clause in their mortgage, obtain an interest in or lien upon lands condemned for the use of the company, hold subject to the claim of the prior owner for the purchase money.</p> <p>S. Same.</p> <p>Holders of railroad bonds secured by a mortgage made after certain property has been taken for the use of the road, but before compensation has been made, take subject to the compensation which may he adjudged therefor, and are hound by the judgment, though they were not parties to the suit in which it was rendered.</p> <p>3. Same-'-Foreclosure Suits — Priorities—State Judgments.</p> <p>H. owned a lot, which originally formed part of a large tract owned by T., and the only means of access to the lot was a highway running across the front of the original tract. The highway was discontinued hy the county court without making any other provision for access to the lots fronting thereon. The strip that had formed the highway was thereafter condemned hy a railroad company in proceedings brought against the heirs of T., on the theory that the land had reverted to them, and the compensation adjudged to them was paid. The railroad having been constructed with an embankment which interfered with Il.’s ingress and egress, she sued the company for damages thereto, and obtained a money judgment; the court holding that when the fee reverted, if it did revert, to the heirs of T., it was subject to a contractual easement for ingress and egress, which had previously arisen in favor of the various purchasers of lots constituting part of the original tract, aud for injury to this easement damages were adjudged. A suit having been brought in a-federal court to foreclose mortgages on the railroad, H. intervened, setting up her judgment as a preferred claim. Held, that the mortgage bondholders were hound hy the judgment of the state court, though their trustee was not a party thereto, and that the judgment was entitléd to priority over the bonds.</p>

This was a bill in equity by W. A. Latimer, receiver of the First National Bank of Sedalia, against the Equitable Loan & Investment Company and Adam Ittel, to enforce the alleged right of a stockholder to withdraw from the association.

<p>Interstate Commerce Act — Local Roams — Reports.</p> <p>A railroad lying wholly within a slate, which transports freight, whether coming from within or without the state, solely on local bills of lading, under a special contract limited to its own line, and without dividing charges with any other carriers or assuming any other obligations to or for them, does not come within the provisions of the interstate commerce act, and is not bound to make any report of its business to the interstate commerce commission.</p>

. The defendants in error, Mary Ann Pendleton and other heirs at law of Greed T. Pendleton, deceased, instituted tlieir action of trespass to try title in the United States circuit court at Waco, against i). S. McDaniel and the other plaintiffs in error herein, on February 6, 1898, claiming one league and labor of land lying in Coleman county.

This was an action by the widow of Davis Elder to recover damages for the negligent killing of her husband while crossing the track of the Southern Railway Company at a point where the railroad was crossed at right angles by a public road upon which the deceased was traveling.

<p>1. Life Insurance — Place of Contract.</p> <p>Where an application for life insurance was made in the territory of W;_ >iiington, and the advance premium paid there to the company’s agent, to be forwarded to the company, under an agreement that the insurance should not take effect unless the premium was accepted and the risk.approved by the company in New York, and, by the terms of the policy issued, all premiums and the policy itself were payable in New York, and proof of death was to be there made, the policy is a New York contract, and the rights of the parties thereunder are governed by the statutes of that state, there being no statute in the territory or state of Washington affecting the right of the parties to so contract.</p> <p>2. Same — Forfeiture for Nonpayment of Premium — Statute.</p> <p>The statute of New York providing that no life insurance company doing business in that state shall have power to declare a policy forfeited for nonpayment of premiums, anything to the contrary in the policy notwithstanding, until 30 days after it shall have mailed a notice to the assured or to liis assignee, as therein prescribed, and stating that the policy will be forfeited unless payment is made within 30 days, unless a similar notice shall have been mailed not less than 30 nor more than 60 days previous to the maturity of the premium, which shall state the date of such maturity, applies to and governs a policy issued and to be performed in New York, though the assured resides in another state.</p> <p>3. Same — Action on Policy — Evidence.</p> <p>Under the provision of the New York statute making the affidavit of any officer, clerk, or agent of a life insurance company, that the notice required by the statute to be given to a policy holder before a forfeiture of the policy for nonpayment of premiums can be declared has been duly addressed and mailed, presumptive evidence of such fact, evidence to rebut such presumption may be given by the adverse party, and may consist in part of evidence of the nonreceipt of such notice by the assured.</p> <p>4. • Same — Waiver of Statutory Requirement.</p> <p>The statute of New York declaring that no life insurance company shall have power to declare a policy forfeited for nonpayment of premiums until 30 days after the notice therein prescribed shall have been given is mandatory, and its requirements cannot be waived by the parties.</p>

<p>1. Carriers — Interstate Commerce Act — Unreasonable Charges — Plead ING.*</p> <p>The schedule of rates required to be established, published, and filed with the commissioners by a common carrier, by the interstate commerce act, is, prima facie, the criterion in determining whether or not a given charge is unreasonable; and a petition to recover, under section 1 of such act, which fails to allege either that the defendant had no published schedule of rates, or that it charged plaintiff in excess of rates thereby fixed, is insufficient.</p> <p>2. Same — Discrimination—Petition—Averment.</p> <p>A petition to recover under section 2 of the interstate commerce act is sufficient if it states facts which show the circumstances and conditions under wffiieh the defendant had charged plaintiff a given rate for transportation of freight, and alleges, in the language of the act, that for like services, under substantially similar circumstances and conditions, the defendant had charged another a less given rate, without alleging facts which show that the services were alike, or rendered under substantially similar circumstances and conditions, or that plaintiff was charged more than the schedule rate.</p>

<p>Promissory Note — Fau/ure ob’ Consideration.</p> <p>The maker of a promissory note given in payment for slock in a national bank, and immediately transferred by indorsement to said bank by the payee, cannot resist payment of the note, in the hands of a receiver oT the bank, on a plea, of failure of consideration because of the insolvency of the bank, where the payee has fully indemnified him against loss.</p>

This was an action for personal injuries hv John P. Camp against the Baltimore & Ohio Railroad Company. There was judgment for plaintiff, and defendant brings error.

<p>Neoliqbnce — Owner of Vessel — Liability to Stevedore.</p> <p>An employs o£ a company of stevedores unloading a vessel may maintain an action for damages against the owners of the vessel for injuries received by reason of stepping on the cover of a manhole on the deck which the owners had carelessly and negligently permitted to become defective, out of repair, and unsafe. '</p>

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

<p>Master and Servant — Contract of Employment — Construction.</p> <p>A contract between a corporation and a. workman who has received injuries while in its service, that he shall be paid a given rate of wages per month, and shall render such services as he can, without any stipulation as to duration, is not an undertaking to pay such workman an annuity during the remainder of his life, but a contract of employment by the month, which may be terminated by either party at the end of any month.</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>Suit on Postmaster’s Bond — Evidence.</p> <p>Rev. St. § 952, providing that “no claim for a credit shall be allowed upon-the trial of any suit for delinquency against a postmaster * * * unless the same has been presented to the sixth auditor, and by him disallowed,” etc., does not affect the admissibility of evidence offered to show that the defendant never received the amounts with which he is charged.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>This was an action by the Kentucky Refining Company against the Merchants’ & Planters’ Oil Company to recover possession of certain oil cars, with damages for their detention. In the court below the jury found for plaintiff as to the title and possession of the cars, and also found he was entitled to $6á0 as the reasonable rental of the cars for the period of detention.</p> <p>The plaintiff in its second amended original petition alleged, in substance, that about March 12, 1893, plaintiff owned and was in possession of the eight cars in question; that on that day the defendant unlawfully took said cars from plaintiff’s possession, and has since wrongfully detained them; that the reasonable value of the use of each of said cars was $5 per day, which defendant well knew. The plaintiff further alleged that defendant fraudulently induced plaintiff to send its cars ftom its place of business at Louisville, Ky., to defendant, at Houston, Tex., by fraudulently representing, through its agents, that it had 1,000 barrels strictly prime yellow summer cotton-seed oil, which it would sell to plaintiff if the latter would send sufficient oil cars to transport the same; that plaintiff, believing these representations, 'accepted the offer, and requested defendant to send it a sample of the oil; that, on defendant’s insistence, it forwarded the cars before receiving the sample; that the sample, when received, showed that the oil was not strictly prime summer yellow, but was of an inferior grade, and plaintiff at once notified defendant that it would not accept any but strictly prime summer yellow cotton-seed oil, to which defendant replied that it had no such oil; that plaintiff, having in this manner wrongfully obtained possession of the cars, failed and refused to deliver them up on demand by plaintiff, but unlawfully and wrongfully held them until plaintiff obtained possession by the writ of sequestration issued in this suit. The plaintiff prayed judgment for actual damages in the sum of $8,000, alleged to consist of the reasonable rental value of the ears, the expenses incident to sending them to defendant, and to obtaining possession by means of the writ of sequestration, and to sending agents from Louisville and Chicago to Galveston, Tex., to represent plaintiff in the suit, and to testify therein. Plaintiff further asked exemplary and vindictive damages in the sum of $50,000 for the fraudulent and malicious acts of defendant in inducing- plaintiff to send it the cars, etc.</p> <p>To this pleading the defendant set up a counterclaim and plea in reconvention, in which it was alleged, in substance, that about February 28, 1893, the plaintiff, in the usual course of business, purchased from defendant, through Benjamin McLean & Co., acting- as brokers, 1,000 barrels of yellow prime cotton-seed oil, to be delivered by defendant at its mills in Houston, Tex., in tank cars to be furnished by plaintiff, at the price of 50 cents per gallon, amounting to $25,000. Defendant alleged that it stood ready at all times to comply with its part of the contract, and that plaintiff neglected to forward the cars promptly as agreed, and did not forward them until three weeks after the sale. Defendant further charged that plaintiff violated its contract of sale, refused .to pay for the oil, and notified defendant not to ship it; that the price of oil declined after the sale, and for this reason, and no other, plaintiff refused to accept the oil tendered. Defendant further alleged that thereafter it tried to sell the oil elsewhere, but that 40 cents per gallon was the highest price it could obtain for it, by reason whereof it was damaged in the sum of $6,000, for which it prayed judgment.</p> <p>The first trial of the ease resulted in a verdict and judgment for plaintiff; but the judgment, was reversed on error, by this court. See 69 Fed. 218. On Hie second trial the court charged the jury to find for plaintiff as to title and ownership of the cars, and for defendant on the question of exemplary damages, but submitted to the jury the question of the rental value of the cars during their detention; refusing defendant’s request to instruct the jury that defendant could recover nothing on this head because the action was for deceit, and tho allegations and proofs did not correspond. A verdict was rendered accordingly, fixing the damages at §040, and, to review the judgment entered thereon, defendant sued out this writ of error.</p> <p>The plaintiff's petition in this case states an action for tort and deceit, alleging the details of the transaction between plaintiff and defendant by way of inducement. The evidence discloses a contract between the parties, and that, if the plaintiff had any cause of action, it'was for a breach of the same. There Is a fatal variance between the allegata and the probata, and the declaration in the petition of an action of tort is not supported by the evidence, because the evidence discloses a contract, and the plaintiff cannot sue for tort and recover for breach of contract, and the verdict and judgment are wholly without any legal evidence to support them. Cooley, Torts, p. 106; 1 Wait, Act. & Def. p. 132; 5 Am. & Eng. Enc. Law, p. 30; Benj. Sales (2d Ed.) p. 1075; 28 Am. & Eng. Enc. Law, p. 60; Johnson v. Moss, 45 Cal. 515; Boardman v. Griffin, 52 Ind. 101; Long v. Doxey, 50 Ind. 385; Waldhier v. Railway Co., 71 Mo. 514; Buffington v. Railway Co., 64 Mo. 246; Hackett v. Bank, 57 Cal. 335; Rothe v. Rothe. 31 Wis. 570; De Graw v. Elmore, 50 N. Y. 1; Ross v. Mather, 51 N. Y. 108; People v. Dennison, 84 N. Y. 272; Watts v. McAllister, 33 Ind. 264; Johannesson v. Borschenius, 35 Wis. 131; Beck v. Ferrara, 19 Mo. 30; Dean v. Yates, 22 Ohio St. 388; People v. Cushman, 1 Hun, 73; Masten v. Griffing. 33 Cal. 111; Cowles v. Warner, 22 Minn. 449; Cummings v. Long, 25 Minn. 337; 28 Am. & Eng. Enc. Law, 61; Sanches v. Railway Co., 88 Tex. 117, 30 S. W. 431.</p> <p>Under the statutory laws of Texas the pleader is required to set forth a full and clear statement of the cause of action, and such other allegations pertinent to the cause as the plaintiff may deem necessary to sustain ills suit, and state the nature of the relief which he requests of the court. The pleading shall consist of a statement, in logical and legal form, of the facts constituting tho plaintiff’s cause of action or the defendant’s ground of defense. This proposition virtually copies articles 1195 and 1197 of the Revised Statutes of Texas of 1879. Construing these statutes in Estes v. Browning, 11 Tex. 237, it is said: “We have no forms of action, and if, upon tho facts staled, the plaintiff be entitled to recover, he may have Ijis judgment; also, a trespass may be waived, and suit brought for the value of the use and occupation.” In Shirley v. Railway Co., 78 Tex. 131, 10 S. W. 543, it Is said, “A tort is generally described as a wrong independent of a contract, though it is conceded that a tort may grow out of, make a part of, or be coincident with, a contract.” See, also, Cooley. Torts, p. 3, note 1; Railway Co. v. Levy, 59 Tex. 548; Pridgin v. Strickland, 8 Tex. 427.</p>

<p>Legal Day’s Work — Right of Action for Additional Hours.</p> <p>One employed as a laborer in the service of the United States, at a given monthly salary, who, without objection, works at such employment more than eight hours each day, and who, without protest, accepts the agreed monthly pay, has no right of action against the government for additional compensation for such extra hours of labor, in the absence of an express contract therefor.</p>

<p>Deportation op Chinese — Laborer—Merchant.</p> <p>A Chinaman, who is a member of a firm of Chinese merchants engaged in buying and selling merchandise at a fixed place of business, and who is sent out by such firm, as an employé, to take charge of another mercantile establishment in which said firm owns a one-half interest, is a merchant, and not a laborer, within the meaning of the act of November 3, 1893, and is not liable to deportation while thus employed.</p>

The defendant stands indicted for perjury, as defined by Rev. St. U. S. § 5392, upon an examination before Pension Examiner W. M. Ragsdale, had on the 14th day of November, 1895, at his office, in the city of Memphis.

<p>1. Patents — Validity of Reissues.</p> <p>It is essential to the validity of a reissue that it shall be for the same invention as the original, as such invention appears from the specifications and claims. Topliff v. Topliff, 12 Sup. Ct. 825, 145 U. S. 156, followed.</p> <p>S. Same.</p> <p>The MyerS reissue, No. 11,383, for a stove consisting of devices whereby an ordinary coal-oil lamp may be used in a fireplace, is not invalid by reason of a broadening of the claims of the original through the omission of certain unpatentable elements, such as the wheels or rollers upon which the stove is supported, the handles of the reservoir, the length of the lamp chimney, and the cup-shaped shield by which the chimney is protected from liquids. Nor is this reissue invalid by reason of the granting, between the date of the original and the reissue, of the Browne patent for “an appliance for heating, illuminating, or culinary purposes"; Browne having merely substituted a base ring of the Myers original, and added a heat-deflecting ring on the top.</p> <p>3. Same — Designs for Stoves.</p> <p>The Myers patent, No. 22,911, for a design for a lamp stove, shows sufficient originality and invention to sustain its validity. Gilbert, Circuit Judge, dissenting.</p>

<p>Patentable Invention — Combinations—Electric Heaters.</p> <p>The Dewey patent, No. 464,247, is void for want of patentable invention as to claim 9, which is for a combination of heating conductors adapted to be connected in different ways with the supply conductors, a switch for controlling- said connections, and an indicator, operated by the movement of the switch, to show how the connections stand. 78 Eed. 483, reversed.</p>

<p>. Patents — Action at Law for Infringement — Damages.</p> <p>In an action at law for infringement, where plaintiff shows no established license fee, no market price, and no other'use of the invention than that by defendant, there can be no recovery beyond nominal damages, and it is error to leave it to the jury to determine what would be a reasonable royalty.</p>

<p>1. Patents — Mechanical Equivalents.</p> <p>To convert a plate yielding bodily to effect a tripping by the receding of a lug when it comes in conract with the object to be tripped into a plate having yielding lugs performing the same functions Is not invention, but mere use of a mechanical equivalent.</p> <p>8. Same — Jacking Apparatus.</p> <p>The Barrett patent, No. 455,993, for a. jacking apparatus, construed, and held infringed as to claims 1 and 6. 78 Fed. 626, affirmed.</p>

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

<p>Patents — Infringement—Steam-Engine Lubricators.</p> <p>The Craig patent, No. 398,588, for an improvement in sight-feed steam-engine lubricators, construed, limited, and held not infringed.</p>

<p>1. Circuit Courts of Appeal — Jurisdiction—Admiralty Appeals.</p> <p>In a suit in admiralty, where the district court lias jurisdiction of the parties and the res, hut dismisses the libel on the ground that the cause of action is barred by lapse of time, the question involved, on an appeal from such decree, is not one concerning the jurisdiction of the district court, so as to prevent the circuit court of appeals from taking jurisdiction.</p> <p>2. Appealable Decrees — Proceedings Subsequent to Mandate.</p> <p>A new question arising in the trial court in proceedings subsequent to the mandate of an appellate court, and not included therein, may be the subject of another appeal.</p> <p>3. Statutes 'of Limitation — Commencement of Suits — Admiralty Cases.</p> <p>A provision in a state statute that an action shall be deemed commenced as to each defendant when the complaint is filed and the summons is served on him, etc., does not apply to admiraltj suits in the federal courts. 73 Fed. 846, reversed'.</p> <p>4. Same.</p> <p>After a vessel libeled for collision had been released on stipulation, the personal representatives of one killed in the collision intervened to recover damages under a state statute. Monition and citation based thereon were duly issued a.nd published, but the ship was not then seized, on the theory that the stipulation therefor given stood lor her in respect to the claim set up by the intervening petition. A recovery was had in the district court, but on an appeal it was held that the liability of the claimant on the stipulation could not be increased by the subsequent intervention of new claims, and that, when subsequent intervening claims are filed, the vessel must be again arrested. The court, therefore reversed the decree, and remanded the cause for further proceedings, but without prejudice to the right of the court below to treat the intervening petition as an independent libel, and issue process thereon. This was accordingly done, and the vessel was again arrested. Hebl, that the intervening suit was to be deemed commenced from the original filing of the intervening petition so as to stop the running of limitation, and not merely from the date of the issuance of process. 73 Fed. 846, reversed.</p>

This is an action for personal injuries, brought in the state court by Harrison Kay against Robert B. F. Peirce, as receiver of the Toledo, St. Louis & Kansas ¿pity Railroad Company. A petition by defendant for removal was denied by the state court, whereupon he procured a transcript, and filed it in this court.

<p>Removal of Causes — Receiver—Amount in Controversy.</p> <p>Where a suit is instituted in a state court against the receiver of a railroad appointed by the federal court for that district without leave of the court by which he was appointed, the receiver may remove the cause to the court administering the trust, although the amount in controversy is less than $2,000.</p>

This suit is brought by tbe complainant, tbe Metropolitan Life Insurance Company, against Webb MdSTall, as superintendent of insurance of the state of Kansas, for tbe purpose of obtaining a perpetual injunction restraining Mm from revoking tlie license of the complainant to do business in the state of Kansas. The bill avers: That' the complainant is a corporation organized and existing under the laws of the state of New York, and is a citizen of that state.

Motion on behalf of plaintiffs for an order on A. J. Cassatt to testify, under a pending eight-day rule, touching an agreement between the Pennsylvania Railroad Company and the National Transit Company, dated August 22, 1884.

<p>1. Fraudtjijent Conveyance — Consideration-Preferring Creditors.</p> <p>A conveyance of real estate, made in good faitli by a failing debtor, in consideration that the grantee assumes and agrees to pay bona fide debts of the grantor to an amount near the value of the property, will not be set aside as in fraud of other creditors, although it appears that the purpose was to prefer certain creditors. . ' ‘</p> <p>2. Same — Kindred of Debtor and Creditor.</p> <p>The fact that a son of an insolvent debtor, who conveyed property in consideration of the assumption of certain of his debts by the grantee, subsequently purchased the principal part of,the debts assumed, is not of itself sufficient to establish fraud in the conveyance.</p>

This was a suit in equity to enjoin the prosecution of a creditors’ hill filed by the Miners’ Bank of' Joplin to enforce collection of a judgment against the respondent Corwin C. Thompson. Demurrers were sustained to the original and amended and supplemental bills, and decree entered dismissing the suit as against the bank for want of equity.

<p>1. Equity Jurisdiction — Sufficiency of Bill.</p> <p>A bill which sets forth that the respondents have brought suit against the complainants for the alleged infringement of a certain patent, a,nd that in advance of any adjudication of the validity of the patent the respondents have circulated among the customers of the complainants, with intent to destroy the complainants’ business, circulars which are “false, injurious, malicious, scandalous, threatening, and intimidating,” alleges facts which, if sustained, entitle the complainants to equitable relief.</p> <p>2. Same — Ground of Relief.</p> <p>Where a bill in equity is brought, by a respondent in a suit based upon the alleged infringement of a patent, to restrain the complainant in the patent suit from threatening and intimidating the customers of the respondent in that suit from dealing with it, the only legitimate inquiry is whether the acts and .conduct q£ the complainants in the former suit are such as a court of equity should restrain the owner of a presumptively valid patent from doing and pursuing.</p> <p>3. Equity Pleading — Demurrer — Admission.</p> <p>Where, in such a ease, the bill contains an allegation that the patents of the respondents are invalid, and, even if valid, are not infringed, a demurrer to the bill is neither an admission nor a denial of invalidity or noninfringement, but simply challenges the right of the complainants to have either of these questions tried in the manner proposed.</p> <p>4. Same — Sufficiency of Bill — Allegation of Conspiracy.</p> <p>The allegation of conspiracy in such a bill is of no potency, since, if what has been done is wrongful, its continuance should be enjoined, if done only by one of the defendants, as if done by boili of them in co-operation; and, if what has been done is not wrongful, the fact that the defendants may have combined to do it would not make it so.</p>

, This was a suit in equity by William U. Burke against Frank L. Davis. The facts stated in the bill are substantially these: In the year 1888 the complainant, the appellant here, ivas engaged in the manufacture, importation, and sale of marble and mosaic decorations for buildings, having establishments at Chicago. Buffalo, New York, London, and Paris.

On the Intervening Petition of Samuel M. Felton, Receiver. In the matter of payment of interest upon the rent due to the city of Cincinnati. The city of Cincinnati is the owner of a railway running from Cincinnati to Chattanooga. The railway is held for the city by the trustees of the Cincinnati Southern Railway.

This was a case stated, filed by agreement of the parties, to be of. the same force and effect as if the facts set out had been found by the court in an equity proceeding.

' The county of Polk and the city of Cedartown, municipal corporations of the state of Georgia, filed petitions of intervention in the suit of the Central Trust Company of New York against the Savannah & Western Railroad Company, pending in the circuit court of the United States’ for the Northern district of Georgia, by winch it was sought to compel Hugh M. Comer and R. ,).

Appeal .from the Circuit Court of the United States for the Northern District of Illinois. This appeal, it is contended, Is from an interlocutory order denying a motion for an injunction. The Farmers’ Loan & Trust Company, the appellee, ancl the American Trust & Savings Bank, the appellant, were made co-trustees of a mortgage or trust deed executed by the Lake Street Elevated Railroad Company.

This was a petition for allowance of an appeal from the order of the court dismissing exceptions to the clerk’s taxation of costs. Motion for the withdrawal of the approval of surety upon appellant's bond.

<p>1. Contract for Sale of Bonds — Mutuality.</p> <p>A contract for the sale of municipal bonds, to be delivered and paid for in the future, is not invalid for want of mutuality because of a provision that before acceptance of the bonds the seller shall furnish the buyer with a certified transcript of proceedings evidencing legality of issue to the satisfaction of the buyer’s counsel, as such provision requires the buyer to submit the evidence to his counsel, and the counsel to xiass thereon in good faith, and not capriciously.</p> <p>2. Same — Seller’s Right to Rescind.</p> <p>A refusal to accept and pay for such bonds until all the stixiulated evidence of their legality is furnished, where such evidence is obtainable, is not a repudiation of the contract on the part of the buyers, authorizing the sellers to rescind it.</p>

In pursuance of a stipulation in writing waiving a jury, this cause was tried by the court without the intervention of a jury on the 20th day of April, 1897.

<p>Parties —Intervention.</p> <p>Holders of bonds secured by a mortgage, to the lien whereof certain machinery is subject, are not entitled to intervene as parties defendant, in an action of replevin for the machinery, where the defendant has elected to give a claim property bond to the marshal, and to' retain the machinery, as their interest cannot be affected by the decision.</p>

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

<p>Buii.dtxs Contract — Construction—Performance.</p> <p>Where a contract provides that work is to be done according to certain plans and specifications, and materials furnished to be of the best, and to be to the entire satisfaction of the architect and owner, if it appears that the materials furnished were satisfactory, ana the work was done according to the plans and specifications, the contractor is entitled to recover.</p>

<p>I.n Error to the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>This was an action for personal injury, brought by Hooper, the defendant in error, against Whitcomb and Morris, as receivers of the Wisconsin Central Railway Company, — the company being so named in tiro praecipe, the summons, the marshal’s return of service of the summons, and in the complaint afterwards filed. The plaintiffs in error, aider being served with a copy of the comniaint. filed an answer entitled as if in an action against them as receivers of the Wisconsin Central Railroad Company. They admitted by their answer their appointment as receivers of the Wisconsin Central Railroad Company, as alleged in the complaint, though misnamed the Wisconsin Central Railway Company therein, and denied all other allegations of ihe complaint. Upon the issues so joined testimony on both sides was taken. It was shown by the defendants, and was not disputed, that on September 27, 1893, they were appointed receivers of the Wisconsin Central Company by the circuit courts of the United States for the Eastern and Western districts of Wisconsin, and on the same day, in a separate action for foreclosure, were appointed by the same courts receivers of the Wisconsin Central Railroad Company; that as receivers of the Wisconsin Central Company they were at the time of the injury in question the sole employers of the plaintiff, and of all those engaged with him in the operation of trains on the. tracks where he was hurt, and that as receivers of the Wisconsin Central Railroad Company they had no interest in the work which was then being done, or in the parties employed in doing it. At the close of the testimony the defendant in error offered an affidavit, which the court declared unnecessary, and on motion, which the affidavit was designed to support, obtained leave to strike the word “Railway” from the title of the cause. That having been done, the defendants moved that the jury be directed to return a verdict in favor of the defendants as receivers of the Wisconsin Central Eailroacl Company. The court denied the motion. and thereupon counsel, who had conducted the trial for the receivers, appeared especially fo-r them as receivers of the Wisconsin Central Company, and objected to the jurisdiction of the court to proceed to judgment against them in that capacity, because they had not been served with process, and had not voluntarily appeared, and because the action had not been brought in the proper district: but the objections were overruled, and the case was given to the jury without further' appearance of counsel for the xdaintiffs in error as receivers of the Wisconsin Central- Company. Exception in proper form was saved to eacn ruIMg of which complaint is made.</p>

<p>1. Municipal Corporations — Taxation of Telegraph Company — Unreasonable Fees.</p> <p>In an action by the city of Philadelphia to recover certain charges imposed by two municipal ordinances for the supervision and control of telegraph poles and wires, one of which ordinances imposed a charge of $1 per annum for each telegraph pole maintained within the city limits, and the other of which required, in addition to this pole charge, the annual payment of $2.50 per mile on all wires suspended above ground, it was testified, and uneontradicted, that the total cost to the city of inspecting and supervising the poles and wires by the department having charge thereof did not exceed 50 cents per pole. Held, that the ordinances were unreasonable and void. City of Philadelphia v. W. U. Tel. Co., 40 Fed. 615, followed.</p> <p>2. Same.</p> <p>The fact that various departments of the municipality besides the electrical bureau, which has direct charge of the work of supervising and inspecting the telegraph poles and wires, incidentally aid in this work, does not render the supervision and control of the telegraph poles and wires accountable for the expense of maintaining such municipal departments, where it does not appear what proportion or i>art of this expense is chargeable directly to such supervision.</p>

<p>Customs Duties — Pig Lead — Wastage. ■</p> <p>Pig and bar lead was dutiable, under paragraph 166 of the act of August 27, 1894, at one cent per pound on' the gross weight of the metal imported, and not merely upon the net amount of pure lead contained therein as shown by assay.</p>

<p>1. Patents — Process Claims.</p> <p>The mere manual transposition of an article which is being operated upon by a machine, so as to present another part of it to undergo a like operation with that just completed, does not, when superadded to the functions of the machine, constitute a process or method of treatment such as is contemplated by the patent law. Locomotive Works v. Medart, 15 Sup. Ct. 745, 158 U. S. 68, applied.</p> <p>2. Same — Invention—Duplication of Parts.</p> <p>An adaptation, which in a certain sense is only a duplication of parts which seems simple and obvious after it is once done, may be held to constitute patentable invention, and the need of some such device had long been recognized and vainly sought.</p> <p>8. Same — Serrators for Sickle Sections.</p> <p>The Gindorff patent, No. 524,965, for a serrator for sickle sections, held valid and infringed as to the combination of claim 1, and void for want of patentability as to claims 4 and 5, which purport to cover a process.</p>

This was a suit in equity by Daniel L. Monroe against John McGreer for alleged infringement of a patent for a well-boring apparatus.

This was a suit in equity by Boyal E. Bobbins and Thomas M. Avery against the Illinois Watch 'Company for alleged infringement of reissue patent No. 10,631, to Duane H. Church. The cause was heard below on exceptions to the master’s peport in respect to profits. The exceptions were sustained by the circuit court, and a decree for nominal damages and profits entered. 78 Fed. 124.

This is an appeal from an interlocutory decree of (he circuit court, Southern district of New York, which .held that defendants had infringed complainants’ patent, and ordered an injunction and accounting. The patent in question is No. 322,366, issued to Bamuel Fulton, July 14, 1886 (upon application filed May 12, 1884), for an improvement in mattresses. The first claim only was alleged to be infringed.

On December 13, 1895, libels for wages were filed against tbe Marion S. Harriss, under wbicb she was ordered to be sold. The other libels above mentioned were subsequently filed. Hpon i.ie sale and the payment of the proceeds in the registry of the court for distribution, the whole matter was referred to Henry Flanders, Esq., as commissioner. From his report the following facts appear: The Marion S. Harriss was originally a Norwegian vessel.

This is ah appeal from a decree of the district court, Southern district of New York, apportioning the damages in an action arising out of a collision between the libelants’ ferryboat Susquehanna and the claimant’s ferryboat Albany. The district judge held both vessels in fault, but only the libelants appealed. 74 Fed. 314.

<p>Appeal from the District Court of the United States, for the Eastern Division of the Northern District of Ohio.</p>

<p>Removal of Causes — Procedure— Failure of State Court to Act on Petition.</p> <p>“Where a petition and bond for removal of a cause to the United States eileuit court are duly and in apt time Mod in the proper clerk’s office of a state court in vacation, and afterwards on a day of the term of that court, and when court was open, and the presiding judge on the bench, and a petition is presented to him as at chambers for an injunction and receiver in the same casts whereupon counsel for the defendants, who had tiled the petition and bond for removal to the United States circuit court, informed and advised the judge that the petition and bond had been tiled, and offered to produce same, that the court and opposing counsel might inspieet them, and insisted that the court could not. proceed further with the cause, and thereupon, at the suggestion of opposing counsel, proceeded to state the facts contained in the petition, and to name the surety on the removal bond, -which facts were accepted by the court and opposing- counsel as line, and the fact conceded that the petition showed on its face a cause removable under the statute, and the bond sufficient and in proper form: Held that, upon such facts being brought to the attention of the court in the manner stated, the jurisdiction of the state court eo instant! ceased, and the jurisdiction of the United States circuit court immediately attached, notwithstanding the state court made no order, and took no action relating io the removal; and the petitioner had a right to procure and file a copy of the record in the United States circuit court, upon filing which the United States circuit court, could proceed with the case as if it had been originally brought in that court.</p>

<p>Action by James H. Stalker against the Pullman’s Palace-Car Company to recover for personal injuries. The cause was removed from the state court on petition of defendant.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nevada.</p> <p>This was a suit in equity by M. Healey against G. M. Humphrey, the Bullion & Exchange Bank, and others, to enjoin the enforcement of two judgments.</p>

<p>1. Contract — Alteration—What is — Sureties.</p> <p>Plaintiff, by written-agreement, licensed defendant company to use certain machines in consideration of paying royalty, and defendant gave bond, with sureties, conditioned for the performance of the contract. Afterwards the president of defendant company interlined in the contract a provision as tn the time of deUvory of the machines, which was accepted and acquiesced in by plaintiff. Held, that this interlineation was an alteration of the contract so far as the sureties in the bond were concerned.</p> <p>2. Same — Immaterial—Discharge ok Sureties.</p> <p>When a bond Avith sureties is given for the faithful performance of a con-trad, and the parties to the contract afterwards make an alteration therein without the conseni of such sureties, the latter are discharged, whether the alteration is a material one or not. Mersman v. Werges, 5 Sup. Ct. 65, 112 U. S. 139, distinguished.</p> <p>3. Same — What is Material.</p> <p>A license for the use of certain machines proA’ided that the, licensee might call upon the licensor “for as many additional machines as the licensee deemed expedient,” but the time of delivery ivas not fixed. The parties inserted in the contract, after it was executed, a provision that “said machines shall be shipped to the licensee within thirty days after written notice is given to the lessor.” Held, that this veas a material alteration in the contract.</p>

<p>Interstate Commerce — Original Package — Liquors.</p> <p>An original package, within the meaning oí the law of interstate commerce, is the package delivered by ilie importer to the carrier at the initial point of shipment, ill the exact, condition in which it was shipped. In the case of liquors in hoi ties, if the bottles are shipped singly, eacli is an original package, but if a number are fastened together, and marked, or are packed in a box, barrel, crate, or other receptacle, such bundle, box, barrel, crate, or receptacle constitutes the original package.</p>

Bill for an injunction against the infringement of a patent and an accounting. Sur motion for preliminary injunction.

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

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

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

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

<p>In Error to the United States Court of Appeals for Indian Territory.</p>

<p>Appeal from the Circuit Court of the United 'States for the Southern District of Mississippi. This was a suit in equity by W. J. Davis against H. L. Davis and others to establish an equitable title to, and recover possession of, the one undivided half of the Homo Chitto plantation, in Adams county, Miss. The circuit court sustained a general demurrer to the hill, hut on appeal this decree was reversed by this court, and the cause remanded for further proceedings. See 18 C. C. A. 438, 72 Fed. 81. The court below, having accordingly heard the cause upon the merits, dismissed the bill because the plaintiff had failed to show any right to the relief sought. From this decree the complainant has now appealed.</p>

<p>Certiorari to Perfect Record.</p>

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

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

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

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

<p>Axipeal frbm the Circuit Court of the United States for the Eastern District of Pennsylvania. Counsel for axipPllamte requested to have taxed, as part of the costs for printing, the Ml of Alfred M. Slocum Company for reprinting complainant's record: and under rale 23 this was disallowed, to which order counsel Cor appellants duly excepted.</p>

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

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

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

This was an action by Henry McJPeek against the Central Vermont Railroad Company to recover damages, for personal injuries. The court directed a verdict for defendant, and plaintiff sued out a writ of error. The judgment of the circuit court was affirmed (79 Fed. 590), and plaintiff now petitions for the right to file in the circuit court a motion for a new trial, and to be heard thereon, etc.

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

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

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

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

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

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

This was a suit in equity to foreclose a mortgage on a bridge across the Rio Grande river, and the property and franchises connected therewith. The question raised by the assignment of error was the same as that in International Bridge & Tramway Co. v. Holland Trust Co., 81 Fed. 422.

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

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

This was an action at law by Mrs. G. T. Smith, widow of Paoli A. Smith, suing in her own behalf and that of her minor child, to recover damages from the Texas & Pacific Railway Company for tlio death of her husband. The court directed a verdict for defendant, and entered judgment accordingly, and the plaintiff brought the case here on writ of error.

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